This July – the High Court’s winter recess – has seen six lengthy hearings concerning legal action on behalf of passengers of a boat from India who have spent the balance of the month detained in an Australian government vessel. Continue reading
On 18 July 2014, I was able to interview Sir Anthony Mason as we were both attending Obligations VII Conference in Hong Kong.
Sir Anthony was a judge of the High Court of Australia from 1972 to 1987, and Chief Justice of the High Court of Australia from 1987 to 1995. He then became a non-permanent judge of the Hong Kong Court of Final Appeal, a position which he still holds.
We spoke about his roles as a judge in Australia and Hong Kong, significant judgments during his time as a High Court judge, the role of dissenting judgments, the use of academic commentary and overseas judgments, the doctrine of precedent and Farah v Say-Dee, and judgment writing styles.
KB: Thanks so much for agreeing to speak to me today.
AM: It’s a pleasure, Katy.
KB: The first thing I’d like to ask is: how would you view your time on the High Court?
AM: I enjoyed it very much. I suppose I can say I enjoyed being a judge.
AM: In one sense I regarded it as great fun. It was of course at times onerous, but I always enjoyed it. The questions were interesting and it was interesting endeavouring to answer the questions.
KB: And on that note, obviously you haven’t still given up being a judge. What about your time on the Hong Kong Court of Final Appeal? (See also The Hon Sir Anthony Mason, ‘The Hong Kong Court of Final Appeal’ (2001) 2 Melbourne Journal of International Law 216.)
AM: Likewise, I’ve enjoyed that very much. There are two different, or two aspects of that that are different from sitting in the High Court. First of all I am sitting on the CFA as a part-time judge. It’s more enjoyable being a part-time judge than a full-time one. Of course you don’t feel that sense of grind which you feel at times if you’re a permanent judge sitting on a court over a long period of time. But the second feature of sitting on the CFA is that I began sitting on that Court at the time when courts began to interpret the provisions of the Basic Law of Hong Kong’s Constitution. And it’s very different interpreting the provisions of a new Constitution at the very beginning from interpreting the provisions of an old Constitution after a lot of, as it were, work has already been done on it. You feel at times in the medium of the High Court that you’ve got to contend with a lot of overburden. You never have that feeling in Hong Kong. And the great thing about it is that it instils in you a sense of history and appreciation of the work done by those great judges who were the first High Court judges. I mean, they were remarkably good judges. They quickly established a reputation for the High Court as one of the leading courts in the world, and what’s more, they stood up to the Privy Council, and in their first big confrontation with the Privy Council they won out, and you should never forget their contribution to the development of Australian democracy and to the Australian Constitution. (See Deakin v Webb  HCA 57.) Continue reading
This week brought important developments in two significant proceedings that will soon be heard by the High Court: the urgent litigation over the fate of approximately 150 Sri Lankan asylum seekers held in an Australian cargo vessel; and the constitutional challenge to Queensland’s ‘bikie’ laws. Continue reading
Canadian journalist Catherine Clark, the daughter of a former Prime Minister and the host of Beyond Politics (shown on Canada’s public affairs cable channel) has conducted video interviews with the entire bench of the Supreme Court of Canada. Each runs for nearly 30 minutes. There are only eight interviews, as the Court’s ninth seat was unoccupied until recently (for reasons explained here). The interviews are available online at the website of Beyond Politics and on the show’s youtube channel (see the end of the list). In her interview, the current Chief Justice Beverly McLachlin reveals that she received the phone call offering her a place on the court while vacationing with her twelve-year old in Townsville.
Clark’s interviews resemble video interviews given by all sitting judges of the United States Supreme Court in 2009 on CSPAN. The American and Canadian Supreme Courts’ willingness to give interviews while on the bench contrasts with the general practice of Australia’s High Court, which is generally limited to rare interviews with the Chief Justice on special occasions, such as impending retirement [UPDATE: see comment below.] Last year, The Australian reported that the Court’s current Chief Justice, Robert French, has ruled out any media interviews before he retires in 2017.
By Houston Ash
While the legality of the Australian government’s policy of transferring Sri Lankan asylum seekers to that country’s navy is likely to be considered by the High Court shortly, a separate challenge to another pillar of the government’s migration strategy was recently dismissed. In Plaintiff S156/2013 v Minister of Immigration and Border Protection  HCA 22, the High Court unanimously upheld the constitutionality of the provisions of the Migration Act 1958 (Cth) under which asylum seekers are removed from Australia’s ‘migration zone’ to either Papua New Guinea or the Republic of Nauru. The Court also confirmed the validity of the decisions made by the Minister of Immigration and Border Protection to designate PNG as a ‘regional processing country’ and to direct officers of what is now the Department of Immigration and Border Protection to take particular classes of ‘unauthorised maritime arrivals’ to PNG or Nauru.
The provisions in question, ss 198AB and 198AD of the Migration Act, were introduced by the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth). As discussed further below, these provisions were the Parliament’s response to the High Court’s decision in Plaintiff M70/2011 v Minister for Immigration and Citizenship  HCA 32, which scuppered the former government’s so-called ‘Malaysia Solution’.
The challenged provisions
Section 198AD of the Migration Act requires ‘unlawful non-citizens’ who are also ‘unauthorised maritime arrivals’ to be taken to a ‘regional processing country’ as soon as reasonably practicable. If there are two or more such countries, s 198AD(5) requires the Minister to provide a written direction specifying the country to which a person or class of persons is to be taken. Section 198AB allows the Minister, by legislative instrument, to designate that a country is a ‘regional processing country’ if the Minister thinks it is in the national interest to do so. In considering the national interest, the Minister must have regard to whether the country has given any assurances that it:
- (a) Will not expel the person to a country where his or her life or freedom would be threatened; and
- (b) Will permit an assessment of whether the person is a refugee within the meaning of art 1A of the Refugees Convention.
Section 198AB(4) provides that any such assurances do not need to be legally binding. Continue reading
By Benjamin Saunders
This post makes some additional comments about the Court’s reasoning with respect to executive power (the subject of an earlier post by Cheryl Saunders (no relation to the author)) and also briefly discusses the Commonwealth waiving debts owed to it as a consequence of the Court’s finding of invalidity.
Executive power, British and Australian
I do not disagree with the opinions expressed by Cheryl Saunders in her earlier post, that ‘Williams [No 2] does not add a great deal of substance to the conclusions about the ambit of the executive power of the Commonwealth reached in Williams [No 1]’. However, I wish to make some additional observations, namely that the Court in Williams [No 2] reached its decision about the scope of executive power in an unusual way. Continue reading
Media reports state that the High Court has issued an injunction preventing the Australian navy from handing over approximately 150 people, said to have travelled by boat to seek asylum in Australia, to Sri Lankan officials. This follows confirmation by the Australian government of an incident involving 41 people:
Forty one potential illegal maritime arrivals who were intercepted on the SIEV were returned to Sri Lankan authorities yesterday (Sunday 6 July). The 41 Sri Lankan nationals were transferred at sea, in mild sea conditions from a vessel assigned to Border Protection Command (BPC) to Sri Lankan authorities, just outside the Port of Batticaloa. All persons intercepted and returned were subjected to an enhanced screening process, as also practised by the previous government, to ensure compliance by Australia with our international obligations under relevant conventions.
The Australian reports that the injunction was granted by Crennan J in an urgent hearing this evening and will apply until 4pm tomorrow, by which time a further hearing will have occurred.
A possible precedent for the reported injunction is an interim injunction granted by Hayne J on 7 August 2011 to prevent the first transfer of asylum seekers from Christmas Island to Malaysia under the ‘Malaysian Solution’. Continue reading
A recent Essential Poll records that Australia’s most trusted institution is the High Court of Australia. 20% of the 1835 people surveyed said that they placed “a lot of trust” in the High Court” and 37% said that they placed “some trust” in the High Court. The High Court outstripped all other institutions, but was closely followed by the ABC. The High Court also had the lowest level of distrust, with only 12% of respondents saying that they had “no trust” in the High Court. Political parties scored the lowest in the 2014 poll, with only 2% of people saying that they placed “a lot of trust” in political parties and 11% of people saying that they placed “some trust” in political parties. 50% of people said that they had “no trust” in political parties. Continue reading