Wednesday saw the High Court’s first decision of 2016, concerning one of the most controversial issues in Australia: offshore immigration detention. The judgment is a blockbuster, consisting of five judgments and over 42000 words (not including the 339 footnotes), answering (or declining to answer) a special case consisting of fourteen multi-part questions. As is the Court’s practice since late 2002, the judgment was accompanied (and, online, preceded) by a one-page judgment summary, describing the proceedings and, in a single paragraph, its outcome:
The Court held, by majority, that the plaintiff was not entitled to the declaration sought. The conduct of the Commonwealth in signing the second MOU with Nauru was authorised by s 61 of the Constitution. The Court further held that the conduct of the Commonwealth in giving effect to the second MOU (including by entry into the Administrative Arrangements and the Transfield Contract) was authorised by s 198AHA of the Act, which is a valid law of the Commonwealth.
It is likely that this summary was responsible for speedy and accurate media reports that the challenge to the ‘Nauru solution’ had failed, in turn prompting fresh political debate about whether the federal parliament or executive should maintain or end the regime, and specifically the fate of 267 asylum seekers slated to return to Nauru.
However, as The Guardian observed on Wednesday evening, ‘High court decisions are not football matches: it’s not always clear who has won and by how much.’ The Court’s summary alludes to the question of ‘how much’ by simply stating that the decision was ‘by majority’. However, anyone wanting further information, specifically that s198AHA was upheld 6-1 (with Gordon J dissenting), would have had to read (or at least skim) a 137 page judgment. As for further politically significant issues, such as whether or not Australia was found to be responsible for detaining the asylum seekers on Nauru, and what limits there might be to that detention, members of the public (including politicians) must rely on lawyers (or legal commentators) to parse the decision’s 418 paragraphs.
To an extent, this communication problem is inevitable, given the complexity of the law and the Court’s judgments. But the United Kingdom Supreme Court’s practice is an example of how the problem can be reduced. The UK’s top court, like Australia’s, provides contemporaneous ‘press summaries’ of all of its decisions. However, the UK court’s summaries are much more informative than the Australian court’s. They consist of four separate sections (as opposed to one.) One section, the ‘background to the appeal’, resembles the Australian summary and another, ‘judgment’, resembles the final paragraph in Australia, for example:
The Supreme Court allows the appeal on the Appellant’s application under the 1989 Act by a majority of 3:2 (Lord Clarke and Lord Sumption dissenting) on the basis that B remained habitually resident in England on 13 February 2014. Lord Wilson gives the lead judgment.
Unlike Australia’s summary, this paragraph clearly identifies the numbers of judges in the majority and the dissenting judges (and the summary earlier lists the name of all judges on the bench, again unlike Australia’s.) Most importantly, the bulk of the summary is a section titled ‘reasons for the judgment’, which clearly summarises the reasons of each judge (including the dissents) on each point in issue. The absence of such an official summary in Australia is unfortunate, particularly as the Australian court also declines to nominate majority judgments or (in general) to provide a table of comments for its blockbusters. Fortunately, a number of services (including Opinions On High’s own case pages, penned by our excellent research assistant Martin Clark) currently fill the gap in Australia. Martin’s summary of M68/2015 is available here.