Ruddock crashes and burns in High Court
Today's decision (or rather decisions
plural - there were actually 2 separate judgments) in the Baktiari case is the reverse side of the coin to a "win - win" situation. It was a "lose - lose" situation: both
the Minister and Mrs Baktiari and her 5 children lost comprehensively. Only the lawyers won. Mrs Baktiari was awarded 75% of her costs, so my academic colleague Professor George Williams (who argued the case for Mrs Baktiari along with others) will get paid! It's also a joyful day for academic public lawyers like me in general, because the High Court's decision is delightfully complex, subtle and convoluted. I'll be able to torture students with it for at least the next couple of years!
The bottom line, however, isn't all that difficult to convey. The Baktiari family lost because the Court found
that the Refugee Review Tribunal had made no judicially reviewable error in holding that Mrs Baktiari and her children were not entitled to a Protection Visa. Even if the Court had
found an error, it would have been only a temporary respite for the Baktiaris, since it's now very clear that they are Pakistanis and not Afghans as they had claimed. However, that ultimately fatal problem played no immediate part in the High Court's decision handed down today. Mrs Baktiari's counsel had argued that the RRT (and earlier the Minister's delegate) had failed to notify Mrs
Baktiari of a material fact, namely the fact that Mr.
Baktiari had already been granted a Temporary Protection Visa and had applied for a permanent one. Now, leaving aside the fact that Mr Baktiari had obtained that visa by fraud, and that one suspects Mrs Baktiari probably already knew that her husband had a visa anyway (whatever she may claim), the Court found that the Minister and RRT were under no legal obligation to notify Mrs Baktiari of something they simply hadn't taken into account in making their decision. In addition, the Court held that the fact of Mr Baktiari having a Temporary Visa was not a sufficiently relevant consideration as to make the Minister's decision invalid for having failed to take it into account.
As far as Minister Ruddock was concerned, the Court found in a separate judgment
that the Howard government's amendments to the Migration Act
passed (with panicked ALP support) immediately after the Tampa
affair, were almost completely legally ineffective.
First, the so-called "privative" (ouster) clause, which Minister Ruddock hoped would drastically restrict the available grounds for judicial review of migration decisions before the High Court and Federal Court, didn't have that effect at all. On a proper reading, the Court held, the privative clause (section 474
) did not protect migration decisions from review where a "jurisdictional error" had been committed. Since the High Court has progressively redefined administrative law over the last decade or so in a way that makes almost every
legal error a "jurisdictional" one, the net result is that the privative clause has almost no practical effect. In fact, ironically, the effect of today's decision is that the new privative clause has even less
effect in restricting the scope of judicial review than the previous section whose replacement Mr Howard bludgeoned Kim Beazley into supporting by labelling him as "soft on asylum seekers".
Secondly, the Court held that the government's attempt to limit review by imposing a 35 day time limit for filing review applications (section 486A
) was also
almost completely ineffective. On its face the time limit only applied to "privative clause decisions". A decision affected by "jurisdictional error" was not a "privative clause decision". In fact it wasn't a decision at all. It was a nullity.
Despite the fact that the Minister in essence lost comprehensively (as evidenced by the fact that 75% of the costs were awarded against him), the media mostly seems to have portrayed the case as a win for Mr Ruddock and the government! See, for example, the Sydney Morning Herald's coverage
. Even the ABC
accepted the Government's blatant, misleading spin on the result and reported that it was a win for Ruddock. Admittedly the reasoning is very complex, but surely it shouldn't have been beyond their wit to get reasonably early expert legal analysis instead of blindly accepting the government's spin. I heard Duncan Kerr (former Labor Minister who also argued part of the case) interviewed about the result on the ABC's World Today
program, and he gently tried to explain to the reporter that Ruddock had lost in a big way. Nevertheless, the message doesn't yet seem to have sunk through. The World Today story remains headlined on the ABC website as "Wins for both sides in High Court's "Tampa" decision." As I commented above, the opposite is the case. It's a safe bet that Mrs Baktiari and her kids don't give a rat's arse about the technical rulings on the meaning of amendments to the Migration Act
: they're getting deported from Australia because they lost. Similarly, it's a safe bet that Mr Ruddock "despite PR spin" doesn't care one way or the other about succeeding in defending the individual decision: the Baktiaris were going to be deported in due course anyway; this decision just speeds the process up a bit.
Lastly (and immodestly) I should point out that I accurately predicted today's result on this blog
back on 5 September. I didn't, however, predict the extent
of the Minister's defeat. Ruddock lost 7 - nil!! Even Justice Callinan found against the Minister. So much for stacking the High Court bench with ultra-conservatives. Even conservatives have this uncomfortable habit of thinking independently, and deciding cases on their merits, once they're appointed to the High Court. On the other hand, as I also observed back in September:
"Privately, however, both he [Minister Ruddock] and John Howard will view a High Court loss as an acceptable price to pay for winning an election that might otherwise have been very close."