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Radical Reform in the High Court: Immigration Law

In a move that sent Australian legislatures reeling, the High Court handed down three rather controversial decisions on Thursday, 11th November 2010, which were reported in the media. The three cases declared invalid or altered the interpretation of several key provisions in laws that have been making headlines over the recent months.

The second of the decisions, Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia, concerned the right of appeal for decisions regarding off-shore processing of illegal immigrants and refugees.

The provisions that were declared invalid here are the provisions that concern the review of the detainee’s legal position (ie. whether they fall within the Refugee Convention as amended by the Refugee Protocol). In coming to its decision, the Court held that as the provisions did not place a duty upon the Minister to comply with the International Convention, Migration Act, or the case law then it was not subject to declaratory relief from the High Court as laid out in s 75(v) of the Constitution. As such, the provisions could not operate in a manner consistent with the High Courts jurisdiction under the Constitution and any decision made under those provisions must therefore comply with the Convention, Act and case law to be valid.

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