23 September 2020


One of my bleaker moments today was reminding participants in an international meeting that disregard of human rights may indeed be lawful, in the absence of a constitutionally enshfrined justiciable Bill of Rights, and that Ministers on occasion act as if they are above the law. That hubris has been highlighted elsewhere in this blog. 

This afternoon brings Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 1354. 

Flick J states 

[68] A party to a proceeding in this Court, be it a Minister of the Crown or otherwise, cannot fail to comply with findings and orders made by the Tribunal or this Court simply because he “does not like” them. Decisions and orders or directions of the Tribunal or a court, made in accordance with law, are to be complied with. The Minister cannot unilaterally place himself above the law. ... 

[74]    Even if both Grounds of review were made out, however, relief should be refused in the exercise of the Court’s discretion. The Minister cannot place himself above the law and, at the same time, necessarily expect that this Court will grant discretionary relief. The Minister has acted unlawfully. His actions have unlawfully deprived a person of his liberty. His conduct exposes him to both civil and potentially criminal sanctions, not limited to a proceeding for contempt. In the absence of explanation, the Minister has engaged in conduct which can only be described as criminal. He has intentionally and without lawful authority been responsible for depriving a person of his liberty. Whether or not further proceedings are to be instituted is not a matter of present concern. The duty Judge in the present proceeding was quite correct to describe the Minister’s conduct as “disgraceful”. Such conduct by this particular Minister is, regrettably, not unprecedented: AFX17 v Minister for Home Affairs (No 4) [2020] FCA 926 at [8] to [9] per Flick J. Any deference to decisions made by Ministers by reason of their accountability to Parliament and ultimately the electorate assumes but little relevance in the present case. Ministerial “responsibility”, with respect, cannot embrace unlawful conduct intentionally engaged in by a Minister who seeks to place himself above the law. Although unlawful conduct on the part of a litigant does not necessarily dictate the refusal of relief, on the facts of the present case the Minister’s conduct warrants the refusal of relief.