Lawyers are circling, looking for weaknesses in the plan to send hundreds of foreign criminals to Nauru.
They won’t need to look far.
Those seeking to overturn the government’s plan will eventually work out that the High Court handed them a gift last November in the “ankle bracelets” case known as YBFZ.
There is a legitimate argument that this decision is fundamentally flawed. But that is not the point.
Until the court disavows the principle expounded in this ruling, it remains the law.
That means lawyers seeking to keep foreign criminals within Australia are entitled to use it for the benefit of those facing expulsion to Nauru.
If that happens, the High Court judges who signed on to the YBFZ principle will have a choice: will they again side with foreign criminals and against the Albanese government just like they did in 2023’s NZYQ case?
Or will they realise they took a wrong turn when they reconfigured the separation of powers in YBFZ in a way that makes it easier to strike down government decisions?
There are already rumblings of dissatisfaction from two of the court’s judges, Simon Steward, who was one of two judges who dissented in YBFZ, and James Edelman who did not.
In a seven-judge court, numbers count.
The decision in YBFZ struck down rules requiring foreign criminals who cannot be deported to their home countries to wear ankle bracelets and abide by curfews.
To reach that decision the court’s majority changed the separation of powers in a way that expands the exclusive responsibilities of the judiciary and shrinks that of the executive and parliament.
The definition of what the court considers to be punitive action – and which is therefore outside the proper role of the government – grew beyond its historical limits.
So how long will it be before some enterprising lawyer tests the YBFZ principle and argues that sending foreign criminals to Nauru is, in reality, sentencing them to exile.
The next step would be to invoke the court’s jurisprudence from YBFZ and argue that a sentence of exile is a punitive act that falls within the exclusive jurisdiction of the judiciary, not the government.
The rumblings about YBFZ gained a public airing at a constitutional law conference in Perth last month when Steward gave a paper on this issue and was introduced by Edelman.
Steward told the annual conference of the Samuel Griffith Society it would not be appropriate to provide critical commentary on what has happened to the court’s jurisprudence.
But he went on to say he had “struggled to agree with much of what has been happening recently in relation to the court’s jurisprudence about the reach of judicial power”.
Less restrained was Justin McGovern, an Oxford-educated lawyer based in Sydney who gave a paper on the same subject that made it clear he viewed YBFZ as heresy.
He described the chain of decisions leading to YBFZ as “indicative of the development of an expeditionary jurisprudence which must be arrested and corrected”.
He endorsed the view in Steward’s dissent that the new approach has the potential to enable the introduction of a judge-made bill of rights.
McGovern warned that the majority’s approach “not only diminishes the sovereignty of the executive branch of our constitutional compact but that it also dispossesses parliament of its own authority and, consequently, diminishes our democracy”.
Parliament and the executive have already lost some of their previously accepted powers over illegal immigrants.
If Steward and McGovern are right, this is just the beginning.
Unless the court changes direction, we could be on the verge of a judicially created series of restrictions on the power of parliament.
And while those restrictions would lack democratic legitimacy, they would prove just as effective as any charter of rights in shifting power to the judiciary.
So what sort of rights could be on the cards?
After delivering his paper McGovern was asked about what US-style rights were likely to be developed by the court under its new approach to the separation of powers.
“The list is endless,” McGovern said.
The problem is that the method now favoured by the High Court majority to determine what is and is not punitive looks a lot like subjectivity dressed up in a form of logic that is best described as circular.
Steward was far too well mannered to say that. But towards the end of his paper, he reproduced what Edelman said about this in the Ravbar decision, which was handed down in June.
Edelman’s assessment might help explain why Steward described his fellow judge as a brother as well as a genuine and dear friend.
Edelman wrote in Ravbar he had tried to make “the best sense” of the test supported by the majority of the court in YBFZ and to apply that test.
“But with great respect, the state of the present jurisprudence concerning the concept of punishment in Chapter III of the Constitution is extremely difficult to understand or apply and involves a legal fiction,” Edelman wrote.
“The test is essentially that a legislative means is ‘punitive’ if it is prima facie punitive unless a court concludes that it is not punitive because it is not for a punitive purpose.”
When judges use the term “with great respect”, which is the phrase used by Edelman when referring to the High Court majority, it is rarely meant as a compliment.
It usually signifies that someone who should know better has got things dreadfuly wrong.
