Education

In Loper Bright Enterprises v. Raimondo, 603 U.S. ___ (2024), the US Supreme Court overruled the long-standing rule named after Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), under which US courts would (if certain conditions were met), when construing a statute administered by a government agency, “defer” to that agency’s interpretation, provided it was a “permissible” interpretation.

The majority opinion referred to Marshall CJ’s famous declaration in Marbury v Madison 1 Cranch 137 (1803) that “[i]t is emphatically the province and duty of the judicial department to say what the law is”. Interestingly, the Australian High Court referred to Marbury when it rejected Chevron deference as forming any part of Australian administrative law 24 years ago, in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135.

However, while Chevron deference has always struck most Australian public lawyers as odd, it has formed a bedrock rule of US administrative law for 40 years, and some have viewed the US Supreme Court’s decision to overrule it as shifting the balance of power towards undermining executive agencies’ abilities to pursue executive policy. For example, a White House press statement said “this decision undermines the ability of federal agencies to use their expertise as Congress intended to make government work for the people”.

In Save the Children Australia v Minister for Home Affairs [2024] FCAFC 81, Save the Children Australia appealed from a decision refusing to issue a writ of habeas corpus, to require the Australian government to bring before the Federal Court, in Australia, Australian-citizen women and their children who are presently detained, in camps in North-East Syria, by the Autonomous Administration of North-East Syria.

Habeas corpus usually issues against a person (often exercising governmental authority), who is directly detaining someone, to test the legality of that detention. However, in three UK cases —  Barnardo v Ford [1892] AC 326; R v Secretary of State for Home Affairs; ex parte O’Brien [1923] 2 KB 361; and Rahmatullah v Secretary of State for Defence [2013] 1 AC 614 — the courts issued the writ where there was a doubt whether the recipient, though not the detainer, had control over the detention. In O’Brien, doubt as to control arose from an oral agreement between the governments of Britain and the Irish Free State. In Rahmatullah, doubt as to control arose from a memorandum of understanding between the governments of Britain and the US.

Save the Children contended that the writ should be given the same extraterritorial operation under Australian law. They said the evidence showed an arrangement or understanding between the Australian government and the Autonomous Administration of North-East Syria, on which the Australian government could call to have the women and children released from detention into the hands of Australian officials, who could then repatriate them to Australia, thus complying with the writ. In a unanimous judgment, Mortimer CJ, Kennett and Horan JJ dismissed the appeal, finding on the evidence that the existence of an agreement or arrangement was nothing more than conjecture, and therefore did not give rise to sufficient doubt as to control.

On 28 May 2024, Mabo Chambers hosted the CPD “Victorian Treaty Act and Framework” organised by the Indigenous Justice Committee of the Victorian Bar. You can watch the CPD in full by clicking here.

The CPD was chaired by Cal Viney, and featured speakers Rueben Berg (Co-Chair of the First Peoples’ Assembly of Victoria), Jidah Clark (Chair of the Treaty Authority) and Serena Armstrong (Barrister).

This Seminar is a component of the Victorian Bar CPD Program and carries 1 CPD point (substantive law). Slides from the seminar are available for download here.