Thursday, September 16, 2004

Policy and recognition of defences

The flexibility of the common law is such that policy prevails when recognition of new defences is in issue. Illustrating this is Behrooz v Secretary of the Department of Immigration [2004] HCA 36 (6 August 2004). The issue was whether it would be a defence to a charge of escaping detention as an illegal immigrant that the conditions of detention were inhumane. The 6-judge majority of the High Court of Australia held that no such defence, amounting to a right to escape, could be recognised. Kirby J, dissenting, held that the common law permitted such a defence. The parties recognised that this was not a case where the facts supported a defence of necessity.
It would be wrong in principle to exhalt any single dissenting judgment in cases where the split is so uneven, but this case shows how contrasting use may be made of considerations such as existing common law, the relationship between courts and the legislature (under Australia's Constitution), international law, and the limitations of practical reality as far as alternative remedies for detainees are concerned.

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