By Harry Yous and Maria Ambrose
The well-settled doctrine of parliamentary supremacy means that statute prevails over common law; but the meaning of a statute depends on the application of judge-made common-law principles.
It follows that statutory interpretation has arguably become the single most important aspect of legal practice, as most areas of law have not escaped the clutches of statutory modification. There are, however, potential irremediable conflicts when there are dual obligations being (1) an obligation to follow statutory obligation (i.e. the command of parliament) and (2) the obligation to follow court order (i.e. or risk being in contempt of court).
This article will explore one of angle of the relationship between the command of parliament and the command of courts orders through statutory interpretation, specifically the use of statutory interpretation as a remedial tool to prevent potential irremediable conflicts from arising.
Procedural history
On 8 August 2023, the respondent, an unlawful non-citizen held in immigration detention pending removal from Australia, filed an originating application in the Federal Court of Australia seeking, inter alia, that the appellants and its relevant officers be restrained from removing the respondent from Australia pending the final determination of the proceeding.
There was no dispute that the jurisdictional preconditions outlined in s 198(6) of the Migration Act 1958 (Cth) (the Act) were satisfied. Having found that a serious question to be tried existed, in assessing the balance of convenience, the primary judge found that the duty to remove the respondent under s 198(6) would frustrate the Court’s processes.
The Full Court of the Federal Court of Australia, by majority, dismissed the appeal. The majority of the Full Court found that an injunction may be granted by the Court to restrain the compliance or performance of statutory obligations (such as the duty to remove under s 198(6) of the Act), provided that it does so to preserve the subject matter of the proceedings and the integrity of its own procedures. The appellants appealed the decision to the High Court.
Background facts
In Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5 (MZAPC), the respondent was an unlawful non-citizen held in immigration detention pending removal from Australia. The respondent requested for ministerial intervention pursuant to ss 48B, 195A, 197AB, 351 and the since repealed s 417 of the Migration Act 1958 (Cth) (the Act). For present purposes, it is sufficient to say the nature of the powers sought are personal, non-compellable powers of intervention on the Minister.
Section 198(6) of the Act relevantly provides:
198 Removal from Australia of unlawful non‑citizens
…
(6) An officer must remove as soon as reasonably practicable an unlawful non – citizen if:
(a) the non – citizen is a detainee; and
(b) the non – citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
(c) one of the following applies:
(i) the grant of the visa has been refused and the application has been finally determined;
(ii) the visa cannot be granted; and
(d) the non – citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.
As an unlawful non-citizen who exhausted all avenues to obtain a visa, s 198(6) of the Act was engaged. Section 198(6) of the Act provides that the appellant must be removed from Australia as soon as reasonably practicable.
The respondent then filed an Davis style application (the Application) seeking declaratory and related relief on the basis that departmental official had refused to refer his request to the Minister for Immigration and Multicultural Affairs (see Davis at [2]). The respondent also sought, inter alia, an interlocutory injunction to restrain the Minister for Immigration and Multicultural Affairs, the Secretary of the Department of Home Affairs and relevant officers (collectively, the appellants) from removing the respondent from Australia pending the final determination of the proceeding.
After finding that there was a serious question to be tried on the Application, the primary judge held that the balance of convenience favoured granting an interlocutory injunction because the removal of the respondent under s 198(6) would frustrate the Court’s processes. The Full Court of the Federal Court of Australia, by majority, dismissed the appeal from the primary judge’s orders. The majority of the Full Court found that an injunction may be granted by the Court to restrain the performance of statutory obligations (such as the duty to remove under s 198(6) of the Act), provided that it does so to preserve the subject matter of the proceedings and the integrity of its own procedures. Following the decision, the appellants appealed to the High Court.
The majority in the High Court construed the statutory duty in s 198(6) of the Act in such a way as to preserve the Federal Court’s ability to exercise judicial power to protect the integrity of its own processes. The High Court held that when properly construed, a statute would have intended to accommodate the court’s power to grant injunction. Therefore, the statutory duty imposed by parliament would have either paused or was simply not engaged at that point in the statutory interpretation process.
The irremediable conflicts
Two potentially inconsistent, yet lawful obligations will give rise to an irremediable conflict. Turning to the first obligation, the statutory obligation imposed by section 198(6) of the Act. The Act commands that an officer of the executive government must remove as soon as reasonably practicable the appellant from Australia. There was no challenge to this legislated command. This was the common ground between parties at trial and both appellate levels.
Turning now to the second obligation, being the obligation to follow court order i.e. injunction. Section 23 of the Federal Court of Australia Act 1976 (Cth) empowers the Court to make “orders of such kinds, including interlocutory orders … as the Court thinks appropriate”. When the court issued an injunction to restrain the performance of an undisputed statutory duty, the officer is obliged to also follow this. The courts’ power has its roots in statutory sources, the statutory process of a court, in this case the Federal Court, cannot be protected by ordering any person to disobey another statute. Furthermore, in the absence of any challenge to the ‘application of the law or the validity of the law, no court has the power to direct any person to disobey a law of the Parliament’ (see Edelman J at [52]).
It follows that these concurrent duties produce an irremediable conflict between the duty of an officer to comply with an interlocutory injunction issued by a court preventing the removal of an unlawful non-citizen from Australia and the officer’s unchallenged statutory duty to remove that person (see at [37]). On the one hand, the executive government would be at risk of contempt of court by not complying with the injunction to restrain officers from trying to carry out the legally imposed statutory obligations outlined in s 198(6) of the Act. On the other hand, the executive government would be at risk of breaching its duty by failing to exercise a statutorily imposed obligation.
In these circumstances, the doctrine of parliamentary supremacy shall prevail. This was accepted by Earl Loreburn LC over a hundred years ago:
“A Court of law has no power to grant a dispensation from obedience to an Act of Parliament”
Both the primary judge and the majority of the Full Court of the Federal Court did not go as far as Earl Loreburn LC, but did recognise ‘the seriousness of restraining the enforcement of a valid law’ (See FCA decision at [72] and FCAFC decision at [126]-127]). The majority of the Full Court held that a court which lacked the power to issue such an injunction would not be a court because it has been deprived of its ability to function as a court. The majority held that the parliament, by a legislated duty, should not be able to limit court power in this way.
Edelman J held that the primary judge and the majority of the Full Court erred in that regard. Edelman J rather reaffirmed the doctrine of parliamentary supremacy in a similar manner as Earl Loreburn LC (See [52], see also [124] for Beech-Jones J). On this point, Edelman J agreed with Sarah Derrington J who dissented from the Full Court decision and held that no court has the power to disobey the command of the parliament (See [52]).
The High Court dealt with this issue by addressing the anterior question unexplored before the two courts below: whether the removal was required by s 198(6) of the Act in this case (see [20] for further amended notice of contention and [53]).
The concept of ‘fluctuating obligation’ approach
The plurality of the High Court (with Steward and Edelman JJ joining the orders) held that in the exercise of its power to protect the integrity of its processes and to effectively exercise its jurisdiction in a proceeding pending before them, the High Court, the Federal Court and the Federal Circuit and Family Court of Australia (Division 2) can issue orders such as by granting an interlocutory injunction to restrain officers of the executive government from removing the respondent. The plurality held that court must have the ability to preserve the subject matter of the proceeding and to prevent the determination of that proceeding from being frustrated. It follows that complying with the court’s injunction does not constitute a breach of the statutory duty in s 198(6) of the Act (see at [4]).
The plurality construed section 198(6) of the Act as accommodating the power of the Federal Court to grant an interlocutory injunction restraining officers from removing an unlawful non-citizen. To comply with the injunction is not to breach the statutory duty because the phrase “as reasonably practicable” would yield to a court-issued injunction (see at [37] and [39]). This arguably meant that whilst it may initially be “reasonably practicable” to remove the respondent, the court-issued injunction would make it no longer “reasonably practicable” to remove the respondent notwithstanding the pre-conditions of s 198(6) of the Act being met (see [40] and [45]).
Furthermore, the plurality (with Steward J agreeing) held that when construing statutory obligations, courts must recognise the presumption that the legislature would have, in imposing statutory obligations, intended to accommodate the effective exercise of courts’ power within the constitutional framework (see at [37]). The plurality’s approach meant that there is no irremediable conflict and that there is a clear consistency with the doctrine of parliamentary supremacy.
Whilst Edelman J approached the issue of the scope of injunction differently, his Honour’s position on the issue of statutory construction can be read as consistent with the view of the plurality (see [61] where his Honour agreed with Beech-Jones J analysis of a Tait–styled injunction). That is because his Honour elaborated on how, even though the jurisdictional preconditions of s 198(6) of the Act were satisfied, the duty in s 198(6) of the Act does not require or permit removal if removal no longer became ‘reasonably practicable’. When it was found that the appellant’s case was reasonably arguable, in the sense that there was a “prima facie case”, Edelman J held that it would no longer be ‘reasonably practicable’ to remove the appellant (see [55]). As a result, consistently with s 198(6) of the Act, there was a power for the courts to restrain the removal of MZAPC because the statutory obligation to remove the respondent was arguably suspended because it was no longer ‘reasonably practicable’ to comply with the duty to remove (see [71]).
Therefore, his Honour held that the application made by the respondent, was sufficient to disengage the power and duty of removal.
Alternative approach to statutory interpretation
Beech-Jones J departed significantly from the plurality, Edelman and Steward JJ on the construction of s 198(6). His Honour considered the natural flow of events would be that an officer of the executive must first threaten to remove the respondent from Australia by virtue of their statutory obligation (see [125]-[126]). His Honour’s construction was that the obligations imposed by s 198(6) of the Act cannot be said to have paused or suspended upon the filing of the application or upon seeking the interim injunction. Consequently, when the preconditions specified in s 198(6) of the Act are met, and there can be no legal challenge to any of those preconditions, the statutory obligation to remove the respondent must remain valid. Under this line of reasoning, irremediable conflict doesn’t arise because the court does not have the power to issue the injunction in question, and therefore the obligation to follow statute remains the sole obligation (see [128]).
Whilst his Honour accepted that the Federal Court does have the power to grant an interlocutory injunction to protect the subject matter of its own proceedings, it was held that the interlocutory injunction granted by the Federal Court went beyond what was necessary to protect the subject matter of the proceedings because it changed the nature the respondent’s legal rights and obligations (see [115]).[1] His Honour held that whilst the respondent was initially detained for the purpose of removal, the injunction meant that the detention purpose is altered to accommodate for the possibility of ministerial intervention – which may never happen because they are personal and non-compellable powers (see [118] and [127]). It may be noted that the remedy of mandamus is available to compel the proper performance of those duties.
The doctrine of parliamentary supremacy is prominently reflected through his Honour’s analysis. This is because his Honour considered that to construe otherwise would be contrary to the jurisprudence of Tait-styled injunction, the migration jurisprudence, the statutory scheme of the Act, and the purpose of the respondent’s detention.
What does this mean for the statutory construction jurisprudence?
Three things should be said in construing s 198(6) obligations as ‘fluctuating obligation’.
Firstly, despite serious divergence in approaches to the construction of s 198(6) of the Act and the outcome of the case, all of the reasonings are consistent with the doctrine of parliamentary supremacy. On this, we respectfully observed that both the plurality and Edelman J’s approaches to statutory construction are also consistent with the nature and character of the powers of Ch III courts, specifically in its ability to preserve the integrity of its own process.
Secondly from an institutional perspective, the ruling meant that the imposition of statutory obligations is not absolute but rather is fluid in nature. This is because the statutory obligations that may be enlivened can be suspended or paused by an injunction in circumstances where there is no legal challenge to those statutorily imposed obligations in the first place.
Thirdly, it is observed that judicial review on discretionary non-compellable duties and power may become a collateral tool to pause or suspend statutorily imposed obligations. This is because the inherent limitless character of an injunction in the sense that the interim reliefs may exceed the bound of the final relief may be used to delay the power and obligation, in this case, to remove an unlawful non-citizen from Australia.
The case itself, throws an interesting hypothetical situation where this irremediable conflict truly clashes. Until then, the intricate discussions of the statutory construction issues in the case of MZAPC serve as an important guide for future potential irremediable conflicts.
The views expressed in this article are exclusively those of the authors. Therefore, all errors are, of course, are our own.
