I read with interest the views expressed by the former Secretary to the Prime Minister, Mr Andrew Donua Muaki (and as reported in the Solomon Star on 17 January 2014) regarding the ruling of the High Court of Australia as to the legality of Julian Moti's deportation from Solomon Islands. His views cannot be left unchallenged.
The highest appellate court in Australia held (essentially as a matter of statutory interpretation) that Mr Moti's deportation was unlawful under Solomon Islands law. The relevant Solomon Islands legislation is the Deportation Act (as amended). This statute gives a minister powers to deport a person from Solomon Islands. That same statute also provides safeguards to ensure a minister does not abuse this power to deport; it affords the person to be deported the right to make an application to the High Court for review of a deportation order within seven days. The seven-day period starts from the date the deportation order is served on the person to be deported.
Australia's highest court has held that under Solomon Islands law the minister has powers to direct that the person against whom a deportation order has been issued be placed on a ship or aircraft only if either (a) the seven-day period has lapsed and a review application has not been made or (b) a review application has been made and refused by the court.
Andrew Muaki appears to imply Mr Moti opted to not exercise his right to make a review application within seven days of being served the deportation order. This is not correct. Mr Moti was served the deportation order on 27 December 2007, he was arrested immediately, and within hours he was on a plane bound for Australia that same day. Mr Moti's immediate deportation was carried out in breach of his statutory right to be given seven days to file an application for review of the deportation order. His deportation was executed with complete disregard for the provisions of the Deportation Act guarding against a minister abusing ministerial powers.
The learned judges of the highest court in Australia held that the Minister had no lawful authority to direct that Mr Moti be placed on the plane on 27 December 2007. The minister could only lawfully make such direction after the seven-day period had lapsed without a review application or once the High Court had heard and refused such an application. Neither of these conditions was met. The deportation was therefore unlawful.
It cannot be seriously contended that Mr Moti should have filed an application for review from Australia after his deportation. That contention, if accepted by our courts, would make a complete mockery of the rights and safeguards provided for under Solomon Islands law.
While it is true that Solomon Islands courts are not bound by decisions of foreign courts, Solomon Islands is part of this common law legal world. Our courts (as do courts of other common law countries) give serious consideration to relevant decisions by foreign courts. The judgment of the High Court of Australia would be highly persuasive on our courts if called upon to determine the legality of Moti's deportation.
Disclaimer: The views and opinions expressed in this letter are those of Tesua Muakitangata and do not necessarily reflect the official policy or position of Solomon Times Online.
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