Now we know that it is not only a missile that can bring down a plane.
by Dr. Ruwantissa Abeyratne
Writing from Montreal
Fiat Justitia Ruat Caelum
ABC News reported that on 28 August 2019, a family of four were removed from immigration detention and placed on a plane which departed Melbourne Airport for Sri Lanka. The family, comprising the parents and two daughters aged 4 and 2 years (who were born in Australia) were being deported on the ground that the 2-year old’s asylum plea had been rejected. However, while the family were in mid air over Darwin, lawyers for the 2-year-old argued before a federal circuit court judge that the youngest child was owed protection obligation, and there was a failure by officials to refer the issue to the minister for consideration. The judge granted a last-minute temporary injunction, over the phone, forcing the plane to land in Darwin. Upon landing, the two parents and their two Australian-born daughters were taken to accommodation.
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| Mid-air justice |
The injunction stated that the Minister for Immigration, David Coleman, is restrained from removing the family of four from Australia until further determination before a Judge in the Federal Circuit Court of Australia in Melbourne.
An injunction is a public law remedy under common law and injunctive relief is sought as a judicial remedy. It is an equitable remedy given in personam (to be applicable in a given instance to a person or persons) and is calculated to prevent irreparable damage to those seeking it. An injunction can be invoked under various circumstances, such as to prevent trespass on one’s property or nuisance, as well, as in this case, to restrain a public body from acting unlawfully or, to restrain the implementation of an unlawful decision. The gravamen of accusation by the plaintiff’s lawyers was that the officials concerned had failed to refer the 2 -year old’s case to the minister for consideration.
An injunction is usually brought before the courts by the Attorney General. However, members of the public or lawyers on behalf of the public can plead for an injunction without the intervention of the Attorney General. In the 1903 case of Boyce v.Paddington Borough Council Buckley J. held: “A plaintiff can sue without joining the Attorney-General in two cases: first, where the interference with the public right is such as that some private right of his is at the same time interfered with (e.g., where an obstruction is so placed in a highway that the owner of premises abutting upon the highway is specially affected by reason that the obstruction interferes with his private right to access from and to his premises to and from the highway); and, secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right”.
There are three types of injunctions: preliminary injunction; temporary restraining order; and a permanent injunction. These are mandatory and form a court order that orders a person to do or refrain from performing an act, where a court exercises its judicial discretion which is not necessarily based on a right of a person but on consideration of an important interest of the person seeking that injunction which is in peril of being adversely affected. It is assumed that the injunction ordered in the Australian case is a preliminary injunction.
Although the injunction that stopped the progress of flight in Australian skies is seemingly the first of its kind, there have been instances of injunctions being issued with regard to air transport. In May 2019 Brussels Airport Company and Brussels Airlines sought an interim injunction against Belgian air navigation services provider (ANSP) skeyes for continuity of service delivery. In August 2019 Ryanair, which had earlier succeeded with an injunction against a proposed 48-hour strike by its pilots based in Ireland, failed to obtain a similar order from the High Court of in London against British pilots just prior to the busy bank holiday weekend. The court ruled that pilots represented by the British Airline Pilots’ Association (Balpa) could proceed with their strike.
The issuance of an injunction against a public authority ordering that the process of deportation of a refugee be halted in mid air is a clear and cogent demonstration of the reach of the judiciary both on the ground and in mid air. Jeffrey M. Shaman, Director of the Center for Judicial Conduct of Canada, in his article "Judicial Ethics" indicates the power of judges in society: "Judges are important public officials whose authority reaches every corner of society. Judges resolve disputes between people and interpret and apply the law by which we live. Through that process, they define our rights and responsibilities, determine the distribution of vast amounts of public and private resources, and direct the actions of officials in other branches of government".
The equitable remedy of the injunction - where the remedy can be based on judicial discretion and special interests of the person- is a good example of the far-reaching arm of the law and its application. Independence and objectivity are the hallmark of an honourable judge. Judge Learned Hand eloquently identified the centrality of judges to the administration of justice in his decision in Brown v. Walter: "Justice does not depend upon legal dialectics so much as upon the atmosphere of the courtroom, and that in the end depends primarily upon the judge". This is clear evidence that the future of individuals and society as well as the life of persons are within the power of a judge.
In the ultimate analysis the injunction is reflective of the supremacy of the rule of law – that no person is above the law and must be subject to its tenets. This is the bedrock of the international community. In February 2014 the Secretary General of the United Nations United Nations Ban Ki -moon announced that “the rule of law is at the heart of the work of the United Nations" and added that when public institutions failed to deliver justice or protect rights, conflict prevailed. “People must be able to trust that their institutions can resolve disputes promptly and fairly,” he emphasized.
Now we know that it is not only a missile that can bring down a plane.
Dr. Abeyratne is the author of Rulemaking in Air Transport, published by Springer in 2016.
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