Save the Children Australia v Minister for Home Affairs & Anor

The applicants, Save the Children Australia and others, sought judicial review of decisions made by the Minister for Home Affairs and the Department of Home Affairs concerning the detention of children in immigration detention facilities. The core of the dispute involved allegations that the respondents had failed to adequately consider the best interests of children when making decisions about their immigration detention, and that such detention was unlawful. The matter was heard by the High Court of Australia.

The High Court was required to determine whether the Minister and the Department had a legal obligation to consider the best interests of children when exercising powers under the *Migration Act 1958* (Cth) relating to immigration detention. Specifically, the court considered whether the common law imposed such an obligation, and whether the *United Nations Convention on the Rights of the Child* (CROC), as incorporated into Australian domestic law, created enforceable rights in this context. The applicants also contended that the continued detention of children was contrary to the *Migration Act* and the common law.

The Court's reasoning focused on the interpretation of the *Migration Act* and the status of international conventions in Australian law. It was held that while the *Migration Act* confers broad powers on the Minister regarding detention, it does not expressly or implicitly require the best interests of a child to be a paramount consideration in all detention decisions. The Court affirmed that international conventions, including CROC, do not generally create enforceable rights in domestic law unless specifically incorporated by legislation. Therefore, the Court found that the Minister and the Department were not legally bound by the common law or CROC to make the best interests of children the primary consideration in their detention decisions.

The High Court dismissed the application for judicial review.