The Kiefel High Court fundamentally shifted application of well-established principles for construing international human rights obligations: time to restore orthodoxy

This article finds application of the well-established principle known generally as the presumption of consistency, which provides that, as far as its language permits, legislation should be interpreted and applied consistently with the comity of nations or with established rules of international law, fundamentally shifted afterJustice Kiefel was appointed Chief Justice in 2017. As this article demonstrates, the ‘domestic contextual approach’ propounded by the Kiefel Court to construe complementary protection provisions engaging Australia’s non-refoulement obligations under various international human rights instruments derogates from the orthodox approach for construing Australia’s protection obligations and perpetuates an unedifying legacy of exceptionalism and isolation from human rights jurisprudence.