The issue of interpretation was finely balanced. In my view, the ''compliance on the ground'' test is closest to the language used. If the act were talking solely of legal entitlement, the decision would have been a simple objective one, not requiring a ministerial certificate. The other factor is that the welfare of asylum seekers is more likely to be protected by satisfactory arrangements on the ground than by a country's adherence to an international treaty or by its legislative rules. A non-binding promise by Australia or the US is worth more than a binding undertaking by Nazi Germany or Stalinist Russia.

It is also of significance that the legislation was drafted with the 2001 arrangements with Nauru in mind. They were comparatively informal and depended on Nauru permitting the internal arrangements to take place under Australian supervision.

Notwithstanding this, I do not suggest that the High Court was ''wrong'' or misguided. It came to one of two possible conclusions. The High Court made no ''new law'' and the criticisms which have been publicly made of it are totally unfounded. The first is that there is some perceived inconsistency between its decision and a decision of Chief Justice Robert French when in the Federal Court. A moment's analysis reveals that that case concerned a totally different provision in a totally different context.

The second criticism is that the High Court ''missed an opportunity''. But the court does not reason by choosing a politically preferred result and endeavouring to reach it in some legal way. Such a process would be improper and contrary to the rule of law.

The remaining question is what can be done. The position is complicated by the fact that there is a passage in the judgment of the Chief Justice suggesting that the minister needs to be satisfied on both legal compliance and compliance on the ground.