Participation in Foreign Detention Legal: Plaintiff M68/2015 v Minister For Immigration And Border Protection [2016] HCA 1
Wednesday 3 February 2016 @ 11.27 a.m. | Crime | Immigration
In Plaintiff M68/2015 v Minister For Immigration And Border Protection & Ors [2016] HCA 1, the High Court of Australia has today (3 February 2016) in a majority decision held, that the plaintiff, a detained asylum seeker, was not entitled to a declaration that the conduct of the first and second defendants (namely, the Minister for Immigration and Transfield Industries) in relation to the plaintiff's past detention at the Nauru Regional Processing Centre (the RPC) was unlawful.
The majority of the Court held that the Migration Act 1958 (Cth) (the Migration Act) section 198AHA ,which provides for the power to take action in relation to an arrangement or regional processing functions of a country, authorised the Commonwealth's participation, to the extent that the Commonwealth did participate, in the plaintiff's detention.
Background to the Case
The island state of Naru was designated as a "regional processing country" by the Minister for Immigration on 10 September 2012 under the Migration Act section 198AB(1). On 3 August 2013, the Commonwealth Government and the Nauru Government entered into an arrangement relating to persons who have traveled irregularly by sea to Australia, persons whom Australian law authorises to be transferred to Nauru (known as a Memorandum of Understanding or MOU) following an earlier Ministerial direction issued on 29 July 2013 under the Migration Act section 198AD requiring Migration officers to take unauthorised maritime arrivals to Papua New Guinea or Nauru.
On 19 October 2013, the plaintiff, a citizen of Bangladesh, was a passenger on board a vessel that was intercepted at sea by Migration officers and was taken to Christmas Island as an "unauthorised maritime arrival" as defined by the Migration Act section 5AA . Subsequently, on 22 January 2014 the plaintiff was moved to detention on Nauru pursuant to Migration Act sections 198AD(2) and 198AB(1).
The plaintiff applied to be recognised as a refugee under the UN Convention Relating to the Status of Refugees and on 23 January 2014 was granted a regional processing centre visa; a condition of which specified that the plaintiff must reside at the Regional Processing Centre (RPC).
Specifically, the RPC Rules, rule 3.1.3 made pursuant to the Asylum Seekers (Regional Processing Centre) Act 2012 section 18C (Nauru) provided that it was unlawful for the plaintiff to leave, or attempt to leave the accommodation facility within the RPC without the permission of an authorised officer.
Subsequently, on 2 August 2014, the plaintiff was brought to Australia for medical treatment, where upon the plaintiff also filed an application for an order to show cause seeking, among other matters, a writ of prohibition to prevent the Minister from taking steps to return the plaintiff to the Republic of Nauru.
The Special Case
On 20 August 2015, in Plaintiff M80/2015 v Minister for Immigration and Border Protection & Ors [2015] HCATrans 206 (20 August 2015), Nettle J referred the Special Case agreed by the parties to the Full Court of the High Court.
The Issues Raised by the Case
The issues raised by this case are whether the Commonwealth can take persons, who are present in Australia and have the full protections of the Commonwealth Constitution, to a foreign country so as to subject them to extra-judicial, extraterritorial detention which is funded, caused and effectively controlled by the Commonwealth, but which lacks those constitutional protections.
The Plaintiff's Case
For the plaintiff the following submissions were made:
(a) that officers of the Commonwealth engaged in conduct (which included entering into and exercising rights under a contract in relation to the provision of services at regional processing countries dated 24 March 2014 between the third defendant (Transfield) and the Commonwealth, which authorised, procured, caused and resulted in the plaintiffs detention at the RPC and would (if the plaintiff were returned to Nauru) engage in further conduct of that nature with the same result;
(b) the plaintiff has standing to challenge the conduct referred to in (a);
(c) the conduct in (a) was required to be, but was not authorised, by a valid statutory provision enacted by the Commonwealth Parliament or by the Commonwealth Constitution section 61;
(d) by reason of those matters (alternatively, by reason of those matters and the unlawfulness of the plaintiff's detention under the Constitution of Nauru), Migration Act section 198AD(2) does not authorise or require that the plaintiff be taken to Nauru; and
(e) the Transfield contract is not authorised by Migration Act section 198AHA or any other law and is invalid.
The Commonwealth's Case
For the Commonwealth the following submission were made:
(a) the plaintiff lacked standing to challenge whether the Commonwealth was authorised, in the past, to engage in the acts or conduct which the plaintiff impugns;
(b) the impugned conduct was and would be authorised by Migration Act section 198AHA, which is supported by the aliens power, the external affairs power and the power with respect to relations with Pacific islands;
(c) alternatively, the impugned conduct was and would be supported by the Financial Framework (Supplementary Powers) Act 1997 (Cth) section 328, read with regulations made under that Act, or non-statutory executive power;
(d) in any event, the Migration Act section 198AD requires that the plaintiff be taken to Nauru as soon as reasonably practicable;
(e) none of these matters turn on whether the laws of Nauru, pursuant to which the plaintiff was and would be allegedly detained in Nauru, are invalid because they infringe the Constitution of Nauru. Even if they did, the validity of those laws should not be questioned. In any event, the laws do not infringe the Constitution of Nauru.
The Questions Reserved for the High Court
The key questions reserved by the Special Case are as follows:
"Assuming that:
(A) the restrictions imposed on the plaintiff . . . were lawful under the law of Nauru; and
(B) the specification in the RPC visa ... that the plaintiff must reside at the Nauru
RPC, s 18C of the Asylum Seekers (Regional Processing Centre) Act 2012 (Nr) and rule
3.1.3 of the Centre Rules were lawful and valid
under the law of Nauru, was the Commonwealth or the Minister authorised, in the past,
to engage in [the] acts or
conduct by:
(a) s 61 of the Constitution?
(b) s 198AHA of the Migration Act (assuming it is valid)?
(c) s 32B of the Financial Framework (Supplementary Powers) Act 1997 (Cth), read with
reg 16 and items 417.021, 417.027, 417.029 and 417.042 of sched 1AA to the Financial
Framework (Supplementary Powers)
Regulations 1997 (Cth)?"
The High Court Result
The majority of the High Court has held that the plaintiff was not entitled to the declaration sought and that the conduct of the Commonwealth in signing the second MOU with Nauru was authorised by the Commonwealth Constitution section 61 which provides for the broad executive power of the Commonwealth ". . . extend[ing] to the execution and maintenance of this Constitution, and of the laws of the Commonwealth."
The Court further held that the conduct of the Commonwealth in giving effect to the second MOU (including by entry into the Administrative Arrangements and the Transfield Contract) was authorised by the Migration Act section 198AHA, which the Court held was a valid law of the Commonwealth.
Resulting from the Decision
The outcome of the decision was seen as one likely to shape how Australia's offshore immigration detention regime would operate in future. Given the now known result, it seems unlikely that current laws will be affected or that Nauru will be closed down any time soon; further, it should also be noted that today's High Court decision was being handed down at the same time as a challenge is being made in the PNG Supreme Court, that will also examine the legality of the PNG detention centre under local law.
A possible effect that may have already come from the decision is the reported speeding up of asylum seeker processing on Nauru with the ABC reporting that:
"Shortly before hearings began in October [2015], Nauru's Government announced it would end detention and process refugee applications for the remaining 600 asylum seekers by the end of the week."
Although both the Australian and Nauruan Governments are reported as having denied the faster processing had anything to do with the High Court Case.
The ABC has quoted Daniel Webb from the Human Rights Law Centre as saying ". . . it was difficult to predict the implications of any decision in advance, . . ." but now that it is in; the decision it is clear, will not ". . . strike at the core of the current arrangements" as refugee advocates had hoped. A finding in favour of the plaintiff could have meant the end of the offshore immigration detention system. Instead, the favourable outcome for the Commonwealth Government will mean that questions involved in the case relating to the role of the government in funding and controlling the detention of arguably "innocent people" (namely, refugees and asylum seekers) in other countries will remain and most likely continue to be the subject of legal challenges.
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Sources:
Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1 (3 February 2016) and related High Court transcripts
Plaintiff M68/2015 v Minister for Immigration and Border Protection & Ors; Plaintiff M80/2015 v Minister for Immigration and Border Protection & Ors [2015] HCATrans 206 (20 August 2015) Nettle J
High Court challenge to offshore detention (Human Rights Law Centre)
Is Australia responsible for asylum seekers detained on Manus Island? (ABC Fact Check)
