Wednesday 4 May 2016

What the High Court of Australia has not determined in relation toManus Island

What the High Court did not decide in 2014

As observed in an previous post, it is important to keep clearly in mind what the High Court of Australia did not decide in S156/2013. It drew from the summary of facts that since his arrival on Manus Island, the plaintiff ["P"] had resided at the immigration processing centre, where he was effectively detained.  As to the administrative arrangements, the Court further noted that in the stated case, it was said that an officer of the PNG Immigration Department had the day-to-day management and control of the Centre, and that Australia had appointed a co-ordinator to assist that officer.   The duties of that person included managing all Australian officials and service providers at the Centre.  Significantly,  their Honours noted:

The extent to which Australia participates in the continued detention of the plaintiff is not evident from these facts or the Administrative Arrangements between PNG and Australia to which they relate. 

They correctly observed that the Stated Case did  not raise questions as to who detained P, or the authority under which he was detained.  The issues before the court were limited to the legality of his removal from Australia, and not his circumstances following that removal, in other words the removal decision.

Subdivision B, that part of the Migration Act that was under consideration, contained no reference to what was to happen to persons such as P following their removal from Australia to a regional processing country. It contained no provisions dealing with their custody and detention, or the processing of their claims to refugee status.  While certain "Administrative Arrangements" had been entered into between PNG and Australia in April 2013, the questions reserved for the Court did not address those Administrative Arrangements. They turned solely upon the validity of legislative provisions of the Migration Act, and decisions made pursuant to them, all of which concerned removal from Australia, and not what subsequently befell those removed. The subdivision said nothing further about what was to happen to such persons in regional processing countries, such as PNG.

When seeking leave  to further amend his Statement of  Claim, P had sought to argue that the impugned  sections did  not  authorise  the Executive to,  in effect, imprison  persons in third countries against their will, and for an indefinite period.  The Full Court noted that the Chief Justice had  refused leave to  amend on  this point  because the plaintiff's submission did not  engage with the  question  of  the invalidity  of  the  provisions under consideration.     The Full Court agreed with his Honour that the  contention was untenable, because neither of the impugned sections made any  provision for imprisonment in  third  countries. 

P also argued that there  was no evidence that  PNG would  fulfil its assurances,  and would promote the  maintenance of  a programme  that was fair to those removed and subsequently detained.  However, the Full Court held that there was no statutory  requirement that the  Minister be satisfied of  these  matters in order validly to  exercise the relevant  power, as they  did not qualify as jurisdictional facts. 

As contended at the time, in previous post, all was not lost by the decision of the High Court of Australia in this case.  It determined only that the provisions under which P had been removed from Australia were constitutionally valid.  It was not required to, and did not determine under the case stated that his subsequent detention in PNG was lawful, either under the Constitution of Australia, or that of PNG. That the detention of persons such as P under the Constitution of PNG was unlawful has now been determined, and  adversely to both the Commonwealth and the government of PNG by the Supreme Court of PNG.  Whether it is unlawful under the Constitution of Australia for the Commonwealth to detain non-citizens such as P in PNG remains to be determined.

What the High Court of Australia has already determined in relation to Manus Island

What the High Court decided in September 2014

On  18 June 2014, in  Plaintiff  S156/2013 v Minister for Immigration and Border Protection & Anor, the High Court unanimously upheld the validity of two provisions in of the Migration Act, together with two decisions made under those provisions by the Minister for Immigration and Border Protection.  For reasons that should become clear, this might appropriately be called the removal decision.

Arrival in Australia at Christmas Island and removal to Manus Island

The plaintiff, a citizen of Iran, ["P"] had entered Australia's migration zone by sea at Christmas Island in July 2013. P's entry into Australia by boat qualified him as an "unauthorised maritime arrival" under the Act.  After his arrival at Christmas Island, an officer of the Department of Immigration and Border Protection detained P, and he was  subsequently removed to an assessment centre on Manus Island in Papua New Guinea ("PNG").

Constitutional challenge to sections 198AB and 198AD of the Migration Act 

P commenced proceedings in the original jurisdiction of the High Court, challenging the validity of sections 198AB and 198AD of the Act.  

P challenged these on the ground that neither provision is supported by any head of power in section 51 of the  Australian Constitution.   A case was stated, and questions were reserved for the consideration of the Full Court of the High Court.

Section 198AB

Section 198AB provides that the Minister may designate that a country is a regional processing country. 

P challenged the validity of the Minister's decision to designate PNG as a regional processing country under section 198AB ("the designation decision").

Section 198AD

He also challenged Minister's decision  to give a written direction under section 198AD(5) to take UMAs to PNG or to Nauru ("the direction decision").   

Section 198AD provides that UMAs must be taken from Australia to a regional processing country. Where there are two or more regional processing countries, section 198AD(5) provides that the Minister must give a written direction to take a UMA, or a class of UMAs, to the regional processing country specified in the direction. This is the direction decision.

The sections are valid under the aliens power in the Constitution

The High Court unanimously held that sections 198AB and 198AD are valid under the aliens power conferred by section 51(xix) of the Australian Constitution

The provisions operate to effect the removal of UMAs from Australia.   Accordingly, they are laws with respect to a class of aliens. 

The Court also upheld the validity of both the designation decision, and the direction decision. It dismissed the other grounds for challenging the decisions, and held that the proceedings were otherwise able to be remitted to the Federal Circuit Court of Australia.  This is the removal decision.

Having regard to the recent decision of the Supreme Court of PNG in Namah v Pato [2016] PGSC 13 it will be appropriate to have regard to what the High Court did not decide.