Legislative basis for removal of an asylum seeker to Manus Island

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 of the Migration Act 1958 (Cth) ['the Act'] governing the removal of asylum seekers from Australia to offshore detention. 

Factual background

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" ['UAM'] 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').

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.

The statutory provisions

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

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.

The designation of Papua New Guinea

P also challenged the validity of the Minister's decision of to designate PNG as a regional processing country under section 198AB ("the designation decision"), as well as the Minister's decision  to give a written direction under section 198AD(5) to take UMAs to PNG or to Nauru ("the direction decision"). A case was stated, and questions were reserved for the consideration of the Full Court of the High Court.

The statutory sections are valid

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 

It dismissed the other grounds for challenging the decisions made by the respondents, and held that the proceedings were otherwise able to be remitted to the Federal Circuit Court of Australia.

Implications of the decision

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

  

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.

Australia's Gulag - The Manus Island Prison

Prior to my posts on the Manus Island detention centre last year I had lodged the complaint below (partially edited and with emphasis added)  with the National Court of Papua New Guinea.  It was not the proceeding that reached the Supreme Court, but it may have had some effect.

FORM 127                   O23 r 9(1)

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

STATEMENT OF ALLEGED OR SUSPECTED

BREACH OF HUMAN RIGHTS

1. Name of 

Complainant: JOHN LEWIS CAMERON

2. Address:

email: 

3. Phone numbers:         

mobile: 

4. Statement:

1. The complaint is made on behalf of asylum seekers currently detained on Manus Island who are, I believe, detained in breach of section 42 of the Constitution of Papua New Guinea.

1. I am a barrister practising in Perth, Western Australia, ....

1. I was admitted to practise in the then Supreme Court of New Zealand in ..., the then Supreme Court of Fiji in ..., the Supreme Court of Western Australia in ..., and the High Court of Australia in ....

1. In all of those jurisdictions I have practised in the area of human rights.

1. I appeared as counsel on behalf of an unaccompanied minor detained in Nauru. Reported judgments appear as:  Plaintiff P1/2003 v Ruddock  [2007] FCA 65;   (2007) 157 FCR 518;  Sadiqi v Commonwealth of Australia (No 2) [2009] FCA 117 (2009) 181 FCR 1; (2009) 260 ALR 294; cited in Plaintiff M70/2011 v Minister of Immigration and Citizenship [2011] HCA 33;  (2011) 85 ALJR 891; (2011) 122 ALD 237.

1. I appeared as counsel in a claim for damages brought on behalf of a falsely imprisoned Sri Lankan resident of Australia reported as:  Commonwealth of Australia v Fernando [2012] FCAFC 18;  (2012) 200 FCR 1;(2012) 287 ALR 267; (2012) 126 ALD 10.

1. An appeal to the High Court of Australia in which I appeared on behalf of an unaccompanied refugee minor  is reported as: WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50; (2004) 210 ALR 190; (2004) 79 ALJR 94 (7 October 2004).

1. I have been approached by an Australian resident on behalf of those detained there, and asked to provide assistance to those detained in immigration detention on Manus Island.

1. From media reports of the difficulty of lawyers in obtaining access it appears unlikely that I would be permitted to enter the detention centre to provide advice to those detained there should I attempt to do so.

1. I have advised one of the detainees, with whom I am in contact by electronic mail, of the right of the Manus Island detainees to complain to the National Court that they are detained in breach of section 42 of the Constitution of Papua New Guinea by means of a complaint under the Human Rights Rules 2010, and have provided him with a copy of the Form 125, and advice on how it should be filled out.

1. However, I am not confident that the detainees will be able to avail themselves of those rights.

1. I believe that those in the detention centre have been and are detained in breach of section 42.

1. While not fully apprised of the facts, I further believe that the participation of the Commonwealth of Australia by its servants and agents in the running of the detention centre may be unlawful as in breach of Australia’s Constitution.

1. l believe that I have standing under Rule 6(b) and/or (c) of the Human Rights Rules 2010.

1. I am willing to appear at any hearing into the complaint.

5. DECLARATION

I, JOHN LEWIS CAMERON, declare this statement to be correct to the best of my knowledge and belief AND I hereby bring this information to the attention of the National Court.

Dated at Perth, Western Australia, this 24th day of June 2014.

The change of description from Immigration Processing Centre to prison is deliberate.  As a consequence of the judgment of the Supreme Court, it can no longer be described other than as an unlawfully operated prison.

Manus Island - The High Court of Australia in S156/2013

Yesterday's judgment of the High Court in S156/2013 in my view falls short of a disaster for asylum seekers detained on Manus Island and in Nauru. It is carefully circumscribed to limit its findings to the case as stated. It seems to me that it leaves it open to the Court in a different case to find that the Commonwealth's participation in the detention of aliens on Manus and in Nauru falls outside the aliens power conferred by the Australian Constitution. The judgment is limited to a finding that provisions in the Migration Act that allow the Commonwealth to remove asylum seekers from Australia are lawful. It could in the future, as could the National Court of Papua New Guinea, find that the detention arrangements in that country are not supported by the aliens or any other power in the Australian Constitution and are unlawful so far as Australia is concerned.