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.
