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.

  

Human rights under Papua New Guinea's Constitution - Section 42 and the Manus Island Gulag

Under the heading ‘Liberty of the person’, still under the general heading ‘Rights of All Persons’, section 42(2) of the Constitution of Papua New Guinea requires, so far as is relevant to the circumstances of those detained on Manus Island, that  a person who is arrested or detained ‘be informed promptly, in a language that he understands, of the reasons for his detention’.  

Further it requires that he ‘be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend.’  The circumstances of the Manus Island detainees were such that it would not have been practicable for this requirement to have been met by strict compliance, and it is likely that they would have been allowed to inform family members prior to removal from Christmas Island to Papua New Guinea, and that arrangements would have been made for further contact after their arrival.  However the provision also requires that a detainee ‘be permitted whenever practicable to communicate without delay and in private with a lawyer of his choice’ and ‘shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained’.  

‘Lawyer’ is defined in the Schedule to the Constitution as ‘a person who has been admitted to practice as a lawyer under an Act of the Parliament’.  As recently as March of this year it was reported that an Australian barrister had been ejected from the Manus Island detention centre on the basis that he did not have a practisiing certificate that allowed him to practise in Papua New Guinea.  However, in February 2013 it was reported that a local lawyer acting for the Leader of the Opposition in the Papua New Guinea Parliament was refused entry to the centre, notwithstanding the claim that the the National Court had ordered that his lawyers be given access to the processing centre to talk to asylum seekers, and provide them with legal advice if they wanted it. 

The Immigration Service later claimed that  anyone who wanted to visit the processing centre must submit an application to the Chief Migration Officer ‘for consideration.’  The requirement and the refusal of entry appear to be clear breaches of the Constitution.

Finally the Constitution requires that a detainee ‘be informed immediately on …  detention of his rights under this subsection.’  Failure to comply by the persons responsible for the detention would constitute a further breach, although there would be little purpose in informing a detainee of his rights if the person or body effecting the detention had no intention of giving him the benefit of those rights.

The right of those detained on Manus Island to seek legal redress will be considered in a later post.