Humpty Dumpty in Australia - Round I

On the ABC Television programme Lateline, on 1 September 2011, the presenter noted that the Prime Minister, Julia Gillard, attacked the Chief Justice of the High Court, following the previous day’s decision in Plaintiff M70/2011 v Minister for Immigration and Citizenship [M70] that ended her so-called ‘Malaysian Solution’.

She accused the Chief Justice of inconsistency, claiming:  

“His Honour Mr Justice French considered comparable legal questions when he was a judge of the Federal Court and made different decisions to the one that the High Court made yesterday.”   

The alleged inconsistent judgment in 2003

In the earlier decision referred to, his Honour had, in interlocutory proceedings, considered the meaning of section 198A(3) of the Migration Act 1958.

It is worth considering what his Honour had found in the previous case in which judgment had been delivered on 26 September 2003, and then to consider what he, as distinct from the plurality, later held in M70 in August 2011.  

A closer examination reveals that any inconsistency was more apparent than real.  But, significantly, both positions were more consistent with the now widely discredited view of the majority of the Lordships in Liversidge, than  with the now favoured dissent of Lord Atkin in that case.

P 1/2003 v Minister For Immigration & Multicultural & Indigenous Affairs

Arrival in Australia 

The applicant P1 was an Afghan, and a minor, aged sixteen at the time of his arrival.  He had arrived in Australia at Ashmore Reef, in the Ashmore and Cartier Islands, after the Indonesian fishing vessel in which he and others were seeking to reach Australia caught fire and sank while being intercepted by Australian Navy and Customs vessels. 

Removal to Christmas Island and then to Nauru

With other rescuees, P1 was taken to Christmas Island, and from there to the Republic of Nauru,  the Minister having declared Nauru under the provisions of section 198A of the Migration Act 1958 (Cth).  The transfer took place notwithstanding P1's status as an unaccompanied minor, and as the ward of the Minister of Immigration under the provisions of the Immigration Guardianship of Children Act 1947 (Cth).

Return to Australia

After being detained for several years in Nauru, he was returned to Australia to give evidence in the coronial inquisition into the death of two women, who had drowned, following the sinking of the vessel on which all had been passengers.  While in Australia he was to receive surgical treatment to correct a disability stemming from an arm injury suffered at the hands of the Taliban before he had fled to Australia.

Judicial intervention

In the Federal Court of Australia

Late on a Friday afternoon, and before he had undergone the surgery, he was advised that he would be removed from Australia, and returned to Nauru the following Sunday afternoon.  His lawyers were able to arrange a hearing before his Honour Justice French at around 6 p.m. seeking an injunctive orders preventing his return.  

At an adjourned hearing the following week, his Honour held that he had no jurisdiction to entertain the application that could be commenced only in the High Court of Australia.

In the High Court of Australia

In the High Court, on Christmas Eve, her Honour Justice Gaudron granted an injunction preventing his removal.  His action was subsequently remitted by his Honour Justice McHugh to the Federal Court of Australia, where it was again listed before his  Honour Justice French.

Back in the Federal Court of Australia

Section 198A(3) of the Migration Act 1958 (Cth)

The Minister may:

(a) declare in writing that a specified country:

(i) provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and

(ii) provides protection for persons seeking asylum, pending determination of their refugee status; and

(iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and

(iv) meets relevant human rights standards in providing that protection; and

(b) in writing, revoke a declaration made under paragraph (a).

His Honour's construction

His Honour noted in relation to the ministerial declaration under section 198A(3) that the form of that subsection did not in terms condition the Minister’s power to make a declaration upon his satisfaction of the standards that are its subject matter.  

The form of the section suggests a legislative intention that the subject matter of the declaration is for ministerial judgment.  It does not appear to provide a basis upon which a court could determine whether the standards to which it refers are met.  Their very character is evaluative and polycentric and not readily amenable to judicial review.  

However, this was subject to the caveat that such a declaration might be invalid if a case of bad faith or jurisdictional error could be made out.  His Honour went on to hold:

In my opinion, however, the argument against the validity of the declaration faces a significant threshold difficulty.  It does not support the view that there is a seriously arguable case.

Accordingly, his Honour refused the injunction preventing the return of the applicant to the detention centre in Nauru.  

Application of Liversidge v Anderson

Two observations can be made.

Firstly, the principle that his Honour applied aligns more closely with the by this time discredited, at least in the United Kingdom, construction favoured by the majority of the House of Lords in Liversidge v Anderson that is the subject of an earlier post.

Secondly, no evidence was led by the Minister  at this stage as to the basis on which he had made the declaration, rendering a determination as to whether there had been jurisdictional error, or bad faith, impossible.

M70 v Minister for Immigration and Citizenship

The Solicitor General and Liversidge v Anderson

In M70 the Solicitor General adopted the approach that had been taken by the Chief Justice.

However he did so only after acknowledging that in some circumstances the Minister, by taking a wrong view of what he was to declare, or asking a wrong question, might not exercise the power in accordance with section 198A(3), saying:  “…without going to the point of saying that this is a matter of jurisdictional fact, … what your Honour the Chief Justice said in P1 we rely upon as the correct understanding of the nature of the power being exercised.”

The Solicitor rejected the suggestion by Justice Gummow that he was seeking to ‘ease himself into Liversidge v Anderson territory at some stage’, saying:

The Minister, in our submission, is undoubtedly required to form, in good faith, an evaluative judgment that what he declares is true.

His Honour Justice Gummow, supported by his Honour Justice Hayne, riposted: ‘Well, that is Liversidge v Anderson, is it not?’

Noting that the statute under consideration in Liversidge was slightly different, the Solicitor conceded that: ‘the Minister is required to form in good faith an evaluative judgment that what he declares is true.’ 

The Solicitor's advance on Liversidge 

The Minister would not properly exercise the power if he failed to form the evaluative judgment,  or if he misunderstood the criteria, and asked the wrong question in forming a judgment in fact. Asking the wrong question would vitiate the exercise of the power under section 198A(3).

This approach represents an advance on the discredited construction adopted by the majority in Liversidge, and in P1, but without advancing so far as the objective approach of Lord Atkin.  

It accepts the possibility of jurisdictional error and bad faith as vitiating the exercise of the power, but without accepting the requirements of subsections (i) to (iv) as constituting jurisdictional facts.

The  Chief Justice in M70 

In construing section 198A(3) in  M70,  the Chief Justice essentially adopted the construction advanced by the Solicitor on behalf of the Commonwealth.  There was an acceptance of the approach of the majority in the House of Lords, and a rejection of Lord Atkin's dissent, when his Honour said:

Absent clear words, the subsection should not be construed as conferring upon courts the power to substitute their judgment for that of the Minister by characterising the matters in sub-pars (i) to (iv) as jurisdictional facts.

Contrary to the claim by the Prime Minister, this was not inconsistent with his approach in P1.   However, his Honour did accept that the Minister's declaration could be vitiated by jurisdictional error, as conceded by the Solicitor General, and found it to have been vitiated in the present case.

The other members of the High Court

The construction urged by the Commonwealth parties, and accepted by the Chief Justice, did not commend itself to the plurality in the Court, adopting, as it did, the objective approach of Lord Atkin.  In M70, unlike Liversidge, there was ample evidence upon which either construction could have been based.

The plaintiffs on jurisdictional facts

Their Honours Justices Gummow, Hayne, Crennan and Bell noted the contention of the plaintiffs that the criteria in sub-paragraphs  (i) to (iv) of section 198A(3)(a) are jurisdictional facts.

The plaintiffs submitted that the matters stated in the criteria must be satisfied before a declaration could validly be made.

The Minister is given a discretion.  Under the statutory provision, he has the power to declare a specified country that has the relevant characteristics. On its face, this is not a power to declare that the Minister thinks or believes or is satisfied that the country has those characteristics.

The Commonwealth parties on jurisdictional facts

By contrast, the Minister and the Commonwealth submitted that it was the existence of the Minister's declaration itself, not the truth of the content of that declaration, that engages the operation of section 198A(1).

The only constraints on the Minister's power to make a declaration were that the power was exercised in good faith, and within the scope, and for the purpose of the statute.

The plurality on jurisdictional facts

Their Honours accepted that requirements to exercise the power in good faith, and within the scope, and for the purposes of the Act, constrain the exercise of the Minister's power:

But the submissions on behalf of the Minister and the Commonwealth that sub-pars (i) to (iv) of section 198A(3)(a) are not jurisdictional facts should not be accepted. 

To read the section in that way would read it as providing for the power being validly engaged whenever the Minister bona fide thought, or believed that the relevant criteria were met. 

So to read the provision would pay insufficient regard to its text, context and evident purpose. Text, context and purpose point to the need to identify the relevant criteria with particularity.

This was a clear rejection of the approach of the House of Lords in Liversidge, and of the construction urged by the Commonwealth parties, and accepted by the Chief Justice in P1 and M70.

It was an equally clear acceptance of the principles of construction adopted by Lord Atkin in his dissent, subsequently accepted as correct in the United Kingdom, most recently by the Supreme Court in HM Treasury v Ahmed & Ors.  

But will Humpty Dumpty reassert himself? 

Curiously, Liversidge itself did not rate a mention in the judgments in M70.  

While, in the second decade of the new millenium the Chief Justice, and the Commonwealth, would have taken Australia back to the United Kingdom of World War II, other members of the Court, showing the resolution of Lord Atkin in his dissent, were not prepared to regress in this manner.  

It is not well known that Lord Atkin was Australian born, as was his wife.  He would have been proud. But will it last?  A more recent hearing of the Full Court gives cause for misgivings.

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.

Malcolm Turnbull on Manus Island - Play Misty for Me?

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Construction workers walk around the secure perimeter fence of the Refugee Processing Centre at Lombrum, Manus Island, Papua New Guinea. 2014. © Vlad Sokhin / Panos Pictures

This morning Malcolm Turnbull urged Australian taxpayers, and soon-to-be voters, not to be "misty-eyed" about the plight of those imprisoned in the Australian-funded and operated 'Immigration Processing Centre' on Manus Island.  

No, Mr Turnbull, I am not "misty-eyed" about the Manus detention centre. But I am clear-eyed about the law. 

False imprisonment is a tort attracting awards of substantial damages. It is apparent from the judgement of the PNG Supreme Court, as it must have been to successive Australian Governments, that those detained have been falsely imprisoned, and that the damages to which they are entitled are mounting by the day. 

Perhaps more importantly, they have been deprived of their liberty, and deprivation of liberty, as in Australia, is a serious crime.  Under section 355 of the PNG Criminal Code. It is punishable by up to three years imprisonment.  Before Minister Dutton and his officials fly off to Port Moresby they might also ponder section 13:

OFFENCES PROCURED OR COUNSELLED BY PERSONS OUTSIDE PAPUA NEW GUINEA.

(1) A person who–

(a) while outside Papua New Guinea procures another person to do or omit to do an act in Papua New Guinea of such a nature that, if he had himself done the act or made the omission, in Papua New Guinea, he would have been guilty of an offence; and

(b) afterwards comes into Papua New Guinea,

is by coming into Papua New Guinea guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission in Papua New Guinea.

(2) A person who–

(a) while outside Papua New Guinea counsels or procures the commission of an offence that is actually committed in Papua New Guinea; and

(b) afterwards comes into Papua New Guinea,

is guilty of an offence of the same kind, and is liable to the same punishment, as if he had been in Papua New Guinea when the offence was committed.

No, Mr Turnbull it is not an Immigration Processing Centre.  It is plainly, as you as a lawyer must have known, and as the Supreme Court of Papua New Guinea has held, an illegal prison, funded, controlled and operated by the Commonwealth.