Manus Island detention centre: what the High Court of Australia did not decide

What the High Court did not decide

As I noted in a previous post, it is important to note what the High Court of Australia did not decide in S156 of 2003 v Minister for Immigration and Border Protection & Anor.

The High Court 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.  

The administrative arrangements in Papua New Guinea

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 is detained.  The issues before the court were limited to the legality of his removal from Australia, and not his circumstances following that removal.

The Migration Act and post-removal detention arrangements

Subdivision B, that part of the Migration Act 1958 (Cth) 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 these Administrative Arrangements. 

The questions turned solely upon the validity of legislative provisions of the Migration Act 1958, and decisions made pursuant to them.  All of these 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.

Leave to further amend refused

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.

Evidence on compliance with assurances

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. 

Jurisdictional facts?

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.

All was not lost

As I contended at the time, in my 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.

The issue was resolved by the Supreme Court of Papua New Guinea

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 in Namah v Pato [2016] PGSC 13.

The unresolved issue

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.

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.