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.

What the High Court of Australia has already determined in relation to Manus Island

What the High Court decided in September 2014

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 in of the Migration Act, together with two decisions made under those provisions by the Minister for Immigration and Border Protection.  For reasons that should become clear, this might appropriately be called the removal decision.

Arrival in Australia at Christmas Island and removal to Manus Island

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" 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").

Constitutional challenge to sections 198AB and 198AD of the Migration Act 

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.   A case was stated, and questions were reserved for the consideration of the Full Court of the High Court.

Section 198AB

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

P challenged the validity of the Minister's decision to designate PNG as a regional processing country under section 198AB ("the designation decision").

Section 198AD

He also challenged Minister's decision  to give a written direction under section 198AD(5) to take UMAs to PNG or to Nauru ("the direction decision").   

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. This is the direction decision.

The sections are valid under the aliens power in the Constitution

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 Court also upheld the validity of both the designation decision, and the direction decision. It dismissed the other grounds for challenging the decisions, and held that the proceedings were otherwise able to be remitted to the Federal Circuit Court of Australia.  This is the removal decision.

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

  

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.

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.

How nominal is “nominal” in nominal damages?

In Fernando v Commonwealth (No 5) [“Fernando”] the trial judge, upon remittal by a Full Court, awarded the applicant nominal damages of $1.00 after a finding that he had been falsely imprisoned by the Commonwealth for 1,203 days. 

His Honour held that Mr Fernando had suffered no damage or loss sounding in substantial damages, as it had been open to the Common-wealth to have lawfully imprisoned him had it so chosen.  The damages award was upheld by a second Full Court.  

Mr Fernando’s litigation representative has applied for special leave to appeal on the question of whether an award of nominal damages was appropriate in the circumstances.  However, the question remains: did an award of $1 amount to nominal damages, or was it rather not consistent with an award of contemptuous damages?

In New South Wales v Stevens[“Stevens”] the State appealed against an award of $10,000 by way of nominal damages after the State had admitted liability.  The Court of Appeal considered the circumstances in which an award of nominal damages was appropriate, and then determined the appropriate amount for such an award.  After considering the cases,  it concluded that in 2012 nominal meant, for the purposes of the case under consideration,  $100, and substituted that amount for the $10,000 ordered by the primary judge.

In Kambouris v Tahmazis, after considering Stevens, the trial judged concluded, subject to the submissions of counsel, that an identical award would be appropriate in that case.

The vast disproportion between the award in Fernando, and the awards in the other two cases, suggests that primary judge in the former may have misunderstood the distinction between nominal damages and contemptuous damages, an award of $1.00 being more appropriate to an award of contemptuous damages.  In Habib v Nationwide News Pty Ltd (No 2) the Court of Appeal noted, citing Connolly v Sunday Times that: “Contemptuous damages  are tantamount to an expression of disapproval of, or contempt for, the plaintiff.”  That the primary judge ordered the Commonwealth to pay Mr Fernando’s costs on an indemnity basis is hardly consistent with any such disapproval.

As the Court of Appeal noted in Habib the authorities that refer to contemptuous damages tend to refer to amounts of one shilling:  Connelly v Sunday Times; a farthing:  Martin v Benson; or a halfpenny:  Pamplin v Express Newspapers Ltd (No 2).   Their Honours concluded that:  “A comparable amount in Australia would be $1.”

On the authorities, Mr Fernando has been short changed in more ways than one?

The Seventh Egg - A cautionary tale

Many years ago, in the halcyon days when I spent summers in Europe on full pay, I invited an American friend for a meal in my Geneva studio.  As the cooking facilities were limited to a hotplate, the centrepiece was to be a Western omelette with seven or eight eggs.  Now, my mother - mothers know best - always broke eggs separately.  I had abandoned that habit along with drying dishes, saving time by breaking eggs into the same dish, frypan, or whatever.  

I did so on this occasion, but the seventh egg was rotten.  I had to throw the lot out.  I then found that I was out of eggs.  I don't recall what we ate, but it was a valuable learning experience.  All these years later, I still check my eggs by breaking them separately.

But what does this have to do with the practice of law?  I am fussy about formatting.  I like a page to look right.  But recently I had cause to look at a document that I had already filed, and found that in two justified paragraphs three or four words had been spread out right across the last line.  It looked sloppy.

Unlike the omelette,  it had been filed and it was too late to throw it out, notwithstanding the seventh egg.  But I had failed to check with sufficient care.  There are many seventh eggs: the typos that spell check has not picked up, and that smell as bad as that seventh egg; the incorrect citation; there are plenty of them.  Time spent checking for them is time well spent.  They can then be thrown out before spoiling the omelette.