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.

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.

Liberty of the person in Papua New Guinea - Manus Island and the Constitution

#ManusIsland   #PapuaNewGuinea   #Constitution   #righttoliberty  #asylumseekers   #refugees  

Unlike Australia, Papua New Guinea has a Bill of Rights written into its Constitution.  Among those rights is the right to liberty.

Under the heading ‘Rights of All Persons’, section 42, headed ‘Liberty of the person’ provides that no person shall be deprived of his personal liberty except in certain circumstances set out in subsection (1) (a) to (i).  To be lawful under the law of Papua New Guinea the detention of an asylum seeker on Manus Island would have to be capable of being brought within the ambit of one of those sections.  A law that provided for detention that did not fall within one of the sections would be unconstitutional and invalid.  

The only section that would appear to be of any relevance to the detention of asylum seekers on Manus Island would appear to be subsection (g).  It provides that a person may be deprived of his liberty ‘for the purpose of preventing the unlawful entry of a person into Papua New Guinea, or for the purpose of effecting the expulsion, extradition or other lawful removal of a person from Papua New Guinea, or the taking of proceedings for any of those purposes;’.  This breaks down into three separate lawful purposes for detention: 

(1)  ‘to prevent the unlawful entry of a person into Papua New Guinea.’  It is difficult to see how this could apply to asylum seekers brought involuntarily into the country by way of extraordinary rendition, consistently with an agreement by Papua New Guinea to receive them under a formal Memorandum of Understanding with the Commonwealth of Australia as the expelling party.

(2)  ‘to effect the expulsion, extradition or other lawful removal of a person from Papua New Guinea.’  There has been no suggestion that any country has been seeking the extradition of any asylum seeker from Papua New Guinea for the purpose of facing criminal charges in that country.  This disposes of that purpose.  As to expulsion, that is qualified by the words ‘other lawful’, and there has been no claim that the asylum seekers are being detained for the purpose of expulsion, and that there is a lawful basis for that expulsion.  That leaves ‘lawful removal’.  Having accepted their extraordinary rendition to Papua New Guinea by Australia, Papua New Guinea could hardly now claim that the asylum seekers were being held for the purpose of removal.  Removal to where?  Australia has made it clear that it will not take them back.  The terms of the agreement with Australia make it difficult to return any detainee to his or her country of origin.

(3)  ‘for the taking of proceedings for any of those purposes.’  If the current detention cannot be brought within one of the constitutionally approved purposes, it follows that detention in order to take proceedings for an unauthorised purpose can not be justified either.

If a law deprives a person of liberty for a purpose not falling within those set out in the section, the Supreme Court of Papua New Guinea may declare the law to be unconstitutional and invalid.  How this comes about will be the subject of a further post.

Manus Island and the High Court of Australia in S156/2013

The collective weeping, wailing, and gnashing of teeth as a response to the High Court's judgment in S156/2013 on the Migration Act provisions, as they relate to the Manus Island detention centre, may well be premature.  

The last question put to the Court in the Case Stated was:  "Are these proceedings otherwise able to be remitted for determination in the Federal Court of Australia or the Federal Circuit Court of Australia?"  The Court answered: "The proceedings are otherwise able to be remitted for determination in the Federal Circuit Court of Australia." 

The Commonwealth's purpose in enacting legislation to facilitate the extraordinary rendition of asylum seekers to Manus Island and Nauru was to place them beyond the reach of the Australian legal system.  The Court's holding, at least for the Iranian asylum seeker in the present case, that he may take his case to the Federal Circuit Court for review, seems to indicate that in effecting that purpose the Commonwealth has failed.

It may be possible for all of those so removed to Papua New Guinea and Nauru to have their cases reviewed by the Federal Circuit Court. They would have to commence proceedings in the High Court from which, if they demonstrated an arguable case, they would be remitted by the High Court to the Federal Circuit Court.  From that court, there would be a right of appeal to the Federal Court, and to the High Court.  If this proves to be the case, much of the advantage to the Commonwealth of off-shore processing would be lost.  All decisions as to the processing of unauthorised maritime arrivals, to use the Commonwealth's terminology would be subject to such scrutiny by way of judicial review. 

This is not intended as legal advice, and anyone proposing to take that course should consult their own legal practitioner.