Houston Ash, ‘The High Court Upholds the “PNG Solution”: Plaintiff S156/2013‘ (11 July 2014).

The Full Court has decided the special case in Plaintiff S156/2013 v Minister for Immigration and Border Protection, and has upheld the validity of the challenged legislation and the Minister’s designation of Papua New Guinea as a regional processing country. The central questions reserved in the stated case were:

1. Is s 198AB of the Migration Act 1958 (Cth) invalid on the ground that it is not supported by any head of power in s 51 of the Constitution?

2. Is s 198AD of the Migration Act 1958 (Cth) invalid on the ground that it is not supported by any head of power in s 51 of the Constitution?

3. Is the Minister’s designation that PNG is a regional processing country made on 9 October 2012 under s 198AB of the Migration Act 1958 (Cth) invalid?

4. Is the Minister’s direction made on 29 July 2013 under s 198AD(5) of the Migration Act 1958 (Cth) invalid?

Each of these questions were unanimously answered ‘no’.

The Court held that ss 198AB and 198AD are supported by the head of legislative power in s 51(xix), which empowers the Parliament ‘to make laws … with respect to naturalisation and aliens’. Laws allowing for the expulsion or deportation of non-citizens present in Australia without a visa are laws with respect to the class of aliens that falls under the scope of s 51(xix) (at [23]). Because the law deals with removal of aliens, it is directly connected to the aliens power: ‘once a federal law has an immediate operation within a field assigned to the Commonwealth as a subject of legislative power, that is enough’ (at [25]). The Court rejected the plaintiff’s argument that the law must also satisfy a proportionality test, holding that there is no proportionality requirement for s 51(xix), and noting that no clear proportionality test was proposed by the plaintiff (at [29]ff). The Court also held that the Minister’s decision to designate PNG as a regional processing country was valid: ‘there is no mandatory condition for the exercise of the power of designation under s 198AB apart from the formulation by the Minister of an opinion that it is in the national interest to do so’ (at [40]). The Court also rejected the plaintiff’s arguments that the decision was contrary to Australia’s international obligations or was otherwise legally unreasonable (at [44]–[45]). The proceedings will be remitted for determination by the Federal Circuit Court of Australia.