By Houston Ash
While the legality of the Australian government’s policy of transferring Sri Lankan asylum seekers to that country’s navy is likely to be considered by the High Court shortly, a separate challenge to another pillar of the government’s migration strategy was recently dismissed. In Plaintiff S156/2013 v Minister of Immigration and Border Protection  HCA 22, the High Court unanimously upheld the constitutionality of the provisions of the Migration Act 1958 (Cth) under which asylum seekers are removed from Australia’s ‘migration zone’ to either Papua New Guinea or the Republic of Nauru. The Court also confirmed the validity of the decisions made by the Minister of Immigration and Border Protection to designate PNG as a ‘regional processing country’ and to direct officers of what is now the Department of Immigration and Border Protection to take particular classes of ‘unauthorised maritime arrivals’ to PNG or Nauru.
The provisions in question, ss 198AB and 198AD of the Migration Act, were introduced by the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth). As discussed further below, these provisions were the Parliament’s response to the High Court’s decision in Plaintiff M70/2011 v Minister for Immigration and Citizenship  HCA 32, which scuppered the former government’s so-called ‘Malaysia Solution’.
The challenged provisions
Section 198AD of the Migration Act requires ‘unlawful non-citizens’ who are also ‘unauthorised maritime arrivals’ to be taken to a ‘regional processing country’ as soon as reasonably practicable. If there are two or more such countries, s 198AD(5) requires the Minister to provide a written direction specifying the country to which a person or class of persons is to be taken. Section 198AB allows the Minister, by legislative instrument, to designate that a country is a ‘regional processing country’ if the Minister thinks it is in the national interest to do so. In considering the national interest, the Minister must have regard to whether the country has given any assurances that it:
- (a) Will not expel the person to a country where his or her life or freedom would be threatened; and
- (b) Will permit an assessment of whether the person is a refugee within the meaning of art 1A of the Refugees Convention.
Section 198AB(4) provides that any such assurances do not need to be legally binding.
Background to the provisions
The Amendment Act was enacted in response to Plaintiff M70, a decision in which the High Court struck down the so-called ‘Malaysia Solution’ (in a nutshell, this involved the exchange of 800 asylum seekers from Australia for 4,000 refugees from Malaysia). Under the then-s 198A(1) of the Migration Act, an ‘offshore entry person’ (now ‘unauthorised maritime arrival’) could be taken to a country in respect of which a declaration had been made under s 198A(3). To make a declaration under s 198A(3), the Minister had to declare that a specified country possessed four characteristics, identified in ss 198(A)(3)(i)–(iv), including that the country provided protection to people who were granted refugee status. The Minister made such a declaration with respect to Malaysia.
In Plaintiff M70, the High Court held that the procedures and protections to which the four requirements under s 198A(3) referred had to be provided by the specified country as a matter of legal obligation before such a declaration could be made. Because Malaysia is not a signatory or party to the Convention relating to the Status of Refugees (1951), did not recognise the status of refugees in its domestic law, and was not otherwise legally bound to accord the relevant procedures and protections to refugees, the Minister’s declaration was held to be invalid. In reaching this conclusion, the Court (at ) rejected the Commonwealth’s submission that the Minister’s declaration in itself engaged the operation of s 198A(1), subject only to the declaration being made in good faith and for a proper purpose.
It is important to stress that the Court in Plaintiff M70 did not find any constitutional impediment to removing asylum seekers from Australia and delivering them to a third country (whether that country is a signatory to Refugees Convention or not). The issue in that case was about the correct interpretation of validly enacted laws.
‘No chance of being settled in Australia’
On 19 July 2013, Prime Minister Kevin Rudd stood next to the Prime Minister of PNG, Peter O’Neill, and declared that ‘from now on, any asylum seeker who arrives in Australia by boat will have no chance of being settled in Australia as refugees’. Instead, asylum seekers were to be sent to a facility on Manus Island in PNG for processing pursuant to theRegional Resettlement Arrangement between Australia and Papua New Guinea (more detailed administrative arrangements between the two countries were later settled under a new Memorandum of Understanding). Anyone found to be a ‘genuine refugee’, it was announced, would be resettled in PNG: ‘an emerging economy with a strong future, a robust democracy — [and] which is also a signatory to the United Nations Refugees Convention’.
On 23 July 2013, four days after Prime Minister Rudd’s press conference, the plaintiff entered Australia’s migration zone by boat at Christmas Island (an ‘excised offshore place’). For the purposes of the Migration Act, the plaintiff was deemed an ‘unlawful non-citizen’ and an ‘unauthorised maritime arrival’. Consequently, s 189 required officers of the Department to detain him.
As a member of a minority religious group, the plaintiff claimed that he faces persecution in Iran and thus is a refugee within the meaning of the Refugees Convention, to which Australia is a party. However, as an unlawful non-citizen who is also an unauthorised maritime arrival, s 46A(1) prevented the plaintiff from making a valid application for a protection visa (for a more detailed explanation of how this section operates, see this post).
On 29 July 2013, the Minister directed officers of the Department to take ‘unauthorised maritime arrivals’ of four classes — families, adult females, adult males and unaccompanied minors — to either PNG or to Nauru, depending upon whether specified conditions relating to, among other things, the availability of facilities were satisfied. Both countries had been designated as regional processing countries after the passage of the Amendment Act (on 9 October 2012 and 10 September 2012 respectively). Pursuant to the Minister’s direction, the plaintiff was removed to the Manus Island Regional Processing Centre on 2 August 2013.
In the High Court, the plaintiff argued that ss 198AB and 198AD were invalid on the ground that neither is supported by a head of legislative power in s 51 of the Australian Constitution. In particular, the plaintiff argued that the provisions were not supported by the Commonwealth Parliament’s power with respect to aliens (s 51(xix)), immigration (s 51(xxvii)) or external affairs (s 51(xxix)). In the alternative, the plaintiff argued that the Minister’s designation of PNG as a regional processing country and the Minister’s 29 July direction were invalid as the Minister had failed to take into account a number of implied mandatory relevant considerations. These considerations included PNG’s capacity to implement its international law obligations, the possibility of indefinite detention and the conditions in which unauthorised maritime arrivals would be detained.
The Court’s decision
In a short unanimous decision, the Court held that — as a matter of characterisation — laws providing for the expulsion or deportation of a class of aliens from Australia fall within the scope of the ‘aliens power’. As ss 198AB and 198AD operate to effect the removal of a class of aliens from Australia (that is, unauthorised maritime arrivals), the Court held that those provisions are directly connected to the aliens power and are therefore valid under that power.
The Court rejected the plaintiff’s argument that ss 198AB and 198AD fell outside the scope of the aliens power because — among other things — they left open the practical effect of indefinite detention in, or refoulement from, a regional processing country and were therefore disproportionate to the object of regulating the entry of aliens to, or their removal from, Australia. (Refoulement is where a country returns a refugee to his or her country of origin). The Court observed that one of the problems with the plaintiff’s constitutional argument was that it focused on what happened after a person was removed to PNG. However, neither ss 198AB and 198AD make any provision for what is to happen to unauthorised maritime arrivals after they are removed from Australia. They merely operate to effect the removal of aliens. That is, the Court determined that the question of what happens to persons removed to Manus Island under arrangements between Australia and PNG does not inform the question of whether ss 198AB and 198AD are valid.
The Court also dismissed the plaintiff’s challenge to the Minister’s designation of PNG as a regional processing country. The plaintiff had argued that the Minister had failed to take into account a number of considerations which were relevant to the decision to designate PNG as a regional processing country. However, the Court held that it was plain from the language of s 198AB that the only condition for the exercise of the power under s 198AB is that the Minister thinks that it is in the national interest to make a designation (something, the Court noted, is ‘largely a political question’, though not apparently entirely a political question).
Moreover, the Court held that unlike the protections and procedures considered in Plaintiff M70, the assurances to which the Minister is obliged to have regard in considering the national interest were not jurisdictional facts (that is, factual preconditions to the exercise of a statutory power). Rather, they were matters to which the Minister only had to have regard. Thus the plaintiff’s submission that there was no evidence that PNG would not expel a person to a country where his or her life may be threatened was held to be irrelevant.
Finally, the Court dismissed the plaintiff’s challenge to the validity of the Minister’s direction to officers of the Department to take unauthorised maritime arrivals to PNG or Nauru. The Court rejected the plaintiff’s argument that the direction was impermissibly uncertain because the Minister had failed to specify only one country to which a class of unauthorised maritime arrivals should be taken.
Where to now?
While the High Court has held that the arrangement between Australia and PNG is legal under Australian domestic law, its legality under the law of PNG is yet to be determined — although perhaps not for long.
Earlier this year, the PNG Opposition Leader Belden Namah announced that he was challenging the constitutionality of his country’s arrangement with Australia in the PNG Supreme Court. At the time of Prime Ministers Rudd and O’Neill’s press conference on 19 July 2013, s 42 of the Papua New Guinea Constitution provided that no person, including a foreigner, could be deprived of his or her personal liberty except in specified circumstances (none of these exceptions are directly relevant for our purposes). At the time of Mr Namah’s announcement, the forced removal of asylum seekers from Australia to a detention facility in PNG appeared to breach this constitutional guarantee of personal liberty.
However, before Mr Namah’s challenge was heard, the PNG Parliament purported to add a new paragraph to s 42, providing that a foreign national can be deprived of his or her liberty under arrangements made between PNG and a foreign country. Mr Namah is now challenging the constitutionality of this amendment to s 42 on the grounds that Parliament did not follow the amending procedures prescribed under the PNG Constitution. This case awaits determination.
AGLC3 Citation: Houston Ash, ‘The High Court Upholds the ‘PNG Solution’: Plaintiff S156/2013’ on Opinions on High (11 July 2014) <https://blogs.unimelb.edu.au/opinionsonhigh/2014/07/11/ash-s156/>.
Houston Ash is a Third Year JD Student at Melbourne Law School and a 2014 Editor of the Melbourne Journal of International Law.