The High Court has decided a special case on the legality of the Australian Government’s designation of Papua New Guinea as a regional processing country and the effect of a PNG Supreme Court decision on those arrangements.
The plaintiff is an Iranian national claiming refugee status who was detained as an ‘unauthorised maritime arrival’ and later taken to PNG (pursuant to s 198AD of the Migration Act 1958 (Cth)) in line with the ‘regional processing’ arrangements that had been put in place, namely, the 2012 designation of PNG as a regional processing country (under s 198AB(1)) and a direction made by the Minister in 2013 to move the plaintiff there (under s 198AD(5)). Once in PNG, the plaintiff became subject to PNG law and the directions of the PNG Minister for Foreign Affairs and Immigration, which required that he remain at the Manus Regional Processing Centre, which is run by Broadspectrum (Australia) Pty Ltd pursuant to a contract between that company and the Commonwealth. The PNG Minister rejected the plaintiff’s application for refugee status, though he has not yet been removed from Manus. Prior to this determination, the PNG Supreme Court handed down its decision in Namah v Pato  PGSC 13, in which the PNGSC held that the treatment of asylum seekers at the Manus RPC contravened the Constitution of Papua New Guinea.
The plaintiff brought a special case to the High Court following the decision in Namah, contending, in broad terms, that in light of that decision, the seven past arrangements — the agreements and understandings between the Australian and PNG governments (at –) done under the non-statutory executive power of the Commonwealth under s 61 of the Constitution (see ), the contracts for running the Manus RPC (at ) done under the statutory power in s 198AHA (see ), and the Ministerial decisions that led to the plaintiff himself being moved to PNG (at ) done under ss 198AB and 198AD — were invalid, and the future action of the plaintiff’s removal would likewise be invalid (see ).
The High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) unanimously rejected the plaintiff’s contentions, answering the six central questions in the special case ‘no’. The Court first characterised the plaintiff’s general invalidity argument in the light of Namah as resting on two propositions, both of which were untenable.
The first contention was that the Australian Constitution denies the Commonwealth the legislative or executive power to take part in an activity in another country that is contrary to that country’s domestic law (at ). The plaintiff was unable to marshal any authority for this reading, and ‘made no attempt to anchor it to the text or structure of the Constitution‘, and the legislative and executive power of the Commonwealth is not constitutionally limited by any need to conform to either international law or the domestic law of another state (at ). While the actions of an officer of the Commonwealth in another country might have implications or consequences for that officer under that country’s domestic law, and for Australia under international law, compliance or non-compliance with the domestic law of another country has no bearing on the statutory authority or executive capacity of the officer under Australian law (at ).
The second contention was that the memorandum and agreements between PNG and Australia were not ‘arrangements’ at all, in the language of s 198AHA which was said to support them (the validity of which was not challenged here), because the PNGSC decision in Namah held that PNG lacked the lawful authority or capacity to enter into those arrangements (at , ). The Court rejected this argument on the basis that s 198AHA(5) expressly defines arrangement in broad terms, inclusive of arrangements, agreements, understandings or promises that are not legally binding (at ).
The Court then examined two more general issues. The first was to note that the plaintiff’s contentions appeared to proceed from a more general misunderstanding of the Namah decision: while the PNGSC did declare that the treatment of asylum seekers and Manus RPC contravened the PNG Constitution and was beyond the power of the Minister under PNG law, and ordered that this be remedied, the High Court noted that the PNGSC did not hold that entry into the arrangements between PNG and Australia were themselves beyond the power of the Minister or PNG itself or in contravention of the PNG Constitution (at –). Secondly, the ‘more general question’ raised by the special case of whether the Commonwealth’s authority to make arrangements under s 198AHA depends on their lawfulness under the law of PNG is answered by s 198AHA(3), that the power is ‘intended to ensure that the Commonwealth has capacity and authority to take action, without otherwise affecting the lawfulness of that action’ (see –).
|High Court Judgment|| HCA 31||17 August 2017|
|Result||Arrangement not invalid: see full Order below|
|High Court Documents||Plaintiff S195-2016
|Full Court Hearing|| HCATrans 99||9 May 2017|
|Directions Hearings|| HCATrans 315||21 December 2016|
| HCATrans 295||7 December 2016|
| HCATrans 272||15 November 2016|
| HCATrans 251||20 October 2016|
The questions stated by the parties in the special case dated 14 March 2017 and referred for consideration by the Full Court be answered as follows:
Was the designation of [Papua New Guinea] as a regional processing country on 9 October 2012 beyond the power conferred by s 198AB(1) of the [Migration Act 1958 (Cth)] by reason of the [decision in Namah v Pato (2016) SC1497]?
Was entry into:
(a) the 2013 Memorandum of Understanding;
(b) the Regional Resettlement Arrangement;
(c) the 2014 Administrative Arrangements; and
(d) the Broadspectrum Contract,
beyond the power of the Commonwealth conferred by s 61 of the Constitution and/or s 198AHA of the [Migration Act 1958 (Cth)] by reason of the [decision in Namah v Pato (2016) SC1497]?
Was the direction made by the Minister on 29 July 2013 beyond the power conferred by s 198AD(5) of the [Migration Act 1958 (Cth)] by reason of the [decision in Namah v Pato (2016) SC1497]?
Was the taking of the plaintiff to [Papua New Guinea] on 21 August 2013 beyond the power conferred by s 198AD of the [Migration Act 1958 (Cth)] by reason of the [decision in Namah v Pato (2016) SC1497]?
Is the authority for the Commonwealth to undertake conduct in respect of regional processing arrangements in [Papua New Guinea] conferred by s 198AHA of the [Migration Act 1958 (Cth)] dependent on whether those arrangements are lawful under the law of [Papua New Guinea]?
Is the Commonwealth precluded from assisting [Papua New Guinea] to take action pursuant to the orders outlined at paragraph 35 [of the special case] by reason of the [decision in Namah v Pato (2016) SC1497]?
Who should pay the costs of the special case?