The High Court has decided a constitutional matter on the detention of asylum seekers in the Nauru Regional Processing Centre, and upheld the validity of the scheme (see below table for the full order). The plaintiff, a former detainee at the Nauru RPC who is set to be returned to Nauru, contends that the contractual arrangements between the Commonwealth government and Transfield Services (Australia) Pty Ltd relating to that detention are not supported by a valid statutory provision — here, s 198AHA of the Migration Act 1958 (Cth) which relates to regional processing arrangements or, alternatively, the expenditure powers under s 32B(1) of the Financial Framework (Supplementary Powers) Act 1997 (Cth) and connected provisions — or by s 61 of the Constitution, specifically, the Commonwealth’s executive power to detain as explained in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64 and interpreted in later cases.
In five judgments, the Court held 6:1 (Gordon J dissenting) that the arrangement for offshore detention was valid. In answering the central questions in the special case the Court stated that in signing the Memorandum of Understanding with Nauru to establish the scheme, the Commonwealth’s conduct was supported by a valid law of the Commonwealth, specifically s 198AHA, and that the Commonwealth’s funding and participation in that scheme was likewise supported by s 198AHA.
All judges rejected the Commonwealth’s challenge to the plaintiff’s standing on the basis that the plaintiff’s claims concerned past conduct, about which the plaintiff only sought a declaration, and thus had no further consequences for the plaintiff. The joint judges (French CJ, Kiefel and Nettle JJ) held that the declaration would resolve the question of the lawfulness of the Commonwealth’s actions, which was not hypothetical here because it would determine whether the Commonwealth could detain the plaintiff once again (at [23] see also Bell J at [57]ff, Gageler J at [112] (noting that the plaintiff did not lose her original standing due to changes in the situation on Nauru itself), Keane J at [235]ff, and Gordon J at [348]ff).
Turning to the legal authorisation of the plaintiff’s detention, the joint judges (French CJ, Kiefel and Nettle JJ) held that the Commonwealth only participated in the plaintiff’s detention, rather than detaining her directly: because the detention was effected by the Government of Nauru, and because the Commonwealth could not compel or authorise Nauru to make or enforce the laws necessary for that detention, the plaintiff was not detained by the Commonwealth itself ([29]–[37]). The joint judges then rejected the plaintiff’s reliance on Lim because that principle only applies to detention actually implemented by officers of the Commonwealth, and not to the validity of the participation of officers of the Commonwealth in the detention of an alien by another State (at [41]). That participation was authorised by s 198AHA because it provides the statutory framework for the exercise of the Commonwealth’s power to enter into an arrangement for regional processing, and is a valid law in that it is supported by the aliens power in s 51(xix) of the Constitution (see [45], see also Keane J at [259]ff). Bell J held that the Lim argument failed not because the principle was inapplicable to mere participation, but because the detention itself did not infringe the principles in Lim because it was not punitive (see [97]ff). Similarly, Gageler J held that while the detention scheme (whether it involved direct detention or only the participation of officers of the Commonwealth) must be reasonably necessary to effect a purpose contained in the statutory authorisation to detain and which can be fulfilled, his Honour was satisfied that the scheme met those conditions (see [176]–[185]).
Gordon J, dissenting, held that the scheme was invalid. Gordon J held that the plaintiff was detained by the Commonwealth, rather than by Nauru with the support or participation of the Commonwealth, because by the Commonwealth’s acts and conduct (in particular the contractual relations with Transfield) the plaintiff was detained in Nauru and confined to the processing centre, and the Commonwealth by its agents was able to exercise rights to physically restrain detainees from leaving (see [353]–[357]). While Gordon J accepted that s 198AHA purported to authorise the arrangement (at [366]), her Honour held that it was invalid because it was not supported by a head of power (see [375]ff). In particular, Gordon J held that s 198AHA, insofar as it authorised the detention of aliens following their removal from Australia, was not supported by the aliens power because that power cannot authorise executive detention of aliens outside of Australia, that is, a power of detention once removal is completed (see [388]ff).
Finally, no judge enquired into whether the Nauruan laws that effected plaintiff’s detention were contrary to the Constitution of Nauru because the declaration sought related only to the Commonwealth’s powers (French CJ, Kiefel and Nettle JJ at [47]ff) and because that inquiry would be inappropriate as contrary to the principle of international comity (see eg Keane J at [249]ff).
| High Court Judgment | [2016] HCA 1 | 3 February 2016 |
| Result | Arrangement valid | |
| High Court Documents | Plaintiff M68/2015 |
|
| Full Court Hearings | [2015] HCATrans 256 | 8 October 2015 |
| [2015] HCATrans 255 | 7 October 2015 | |
| Leave Hearings | [2015] HCATrans 206 | 20 August 2015 |
| [2015] HCATrans 198 | 17 August 2015 | |
| [2015] HCATrans 167 | 22 July 2015 | |
| [2015] HCATrans 162 | 26 June 2015 | |
| [2015] HCATrans 160 | 24 June 2015 | |
| [2015] HCATrans 136 | 3 June 2015 |
Order
The questions stated by the parties in the amended special case dated 7 October 2015, as paraphrased, be answered as follows:
Question (1)
Does the plaintiff have standing to challenge whether the conduct of the Commonwealth or the Minister in securing, funding and participating in the plaintiff’s detention at RPC 3 on Nauru was authorised by a valid law of the Commonwealth or was part of the executive power of the Commonwealth?
Answer
Yes.
Question (2a)
Was the conduct of the Commonwealth in signing the Memorandum of Understanding dated 3 August 2013 authorised by s 61 of the Constitution?
Answer
Yes.
Question (2b)
Was the conduct of the Commonwealth in giving effect to that arrangement authorised by a valid law of the Commonwealth?
Answer
Yes, it was authorised by s 198AHA of the Migration Act 1958 (Cth), which is a valid law of the Commonwealth.
Question (3)
Were the laws by which the plaintiff was detained on Nauru contrary to the Constitution of Nauru?
Answer
The question does not arise.
Questions (4) and (5)
Was the conduct of the Commonwealth in securing, funding and participating in the plaintiff’s detention at RPC 3 on Nauru authorised by a valid law of the Commonwealth?
Answer
Yes, see the answer to questions (2a) and (2b).
Question (6)
If the plaintiff were returned to Nauru, would the Commonwealth or the Minister be authorised to continue to perform the Memorandum of Understanding dated 3 August 2013 and to secure, fund and participate in the plaintiff’s detention on Nauru?
Answer
Unnecessary to answer.
Question (7)
If the plaintiff were returned to Nauru would her detention there be contrary to Art 5(1) of the Constitution of Nauru?
Answer
Unnecessary to answer.
Questions (8) and (9)
If the plaintiff were returned to Nauru, would the Commonwealth or the Minister be authorised to secure, fund and participate in the plaintiff’s detention by a valid law of the Commonwealth?
Answer
Unnecessary to answer.
Questions (10) and (12)
If the plaintiff were to be returned to Nauru, does s 198AD(2) of the Migration Act 1958 (Cth) require that she be taken there as soon as reasonably practicable?
Answer
Unnecessary to answer.
Question (11)
If yes to question (10), if the plaintiff were returned to Nauru would her detention be contrary to the Constitution of Nauru?
Answer
Unnecessary to answer.
Question (13)
What, if any, relief should be granted to the plaintiff?
Answer
The plaintiff is not entitled to the declaration sought.
Question (14)
Who should pay the costs of the special case and of the proceedings generally?
Answer
The plaintiff should pay the defendants’ costs.
It’s a trifle unsatisfactory that none of the six majority judges directly took on Justice Gordon’s argument.
The key quote is perhaps “Therefore, the validity of the provisions upheld in Lim depended upon identifying an exceptional reason permitting a law authorising executive detention. The exceptions recognised (and long since recognised) are the power to detain for expulsion or deportation and the power to exclude admission or to deport. That is, the legislative power conferred by s 51(xix) extends to conferring upon the Executive authority to detain an alien in custody to the extent necessary to make that expulsion or deportation effective”. Justice Gordon effectively goes on to say that once a person is deported to Nauru, they have already been deported and there is no exception (and no exception should be created) to authorise executive detention without judicial consideration for a person already deported from Australia.
There are issues with this argument, since it is very arguable that detention on Nauru is still for the purpose of considering permanent deportation from Australia even if the applicant is no longer actually present in Australia. It’s a very narrow reading of Lim, so narrow that it doesn’t come up in the other judgments. Still, it would have been interesting to see the majority address it for completeness… the joint judgment couldn’t as they did not think the Commonwealth participates in the detention (on which they are actually the minority), but the other 3 majority judgments should have covered that point. One wonders if they were aware of Justice Gordon’s view while writing their judgments.
For the future of challenges to this legal regime, which are inevitable, there seems to be a majority for the propositions that:
1) The Commonwealth participates in the detention; and
2) The detention must be “reasonably capable of being seen as necessary for the purposes of deportation”.
Justice Gageler’s words “The requisite connection with that role would be broken were the duration of the detention to extend beyond that reasonably necessary to effectuate that role or were that role to become incapable of fulfilment. The duration of the detention is in the meantime capable of objective determination by a court by reference to what remains to be done by the regional processing country to fulfil its role as specified in the arrangement” are practically a how-to guide for applicants wishing to frame the next challenge: attack the processing time. Reminds me of the successful Privy Council attacks against the death penalty in Commonwealth countries, going after not the death penalty itself but after the death row waiting time as being the unlawful “cruel and unusual punishment”.
I suspect a constitutional challenge under Nauru law may also be forthcoming. No idea of the merits, it just seems to be flagged that the applicants in this case wanted to run such a challenge but the HCA have basically said “Go do it in Nauru”.
Thanks very much for your comments Arky — I think that’s exactly the right characterisation of Gordon J, and certainly that passage struck me as central. I do agree that it would have been good for the majority to tackle Gordon J’s arguments on detention a bit more directly but I suppose it’s not entirely surprising that they refused to: on their very formalistic approach the detaining authority is the Nauruan government, and that’s the end of the story. (I wouldn’t think the other judges were unaware of her views: they would have been raised during conference/drafting.) As to your point about Gageler J’s statement – I think it’s probably best read as a reinforcement/repetition of his approach articulated in NAAJA, in which he issued a very strong dissent, which he cites in that passage : https://blogs.unimelb.edu.au/opinionsonhigh/2015/11/11/naaja-case-page/ — I’m not sure how mainstream this articulation is, but I’d guess that including this statement/argument is the reason he wrote his own judgment in this case (that said, making those kinds of speculations is always fraught!).