Plaintiff S195/2016 v Minister for Immigration and Border Protection (Cth) [2017] HCA 31
Thursday 17 August 2017 @ 12.32 p.m. | Immigration
The High Court has today (17 August 2017) unanimously rejected an argument that actions taken by the Commonwealth, its officers and the Minister for Immigration and Border Protection against unauthorised maritime arrivals were invalid or precluded under the Constitution by reason of a decision of the Supreme Court of Papua New Guinea which found that treatment of unauthorised maritime arrivals on Manus Island was unsupported by PNG law. In the special case, Plaintiff S195/2016 v Minister for Immigration and Border Protection (Cth) [2017] HCA 35, the High Court held that the Commonwealth was not bound by any need to conform to the domestic law of any other country.
The Plaintiff
The plaintiff in the case was an Iranian national who was taken to Papua New Guinea (PNG) on 26 August 2013 as an “unauthorised maritime arrival” (“UMA”). Under PNG law, he was required to reside at the Manus Regional Processing Centre, which is operated by Broadspectrum (Australia) Pty Ltd under a contract with the Commonwealth. The plaintiff has made an unsuccessful application to be recognised as a refugee under PNG law.
The Namah Decision
On 26 April 2016, the Supreme Court of PNG handed down it’s decision in Namah v Pato (2016) SC1497 (“the Namah decision”). The PNG Supreme Court found that the treatment of UMAs at the Manus Regional Processing Centre contravened provisions of the Constitution of PNG and was unsupported by PNG law. The High Court noted that:
“The Supreme Court might also be interpreted as having held that the forceful bringing of UMAs to the Manus RPC under the purported authority of PNG law contravened provisions of the Constitution of PNG and was unsupported by PNG law.” [at 25]
The Special Case
A special case containing seven questions was put forward to the High Court for its consideration:
- Was the designation of PNG as a regional processing country on 9 October 2012 beyond the power conferred by s 198AB(1) of the Act by reason of the Namah Decision?
- Was entry into:
- the 2013 Memorandum of Understanding;
- the Regional Resettlement Arrangement;
- the 2014 Administrative Arrangements; and
- the Broadspectrum Contract,
beyond the power of the Commonwealth conferred by s 61 of the Constitution and/or s 198AHA of the Act by reason of the Namah Decision?
- Was the direction made by the Minister on 29 July 2013 beyond the power conferred by s 198AD(5) of the Act by reason of the Namah Decision?
- Was the taking of the Plaintiff to PNG on 21 August 2013 beyond the power conferred by s 198AD of the Act by reason of the Namah Decision?
- Is the authority for the Commonwealth to undertake conduct in respect of regional processing arrangements in PNG conferred by s 198AHA of the Act dependent on whether those arrangements are lawful under the law of PNG?
- Is the Commonwealth precluded from assisting PNG to take action pursuant to the orders outlined at paragraph 35 [of the special case] by reason of the Namah Decision?
- Who should pay the costs of the special case?
The High Court answered “No” to questions 1-6 and “the plaintiff” to question 7.
Decision
The High Court identified two propositions advanced by the plaintiff:
“First, as a basis on which to invalidate all of the impugned actions, the plaintiff advanced the novel and sweeping proposition that the Constitution denies to the Commonwealth any legislative or executive power to authorise or take part in activity in another country which is unlawful according to the domestic law of that country. Second, as a distinct basis on which to invalidate those impugned actions which were in the past or might in the future be authorised by s 198AHA, the plaintiff asserted that the effect of the Namah Decision was to deny the character of an "arrangement" within the meaning of that section to the 2013 Memorandum of Understanding and the Regional Resettlement Arrangement, with the result that the section has not been triggered so as to apply in relation to the regional processing functions of PNG.” [at 19]
The High Court found that “Neither proposition is tenable”, saying that in regards to the first proposition:
“there should be no doubt that neither the legislative nor the executive power of the Commonwealth is constitutionally limited by any need to conform to the domestic law of another country” [at 20]
And in regards to the second:
“The statutory premise on which the second of the plaintiff's propositions appears to be founded is that an arrangement or understanding which the Commonwealth has entered into with another person or body in relation to the regional processing functions of another country is not an "arrangement" for the purpose of s 198AHA if that other person or body lacked lawful authority or capacity to enter into it. The premise is contradicted by the express terms of the definition of "arrangement" in s 198AHA(5). “ [at 21]
TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.
