Plaintiff S195-2016 v MIBP [2017] HCA 31 (17 August 2017)

Case Summary & Extract

Plaintiff S195-2016 v Minister for Immigration and Border Protection [2017]
HCA 31 (17 August 2017)

A unanimous decision of the High Court involving an unauthorised maritime arrival (UMA) plaintiff who had been taken to PNG under Section 198AD(2) of the Migration Act after which the PNG Supreme Court held that the treatment of UMAs at the Manus Island Regional Processing Centre infringed the PNG Constitution. The High Court held that ‘neither the legislative nor the executive power of the Commonwealth is constitutionally limited by any need to conform to international law’ nor to ‘the domestic law of another country’. The High Court further held that ‘the definition of “arrangement” in s 198AHA(5) … is specifically framed to encompass an arrangement, agreement, understanding, promise or undertaking which is not legally binding’.

Full decision:
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2017/31.html

See below for a summary of the case including key elements of the decision followed by a detailed extract from the case.


Case Summary – Key elements from the decision

The plaintiff was an “unauthorised maritime arrival” (“UMA”) taken by officers of the Commonwealth under s 198AD(2) to PNG on 26 August 2013.

‘3. [T]he plaintiff became subject under PNG law to general directions of the PNG Minister for Foreign Affairs and Immigration … which required him to reside at the Manus Regional Processing Centre …

4. The plaintiff applied to the Immigration and Citizenship Service Authority of PNG to be recognised as a refugee under PNG law. That application was [refused on] 12 December 2016 …

5. In the meantime, on 26 April 2016, the Supreme Court of PNG gave judgment in Namah v Pato … [T]he Supreme Court found that treatment of UMAs at the Manus RPC contravened provisions of the Constitution of PNG.

19. … [T]he 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 …

20. … [N]either the legislative nor the executive power of the Commonwealth is constitutionally limited by any need to conform to international law. Equally … 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 … Absent some express or implied limitation imposed by a law enacted by Parliament, … the compliance or non-compliance of the action with the domestic law of another country is a circumstance which has no bearing on such statutory authority or executive capacity as the officer might otherwise have to take that action.

21. [The plaintiff seems to additionally propose] 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). The definition is specifically framed to encompass an arrangement, agreement, understanding, promise or undertaking which is not legally binding’.


Case Extract – Elements from the full decision

Court: High Court of Australia
Plaintiff: S195-2016
Defendants: Minister For Immigration And Border Protection & Ors
Justices: Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
Judgement for: the defendants

Background

1. The plaintiff is an Iranian national who claims to be a refugee … On 24 July 2013, he entered the migration zone at Christmas Island and became an “unauthorised maritime arrival” (“UMA”) within the meaning of the Migration Act 1958 (Cth) (“the Act”). On 26 August 2013, he was taken by officers of the Commonwealth under s 198AD(2) to … Papua New Guinea (“PNG”), which … the Minister … had on 9 October 2012 designated a “regional processing country” under s 198AB(1) (“the Ministerial Designation”). The plaintiff’s taking to PNG was in accordance with a direction made by the Minister on 29 July 2013 under s 198AD(5) (“the Ministerial Direction”).

3. Having been taken to PNG, the plaintiff became subject under PNG law to general directions of the PNG Minister for Foreign Affairs and Immigration (“the PNG Minister”) which required him to reside at the Manus Regional Processing Centre (“the Manus RPC”), where he remains. The Manus RPC has at all relevant times been operated by Broadspectrum (Australia) Pty Ltd (“Broadspectrum”) … in accordance with the terms of a contract entered into between Broadspectrum and the Commonwealth … (“the Broadspectrum Contract”).

4. The plaintiff applied to the Immigration and Citizenship Service Authority of PNG to be recognised as a refugee under PNG law. That application was [refused on] 12 December 2016 …

5. In the meantime, on 26 April 2016, the Supreme Court of PNG gave judgment in Namah v Pato (“the Namah Decision“) … [T]he Supreme Court found that treatment of UMAs at the Manus RPC contravened provisions of the Constitution of PNG.

The special case

7. Grouping the past actions thematically and in broadly chronological order, the first, … was the entry into by the Commonwealth … on 19 July 2013 of a “Regional Resettlement Arrangement between Australia and Papua New Guinea” (“the Regional Resettlement Arrangement”) under which PNG agreed to accept UMAs from Australia “for processing and, if successful in their application for refugee status, resettlement”. The Regional Resettlement Arrangement provided … for transferred UMAs to be accommodated in a regional processing centre to be managed and administered by PNG under PNG law, with support from Australia.

8. The second of the past actions … was the entry into by the Commonwealth … on 5 August 2013 of a “Memorandum of Understanding between the Government of [PNG] and the Government of Australia, relating to the Transfer to, and Assessment and Settlement in, [PNG] of Certain Persons, and Related Issues” (“the 2013 Memorandum of Understanding”) … The 2013 Memorandum of Understanding provides … for Australia to transfer UMAs to PNG, for PNG to accept UMAs transferred from Australia, for PNG for that purpose to “host” a processing centre in Manus Province, for Australia to bear the direct costs agreed by the parties to arise out of its implementation, and for the Government of Australia and the Government of PNG each to “conduct all activities in respect of this MOU in accordance with its Constitution and all relevant domestic laws”.

9. The third of the past actions … was the entry into by the Commonwealth … on 17 July 2014 of “Administrative Arrangements for Regional Processing and Settlement in [PNG]” (“the 2014 Administrative Arrangements”). The 2014 Administrative Arrangements made … detailed provision for the implementation of the Regional Resettlement Arrangement and the 2013 [MOU]. They provide for a regional processing centre in PNG to be established by Australia and managed by an administrator appointed under PNG law, for the management of the centre to be supported by contracted service providers, and for the management of the relevant contracts to be the responsibility of Australia. They provide for staff involved in the operation of the centre to be subject to the laws of PNG. They acknowledge that those staff may include Australian and PNG officers as well as contracted service providers.

10. The fourth of the past actions … was the entry into by the Commonwealth … of the Broadspectrum Contract … Under it, Broadspectrum relevantly agreed and continues to agree with the Commonwealth to provide a range of services in respect of UMAs transferred to PNG, including accommodation and security services at the Manus RPC. Broadspectrum also relevantly agreed … with the Commonwealth to perform its contractual obligations at the Manus RPC in compliance with PNG law and not to permit any act or omission that might cause the Commonwealth to be in breach of the Regional Resettlement Arrangement or the 2013 Memorandum of Understanding.

11. The fifth, sixth and seventh of the past actions identified by the parties for consideration in light of the Namah Decision were the Ministerial Designation and the Ministerial Direction … and the taking of the plaintiff to PNG under s 198AD(2) …

Sources of authority

14. … [T]he entry into by the Commonwealth of the Regional Resettlement Arrangement, the 2013 [MOU] and the 2014 Administrative Arrangements – were all undertaken in the exercise of the non-statutory executive power of the Commonwealth conferred by s 61 of the Constitution.

15. … [T]he Ministerial Designation, the Ministerial Direction and the taking of the plaintiff to PNG – were made in the exercise of the specific statutory power conferred on the Minister by s 198AB(1) and in the performance of the specific statutory duties imposed by s 198AD(2) and (5) on an “officer” … and on the Minister respectively.

16. … [T]he entry into by the Commonwealth of the Broadspectrum Contract – falls within the scope of the statutory power retrospectively conferred on the Commonwealth by s 198AHA as interpreted in Plaintiff M68/2015, provided only that the 2013 [MOU[ or the Regional Resettlement Arrangement constituted an “arrangement” within the meaning of that section.

The effect of the Namah Decision

19. … 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.

20. … As to the first [proposition], neither the legislative nor the executive power of the Commonwealth is constitutionally limited by any need to conform to international law. Equally … 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 … Absent some express or implied limitation imposed by a law enacted by Parliament, … the compliance or non-compliance of the action with the domestic law of another country is a circumstance which has no bearing on such statutory authority or executive capacity as the officer might otherwise have to take that action.

21. 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). The definition is specifically framed to encompass an arrangement, agreement, understanding, promise or undertaking which is not legally binding. Even if the 2013 [MOU] and the Regional Resettlement Arrangement were beyond the power of PNG under the PNG Constitution, each would remain an arrangement or understanding in fact and, on that basis, each would remain an arrangement within the scope of s 198AHA.

22. Both of the plaintiff’s propositions appear, in any event, to proceed on a misunderstanding of the Namah Decision.

25. The Supreme Court in the Namah Decision plainly held that treatment of UMAs at the Manus RPC as at 26 April 2016 contravened provisions of the Constitution of PNG and was unsupported by PNG law. 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. What the Supreme Court plainly did not hold was that entry into of the Regional Resettlement Arrangement, the 2013 Memorandum of Understanding or the 2014 Administrative Arrangements was beyond the power of the PNG Minister, the National Executive Council or PNG or contravened any provision of the PNG Constitution. Each of those instruments … contains a provision specifically providing for its implementation to comply with PNG law.

The nature of the statutory authority conferred by s 198AHA

26. The more general question raised by the special case as to whether the authority of the Commonwealth to undertake conduct in respect of regional processing arrangements in PNG under s 198AHA depends on whether those arrangements are lawful under the law of PNG is answered by the statement in s 198AHA(3) that s 198AHA(2) “is intended to ensure that the Commonwealth has capacity and authority to take action, without otherwise affecting the lawfulness of that action”.

27. As explained in Plaintiff M68/2015:

“Section 198AHA(3) is important in clarifying that s 198AHA(2) is directed to nothing other than ensuring that the Commonwealth has capacity and authority to take action and that it does not otherwise affect the lawfulness of that action. That is to say, s 198AHA(2) is directed to nothing other than conferring statutory capacity or authority on the Executive Government to undertake action which is or might be beyond the executive power of the Commonwealth in the absence of statutory authority. The section has no effect on the civil or criminal liability of the Executive Government or its officers or agents under Australian law or under the law of a foreign country. The lawfulness or unlawfulness of Executive Government action under Australian law or under the law of a foreign country conversely does not determine whether or not that action falls within the scope of the statutory capacity or authority conferred by the section”‘.

Sergio Zanotti Stagliorio, Juris Doctor (The University of Sydney)
Registered Migration Agent (MARN 1461003)


* The above text merely contains a summary and extract of a court decision and should not be treated as immigration assistance, immigration legal assistance nor legal advice. We disclaim liability in tort, equity or otherwise for any action (or lack of) taken based on the above content. If you need immigration assistance, please consult your Registered Migration Agent. If you need immigration legal assistance or legal advice, please consult your lawyer.

Published on 2 March 2018.