Australian Immigration Daily News

Was the “regional processing arrangement” that was entered into by the Australian government with the government of Papua New Guinea within the lawful powers of the government? 

That question was raised in a case that was brought in the High Court by an Iranian asylum seeker that was decided late last week, Plaintiff S195-2016 v Minister for Immigration and Border Protection (2017) HCA 31 (17 August 2017). 

The background of this case was that the plaintiff entered the migration zone at Christmas Island on 24 July 2013 as an “unauthorised maritime arrival”, claiming to be a refugee. 

In August 2013, he was taken to Papua New Guinea, by officers of the Commonwealth. PNG was designated as a “regional processing country” in October 2012 by a predecessor of the current Minister for Immigration and Border Protection, Peter Dutton. After being taken to PNG, the plaintiff became subject under PNG law to the directions of the “general directions” of the PNG Minister for Foreign Affairs and Immigration. He was required by the PNG government to reside at the “Manus Regional Processing Centre”. 

However, in April 2016, the Supreme Court of PNG handed down judgment in the case of Namah v Pato. In that decision, the PNG Supreme Court held that the treatment of unauthorised maritime arrivals at the Manus Regional Processing Centre was contrary to the Constitution of PNG and was also beyond the powers available under the laws of PNG. 

As a consequence of this finding, the Supreme Court of PNG made orders directing both the PNG and Australian governments to immediately cease the detention of asylum seekers at the Manus Regional Processing Centre. 

The decision of the PNG Supreme Court in the Namah case prompted the plaintiff to launch a broad-based legal challenge to the entire framework of the “regional processing arrangement” with PNG, including the following: 

* The “Regional Resettlement Arrangement” that was entered into on 19 July 2013 under which PNG agreed to accept “unauthorised maritime arrivals” from Australia for processing and for permanent resettlement in PNG if their applications for refugee status were successful; 

* A “Memorandum of Understanding” that was entered into in August 2013 between the Australian and PNG governments under which PNG agreed to “host” a processing centre on Manus, and Australia agreed to bear the costs of operating the centre; 

* “2014 Administrative Arrangements” providing for the regional processing centre to be established by Australia, managed by an administrator appointed under PNG law, and for management of the centre to be contracted out to “service providers” under contracts with Australia; 

The case before the High Court also included a general challenge to the authority of the Australian government to implement the offshore processing programme in PNG. 

The primary ground of the plaintiff’s case was that the Australian 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. 

Interestingly, while it may appear to be a “common-sensical” or “lay” opinion that the answer to this question should be obvious – that Australia does not have legal authority to do something in another country that is contrary to the laws of that country – that is not what the High Court held.

In fact, the High Court held unanimously that the case advanced by the plaintiff was not “tenable”.

The High Court ruled that there is no authority in the Australian Constitution to prevent the Australian government from engaging in conduct in another country that is contrary to the laws of another country. 

In fact, the High Court stated that “there is no room for doubt” that the executive and legislative power of the Commonwealth is not limited by the Constitution by any need to conform either to international law or with the domestic law of another country.

The High Court observed that the power of the Commonwealth in act in contravention of another country’s domestic laws, or in contravention of international law, may be constrained only by legislation enacted by the Parliament, but that the powers of the Commonwealth are not so limited by the Constitution itself.

The High Court also made some observations concerning the legal implications of the Supreme Court of PNG in the Namah case, noting that while that decision had held that the treatment of unauthorised maritime arrivals at the Manus Regional Processing Centre as at April 2016 had contravened the PNG Constitution and was unsupported by the laws of PNG, and while the forceful bringing of unauthorised maritime arrivals to Manus under the supposed authority of PNG law also contravened the PNG Constitution and was unsupported by PNG law, it was nonetheless within the powers of the PNG government to enter into agreements with the Australian government to establish the regime of offshore processing on Manus Island.

While this analysis may appear somewhat difficult to comprehend, it was nonetheless endorsed by all seven justices of the High Court.

And in the end, what is key to this decision is that it did uphold the lawfulness of the offshore processing regime on Manus as a matter of Australian constitutional law notwithstanding that that regime had been found that the implementation of that regime had been found to be contrary to the constitution and laws of PNG.

An interesting decision indeed! And one that again shows the obstacles in the path of asylum-seekers in bringing legal contests to the Australian government’s approach to dealing with “unauthorised maritime arrivals”.

What do you think?