High Court upholds Commonwealth participation in offshore detention regime
Plaintiff M68/2015 v Minister for Immigration and Border Protection  HCA 1
The High Court has held that the Commonwealth’s participation in the detention of asylum seekers in Nauru was authorised by the Migration Act 1958 (Cth)
In Plaintiff M68/2015 v Minister for Immigration and Border Protection  HCA 1, the High Court held that the Commonwealth’s participation in the plaintiff’s detention in Nauru was authorised by s 198AHA of the Migration Act 1958 (Cth) (the Act). In doing so, the Court held that s 198AHA of the Act was supported by the Commonwealth’s power to make laws with respect to aliens and was not contrary to the principle expressed in Chu Kheng Lim v Minister for Immigration, Local Government and Ethic Affairs (1992) 176 CLR 1 (Lim).
Since 2012, the Act has required that a non-citizen who, on entering Australia, becomes an “unauthorised maritime arrival” must be detained and taken to a “regional processing country”. The non-citizen may be brought back to Australia for a temporary purpose, but must be returned once the need to be in Australia for that purpose has passed.
In 2012, the Republic of Nauru was designated as a regional processing country for the purposes of the Act. Under a Memorandum of Understanding between the Commonwealth and Nauru, Nauru agreed to accept the transfer of persons authorised by Australian law to be transferred to Nauru (transferees), and to process each transferee’s claim to be a refugee within the meaning of the Refugees Convention (protection claim).
As a condition of its acceptance of transferees from Australia, Nauru required that each transferee be detained in custody pending processing of the transferee’s protection claim. Transferees were detained at a Regional Processing Centre (the Centre). Since 2014, the Centre has been operated by a subcontractor of Transfield Services (Australia) Pty Ltd, in accordance with a written contract between Transfield and the Commonwealth. Under the contract, among other things, the Commonwealth pays Transfield to operate the Centre.
In June 2015, the Parliament enacted s 198AHA of the Act, with effect from 12 August 2012. That section applies if the Commonwealth enters into an arrangement with a person or body in relation to the regional processing functions of a country. It provides that the Commonwealth may take any action, and make payments, in relation to the arrangement or the regional processing functions of the country, or do anything incidental or conducive to taking such actions or making such payments.
The plaintiff is a national of Bangladesh who, as an unauthorised maritime arrival, was taken to Nauru and detained at the Centre while her protection claim was processed. She was detained at the Centre from March 2014 to August 2014, when she was brought back to Australia for a temporary purpose. In a proceeding brought in the original jurisdiction of the High Court, the plaintiff sought a declaration that the Commonwealth’s participation in her detention on Nauru was not authorised by a valid law of the Commonwealth.
Six members of the High Court held that the Commonwealth’s participation in the plaintiff’s detention on Nauru was authorised by s 198AHA of the Act. In dissent, Gordon J held that s 198AHA was invalid, and that the Commonwealth’s participation in the plaintiff’s detention was not authorised by the executive power of the Commonwealth.
The members of the majority all found that s 198AHA was supported by the aliens power in s 51(xix) of the Constitution, as it was closely connected with the processing of protection claims made by aliens who had been taken from Australia to a regional processing country for that processing to occur. Their Honours also found that, on its proper construction, s 198AHA authorised the Commonwealth’s conduct in relation to the plaintiff’s detention. However, the members of the majority differed in their characterisation of the Commonwealth’s conduct, and in their application of the principle in Lim.
In their joint judgment, French CJ, Kiefel and Nettle JJ found that the Commonwealth did not detain the plaintiff or authorise or control her detention; it merely participated in that detention. Keane J reached a similar conclusion. Both the plurality and Keane J emphasised that, after her removal from Australia, the plaintiff was detained under the laws of Nauru: the plaintiff’s detention was the result of the independent exercise of sovereign power by Nauru, and the Commonwealth could not compel or authorise Nauru to make or enforce laws which required that the plaintiff be detained.
Both the plurality and Keane J regarded this finding as foreclosing the plaintiff’s argument based on Lim. In Lim, the High Court held that a law authorising the Commonwealth to detain an alien in custody without judicial warrant will contravene Ch III of the Constitution if the detention is not limited to that which is reasonably capable of being seen as necessary for the purposes of removing the alien from Australia, or enabling an application by the alien to enter and remain in Australia to be determined. The plurality and Keane J held that Lim has nothing to say about the validity of actions of the Commonwealth and its officers participating in the detention of an alien by another state.
Bell J and Gageler J took a different approach. Bell J found that, as a matter of substance, the plaintiff’s detention on Nauru was caused and effectively controlled by the Commonwealth. Gageler J found that the detention was procured by the Commonwealth. Their Honours each held that a law conferring power on the Commonwealth to engage in conduct of that kind was subject to the principle in Lim. Neither Bell J nor Gageler J believed that there was any principled reason to distinguish between a law authorising the Commonwealth to detain an alien in Australia and a law authorising the Commonwealth to cause and effectively control, or to procure, the detention of an alien by another state.
However, although their Honours regarded the principle in Lim as relevant, neither Bell J nor Gageler J held that s 198AHA infringed that principle. Bell J found that, to the extent that s 198AHA authorised the Commonwealth to engage in conduct in relation to the detention of aliens on Nauru, that authority was limited to conduct that could reasonably be seen to be related to Nauru’s regional processing functions. Gageler J reasoned along similar lines. Both Bell J and Gageler J emphasised that s 198AHA would not authorise the Commonwealth to participate in the detention of a person if the period of detention exceeded that which was reasonably necessary for the performance of Nauru’s regional processing functions.
While the plurality and Keane J did not regard the principle in Lim as relevant, their Honours did identify limits on the Commonwealth’s authority to participate in the detention of an alien by another state.
Keane J held that, on its proper construction, s 198AHA only authorises the Commonwealth to participate in detention of an alien by a regional processing country if the detention is reasonably capable of being seen as a necessary condition of the willingness and ability of the regional processing country to receive the alien. French CJ, Kiefel and Nettle JJ held that, if a regional processing country imposes a detention regime as a condition of the acceptance of aliens removed from Australia, s 198AHA only authorises the Commonwealth to participate in the regime if the regime serves the purpose of processing protection claims by those aliens. Their Honours doubted whether a Commonwealth law that purported to authorise the Commonwealth’s participation in a detention regime that was not reasonably necessary for that purpose would be supported by the aliens power.
In light of their conclusion in relation to s 198AHA, none of the plurality, Bell J nor Keane J considered it necessary to determine whether the Commonwealth’s participation in the plaintiff’s detention was authorised by the executive power of the Commonwealth. Gageler J did consider this issue, and concluded that the Commonwealth’s participation was not so authorised.
In December 2015, shortly before this matter was heard by the High Court, the government of Nauru announced its intention to expand certain “open centre arrangements” at the Centre, effectively allowing freedom of movement for all transferees. Although it now seems that the plaintiff will not face future detention if returned to Nauru, the High Court’s decision will have continuing relevance for the Commonwealth’s actions in other regional processing countries, like Papua New Guinea.