High Court   of Australia: Rejecting the challenge to the constitutionality of the offshore processing system, the High Court in a landmark judgment has upheld Australia’s role in detaining  asylum seekers in foreign countries. The Full Court by a majority held that the conduct of Commonwealth in securing, funding and participating in the plaintiff’s detention at RPC 3 on Nauru was authorised by a valid law of the Commonwealth i.e. Section 61 of Constitution  and Section 198AHA of the Migration Act, 1958 (Cth). The  plaintiff,  a Bangladeshi national who was an “unauthorised maritime arrival” as defined by Section 5AA of the Act  upon entering Australia’s migration zone in October 2013 was detained by officers of the Commonwealth and taken to Nauru Regional Processing Centre in pursuance of Section 198AD(2) of the Act. “The plaintiff is not entitled to the declarations sought,” the Court said in its majority decision.

In the proceedings the plaintiff prayed for an injunction against the Minister and officers of the Commonwealth and a writ  prohibiting them from taking steps to remove her to Nauru if she is to be detained at the Centre.  The focus of these proceedings was also upon the remedy sought in the form of a declaration to the effect that the conduct of the Minister or the Commonwealth in relation to her past detention was unlawful by reason that it was neither authorised by any valid law of the Commonwealth nor based upon a valid exercise of the executive power of the Commonwealth under Section 61 of the Constitution.

On 2 August 2014, the plaintiff was brought to Australia from Nauru temporarily for health purposes, where she gave birth to a child and now she is liable to be returned back. Nauru is a country designated by the Minister for Immigration and Border Protection  under Section 198AB(1) as a “regional processing country”. The Commonwealth and Nauru signed a Memorandum of Understanding relating to the transfer to and assessment of persons in Nauru, and related issues to combat people smuggling and irregular migration in the Asia-Pacific region. The plaintiff is unwilling to return to Bangladesh and had applied to the Nauruan Justice Secretary to be recognised by Nauru as a refugee under Section 5 of the Refugees Convention Act 2012 (Nauru) which has not been determined yet.

On the issue whether principles in Chu Kheng Lim v. Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 apply, the Court by majority held that the reliance was misplaced as it does not refer more generally to a “concept of authorise or enforce detention” and that the principle established in Lim was that provisions of the Migration Act  authorising the detention in custody of an alien for the purpose of their removal from Australia, did not infringe Chapter III of the Constitution because the authority, limited to that purpose, was neither punitive in nature nor part of the judicial power of the Commonwealth.

In a sole dissenting judgment, Gordon, J. held that the plaintiff had a standing to challenge the Commonwealth’s past conduct as the Commonwealth  was not authorised to detain her on Nauru. Citing several facts, such as presence in the camp of uniformed Border Force officers, Canberra’s supply of security infrastructure, perimeter fencing and guard posts, and the provision of garrison services by an Australian government contractor, Transfield demonstrated that the Australian Government had in fact “detained the plaintiff on Nauru”. Gordon, J. observed:

“The plaintiff could not leave Nauru. The plaintiff was confined to the Nauru RPC. The acts and conduct of the Commonwealth just set out demonstrate that her detention in the Nauru RPC was ‘facilitated, organised, caused, used, imposed [or] procured’ by the Commonwealth. The Commonwealth asserted the right by its servants (or Transfield as its agent) to apply force to persons detained in the Nauru RPC for the purpose of confining those persons within the bounds of the place identified as the place of detention, the Nauru RPC. To that end, the Commonwealth asserted the right by its servants or agents to assault detainees and physically restrain them.”

Gordon, J further observed that despite having removed the plaintiff to a place outside Australia, the Commonwealth intended to and did exercise restraint over the plaintiff’s liberty on Nauru, if needs be by applying force to her. Notwithstanding that there is no explicit mention of detention in the MOU or the administrative arrangements, the Commonwealth detained the plaintiff on Nauru by its acts and conduct. As a matter of necessity, the plaintiff’s removal from Australia by the Commonwealth was complete when she arrived on Nauru. The Commonwealth had no need to and had no right to detain the plaintiff in a foreign state and held Section  198AHA to be  invalid because it impermissibly restricted or infringed Chapter III. [Plaintiff M68/2015 v. Minister for Immigration and Border Protection,  [2016] HCA 1, decided on February 3, 2016,]

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