Talbot, Anna --- "The constitutionality of Australia's offshore detention regime" [2019] PrecedentAULA 47; (2019) 153 Precedent 30

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THE CONSTITUTIONALITY OF AUSTRALIA’S OFFSHORE DETENTION REGIME

By Anna Talbot

In 2015, Plaintiff M68-2015 v Minister for Immigration and Border Protection [2016] HCA 1 (Plaintiff M68) challenged the legality of offshore detention. In coming to a majority decision that the regime was valid, the High Court examined the separation of powers and the limits of legislative and executive power under the Constitution. The majority concluded at the time that the Commonwealth’s involvement in offshore processing was permitted under law.

This case and the changes that were made as a result of it continues to have ramifications for how cases regarding offshore detention are argued, both by those subjected to the regime and the Commonwealth. In 2018 the Commonwealth sought to rely on some of the outcomes of this case to dramatically reduce the access of asylum seekers detained offshore to the Federal Court.

In Plaintiff M68 the plaintiff was a woman from Bangladesh who had sought asylum by boat in Australia in 2013. She was detained for a period in Australia before being taken to Nauru by Australian officials and detained there in a Regional Processing Centre (RPC), which she was not permitted to leave. She was returned to Australia in 2014 for a temporary medical purpose. The case was initiated as a means of preventing the plaintiff from being sent back to Nauru.

The plaintiff initially argued that the Commonwealth’s expenditure in detaining her was not valid under any Australian law. While the litigation was on foot, however, the Commonwealth N introduced s198AHA into Part 2, Division 8, Subdivision B of the Migration Act 1958 (Cth) (Migration Act), which retrospectively permitted the Commonwealth to take action and spend money on regional processing in Nauru. At this point, the plaintiff argued that s198AHA was not a valid exercise of legislative power, to the extent that it authorised the Commonwealth’s involvement in her detention in Nauru.

Also during the litigation, Nauru announced that it was going to alter the detention arrangements, meaning that the plaintiff (who at this point was in Australia for medical treatment) would no longer be confined to the RPC if she were returned. Initially, she would be allowed to leave the RPC temporarily. By the time of judgment Nauru had committed to permitting her to live in the Nauruan community when she returned.

Both of these changes featured heavily in the judges’ reasons indicating that they may have been decisive in the outcome.

There were a number of questions before the Court in this case:

1. Was it Australia detaining people offshore, or was it Nauru?

2. Whatever level of involvement the Commonwealth had, was that involvement supported by legislation and/or the executive power?

3. If the Commonwealth’s involvement was supported by legislation, was that legislation constitutionally valid?

The High Court found by majority that (1) Australia was not detaining people offshore; (2) to the extent that it was participating in that detention, that participation was authorised by s198AHA of the Migration Act; and (3) s198AHA was a valid law under s51(xix) of the Constitution (the ‘aliens power’).

The outcome of these questions assisted in determining whether Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (Lim) would apply, whether it was infringed, and whether the actions of the Commonwealth under s198AHA were a valid exercise of legislative and executive power.

Lim was a 1992 High Court case which found that, generally, detention is a punishment which can only be imposed by a court, in line with the separation of legislative, executive and judicial power found in the Constitution. However, in exceptional circumstances, administrative detention is permitted to be imposed by the executive without judicial oversight. This case is discussed in greater detail below.

AUSTRALIA’S ROLE IN DETENTION

When the litigation commenced all asylum seekers were required to reside in the Regional Processing Centres (RPCs).

Many traditional markers of detention were present, including perimeter fencing, the presence of guards, scheduled times for eating and bathing, and control over the detainees’ movement around and between the RPCs. All of these markers existed as a result of Australian actions (or the actions of contractors), which paid for, built and guarded the RPCs.^[1] However, the camps were located in Nauru, were established under Nauruan law and the plaintiff was detained pursuant to Nauruan law and conditions on visas for Nauru. These factors were balanced by the judges in determining the detaining authority.

All seven judges considered that Australia’s involvement in the detention of the plaintiff was constrained by the Memorandum of Understanding (MOU), and would likely expire once her asylum application was determined or soon thereafter. Justices Bell and Gageler found that that participation was valid so long as the purpose complied with the MOU and the separation of powers. Justice Gordon found that the Commonwealth’s role was not legally permitted.

On the question of whether Australia was actually detaining the plaintiff the Court was split 4:3. The joint judgment of French CJ, Kiefel and Nettle JJ, along with Keane J’s separate judgment, considered that Nauru was detaining the plaintiff and Australia was merely participating in that detention by Nauru. As such, the plaintiff had fewer rights and there were fewer restrictions on the Commonwealth than if Australia had been detaining her directly.

The joint judgment considered that Australia’s detention of the plaintiff ceased when she was removed from Australia. While Australia’s involvement was clearly ‘materially supportive, if not a necessary condition’^[2] for the detention, that did not change the fact that it was Nauru that was detaining her. As such, French CJ, Kiefel and Nettle JJ decided that Lim did not apply in this case, as Australia was not engaging in detention.

Justice Keane supported this position: ‘That is because the legal authority by which she was held in custody in Nauru, an independent sovereign nation, was that of Nauru and not that of the Commonwealth.’^[3] Accordingly, he similarly found that Lim was not engaged in this case.

The minority on this point took a less formalistic approach, looking instead to the arrangements that gave rise to the plaintiff’s detention and finding that participation was constitutionally constrained. Both Bell and Gageler JJ found that this participation was valid so long as the purpose complied with the MOU and the separation of powers. Only Gordon J found that the Commonwealth was invalidly detaining the plaintiff in contravention of the constitutional separation of powers.

Justice Bell considered that the plaintiff’s detention was ‘caused and effectively controlled by the Commonwealth’,^[4] as it had taken her to Nauru, applied for her visas for Nauru without her consent and funded and effectively controlled the RPC that she was forced to reside in ‘through the contractual obligations it imposed on Transfield’.^[5]

Justice Gageler agreed with Bell J, finding that Wilson Security staff were exercising physical control over the plaintiff in confining her to the RPC and that in so doing, they were acting ‘as de facto agents of the Executive Government of the Commonwealth in physically detaining the plaintiff in custody’.^[6]

In addition to finding that the Commonwealth was engaging in detention in Nauru, Gageler J found that this detention went beyond the Commonwealth’s non-statutory executive power. However, this gap was filled by s198AHA of the Migration Act, which provided the requisite legislative power.

Justice Gordon considered that Australia was detaining the plaintiff in Nauru^[7] and that this detention was invalid. While she considered that Australia could assist Nauru in detaining her, Australia cannot detain the plaintiff on Nauru.^[8] Similarly, the fact that a foreign state has requested the Commonwealth to detain the plaintiff does not offer authority for Australia to do so under Australian law.^[9]

LEGISLATIVE POWER: ALIENS, EXTERNAL AFFAIRS, PACIFIC ISLANDS

The Commonwealth submitted that s198AHA was a valid exercise of the aliens (s51(xix)), external affairs (s51(xxix)) and the Pacific Islands powers (s51(xxx)) of the Constitution. The judges did not consider all of these options as the majority found that s198AHA was a valid exercise of the aliens power, and thus most did not go on to examine the other powers.

Having found that it was Nauru and not Australia that was detaining the plaintiff, the plurality did not consider that the restrictions on detention under the aliens power, as interpreted in Lim, applied. Lim is clear that the Commonwealth’s executive power to administratively detain under the aliens power allows detention for the purposes of deportation or expulsion. As such, as soon as the plaintiff was removed from Australian territory, the ability to detain her under the aliens power evaporates.^[10]

While Bell J found Australia was the detaining power she concurred that the aliens power was a legitimate foundation for s198AHA: ‘the actions and payments in relation to the regional processing functions of the regional processing country authorised by s198AHA(2) are, in legal operation and practical effect, closely connected to the processing of protection claims made by aliens who have been taken by the Commonwealth from Australia to the regional processing country for that processing’.^[11]

Justice Keane agreed: ‘within the statutory scheme, s198AHA seeks to ensure the reasonable practicability of removal to a country willing and able to receive these aliens. This operation is sufficient to enable s198AHA to be characterised as a law with respect to aliens within s51(xix) of the Constitution.’^[12]

Justice Gageler considered that this legislation is supported by the external affairs power (as it relates to arrangements entered into between Australia and Nauru), as well as the aliens power (to the extent that it involves the assessment of refugee claims by people who have been sent to Nauru by Australia).

Recalling that the aliens power is confined by Chapter III of the Constitution, Gordon J considered that this power did not support s198AHA: ‘Section 198AHA does not deal with the power to exclude admission or to deport. Exclusion and deportation are complete and finally effective on landing on Nauru. Section 198AHA is relied upon as authorising the Executive to detain persons on Nauru. But there is a fundamental problem. The Aliens power does not authorise a law which permits or requires detention in those circumstances ... Detention under s198AHA does not fall within either of the recognised exceptions in Lim. And a new exception should not be created for this kind of detention.’^[13]

Justice Gordon agreed that s198AHA is legislation with respect to the external affairs power in the Constitution, but, to the extent that the section authorises the Commonwealth to restrain the liberty of an alien when the ‘removal of that alien from Australia is complete, that authorisation is not valid’ as it is bounded by Ch III and the Lim limitations, which have been contravened.^[14] For the same reason, she considered that the Pacific Island power also does not save s198AHA from invalidity.

SEPARATION OF POWERS AND LIM

As mentioned above, Lim was a case that examined the separation of powers embedded in the Constitution and the Commonwealth’s power to detain people outside of the criminal process by way of administrative detention. Generally, deprivation of liberty is considered a punishment, which according to the separation of powers, can be ordered only by a court. Administrative detention is permitted in exceptional circumstances, Lim said, so long as it is for a valid purpose and the length of the detention can be independently ascertained.^[15] Valid purposes for administrative detention include detention for the purposes of assessing applications for asylum claims and pending deportation.

The joint judgment and Keane J considered that Lim was not engaged and thus it was only the minority that considered these concepts in detail.

Justice Bell found that while Lim was engaged, it was not infringed. She recalls that the purpose of the separation of powers ‘is the protection of individual liberty’.^[16] However, in the case of the plaintiff, while she was detained and that detention was participated in by the Commonwealth, the detention was for a permitted purpose and thus valid. However, if the circumstances were to change in the future, any detention could be beyond power:

‘Section 198AHA(2) does not confer unconstrained authority on the Commonwealth to take action involving the exercise of restraint over the liberty of persons. The authority is limited to action that can reasonably be seen to be related to Nauru's regional processing functions. Those functions, identified in the MOU, are the processing of any protection claim made by a transferee and the removal from Nauru of transferees who are found not to be in need of international protection. If a transferee were to be detained for a period exceeding that which can be seen to be reasonably necessary for the performance of those functions, the Commonwealth parties' participation in the exercise of restraint over the transferee would cease to be lawful.’^[17]

Justice Gageler examined the consistency of s198AHA with Ch III of the Constitution, recalling that ‘no law conferring a power of Executive detention could escape characterisation as punitive (and therefore as transgressing on the inherently judicial) unless the duration of that detention meets at least two conditions. The duration of the detention must be reasonably necessary to effectuate a purpose which is identified in the statute conferring the power to detain and which is capable of fulfilment. The duration of the detention must also be capable of objective determination by a court at any time and from time to time’ (references omitted).^[18] He made it clear that the ‘requisite connection with that role would be broken were the duration of the detention to extend beyond that reasonably necessary to effectuate that role or were that role to become incapable of fulfilment’.^[19]

Justice Gordon was strongest on this point, finding that s198AHA, to the extent that it permitted detention, breached the separation of powers and was accordingly invalid. She noted that there is no reason that the Commonwealth should have freedom from constitutional restrictions abroad: ‘The fact that the place of detention is outside Australia does not mean that legislative power is relatively unconstrained ... Why is the “aliens” power to be read as circumscribed by Ch III in the case of laws dealing with conduct in Australia but not affected by Ch III so long as the conduct occurs outside Australia?.’^[20] ‘Put simply, the aliens power does not provide the power to detain after removal is completed [emphasis in original].’^[21]

‘As a matter of fundamental principle, the detention function, by its nature and because of historical considerations, is essentially and exclusively judicial in character. Section 198AHA vests part of that function in the Executive. That is not permitted. 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. No other basis has been identified that would justify, let alone authorise, the crafting of a new exception which would allow the detention of an alien by the Commonwealth, in a foreign state, after the Commonwealth has exercised its undoubted power to expel that alien from Australia or prevent entry by that alien into Australia’ (references omitted).^[22]

‘REGIONAL PROCESSING FUNCTIONS’: ASYLUM SEEKERS v REFUGEES

Importantly, while the majority found that the Commonwealth did have the power to participate in the detention of asylum seekers in Nauru, all seven judges specified that this power applied only in relation to asylum seekers. Detention beyond that point, after asylum applications had been determined, was unlikely to be supported.

Since this decision the RPCs have been closed, most asylum applications have been determined and refugees are living in the community. It is not known how these factors might change the outcome, if at all.

The joint judgment of French CJ, Kiefel and Nettle JJ recalled, for example: ‘Section 198AHA is incidental to the implementation of regional processing functions for the purpose of determining claims by UMAs [Unauthorised Maritime Arrivals] to refugee status under the Refugees Convention ... If the regional processing country imposes a detention regime as a condition of the acceptance of UMAs removed from Australia, the Commonwealth may only participate in that regime if, and for so long as, it serves the purpose of processing. The Commonwealth is not authorised by s198AHA to support an offshore detention regime which is not reasonably necessary to achieve that purpose.’^[23] In that case, the section may no longer be supported by the aliens power.

Similar statements were made by all other judges who had found Australia’s participation in the detention to be valid.^[24]

EXECUTIVE BOUND BY THE LAW

This case also provided an opportunity for the High Court to remind the Commonwealth of the limits of its executive power. While not always requiring a legislative basis, the executive power remains constrained by Australian law, including the separation of powers and common law. Some judges made it clear that this constraint operates beyond Australia’s borders.

Justice Bell could find ‘no principled reason why the Parliament may confer a power on the Commonwealth to cause and effectively control the detention of an alien taken from Australia, to a country which has been designated by Australia as a regional processing country, without being subject to the same constitutional limitations as apply to the detention of aliens for the purposes of processing their protection claims in Australia’.^[25]

Justice Gaegeler also noted the limitations on the executive power: ‘the Executive Government must take the civil and criminal law as the Executive Government finds it, and must suffer the civil and criminal consequences of any breach’.^[26]

Justice Gordon drew out the potential ramifications for the Commonwealth if it had acted contrary to notes that ‘[t]o the extent that the detention by the Commonwealth of the Plaintiff on Nauru was no longer warranted, it may be, at least in Australian law, a tortious act’.^[27]

In finding that any attempt by the Commonwealth to detain the plaintiff in Nauru pursuant to s198AHA must fail as the section infringed the separation of powers, she said:

‘the Executive “cannot change or add to the law; it can only execute it”. That is what the Commonwealth sought to do by s198AHA of the Migration Act – to permit the Commonwealth to detain certain aliens, in a foreign state, after those persons have been removed from (or denied entry into) Australian territory. That was seeking to change or add to the law, not execute the MOU.’^[28]

SUBSEQUENT LEGAL DEVELOPMENTS

Since this decision the Commonwealth has sought to interpret s198AHA as expansively as possible. In 2018 an unprecedented number of cases were filed in the Federal Court seeking urgent interlocutory injunctions on behalf of gravely ill children and adults in offshore detention.

In October of that year the Commonwealth took a novel approach to its defence to these claims, arguing that s494AB of the Migration Act barred the jurisdiction of the Federal Court in these matters, in part due to an expansive interpretation of s198AHA.^[29] While in that case the Court found that the matter was not ripe for determination, the Federal Court ultimately took the unusual step of seeking to resolve the issue by instigating a hearing on the separate question of jurisdiction.^[30] That hearing took place on 7 and 8 May, and a decision is expected in August 2019. The outcome of that hearing has the potential to have significant ramifications for future legal developments in this highly litigated area.

CONCLUSIONS

This case acts as an important reminder of both the extent and limits of Commonwealth power in both its legislative and executive functions. All judges made important observations about the extent to which the Commonwealth can participate in the depravation of liberty of asylum seekers and refugees offshore.

Since this decision, most of the asylum seekers have been assessed as refugees and most if not all of these people are now living in the community, rather than in the RPCs. Accordingly, some of the key considerations of the judges have fundamentally changed. However, it is not clear whether (and if so, how) this might change any decision arrived at by the Court.

The author would like to thank colleague Amelia Sweetland for bringing this case and some of its nuances to her attention.

Anna Talbot is Senior Solicitor and Legal Practice Manager with the National Justice Project. The National Justice Project has run over a dozen urgent injunction cases for people on Nauru and in PNG who need urgent medical treatment, after setting the precedents with Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483 and FRX as Litigation Representative for FRM17 v Minister for Immigration and Border Protection and Anor [2018] FCA 63. PHONE [phone] TWITTER @annactalbot EMAIL [e-mail].

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^[1] Under the Memorandum of Understanding (MOU) between Nauru and Australia, Australia was also liable for all costs ‘incurred under and incidental to’ the MOU: this was one of the guiding principles of the agreement.

^[2] Plaintiff M68-2015 v Minister for Immigration and Border Protection [2016] HCA 1, [39] (Plaintiff M68).

^[3] Ibid, [239].

^[4] Ibid [93].

^[5] Ibid.

^[6] Ibid, [173].

^[7] Ibid, [355].

^[8] Ibid, [396].

^[9] Ibid, [399].

^[10] Ibid, [31].

^[11] Ibid, [77].

^[12] Ibid, [259].

^[13] Ibid, [389].

^[14] Ibid, [408].

^[15] NB the Court has interpreted this constraint broadly: Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562.

^[16] Plaintiff M68, [97]

^[17] Ibid, [101].

^[18] Ibid, [184].

^[19] Ibid, [185].

^[20] Ibid, [390].

^[21] Ibid, [393].

^[22] Ibid, [401].

^[23] Ibid, [46].

^[24] Ibid, see Bell J [101], Gageler J [179], Keane J [199] and [247].

^[25] Ibid, [99].

^[26] Ibid, [135].

^[27] Ibid, [410].

^[28] Ibid, [373].

^[29] FLH18 v Minister for Home Affairs [2018] FCAFC 188; 363 ALR 107.

^[30] FRX17 as litigation representative for FRM17 v Minister for Immigration and Border Protection & Ors [2018] FCA 63.