The involvement of Australia in the detention of refugees in Nauru and Papua New Guinea (PNG) raises complex constitutional and international law issues.
One of these issues was answered today by the High Court of Australia which unanimously rejected a challenge to the legality of Australia’s arrangements with Papua New Guinea. The case – Plaintiff S195 – centred on whether the action of Australian governmental officers was invalid under Australian law because of what was decided by the landmark PNG Supreme Court decision last year (in Namah v Pato). The plaintiff’s case before the High Court therefore raised a novel argument as it sought to link the validity of action taken under Australian law with the validity of those actions in another country (PNG).
The PNG Supreme Court case of Namah
The starting point for analysis of this decision is last year’s PNG decision in Namah. In that case, a five-judge panel of the Supreme Court of Papua New Guinea found that detention of refugees and asylum seekers in the Australian-funded ‘processing’ centres was unconstitutional [Further analysis of this decision can be found here]
It is of significant interest that both leading judgements of the PNG court mentioned the responsibility of Australia in that act of detention. For instance, Justice Kandakasi stated:
It was the joint efforts of the Australian and PNG governments that has seen the asylum seekers brought into PNG and kept at the MIPC against their will. (at para 39)
The First Respondent and the Second Respondent with the assistance of the Australian government are responsible for all of the decisions and actions that have led to the transfer and detention of asylum seekers or transferees. (at para 73) [emphasis added]
Application of this to validity of action taken under Australian law in S195
The plaintiff in S195 argued that Australia had joint responsibility with PNG for the detention of refugees: Australia agreed with PNG’s detention of the asylum seekers, and then took a major part in that detention (Plaintiff’s Reply). The plaintiff noted that the Administrative Arrangements entered into by PNG and Australia clearly provided for detention: transferees to be directed by the Minister to reside at the centre and were allowed to leave only under escort for approved activities.
Despite these arguments, and the references to Australian responsibility by the PNG Supreme Court in Namah, the High Court of Australia did not accept that the plaintiff’s arguments were made out. In particular, the High Court stated that the plaintiff had misunderstood the decision in Namah. The High Court emphasised that the PNG Supreme Court did not invalidate the various memoranda or arrangements entered into between Australian and PNG. Importantly, the High Court said there was no finding in Namah that those arrangements contravened any provision of the PNG Constitution.
Therefore the High Court made an extremely clear and definitive finding on the matter as follows:
‘The course of authority in this Court leaves no room for doubt that neither the legislative nor the executive power of the Commonwealth is constitutionally limited by any need to conform to international law. Equally there should be no doubt that 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’.
Indeed, the High Court in S195 described the Plaintiff’s propositions about the interaction between Australian law and that of PNG as ‘novel and sweeping’.
Whilst I agree that it is long stretch to argue that the validity of Australian acts taken pursuant to Australian legislation and the Australian Constitution can be rendered unlawful by the domestic law of another country, there is some merit in further questioning Australia’s legal role in the treatment of refugees in PNG. As noted above, there was sufficient evidence before the PNG Supreme Court for those judges to find that Australia bears some legal responsibility for the treatment of asylum seekers in PNG.
It is also noteworthy that the High Court has, in the past, adjudicated upon the treatment of asylum seekers in other countries as part of deciding upon the authority of decisions made under Australian law.
This is most clearly seen in the ‘Malaysian Solution’ case of 2011 (Plaintiff M70). This is where the High Court held that a declaration proposing to transfer asylum seekers to Malaysia as part of a ‘swap deal’ was unlawful under Australian law. In that case the High Court held that the power of the Minister for Immigration to make a declaration about such transfers depended on satisfaction of a number of facts about how asylum seekers would be treated in Malaysia. Interestingly, the court found that these conditions did not exist in Malaysia: Malaysia was not a signatory to the Refugees Convention, it did not provide legal status to persons seeking asylum and it did not offer legal protections to those found to be refugees.
The main problem with the present litigation in Plaintiff s195 handed down today, is that the legislative provisions upon which the Malaysian Solution decision was based were subsequently amended by Parliament. This is why more recent challenges to transfers of asylum seekers have failed. In particular, the constitutional validity of those provisions in the Migration Act (and the validity of related decisions), were upheld by the High Court in Plaintiff S156/2013 and Plaintiff M68/2015. Indeed, in Plaintiff M68, Justice Keane held that the relevant provision of the Migration Act does not depend on the constitutional validity of the law of the foreign country (at ).
The decision of the High Court today in Plaintiff S195 is disappointing, but not surprising. The High Court is constrained by the clear provisions of the Migration Act which permit the transfer and detention of refugees in PNG, even though that may be contrary to international law or the Constitution of PNG.
Putting today’s decision to one side, I would argue that the Australian government does indeed have substantial legal involvement in the treatment (including detention) of refugees in both Nauru and PNG. However, the way in which Australia has been able to structure that involvement (particularly by outsourcing detention services to multinationals such as Broadspectrum), has allowed the Commonwealth to successfully argue in successive High Court cases that it is not involved in detaining refugees.
It is now clear, however, that utilising constitutional or statutory interpretation arguments may not the best vehicle in which to test those legal issues. As an alternative, civil litigation has proved to be quite effective, at least in obtaining compensation for detainees, as illustrated by the recent $70 million settlement of a class action instituted on behalf of asylum seekers who had been held in PNG. This, however, does not go to the very core issue of whether Australia should be engaging in arrangements and contracts with others which result in the detention of refugees without accepting legal responsibility for what ensues from those arrangements.
For now, however, it may be that events on the ground in PNG will overtake any further legal challenges in Australia. Although the Australian government took steps in July this year to close down the detention centre on Manus, lawyers in PNG are currently attempting to stop the dismantling of the detention centre. This is why the Castan Centre for Human Rights Law, and many other organisations, are calling for refugees to be brought to Australia as a matter of urgency.
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