Plaintiff M68/2015 v. Minister for Immigration and Border Protection & Ors [2016] HCA 1

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This case note provides an overview of the key facts and findings of the High Court in Plaintiff M68/2015 v. Minister for Immigration and Border Protection & Ors [2016] HCA 1, and sets out some of the key developments following the case. The plaintiff, an asylum seeker from Bangladesh, had been detained in Nauru at one of Australia’s two regional processing centres before being brought to Australia for medical treatment in 2014. She brought this case against the Australian Minister for Immigration and Border Protection, the Commonwealth of Australia and Transfield Services (Australia) Pty Ltd in an effort to prevent her return to Nauru. The main question in the case was whether the Australian government had the power, either in the form of a statutory or non-statutory executive power, to contract for and control the detention of asylum seekers in the offshore detention centre in Nauru. The majority of the court (French CJ, Kiefel, Nettle, Bell, Gageler and Keane JJ) held – in four separate judgments – that the government did have the necessary legal authority to be involved in the detention of asylum seekers in Nauru, although they were divided about whether the Australian government was actually in control of this detention and the basis on which it was lawful. Gordon J was in dissent, finding that the government had significant control over the detention of the plaintiff and had acted beyond its power in doing so. 

This case was one of a series of challenges launched on behalf of 267 people, many of whom had been brought back to Australia from offshore detention centres for urgent medical treatment. This group also included 37 babies born in Australia. Following the Court’s judgment, the #LetThemStay public campaign was launched in an attempt to keep the group in Australia. As at May 2016, many do remain in Australia, however their continued presence is ‘temporary’ and they may sent back offshore at any time at the Minister’s discretion.

 

Madeline Gleeson
June 2016

The author thanks Associate Professor Gabrielle Appleby for her assistance in the preparation of this case note.

Endnotes

  • 1. Migration Act 1958 (Cth), ss.189, 198AD(2).
    On 10 September and 9 October 2012, then Minister for Immigration and Citizenship, Chris Bowen, designated Nauru and PNG respectively as ‘regional processing countries’ under section 198AB(1) of the Migration Act. The instruments of designation and accompanying documents tabled in the Australian Parliament are available from the Australian Human Rights Commission at <https://www.humanrights.gov.au/sites/default/files/Docs%20tabled%20with%... (Nauru) and <https://www.humanrights.gov.au/sites/default/files/Docs%20tabled%20with%... (PNG).
  • 2. ‘Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia, relating to the transfer to and assessment of persons in Nauru, and related issues’, 3 August 2013; ‘Memorandum of Understanding between the Government of the Independent State of Papua New Guinea and the Government of Australia, relating to the transfer to, and assessment and settlement in, Papua New Guinea of certain persons, and related issues’, 6 August 2013; ‘Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia, relating to the transfer to and assessment of persons in Nauru, and related issues’, 29 August 2012; ‘Memorandum of Understanding between the Government of the Independent State of Papua New Guinea and the Government of Australia, relating to the transfer to, and assessment and settlement in, Papua New Guinea of certain persons, and related issues’, 8 September 2012.
    The 2013 memorandum of understanding with PNG is also supported by a Regional Resettlement Arrangement dated 19 July 2013. All agreements are available at <http://www.kaldorcentre.unsw.edu.au/bilateral-agreements-offshore-proces....
  • 3. Prime Minister Kevin Rudd announced the policy on 19 July 2013 together with PNG Prime Minister Peter O’Neill at a joint press conference in Brisbane. For more information see: Kevin Rudd, Peter O’Neill et al, ‘Transcript of Joint Press Conference’, Brisbane, 19 July 2013, <http://pandora.nla.gov.au/pan/79983/20130731-0937/www.pm.gov.au/press-of... Kevin Rudd, ‘Transcript of broadcast on the Regional Resettlement Arrangement between Australia and PNG’, video transcript, 19 July 2013, <http://pandora.nla.gov.au/pan/79983/20130731-0937/www.pm.gov.au/press-of... Kevin Rudd, ‘Australian and Papua New Guinea Regional Resettlement Arrangement’, media release, 19 July 2013, <http://pandora.nla.gov.au/pan/79983/20130731-0937/www.pm.gov.au/press-of...
    In a ‘special one-off arrangement’ in December 2014, the Australian government approved a rare exception to this policy for thirty one babies born in Australia and their families, all of whom had been transferred back to Australia from Nauru for the births before 4 December 2014. All babies born in Australia after this date to asylum seeker families that arrived in Australia by sea after 19 July 2013 have been subject to removal offshore. For more information see: Stephanie Anderson, ‘Asylum seeker babies to stay in Australia under Muir deal’, News, SBS, 18 December 2014, <http://www.sbs.com.au/news/article/2014/12/18/asylum-seeker-babies-stay-... Scott Morrison, ‘Babies born to IMAs transferred from Nauru to remain in Australia’, press release, 18 December 2014, <http://pandora.nla.gov.au/pan/143035/20141222-1032/www.minister.immi.gov...
  • 4. Exceptions to the rule that everyone in this second cohort must be transferred offshore and never be resettled in Australia were made for people who arrived in Australia by boat between 19 July and 31 December 2013 but had not yet been transferred offshore, and for the families of thirty one babies who were born in Australia before 4 December 2014 after their mothers were transferred back from Nauru. For more information, see: Scott Morrison, ‘Reintroducing TPVs to resolve Labor's asylum legacy caseload, Cambodia’, press conference, Canberra, 26 September 2014, <http://pandora.nla.gov.au/pan/143035/20141222-1032/www.minister.immi.gov... Scott Morrison, ‘Babies born to IMAs transferred from Nauru to remain in Australia’, media release, 18 December 2014, <http://pandora.nla.gov.au/pan/143035/20141222-1032/www.minister.immi.gov... Commonwealth of Australia, Parliamentary Debates (Senate), 4 December 2014, p. 10,313 (Glenn Lazarus) <http://parlinfo.aph.gov.au/parlInfo/download/chamber/hansards/031d80d7-6....
  • 5. Under the Migration Act, an officer may bring a ‘transitory person’ back to Australia from an offshore processing country ‘for a temporary purpose’, however they must be transferred back offshore ‘as soon as reasonably practicable after the person no longer needs to be in Australia for that purpose’. Transitory persons cannot apply for a visa while in Australia unless given written permission from the Minister for Immigration and Border Protection to do so: Migration Act, ss. 46B, 198(1A), 198AH, 198B.
  • 6. Christmas Island is Australian territory located in the Indian Ocean, 380 kilometres south of the Indonesian island of Java. The nearest point on the Australian mainland is Northwest Cape, a peninsula in the northwest of Western Australia, which is approximately 1565 kilometres southeast of Christmas Island.
  • 7. The MOU provides that Australia ‘may transfer’ and Nauru ‘will accept’ asylum seekers who travelled irregularly by sea to Australia or were intercepted by Australian authorities in the course of trying to reach Australia by irregular maritime means; are authorised by Australian law to be transferred to Nauru; and have undergone ‘short health, security and identity checks’ in Australia (articles 7, 9). Nauru assures Australia that it will not expel or return an asylum seeker transferred under the MOU to another country where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership or a particular group or political opinion; or send an asylum seeker to another country where there is a ‘real risk’ that he or she will be subjected to torture, cruel, inhumane or degrading treatment or punishment, arbitrary deprivation of life or the imposition of the death penalty (article 19). Nauru also assures Australia that it will make an assessment, or permit an assessment to be made, as to whether or not an asylum seeker meets the definition of a refugee set out in the 1951 Convention relating to the Status of Refugees, as amended by its 1967 Protocol (article 19). Australia undertakes to bear all costs ‘incurred under or incidental’ to the MOU, and to ‘assist’ Nauru in settling in a ‘third safe country’ any person determined to be in need of international protection that Nauru does not allow to settle locally, and in returning any person found not to be in need of international protection to their country of origin or another third country where they have the right to enter and reside (articles 6, 13, 14). The MOU is available at <http://www.kaldorcentre.unsw.edu.au/sites/default/files/australia-nauru-...
    The MOU is supported by Administrative Arrangements for Regional Processing and Settlement Arrangements in Nauru, signed by Australia and Nauru on 11 April 2014, which ‘provide guidance for the transfer of asylum seekers to Nauru, management of the centre and refugee status determination processes’: Australian Department of Immigration and Border Protection, submission 31 to Senate Select Committee on the Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre in Nauru, May 2015, p. 9 (available at <http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Regional_...).
  • 8. Section 10 of the Immigration Act 2014 (Nauru) provides that a person who is not a citizen of Nauru must have a valid visa to enter or remain in Nauru. Under reg 9 of the Immigration Regulations 2013 (Nauru), in force at the date of the plaintiff’s transfer to Nauru, an application for an RPC visa had to be lodged with the relevant Nauruan authorities before the asylum seeker to whom it related entered Nauru. Applications for RPC visas could only be made by an Australian officer, and the visas would be valid for a maximum period of three months. Nauruan authorities could grant subsequent RPC visas, also for maximum periods of three months each, and also on the request of an Australian officer. Each three-month RPC visa carried a fee of $3,000 (Schedule 2, part 1), payable by Australia when a demand for its payment was made by Nauru (reg 5(7)). On 30 January 2014, shortly after the plaintiff was transferred to Nauru, the Immigration Regulations 2014 (Nauru) came into effect, providing for the grant of RPC visas in relevantly identical terms.
  • 9. Immigration Regulations 2013, reg 9(6)(a); Immigration Regulations 2014, reg 9(6)(a).
  • 10. The Centre Rules were published in the Republic of Nauru Government Gazette on 16 July 2014, pp. 2-7 (available at <http://ronlaw.gov.nr/nauru_lpms/files/gazettes/76554e71ea2ca72dc7fc11747...).
  • 11. Transfield was renamed Broadspectrum Limited in 2015 after Transfield Holdings, a privately held company owned by the sons of Transfield’s founder Franco Belgiorno-Nettis, withdrew Transfield’s rights to use the Transfield name, reportedly because of the controversy over the company’s contracts in Nauru and on Manus Island: Jenny Wiggins and Michael Smith, ‘Transfield Services to change name to Broadspectrum as founders sever ties’, Sydney Morning Herald, 25 September 2015, <http://www.smh.com.au/business/transfield-services-to-change-name-to-bro...
  • 12. The Department concluded a series of heads of agreement and contracts with Transfield from 2012 onwards. For the purpose of this proceeding, only the contract dated 24 March 2014, and the payments made under that contract, were in issue. At no time was Nauru a party to the contract with Transfield for the provision of services at the RPC. Transfield subcontracted the security services aspects of its contract to another Australian company, Wilson Security Pty Ltd, which was not a party to the proceedings.
  • 13. Republic of Nauru, Government Gazette, No. 142, G. N. No. 634/2015, 2 October 2015, <http://ronlaw.gov.nr/nauru_lpms/files/gazettes/138257d9f8e4223789b5f93e4..., p. 1.
  • 14. Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1 (Plaintiff M68), Gordon J at [339]-[343].
  • 15. On 4 October 2015 the Immigration (Amendment) Regulations No. 3 2015 (Nauru) repealed regs 9(6)(b) and (c) of the Immigration Regulations 2014, thereby removing two of the conditions that had previously been attached to a RPC visa (namely, requirements that the holder of a RPC visa remain at the PRC until and after being granted a health and security clearance certificate, except in the case of an emergency or in limited circumstances with the permission of a service provider).
  • 16. Republic of Nauru, Government Gazette, 2 October 2015, p. 1.
  • 17. RPC Act, s 18C.
  • 18. Plaintiff M68, submissions of the first and second defendants, filed 18 September 2015, <http://www.hcourt.gov.au/assets/cases/M68-2015/PlfM68-2015_Def1-2.pdf> [26]-[32].
  • 19. Plaintiff M68, French CJ, Kiefel and Nettle JJ at [23].
  • 20. Plaintiff M68, Bell J at [64].
  • 21. Plaintiff M68, Keane J at [235].
  • 22. Plaintiff M68, Gageler J at [112]; Gordon J at [350].
  • 23. Plaintiff M68, French CJ, Kiefel and Nettle JJ at [43]-[44]; Bell J at [73]-[74]; Gageler J at [177]; Keane J at [246]; Gordon J at [363]-[364].
  • 24. Plaintiff M68, French CJ, Kiefel and Nettle JJ at [41]; Bell J at [66]; Gageler J at [187]; Keane J at [265].
  • 25. Plaintiff M68, Gordon J at [368]-[373].
  • 26. For a parallel case on this issue in the PNG context, see: Namah v Pato [2016] PGSC 13; SC1497 (26 April 2016) <http://www.paclii.org/pg/cases/PGSC/2016/13.html>.
  • 27. Plaintiff M68, transcript of proceedings, 7 October 2015, [2015] HCATrans 255 at [1565] (Merkel QC).
  • 28. Plaintiff M68, plaintiff’s amended submissions, filed 23 September 2015, <http://www.hcourt.gov.au/assets/cases/M68-2015/PlfM68-2015_Plf-Amend.pdf> [97]; Plaintiff M68, French CJ, Kiefel and Nettle JJ at [47].
  • 29. Plaintiff M68, French CJ, Kiefel and Nettle JJ at [47]-[52]; Bell J at [102].
  • 30. Plaintiff M68, Gageler J at [106].
  • 31. Plaintiff M68, Gordon J at [276]. See also [413]-[414].
  • 32. Plaintiff M68, Keane J at [248]-[258]. See also French CJ, Kiefel and Nettle JJ at [52].
  • 33. Plaintiff M68, Gordon J at [367].
  • 34. Plaintiff M68, plaintiff’s amended submissions, [91]. For the plaintiff’s other arguments concerning the external affairs and Pacific islands powers, see [86]-[90].
  • 35. Plaintiff M68, transcript of proceedings, 7 October 2015, [2015] HCATrans 255 at [2390] (Lenehan).
  • 36. Plaintiff M68, French CJ, Kiefel and Nettle JJ at [42]; Bell J at [75]-[77]; Gageler J at [182]; Keane J at [259].
  • 37. Plaintiff M68, Keane J at [259] (emphasis in original).
  • 38. Plaintiff M68, Gageler J at [182].
  • 39. Plaintiff M68, Gageler J at [182].
  • 40. David Hume, ‘Plaintiff M68-2015 – offshore processing and the limits of Chapter III’, AusPubLaw Blog, 26 February 2016, <https://auspublaw.org/2016/02/plaintiff-m68-2015/>.
  • 41. Plaintiff M68, transcript of proceedings, 7 October 2015, [2015] HCATrans 255 at [740] (Merkel QC).
  • 42. Plaintiff M68, transcript of proceedings, 8 October 2015, [2015] HCATrans 256 at [4020]-[4025] (Gleeson SC).
  • 43. Plaintiff M68, submissions of the first and second defendants, [69].
  • 44. On 17 October 2015, after the case had been heard in full, the defendants disclosed additional documents to the plaintiff documenting the fact that staff members of Wilson Security had been sworn in as reserve officers of the Nauru Police Force Reserve in July 2013.This fact could potentially have been relevant to the court’s consideration of whether the Australian government itself was detaining asylum seekers in Nauru, or the extent of the Australia’s involvement in the detention of asylum seekers in and by Nauru. 
    On 28 January 2016 the parties sought to reopen the proceedings for the limited purpose of amending the special case to make reference to these new facts. The proposed consent order was refused. In their joint judgment, French CJ, Kiefel and Nettle JJ concluded (at [53]) that this new information ‘would not affect the outcome’ of their findings.
  • 45. Plaintiff M68, Bell J at [79]-[93]; Gageler J [167]-[173]; Gordon J at [269], [296], [352]-[356].
  • 46. Plaintiff M68, Bell J at [93].
  • 47. Plaintiff M68, Gageler J at [172]-[173].
  • 48. Plaintiff M68, Gageler J at [173].
  • 49. Plaintiff M68, Gordon J at [355].
  • 50. Plaintiff M68, French CJ, Kiefel and Nettle JJ at [39].
  • 51. Plaintiff M68, French CJ, Kiefel and Nettle JJ at [35].
  • 52. Plaintiff M68, French CJ, Kiefel and Nettle JJ at [39], [41].
  • 53. Plaintiff M68, Keane J at [239].
  • 54. Plaintiff M68, Keane J at [240].
  • 55. Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1; [1992] HCA 64 (Lim), Brennan, Deane and Dawson JJ at [8].
  • 56. Lim, Brennan, Deane and Dawson JJ at [21].
  • 57. Lim, Brennan, Deane and Dawson JJ at [22].
  • 58. Brennan, Deane and Dawson JJ held: ‘Where Parliament seeks to confer an authority to detain on the executive, the question of whether detention has a punitive character (and thus is of an exclusively judicial nature) will be a matter of substance rather than form. That is, a statutory provision seeking to invest the executive government with an arbitrary power to detain will be invalid ‘notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt’: Lim at [23].
  • 59. Lim, Brennan, Deane and Dawson JJ at [29]-[30].
  • 60. Lim, Brennan, Deane and Dawson JJ at [30].
  • 61. Lim, Brennan, Deane and Dawson JJ at [30].
  • 62. Lim, Brennan, Deane and Dawson JJ at [32].
  • 63. Lim, Brennan, Deane and Dawson JJ at [32].
  • 64. Plaintiff M68, Plaintiff’s amended submissions, [37(b)].
  • 65. Plaintiff M68, submissions of the first and second defendants, [53].
  • 66. Plaintiff M68, French CJ, Kiefel and Nettle JJ at [40].
  • 67. Plaintiff M68, French CJ, Kiefel and Nettle JJ at [41].
  • 68. Plaintiff M68, Keane J at [241].
  • 69. Plaintiff M68, Bell J at [97].
  • 70. Lim, Brennan, Deane and Dawson JJ at [32], cited in Plaintiff M68, Bell J at [98].
  • 71. Plaintiff M68, Bell J at [98].
  • 72. Plaintiff M68, Bell J at [99]; Plaintiff’s amended submissions, [37(c)]; citing CPCF v Minister for Immigration and Border Protection [2015] HCA 1 per Hayne and Bell JJ at [149]-[150].
  • 73. Plaintiff M68, Bell J at [101].
  • 74. Plaintiff M68, Bell J at [101].
  • 75. Plaintiff M68, Bell J at [100].
  • 76. Plaintiff M68, Gageler J at [115]-[166].
  • 77. Plaintiff M68, Gageler J at [183]-[184].
  • 78. Plaintiff M68, Gageler J at [184].
  • 79. Plaintiff M68, Gageler J at [185].
  • 80. Plaintiff M68, French CJ, Kiefel and Nettle JJ at [46].
  • 81. Plaintiff M68, Keane J at [262]. See also [247].
  • 82. Plaintiff M68, Keane J at [260]-[261].
  • 83. Plaintiff M68, Gordon J at [378].
  • 84. Plaintiff M68, Gordon J at [390], [395].
  • 85. Plaintiff M68, Gordon J at [376]-[393].
  • 86. Plaintiff M68, Gordon J at [394]-[396].
  • 87. Plaintiff M68, Gordon J at [401].
  • 88. Plaintiff M68, Gordon J at [402].
  • 89. Plaintiff M68, Gordon J at [403].
  • 90. Plaintiff M68, Gordon J at [404]-[411].
  • 91. Plaintiff M68, Gordon J at [412].
  • 92. Plaintiff M68, Gordon J at [368]-[373].
  • 93. Thomas Oriti, ‘Let Them Stay labelled a success, more than half of 267 asylum seekers in community detention’, AM, ABC, 2 April 2016, <http://www.abc.net.au/news/2016-04-02/let-them-stay-labelled-success-asy....
  • 94. UN Office of the High Commissioner for Human Rights, ‘Best interests of the child must come first, UN child rights committee reminds Australia’, 3 February 2016, <http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=17008&L... UN Office of the High Commissioner for Human Rights, ‘Comment by the Spokesperson for the UN High Commissioner for Human Rights, Rupert Colville, on the possible transfer of 267 people from Australia to Nauru’, 3 February 2016, <http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=17024&L....