The Full Bench of the High Court held by majority that Plaintiff M68 was not entitled to a declaration that her detention on Nauru was unlawful to the extent that the government participated in the clients detention. The case of Plaintiff M68 was championed by Daniel Webb of the Australian Human Rights Centre. Although the plaintiff was a single person he says that if this declaration was made it would have struck “at the core of the current arrangements” as it would have effectively declared the detention of most detainees on Nauru unlawful.
The court asked itself two questions. First, whether s198AHA(2) of the Migration Act 1958 (Cth) was a valid law of the Commonwealth? Second, if the law is valid did it permit the imposition, enforcement or procurement of constraints upon the plaintiff’s liberty? The majority answered yes to both questions and refused to give the applicant a declaration that her detention was unlawful.
This decision comes 18 months after the High Court up held the constitutionality of regional processing on Manus Island in Papua New Guinea.
What does this mean?
Regional processing in Nauru shall continue as it has been. Peter Dutton, Australia’s Minister for Immigration has confirmed that Christmas Island was being prepared to receive detainees currently held on Nauru in the event a declaration was given. Although nothing practically will change as a result of this decision it has strong legal consequences.
This case was brought because the validity of Australia’s operations was uncertain. There was scope to argue that although the regional processing centre operated under Nauruan law Australia retained “effective control” over the operation without valid legal authority. Although this argument was not considered by the court the decision handed down on Tuesday vastly reduces scope to challenge regional processing in the future.
What was the effect of the new Bill?
S198AHA was introduced by the Migration Amendment (Regional Processing Arrangements) Bill 2015.The law was given retroactive effect meaning that it would apply to regional processing in Nauru that took place before the Bill became law. This Bill was introduced to parliament after Daniel Webb had commenced litigation for this case. The Bill was supported by crossbenchers Nick Xenophon, John Madigan, Bob Day and the Labor Party. The Bill was opposed by the Greens, Jacqui Lambie, David Leyonhjelm, Ricky Muir, Dio Wang and Glenn Lazarus.
The High Court transcript makes it very clear that s198AHA was the section that authorised the government’s action. If this Bill had not been passed it is not clear what section of the Migration Act 1958 (Cth) could have supported Australia’s regional processing arrangements on Nauru.
Spokespeople for both Labor and Liberal have come out in support of the High Court’s decision. Prime Minister Malcolm Turnbull issued a defence of Australia’s controversial border protection policies and insists that smugglers will not prevail over Australia’s sovereignty. Richard Marles, Labor’s spokesperson for immigration also welcomed the decision though emphasised that the government should not practice or support indefinite detention.