What the High Court of Australia has already determined in relation to Manus Island

What the High Court decided in September 2014

On  18 June 2014, in  Plaintiff  S156/2013 v Minister for Immigration and Border Protection & Anor, the High Court unanimously upheld the validity of two provisions in of the Migration Act, together with two decisions made under those provisions by the Minister for Immigration and Border Protection.  For reasons that should become clear, this might appropriately be called the removal decision.

Arrival in Australia at Christmas Island and removal to Manus Island

The plaintiff, a citizen of Iran, ["P"] had entered Australia's migration zone by sea at Christmas Island in July 2013. P's entry into Australia by boat qualified him as an "unauthorised maritime arrival" under the Act.  After his arrival at Christmas Island, an officer of the Department of Immigration and Border Protection detained P, and he was  subsequently removed to an assessment centre on Manus Island in Papua New Guinea ("PNG").

Constitutional challenge to sections 198AB and 198AD of the Migration Act 

P commenced proceedings in the original jurisdiction of the High Court, challenging the validity of sections 198AB and 198AD of the Act.  

P challenged these on the ground that neither provision is supported by any head of power in section 51 of the  Australian Constitution.   A case was stated, and questions were reserved for the consideration of the Full Court of the High Court.

Section 198AB

Section 198AB provides that the Minister may designate that a country is a regional processing country. 

P challenged the validity of the Minister's decision to designate PNG as a regional processing country under section 198AB ("the designation decision").

Section 198AD

He also challenged Minister's decision  to give a written direction under section 198AD(5) to take UMAs to PNG or to Nauru ("the direction decision").   

Section 198AD provides that UMAs must be taken from Australia to a regional processing country. Where there are two or more regional processing countries, section 198AD(5) provides that the Minister must give a written direction to take a UMA, or a class of UMAs, to the regional processing country specified in the direction. This is the direction decision.

The sections are valid under the aliens power in the Constitution

The High Court unanimously held that sections 198AB and 198AD are valid under the aliens power conferred by section 51(xix) of the Australian Constitution. 

The provisions operate to effect the removal of UMAs from Australia.   Accordingly, they are laws with respect to a class of aliens. 

The Court also upheld the validity of both the designation decision, and the direction decision. It dismissed the other grounds for challenging the decisions, and held that the proceedings were otherwise able to be remitted to the Federal Circuit Court of Australia.  This is the removal decision.

Having regard to the recent decision of the Supreme Court of PNG in Namah v Pato [2016] PGSC 13 it will be appropriate to have regard to what the High Court did not decide.