Legislative basis for removal of an asylum seeker to Manus Island

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 of the Migration Act 1958 (Cth) ['the Act'] governing the removal of asylum seekers from Australia to offshore detention. 

Factual background

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" ['UAM'] 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').

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.

The statutory provisions

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

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.

The designation of Papua New Guinea

P also challenged the validity of the Minister's decision of to designate PNG as a regional processing country under section 198AB ("the designation decision"), as well as the Minister's decision  to give a written direction under section 198AD(5) to take UMAs to PNG or to Nauru ("the direction decision"). A case was stated, and questions were reserved for the consideration of the Full Court of the High Court.

The statutory sections are valid

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 

It dismissed the other grounds for challenging the decisions made by the respondents, and held that the proceedings were otherwise able to be remitted to the Federal Circuit Court of Australia.

Implications of the decision

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