Timor Solution a dead duck?

Apart from the issues canvassed in my previous post about yesterday’s  High Court judgment on the validity of aspects of the Commonwealth’s offshore “boat people” asylum seeker processes, the sixty four million dollar question now is whether it will affect any attempt by the Gillard government to recreate a Nauru or Timor offshore processing solution to stem the flow of boat people.  Coalition Immigration shadow Minister Scott Morrison predictably thinks the Nauru Solution was fine and the Labor government were mugs to abandon it. Refugee advocate David Manne equally predictably asserts the opposite.

It’s unlikely the government could cure the fundamentally flawed process, as identified by the High Court, by sending people to Timor or Nauru.

The reality is that no-one knows because the previous Howard government system wasn’t under challenge per se in the M61/M69 proceedings.  However I’ll attempt to make some educated guesses, although whether I’ll be able to explain them in a way that is accessible and interesting to a non-specialist audience is another question.  Still it’s worth a try.

The key reasoning in yesterday’s judgment that may give us a clue is this passage starting at [61]:

61. This being so, the question – what power was exercised when Refugee Status Assessments and Independent Merits Reviews were conducted with respect to each plaintiff? – becomes was it, as the Commonwealth submitted, no more than a non-statutory executive power to inquire? Was it, as Plaintiff M61 submitted (and Plaintiff M69 adopted as an alternative argument), an exercise of power under s 46A or s 195A?

Power

62. The following six considerations bear upon the issue. …

63. Of these six considerations, it is the first three that are most important. They are the most important because they present not only an apparent tension between considerations, but also the means of resolving that tension. There is an appearance of tension between the first consideration (that the statute requires that the relevant powers to lift the bar under s 46A, or grant a visa under s 195A, can only be exercised by the Minister personally) and the third (the lawfulness of continued detention for the purposes of inquiry). There is the appearance of tension between those considerations because together they invite the question: how could continued detention under the Migration Act be lawful if what prolongs the detention (the Department making inquiries) has no statutory footing? Yet a central contention of the Commonwealth and the Minister was that the inquiries which were made, and which necessarily prolonged each plaintiff’s detention, were not made under statute.

64. It is not readily to be supposed that a statutory power to detain a person permits continuation of that detention at the unconstrained discretion of the Executive. Yet a proposition of that kind lay at the heart of the submissions advanced on behalf of the Commonwealth and the Minister.

In other words,  it seems that the fatal flaw in the Commonwealth’s attempted unreviewable regime for assessing “boat people” asylum seekers was the fact that the Commonwealth was trying to “have its cake and eat it” by asserting simultaneously that the process was entirely non-statutory (and therefore mostly unreviewable) and that ongoing detention within Australia (until recently almost entirely on Christmas Island) was made lawful by the Migration Act.

However, what if the ongoing detention occurs outside Australia where its legality falls to be determined under the laws of a foreign country (e.g. Nauru or East Timor)?  The High Court (somewhat bizarrely sitting as the ultimate court of appeal in the Nauruan hierarchy) held that the Howard government’s Pacific Solution detention regime was lawful under Nauruan law in Ruhani v Director of Police (No 2) in 2005, and a single judge of the Federal Court held it was effectively unreviewable under Australian law only late last year in Sadiqi v Commonwealth of Australia (No 2):

  1. An allegation that a foreign sovereign state has acted unlawfully within its own territory will not be justiciable in an Australian court ….
  2. The consequence of this rule (observed not only in Australia but in other countries, for example (Underhill v Hernandez [1897] USSC 197; (1897) 168 US 250 at 252) is that it is not open to this Court to examine the role or authority of the President of Nauru , the Principal Immigration Officer of Nauru or any other Nauruan official acting on behalf of the sovereign state.  …
  3. Nauru’s segregation of non-citizens while refugee claims were being determined or pending their removal could not involve a clear violation of any international law. The right of any State to control who may enter its territory is firmly entrenched as an attribute of sovereignty subject, of course, to any obligations owed under international conventions (see Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491 (at [192]-[193]) and Ruhani (No 2) [2005] HCA 43; 222 CLR 580 at [26]).
  4. The defendants submit that the decisions by Nauru to grant visas, and the impositions and conditions on visas are acts of state. They are a manifestation of the exercise by Nauru of its control over the ability of persons to enter Nauru. By alleging that he was falsely imprisoned within the territory of Nauru, in circumstances where any restraints on his movement resulted from conditions imposed on the grant of permission to enter and remain in Nauru, the plaintiff is asking the Court to review the exercise of a central manifestation of Nauru’s sovereignty. The act of state doctrine prevents that from being done in an Australian court.

While it’s not certain that the High Court would necessarily take the same view, a Nauru or Timor detention solution would not necessarily manifest the “apparent tension” the High Court identified in yesterday’s decision, because there would be no need to uphold the legality of ongoing detention under Australian law. It would be effected and continued under Timorese or Nauruan law, albeit at Australia’s request, funding and no doubt close supervision.

However, that does not necessarily mean that every aspect of a Nauru or Timor-based asylum processing regime would be immune from effective challenge in the Australian courts.  The conclusion the High Court reached yesterday might arguably be applied to hold that, although the legal validity of detention cannot be reviewed,  asylum seekers in Nauru or Timor are nevertheless entitled to natural justice and can obtain judicial review in Australia if they don’t receive it:

The Minister having decided to consider the exercise of power under either or both of ss 46A and 195A, the steps that are taken to inform that consideration are steps towards the exercise of those statutory powers. That the steps taken to inform the consideration of exercise of power may lead at some point to the result that further consideration of exercise of the power is stopped does not deny that the steps that were taken were taken towards the possible exercise of those powers. Nor does it deny that taking the steps that were taken directly affected the claimant’s liberty. There being no exclusion by plain words of necessary intendment, the statutory conferral of the powers given by ss 46A and 195A, including the power to decide to consider the exercise of power, is to be understood as “conditioned on the observance of the principles of natural justice”.

It may be quite difficult to construct a legislative framework under which the Minister/Department’s decision to intercept and transfer asylum seekers to a detention centre in Timor or Nauru would not be susceptible to the logic that underpinned yesterday’s decision.

In essence the High Court found yesterday that once a statutory process even to consider whether to grant protection visas has commenced,  then all actions thereafter, even if they’re undertaken by private contractors, attract an obligation to provide natural justice.  The Howard government’s processing on Nauru was undertaken on an outsourced basis by the International Organisation for Migration.  I can see no reason in principle why any denial of natural justice by that organisation would be any more immune to judicial review than the actions of Wizard People Pty Ltd under the current Rudd/Gillard regime.

It might conceivably be different if the processing was actually undertaken by the Nauru or Timor government under their law, because that might then attract the “act of state” non-justiciability doctrine discussed by McKerracher J in Sadiqi. However it is fairly unlikely that either the East Timor or Nauru governments would agree to do that.1

Once we get a situation where offshore detainees can access Australian courts to just as great an extent as onshore ones, the major rationale for offshore processing disappears.

Update –  Daniel Ghezelbash and Mary Crock (the latter arguably Australia’s leading expert on migration and refugee law) make esentially the same points as I did in my summary of the judgment, and also agree with the thesis of this post namely that the principle of the High Court’s judgment may well make it difficult for any Australian government to evade judicial review by the use of an overseas processing/detention centre:

Building yet another detention centre in East Timor is no solution — contrary to Chris Bowen’s statement yesterday that the decision has no significant implications for regional processing. As long as the Australian government is involved in any aspect of the decision process in asylum claims, the plain message from the High Court is that it will not be easily dislodged from its constitutionally entrenched role as guardian of justice and the rule of law.

  1. The reason I don’t think East Timor would touch such an arrangement with a barge pole is that it would almost certainly not be enough for the East Timor government to process asylum seekers and assess them for an Australian protection visa on behalf of Australia. It would then merely be acting as Australia’s agent and such a function almost certainly would not attract the “act of state” immunity outlined above.  It would have to be East Timor assessing applicants for asylum in East Timor itself, with Australia then accepting that as a sufficient basis for granting an Australian protection visa.  It is highly unlikely that East Timor would put itself in such a position.  It would mean that, to the extent that Australia declined to accept any applicant East Timor had approved, East Timor itself would be obliged under international law to continue offering that person protection! ~ KP []

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Paul Frijters
Paul Frijters
11 years ago

Ken,

great try, but you are right, its tough to follow for someone without a law degree. I am trying my best here, so tell me if I have the gist of it.

Are you firstly saying that the Australian government is more likely to be able to be ‘sufficiently nasty’ to ‘boat migrants’ outside Australian borders than inside it? The technical reason being that natural justice cannot be denied inside the borders but it can be outside our borders because Australian courts are not allowed to interfere in the actions undertaken in different countries, particularly not when it concerns non-Australians. There might be a recourse to international courts via the whole ‘act of state’ business, but that is not relevant to internal political debates in Australia.

Is then your second point that the high court’s recent decision might be interpreted to mean that as soon as a ministerial-approved procedure is involved in shipping people to overseas camps is commenced that involves a de facto visa application, then Australian natural justice laws apply to what happens further to those people? That interpretation seems a stretch to me, I have to say, but I suppose will hence on what can be interpreted as the starting point of ministerial involvement.

Suppose though that your interpretation is right. Given the political imperative to be seen to be nasty to boat people, the most likely option I then see emerging is for the departments to find some way not to be held accountable for the start of visa conditions. Suppose for instance that a ministry can organise it such that it is asked by the Nauru government to intercept boat smugglers and bring the occupants to Nauru pending their application for an Australian visa, would that then constitute a way round the issue? It would then formally be a Nauru ministerial issue.

Paul Frijters
Paul Frijters
11 years ago

Ken,

thanks. Fascinating stuff in a way. From a sociological perspective, the ‘Pacific solution’ with all its extra costs is part of the price we Australians pay for wanting to uphold the idea of the rule of law inside the country. Everyone involved would probably be better off if exactly the same procedures were followed somewhere in Australia, but our attachment to our own norms of the rule of law force a less humane outcome and more heartache all round. An it probably wouldn’t have happened without well-meaning lawyers challenging the more humane alternatives. What a cruel irony.

Jacques Chester
Jacques Chester
11 years ago

These sorts of end-runs around constitutions aren’t entirely new. It falls into the same category as Echelon and extraordinary rendition — avoiding judicial review by shopping for a ‘helpful’ jurisdiction.

It’s a major bug in our (and at least the USA’s) constitution.

Generic Person
Generic Person
11 years ago

Ken, while I think your analysis is considered, it is wrong in its conclusion.

The minister’s power to “lift the bar” is triggered for off-shore entrants who are in Australia in excised territories. But since s46A imposes no duty on the Minister to exercise that power, s198A allows such persons to be taken to a declared country (i.e. Nauru and PNG) which thereby means that that those persons are excluded from the operation of the Act altogether being in a foreign jurisdiction.

That is impenetrable logic which nullifies attempts to subject detainees in sovereign countries to judicial review in Australia.

The HCA’s decision pertains only to the process that is undertaken once the minister’s power is invoked. Since the Labor party chose to invoke it universally for all off shore entrants, all decisions made pursuant to it since 2008 are now reviewable.

Jacques Chester
Jacques Chester
11 years ago

I’m not sure if slapping down attempts to evade the regulation of the constitution is all that adventurous. Governments try to do it all the time and courts spend a lot of their time allowing and disallowing various attempts. But the really big end-runs tend to get slapped down. The classic was Marbury v Madison.

morewest
morewest
11 years ago

There is one difference between Nauru and Timor Leste.

Asylum seekers are unlikely to pay people smugglers to take them to Nauru. They will continue to pay smullers to take them within range of RAN patrol boats.

However, if it is made very clear than any ASs intercepted by the RAN will be taken directly to a UNHCR run regional processing centre at Dili it is likely they will take the cheaper option of travelling there direct by much cheaper Indonesian inter island transport. As such, there will be no direct contact between the asylum seekers and Australia, and no legal question marks to be adjudicated by the High Court.

Of course this is the very reason the Opposition wants them processed on Nauru. The Timor Leste option removes ‘boat people’ from the political/legal landscape. Nauru won’t.

Generic Person
Generic Person
11 years ago

But Ken, you’re conflating the issues. As is Julian Burnside.

Under the current Labor system – the s46A power is the primary mechanism through which refugee claims are decided.

By transferring asylum seekers in Nauru, the court notes in paragraph 33 of the judgment that the operation of s46A is excluded by virtue of it being a foreign jurisdiction.

Generic Person
Generic Person
11 years ago

But Ken, you’re conflating the issues. As is Julian Burnside.

Under the current Labor system – the s46A power is the primary mechanism through which refugee claims are decided.

By transferring asylum seekers to Nauru, the court notes in paragraph 33 of the judgment that the operation of s46A is excluded by virtue of it being a foreign jurisdiction.

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[…] justice apply and that judicial review is available (and cannot constitutionally be removed).  As I have tentatively suggested, however,  it might conceivably be possible if East Timor co-operated to structure an offshore […]