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. 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?
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):
- An allegation that a foreign sovereign state has acted unlawfully within its own territory will not be justiciable in an Australian court ….
- The consequence of this rule (observed not only in Australia but in other countries, for example (Underhill v Hernandez  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. …
- 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  FCA 1329; (2001) 110 FCR 491 (at -) and Ruhani (No 2)  HCA 43; 222 CLR 580 at ).
- 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.
- 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