HIGH COURT OF AUSTRALIA
KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJPLAINTIFF M96A/2016 & ANOR PLAINTIFFS
AND
COMMONWEALTH OF AUSTRALIA & ANOR DEFENDANTS
Plaintiff M96A/2016 v Commonwealth of Australia
[2017] HCA 16
3 May 2017
M96/2016
ORDER
1.The demurrer be allowed.
2.The proceeding be dismissed.
3.The plaintiffs pay the defendants' costs.
Representation
C J Horan QC with F I Gordon for the plaintiffs (instructed by Victoria Legal Aid)
S P Donaghue QC, Solicitor-General of the Commonwealth with P D Herzfeld for the defendants (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Plaintiff M96A/2016 v Commonwealth of Australia
Migration – Unlawful non-citizens – Power to detain – Where plaintiffs unauthorised maritime arrivals – Where plaintiffs brought to Australia from regional processing country for temporary purpose of medical treatment – Where plaintiffs detained under ss 189 and 196 of Migration Act 1958 (Cth) until removal from Australia – Whether ss 189 and 196 validly authorise detention while in Australia for temporary purpose – Whether plaintiffs detained for lawful purpose – Whether duration of detention capable of objective determination.
Words and phrases – "detention of non-citizen", "duration of detention", "opinion, satisfaction or belief of officer", "purpose of detention", "temporary purpose", "transitory person", "unauthorised maritime arrival", "unlawful non‑citizen".
Constitution, s 51(xix).
Migration Act 1958 (Cth), ss 189, 196, 198, 198AD, 198AH, 198B.
KIEFEL CJ, BELL, KEANE, NETTLE, GORDON AND EDELMAN JJ. The issue on this demurrer is the validity of ss 189 and 196 of the Migration Act 1958 (Cth) ("the Act") to the extent that those provisions purport to authorise the detention of a non-citizen who is brought to Australia for a temporary purpose from a place such as a regional processing country. Those sections are part of a suite of provisions in the Act, including provisions inserted in 2002[1] and 2012[2], which is relied upon by the defendants as a source of authority to detain the plaintiffs for the period that they are temporarily in Australia for medical treatment, having been brought to Australia from the Republic of Nauru.
The plaintiffs' case is confined in a number of respects. They do not challenge the lawfulness of their detention when they arrived in Australia at Christmas Island. They do not challenge the lawfulness of their removal from Australia to Nauru or the regional processing arrangements[3]. They do not challenge the lawfulness of the power in the Act by which they were brought back to Australia for the temporary purpose of medical treatment. Nor do they challenge the provisions of the Act which empower officials to remove them from Australia when they no longer need to be in Australia for that temporary purpose. The plaintiffs' challenge is limited to their claim that there is no basis for…
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- AGLC
- Plaintiff M96A/2016 v Commonwealth [2017] HCA 16
- Case
- [2017] HCA 16
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court were whether sections 189 and 196 of the *Migration Act* validly authorised the detention of the plaintiffs while they were in Australia for a temporary purpose, and whether the duration of their detention was capable of objective determination by a court. The plaintiffs contended that their detention was not necessary for any legitimate non-punitive purpose for which the Executive could be authorised to detain a non-citizen, and that the length of their detention could not be objectively ascertained.
The High Court allowed the demurrer, finding that the plaintiffs' detention was authorised by the *Migration Act*. The Court noted that the plaintiffs, as unauthorised maritime arrivals, were subject to detention under section 189(3) and that section 198AD(2) mandated their removal to a regional processing country. However, section 198B permitted officers to bring a "transitory person" to Australia for a temporary purpose, such as medical treatment, and the plaintiffs fell within this category. The Court's reasoning implicitly accepted that the detention provisions of the Act could apply even when a person was in Australia for a temporary purpose, provided that purpose was consistent with the overall scheme of the Act, which included eventual removal. The Court concluded that the plaintiffs' detention was lawful under the Act.
The High Court ordered that the demurrer be allowed, the proceeding be dismissed, and the plaintiffs pay the defendants' costs.
Orders
Orders of the court
1. The demurrer be allowed.
2. The proceeding be dismissed.
3. The plaintiffs pay the defendants' costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: KIEFEL CJ, BELL, KEANE, NETTLE, GORDON AND EDELMAN JJ, GAGELER J
The plaintiffs challenged their detention in Australia on two grounds. First, they submitted that ss 189 and 196 of the Act cannot support their detention whilst in Australia because detention pursuant to those sections is not necessary, nor reasonably capable of being seen as necessary, for any legitimate non-punitive purpose for which the Executive may be validly authorised to detain a non-citizen. Secondly, they submitted that the duration of their detention in Australia has not been capable of objective determination by a court at any material time. It is necessary to set out the scheme of the Act in relation to persons in the position of the plaintiffs before addressing each of these submissions. The operation of the Act upon the plaintiffs It is unnecessary in this case to conduct an exhaustive examination of the provisions of the Act. The operation of many of the provisions of the Act has been considered in other cases in this Court[6]. The provisions of the Act which are of particular relevance to this case are those which are concerned with the plaintiffs as "transitory persons". [6]Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319; [2010] HCA 41; Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; [2014] HCA 34. When the plaintiffs arrived at Christmas Island, they were classified as "unauthorised maritime arrivals", as defined in s 5AA of the Act. This was because they entered Australia by sea at an "excised offshore place" (within the meaning in s 5(1), which includes Christmas Island), they were "unlawful non-citizens" (within the meaning in s 14, read with s 13), and they were not "excluded maritime arrivals" (within the meaning in s 5AA(3)). Divisions 7 and 8 of Pt 2 of the Act comprise, respectively, ss 188 to 197AG and ss 197C to 199. It is the provisions of those two Divisions which have governed the manner of treatment of the plaintiffs. The two Divisions are respectively entitled "Detention of unlawful non-citizens" and "Removal of unlawful non-citizens etc". When the plaintiffs arrived at Christmas Island, they were detained under s 189(3) of the Act. That sub-section provides, subject to exceptions which are not presently relevant, that an officer (as defined) must detain a person who is in an excised offshore place if the officer knows or reasonably suspects that the person is an unlawful non-citizen. Section 198AD(2) of the Act then provides that an officer must, as soon as reasonably practicable, take an unauthorised maritime arrival to whom the section applies from Australia to a regional processing country. Since the plaintiffs were classified as "unauthorised maritime arrivals" they were taken to Nauru, which is a regional processing country. Section 198B of the Act provides that an officer may, for a temporary purpose, bring a transitory person to Australia from a country or place outside Australia. The plaintiffs fell within the definition of "transitory person" in s 5(1) because they were people who had been taken to a regional processing country under s 198AD. Examples of the "exceptional situations" where a temporary purpose might lead to a transitory person being brought to Australia were given in the Revised Explanatory Memorandum to the legislation which introduced s 198B of the Act[7]. Those examples were[8]: medical treatment for a condition which cannot be adequately treated in the place where the person has been taken; trials at which the person is to provide evidence in the prosecution of people smugglers; or transit through Australia to a country of origin or to a third country. In this case the temporary purpose was medical treatment. [7]Migration Legislation Amendment (Transitional Movement) Act 2002 (Cth). [8]Australia, Senate, Migration Legislation Amendment (Transitional Movement) Bill 2002, Revised Explanatory Memorandum at 2.