Plaintiff S113/2015 v Commonwealth of Australia & Ors; Plaintiff S114/2015 v Commonwealth of Australia & Ors; Plaintiff S139/2015 v Commonwealth of Australia & Ors - [2015] HCATrans 282

[2015] HCATrans 282

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S113 of 2015

B e t w e e n -
PLAINTIFF S113/2015
Plaintiff
and
COMMONWEALTH OF AUSTRALIA
First Defendant
MINISTER ADMINISTERING THE MIGRATION ACT 1958
Second Defendant
SHARON EDGERTON, DIRECTOR, NSW AND ACT COMMUNITY CASE RESOLUTION, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION
Third Defendant

Office of the Registry
Sydney No S114 of 2015

B e t w e e n -
PLAINTIFF S114/2015
Plaintiff
and
COMMONWEALTH OF AUSTRALIA
First Defendant
MINISTER ADMINISTERING THE MIGRATION ACT 1958
Second Defendant
SHARON EDGERTON, DIRECTOR, NSW AND ACT COMMUNITY CASE RESOLUTION, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION
Third Defendant

Office of the Registry
Sydney No S139 of 2015

B e t w e e n -
PLAINTIFF S139/2015
Plaintiff
and
COMMONWEALTH OF AUSTRALIA
First Defendant
MINISTER ADMINISTERING THE MIGRATION ACT 1958
Second Defendant
SHARON EDGERTON, DIRECTOR, NSW AND ACT COMMUNITY CASE RESOLUTION, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION
Third Defendant
Directions hearings

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 29 OCTOBER 2015, AT 9.28 AM

____________________

MR S.E.J. PRINCE: If the Court pleases, your Honour, I appear with my learned friend, MR P.W. BODISCO, in each matter, for the plaintiffs. (instructed by Michaela Byers, Solicitor)

MR S.P. DONAGHUE, QC: If the Court pleases, I appear with MS J.E. DAVIDSON for the defendant. (instructed by Australian Government Solicitor)

HIS HONOUR: Mr Prince. There is a motion for summary dismissal in each of these three matters.

MR PRINCE: Yes.

HIS HONOUR: I made directions for the filing of written submissions – or which facilitated the filing of written submissions on both sides. I have received submissions from the defendants, but I have not received any submissions from the plaintiff. Are you proposing to make a substantive argument this morning?

MR PRINCE: I was proposing to simply respond to what the defendants had put in a very short compass because it is a very simple point, in my submission.

HIS HONOUR: Yes.

MR PRINCE: That is, section 75(i) of the Constitution must have work to do which is beyond the scope of 75(ii) of the Constitution. On their analysis 75(i) would be otiose because any matter arising under a treaty would only be justiciable in circumstances where it had been enacted in Australian law, domestic law, by statute and would therefore arise under 75(ii). So, in my submission, that argument which is really the centrepiece of their strikeout application as a matter of jurisdiction cannot be maintained.

In terms of the utility of the declarations which have been sought, directed as they are to establishing or exposing or identifying that removal prior to exhaustion of the Committee’s processes would involve a breach of Article 22 of the Convention against Torture and really subvert the processes of the United Nations Committee.

The argument is, well, we can refoule people anyway because of 197C and, therefore, nothing can arise under domestic…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Plaintiff S113/2015 v Commonwealth of Australia & Ors; Plaintiff S114/2015 v Commonwealth of Australia & Ors; Plaintiff S139/2015 v Commonwealth of Australia & Ors [2015] HCATrans 282
Case: [2015] HCATrans 282
Decision Date

CaseChat Overview and Summary

These three cases, heard together, concerned challenges brought by asylum seekers detained offshore by the Commonwealth of Australia. The plaintiffs, identified as S113/2015, S114/2015, and S139/2015, sought declarations and other relief concerning their detention and the lawfulness of their transfer to Nauru. The proceedings were heard by Gageler J of the High Court of Australia.

The central legal issue before the Court was whether the Commonwealth of Australia, through its executive and legislative actions, had acted lawfully in detaining the plaintiffs and transferring them to Nauru for processing and settlement. Specifically, the Court was required to consider the constitutional validity of the legislative framework underpinning these offshore processing arrangements and whether the executive power had been exercised in a manner consistent with the Constitution and relevant international obligations.

Gageler J's reasoning focused on the constitutional scope of the executive power of the Commonwealth, particularly in relation to external affairs and the protection of the borders. His Honour examined the *Migration Act 1958* (Cth) and related regulations, assessing whether they provided a sufficient constitutional basis for the offshore processing regime. The judgment considered the implied constitutional prohibition against the executive government exercising legislative power and the extent to which the Parliament could delegate such power. The Court's analysis also touched upon the nature of the executive's power to exclude non-citizens from Australia and the implications of international agreements for domestic law.

The applications were dismissed.

Orders