Plaintiff S156/2013 and the Minister for Immigration and Border Protection

[2014] HCATrans 96

[2014] HCATrans 096

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S156 of 2013

B e t w e e n -

PLAINTIFF S156/2013

Plaintiff

and

THE MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 9 MAY 2014, AT 2.00 PM

Copyright in the High Court of Australia

MR M.A. ROBINSON, SC:   If the Court pleases, I appear for the plaintiff with my learned friends, MR G.J. WILLIAMS and MR J. WILLIAMS.  (instructed by Adrian Joel & Co Solicitors)

MR J.T. GLEESON, SC, Solicitor-General of the Commonwealth of Australia:   May it please the Court, I appear with MR S.P. DONAGHUE, QC and MR N.M. WOOD for the first and second defendants.  (instructed by Australian Government Solicitor)

FRENCH CJ:   Yes, Mr Robinson.

MR ROBINSON:   Your Honours, I move on the stated case signed by the Chief Justice on 13 February this year.  The stated case appears at page 29 of the stated case book.  The factual material is set out there, and the documents that are relevant are set out in the book.  I have handed up to your Honours an outline of oral submissions, and your Honours should have that document there.

FRENCH CJ:   We do, thank you.

MR ROBINSON:   I have also handed up two other documents which I will take your Honours to in due course.  The questions that are reserved are set out at page 41 of the court book, if I may call it that, and your Honours will see that the significant work we have to do is in relation to the first four questions.  As to the last question about a referral or a remittal to some other place of the third decision that is challenged in these proceedings, the parties’ submissions are the same; namely if this Court wishes to, it can refer that last matter to the Federal Magistrate, and the parties there will seek to get that last matter sent up to the Federal Court because of its significance.  At least there is some agreement in the matter.  Other than that, the parties are fighting on all grounds.

The first two questions deal with the constitutional validity of section 198AB and 198AD of the Migration Act and we say, essentially, that they are not supported by any head of power, and particularly so given the structure of the Constitution. The next two questions deal with what may be called an administrative law challenge, or constitutional writ or judicial review challenge to the two decisions that are set out there, the Minister’s designation, designating Papua New Guinea – this is designating Papua New Guinea as a regional processing country – and the Minister’s direction saying which country the Minister’s staff is to send people to, refugee applicants or unauthorised arrivals ‑ however they are termed, those that come within the scheme of the Act.

The provisions of the Migration Act ‑ if I could take your Honours to the Migration Act briefly ‑ that are relevant to this stated case are all contained in Part 2, Division 8 and “Subdivision B – Regional processing”.  The sections that require some attention ‑ if I may take you to them briefly, and explain in my submission how they work together – starting at the heading “Subdivision B – Regional processing”.

Section 198AA is the reason for the subdivision.  It is a bit like an objects clause, I suppose, in my submission, but it is more declaratory of Parliament’s intention.  It says that the subdivision is enacted because Parliament considers that people smuggling and so on, loss of life at sea, problems that need to be addressed, (b) unauthorised maritime ‑ ‑ ‑

KIEFEL J:   Mr Robinson, forgive me for interrupting, when was Subdivision B inserted into the Act?

MR ROBINSON:   It came in with effect from 18 August 2012 with, as I understand it, the Migration Legislation Amendment (Regional Processing and Other Measures) Act.

KIEFEL J:   Thank you.

MR ROBINSON:   I think the exact citation is at the very bottom of the first page of my friend’s submissions.  Paragraph (b) refers to “unauthorised maritime arrivals” – UMAs is the expression in the submissions.  That is the way it characterises people who come to Australia by boat.

FRENCH CJ:   That is a defined term, is it not?

MR ROBINSON:   It is a defined term.  It includes unauthorised maritime arrivals in respect of whom Australia has protection obligations under the Refugees Convention and the Protocol.  It says that they should be able to be taken to any country designated to be a regional processing country.  Stopping there, “regional processing country” is defined in section 5(1) to mean a country that is declared or designated to be a regional processing country by the next section and it does not elucidate what that expression means.  In my submission, that is quite a significant expression, and the parties will say a fair bit about what it might mean.

(c)it is a matter for the Minister and Parliament to decide which countries should be designated ‑

Again, we say that is subject to 75(v) of the Constitution.

(d)the designation of a country to be a regional processing country need not be determined by reference to the international obligations or domestic law of that country.

An extraordinary provision with respect to Parliament in its own right, but what we say is significant from that provision is that it does not render the issue of international obligations or domestic law of the third country to be irrelevant, firstly.  So it is still, we say, a relevant consideration.  Secondly, it does not excluded Australia’s own obligations under international law or domestic law of Australia.  Nothing in this division does that.  Nothing tramples, as it were, or attempts to trample, on Australia’s obligations under the Refugees Convention or other conventions or treaties.  The Act, we submit, has been – this division has been carefully drawn to avoid a clash of that kind.  Section 198AB, which we say is invalid, is headed “Regional processing country”, says:

(1)The Minister may, by legislative instrument, designate that a country is a regional processing country –

Under (1A), it can only pick one country in an instrument, and (1B) is the provision that says that the designation does not take effect until it is laid before Parliament for five sitting days with nothing happening, or it is laid before Parliament and Parliament takes a vote to pass it or approve it.  So, Parliament does not have to do anything and five days later the Minister’s designation takes effect, under this subdivision.

As it happens, as you may be aware in this case, and the stated facts set it out, it was laid before Parliament, the Minister’s designation, and Parliament, both Houses approved it, and we say there were problems with that and I will point out what the problems were but it does have in a sense the knowledge of Parliament in this case.  Subsection (2):

The only condition for the exercise of the power under subsection (1) is that the Minister thinks that it is in the national interest to designate the country to be a regional processing country. 

“National interest” is not defined.  There are many decisions on what the national interest is and we accept that it is an expression of wide import but we say the provisions preceding that and the provisions that follow that inform what the meaning and content of “national interest” is in this case.  Subsection (3):

In considering the national interest for the purposes of subsection (2), the Minister:

(a)must have regard to whether or not the country has given Australia any assurances to the effect that:

(i)the country will not –

essentially refoule the refugee or refugee applicant to his or her home country and, secondly, that:

the country will make an assessment, or permit an assessment to be made, of whether or not the person –

is a refugee under Article 1A of the Refugees Convention and that harkens back to section 36(2)(aa) of the Migration Act.  That is the provision that deals with the refugee protection visa and it deals with the specifics of the Refugee Convention and what is required, so as not to refoule a refugee, sending him or her back to his home country.  So that is 36(2)(aa).

Then the Minister may have regard to any other matter which in the opinion of the Minister relates to the national interest.  Subsection 4 provides that the assurances in (3)(a) need not be legally binding, even though they are mandatory considerations.  The section is headed “must have regard to” these two features.  We say that is significant.  They are mandatory considerations but the assurances that are given need not be legally binding so we say that is a key to understanding this entire division. 

The reason is it may not be any more than an agreement between the countries, a discussion between the countries.  It only has to be an assurance and the assurance, if it is accepted by the relevant Minister and it turns out to be bad, the Act does not provide any remedy if it is an assurance that is unreliable or it cannot be fulfilled or the conditions necessary for refugees or refugee applicants to be assessed in the third country that they are being forcibly taken to are not yet established.  It does not matter.

That is partly why we say it is bad in a constitutional sense because it provides - the argument will be it is bad because it provides for not only the deportation or removal of people from Australia but for them to be dealt with in another place, for them to be subject to regional processing, as it is called, in another place, all based on the edifice of subsections (3) and (4), namely, not necessarily legally binding assurance.

FRENCH CJ:   What does “legally binding” mean there?  Is that in international law, or in some other sense?

MR ROBINSON:   I think it must be, your Honour.  It must be with recourse to an international court, or some sort of compact, a treaty perhaps, and it would be a treaty, in my submission, that would likely render breach thereof to the legally – legally binding must mean legally enforceable, in my submission, but it is a lot more than what we have got here which is a memorandum of understanding that I will take your Honours to in a moment. 

The subsection (5) is that the power, the primary power under subsection (1), may only be exercised by the Minister personally, and that is significant in characterising the power as an exercise of administrative discretion.  Notwithstanding that Parliament has had its hands on it, or Parliament let it lie for a few days, that it is the nature of the power at its essence is an administrative decision made by the Minister.

Subsection (6), if the Minister designates, then he may revoke.  Again, the Minister retains the power to create it, and the Minister retains the power to revoke it, and it is entirely, we say, not legislative – even though it is called a legislative instrument, we do not submit that it has that character, it is much more like an administrative decision.  Our final submission on that is that it will not matter to your Honours, because whether it has a legislative character or a delegated legislative character, or an administrative character, it is still bad, in my submission, and it is bad for the reasons which we explain.

Subsection (7) says natural justice does not apply, and 198AC is an important provision.  These are the documents which must be laid before Parliament after a Minister designates a country to be a regional processing country.  Subsection (2):

The Minister must cause to be laid –

again, a mandatory requirement, and we say all of these inform the national interest question a section ago:

(a)     a copy of the designation; and

(b)     a statement of the Minister’s reasons –

Again, those reasons must include, or must refer to, any assurances of a kind in 198AB(3)(a), that have been given to the country.  In other words, the mandatory consideration to preserve, or designed to preserve some semblance of keeping the Convention, the Refugee Convention, alive is also referred to here, the Minister must take particular care to tell Parliament how it is that refugees are going to be dealt with.

HAYNE J:   Well, are you not collapsing two separate points into one?  The mandatory requirement under 198AB(3)(a)(i) is whether an assurance has been given, not the mandatory consideration that an assurance has been given, and what is to be laid before the House is a statement of reasons referring to any assurance – assurances that have been given.  Is not the presupposition that there may be a declaration even if no assurances are given?

MR ROBINSON:   Correct, your Honour.  But it is designed to be a red flag, presumably to Parliament, to say if there have not been assurances given or if there is nothing to protect in the convention sense, then at least that is thereby its absence or that will be discussed specifically in the statement of reasons.  I think that is the intention, your Honour, but I accept what your Honour has said.  There also must be laid before Parliament an advice received from the Office of the United Nations High Commissioner for Refugees, the UNHCR.

FRENCH CJ:   Is there anywhere else any obligation to engage in such consultations?

MR ROBINSON:   Not expressly, your Honour.  What we say in the submissions is that subsection (d) and (e) combined, in Parliament spelling out that the Minister is obliged to lay these documents before Parliament, then that must feed into or inform the Minister’s discretion in the earlier section, the preceding section, when he is to make a decision in the national interest.  We say when reading these two sections together, or reading the subdivision as a whole, it must be so important that the Minister is obliged not only to engage in consultations with the UNHCR but he is to table the UNHCR advice that has derived from those consultations.  Of course, that did not happen here at all, and the UNHCR advice was tabled in Parliament but only after Parliament had approved the regional processing determination.

FRENCH CJ:   The advice was sent, I think, on the same day that the designation was made, was it not, 9 October?

MR ROBINSON:   Correct, and he received it the next day.  It had gone through the lower house the first day with nothing being received.  But on the second day, the Minister received it, did not table it as it went through the Senate, tabled it after it went through the Senate and it was tabled as a bare tabling.  It had already been approved by the Senate.  So the lower house and the upper house never had a copy of the UNHCR document.  The Minister must also, (f) table a statement “about any arrangements that are in place”, and there is a document there with the word “arrangements” on it, and it is most unsatisfactory.  I will take your Honours ‑ ‑ ‑

FRENCH CJ:   That is called a statement of arrangements, that document?

MR ROBINSON:   It is called a statement of arrangements.  It basically says this is what we will do sometime in the future.  I will take your Honours to that in a moment.  Subsection (3):

The Minister must comply with –

this laying of documents at subsection (2) –

within 2 sitting days –

of the designation being made –

The sole purpose of laying the documents . . . before the Parliament is to inform the Parliament . . . and nothing in the documents affects the validity of the designation.  Similarly, the fact that some or all of the documents do not exist does not affect the validity of the designation.

That is not the case here, of course, because we complain, as your Honours may know, about the UNHCR letter which was received but was not placed before Parliament at the relevant time, and it is a document that did exist.  Subsection (5) is –

A failure to comply with this section –

and it is not clear what that means –

does not affect the validity of the designation.

Then there is the next provision which is the subject of constitutional challenge, 198AD.  It provides for unauthorised maritime arrivals who are detained, and they must be detained compulsorily under 189 to be taken to a regional processing country.  The requirement is in subsection (2):

An officer must, as soon as reasonably practicable, take an unauthorised maritime arrival to whom this section applies from Australia to a regional processing country.

The relevant section after that is subsection (5), there must be a ministerial direction, and we challenge this administrative decision.  It says that:

If there are 2 or more regional processing countries, the Minister must, in writing, direct an officer to take an unauthorised maritime arrival . . . under subsection (2) to the regional processing country specified by the Minister in the direction.

So the administrative challenge in this case ‑ your Honours appreciate there is a constitutional challenge to two sections I have taken you to, there is an administrative challenge to the designation decision designating Papua New Guinea, and to this decision made under this subsection which we say is invalid.  I will take you to that.  The other divisions, briefly, of note are ‑ ‑ ‑

HAYNE J:   Before you part from 198AD(2) and (5), do they by their terms suggest that designation at least ordinarily will not, perhaps cannot, occur without the designated country having given an indication of willingness to receive?

MR ROBINSON:   Your Honour, the country must indicate that it accepts them.  Section 198AG says that the country can say “I don’t want Fred or I don’t want George” and 198 does not apply in that circumstance otherwise.

HAYNE J:   Exactly so, 198AG concerns specific persons ‑ it may not be limited to specific persons, I do not know – but my question remains, does AD(2) and (5) together support a construction of the power to designate as being exercisable only in circumstances where the intended country of designation has indicated a general willingness to receive?

MR ROBINSON:   I do not think that question is addressed, your Honour.  I think the subdivision is predicated on the willingness of the third country to receive a stream of unauthorised arrivals from Australia and it is not really addressed.

CRENNAN J:   May I ask you, does this section of the Act, the regional processing section, should that be considered in the light of what has been said in a number of cases, namely, that the Convention – and I know you have noted section 36(2) – guards the sovereign right of countries to determine who should be allowed to enter?

MR ROBINSON:   I do not think it deals with that all, your Honour.  I think what it is intended to preserve is to preserve the operation of the Convention on the face of it, but when one looks at it carefully, in my submission, the Convention can be flouted here.  We say, the Convention can be ignored here, and that can be done by sending people, on the face of these provisions alone ‑ by entering into an agreement that is not a valid agreement, or an understanding between a country and Australia, that is an unreliable country, an unreliable agreement, and sending people in circumstances where there is a risk of refoulement, and that, in and of itself, in my submission, would constitute an arguable breach of the Refugees Convention.

So, even though there is a semblance of preserving the Convention and the high principles of the Convention and non‑refoulement, in my submission, it does not create a watertight situation where people will definitely not be sent back to their home countries.  The situation here is, we have – as I will show your Honours with the documents shortly – we have a memorandum of understanding with Papua New Guinea, that is all it is, it is not legally binding, it is not an agreement, not a contract, not a treaty – and it is unenforceable, and at the time we made it, they had no facilities, no legal system, no infrastructure, and no ability to deal with refugees.  They did not even have a single refugee officer, no‑one who could deal with a refugee claim.  All of that is set out in very plain terms in the letter from the UNHCR, which the Minister did not wait for.

KIEFEL J:   Can I just interrupt you there, just so that I understand the process – Subdivision B, I take it, does not make any reference to the ability of an unauthorised maritime arrival person to make a claim for a protection visa, to make an application?

MR ROBINSON:   No, your Honour.  There is an application ‑ ‑ ‑

KIEFEL J:   It is silent on it, is that it?

MR ROBINSON:   It is silent on that precise question.  The only way it comes close is there is an ability to go to the Minister and say, “please do not take me”, and the Minister can pluck ‑ ‑ ‑

KIEFEL J:   But that is removal.  I am just focusing on the – it says nothing about the ability of the person to make an application for a protection visa.  The way in which it works is if there is a designation direction in place, a person is simply taken.

MR ROBINSON:   Correct.  Whether they are a refugee applicant or not, because they are – presumably they have come by boat, your Honour, they are an unauthorised maritime arrival.

KIEFEL J:   Section 46A(1), of course, says that a person who is an unauthorised maritime arrival cannot make a valid application for a protection visa, unless, as later provisions provide, the Minister exempts them from the operation.

MR ROBINSON:   That is the beginning of the executive decision‑ making ‑ ‑ ‑

KIEFEL J:   But, Subdivision B would not seem to contemplate that even that comes into play.

MR ROBINSON:   No, your Honour, it does not.

FRENCH CJ:   There is nothing, however, to prevent a person as, I think, occurred in this case, from making a claim for protection under the terms of the Convention.  It just then runs up against the domestic law provisions to which Justice Kiefel was referring.

MR ROBINSON:   That is correct.  What happened in this particular case, he landed in Australia, he made an application for asylum, as it were, and within a short time he was literally picked up and taken to Papua New Guinea and left there and he is still there today.  But it does not have any mechanisms for sorting through the three different kinds:  the people who are not refugees; the people who are refugee applicants, as in formally; or the people who are going through the independent merits review system.  It makes no delineation between the two.  It pulls right back and talks about the Convention for Refugees at a very high level and says, in any event you all go to the processing country.

KIEFEL J:   Just for completeness, do I take it that the Minister gave no consideration to whether a determination should be made under section 46A?

MR ROBINSON:   No, your Honour.

KIEFEL J:   There is no suggestion of that having occurred?

MR ROBINSON:   There is certainly not in this case.  Just to answer further your Honour Justice Crennan’s question, the other scenario is, in this case, this Act does not make – this subdivision does not make any provision for a person who is coming from the third country seeking refugee status in Australia.  Along with the other three categories I just mentioned, he or she will be sent straight back automatically through this process and will thereby instantly be refouled.  For example, someone comes here from Papua New Guinea, claims refugee status in Australia for whatever reason, he or she will fall in this process, will be sent directly back to Papua New Guinea.

FRENCH CJ:   Unless the Minister disapplies the provision to him?

MR ROBINSON:   Correct.

CRENNAN J:   But then you use the word “refoule”.  That would be assuming that persecution was alleged in that site, that country?

MR ROBINSON:   That is right, and it is not out of the realm of possibility, your Honour, that we could choose a country ‑ ‑ ‑

CRENNAN J:   That is not part of this case, as I understand it.

MR ROBINSON:   No, your Honour, I am simply going through scenarios on the Act itself.  I am not suggesting it is part of this Act.  I am suggesting that it is part of the inequity that this Act operates on, so deep that your Honours may be moved to – we ask your Honours to set it aside.  It does not just go to the proportionality argument either; it goes to the sufficiency of connection argument that I will come to hopefully today.

KIEFEL J:   Just in relation to when the Minister might consider that there is a question of refoulement, the only consideration under this subdivision is 198AE(1), is that right, that it is in the public interest not to do so?

MR ROBINSON:   That is correct, your Honour.

KIEFEL J:   That really would not be necessarily consistent with a consideration as to the Convention obligation of non‑refoulement.

MR ROBINSON:   No, your Honour, and to make it even more difficult, Parliament has chosen to use national interest as the test in one section and public interest as the test in this section and it is not very clear, to say the least, why that is done, but it is not expanded there.  That is the only place where the Minister can say, “You can stay”.

The other two provisions – I will work backwards if I may for these two provisions – 198B - it is the first provision at Subdivision C.  It deals with transitory persons.  Transitory persons, I would ask your Honours to accept, are people being dealt with under 198AB.  I have set out the definition at page 2 of the outline of oral argument, page 2 at the top.  “Transitory person” means:

a person who was taken to a regional processing country under section 198AD.

So after you have been taken, the person who was an unauthorised maritime arrival who is brought to Australia under 198B for a temporary purpose, the person no longer need be in Australia for the temporary purpose.  I am sorry, your Honours, I have jumped to the wrong section.  Section 198B:

An officer may, for a temporary purpose, bring a transitory person to Australia from a country or place outside Australia.

The Act operates in a continuing way.

FRENCH CJ:   Now this might be, for example, would it, for the purpose of bringing someone to give evidence in a prosecution of a people smuggler?

MR ROBINSON:   Indeed, or bringing someone who is injured in a riot, which is probably a more apt example, to Australia for treatment.  The provision that says you should bring them back is 198AH, and that is essentially the power that says you bring them back.  Our essential point on these two provisions, 198B and 198AH, is it does not look like deportation.  It looks like sending someone to a third country for processing of some kind by us or by someone, and enabling us to sweep them up, bring them back and take them back when needed for a temporary purpose that is undefined/unqualified.

KIEFEL J:   Are you saying that section 198B(1) contemplates that there must be an arrangement in place with the country that is designated to that effect?

MR ROBINSON:   There has to be an arrangement, in my submission, because transitory persons, apart from a couple of other ‑ ‑ ‑

KIEFEL J:   Because an officer of the Commonwealth could not enter another country and take a person out without an agreement of the other country.

MR ROBINSON:   It is more fundamental than that, your Honour ‑ ‑ ‑

KIEFEL J:   I thought that was fairly fundamental.

MR ROBINSON:   It is because they were taken to a regional processing country under the definition in 5(1).  Because they were taken to this country under 198AD, then one assumes that the things that your Honour has just mentioned are in place.  If they have lasted that long, there is nothing to say that this memorandum of understanding can continue.  It might fall away.  But in any event, the designation might still be valid and if it is still valid people can be swept up by Australia and brought back to Australia and dealt with in some undefined fashion.  One might be for the purposes of giving evidence, one might be to fix them when they are broken or beaten and return them back to the third country.

HAYNE J:   Well, there may be enlivened a question ‑ ‑ ‑

MR ROBINSON:   A what, sorry?

HAYNE J:   There may be enlivened a question about who is the custodian of the person concerned or, perhaps, who are the custodians of the persons concerned that we find the Australian Act dealing with transitory persons when they are defined as a person who was taken to another country.

MR ROBINSON:   Yes, I accept that, your Honour.  In a moment, I will show you the UNHCR document and the concern of the Commissioner was that very thing and the Commissioner said, you should not be doing it.  Australia should not be doing it and if it did it, it should be doing it as a partner, a global partner with Papua New Guinea and caring for and dealing with the refugee applicants, as it were, over there - in for a penny and in for a pound.  It should not ‑ ‑ ‑

KIEFEL J:   But the question for us depends upon reading the statute, does it not?

MR ROBINSON:   I accept that, your Honour.  I will show you that report because even though we have a constitutional case and in terms of the necessary material for the constitutional case, apart from the expert’s report which I will take you to next, the other material is for the judicial review case, but that ‑ ‑ ‑

HAYNE J:   At the risk of returning to a point which you have hitherto repelled, if, on reading the provisions, one were to form the view that designation presupposes arrangement to receive, a question may then emerge about the terms of the arrangement to receive and what follows from that?  Now, those are I think not questions raised in this litigation.

MR ROBINSON:   They are not, your Honour, but they are questions that your Honours can have regard to when your Honours consider the constitutional aspects of it.  Your Honours can ‑ ‑ ‑

HAYNE J:   I am going to answer the stated case.  I am not going to answer some hypothetical question, Mr Robinson.

MR ROBINSON:   I accept that, your Honour.

HAYNE J:   You have to proceed on the basis that if it is not raised by the litigation, I am not going to be looking at it.

MR ROBINSON:   I hear your Honour but, in my submission, your Honours are not limited on the constitutional case.  Your Honours are only limited by what your Honours can divine from the words of the section and, in my submission, the subdivision here allows for a considerable amount of activity by Australia, outside the country, when we have taken them and it goes well outside the limits of the relevant heads of power and, in any event, there is no reason why what your Honour said cannot be part of the national interest question, whose doors may not be able to be closed except in review by this Court and we have not taken head on in the admin challenge the discretion of the Minister in his national interest, so even that is not strictly a part of the challenge in these proceedings, your Honours.  Can I take your Honours to the blue book, the expert’s report, which  ‑ ‑ ‑

FRENCH CJ:   Page number?

MR ROBINSON:   Page number 51.  It goes for a couple of hundred pages.  I will just take your Honours to the sections which we rely on.  Your Honours appreciate that this is a document that was created at the request of the Commonwealth, and the government of the day accepted it – I will show your Honours were that happened ‑ and out of that came Subdivision B, that I have just taken your Honours to, so this is a document that was referred to in the second reading speeches.  Before I do that, your Honours, I apologise – can I take your Honours to the second reading speeches?

FRENCH CJ:   Now, how is this feeding into your constitutional argument?

MR ROBINSON:   The main documents for the constitutional argument are the sections itself and the second reading that I am about to take your Honours to.

FRENCH CJ:   How does that feed into the constitutional argument?  Does it inform the construction of the sections before we look to validity?

MR ROBINSON:   Yes, yes it does.  It informs the construction of the sections, and if your Honours were to – as your Honours have seen in our submissions, we are asking for your Honours to look at proportionality as a way, or an aid, to your Honours in dealing with sufficiency of connection in relation to all three of the head of powers that we address in the submissions.  That is the essence of it, your Honours.  We say that there are passages in the second reading speech that will assist in that exercise.  If I could take your Honours, I have handed up the second reading speech.  The primary passages from this, your Honours are, in the first page, which is 8694, this is Mr Chris Bowen speaking, on the right‑hand side of the page, third paragraph, at point 4, it says ‑ ‑ ‑

HAYNE J:   Is this the second reading speech?  It seems to be a summing‑up speech.

MR ROBINSON:   Second reading is on the front page, your Honour.

HAYNE J:  

I am very pleased to sum up this debate on –

is the way the speech begins?  It is an unusual form of second reading speech.

MR ROBINSON:   Well, your Honour, there was a go at this in 2011, and the Bill lapsed, after being debated as I understand it, and this is the additional time this material has come back before the Parliament.  It may be, your Honour, that he was referring to.  Third paragraph on the right:

The underlying principle of their recommendations –

that is the expert panel –

is that people who arrive by boat should receive no advantage in their processing.

I will show your Honours where that is in the report itself.  And on the right‑hand side of the next page, first three lines of page 8695.  Your Honour, see at the bottom of that column, it says, “Bill read a second time”, but at the top of the page:

This is a very significant day.  It is important that this legislation pass, because the executive should be able to implement offshore processing.

Now, we say that that is a heavily pregnant sentence, because it reveals what is described in the Act itself, in the subdivision itself.  The Executive here is seeking to implement offshore processing.  It does not say we are deporting people for them to be processed by somebody else or somewhere else.  It says the Bill was designed to permit implementation of offshore processing by the Australian executive, and we say that is what is really happening here, in any event.

The next document is an extract of the explanatory memorandum, the revised explanatory memorandum.  I have not given your Honours the section by section depiction, but on page 2, the heading “Outline”, the third substantive paragraph starting with:

This Bill implements key recommendations of the Report of the Expert Panel . . . These recommendations relate to arrangements to allow for regional processing of irregular maritime arrivals (IMAs) to Australia.

Two paragraphs on –

The purpose of the amendments in this Bill is to address that High Court decision –

and that is the one in the paragraph above, of course, M70 –

in order to allow for regional processing of claims of offshore entry persons to be refugees.  The amendments will ensure that the Government is able to implement the regional processing arrangements that are now envisaged ‑

again, the government is implementing –

The amendments will ensure that the government of the day can determine the border protection policy that it believes is in the national interest.

In my submission, they are matters which go to the constitutional argument that we will come to in a moment.  I will take your Honours to the documents first, if I may; the blue book at page 51, a significant document.  I should point out to your Honours at page 51 at line 18 your Honours will see they are talking about the recommendations of the report in that paragraph and they say that:

They also recommend disincentives to irregular maritime voyages to Australia by establishing a clear ‘no advantage’ principle whereby asylum seekers gain no benefit by choosing not to seek protection through established mechanisms.  These recommendations put a fundamental emphasis on fairness and reasonableness.

Your Honours will see a fair bit in the material about the “no advantage” principle, or in this case the “no benefit”, it is also called the “no benefit” principle.  Your Honours will appreciate that the expert report was founded on that principle in part and your Honours will see it throughout the material, and your Honours will see it carry over to Papua New Guinea, and we say that is not something that is acceptable at a number of levels.  Recommendation 1 is at page 57, from lines 18 to 30:

the . . . principles should shape Australian policymaking on asylum seeker issues –

and the third last bullet point:

·The application of a ‘no advantage’ principle to ensure that no benefit is gained through circumventing regular migration arrangements.

and lastly:

·Adherence by Australia to its international obligations.

The final recommendations of the expert’s report include page 184 at line 40, and it says that it is – it is suggesting maybe making changes to the Migrations Regulations 1994.  That did not happen.  What happened is the subdivision that your Honours have seen earlier, but the intention was to ensure that the principle of “no advantage” can be implemented in relation to the IMAs being processed pursuant to regional arrangements.  So we say that is significant.  The next document ‑ ‑ ‑

FRENCH CJ:   Just so I can understand where you are going with this, is this all, so far as it relates to the – relevant to the aliens power argument, is this all feeding in to paragraph 25 of your submissions and what Justice Gaudron said in Lim?

MR ROBINSON:   Yes, your Honour, yes.  It is not just deportation and it should ‑ to the extent that it goes outside deportation, it is bad.  In this case we say it goes way outside deportation.  It goes to having them in another country, having been processed, and having them wait a long time to be processed ‑ ‑ ‑

FRENCH CJ:   So you say on that account it cannot be a law with respect to aliens?

MR ROBINSON:   Correct, and we think Lim provides sufficient support for that contention, your Honour.  The next document is the memorandum of understanding.  There was an earlier memorandum between Australia – it is at page 206.  There was an earlier memorandum, but your Honours do not need to be troubled by it.  There was a later memorandum which is irrelevant to the challenge to the designation decision in the administrative law challenge.  So this is the only one that is significant, in my submission. 

The memorandum clearly relates to the subdivision that your Honours have looked at.  It is about transfer and assessment, transfer of persons and their assessment in Papua New Guinea, and it talks about regional co‑operation and appreciation in the opening paragraphs.  At page 207 at line 29, the last bullet point under “Recognising”, it recognises:

the need to ensure, so far as is possible, that no benefit is gained through circumventing regular migration arrangements –

So it is quite clear that the “no advantage”, “no benefit” principle that had been implemented in Australia, been recommended by the experts group as a fundamental principle, is being implemented in Papua New Guinea by the memorandum of understanding between the two countries.  The guiding principles of this arrangement are over at 208 at line 28, paragraph numbered 4.  It says:

All activities undertaken in relation to this MOU will be conducted in accordance with international law and the international obligations of the respective Participant -

even though when I come to show your Honours the reasons for the Minister’s decision, he did not really turn his mind to it.

The Government of Australia will conduct all activities . . . in accordance with its Constitution and all relevant domestic laws –

So will Papua New Guinea under 6, and under 7 Australia pays for it all.  At page 209, the key provision is 9, where:

Australia may Transfer and Papua New Guinea will accept Transferees‑

and 10:

Administrative measures giving effect to this MOU will be settled between the Participants.

Note that they are not yet settled and the administrative arrangements make it quite plain that at the time Papua New Guinea was designated a regional processing country.  There was not much there, there was not much settled, and there was much work to do, and this memorandum recognises that because ‑ ‑ ‑

FRENCH CJ:   Now, you have relied on the second reading speech, or whatever that speech is, and the expert panel report as indicating an impermissible – a constitutionally impermissible purpose.

MR ROBINSON:   Yes, your Honour.

FRENCH CJ:   Which goes into characterisation of the relevant provisions.  This, of course, is a particular MOU, relevant to a particular country so this is going to the administrative law case, is it?

MR ROBINSON:   Correct, your Honour.  I should have said so.

FRENCH CJ:   Yes.

MR ROBINSON:   The expert’s report is in the nature of an interpretive instrument in any event.  It is mentioned in the second reading speech and it is hailed as the report from which the division, subdivision was drawn.  But this document and the others that I would hope to take your Honours to now, do not form part of the constitutional case.  Is it convenient to do that, your Honour?

FRENCH CJ:   Yes, you might as well do it altogether.

MR ROBINSON:   At the bottom of page 209, it is important that the participant – at paragraph 15:

The Participants will ensure that the Transferees will be treated with dignity and respect and that relevant human rights standards are met.

Also, paragraph 12, that:

Papua New Guinea will host an Assessment Centre –

that is a refugee assessment centre –

in Manus Province or elsewhere in Papua New Guinea for the purposes of this MOU.

There was not a site, there was not a place at the time that this agreement had been instituted.  There was nothing.  Your Honours will see later there were just tents, a few tents ready to receive a few transferees.  It was done either in unseemly haste or many, many months before it ought to have been done.  The assurance that is given on page 210, at paragraph 18:

Papua New Guinea assures the Government of Australia that it will –

not expel or transfer to another country refugees, as it were, or make an assessment – and it will make an assessment about whether or not they are refugees.

FRENCH CJ:   These are the assurances to which the Minister referred in his reasons for the designation of Papua New Guinea.

MR ROBINSON:   Correct, correct.  This is dated 8 September 2012, and the Minister’s decision was one month and one day later, your Honour.  It was these assurances that the Minister was referring to.  The Minister then wrote, at page 213, to the High Commissioner for Refugees.  He said that, your Honours will see at line 27:

the Australian Government has announced our intention to give effect to the recommendations by the Expert Panel -

He asked for the Commissioner’s views on 4 September, that we had been negotiating with Papua New Guinea and he now seeks your views on the designation of Papua New Guinea “as a regional processing country”.  The section of the Act that is relied on, he says I need to, under 198AC:

I am required to table in Parliament a statement about consultations . . . and a summary of any advice received from UNHCR –

and over the page, second last paragraph –

Consequently, I would be grateful for your views on the possible designation of PNG –

et cetera, for the purposes of 198AB, so for the purposes of designating Papua New Guinea as a regional processing country.  Then there was a submission made to the Minister, an issues paper or a briefing note.  That appears at page 217, and the Minister was told a number of things by the department.  It is a significant document, but there is nothing in it ‑ ‑ ‑

FRENCH CJ:   There is a version of this document in the book, I think, which has the Minister’s signature on it, and he circled yes’s and no’s and so forth.

MR ROBINSON:   That is correct, your Honour.  Not in this one; this is the unsigned one, but there is another one later on ‑ ‑ ‑

FRENCH CJ:   But is this any different?

MR ROBINSON:   No, it is exactly the same, your Honour.  This talks about the arrangements and the proposals in Papua New Guinea; for example, at page 221 at paragraph 29, there is:

A summary of the arrangements that are in place in PNG and that are proposed to be put in place in PNG if you decide to designate PNG –

The Minister is given this document, the Minister is given the summary of arrangements and the Minister is given a draft statement of reasons for him to sign.  Australia’s international obligations are dealt with at paragraph 32 on that same page, and the department says:

it is not inconsistent with Australia’s international obligations for Australia to transfer an offshore entry person to another country –

in the following circumstances.  Paragraph 33 says something strange which comes into the Minister’s decision:

The content of Australia’s international obligations is contestable.  In particular, a variety of views are held by lawyers, academics, non‑government organisations and others as to the content of the relevant international obligations, some of which differ from those held by the Department.

It is not clear what this means, your Honours, and it made its way into the Minister’s decision verbatim, almost verbatim.  Then the Minister is told it is open – in the middle of paragraph 34:

it is open to you to think that it is not inconsistent with Australia’s international obligations (including but not limited to Australia’s obligations under the Refugees Convention) to designate PNG as a regional processing country.

It is not very comprehensive advice, but it is all the Minister was given on international considerations and international conventions.  They then say at 35:

even if the designation . . . is inconsistent with Australia’s international obligations, it is nevertheless open to you to think that it is in the national interest to designate PNG to be a regional processing country.

and at the bottom of 36, they offer him a briefing note on this if he wants it, and there is no evidence that that offer was ever taken up by the Minister.

FRENCH CJ:   Paragraphs 35 and so forth and 33 were reproduced in the statement of reasons, were they not?

MR ROBINSON:   Essentially, yes, your Honour.

FRENCH CJ:   Yes, all right.

MR ROBINSON:   Then the consultation with the UNHCR, which is a significant issue in our judicial review case - he wrote to the UNHCR and as at 8 October 2012, which was the day before the designation decision, this briefing note, the day before, the Minister had not provided its response.  Now, your Honours will see that that is six days later.  He wrote and six days later had not received a response and the next day made his designation decision.

FRENCH CJ:   There were discussions, were there not, between officers of his Department and an officer of the UNHCR on 2 October?

MR ROBINSON:   From time to time, your Honour, there were discussions ‑ ‑ ‑

FRENCH CJ:   But it is specifically referred to, I think, is it not?

MR ROBINSON:   ‑ ‑ ‑ and a note of those discussions is here.  I will show your Honours where that is but in terms of the formal letter from the Minister directly to the UNHCR, he did not give any deadline.  There was no, please come back to me because I need to make a declaration by 9 October this year; seven days away, I need to make a declaration.  There was not any of that and six days later he gets this briefing note and the next day he makes his designation of Papua New Guinea.  It is a very tight turn around.  But the Department says at page 222 at paragraph 38, down the bottom:

UNHCR has not provided [its] response . . . While a summary of any advice received . . . should be tabled in Parliament . . . that wording contemplates there may not be any such advice.  In addition, s 198AC(5) makes it clear that a failure to comply with s 198AC does not affect the validity of the determination.

We say in our case, as your Honours are aware, that the receipt of the UNHCR’s advice is a mandatory requirement under the subdivision and he did not get it and therefore the decision is vitiated.  It is worth noting at page 223 at paragraph 46, that the day before the ministerial determination was made, that is when people could be starting to be transferred:

The Department does not expect to be able to effect transfers to PNG until the week of 22 October 2012 –

and this document is – sorry your Honours, well, it is at least 8 October.  At paragraph 46 -

which is the date by which the department expects infrastructure, staff/service provider accommodation and relevant service providers to be in place.  As a result, there may be some public criticism about any period –

It is dated 9th –

there may be some public criticism about any period between the designation of PNG as a regional processing country and the first transfers to PNG.

FRENCH CJ:   Well, the Minister signed off on the signed version of these documents, of this submission on the 9th I think, which is the same date he made the designation.

MR ROBINSON:   That is right, your Honour.  Page 251 is the signed version that your Honour spoke of a moment ago.  The summary of arrangements is at page 233.  It is undated, it is unsigned, and significantly, paragraph 1:

This document sets out the arrangements that are in place or are to be put in place –

and sub(2)(c) –

Details regarding this proposal are still being worked through.

So this is really, in essence, a negotiation document, or just an information document that things are still being worked out.  For example, at “Accommodation”, under paragraph 4:

Initially, transferees will be accommodated in a combination of refurbished buildings and newly constructed tent accommodation.

Then, it sets out their size.  There may be 150 beds, a few weeks later, by mid‑October, and a further 355 late October.  It goes on to talk about the temporary site arrangements.  Paragraph 7, over the page:

Once a suitable permanent site is agreed, work will immediately commence to establish a facility for up to 600 clients.

So, this agreement was done, and then the work started, and people being transferred had a situation where even the site to house these refugees had not been determined:

Medical facilities will be provided –

all of this is aspirational, if anything, and the Global Four Falck Solutions, at paragraph 15 are going to support the operation of the centre, and they have appointed security, catering, cleaning and facilities, and 16:

All service providers are expected to be actively engaged with each other –

Again, this unsigned, undated, unattributed document that ‑ ‑ ‑

HAYNE J:   Well, what is the legal or factual proposition that you are advancing by reference to these documents?

MR ROBINSON:   Your Honour, we argue a legal unreasonableness case, in our administrative law challenge, and it will go to that.  The statement of ‑ ‑ ‑

KIEFEL J:   Can I just interrupt you there?  This document says that the PNG government is undertaking the refugee status determinations, or that they “will be made under PNG law”, it does not actually say that it is doing it, but they “will be made under PNG law”.

MR ROBINSON:   Yes, your Honour.

KIEFEL J:   The provision of the site, and under paragraph 15, security et cetera, it does not actually say who is providing this.

MR ROBINSON:   No, your Honour.

KIEFEL J:   It may be relevant to the question Justice Hayne asked earlier about who are the custodians.

MR ROBINSON:   Indeed, your Honour.  Our essential position on that is Australia has effective control over the detainees.

KIEFEL J:   Are you able to show that from the documents?

MR ROBINSON:   I can show that not only from the documents, but from the formal arrangements between the two.  I will make that good and ‑ ‑ ‑

HAYNE J:   To what aspect of your case would that proposition go?

MR ROBINSON:   To bring him home, your Honour.  We act for a man who ‑ ‑ ‑

HAYNE J:   We have got a stated case before us, Mr Robinson.  To what aspect of the stated case would that proposition go?

MR ROBINSON:   It involves the third ground that we challenge, that is, the decision to physically take my client to Papua New Guinea.  In terms of the stated case formally your Honour would likely remit that to another court.  It does not formally arise in this case, in the stated case but, in my submission, it would still be relevant to Wednesbury unreasonableness and the validity of the decision to designate either Papua New Guinea or Nauru, and it might be relevant to the Minister’s determination to designate Papua New Guinea a regional processing country.

At page 249 is the statement that the Chief Justice mentioned a moment ago where there is a record of some consultations with the UNHCR.  These consultations and notes do not specifically relate to a formal request to designate PNG under section 198AB, although it is mentioned briefly in their discussions.  It does not equate to the formal consultation that occurred with the Minister’s letter that I took your Honours to a moment ago, but there were discussions, of course, between the High Commissioner and his staff from time to time with representatives of the Minister or the Minister’s Department.

At page 251 is the formal acceptance of the Department’s recommendations by the Minister.  At page 253 is the first decision under review, that is, the designation decision of 9 October 2012.  At page 255 is the Minister’s statement of reasons.  There is nothing in there that is particular that I wish to draw your Honours’ attention to other than to say your Honours will need to read it because it is important.  But we do not make out in the administrative law case grounds of judicial review particularly by reference to any particular paragraph of this except for the last paragraph at 37 at page 264 where the Minister told Parliament, because this document was a document he had to lay before Parliament:

In considering whether I think it is in the national interest . . . in addition to the matters outlined above I have chosen not to have regard to international obligations or domestic law of PNG.

We say that that is a relevant consideration.  He said over the page about Australia’s international obligations at 263, at paragraph 34:

The content of Australia’s international obligations is contestable.

FRENCH CJ:   That just reflects the wording of the submission that you took us to.

MR ROBINSON:   That is correct.

FRENCH CJ:   I think you told me before that was reproduced in the reasons, and 36.

MR ROBINSON:   Just the first paragraph.  That is right, your Honour.  He also says at 36, repeating the words of the Department:

if the designation . . . is inconsistent with Australia’s international obligations, I nevertheless think that it is in the national interest to designate PNG to be a regional processing country.

So that picked up the Department’s advice and took it a little further and added national interest to it.  The next document which we say should have been before the Minister but was not before he made his designation decision is at 266, it is the UNHCR report.  Like the Minister’s statement of reasons, we say all of it is relevant.  Could I take your Honours briefly to the parts which are more relevant than others?  It is clear in the first paragraph at page 266 that he is pleased to be able to do it, pleased to be able to formally advise of his views.  Second paragraph:

UNHCR’s views are based on the information available to us at this time and I recognize that many of the important practical aspects of the arrangements, which are under active discussion between the Governments of Australia and Papua New Guinea, have yet to be finalized.

Again, something that is not fixed, not agreed and cannot be pointed to.  He says –

For that reason, UNHCR’s observations are necessarily general and subject to review as the operational arrangements become clearer.

Two paragraphs on at line 39 he is talking about –

arrangements to transfer asylum‑seekers to another country should normally only be pursued “as part of a burden‑sharing arrangement to more fairly distribute responsibilities and enhance available protection space” and when appropriate protection safeguards are in place in the countries involved.

Over the page he lists what he contends should be the arrangements.  He lists them in bullet point form.  For example:

·respect for the principle of non‑refoulement;

·the right to asylum . . . 

·respect for the principles of family unity . . . 

·humane reception conditions, including protection against arbitrary detention . . . 

·special procedures for vulnerable individuals . . . 

·durable solutions for refugees within a reasonable period.

Against the above background, it is not clear from the information available to us that the transfer of asylum‑seekers to Papua New Guinea, including the crucial element of legal responsibility, is fully appropriate.

Now, Parliament never saw this, but the UNHCR advised in those terms that it is not fully appropriate.  He also said in the next paragraph at the top:

It is UNHCR’s assessment that, in the current protection environment, there are several crucial challenges.  First of all, with regard to commitments under international law, Papua New Guinea has acceded to the 1951 Refugee Convention in 1986 but retains seven significant reservations that affect a range of social, economic and political rights to which refugees would ordinarily be entitled –

Over at the next paragraph –

Second, in considering Papua New Guinea’s legal framework at the domestic level, there is, at present, no effective national legal or regulatory framework to address refugee issues.

I cannot emphasise how significant that is in the scheme of these things, your Honours.  It simply ‑ ‑ ‑

FRENCH CJ:   Now, is it right to say that upon designation, subject to ministerial direction where there is more than one regional processing country, the obligation of officers of the Department to remove unauthorised maritime arrivals to regional processing countries is engaged immediately?

MR ROBINSON:   Correct, your Honour, immediately.  My learned friend says that they have to send them somewhere immediately to a regional processing centre in a country ‑ ‑ ‑

FRENCH CJ:   Well, as soon as reasonably practicable, I suppose is the ‑ ‑ ‑

MR ROBINSON:   As soon as practicable, but we say that you have to send them to where AD(5) says that you send; in other words, the Minister is required, he must make a declaration saying which one, if there is two, that they should be sent to.  But the Act does require that they be sent immediately.  The next section is at line 40 at page 267:

Importantly, there are currently no laws or procedures in place in the country –

that is Papua New Guinea –

for the determination of refugee status under the Refugee Convention.

Again, an awfully important point, if one is sending people to a third country where there is no legal regulatory framework and there is nothing to enable refugees to be determined or considered.  Then his third point is that –

there are a number of gaps in Papua New Guinea’s capacity to implement international obligations.  There are currently no immigration officers with the experience, skill or expertise to undertake refugee status determination under the Refugee Convention.

Parliament never knew this.  It makes further points over the page, but could I particularly direct your attention to the second‑last paragraph on page 268, second sentence:

In light of these various considerations, and barring receipt of information to the contrary, it is difficult to see how Papua New Guinea alone might meet the conditions set out in UNHCR’s paper on maritime interception and the processing of international protection claims.

FRENCH CJ:   Now, you are putting these before us, are you, not as evidence of the correctness of these statements, but as advice to which you say the Minister should have had regard?

MR ROBINSON:   Yes, your Honour, and in addition as a matter of your Honours’ discretion, because your Honours might say it does not matter that this was not received by the Minister, but in my submission, it plainly matters.  It also goes, your Honours, on to the second decision under review; that is, the direction decision to go one place or another place.  The Minister had this document later on before him – does not make any reference to it, clearly does not utilise it and, in my submission, it goes directly to that challenge.  At 40 on page 268 –

For the reasons set out above, it is UNHCR’s assessment that Papua New Guinea does not have the legal safeguards nor the competence or capacity to shoulder alone the responsibility of protecting and processing asylum‑seekers transferred by Australia.  At best, we would see the transfers as a shared and joint legal responsibility under the Refugee Convention and other applicable human rights instruments.

Over the page, at the top:

In this regard, the “no‑advantage” test –

or it is sometimes called the “no benefit” test –

the “no‑advantage” test endorsed by your Government contemplates a time frame that is assessed against and consistent with the period a refugee might face had s/he been assessed “by UNHCR within the regional processing arrangement.”  The practical implications are not fully clear to us.  The time it takes for resettlement referrals by UNHCR in South‑East Asia or elsewhere may not be a suitable comparator for the period that a Convention State, whose protection obligations are engaged, would need.  Moreover it will be difficult –

et cetera.  In other words, throughout this paragraph they say they are very concerned about transferees, as they call them, spending long periods of time in Papua New Guinea, longer than necessary, longer than those in South‑East Asia, just because they sought to, to use the expression that has been used, jump the queue and get on a boat to Australia and then to be transferred to Papua New Guinea and the UNHCR had deep reservations about that.

We say they are very weighty concerns which the Minister should have had in front of him and chose not to.  He chose not to by making the decision to go and designate Papua New Guinea after six days earlier he had written to the UNHCR and asked for his views.  Six days later he designated Papua New Guinea without waiting for the advice.  In my submission, that is unseemly haste.

There is another memorandum of understanding which I will simply note for your Honours at page 285.  This is very similar to the previous one and this you might wish to write on the first page, 5/6 of August 2013 and that is the date it was done.  It is similar to the other one but your Honours will see at page 286 at line 34, the last bullet point under “Recognising”.  Again, it has not been removed.  It is still there, that is:

the need to ensure . . . that no benefit is gained through circumventing regular migration arrangements –

This also could arguably invoke notions of punitive treatment, notwithstanding that 289, paragraph 17, they are still to:

treat the Transferees with dignity and respect –

They are just going to lock for a long time.

FRENCH CJ:   Well now, this document is after the event of the decision to which you challenge.

MR ROBINSON:   It is after the event, your Honour, I accept that.  The next relevant document is the second decision under challenge at 317.  This is decision – there are two decisions we are challenging in these proceedings, and this is the second.  It is made under 198AD, and it is in circumstances where there were two regional processing countries declared at the time, Papua New Guinea and Nauru.  So, if a person arrived in Australia and claimed refugee status, or even if they did not claim refugee status, if they came here by boat, they would be sent to one or other subject to the Minister’s direction under this section.  Well, the Minister made this direction, he told the officers under the Act he was told to specify and under this direction he did not specify, he said, “go to one or the other, depending on facilities and services and accommodation”.  In other words, make your own mind up.  Our challenge to that is spelled out in great detail in the written submissions that we have put to your Honours. 

Could I take your Honour to one document at 367, and that will be the last one.  Your Honours might note at the front of it that it is dated 23 or 30 April 2013, and it is the later administrative arrangements for the temporary processing centre on Manus Island.  This goes partly to answering your Honour Justice Kiefel’s question about effective control.  Your Honours will see in passing at page 368, this is an agreement between Australia, of course, and Papua New Guinea, I should have said.  The “no advantage” principles at line 32 at page 368 and it spells out, in a bit of detail, what it means:

Transferees should not be given any preferential treatment in the processing of their claims, and should receive no advantage (including in relation to, and timeframes for, resettlement) as a result of having undertaken or been intercepted in the process of undertaking irregular migration to Australia, compared to those persons who avail themselves of regular processing opportunities closer to their country of origin.

So, this is Papua New Guinea expressly undertaking to implement the expert panel’s “no advantage” policy – sometimes called the five year rule – but here called the “no advantage” or the “no benefit” policy.  It has got nothing to do with regional processing arrangements, but there is it.  It is a necessary part of the arrangements.  In terms of control – I am sorry, your Honours, it also appears at page 375 at 5.3, about line 25:

For Transferees determined to be in need of international protection –

that is, the refugees –

the Government of PNG will allow the Transferee to remain in PNG consistent with the ‘no advantage’ principle, unless a durable solution other than resettlement in Australia is found.

That is only for noting, your Honours.  Just give me a minute, your Honours – yes, I am sorry, 372, lines 30 to 50 set out the mechanism for control and operation of the subject detention centre in Papua New Guinea on Manus Island that my client is being held in.  There is an administrator appointed by the PNG Foreign Minister.  Then under 3.9:

The Administrator will delegate the day to day management and control of the Centre to an Operational Manager.

Under 3.10:

The Government of Australia will appoint an Australian official as a Coordinator to work with the Operational Manager to assist in the management and control of the Centre.

This is a document signed between Australia and Papua New Guinea.  So Australia is there with a man or woman as co‑ordinator working with the operational manager to assist in the management and control of the centre.

FRENCH CJ:   Does the reference to the “no advantage” principle in this document condition the length of time in which a transferee is held in detention on Manus Island?

MR ROBINSON:   Absolutely, your Honour, that is the whole point.  The expert panel makes it quite clear.  You come by boat, you have jumped the queue ‑ ‑ ‑

FRENCH CJ:   I am just asking what you say is your construction of the arrangement.

MR ROBINSON:   It is that, your Honour.  The Australian is, at 3.10, to assist, and then there is close liaison talked about at 3.11 in terms of the Australian co‑ordinator.  That person, now called the Australian co‑ordinator:

will be responsible for managing all Australian officials and service providers.  This will include –

contracts and so on -

The Coordinator will coordinate transfer of Transferees to and from the Centre ‑

That is the Australian co‑ordinator -

The Coordinator . . . will monitor the welfare, conduct and security of the Transferees –

and so on.  So your Honours will see from 3.10 to 3.13 the Australian appointee, the co‑ordinator, is doing a hell of a lot, almost everything to deal with the refugees and the detainees that are living in Manus Island right now.

BELL J:   Are these arrangements silent on the question of how the “no advantage” principle is applied, how it is determined that a transferee is not receiving preferential treatment?

MR ROBINSON:   No, your Honour, it does not.  I presume, in my submission, that it is just done and if it takes five years to process a claim then that is – or they hold off processing a claim or, as they suggested earlier, they process a claim and do not resettle for a longer period of time.  Anything to do to slow it down so that they are not declared a refugee and given resettlement within a shorter timeframe than it would be in southeast Asia at a UNHCR camp or in Indonesia, for example, in a UNHCR camp.  That is what the expert group’s central thesis was and, as your Honours have seen, it has been carried through to the end.

BELL J:   The UNHCR pointed out the difficulty of meaningfully identifying when a person might be receiving preferential treatment.  The matter I am taking up with you is whether there is any mechanism in these arrangements to enable the implementation of the “no advantage” principle.

MR ROBINSON:   It is not, your Honour, regrettably.  In terms of effective control, paragraph 3.1 at page 371, arrangements at the centre:

The Centre will be established by Australia and managed by the Administrator, supported by contracted service providers.  Management of the contracts will be the responsibility of the Government of Australia.

That sets out the factual substratum.  Can I take your Honours to the constitutional case?  As your Honours have seen in the submissions, we say that the aliens power, which is normally considered to be a subject matter power or a non‑purposive power – sufficiency of connection is normally the test of characterisation that is applied here.  But a proportionality test that we have set out and discussed in our written submissions could be used in that it might be able to inform the sufficiency of connection test.  We urge your Honours to take that approach.

Can I take your Honours to three cases?  The first would be Lim (1992) 176 CLR 1. We say that we should be taking the same approach in Lim’s Case as your Honours – we say that we want your Honours to take the same approach, and nothing in Leask that I will take your Honours to next cuts against or prohibits that approach.  There are some helpful remarks here about the external affairs power as well.

HAYNE J:   Sorry, you say we should take the approach taken in Lim’s Case.  Where do I most conveniently find in Lim’s Case a statement of the approach you urge upon us?

MR ROBINSON:   At page 25, the majority judgment, Justices Brennan, Deane and Dawson, start talking about the aliens power, and also at page 26 they commence talking about Chapter III of the Constitution. When they come to the brunt of it in terms of the validity of the sections that they were considering, they did so at the top of page 33 at point 2. That is the approach that we want your Honours to consider. They were considering 54L and 54N in that section, and they were looking at the Migration Act, and they said:

In the light of what has been said above, the two sections will be valid laws if the detention which they require and authorise is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered.  On the other hand, if the detention which those sections require and authorize is not so limited, the authority which they purportedly confer upon the Executive cannot properly be seen as an incident of the executive powers to exclude, admit and deport an alien.

MR GLEESON:   Your Honours, could I interrupt to rise only to say that this is the part of the case that we object to as being outside the stated case.  It is the Chapter III argument which was attempted to be brought into the statement of claim which your Honour the Chief Justice rejected, and which has not been appealed.

FRENCH CJ:   I took the first part of the passage to which Mr Robinson was referring to be dealing with the limits of executive power.  He carefully did not quote the last sentence, so I presume we are still talking about limits of legislative power, rather than Chapter III.

CRENNAN J:   I assumed it was a preliminary to coming to Justice Gaudron’s statements on page 57, but I may be wrong.

MR ROBINSON:   That is where I am heading, your Honour.

HAYNE J:   Well, can I repeat my question:  where do I most conveniently find in Lim the approach which you urge us to take?

MR ROBINSON:   It next appears at pages 56 and 57 of the decision of her Honour Justice Gaudron.  At 56, it starts at about point 5 on the page, the passage headed:

There are difficulties in relating what was said in Tomey Homma to s. 51(xix) of the Australian Constitution, even though s. 51(xix) is concerned with precisely the same subject matter dealt with by s. 91(25) of the British North America Act. And it is difficult to conceive of a power with respect to aliens that does not involve power to legislate with respect to aliens that does not involve power to legislate with respect to the consequences of alienage, at least so far as that concerns entitlement to enter the country and the circumstances which may or will lead to deportation. Certainly, those matters are within the power conferred by s. 51(xix).

Aliens, not being members of the community that constitutes the body politic of Australia, have no right to enter or remain in Australia unless such right is expressly granted.  Laws regulating their entry to and providing for their departure from Australia (including deportation, if necessary) are directly connected with their alien status.  And laws specifying the conditions on and subject to which they may enter and remain in Australia are also connected with their status as aliens to the extent that they are capable of being seen as appropriate or adapted to regulating entry or facilitating departure if and when departure is required.

That is the nub of it, your Honour.  It goes on ‑ ‑ ‑

FRENCH CJ:   Your submission in reliance upon that is what is set out at paragraph 25 of your written submissions, is that right?

MR ROBINSON:   That is what we want, your Honour, yes.

HAYNE J:   I am sorry, I did not hear that?

MR ROBINSON:   That is what we want, yes.

BELL J:   The reason that the connection is absent is that more is being achieved than deporting?

MR ROBINSON:   Indeed, and they are the things I spoke to earlier.

BELL J:   To the extent that the more that is being achieved than deportation is processing of claims for asylum under the Convention, it is with a view to resettlement anywhere but in Australia.

MR ROBINSON:   Well, it does not matter whether it is anywhere in Australia, but that is how it has turned out to be.  Under the ‑ ‑ ‑

BELL J:   But your argument does not depend on – to the extent that your argument is one that says this is going beyond removing aliens from Australia, the circumstance that it is removal as part of a scheme on one view to process consistently with the obligations imposed by the Convention, your argument does not take anything from the expectation that a successful claimant will not be resettled in Australia?

MR ROBINSON:   It does, your Honour, in the sense that the Act – the bare terms of Subdivision B provide for that scenario, but not in terms.  They allow for it given the width of the provisions.

BELL J:   Yes.

MR ROBINSON:   They allow for a refugee to be identified ‑ a refugee applicant to be identified, taken overseas, processed somehow by someone, with someone, and either to be left there or brought back today or in five years, but it is an expulsion from Australia.  It provides for what was ultimately done by the Australian Government here, namely, you are never coming back.  That was not done until many months after my client ‑ ‑ ‑

BELL J:   Yes.

FRENCH CJ:   Just getting away from the particular facts of this case, we are on the constitutional case, and again looking at the kind of reasoning you are seeking to adopt in 25 in the passage in the judgment of Justice Gaudron that you are relying upon, you are inviting us to look at these provisions to say that to the extent that they go between regulating – they extend beyond regulating entry or facilitating departure, there is a proportionality, a criterion, which informs their characterisation as laws with respect to aliens.

MR ROBINSON:   We say you do not have to get there, we say that you can do it on a sufficiency of connection test, that it so obviously provides for Australia to be dealing in and sending people out of Australia and then something happening, and that, in my submission, is sufficient for this Court to find, that there is no sufficiency of connection between Subdivision B and the head of power.

CRENNAN J:   That is a vires argument, is it?

MR ROBINSON:   Yes, your Honour.

CRENNAN J:   It is cast in terms of sufficiency of connection.

MR ROBINSON:   Cast in terms of sufficiency but we say that proportionality is available to this Court after Lim.  It has not been banned in Leask.  It is a subparagraph as I think - one of the Justices said that it can be regarded as a subparagraph of the sufficiency of connection test and all that we are saying is that this Court can use proportionality in its analysis.  But it does not have to.  It can deal with sufficiency of connection and make the determination alone.

KIEFEL J:   Just in relation to proportionality, is there any decision of this Court which holds that proportionality can operate as a freestanding principle in relation to the characterisation of the law?

MR ROBINSON:   Well, in Nationwide News, Chief Justice Mason said proportionality can be used in an unconfined, unrestricted way ‑ ‑ ‑

KIEFEL J:   I am familiar with what Chief Justice Mason said.  Did anyone else agree with that, though?

MR ROBINSON:   No one has touched it, your Honour, but that was of course in relation to implied powers and we say here that if this power to send people away, possibly forever, and then to have them dealt with in concert with Australia, it is an incidental power, that is, if it is going to be an incidental power, then the former Chief Justice’s analysis in Nationwide News will be very useful and can be ‑ ‑ ‑

KIEFEL J:   But it can all be in relation to implied powers because that is the only way to answer the question that is thrown up by implied powers.  But it is a wholly different question in relation to the characterisation of the law and the connection of the law.

MR ROBINSON:   Well, we say, if these are even to be arguably valid, they are implied powers and the Court, once it accepts that, if it accepts that, then it can apply a proportionality test at that level alone and ‑ ‑ ‑

KIEFEL J:   I am sorry, are you saying that this is on the same footing as an implied freedom which is a constitutional guarantee?

MR ROBINSON:   No, your Honour, we are ‑ ‑ ‑

KIEFEL J:   Well, what is an implied power then?

MR ROBINSON:   An incidental - did I say implied, your Honour?  I meant incidental, sorry, your Honour.  The incidental remarks of his Honour Chief Justice Mason are at pages 30 and 31 ‑ ‑ ‑

KIEFEL J:   They were in the context of the implied freedom of communication, constitutional guarantee and in relation to the test that needs to be applied which some would say was resolved later in Lange but that is a wholly different area of discourse from the area that you are in, is it not?

MR ROBINSON:   I accept that, but we are not going ‑ ‑ ‑

CRENNAN J:   Are we not in the territory ‑ ‑ ‑

MR ROBINSON:   ‑ ‑ ‑ anywhere near Lange, your Honour.  We are not going in that territory.

CRENNAN J:   ‑ ‑ ‑ of considering the express power and the sufficiency of the connection.

MR ROBINSON:   Correct, your Honour, and we say it does not come on its face within that test.  We say your Honours should use the principle of proportionality as I have described it from her Honour Justice Gaudron.  I have not set out the next paragraph but the next paragraph on page 57 is also relevant to the task.

That is the test that we ask your Honours to apply.  The next passage at 57 is also part of the task.  Her Honour says:

a law imposing special obligations or special disabilities on aliens, whether generally or otherwise, which are unconnected with their entitlement to remain in Australia and which are not appropriate and adapted to regulating entry or facilitating departure as and when required, is not, in my view, a valid law under s.51(xix) of the Constitution. A law of that kind does not operate by reference to any matter which distinguishes aliens from persons who are members of the community constituting the body politic, nor by reference to the consequences which flow from non‑membership of the community and thus, in my view, is not a law with respect to aliens.

That is the approach.

BELL J:   But you accept that everyone the subject of this answers the description of being an alien?

MR ROBINSON:   Yes, your Honour.

BELL J:   So on a view, a premise for some of the things that Justice Gaudron was discussing in this passage at page 57 simply is not there.

MR ROBINSON:   Her Honour was not talking about enemy aliens.  She was talking about imposing obligations on aliens.

KIEFEL J:   Her Honour is not really, with respect, characterising a law, is she?  Her Honour is saying that the law goes further than is necessary for its purpose.

MR ROBINSON:   Yes, your Honour.  We ask your Honours to approach characterisation in this case that way.  We say it is convenient and it is appropriate ‑ ‑ ‑

BELL J:   You accept that the subjects of this law are aliens, and you accept that consistent with the aliens power, not only is it within power to expel but indeed to expel to a specific country.  The gravamen of your argument is that is where the power stops, at the point you have sent them to a particular country.

MR ROBINSON:   Yes, your Honour.  The authorities say that, and we accept that, your Honour, but no more, and what is being done here is much more.  That is where your Honours can apply the sufficiency of connection test, and rule on it.  All we seek to do in our case is to suggest that proportionality can be an adjunct to that, and if your Honours stray into the incidental powers territory, it can be used for that openly.  The Chief Justice in Nationwide News - can I take your Honours to 177 CLR 1, starting at page 27, Chief Justice Mason in the last paragraph headed:

In the present case, the provision which is in contention does not fall fairly and squarely within the core of the subject matter of the power.

His Honour discusses that over the page, 29.  His Honour starts talking about Davis v The Commonwealth, which is the Australian Bicentenary Act Case, and what he said at the bottom of page 30 is that:

Davis establishes two propositions.  First, that, even if the purpose of a law is to achieve an end within power, it will not fall within the scope of what is incidental to the substantive power unless it is reasonably and appropriately adapted to the pursuit of an end within power, i.e., unless it is capable of being considered to be reasonably proportionate to the pursuit of that end.  Secondly, in determining whether that requirement of reasonable proportionality is satisfied, it is material to ascertain whether, and to what extent, the law goes beyond what is reasonably necessary or conceivably desirable for the achievement of the legitimate object sought to be attained and, in so doing, causes adverse consequences unrelated to the achievement of that object.  In particular, it is material to ascertain whether those adverse consequences result in any infringement of fundamental values traditionally protected by the common law, such as freedom of expression.

FRENCH CJ:   We must look, however, must we not, for the purposes of the constitutional argument, at the text of the provisions of Subdivision B which may be applied in a variety of circumstances and ways.  Now, what is it that you would precisely point to in relation to the text of the designation provision, 198AB, that takes it outside the scope of the aliens power?

MR ROBINSON:   My first answer is it permits the happening of what has happened here, your Honour.  In other words, it permits on its face apparently lawful regime involving the detail of that which your Honours have been exposed to this afternoon and, in my submission, that is all unlawful in the sense that the relevant heads of power ‑ the aliens power, the naturalisation power and the – the aliens, the immigration and the external affairs power.  It travels outside those boundaries completely in that it allows people to not just be deported from Australia, not just be deported to a particular country, a country of their choice or a country of Australia’s choice, but it requires them to be processed somewhere by us or by the third country or by a combination of both countries, and detained there.  It permits them to be detained there.

FRENCH CJ:   Well, it does not say anything about detention, does it?

MR ROBINSON:   No, your Honour, it does not, but it permits it, and that of course is what is happening here, as the evidence has revealed.  It permits it.  It permits the five year rule to operate and, indeed, the no advantage principle or the no benefit principle is allowed writ large, and it permits refoulement, your Honour.  It permits it to occur in two circumstances.  One, it can just happen and we cannot do anything about it and, two ‑ ‑ ‑

FRENCH CJ:   Well, you seem to be saying this is a broad statutory power whose breadth encompasses a possibility of what you would characterise as abuses ‑ ‑ ‑

MR ROBINSON:   Yes, your Honour.

FRENCH CJ:   ‑ ‑ ‑ or infringements of human rights or a variety of other evils.

MR ROBINSON:   And treaties.

FRENCH CJ:   But there are many broad powers conferred by statute which might be susceptible of application in a variety of ways.  That does not of itself take them outside the relevant head of power.

MR ROBINSON:   They do not involve us sending people overseas.  They do not involve Australia deporting to this scenario.  Those powers ‑ ‑ ‑

HAYNE J:   Well, Australia cannot remove someone overseas and simply drop them in the ocean.  They have got to be removed somewhere.

MR ROBINSON:   I accept that, your Honour.

HAYNE J:   By a hypothesis, these people are being removed to a country other than a country to which they have a – or in respect of which they have a right of entry.  Indeed, their very claim is that they do not wish to go back to the country in respect of which they have a right of entry.

MR ROBINSON:   Yes, your Honour.

HAYNE J:   Are we to shut our eyes then to the consequence that removal to a country other than a country in respect of which there is a right of entry may entail consequences upon arrival?

MR ROBINSON:   Well, your Honour, the scheme is to deport them to a place where they will be processed, but not processed quickly, they will be processed in a long time, in accordance with the “no advantage” principle.  It underpins the legislation, and they will be kept there, and they may or may not be able to come home, and they may or may not be able to be - they may or not be sent to their home country.

CRENNAN J:   Home for them is the place of persecution, is it not?

MR ROBINSON:   Yes, your Honour.

CRENNAN J:   I should indicate I am having some difficulty in understanding why you say this scheme implies that a person who is removed subject to it becomes vulnerable to refoulement or return to the place of persecution.

MR ROBINSON:   Your Honour, there is no penalty for – let us say it is Papua New Guinea refouling them to their home country.  There is no penalty – there is only a memorandum of understanding between Australia, so they can be told you are being sent home, they cannot do anything about it.  Australia cannot do anything about it.  There is an unenforceable agreement between the two, a memorandum of understanding, not even an agreement, between the two countries.  These provisions permit that to happen.  If someone seeking refugee status from Papua New Guinea came to Australia, they would be automatically sent back to Papua New Guinea under these arrangements, under the legislative arrangements, as the Chief Justice asked me a moment ago.  That is all I am addressing these remarks to.

But out of the legislation, it permits all of these things to happen.  It permits refoulement, it permits breach of international law, it permits – whilst carefully purporting to preserve the Refugees Convention, it enables deportation to a place for a long time and permits imprisonment and suffering because they are necessary parts of that process.  They have been.  The expert reports recognised that and ‑ ‑ ‑

BELL J:   Where do you get the last two?  When one looks at the statutory scheme, one gets a mechanism for removing persons who answer the description of “aliens” from Australia, but where do you get, within the statutory scheme, for detention for a long period of time in harsh conditions?

MR ROBINSON:   Your Honour, I accept that that is a part of this case, that my client is in detention now, with everybody else.  That is part of the stated case, that is what is happening.  In terms of the rest of it, can I come back on Tuesday and give your Honours the references in the experts reports as to where that actually happens, because that is the only place in the material that is before your Honours where I think there are actual references to imprisonment but ‑ ‑ ‑

FRENCH CJ:   That might be a convenient moment, Mr Robinson.  We will adjourn now until 10.15 on Tuesday.

AT 4.00 PM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 13 MAY 2014