Plaintiff S156/2013 v The Minister for Immigration and Border Protection and Anor

[2014] HCATrans 98

[2014] HCATrans 098

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 TUESDAY, 13 MAY 2014, AT 10.15 AM

(Continued from 9/05/14)

Copyright in the High Court of Australia

____________________

FRENCH CJ:   Yes, Mr Robinson

MR ROBINSON:   Your Honours, would you please excuse the non‑appearance of Professor Williams today?  He had to travel to London.

At the close of the hearing last Friday, Justice Bell asked where do we get within the statutory scheme provision for detention for a long period of time in harsh conditions.  I will answer that now, if I may.  With regard to the Act, the subdivision provides no time limits.  It is silent – the fact that it is silent on the issue speaks volumes.  As to the language and structure of Subdivision B, it clearly envisages more than mere removal.  It is titled “Regional processing”.  The very phrase “regional processing country” was used throughout the subdivision and it refers to countries designated by the Minister under section 198AB.  Pulling back, looking more broadly at the Act, Subdivision A is plainly a self‑contained division dealing with the removal of aliens from Australia generally.

In contrast, Subdivision B is more specific, more targeted, and it involves processing offshore or at the hand of Australia or, to use the words of the second reading speech, implemented by Australia.  The purpose of Subdivision B is explained in section 198AA.  The subdivision plainly is directed towards implementing offshore processing and with the preservation of Australia’s international obligations at the forefront.  It is plainly more than the removal of aliens, the sole subject of Subdivision A.

Reading Subdivision B in its context of the statute as a whole and its practical operation, it plainly facilitates the ongoing control of persons removed to regional processing countries.  This can be seen from the interaction of the subdivision with section 198B and 198AH concerning the movement of transitory persons that we looked at last Friday.  It establishes Australia’s ongoing involvement in the implementation of the scheme.

I have already directed the Court to the extrinsic material relating to, for example, the no‑advantage principle or the five or more years rule, and they are – I will just give your Honours the references, if I may, one more time.  The expert’s report at the blue book at page 50, at page 63, line 16.  The second reading speech at page 8694 and 8695 and the revised explanatory memorandum at page 2.

There is also the first memorandum of understanding between Australia and Papua New Guinea dated 8 September 2012.  That was done, of course, less than one month after Subdivision B became operational on 18 August 2013.  I am sorry, that is a long time after.  It was 2012.  It contained passages locking in the “no advantage” rule between Australia and Papua New Guinea.  The references are at the blue book at 207, line 29 and the second memorandum of understanding – that was the one signed 6 August 2013 – at blue book 286, line 35.  There is also the NHNCR’s letter to the Minister of 9 October 2012 at blue book 269 where he spoke of the “no advantage” rule applying in Papua New Guinea and he said at line 19 of that page:

In this regard, the UNHCR would be concerned about any negative impact on recognized refugees who might be required to wait for long periods of time in remote island locations.

Now, in terms of time under the Act and the extrinsic material and the practical operation of it, processing and settlement of refugee applicants could take years and years.  That addresses the “long time” aspect by reference to largely the Act and the extrinsic material.  The Court also should accept the practical operation of the scheme.

As to the harsh conditions, this is wholly within the practical operation of the scheme because the Act says nothing about it.  The extrinsic material says nothing about it but the practical operation of running a migration refugee determination scheme on a remote island is something that the Court could accept and the material says is something that creates harsh conditions.

The indicia in the material is in the statement of arrangements that was before the Minister in making the designation on 9 October 2012.  Can I take your Honours to the court book, the blue book at 234 – I took your Honours briefly to this the other day.  These are the arrangements, the ones which I said were unsatisfactory.  They are undated and unsigned but the Minister relied heavily on them in his designation decision reasons.

If your Honours look at page 234, paragraph numbered 7, there is no permanent site that had been agreed between Australia and Papua New Guinea at that time, the time of making the decision.  Look at paragraph 4 on the previous page, 233.  There was no permanent accommodation available.  The transferees were to be accommodated predominantly in tents.  On the same page at paragraph 6, there were no recreation, no catering facilities available.  This is at the time the Minister made his designation decision.

Also at page 234 at paragraph 9, there were no medical facilities at the time of the designation.  So, conditions were necessarily going to be harsh for anyone who was automatically swept up by the designation decision.  As to the tent accommodation, at page 233, paragraph 4, it was going to be 4.2 metre by 4.2 metre canvas tents with timber floors, lighting, fans and insect netting, and five transferees, as they are ‑ ‑ ‑

FRENCH CJ:   Do you say that continuing detention was an aspect of the arrangements reflected in 2b?

MR ROBINSON:   Yes, your Honour, that is the “no advantage” principle which is designed to string it out so that it matches the region’s processing rate, as it were.

FRENCH CJ:   This is in the form of an advice to the Commonwealth by the PNG Government as stated in the statement of arrangements.

MR ROBINSON:   Well, your Honour, this seems to be an Australian document setting out the arrangements that is put before the Minister at the time he made his decision, and he relied heavily on it in his statement of reasons.  So this is the picture of what it is going to be, and I described it I think on Friday as being more aspirational than anything because it talks more about what is going to happen one day without a timeframe than it does about what is actually in place, making the decision quite precipitous.

Could I also take your Honours to page 301 of the blue book?  This involves the second decision but it does go to the practical operation of the scheme.  This is the advice that was used by – the department’s advice of the 29 July 2013 to the Minister in his making the second decision that we challenge in these proceedings – not the designation decision, but the direction to send people to either Manus or Nauru.  In this submission, at page 301, paragraph 2, about line 20:

The department considers that there are extreme risks associated with the management of people who are subject to the Regional Resettlement Arrangement.  Previous operational experience indicates there is a high probability that – despite proactive engagement by the department and services providers – people who are in prospect of being transferred to a Regional Processing Country will react adversely.  This could include self‑harm, attempts to avoid transfer by climbing on rooftops, larger scale non‑compliance including resistance to removal or attempts to breach perimeter and arson.  There is also a greater risk of disturbances occurring that are of a similar nature to the incidents that occurred recently at Nauru.  The department assesses the highest risk of adverse reactions is during the transfer process, or in circumstances where there is a prolonged period between arrival and transfer.

FRENCH CJ:   Can you just remind me what aspect of your argument is this feeding into?

MR ROBINSON:   This goes to the practical operation of the scheme, your Honour.

FRENCH CJ:   Relevantly to what submission?

MR ROBINSON:   Relevantly to her Honour Justice Bell’s question where I was asked about harsh conditions and how that can be, as it were, backed up.  It cannot be backed up in the terms of the statute or in the explanatory memorandum – the expert report, for example, talks nothing about harsh conditions.  But, in the scheme’s practical operation which is before your Honours in this material – particularly this document – the harsh conditions are addressed quite plainly.

FRENCH CJ:   Does this go to the designation decision?

MR ROBINSON:   This document does not, your Honour.  This goes to the Minister’s direction to send people to one of two countries.

FRENCH CJ:   All right.  So, that is the administrative judicial review aspect.

MR ROBINSON:   It does go to the judicial review aspect.  At page 301, at paragraph 4, line 35, the Minister was advised that:

There are also significant risks associated with holding unauthorised maritime arrivals in immigration detention facilities for prolonged periods of time pending transfer. 

Over the page, at 302, paragraph 14, at the bottom of the page:

In the department’s experience, the use of reasonable force has been required on some occasions to prevent people subject to transfer from harming themselves or others and/or to effect their transfer and placement on the bus or aircraft

At 303, paragraph numbered 16:

In the department’s experience, some clients have refused food and fluids as a response to being advised that they are subject to transfer.

The Minister was also advised about capacity constraints.  While I have this document opened before your Honours, I will show you where that is, at page 305, at paragraph numbered 34:

In addition to implementing transfers of people who are subject to the Regional Resettlement Arrangement, the department is concurrently managing a number of unprecedented pressures on the Immigration Detention Network.  The significant risks associated with these pressures, have continued to intensify as the sustained pattern of high numbers of unauthorised maritime arrivals experienced over recent months has continued.  Capacity pressures will also impact the department’s ability to segregate clients to manage the risks identified above.

In terms of the last reference for this document, is 306 at line 10, the second line:

transfers of unauthorised maritime arrivals to Manus Island, Papua New Guinea, present significant risks to the safe and orderly management of the Immigration Detention Network, and all persons detained or working in the network.

To sum it up, your Honours, the time limits allowed for in the scheme are potentially indefinite.  The plain intention was to drag it out for years so that the refugee applicants received no advantage in the region.  The practical operation of the scheme is that the conditions of its putting into effect are harsh by any standard. 

Could I continue the constitutional case from last Friday – I was discussing the aliens power and the availability of proportionality.  I will be brief in wrapping it up as to the aliens power.  We say the statutory scheme here does not fall within the core aspect of the aliens power.  The outer limits of section 51(xix), the aliens power, has never been defined by this Court and the cases to date have not yet required a boundary to be drawn.  However, the reasoning in Lim’s Case in both the joint judgment and by her Honour Justice Gaudron envisages that such outer limits do exist. 

There is a question of characterisation in this case.  We are argue that following the approach suggested in Lim’s Case, for a law to be a law with respect to section 51(xix), it is not sufficient that it merely operate on people who are aliens.  Something more is required.  According to her Honour Justice Gaudron, to be with respect to the aliens limit of 51(xix), a law must be “directly connected with” the alien status of the person it operates on.  She said that at page 57.

Both the joint judgment and her Honour Justice Gaudron in Lim suggest that section 51(xix) is at its core concerned with granting Parliament the power to determine the title of aliens to enter and remain in Australia.  Now, where the law in question is directed towards something else, and we say that is what we have here in section 198AB and 198AD because is terms and effect are directed towards the on‑going control and processing of people who have already been removed from Australia, it is not within the core aspect of the aliens power and no real question arises as to whether there is a sufficient connection with section 51(xix).

The approach adopted by Chief Justice Mason in Nationwide News with respect to the proportionality principle, we say it can assist here.  The Chief Justice was talking about how proportionality can be used to determine whether a law falls within the incidental aspect of any given head of power.  The relevant passage, as I read out last week, is at page 30.  The Chief Justice cited Davis as authority for the proposition that a law does not fall within the core aspect of a head of power.  A law that does not fall within the core aspect of a head of power will not fall within the incidental aspect of that power:

unless it is reasonably and appropriately adapted to the pursuit of an end within [that] power, i.e., unless it is capable of being considered to be reasonably proportionate to the pursuit of that end. 

As your Honours know, there are a number of ways of describing the proportionality principle but that is the essence of it.  The Chief Justice also said ‑ and I read this out to your Honours on Friday – at page 31, that:

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.

Alternatively, we say, proportionality may be used in a narrower sense that can assist in determining whether the scheme has a sufficient connection with the aliens power and we say that is consistent with the reasoning of six of the seven judges in Leask and we have set that argument out in the written submissions in some detail.

As to the aliens power, could I conclude submissions on that by adopted our written submissions as to precisely how we say the two impugned provisions do not come within the power at a practical level.  We say that in the written submissions at 26 to 38.  We say a proportionality test should be applied because the subject matter here is beyond the scope of anything this Court has ever considered before and the subdivision goes way beyond entry or departure.

It attempts to control the asylum seekers long after departure and to do so in a third country, and the aliens power does not permit the Minister to reach so far beyond what is reasonably necessary to effect deportation, let alone control or regulate asylum seekers in a third country and let alone, as your Honours recall from the transfer provisions, to pick them up and bring them back for a temporary visit and to take them back to the island again.  They can go back and forth and back and forth, so that is a statutory indicia of Australia’s involvement – continuing involvement ‑ in implementing a scheme of this kind.  It is beyond the scope of the aliens power to detain, arbitrarily or indefinitely or in harsh conditions in a third country where the risk of informal transfers, possible rendition and possible refoulement, are all real possibilities.

Applying the approach of Chief Justice Mason in Nationwide News, we can say this is so disproportionate to the removal of aliens from Australia that it cannot reasonably fall even within the incidental aspect of 51(xix).  Applying that narrower test of proportionality, the two sections lack a sufficient connection with 51(xix) because they are not directed towards determining the status of aliens within Australia, or deportation.

Moreover, the principle outlined in the joint judgment in Lim which was affirmed in Re Woolley and Plaintiff M76 and I set out the citations, your Honours, in the submissions at 33 to 38. Those principles indicate that legislation authorising the executive detention of aliens is only valid if the detention is authorised – if it 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. This is a limitation which derives from the general structure of the Constitution. It restricts the scope – the placitum and other heads of power which operate on aliens. The scheme in section 198AB and 198AD infringes this limitation since by its terms and by its practical operation it authorises the detention and control of aliens after deportation and in circumstances where they have no capacity to make an application for an entry permit or a visa in Australia.

As to the immigration’s power – section 51(xxvii) – sections 198AB and AD are not supported by the immigration and emigration power.  As we set out in our submissions at paragraphs 39 to 48, the power is intended to cover laws which regulate persons seeking resettlement in Australia and laws precluding persons from settlement.  Aliens can be excluded from, and deported from, Australia under this power.  While the deportation power permits removal to a country not of the alien’s choice, and the reference in the submissions we have given is Znaty v Minister for Immigration – I will not take your Honours to it – (1972) 126 CLR 1, the present case, on its facts and the legislation, goes significantly further than the situation in Znaty’s Case. 

Here the location is a regional processing centre built and run by Australia in order to give effect to the “no‑advantage” principle and to do so offshore.  Considering the practical effects and the operation of the scheme that we have discussed, the provisions do not satisfy the sufficiency of connection test at all.  If it was thought to be an incidental power – and we submit this is of the immigration power – we submit it is not an incidental power because your Honours will not get there.  But, if your Honours consider that it is an incidental power – we say it is not because it goes too far – then the proportionality test should be applied as for all incidental powers when they are being tested by this Court – and that is Chief Justice Mason in Nationwide News at page 27.  As to the external affairs ‑ ‑ ‑

FRENCH CJ:   Absent detention arrangements which come in, as it were, underneath a statutory framework, removal of aliens to a safe third country – our law providing for removal of aliens to a safe third country willing to accept them, in order to ensure that Australia complies with its non‑refoulement obligations in relation to persons claiming refugee status, you would not say that that is outside the aliens power?

MR ROBINSON:   No, your Honour.  It is the rest of it, the baggage that comes with it that ‑ ‑ ‑

FRENCH CJ:   The baggage, though, is found not in the provisions of the Act, is it?

MR ROBINSON:   We say it is.  I will come to that in a moment, your Honour; I will do all that together.  We do say that the Act read as a whole and read fairly is in contradistinction to Subdivision A, a targeted scheme to implement regional processing.

FRENCH CJ:   It targets a particular class of alien, the unauthorised maritime arrival.

MR ROBINSON:   Yes, correct, and it is to subject them to regional processing in a particular country, in a nominated country, that is – or a designated country.  The designation decision makes it all crystal clear, including the advice before the Minister as to what is to happen.  The memorandums of understanding make it crystal clear as to what is to happen.  The statutory scheme permits it and your Honours have to test not just what the statutory scheme says but what it does not say.  It does not say there are time limits on processing.  It does not say whether or not the refugee applicants can be brought back to Australia and, if so, in what circumstances, only to say that they can be brought back on a ‑ ‑ ‑

FRENCH CJ:   Well, you say, do you, that if the statutory scheme permits it, permits this kind of arrangement, its outside power, if it is to be read as not permitting such an arrangement the arrangement that has been made is outside the power conferred by the statute for its true and proper purposes, having regard to the limits?

MR ROBINSON:   Yes, your Honour.  We do that to a large extent in the administrative law case.  We say that the statute is bad.  If it is not bad, then the designation decision is bad and the transfer arrangements are bad, so that is essentially the way we have attacked it.  In any event, we say that what the Act provides for here is ‑ ‑ ‑

CRENNAN J:   Just as a point of clarification, do you contemplate the possibility that the designation decision may be valid but the direction and the taking decisions would be infirm for some reason, or do they hang off and depend upon the arguments made about the designation decision?

MR ROBINSON:   If the designation decision is valid we say that the taking direction, as we have called it in the pleadings, the ministerial direction can still be invalid for separate reasons which we have set out in the submissions.  There are separate grounds of judicial review in relation to that.  Only the first one relates to the validity of the Minister’s designation and that is certainly open, your Honour.

KIEFEL J:   You call it a “taking decision” but the ministerial direction under section 198AD(5) on one view is a direction to the officer to take to one of more than one country; that is, the direction implies a choice by the Minister about where the person must be taken.

MR ROBINSON:   Correct.

KIEFEL J:   Whereas the obligation to take arises under subsection (2) which provides that:

An officer must, as soon as reasonably practicable, take an unauthorised maritime arrival . . . to a regional processing country.

MR ROBINSON:   We say they are read together.

KIEFEL J:   So that on one view the Minister is simply identifying the processing country, but the obligation to take arises under subsection (2) and it affects the officer directly without any ministerial direction to take.

FRENCH CJ:   Perhaps also subsection (6).

MR ROBINSON:   We say they should be read together, your Honour, to make sense of them.  If there are two countries, they cannot just be taken to either one of them at the officer’s discretion.  He or she must take them to the one directed to him or her by the Minister under subsection (5).

KIEFEL J:   Well, that might what subsection (6) is directed to.

MR ROBINSON:   I think it is (5). 

KIEFEL J:   It says “the officer must comply with the direction” ‑ ‑ ‑

MR ROBINSON:   Indeed, your Honour.

KIEFEL J:   ‑ ‑ ‑ so which is the direction as to which place to take them to.

MR ROBINSON:   That is right, your Honour.  So those three subsections must be read together to ‑ ‑ ‑

KIEFEL J:   But the point I am trying to bring out is that the obligation on the officer to take a person does not arise by reference to the direction.  The difference is, the obligation to take them somewhere and the direction is where.

MR ROBINSON:   Yes, your Honour.  We accept that but in this case the direction to take my client to Manus Island, we say was bad.  So, it may be the necessary consequence that he has to go to Nauru, if that is correct, your Honour.  Either way, he should not have been taken to Manus Island.

KIEFEL J:   But your case does not challenge section 198AD(2) as a specific provision.

MR ROBINSON:   No, your Honour, it challenges the whole provision.  That is one of the two; it is AB and AD, so we say the whole provision is unsupported by the constitutional provisions that we have discussed.  As to the external affairs power, this head of power – and section 51(xxix); this head of power authorises legislation with respect to places, persons, matters or things that are outside the geographic limits of Australia.  A leading case, as your Honour is aware, is Polyukhovich v Commonwealth – I will not take your Honours to it, we have got the citations in the submissions – at 172 CLR 501, particularly at 632.

The power is, we say, predicated on the pre‑existence of an affair that is external to Australia.  Now, the law here is not a law with respect to persons or places or matters or things outside Australia.  It is a law which regulates persons inside Australia with a view to their forcible removal outside Australia so that processing may be implemented offshore.  The only element of externality here is impermissibly created by the legislation itself in terms of the external affairs power. 

It is almost a bootstraps situation where Australia creates the situation offshore and then may seek to rely on the external affairs power in order to support it. Alternatively, our case is that it is appropriate for a proportionality test to be applied here because of the text and structure of the Constitution. Such a restriction flows from Lim’s Case, in that case at page 33, that laws for the detention and deportation of aliens will only be valid when it is:

limited to what is reasonably capable of being seen as necessary for the purposes of deportation or –

for the making of an “entry permit” or a visa.  Further, while 198AA(d) ‑ that is the purpose provision or the objects provision; that is one that says:

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 –

while it expressly states that there is nothing in Subdivision B that indicates it was the intention of Parliament to oust Australia’s international obligations, in particular, its obligations under the Refugees Convention.  Indeed, Parliament went out of its way throughout this subdivision to expressly preserve these obligations.  This means that if section 198AB and AD are valid, they and the national interest criterion should be read in light of the Convention.  In this circumstance, no plausible argument could be made that the designation decision of Papua New Guinea at that time complied with the Convention or that the Minister could be satisfied of such compliance.

Now, can I turn to the administrative law challenge?  This is a challenge to two decisions.  The first is the Minister’s designation and the second is the Minister’s direction dated 2 August 2013 specifying where the UMAs, as they are called, were to be sent.  The first decision is at page 253 of the blue book, the second decision is at page 317 of the blue book.  As to the Minister’s designation, the Minister’s powers under section 198 are not unlimited.  Even though it is to be rooted in the national interest, according to the section, other factors are found in the “subject‑matter, scope and purpose” of the legislation and they weigh in.

Can I take your Honours to Peko‑Wallsend 162 CLR 24 at 39? His Honour Justice Mason, as he was then, at page 39 is dealing with the ground of judicial review known as “Failure to Take into Account a Relevant Consideration”. His Honour describes it at point 3 on the page as an instance:

one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action.

His Honour mentions that it is now in the AD(JR) Act.  Then his Honour distils the case law in a number of propositions over the next three or four pages.  Relevantly, at paragraph (b) at point 8 on the page his Honour notes:

What factors a decision‑make is bound to consider in making the decision is determined by construction of the statute conferring the discretion.  If the statute expressly stage the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive.

Over the page, your Honours, at point 2:

where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject‑matter, scope and purpose of the statute some implied limitation on the factors to which the decision‑maker may legitimately have regard . . . the court will not find that the decision‑maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject‑matter, scope and purpose of the Act.

That is our case in these proceedings in the administrative law challenge.  Our first ground of review is this.  We say that there are seven factors which constitute relevant, we say, mandatory, factors for the Minister to have to consider when making a designation decision.  Those seven factors are listed in the written submissions at paragraph 67. They are each divined from the subject matter, scope and purpose of the Act and we say they constitute real limitations on the factors to which the Minister may have regard.

The indicia within the Act that impacts on the Minister’s power to designate include section 198AA which at paragraph two recognises Australia has protection obligations under the Refugees Convention.  We say this is very significant.  Also, the unauthorised maritime arrivals may be taken to a designated country for the implementation of processing.  That is the second reading speech.  Also, section 198AA(d) provides that the designation:

need not be determined by reference to the international obligations or domestic law of that country –

that is, the third country.  This means that the international obligations or domestic law of the target country may still be relevant to the designation decision.  If it was said to be an irrelevant consideration – or something the Minister is not to take into account – it would have said so.  It simply does not have to be the final or ultimately determinative factor in a ministerial decision.  It does not say it is irrelevant.  It must be a factor.  It must be manifestly relevant. 

How could it not be in circumstances of Australia trying to preserve its standing in the international community and its compliance with international obligations and with the express requirement throughout the subdivision that Australia will continue to comply with the Refugees Convention.  It cannot be the case, in my respectful submission, that the Minister can close his eyes to these factors.

FRENCH CJ:   Are not the words “need not be determined by reference to” antithetical to the notion of international obligations or domestic law being a mandatory relevant consideration?  It does not say it is an irrelevant consideration but how can you say it is a mandatory relevant consideration in the face of that language?

MR ROBINSON:   Your Honour, one needs to pull back and to see that in the face of this decision within this subdivision consideration of the international law as it pertains to Papua New Guinea and their domestic law must be something that Australia must take into account otherwise we may be dropping unauthorised maritime arrivals into a pit.  We need to know what we are doing before we place them in a third country.  We need to know the circumstances, the conditions of that country.

As your Honours have seen, I took your Honours to that provision on Friday in the statement of reasons, that the Minister – he said, I had no regard to the international obligations or domestic law of Papua New Guinea and he literally closed his mind to that factor entirely.  So we say that is what makes it a mandatory relevant consideration in that it is so important to the decision that has to be made.  I accept, your Honour, it is not the determinative factor, but every mandatory consideration does not have to be the final determinative factor.  If this provision is valid and if this Minister is to make a decision under it, in my submission, no Minister can fail to disregard such an important factor.

Importantly, nothing in section 198AA or Subdivision B excludes consideration of Australia’s international law and treaty obligations, or its own obligations and duties under customary international law.  In section 198AB(3) each of the matters there plainly constitute mandatory relevant considerations, that is the do not expel, do not refoule, the country must give an assurance that it will make an assessment of refugee status.

Those things are plainly mandatory relevant considerations, notwithstanding the sole stated criterion is said to be the national interest.  It may be that they are a necessary part of the statutory meaning of the expression “national interest” here, that national interest when it is looked at in the context of the subdivision contains itself the matters that we have said – the seven matters we have said constitute a mandatory relevant consideration.

FRENCH CJ:   Anyway, you accept that the provision of any such assurance is not a condition of the exercise of the Minister’s discretion.

MR ROBINSON:   Well, your Honour, it says that they need not be legally binding.

FRENCH CJ:   No, I am just saying the language of subsection (3)(a) – the text requires the Minister to “have regard to whether or not the country has given Australia any assurances”.  It does not in terms condition the Minister’s power, does it, upon the giving of an assurance in those terms?

MR ROBINSON:   We say it does in that it may form ‑ ‑ ‑

HAYNE J:   What work are you giving to “whether or not”?

MR ROBINSON:   We say it forms part of what the national interest is directed towards.  Reading these provisions together, the Minister must have regard to this as part of what the national interest is and therefore it comes within the only condition test, as it were.  In relation to 198AB(3)(a)(ii) that “the country will make an assessment”, this recognises the importance of compliance with the Refugees Convention which, as I mentioned last week, is reflected in section 36(2)(aa) of the Act with the special category of protection visas.

Strangely, under the scheme, Australia’s compliance with the Convention depends on the host country providing a non‑legally binding assurance.  It is worth noting that in the present case something less than an assurance was obtained in the main.  I could take you to the memorandum of understanding in the blue book at page 207, line 30.  Your Honours will see it is essentially in the preamble, but it says:

the Participants have reached the following common understanding regarding a transfer arrangement, whereby Australia would Transfer persons to Papua New Guinea for –

the purposes of –

processing of any asylum claims that Transferees may raise.

Now, what follows is the rest of the memorandum of understanding, all the other operative provisions of the memorandum of understanding.  So it is only ‑ the foundation for this document is a common understanding between the two countries.  I appreciate that the “a” word is used in paragraph 18 on page 210 – the “assurance” word is used.  Papua New Guinea assures Australia that it will not expel – not refoule, essentially, and it will make an assessment.  But that is under the overriding banner of there is simply an understanding, a common understanding, between Australia and Papua New Guinea, which is less than a non‑legally binding assurance.

In section 198AC, the documents that are to be laid before the Houses of Parliament can be seen to identify further indicia of mandatory relevant considerations.  We say that subsection (2)(b) highlights the importance of the Refugees Convention.  Again, that is the second half of (b), because the Minister is required to specify the Refugee Convention assurances.  Also, (d) deals with consultation with the UNHCR.  It must be tabled before Parliament.  It highlights the significance of advice received from the UNHCR in the eyes of the Parliament.

It is a jurisdictional error for the Minister to fail to take into account these relevant considerations in circumstances where he is required to take them into account.  In terms of the UNHCR advice here, the Minister did not wait to receive it.  The Minister only gave the UNHCR, the Commissioner, six days in which to respond.  He did not specify any particular time.  On a fair reading of Subdivision B, the Minister was required to take that advice into consideration and to lay it before Parliament and he did neither.  He laid it before Senate, only after the vote had been taken, the resolution had been taken - as you recall from Friday.  The decision thereby is invalid, the designation decision is invalid. 

As to the international obligations or domestic law of Papua and New Guinea, while it did not have to be a determinative factor, it was plainly a highly relevant factor.  Australia’s compliance with the Refugees Convention depended on it.  It could not depend on mere understandings that had not even taken the form of an agreement, binding or not.  It was crucial to take these matters into account.  How could the Minister have considered Papua New Guinea’s assurances, or their understandings under section 198AB(3) without also considering the international obligations and domestic law of that host country.  The Act plainly requires a close consideration of it.

Here the Minister expressly stated in his reasons, the reference is blue book 264, line 28, that he did not have regard to the international obligations and domestic law of Papua New Guinea at all in making his designation decision.  He closed his mind to the most relevant considerations as to what would happen to Australia’s refugee applicants, once they were sent away to a third country. 

Some support can be found, even though it is a different scheme and even though Parliament has tried to deal with it by redrawing the 198 section and turning it into a subdivision.  Can I take your Honours to Plaintiff M70/2011 244 CLR 144. This is the Malaysian Declaration Case.  The provision, 198A, in its former life looked like it did at page 160 at paragraph 11 of the Chief Justice’s judgment and 198A(3) is set out there at the bottom of the page and the top of page 161.  It is fairly different from what it became but there are some similarities and, in my submission, the passages I am about to take your Honours to are applicable to the current scheme.  The Chief Justice observed at paragraph 66 ‑ ‑ ‑

BELL J:   What page number?

MR ROBINSON:   That is page 182 at the bottom of the page:

The questions the Minister must ask himself, about whether the relevant “access” and “protection” are provided and “human rights standards” are met, are questions which cannot be answered without reference to the domestic laws of the specified country, including its Constitution and statute laws, and the international legal obligations to which it has bound itself.  The use of the terms “provides access. . . to effective procedures”, “protection” and “relevant human rights standards” are all indicative of enduring legal frameworks.  Having regard to the Minister’s concession and what appears, in any event, from the submissions on which the Minister acted and his affidavit, it is clear that he did not look to, and did not find, any basis for his declaration in Malaysia’s international obligations or relevant domestic laws.

Also, your Honours at 67, second sentence in:

Constitutional guarantees, protective domestic laws and international obligations are not always reflected in the practice of states.  There are examples around the world of governments whose implementation of human rights standards fall short of the authoritative legal texts, be they constitutional or statutory, or embedded in treaties and conventions which, on the face of it, bind them.  The existence of a relevant legal framework which on paper would answer the criteria in s 198A(3) cannot therefore always be taken as a sufficient condition for the making of a declaration.  The Minister must ask himself the questions required by the criteria on the assumption that the terms “provide” and “meet” require consideration of the extent to which the specified country adheres to those of its international obligations, constitutional guarantees and domestic statutes which are relevant to the criteria.

Similarly, the joint judgment observed at paragraph 135 which is at page 201.  This is a summing up of what they earlier determined:

As already explained, the references in s 198A(3)(a) to a country that provides access and provides protection are to be construed as references to provision of access or protection in accordance with an obligation to do so.

Her Honour Justice Kiefel, at paragraph 210, which is at page 223 – this is the last two sentences of that paragraph, this is dealing with the plaintiff’s argument – this is their argument:

Assurances in the Arrangement as to what might be provided in the future will not suffice.  In addressing himself to the Arrangement, in considering the criteria, the Minister again asked himself the wrong question.

Her Honour found at 256, page 236, at the bottom of the page, in her Honour’s conclusions:

The inquiry under s 198A(3)(a) is as to the state of the laws of the country proposed to be the subject of a declaration and it is to be undertaken at the date of such declaration.  In directing himself to the assurances in the Arrangement, as to what was to occur in the future, the Minister disclosed that he misunderstood what was required by s 198A(3)(a).  His decision was therefore attended by jurisdictional error.

We say that the lessons, as it were, that this Court tried to give in that case still come through into the new regime.  The regime has not obliterated all the aspects of the previous section 198, in my submission.  The principles that, for example, the Minister has to determine – make his determination by reference to the current state of the country remain.  The Minister has to take into account the domestic obligations of – and international obligations of the host country because that is at the core of what the Minister is doing when he sends people over there.  It simply must be at the core, in my submission, and Parliament has not effectively eradicated it as a significant relevant consideration which should be taken into account.  The Minister himself was fully aware that he was required to put everything in place before he made his decision.  You will recall in the blue book at page – if I could take you to the blue book at 213?  The Minister said in his letter to the UNHCR at line 44, the last paragraph:

I note your position on the issue of the transfer of state responsibility as set out in the protection policy paper “Maritime interception and the processing of international protection claims:  legal standards and policy considerations with respect to extraterritorial processing”, in particular paragraph 35, which provides that formal assurances by the accepting country to respect essential protection standards are necessary ‑

and the Minister says over the page at the first line ‑

I believe that these assurances are now in place with PNG.

So the Minister plainly understood that he was required by law not to accept blindly the assurances of Papua New Guinea but to give due regard to those assurances by conducting a full or proper investigation as to whether Papua New Guinea had the capacity to carry out those assurances into practical effect.  He did not do that here.  Indeed, in the statement of reasons the Minister chose not to have regard to the international obligations and domestic laws of Papua New Guinea.

Now, I gave your Honours a four or five‑page document on extracts from the treaties that are relevant to our case.  We say this document sets out the primary provisions of the Refugees Convention, the International Covenant on Civil and Political Rights, also the Convention against Torture, the Rome Statute relating to torture and persecution and inhumane acts.  It sets out some of Papua New Guinea’s international obligations and a little bit of the Constitution of the independent state of Papua New Guinea.

This is done to shore up the written submissions that we have put, and in the pleading, where we say that these treaties may well have been breached by Australia in doing what it did.  If it was authorised by the legislation, if an Act authorises a treaty to be breached, then that is not problematic; that is permitted.  Legislation can authorise a breach of a treaty.  But where it does not expressly authorise the breach of a treaty, the Minister in making a designation decision must be alive to these things and your Honours recall from Friday the ministerial advice and the ministerial decision where he said all this international stuff is contestable and I will not have any of it, and that is the Minister’s approach to his international obligations.  We say any one of these provisions of these treaties could well have been breached by what has been done and the Minister had no regard to it whatsoever and the decision is bad as a result.

In terms of the other mandatory considerations, I am content to rest on the submissions that we have put before your Honours.  In terms of the other administrative law grounds that we have put before your Honours, including the proper – we say the Minister failed to give proper, genuine and realistic consideration to the material before him, we say that the Minister had no evidence before him about a number of things and we say that the decision is subject to and afflicted by legal unreasonableness, as it now might be called, formerly Wednesbury unreasonableness.

We think your Honours buried Wednesbury with Lee’s Case but legal unreasonableness seems to be what is emerging.  We do not have much more to say than that, but I do not wish to be seen to abandon those points or to deemphasise them.  We say the legal unreasonableness ground here is significantly strong ground in terms of, if your Honours are not minded to consider the mandatory or relevant considerations ground, we say that Wednesbury unreasonableness or legal unreasonableness should come to the fore. 

How can the Minister, for example, close his mind to some of the most very relevant considerations?  While that might not be a mandatory consideration point, it is plainly a legal reasonableness point, in my submission, and we set that out in the written submissions.  Now, the second decision under challenge, the ministerial decision of 2 August 2013 – it is in the blue book at page 317.  Could I first take your Honours to the statutory requirements under 198AB(5)?

FRENCH CJ:   Is this the complaint about the specification or the degree of specificity of the class in the direction?  So it does not comply with 198AB(5)?

MR ROBINSON:    We do not complain about the class aspect of it, your Honour.  We complain about – subsection (5) says:

If there are 2 or more regional processing countries –

Stopping there, of course there are.  The blue book reveals there is Nauru and Papua New Guinea –

the Minister must –

so that is a directive, mandatory –

in writing, direct an officer to take an unauthorised maritime arrival, or a class of unauthorised maritime arrivals, under subsection (2) to the regional processing country specified by the Minister in the direction.

Now, your Honour, in a moment of clarity, parliamentary counsel managed to set something that is crystal clear, unambiguous, in my respectful submission.  What is to emerge from a direction such as this is that the Minister is to take, if there are two countries, the Department officers are to take a person to one country.

CRENNAN J:   This is directed, is it, to your written submissions at paragraph 110 and onwards on page 19 where you invoke a criticism under the formula, or the word “uncertainty”?

MR ROBINSON:   Yes, your Honour.  The Act is certain.  The Minister’s direction is not.  I will show your Honour.  But, yes, they are ‑ ‑ ‑

KIEFEL J:   Is that because you say the Minister’s direction leaves it to the officer to determine which country to go to?

MR ROBINSON:   Yes, your Honour.  The Act quite plainly, on any construction, says the Minister is to tell them which country, the “country specified by the Minister”.  It is very plain, your Honour.

FRENCH CJ:   That goes to the conditions a, b and c, does it?

MR ROBINSON:   Conditions where?

FRENCH CJ:   “Papua New Guinea, if” a, b and c.

MR ROBINSON:   Yes, your Honour.  That is at page 317 of the blue book.  They are to make their own assessment as to whether there are facilities and services and vacant accommodation in either of the companies and then make another assessment about family groups and whether family groups can be sent over and that affects it.  They are basically making a fairly complicated decision as if they were an administrative decision‑maker, whereas the Act says quite plainly, the Minister is to tell them where to send this person or this class of person.  It is simplicity in itself.  That is the nub of it.

The first reason is it does not comply with the requirements of the statue.  So it is a simple ultra vires argument.  It is also ultra vires if the designation decision is set aside by your Honours or if the constitutional case is accepted by your Honours it will fall.  We say it is also void because the Minister failed to take into account relevant considerations in relation to

this decision, for example, the UNHCR advice.  It is also void for uncertainty because it is just not clear what an officer is intended to do.  It is not enough for a minister to devolve his power to an officer of his department then let them make their mind up unless he does so by an express delegation or unless the Carltona principle applies and none of that is relevant here, your Honours.  The statutory mandate is quite express.  Unless I can assist your Honours, they are my submissions.

FRENCH CJ:   Thank you, Mr Robinson.  Yes, Mr Solicitor.

MR GLEESON:   Your Honours will see from our outline that paragraphs 1 to 10 deal with the constitutional arguments and I propose to deal with those matters and I invite Mr Donaghue, if it is convenient, to deal with the two statutory questions in the remainder of the document.

Your Honours, the constitutional arguments can be considered and dismissed on three basic grounds.  The first is that the plaintiff has mischaracterised the legal and practical effect of the provisions under challenge and that will be enough, we would submit, to dispose of the constitutional challenge.  There are two further grounds upon which to dismiss it that I will deal with more briefly which is firstly, that the concept of proportionality which the plaintiff invokes is in fact a misuse of the role of that concept in this area and secondly, the plaintiff is advancing what we would describe as narrow and cramped conceptions of the scope of the three heads of power in question, although I should recognise at the outset it will probably be unnecessary for your Honours to decide the questions of the boundaries of those powers, if we are correct on the construction of the legal and practical effect of the law.

So, could I come immediately to that question of how to characterise the legal and practical effect of the law, and as we have summarised at paragraph 3 of the outline – and this has been repeated this morning – the plaintiff’s case stands or falls on a proposition that the practical operation of these laws is to provide for a number of matters which the plaintiff describes as control in detention of the class of aliens after they have been removed to the designated country.  That is taken further to a proposition that the scheme provides in the sense of “permits” as a real possibility indefinite detention, detention, it is said, administered by the Commonwealth Executive, legal limbo or refoulement.

KIEFEL J:   With respect to the position of transitory persons that you refer to in paragraph 3, is it to be inferred that the scheme of the statute is that there is some measure of control which is maintained over persons once they have been removed to a designated country because it seems a little difficult then to say that there is a power to bring them out of the country unless there is some power to remove them back from the country.

MR GLEESON:   Yes.

KIEFEL J:   198B.

MR GLEESON:   Yes.  Your Honour, the short answer we would give is, no, but that involves distinguishing between the authority granted under Australian law by these provisions and the more fundamental question that what the scheme does is to remove the persons to the designated country, exposing them to the sovereignty of that country.  The effect of that is that once the person arrives in the designated country, they are subject to the law of that country with its benefits and burdens, such it may be from time to time.

HAYNE J:   That known constat that they do not remain subject in some respect to effective control by Australia.

MR GLEESON:   Well, it is important to deal fairly precisely with that.  If we are focusing on transitory persons who appear to be the only ones of this subject in the Act ‑ ‑ ‑

KIEFEL J:   Well, they are any person taken to a designated country, are they not, under the definition?

MR GLEESON:   Yes.  The purpose of these provisions is, as a matter of Australian law, to confer the authority that would be necessary to make lawful the movement of such persons back to Australia and then their return to the country.  The first point I am making about that is that it does not purport to provide Australia with control over whether those persons can be brought back because that in the first instance would be a question for the law of the designated country whether to permit that to occur.

KIEFEL J:   Does a section like section 198B necessarily imply an arrangement in place with the designated country?

MR GLEESON:   Our short answer to that would be no, it does not necessarily imply any such arrangement.  Whether these powers can be made effective will depend upon whether as a matter of fact there is any such arrangement from time to time and that would be a question, as your Honours raised in argument on Friday, that might arise in different circumstances.  But in terms of assessing validity of this scheme as a whole, our proposition would be that the limited authority conferred under Australian law by these provisions, which will need actions under the foreign law in order to be enlivened, does not stamp the scheme with a character posited by the plaintiff, namely, a scheme whereby, as per paragraph 3 of our outline, detention occurs in the designated country by force of the practical operation of the Australian law or control is exercised, let alone any of the other matters that the plaintiff referred to.

HAYNE J:   It may be necessary, may it not, Mr Solicitor, to be, as you say, rather precise, but I put a series of propositions to you.  First, is it the Commonwealth’s submission that the impugned provisions contemplate but do not require that there will or may be processing in a regional processing country?

MR GLEESON:   Yes, that is correct.

HAYNE J:   As I understand the plaintiff’s submission, the second proposition is that, attempting to put it neutrally, it can be observed from the documents that there is an attempt to control what will happen to asylum seekers beyond the moment of their removal from the jurisdiction of Australia and that the plaintiff seeks to characterise that attempt to control as a practical operation of the Act revealing invalidity.  There are two points in there.  One, do you accept or challenge that the documents to which we have been taken indicate Australia’s making an understanding with the country of reception ‑ whether it is an arrangement or an agreement I leave aside – about what will happen to asylum seekers or, sorry, UMAs, to use the jargon, after they are removed?

MR GLEESON:   The short answer is yes, within the confine of the issues that are before your Honours.  The first issue before your Honours is whether the scheme as a whole is invalid and that hinges on the proposition that the scheme that is irrespective of which country might be designated or what might be the arrangements with that particular country sufficiently has the features your Honour summarised in proposition 2. 

To the extent that that is what the plaintiff is putting, that the documents allow us to observe that Australia attempts to control what occurs in the foreign country, our proposition is no, the scheme as a whole does not allow that conclusion, and what the plaintiff has done in what we would describe as a fairly indiscriminate traversing of a whole lot of material is to confuse rather than enlighten the constitutional question as to the practical operation of the scheme.  It is quite offensive to principle to say let me take you, for instance, to a memorandum of understanding entered in the middle of 2013 with one particular country which says particular things and from that ask you to infer that that is the practical operation of the scheme. 

So while I accept with proposition 2, your Honour, that is a neutral way of – and less inflammatory way of summarising what the plaintiff seeks to put, so far as it is a challenge to the scheme as a whole we would submit that is not following the conventional method of looking at what this law actually does by way of rights, powers, privileges, immunities and the like because the critical feature of the law is that when the person is removed to the designated country from that point in time they are to become subject to the legal responsibility of that country.

HAYNE J:   The third proposition would be that what is identified by the plaintiff as the practical operation of the Act, and understanding the qualifications you have just made about those matters, what the plaintiff identifies as the practical operation of the Act is either, on the one hand, permitted or required by the Act or, on the other hand, the Act is silent about those matters.  Do I understand your submission to be that the Act is silent about those matters or do you say that they are matters permitted or required?

MR GLEESON:   Our position would be the Act is essentially in the latter category.  It is silent about those matters.  The one qualification to that is the answer I have given on transitory persons, namely, for that limited category of persons the Act provides such authority as is needed under Australian law but not under the foreign law to permit that particular activity within the scheme.

HAYNE J:   The fourth proposition is this, that if contrary to your position the Act permitted or required operation of the kind described as practical operation there may, there may not be a question about validity of that aspect of the operation of the Act.

MR GLEESON:   I would accept that would arise and that would then be tested in a case where that operation of the Act was the issue before the Court and that again, with respect, is not the issue as joined in this case because the issue is first of all, does the whole lot stand or fall and then, secondly, when a particular designation was made of one country, the matter Mr Donaghue will deal with, the case seems to be essentially that the Court should read back into the Act as mandatory considerations the matters which were mandatory considerations under the former scheme but clearly not under this scheme.

If that line of defence is correct, without summarising too much material, that is probably the end of the plaintiff’s case on the second point.  On the third point, the short answer to the third point is the matter raised in the first instance by your Honour Justice Kiefel in argument, that if there were some problem with the particular direction as to which country to send a class of persons to, it would not relieve the officer from the duty under subsection (2) to nevertheless take the person to a designated regional processing country which includes, in this case, PNG.

So, for the three issues before the Court, we would submit they can be adequately answered in that fashion.  There is one issue left in the case which concerns the more particular taking of this person to this place and there seems to be agreement that that is appropriate in the first instance to be remitted, but we would observe, to the extent your Honours have raised questions which may well be important and profound questions about the role of the arrangement, if any, with a particular country in a particular case, and what follows from it, that is not for today.

The fact that this is a provision essentially concerned with matters internal to the Department rather than as between the Department and the unauthorised maritime arrival is further emphasised by subsection (9), which excludes the rules of natural justice in respect of the making of a determination, and indeed by the breadth of the power. 

This is a power, the only condition for the performance of which is the Minister’s view about the public interest.  It is not, in our submission, a power that contemplates the conferral of some right upon a UMA to affect in any way the choice of regional processing country to which they are sent.  It is a practical tool for the Minister to give instructions to his or her Department as to the way the scheme should be administered.

The attack is that the direction that was given is uncertain.  We submit that the manner in which your Honours should approach that argument is usefully addressed in a judgment of Ex parte Zietsch (1944) 44 SR (NSW) 360. It is a judgment given by Chief Justice Jordan on behalf of the Full Court of the Supreme Court of New South Wales. If I could ask your Honours to go to that because this case, in our submission, emphasises that the inquiry is not an abstract or an intellectual inquiry. It is a practical inquiry about whether or not a direction is sufficient to serve its practical purposes.

The case is a long way from the present facts.  It concerned regulations fixing the price of bottles of gin under the National Security (Prices) Regulations.  Your Honours can see that at the bottom of page 361.  The direction that had been given fixing the prices was challenged on a number of grounds which are summarised in the middle of page 362.  There are five grounds summarised, and the relevant ground for our purposes is ground 3, that the regulation was “too uncertain to be enforceable”. 

The court deals with the first two grounds over from the bottom of 362 through to the middle part of 365.  If your Honours turn to the middle of 365, Chief Justice Jordan then turns, in the event that it is necessary, to the third ground and, reading about four lines down in that paragraph, says:

The rule that a statutory regulation or order, to be valid, must be sufficiently certain, that is, clear enough to enable those to whom it is addressed to know the nature and extent of the legal duty which it imposes, is one that has received a good deal of discussion in several recently decided cases –

Then skipping about six or seven lines down, his Honour says –

The question is whether it is sufficiently clear in its present context.  In approaching such a question, in relation to any word, expression or nexus of expressions, I think that the following general considerations should be kept in mind –

I will not read the rest of that paragraph to your Honours, but his Honour summarises five principles that are all really directed to the question of whether or not the regulation is sufficiently clear to serve its practical purposes, and his Honour emphasises that some degree of uncertainty is not conclusive against the question of validity.

In our submission, when one looks at the direction in this case that is challenged – and your Honours will find that on page 317 of the special case book, or stated case book – it is a direction that starts by separating the total class of unauthorised maritime arrivals into four groups and, as we understand it, no complaints made about that.  It then directs the officer to take unauthorised maritime arrivals within those groups to Papua New Guinea if three conditions are satisfied, and the complaint is about the specificity of those conditions.

FRENCH CJ:   Well, it is also about the conditional nature of the direction, is it not, that a, b and c are conditions which make this something other than a specification of the country?  I am looking at 104 to 106 of the plaintiff’s submissions.

MR DONAGHUE:   Yes.  Well, in our submission, having regard to the nature of the conditions there identified, they call for what is, in our submission, a fairly simple factual inquiry.  The Minister has set the parameters for who goes where, and taking, for example, b, there is an objective answer to the question, where is there more vacant accommodation?

FRENCH CJ:   I understand that.  I think the first line of argument being put against you is the Minister is entitled to say – to define the class and say:

the officer should take the unauthorised maritime arrival to:

A.      Papua New Guinea –

full stop, and has to make the decision for himself whether or not that country is to be a specified – or that that is the specified country for the purposes of that class of arrival.  So the first line of argument is not about the uncertainty of the conditions, it is about the fact there are conditions at all.

MR DONAGHUE:   At all, yes.  Well, your Honour, in our submission, the Court should not read a power of this kind so narrowly that it does not allow the Minister to set criteria rather than to just answer the question in every case, and the fact that the Minister has to do this personally is, we submit, a reason why your Honours should not require, on a planeload‑by‑planeload basis, the Minister to make a decision if the characteristics that are selected are such that they can properly be answered by reference to sufficiently clear criteria.

In our submission, in the context of a power designed to give the Minister capacity to manage the system, and in a context where as Chief Justice Jordan set out, the question is whether this is sufficiently clear to serve the practical purpose – sufficiently clear to its intended audience to serve the practical purpose, the fact that this is a direction that goes to officers of the Department rather than the world at large tends, in our submission, in the direction that these criteria are matters that could readily be answered by the officers to whom the direction is received.

So, in our submission, whether or not some vaguer or wider criteria could properly be used in specifying a country where the criteria are of a kind that can readily be answered by available to objective facts, then the direction is sufficient to specify the country to which a person should be

taken.  The capacity for there to be some level of abstraction is, in our submission, further supported by the fact that this is a power that can be exercised with respect to classes of person so it is contemplated that the Minister might rather than just saying this planeload of people must go to PNG or Nauru, once there is capacity for the designation of a class that suggests some freedom to specify criteria that identified persons.

So, your Honours, we submit that taking this provision within the context that it appears and having regard to the audience to which it is directed, your Honours should not find that there is any invalidity in the direction that was given by the Minister on 29 July.  But, as I said in opening my submissions on this part of the case, even if your Honours were to find otherwise, your Honours should not find that that had any consequence in circumstances where the duty under 198AD(2) would directly apply in any event.

In the particular context of this plaintiff, he was a single adult male transferred to PNG in circumstances where there was plainly more vacant accommodation in PNG than in Nauru and in circumstances where, in fact, this transfer occurred just a matter of weeks after the regional resettlement arrangement had been concluded between Australia and PNG, which is set out on page 273 of the book, and which contemplated that UMAs would be transferred to Papua New Guinea for the purpose of resettlement – permanent resettlement in Papua New Guinea rather than any arrangement that contemplated prolonged detention in PNG pending resettlement in Australia or any other country.  Your Honours, unless I can be of any further assistance, those are our submissions.

FRENCH CJ:   Thank you, Mr Donaghue.  Yes, Mr Robinson.

MR ROBINSON:   To answer further her Honour Justice Kiefel’s question earlier on the Minister lifting the bar of my client in Australia at a time when section 198AD applied to him and other refugee applicants who arrived by boat, the stated case describes that the plaintiff arrived in Australia on 23 July 2013.  The Court can accept that he was taken from Australia on 2 August 2013.  He had only been here 10 days.  The discovered material that is contained in the stated case shows that section 198AE – that is where the Minister can lift the bar – was never drawn to the plaintiff’s attention.  There was no notification of it whatsoever in the material that is in the stated case.  That is the defendant’s discovery.  

There is also, when one considers the text of 198AE, no process, no provision for an application to be made to the Minister to exercise his power personally to lift the bar in respect of an individual.  The section does not talk about classes of persons ‑ it only talks about an individual ‑ but there is no provision whatsoever to apply. 

So, one would have to be pretty knowledgeable, pretty up to speed with current migration law.  One would have to be notified preferably if one has just arrived from Iran to Australia to be savvy enough to ascertain that there is a new scheme in town and one had better go to the Minister quickly to ask him or her to lift the bar.

KIEFEL J:   I think my question was addressed to the bar which might be lifted under section 46.  That is the bar to actually make an application.

MR ROBINSON:   Well, your Honour will see that there is nothing in the material relating to that whatsoever and that also was not notified to him.

KIEFEL J:   Well, there is no suggestion the Minister turned his mind to that question either.

MR ROBINSON:   He was not able to make a valid application.  My friend is pointing out paragraph 26 – 28 of the stated case.  It says he was “not able to make a valid application for a visa”.

KIEFEL J:   The Minister did not ‑ ‑ ‑

MR ROBINSON:   Take any steps.

KIEFEL J:   Did not consider exercising it.

MR ROBINSON:   The second matter I wish to address briefly is the designation decision under 198AB.  My friends suggest, although they do not state, that the decision is not justiciable in this Court.  They do not say those words.  They say that Parliament has its imprimatur over it, writ large, so the implication is this Court should leave it alone entirely, the designation decision. 

But this Court is well aware that there is no such thing as unfettered discretion.  Any power that is cast in discretion, unfettered in its terms, must be exercised reasonably and we have raised in this case a reasonableness case.  It must also be exercised in accordance with administrative law principles, whether it is cast as a delegated legislative instrument or an instrument of some kind or whether it is a pure administrative decision under an enactment.  It must be made reasonably and it must be made in accordance with basic administrative law principles and, in my submission, the heavy emphasis that my learned friend gave in submissions as to the involvement of Parliament ought not sway this Court from examining it as it appropriately is, that is an exercise of statutory power which we say went horribly wrong.

Even invoking Parliament in this particular case is not very wise in the sense that Parliament itself was misled.  The Minister chose not to wait for the UNHCR letter.  The Minister chose to take the designation decision, then not effective, to the House of Representatives.  It was approved.  Then he received the letter.  Then he chose not to take it to the Senate and after the Senate voted, without the crucial piece of information, being the UNHCR report, the Senate voted to approve it and then the Minister tabled it later that day when it did not really matter.  The matter had already come and gone from the Senate.

So the parliamentary process in this particular case has been proved to be largely ineffective because both the Minister and the Parliament failed to wait for crucial information and the Minister knew it.  I would accept that Parliament was not necessarily aware that crucial information had been sought from the UNHCR in terms of a letter responding to the Minister’s letter just six days earlier, but Parliament presumably was not aware.  They are my submissions, your Honour.

FRENCH CJ:   Yes, thank you, Mr Robinson.  The Court will reserve its decision.  The Court adjourns until 10.15 tomorrow morning.

AT 2.40 PM THE MATTER WAS ADJOURNED