Plaintiff S195/2016 v Minister for Immigration and Border Protection

The High Court of Australia considered a special case brought by Plaintiff S195/2016 against the Minister for Immigration and Border Protection. The dispute concerned the validity of actions taken by the Commonwealth in relation to regional processing centres for unauthorised maritime arrivals in Papua New Guinea (PNG), following a decision by the Supreme Court of PNG that the treatment of such arrivals at the Manus Island centre was contrary to PNG law. The plaintiff sought to invalidate past and future actions of the Commonwealth, its officers, and the Minister, arguing they were unlawful under the Australian Constitution or section 198AHA of the *Migration Act 1958* (Cth) due to the PNG Supreme Court's ruling.

The Court was required to determine several legal issues. These included whether the designation of PNG as a regional processing country was beyond power due to the PNG Supreme Court decision, and whether various agreements and contracts entered into by the Commonwealth, including a Memorandum of Understanding, a Regional Resettlement Arrangement, administrative arrangements, and a contract with Broadspectrum, were beyond the Commonwealth's constitutional or statutory power. The Court also had to consider whether a ministerial direction and the plaintiff's transfer to PNG were invalid by reason of the PNG decision, and crucially, whether the statutory authority for regional processing arrangements in PNG under section 198AHA was contingent on those arrangements being lawful under PNG law.

The High Court rejected the plaintiff's primary submission that the Australian Constitution denies the Commonwealth any legislative or executive power to participate in activities in another country that are unlawful under that country's domestic law. The Court held that neither the legislative nor the executive power of the Commonwealth is constitutionally limited by a requirement to conform to international law or the domestic law of another country. The Court found that compliance or non-compliance with another country's domestic law has no bearing on the statutory authority or executive capacity of a Commonwealth officer to take action, absent express or implied limitations imposed by Australian Parliament. Furthermore, the Court found that the *Migration Act 1958* (Cth) definition of "arrangement" in section 198AHA(5) is broad enough to encompass understandings or agreements that are not legally binding, and therefore, even if the arrangements with PNG were beyond PNG's lawful power, they would still fall within the scope of section 198AHA.

The Court answered the questions posed in the special case. It held that the designation of PNG as a regional processing country, the entry into the various agreements and contracts, the ministerial direction, and the plaintiff's transfer to PNG were all within power and not invalidated by the PNG Supreme Court decision. The Court also determined that the authority for the Commonwealth to undertake conduct in respect of regional processing arrangements in PNG under section 198AHA is not dependent on the lawfulness of those arrangements under PNG law, and that the Commonwealth is not precluded from assisting PNG in taking action pursuant to the relevant orders. The plaintiff was ordered to pay the costs of the special case.