Plaintiff M70/2011 v Minister for Immigration and Citizenship: A Comment

Readers will probably be aware that on 31 August 2011 the High Court of Australia decided that the removal of asylum seekers from Australia to Malaysia was unlawful. Plaintiff M70/2011 v Minister for Immigration and Citizenship1 is significant for its immediate consequences and for the profound implications it has on the Australian governments ability to implement policies of deterrence (in relation to irregular maritime arrivals) and offshore processing in the future. This Comment will review those aspects of the High Courts decision that deal with the Ministers power to designate a third country for offshore processing, and consider how this decision might affect the future design of asylum policy in Australia.

Plaintiff M70s case

Under the Howard government, a complex legislative scheme was put in place to deal with asylum seekers that arrived in Australia in an unauthorised manner, by boat. Purportedly to provide a solid legal foundation to the Executives decision to remove asylum seekers on board the MV Tampa to Nauru,2 s198A was added to the Migration Act 1958 (Cth) in late September 2001. This move heralded the acceptance of offshore processing of asylum seekers as a credible policy in Australia. When Labor came to power in 2007, the policy of sending asylum seekers to Nauru was halted however, the underlying legislative framework was not dismantled and an impoverished version of offshore processing continued on Christmas Island.3 Prior to Plaintiff M70s case, for reasons unclear from the historical record,4 s198A was never been comprehensively litigated.5 In Plaintiff M70s case the validity of the Ministers declaration, under s198A(3), that Malaysia was a country to which asylum seekers could be safely removed from Australia, was challenged.6 In summary, the High Court decided that: The only power by which asylum seekers can be removed from Australia without having been processed, is s198A(1). Other removal powers, for example

[2011] HCA 32. Hereafter referred to as Plaintiff M70s case. An extreme exercise of raw executive power challenged in the Federal Court by a Melbourne lawyer: Ruddock v Vadarlis (2001) 110 FCR 491. 3 Mary Crock, First Term Blues: Labor, Refugees and Immigration Reform (2010) 17 Australian Journal of Administrative Law 205, 206. NB the extent to which processing on Christmas Island was separate from the manner in which asylum claims are processed on the Australian mainland was clarified in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14. 4 Mary Crock and Daniel Ghezelbash, Due Process and Rule of Law as Human Rights: The High Court and the Offshore Processing of Asylum Seekers (2011) 18 Australian Journal of Administrative Law 101, 113. 5 The Ministers declaration of Nauru under s198A(3) was the subject of a collateral challenge in a series of litigation that concerned an unaccompanied minor who was brought to Australia as a transitory person: P1/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1029; P1/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1370; Plaintiff P1/2003 v Ruddock [2007] FCA 65; Sadiqi v Commonwealth of Australia (No 2) (2009) 181 FCR 1; Sadiqi v Commonwealth of Australia (No 3) [2010] FCA 596. 6 The Ministers power to remove unaccompanied minors under the Immigration (Guardianship of Children) Act 1946 (Cth) was also challenged, but the Courts reasoning on this point will not be considered.
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Plaintiff M70/2011 v Minister for Immigration and Citizenship: A Comment

s198(2), do not apply to asylum seekers whose claims for protection have not been assessed by the Australian government.7 In order to, lawfully, remove asylum seekers from Australia under s198A(1), a valid declaration under s198A(3) must be in force. The Ministers declaration, on 25 July 2011, in relation to Malaysia, was invalid because Malaysia did not meet the criteria set out in s198A(3)(a)(i)-(iv). These criteria are deemed to be jurisdictional facts.8

The concept of jurisdictional fact is difficult to explain. According to previous case law from the High Court, [t]he term jurisdictional fact (which may be a complex of elements) is often used to identify that [statutory] criterion, satisfaction [or existence] of which enlivens the power of the decision-maker to exercise a discretion.9 In essence, finding that something is a jurisdictional fact creates a legal mechanism by which courts can scrutinise the decisions of executive officers against the statutory provisions that authorise their action, using those provisions as objective standards. In Plaintiff M70s case, the High Court held that the existence of international and domestic legal obligations upon Malaysia, to provide protection for refugees, and access to processing for asylum seekers, were objective standards upon which the Ministers power to make a declaration rested. In the absence of proof that those standards were objectively met, the Minister lacked legal authority s198A(3). This is an important, and arguably controversial, outcome because the language of s198A(3) does not, on its face, require proof of the criteria specified, nor that the Minister be satisfied of the objective existence of those criteria, before the power can be exercised.10 Looking to the Bills Digest, it appears that the making of a declaration was contemplated to reflect the existence of certain facts, even though the Minister would not have to be satisfied that certain factors existed before he or she could make a declaration.11 In any event, the capacity for the High Court to scrutinise executive decision-making is especially important in cases where there is no other mechanism for review,12 and a decision can significantly affect the rights and interests of vulnerable people. The political system to which Australia subscribes is underpinned by the fundamental concept of checks and balances simply put, no arm of government, neither Parliament, the executive nor the judiciary, has supreme decision-making power. In his dissent, Heydon J wrote: a decision to make a declaration under s 198A(3)(a) is a decision which pertains to the conduct of Australia's external affairs. It concerns
Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32, paras 54-55 (French CJ); paras 83-99 (Gummow, Hayne, Crennan and Bell JJ); paras 227-239 (Kiefel J). 8 Ibid, paras 106-116 (Gummow, Hayne, Crennan and Bell JJ); paras 207-211, 240, 255, (Kiefel J). Cf French CJ held that the jurisdictional fact was the Ministers overall opinion or belief that each of the matters set out in s 193A(a)(i)-(iv) is true per para 59. Indeed, each of the judgments resolved this issue in a slightly different manner. 9 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, para 28 (Gleeson CJ, Gummow, Kirby and Hayne JJ). 10 John Carroll and Cain Sibley, The High Courts Refugee Swap Decision: Beware the Hidden Jurisdictional Fact (29 September 2011) Clayton Utz Insights. 11 Department of Parliamentary Library (Cth) (Dy Spooner and Nathan Hancock), Bills Digest, No 70 of 2001-02, 26 September 2001, 5. 12 In this regard, consider Senator Sarah Hanson-Youngs proposed amendments to the Migration Act that would make a declaration under s198A(3) a legislative instrument that could be disallowed by Parliament: Migration Amendment (Declared Countries) (No. 2) Bill 2011. The Bill obviously stands in opposition to the Gillard governments proposed amendments (discussed below) and it is likely to be voted on, alongside the governments controversial Bill, at Parliaments next session.
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Plaintiff M70/2011 v Minister for Immigration and Citizenship: A Comment

dealings between Australia and friendly foreign states. Those dealings are within the province of the Executive. Intrusion by the courts into those dealings may be very damaging to international comity and good relations. The Minister is accountable to Parliament for his conduct of those dealings. He may be questioned. He may be criticised. He may be condemned by Parliamentary resolutions. He may have to resign. His conduct may lead to the passing of a motion of no confidence in the Government of which he is a part, and thence to the fall of that Government. As a practical matter he is also liable to condemnation before the court of public opinion. But, unless it can be shown that he has not formed in an evaluative judgment, after asking the correct questions, that what he declared was true, he is not accountable to courts of law.13 While none of the judgments in the majority address the points raised by Heydon J, the decision stands as an affirmation that the judiciary will not shy away from its duty to limit the exercise of broad, and potentially harmful, ministerial power. This willingness is especially important in situations such as Plaintiff M70s case, in which the judiciary is the only effective backstop to the exercise of coercive power.

The Political Response

Following the High Courts decision in Plaintiff M70s case, the Solicitor-General advised the Federal Government that he was not confident, on the material with which he had been briefed, that valid declarations could be made in relation to Nauru or Papua New Guinea under s198A(3).14 This advice has been the subject of criticism in the media, in particular, because any betting man would put money on a majority of the justices giving Nauru a big tick under the current legislation.15 In light of the Solicitor-Generals advice, the Prime Minister and Minister for Immigration and Citizenship, Chris Bowen, announced that the Government would introduce legislation to amend, among other things, the scope of the Ministers declaratory power under the Migration Act 1958 (Cth).16 The proposed amendments are, disturbingly, broad.17 The only criterion that purports to condition the Ministers declaratory power is the national interest. Furthermore, though there is a weak requirement that the Minister table certain documents in relation to the declaration in Parliament, the only purpose for doing so is to inform Parliament. Critically, the declaration is not invalidated by a failure to comply with the provision. After some political manoeuvring, the Bill was introduced into Parliament on 21 September 2011.18 On 13 October, the Prime Minister and Minister Bowen indicated that the Government would not proceed to a vote on the Bill after Tony Crook indicated he would not

Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32, para 163. 14 See generally, Solicitor-General (Cth), Opinion, No 21 of 2011, 2 September 2011. 15 James Allan, Gageler Too Risk Averse in his Advice on Nauru Option, The Australian, 16 September 2011, 30. See below for further discussion on this point. 16 Prime Minister and Minister for Immigration and Citizenship, Legislation to Restore Migration Act Powers (Media Release, 12 September 2011). 17 Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011. See further, Adam Fletcher, Undermining the Migration Act, ABC News (online), 13 October 2011. 18 Jeremy Thompson, Gillard Offers Abbot Revised Migration Changes, ABC News (online), 19 September 2011.

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Plaintiff M70/2011 v Minister for Immigration and Citizenship: A Comment

support the amendments, making it impossible for the Bill to pass the House.19 The Government blames Mr Abbott and his determination to trash the national interest for the failure of the Malaysian arrangement.20 The Bill remains on standby in the unlikely event the Opposition changes its mind. Whatever the outcome, the introduction of this Bill into Parliament is a sad reflection of the extent to which the Government is prepared to contort and tweak asylum procedures to the detriment of refugee rights, the rule of law, and Australias international reputation. Lastly, it bears mentioning the Senate Legal and Constitutional Affairs References Committees review of the Malaysian arrangement published on 11 October.21 Predictably, the Committee split according to party lines, with the three Liberal senators, and Senator Sarah-Hanson Young of the Australian Greens, recommending the arrangement be abandoned, while the two Labor senators recommended the immediate implementation of the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill. The review adds little to the discussion but it is a clear statement of the current manner in which the Coalition, Labor and the Greens rationalise their support (or not, in the case of the Greens) for offshore processing policies.

Assessing the Solutions Currently on Offer

Plaintiff M70s case is also significant because it provides a clearer framework with which to assess the differences between Labor and the Coalitions policies on asylum seekers. Disappointingly, the case has not spurred a change in the policies propounded by the major political parties. The arrangement with Malaysia and offshore processing in Nauru, as it was implemented by the Howard government, are often discussed as alternative solutions in the media. While both policies are apparently designed to achieve the same effect - that is to stop the boats - they are premised on different conceptions of offshore processing: therefore, their practical effects are distinct. Offshore processing has no universal or technical definition. In a recent policy paper, UNHCR outlined several models of extraterritorial processing that it considers to comply with the international legal standards of refugee protection and principles of burden sharing. 22 Coupling UNHCRs framework with the High Courts decision in Plaintiff M70s case, it is possible to classify the Malaysian arrangement as (failed) Third Country processing, and the Pacific solution on Nauru as out of country processing. In other words, the arrangement with Malaysia is a virtual turnaround of boats23 a complete transfer of Australias responsibility to a third state. In contrast, out of country processing on Nauru simply splits the Australian governments legal obligations from the geographical location of the State. Understanding this fundamental difference raises the issue of how s198A would apply to processing on Nauru. As David Bennett QC, a former Solicitor-General who has been advising the Coalition, points out the High Court did not answer the question whether compliance by the country delegating to Australia the relevant operations is sufficient to
Joint Press Conference of the Prime Minister and Minister for Immigration and Citizenship (Canberra, 13 October 2011). 20 Ibid (Julia Gillard). 21 Senate Legal and Constitutional Affairs References Committee, Parliament of Australia, Australias Arrangement with Malaysia in relation to Asylum Seekers (2011). 22 UNHCR, Maritime Interception Operations and the Processing of International Protection Claims: Legal Standards and Policy Considerations with respect to Extraterritorial Processing (Protection Policy Paper, Division of International Protection, November 2010). Unless otherwise indicated, the arguments developed in this section are drawn from this policy paper. 23 Commonwealth, Parliamentary Debates, House of Representatives, 12 September 2011, 56 (Julia Gillard).
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Plaintiff M70/2011 v Minister for Immigration and Citizenship: A Comment

satisfy the criteria (as was achieved with Nauru).24 Leaving aside whether a valid declaration could be made in favour of Nauru, following Plaintiff M70s case, if an asylum seeker is geographically removed to Nauru, but remains within Australias legal jurisdiction, can that person be said to have been removed at all? This Comment cannot attempt to answer this question. The answer hinges on complex considerations of executive power, international law and detention. The purpose of this raising this matter is to illustrate that Plaintiff M70s case leaves open critical questions about the scope of jurisdiction.

Implications for Future Policy and Advocacy

The High Courts decision in Plaintiff M70s case, combined with a political stalemate, has left Australian asylum seeker policy at an interesting crossroads. This last section considers important three points for research and reform moving forward.

Reforming Mandatory Detention and Access to Legal Aid Onshore

For the foreseeable future, all unauthorised arrivals claiming asylum in Australia will be processed onshore. This practical reality calls into serious question the sustainability of mandatory detention, despite the Governments commitment to this policy.25 Advocates have lobbied for an end to mandatory detention since its inception, especially as it has no proven deterrent effect.26 In the context of the current crisis in detention centres, and the painstaking nature of the refugee status determination process, it would be ethically unconscionable and perhaps legally dubious,27 for the Government to continue to warehouse asylum seekers for the duration of their processing. In addition, improving processing will require better access to legal aid for asylum seekers. On this matter, it will be interesting to consider the recommendations of the Joint Select Committee on Australias Immigration Detention Network, whose findings are due to be published in March 2012.28

Deconstructing the People Smugglers Business Model

In response to the High Courts decision in Plaintiff M70s case, the Gillard government has consistently maintained its wish to pursue the arrangement with Malaysia, citing expert advice that removing asylum seekers to Malaysia is the best deterrent for people smuggling.29 However, without independent research and analysis, it is difficult to test the merits of the Governments assertion. As such, public and independent research into the nature of people smuggling to Australia will become increasingly important and valuable.30 The added benefit of this research will be to push the frontiers of Australias asylum debate

David Bennett, Offshore Processing Still Possible Despite High Court Decision, Sydney Morning Herald, 12 September 2011,13. 25 See, Joint Press Conference of the Prime Minister and Minister for Immigration and Citizenship (Canberra, 13 October 2011). 26 On this point, see International Detention Coalition, Ten Things IDC Research Found About Immigration Detention (13 May 2011). Consider also, Human Rights and Equal Opportunity Commission, A Last Resort? National Inquiry into Children in Immigration Detention (2004). 27 In the past, the High Court has held that there is no limit on the executives power to detain a person under the Migration Act, provided it is for a purpose specified in s196, even if the possibility of that purpose being fulfilled is remote: Al-Kateb v Godwin (2004) 219 CLR 562. 28 To find information about the Committees term of reference and the submissions received by the inquiry, see Joint Select Committee on Australias Immigration Detention Network. 29 See, eg Commonwealth, Parliamentary Debates, House of Representatives, 12 September 2011, 47 (Julia Gillard). 30 Some researches have already taken up this challenge. See, eg University of Queensland Migrant Smuggling Working Group.

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Plaintiff M70/2011 v Minister for Immigration and Citizenship: A Comment

to consider the situation of asylum seekers and refugees in the region and the state of refugee protection and immigration laws in other countries in our region.31

Regional Cooperation
While sending asylum seekers to Malaysia may have been a misguided policy, the decision to increase Australias resettlement quota from Malaysia should be praised. Australias South East Asian neighbours are home to hundreds of thousands of asylum seekers and refugees.32 In the context of the Bali Process, Australia has the capacity to pursue genuine regional cooperation on people smuggling as well as refugee issues.33 This engagement should be based on a genuine adherence to principles of burden sharing.

Concluding remarks
Plaintiff M70s case has left the legal and political discussion about the unauthorised arrival of asylum seekers at a crossroads. While the decision is important for its affirmation and development of fundamental legal principles, its significance lies in the implications it has for the design of asylum and refugee law and policy in Australia. It provides an ideal context to pause and reaffirm what is truly at stake in these policies: namely, the rights and interests of vulnerable people, asylum seekers, who seek Australias protection; the relationship between the legislative, executive and judicial arms of the Australian government; and, Australias regional and international reputation. It can only be hoped that policy makers will not squander this opportunity to redefine Australian law and policy to better reflect our legal obligations and values. Marissa Dooris

Savitri Taylor and Brynna Rafferty-Brown, Difficult Journeys: Accessing Refugee Protection in Indonesia (2010) 36(3) Monash University Law Review (forthcoming). 32 For statistics, see UNHCR, Global Trends 2010 (2011), 39-40. In particular, consider statistics for Thailand, Malaysia and Indonesia. NB Malaysia is also home to the worlds largest UNHCR refugee status determination (RSD) operation. For more on RSD by UNHCR, see RSDWatch. 33 The Bali Process is a regional forum that was set up by the Australian and Indonesian governments in 2002 to address people smuggling, human trafficking and other transnational crimes in the AsiaPacific.

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Plaintiff M70/2011 v Minister for Immigration and Citizenship: A Comment