Reflection on the Recent High Court Decision on Refugees
The recent High Court decision of Plaintiff M68[1] has important implications for Commonwealth Government immigration detention policy, and the fate of refugees seeking asylum in Australia.
The decision concerned a Bangladeshi woman originally detained on Nauru after arriving into Australia’s migration zone. The woman was brought to Australia during late stage pregnancy for urgent medical treatment. This decision was also linked to the possible transfer of many other asylum seekers who have been brought to Australia for medical treatment, including 37 babies.
With the threat of transfer by the Government back to Nauru, a challenge was brought to the High Court on a number of fronts; namely, that the Government had no power to enter into its agreement with Nauru for the establishment of off-shore detention centres, and that the Government had no power to fund and participate in Nauru’s detention programs.
In its decision, the High Court held that the agreement with Nauru was a valid exercise of executive power, and that the transfer and participation in detaining refugees in Nauru was equally authorised by the Commonwealth’s Migration Act.[2]
The High Court restated a long held principle; that the detention of an individual for whatever reason is a deprivation of liberty, and such measures can generally only be imposed by a Court. This is to ensure that Government cannot simply imprison people arbitrarily. However, one clear exception to this rule is the Government’s ability to detain people for a very limited number of administrative purposes, where one of these purposes is the detention of aliens for their processing and deportation.[3]
So it follows, whilst the Government’s detention of asylum seekers may be punitive, as long as it is for a recognised and legitimate administrative purpose, it will remain lawful under the Constitution. The Court held that the regime of detention in Nauru met this administrative purpose.[4]
However, there are two points to take out of this reasoning. The first is that the High Court reaffirmed that notwithstanding that off-shore detention was occurring on Nauruan soil, and under Nauruan law, the Commonwealth Government’s participation is still subject to the constraints of the Constitution.[5] This means that Australia remains responsible for its involvement in off-shore detention centres, which cannot avoid the scrutiny of our Courts.
The second point is that the High Court reaffirmed that where the Commonwealth Government participates in off-shore detention centres to process or deport individuals, these regimes must be demonstrated as ‘reasonably capable as being seen as necessary for the purpose’.[6] This means that these off-shore detention centres must genuinely operate to process the claims of asylum seekers, and cannot exist merely for detention. This also brings the operation and processing mechanisms of the detention centres under the review of our courts.
Recognising that these points are small victories for the rights of asylum seekers, and little consolation to those currently under threat of transfer, there is one further question that wasn’t directly put in issue in the Case. That is whether or not a requirement that detention centres be ‘reasonably necessary’ for the purpose of processing asylum seekers extends to the conditions of detention? Are asylum seekers also afforded certain minimum standards?
Lower courts have previously held that ‘the length and circumstances of the detention contemplated are…significant.’[7]
Invariably, some forms of detention are more punitive than others, and Nauru has been consistently called out for its harm to asylum seekers. This harm has been seen particularly with regard to children, with recognised breaches of various human rights instruments including the Convention on the Rights of the Child.[8]
Whilst the High Court dismissed the argument that the purpose of the off-shore detention regime was punitive (holding that this was merely a consequence of the administrative purpose), to what standard do these off-shore detention centres have to fall below for the circumstances to be considered beyond reasonably necessary? Is this a case of focusing on form and not substance?
Ultimately, the effect of the High Court’s decision is that some 260 asylum seekers in Australia, including the 37 babies, continue to exist under a cloud of uncertainty, where they can be validly transferred by the Government back into detention in Nauru. Outside of the High Court’s decisions, the only resort is now to petition the Government to exercise its discretion.
[1] Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1.
[2] Migration Act 1958 (Cth).
[3] Above n 1 [40]; Chu Keng Lim v Minister of Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 30-31.
[4] Above n 1 [46].
[5] Ibid [155 -166].
[6] Ibid [46].
[7] The Queen v Garry Kenneth McKay and The Queen v Darren John West, [1998] ACTSC 128 (Unreported, Crispin J, 2 December 1998), [11] (emphasis added).
[8] Australian Human Rights Commission, ‘The Forgotten Children: National Inquiry into Children in Immigration Detention’ (2014), 29, 195 [12.18].
