In S156-2013 v Minister for Immigration and Border Protection  HCA 22 the High Court has today rejected a challenge to the provisions of the Migration Act 1956 providing for the designation of regional processing countries, and the particular designation of Papua New Guinea as one such country.
Section 198AB of the Act provides that the Minister may, by legislative instrument, designate that a country is a regional processing country. The only express condition for the exercise of this power is that "the Minister thinks that it is in the national interest to designate the country to be a regional processing country". In considering that national interest, the Minister must have regard to whether or not the country has given Australia assurances to the effect that they would not be refouled, and that they would provide a system for the making of refugee determinations in accordance with the Refugees Convention.
Section 198AD of the Act provides that unauthorised maritime arrivals ("UMAs") must, as soon as reasonably practicable, be taken from Australia to a designated regional processing country.
The plaintiff arrived in Australia claiming to fear persecution in Iran. He entered Australia’s Migration Zone by sea at Christmas Island on 23 July 2013. He was therefore a UMA for the purposes of section 198AD. While being held on Christmas Island he was informed that he was to be removed to Manus Island. He was also told that it would take a long time for any refugee claim he might make to be processed; and that, even if he was found to be a refugee, he would never be resettled in Australia. He was subsequently removed to Manus Island where he has been detained ever since.
The plaintiff challenged the validity of sections 198AB and 198AD of the Act on the grounds that they were not supported by any head of Commonwealth power. The High Court, in a joint judgment of the six sitting justices (Gageler J having recused himself), rejected this challenge, holding that the provisions were supported by the “aliens” power under section 51(xix) of the Constitution. The plaintiff had sought to argue that the scheme established by sections 198AB and 198AD went significantly further than merely regulating the entry of aliens to, or providing for their removal from, Australia. They could not be justified by the purpose of deterrence because they were so extreme in their operation that they were not reasonably appropriate and adapted to that end, and the control that the scheme imposes upon persons after their removal from Australia cannot be said to be appropriate and adapted to that end. The High Court, however, held that notions of proportionality had no role to play in determining the metes and bounds of the non-purposive power to legislate with respect to aliens.
The plaintiff also sought to challenge the provisions on the grounds that they could not authorize the Executive, in effect, to imprison people in third countries against their will for an indefinite period of time. However, the court noted that this argument was untenable, as the sections did not in fact provide for imprisonment in third countries.
In addition to the constitutional challenge to the validity of the sections, the plaintiff also challenged the decision of the Minister to designate PNG as a regional processing country. The plaintiff argued that there were a number of considerations relevant to the Minister's decision to designate PNG as a regional processing country that were not taken into account. These included: Australia's international law obligations; the need to consult with the UNHCR prior to designation; PNG's international obligations and its domestic law; PNG's capacity to implement its obligations; the framework, if any, for processing refugee claims in PNG; the possibility of indefinite detention; and the conditions in which UMAs would be detained.
The High Court, however, held that section 198AB clearly stated that the only mandatory condition for the exercise of the power was that the Minister was of the opinion that it was in Australia’s national interest to designate PNG as a regional processing country. It was plain from the text of the section that the Minister was not obliged to take any other consideration into account in determining whether or not to designate a country as a regional processing country. In determining Australia’s national interest, the section enumerated a number of matters that the Minister must have regard to, but otherwise it simply conferred a general discretion as to what matters the Minister may, but was not obliged to, take into consideration determining the the national interest. Accordingly, there being no obligation on the Minister to have regard to the matters identified by the plaintiff, the failure to take them into consideration did not invalidate the exercise of the power to designate PNG.