Mark Robinson SC is a Sydney barrister practising in administrative law and general law at Wentworth Chambers. He is author of New South Wales Administrative Law, Title Editor of The Laws of Australia Administrative Law Title, and Editor of forthcoming Judicial Review - The Laws of Australia (1e). 

Earlier this month Mark appeared in the High Court to challenge the offshore processing of asylum seekers in PNG in the case PLAINTIFF S156/2013 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and the COMMONWEALTH OF AUSTRALIA (proceedings No. S156 of 2013).

We asked Mark to speak briefly about what this case involved.

What is the background to this case?

In terms of how the case came to me, the plaintiff came to Australia by boat and landed at Christmas Island. He was met by the Australian authorities there and he claimed refugee status. He is a citizen of the Islamic Republic of Iran (Iran) and he asserts that he is a member of the Nematollahi Sultan Ali Shahi Gonabadi Sufi Order, a religious minority in Iran. He contends he has a well-founded fear of persecution in Iran for a reason specified in the 1951 Convention Relating to the Status of Refugees (the Convention) as amended by the 1967 Protocol Relating to the Status of Refugees (the Protocol), and that he is owed protection from serious harm in Iran in accordance with other international human rights treaties.

He has a cousin who is resident in Sydney and who knew he had arrived in Australia. That cousin contacted my instructing solicitor, Mr Adrian Joel, who then prepared a brief for me and together we commenced proceedings in the High Court of Australia seeking to challenge the constitutional validity of the new provisions in sections 198AB and AD of the Migration Act 1958 (Cth). These provisions permit the relevant Minister to declare a country to be a regional processing country. Once a declaration such as that is made, the Minister’s officers have no choice but to deport such person as the plaintiff to that third country for processing.

On 9 October 2012, the Minister declared the Independent State of Papua New Guinea as a regional processing country. On 2 August 2013 my client was forcibly removed from Australia and taken to PNG where he remains to this day.

We commenced proceedings on 20 August 2013 in the High Court of Australia seeking declarations that the underlying legislative provisions were unconstitutional and that the Minister’s declaration was unlawful on administrative law grounds.

The case was heard before six judges in the High Court in Canberra on 9 May and 13 May 2014. The justices have reserved their decision.

All the transcripts, written submissions and video of the final hearing is collected on a High Court web page at: http://www.hcourt.gov.au/cases/case_s156-2013

Tell us a bit about the legal arguments that were put forward.

Sections 198AB and AD of the Migration Act 1958 (Cth) are arguably supported by the naturalization and aliens power in s 51(xix) of the Constitution and the immigration and emigration power in s 51(xxvii) and/or the external affairs power in s 51(xxix).

The Commonwealth argued that all three heads of power applied. The plaintiff argued that none of them applied and that no incidental power was invoked.

We argued that the aliens power is normally considered to be a subject matter power or a non-purposive power.  Sufficiency of connection is normally the test of characterisation applied. However, a “proportionality” test (that is, whether the power is reasonably appropriate and adapted to achieve the purpose intended) should be used in that it may inform the sufficient connection test. As to the immigration power, we argued that even if the proportionality test approach is not accepted, it is impossible to see the scheme is sufficiently connected with the removal of aliens from Australia (which is the relevant aspect of the immigration power) since it directed to the continued control of aliens deported from Australia after the deportation process is complete. As to the external affairs power, we argued that it was predicated on a pre-existing external affair and that the present scheme has no pre-existing external affair.  We argued that there must be limits to the external affairs power.

These arguments had never been run before in the High Court.

How is this case different from the “Malaysia solution” High Court case in 2011?

The plaintiff’s case is radically different from the Malaysia Solution case in the High Court in Plaintiff M70-2011 v Minister for Immigration and Citizenship (Malaysian Declaration Case) (2011) 244 CLR 144.

That case did not involve a constitutional challenge. The court’s interpretation of the Minister’s power to engage in regional processing of Australia’s asylum seekers was considered by the Commonwealth to be too restrictive. Accordingly, Parliament enacted a complete replacement of the provisions in the Migration Act which took effect from 18 August 2012. It was a whole new system and a completely new power for the Minister to make a declaration of a regional processing country. The stated intention of the new legislation was to overturn the High Court’s decision in the Malaysian Declaration Case.

What Administrative law and Constitutional law principles are at stake?

The Constitutional law principles are discussed above. The approach we have taken would give the High Court considerably more flexibility in considering the constitutional validity of Commonwealth legislation in future.

As to the administrative law challenge, we argue that there were seven mandatory and relevant considerations as to a section 198AB designation and that the Minister did not consider them. Accordingly the declaration decision is invalid. Also we argued the Minister failed to afford those considerations proper, genuine or realistic consideration. Further, it was argued that the designation was afflicted by legal unreasonableness and is accordingly void.

How do you go about preparing for a significant case like this?

The case involved over 10 months of hard work on my part and on the part of my instructing solicitors and my two junior counsel. It was hard because the Commonwealth did not concede very much and it refused to provide all the necessary documents. We were forced to go to quite a number of directions hearings before the Chief Justice and we sought and obtained an order for discovery from the Commonwealth. There were attempted negotiations to agree on a stated case to be referred to the full court. However, the Commonwealth made things very difficult and the Chief Justice ultimately was forced to make a judgment in order to send the matter up to the full court.

This was the first challenge of any kind to the new scheme and all of the work that had to be undertaken was original work and difficult work. In that regard, it was also exciting work and very challenging. While I cannot say what the High Court will do with it all, I can say that any decision that emerges in the next few months will be most interesting indeed.