Yesterday the High Court upheld the constitutional validity of provisions of the Migration Act which concerned the power of the Minister to designate a country as a regional processing country. The decision also confirmed the validity of two particular decisions that had been made pursuant to the provisions the subject of the challenge (Plaintiff S156/2013 v Minister for Immigration and Border Protection  HCA 22). The Court's decision was unanimous.
The case is of interest to all Commonwealth decision-makers as it is a clear statement of the Court's approach to the issue of relevant considerations, and a helpful reminder of the Court's reticence to interfere with a legislative provision which has an immediate operation within a field assigned to the Commonwealth as a subject of legislative power.
The provisions in issue in Plaintiff S156 were included in amendments to the Migration Act made following the High Court's 2011 decision in Plaintiff M70. In Plaintiff M70 the High Court found that the Minister's declaration of Malaysia (pursuant to the Act as it then existed) as a country to which asylum seekers could be taken for processing was not valid. The Court's finding was essentially that, in the light of the Act as it existed at the time, the Minister could not validly declare a country as a country to which asylum seekers can be taken for processing unless that country, as a matter of fact, satisfied particular criteria (which criteria essentially related to the protection of people granted refugee status).
Following the decision in Plaintiff M70, changes were made to the Migration Act which allowed the Minister to designate a country as a regional processing country. The only express condition in the relevant section for the exercise of the power was that "the Minister thinks that it is in the national interest to designate the country to be a regional processing country". The Act expressly provided that the designation of a country to be a regional processing country need not be determined by reference to the international obligations or domestic law of the country to be designated.
Pursuant to these new provisions, the Minister designated PNG to be a regional processing country
Plaintiff S156/2013 was an unauthorised maritime arrival who had been removed to Manus Island. He challenged his removal on two grounds:
- the Commonwealth did not have the power under the Constitution to amend the Act to create the regional processing scheme; and
- the decision to designate PNG as a regional processing country was invalid as the Minister had failed to have regard to mandatory relevant considerations.
Constitutional validity and proportionality
The plaintiff accepted that the Commonwealth had the legislative power to create laws to remove unlawful non-citizens from Australia, pursuant to the aliens power in section 51(xix). The two sections in the Migration Act that he challenged, sections 198AB and 198AD, both operated to effect the removal of aliens from Australia.
However, the plaintiff contended that it was simply not enough that a law had an immediate operation within a field assigned to the Commonwealth as a subject of legislative power. The plaintiff contended that, to be constitutional, the law must also satisfy another test, one of proportionality. The plaintiff said that an assessment of proportionality may inform the issue of whether a sufficient connection existed between a law and a legislative head of power. In this case the plaintiff said the "scheme" went significantly further than merely regulating the entry of aliens to, or providing for their removal from, Australia.
The High Court rejected this argument. It found that even if the scheme was disproportionate to the ends of deterring unauthorised maritime arrival because of the uncertainty with subsequent processing of any refugee claims, the sections in issue say nothing about this. They only deal with the power to remove certain persons from Australia. Likewise, the Administrative Arrangements, which the plaintiff also claimed were disproportionate, are not part of the sections, and were not relevant to the issue of the connection of those provisions with the head of power. In short, the Court found that "the character of those provisions and their connection to a head of power are determined by reference to their terms, operation and effect".
What were the relevant considerations for the decision-maker?
The relevant legislative provision in issue allowed the Minister to designate a place as a "regional processing country" if "the Minister thinks that it is in the national interest to designate the country to be a regional processing country". The provision also provided that in considering the national interest the Minister must have regard to whether a particular county had given assurances to Australia on a range of issues (which the Minister did on this occasion) and may have regard to any other issue which in the opinion of the Minister, relates to the national interest.
Plaintiff S156/2013 argued however that there were a number of additional matters which were mandatory relevant considerations in relation to the Minister's decision to designate PNG as a regional processing country which were not taken into account and that therefore, the decision to designate PNG was invalid. In particular, the plaintiff contended that Australia's international law obligations, the need to consult the UNHCR, PNG's international obligations and domestic law and its capacity to implement its obligations were all matters that should have been taken into account by the Minister in his decision-making.
Significantly, the High Court stated that what is in the national interest is largely a "political question" and pointed out that "the fundamental difficulty with the plaintiff's argument is that there is no mandatory condition for the exercise of the power of designation under section 198AB apart from the formation by the Minister of an opinion that it is in the national interest to do so." The Court confirmed the longstanding principle that when a statute confers a discretion which is unconfined, the factors which may be taken into account are similarly unconfined. It concluded that there was nothing in the text or scope of the relevant subdivision that supported the implication of the further conditions contended for by the plaintiff.