hume_david_-_c_2_2_2BY DAVID HUME

In its first decision of 2016, Plaintiff M68-2015 v Minister for Immigration and Border Protection [2016] HCA 1, the High Court upheld the Commonwealth’s offshore processing regime in Nauru.

The High Court upholds the two key planks of Operation Sovereign Borders

It was the second year in a row in which the High Court returned from its summer recess to uphold a central feature of the Commonwealth’s border protection policy, ‘Operation Sovereign Borders’, known colloquially as the government’s ‘stop the boats’ policy. The first decision of 2015, CPCF v Minister for Immigration and Border Protection (2015) 89 ALJR 207, had upheld a challenge to one particularly controversial aspect of Operation Sovereign Borders, the turn back of boats carrying asylum seekers. With M68 and CPCF, the Commonwealth has now received High Court affirmation of the two key planks of Operation Sovereign Borders.

M68 was a more ambitious challenge than CPCF. CPCF was essentially an administrative law case, challenging the exercise of the government’s powers under the Maritime Powers Act 2013 (Cth). If CPCF had been successful, the Commonwealth’s treatment of the particular asylum seekers on the particular vessel would have been unlawful. But the case would not have had broader policy consequences, especially after the Commonwealth Parliament’s final Act in 2014 was the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), which responded point by point to the potential gaps in the legislative regime exposed by CPCF’s Statement of Claim.

M68, on the other hand, was essentially a constitutional challenge. If M68 had been successful, the Commonwealth would have had difficulties in restructuring the scheme in such a way as to support offshore processing.

The Plaintiff’s argument

The nub of the plaintiff’s argument in M68 was that the Commonwealth was involved—as effective controller, funder and procurer—in extra-judicial detention of asylum seekers on Nauru and the detention was not for a permissible purpose. The purpose of the detention was not the permissible purpose of removing asylum seekers from Australia – because they had already been removed to Nauru. Nor was the purpose that of assessing whether asylum seekers should be granted a visa under Australian law – the processing was to assess whether they should be given a visa under Nauruan law. Moreover, the purpose was punitive – because it was intended to deter other asylum seekers from voyaging to Australia. These arguments sought to engage the principle stated in Chu Kheng Lim, which restricts the Commonwealth’s power to detain only by way of a judicial order except where the detention is for a permissible – non-punitive – purpose.

Strategic considerations

As with other litigation that is targeted at larger political and social change, M68 posed difficult broader strategic issues. A possible consequence of success in M68 was that the Commonwealth might have formed the view that it was not entitled to control, fund or procure overseas detention and, accordingly, should effectively cease its involvement in the Nauru and Manus processing centres. In that case, Australia would have had no duty to accept the asylum seekers; indeed, the theory of offshore processing is that Nauru and Papua New Guinea are willing to accept the asylum seekers and process them for local visas. If Australia had ceased its involvement, but the asylum seekers not returned to Australia, that may not have been an outcome desirable for those detained on Nauru . An alternative consequence, and one more desirable for those detained on Nauru, would have been the crafting of a statutory regime which gave offshore detainees more safeguards under Australian law and greater access to Australian courts to ensure the effective protection of those safeguards. As it has panned out, neither of those consequences will eventuate.

The facts

To return to the case. The key factual issues were: (i) whether those on Nauru were detained; (ii) the nature and degree of Commonwealth involvement in that detention; and (iii) the purpose and character of the detention.

1. Detention on Nauru?

By the time of the hearing, it was largely accepted that those on Nauru had previously been detained, but would not be detained in the future. The changing position arose from the fact that Nauru adopted a full ‘open centre’ policy on the eve of the case. The changed prospective position raised standing issues which were ultimately resolved in the plaintiff’s favour.

2. Australian involvement in Nauruan detention

The underlying facts bearing on the nature and degree of the Commonwealth’s involvement were summarised by Gordon J. This involvement included:

  • stipulating Nauru as a ‘regional processing country’ under s 198AD(5) of the Migration Act;
  • signing a Memorandum of Understanding with Nauru under which the Commonwealth would transfer unauthorised maritime arrivals to Nauru, with the Commonwealth bearing all costs;
  • removing the plaintiff from Christmas Island to Nauru;
  • applying to the Nauruan Justice Secretary, without the plaintiff’s consent, for the plaintiff to be granted a Nauruan visa and paying the fees for that visa, while knowing that a condition of the visa was that the plaintiff was required to reside in the Nauru regional processing centre;
  • on the plaintiff’s arrival in Nauru, having Commonwealth contractors escort the plaintiff to the Nauru regional processing centre;
  • contracting with Transfield and paying for Transfield to provide the Nauru regional processing centre;
  • providing the security infrastructure at the centre, including perimeter fencing, lighting towers and an entry gate;
  • contracting with Transfield to ensure that the security and perimeter of the centre was maintained at all times in accordance with policies and procedures notified by the Commonwealth;
  • requiring Transfield to exercise use of force within the centre in certain circumstances;
  • having governance responsibilities at the centre by participating in various management committees;
  • having the power to terminate the contract with Transfield at any time and ‘step in’ and take over Transfield’s responsibilities at the centre.

On the basis of these facts, the plaintiff sought to characterise the Commonwealth as effective controller of the detention.

Critically, however, the Commonwealth did not have actual custody of the detainees at the centre. Also, the immediate legal cause of the detention was not Commonwealth law; it was the law of Nauru which required holders of the particular kind of visa to reside at the Nauru regional processing centre.

The second of these points was captured in one of the facts the parties agreed in advance of the hearing:

If Nauru had not sought to impose restrictions on the plaintiff … none of the Commonwealth, the Minister, Transfield or its subcontractors would have sought to impose such restrictions in Nauru or asserted any right to impose such restrictions.

3. The purpose and character of the detention

The plaintiff contended that the purpose of the detention was either a punitive purpose of deterring other asylum seekers or a purpose of deciding whether detainees should receive a visa under Nauruan law. The plaintiff said, either way, that the detention did not have a purpose or character that brought it within the permissible forms of extra-judicial detention.

The decision

When the case was started, the authority for the Commonwealth’s involvement in offshore processing depended on the executive power and various high-level line items buried in Schedule 1AA of the Financial Framework (Supplementary Powers) Regulations 1997 (Cth). Those were the regulations passed in the wake of the High Court’s Williams decision that were designed to validate Commonwealth spending on a range of programs. Initially, the plaintiff’s case had been a Williams-style challenge – to the effect that the executive power did not support participation in offshore detention and Schedule 1AA of the Regulations did not adequately provide statutory support. However, some months after the case was commenced, the Commonwealth passed a retrospective law, introducing a new s 198AHA into the Migration Act. The effect of s 198AHA was to give retrospective and prospective statutory authority for any actions and payments (and ‘anything else that is incidental or conducive to the taking of such action or the making of such payments’) in relation to the regional processing functions of a country. The taking of action was expressly defined to include ‘exercising restraint over the liberty of a person’. These amendments changed the focus of the case. It could no longer be a pure executive power challenge, and instead needed to become a more ambitious Chapter III and heads of power challenge.

The key issue in M68 was the Chapter III issue: was the Commonwealth’s participation in detention on Nauru consistent with the limits on extra-judicial detention derived from Ch III?

While the Ch III issue was the core issue, the case also addressed issues of standing (did the plaintiff have standing to challenge prospective detention on Nauru when Nauru had, on the eve of the case, moved to a full ‘open centre’ model which did not involve detention), positive heads of power (was the Commonwealth statute authorising the Commonwealth’s involvement in Nauru supported by the aliens power and the external affairs power), the ‘act of state doctrine’ (ought the High Court make findings on whether the detention was authorised by the law of Nauru) and statutory construction.

It was the Chapter III issue which was critical, though, and it’s that which I’ll focus on.

Chapter III

The first main holding of the Court was that the limits on detention arising from Chapter III of the Constitution and derived from the case of Chu Kheng Lim (the challenge to the Hawke government’s laws on mandatory detention of asylum seekers) applied only where the detention was detention in custody of or actually implemented by the Commonwealth. That holding was 4:3, with French CJ, Kiefel, Nettle and Keane JJ in the majority.

The effect of that holding was to scupper the plaintiff’s challenge at the outset. If the limits deriving from Lim did not apply, then there was no relevant Chapter III constraint on the Commonwealth’s involvement.

Four of the judges (Bell, Gageler, Keane and Gordon JJ) went on to consider whether, so far as the Lim principle applied, the Commonwealth’s involvement was consistent with Chapter III. Three of those judges decided that issue against the plaintiff. Bell J held that the Commonwealth’s involvement was permissible because it was limited to that which was reasonably related to Nauru’s regional processing functions, and detention incidental to those functions had not been shown to have extended for longer than was reasonably necessary to perform the functions. Gageler J held that the Commonwealth’s involvement was permissible because it was limited to detention in connection with Nauru’s role as a regional processing country specified in the Memorandum of Understanding between the Commonwealth and Nauru. He held that that connection would be broken if the detention were to extend beyond that which was reasonably necessary to effectuate that role. Keane J held that the Commonwealth’s involvement was incidental to the purpose of removing the plaintiff from Australia – because Australia’s participation in detention on Nauru was a condition of Nauru’s readiness and willingness to receive the plaintiff.

Gordon J, the only judge to rule in favour of the plaintiff, held that the detention was not a permissible purpose because it was not for the purpose of removal (the asylum seekers having been already removed) and was not for the purpose of deciding whether to grant the asylum seekers visas under Australian law.

Although the plaintiff lost, all six of the majority judges observed that there were limits on the Commonwealth’s involvement in offshore detention. All six of those judges held that the Commonwealth’s involvement was limited to involvement for the purpose of offshore processing. Five of the six (excluding Keane J) held that the Commonwealth’s involvement was limited to that which was reasonably necessary to achieve that purpose. For Bell J and Gageler J, that second limit involved a temporal constraint. Whether those limits are constitutional or statutory would need to be decided in another case.

Fundamental contentions: accountability of public power and substance over form

One of the plaintiff’s fundamental contentions was that the Constitution ought not to permit the Commonwealth’s involvement in offshore processing because there was an inherent lack of accountability in the exercise of Commonwealth public power. The plaintiff tried to fit that into the existing Chapter III jurisprudence by contending that

  1. the need for accountability supported an extension of Lim to effective control, so that the Commonwealth could not avoid accountability by interposing third parties between itself and the custody; and
  2. the need for accountability supported the proposition that detention in a foreign country for the purpose of an exercise of foreign executive power was not permitted by Chapter III.

The absence of accountability arose from several features. Commonwealth courts do not control the exercise of Nauru’s executive power; but it is ultimately an exercise of Nauru’s power to grant a visa to which the detention was incident. The ‘act of state’ doctrine may limit the ability of Commonwealth courts to effectively police limits on detention where exercises of Nauruan sovereign power are intermeshed with the detention process. The ability of plaintiffs to gather facts, through subpoenas and discovery, is limited where the facts occur overseas and the documents are held overseas by foreign States. Australian tort law has a limited role overseas because the applicable law is ordinarily the law of the place where the tort occurs – and tort law is important in ensuring that gaolers properly care for and do not physically abuse their prisoners. The ability of the Australian political system to supervise detention is also limited when the detention is overseas. No Minister is ultimately accountable to the Commonwealth Parliament in respect of Nauruan visa decisions. Parliament is restricted in its ability to summon witnesses and require production of documents concerning the visa process and visa decisions when those decisions are being made by Nauruan officials. Offshore detention centres do not fall within the physical bounds of any constituency represented in the Commonwealth Parliament. Freedom of information laws do not apply to Nauruan agencies. The Constitution’s protection of political speech does not apply to Nauruan laws restricting media access to Nauru and its detention centre. Accountability is further weakened when detention is interposed through third parties, such as private contractors, because those contractors are not necessarily amenable to judicial supervision by the High Court.

It is not difficult to imagine how these difficulties hampered the plaintiff’s ability to pursue the proceedings in M68 itself. It is far more difficult for legal representatives to access the Nauru regional processing centre to gather factual information than to access an onshore detention centre. The plaintiff herself was in Australia, albeit subject to immediate return to Nauru. Critical facts were known only to Nauru. Other facts, though known to the Commonwealth, may have been protected by public interest immunity because they concerned relations between Australia and Nauru. The public record had very little information regarding the situation in the centre, partly because of the difficulties of media and interested parties accessing the centre. The Commonwealth itself has been famously tight-lipped about the details of its border protection policy. When agreeing facts for presentation to the High Court, the Commonwealth has no duty to be forthcoming in proposing facts adverse to its interests.

Before finding a law invalid, the court needs to be satisfied of facts sufficient to establish the law’s invalidity. Factual vacuums also make it much harder to establish an arguable case upon which proceedings can be commenced. And they make it difficult for plaintiffs to test the accuracy and comprehensiveness of factual material which the government is proposing to put before the Court. The result is an impairment of the systems which facilitate supervision of public power.

Related to this was a further fundamental contention: that the Constitution is concerned with substance, not just form, and the Commonwealth should not be able to avoid or hamper a constitutional protection by crafting artificial structures. In the case of offshore processing, those structures were the removal of asylum seekers from Australia, and the intermediation of Nauru and Transfield between the Commonwealth and detention. The High Court has been willing to look to issues of substance in other constitutional contexts, including leading cases on economic issues under s 90 (which concerns duties of excise) and s 92 (which concerns freedom of interstate trade and commerce). The point was put in this way by the plaintiff:

The issue raised by this case is whether the Commonwealth can take persons, who are present in Australia and have the full protections of the Australian Constitution … to a foreign country so as to subject them to extra-judicial, extra-territorial detention which is funded, caused and effectively controlled by the Commonwealth, but lacks those constitutional protections.

If these basic contentions of the plaintiff’s case had been accepted, it would have situated the constitutional limits in a similar position to a number of the broader policy concerns: one of the central concerns about offshore processing is the obstructions it creates for proper oversight of the detention of vulnerable persons. However, for the Court to have accepted these contentions, it would have required a substantial extension of the Court’s Chapter III jurisprudence and an increased willingness to look through legal forms to the substance of the issue.

The majority judgments in M68 arguably don’t grapple with these points. Four of the judges held that Chapter III had no role to play once the Commonwealth was not the actual custodian of a prisoner or actual implementer of the detention. The Commonwealth may therefore be able to avoid limits on power by interposing a non-agent third party between itself and detention or by moving the detention offshore. Bell J and Gageler J did not refer to these points in perceiving no Chapter III difficulty in the Commonwealth effectively controlling detention offshore detention for the purpose of a potential exercise of the sovereign power of another country.

These elements of M68 underscore the difficulties that social change litigation can face in Australia because of the absence of constitutional individual rights protections. If the Constitution had protected individual rights, rather than imposing broader structural guarantees, the focus of the litigation might very well have been on the effect of the Commonwealth’s conduct on the particular individuals in detention on Nauru – those effects do not start with the precise legal structures put in place by the Commonwealth; they start with the real-world consequences of the Commonwealth’s conduct on individuals’ liberty.

One further consequence of M68 is to place one more nail in the coffin of arguments that detention is punitive and thus prohibited by Chapter III. Often, arguments that detention is punitive depend on inference. However, in M68, the plaintiff pointed to the Memorandum of Understanding between Australia and Nauru which expressly had as one of it objects providing a ‘disincentive’ to irregular migration. The argument put by the plaintiff was that it was punitive to detain a person as a means to the end of deterring others. Bell J, Gageler J and Keane J rejected that argument. It seems likely that, save for arguments that detention is not proportionate to a legitimate end, only detention for an express retributive purpose would now be characterised as punitive. The Commonwealth can avoid that characterisation by providing in a statute, expressly or by implication, that its purpose is protective.

M68 does not close the doors to challenges to offshore detention. All of the majority judges discerned limits, whether constitutional or statutory, on the Commonwealth’s involvement in offshore detention. These limits may yet set the bounds of further challenges to offshore detention.

David Hume is a barrister at Six Selborne Wentworth Chambers. He was a member of the counsel team for the plaintiffs in M68 and CPCF.

Suggested citation: David Hume, ‘Plaintiff M68-2015 – offshore processing and the limits of Chapter III?’ on AUSPUBLAW (26 February 2016) <>