High Court rejects challenge to offshore processing

Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22 (18 June 2014)


The High Court has unanimously rejected a challenge to the constitutional validity of the sections of the Migration Act which give the Immigration Minister the power to designate regional processing countries. The High Court also rejected a challenge to the Minister’s exercise of this power with respect to the decision to designate PNG as a regional processing centre.


In 2001, provisions were introduced to the Migration Act 1958 (Cth) (“Migration Act) for offshore entry persons to be taken to specified countries for processing.   In 2012, following the High Court decision in Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 (“Malaysian Declaration Case) the provisions dealing with offshore processing were amended to overcome the effect of this decision.

On 9 October 2012 the Minister designated Papua New Guinea (“PNG”) as a regional processing country. 

On 29 July 2013 the Minister gave a written direction that officers take four classes of unauthorised maritime arrivals (“UMA”) to PNG or the Republic of Nauru (which had previously been designated a regional processing country).

The plaintiff was a UMA who had been removed to Manus Island for processing. 


The plaintiff commenced proceedings in the original jurisdiction of the High Court, challenging the validity of sections 198AB and 198AD of the Migration Act on the ground that neither provision was supported by any head of Commonwealth power in the Constitution (“Constitutional Challenge”).    Under section 198AB of the Migration Act, the Minister can designate a country 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”.  Section 198AD(5) requires the Minister to direct, in writing, an officer to take the UMA or class of UMAs to the regional processing country specified by the Minister’s in the direction.

The plaintiff also challenged the Minister’s designation decision under section 198AB(“Designation Challenge”) and the Minister’s direction under section 198AD(5) to take UMAs to PNG (“Direction Challenge”).

The Court unanimously rejected each of the plaintiff’s challenges.

Constitutional Challenge

The Court held that both sections 198AB and 198AD “operate to effect the removal of aliens from Australia” which is squarely within the remit of the aliens power in section 51(xix) of the Constitution. Once a federal law is with respect to a head of power, it is valid and, in the Court’s words, “[n]o further enquiry is necessary”. 

The Court was clear that once a law was supported by a constitutional head of power, considerations such as Australia’s international obligations are irrelevant to the question of the law’s constitutional validity, with the Court observing that:

There may be some doubt whether the provisions of subdivB...can be said to respond to Australia’s obligation under the Refugees Convention…[however] this possibility does not assist the plaintiff’s argument.

The plaintiff submitted that the “scheme” established by section 198AB and 198AD for the deportation to and control of UMAs at PNG went further than merely regulating the entry of aliens or providing for their removal from Australia and thus goes beyond the scope of the aliens power.

The Court identified the “essential difficulty” of the plaintiff’s contention was that neither sections 198AB or 198AD went beyond regulating the entry of aliens or providing for their removal from Australia.  The Court observed that the impugned provisions said nothing else but “implying that their refugee status is to be determined in [the regional processing country] and s198B may imply some ability to bring a UMA to Australia temporarily”.  Any agreement between PNG and Australia has no relevance to the constitutional validity of the section 198AB and section 198AD as it is made independently of the provisions and thus cannot say anything about the connection of the provisions to the aliens power.

Designation Challenge

The plaintiff submitted, relying on Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, that the Minister failed to take into account a number of mandatory relevant considerations when designating PNG as a regional processing centre and therefore the designation decision was invalid.  These considerations included Australia’s international law obligations, the need to consult with the Office of the United Nationals High Commissioner for Refugees prior to designation, PNG’s international obligations and its domestic law, and PNG’s capacity to implement those obligations.

The fundamental problem the Court identified with this submission was that section 198AB(2) expressly states that the “only condition” which the Minister is required to take into account when exercising his power under 198AB(2) is whether the Minister thinks that it is in the “national interest” to designate a country a regional country.  The only matter which the Minister is required to have regard to when considering the national interest is whether or not the country to be designed has given Australia any assurance set out in section 198AB(3).  It was not in contention that PNG had given such assurances.

Directive Challenge

The plaintiff attempted to challenge the direction decision on the basis that it failed to specify only one country to which the plaintiff or a class of UMAs should be taken. The Court rejected this argument, holding that the conditions in the Ministerial directive involved “simply inquiries, not an evaluative process” and was thus sufficiently specific to enable officers to comply with it.


This case illustrates the broad power of the Commonwealth to make migration legislation pursuant to the aliens power, and to give broad discretion to the executive in relation to asylum-seekers, even if such legislation and discretions clearly conflicts with Australia’s obligations under international law. 

This decision is the latest in a line of recent High Court cases challenging aspects of Australia’s offshore detention policies. The case shows the limitations of the Court’s ability to deal with human rights issues raised by offshore processing and detention given Australia does not have a national human rights charter and has only partially incorporated international human rights obligations into Australian domestic law.

Finally, while this decision confirms the Government’s power to make the laws and designations it has made, it does not necessarily absolve the Government of legal responsibility for the consequences those laws and decisions produce.

The decision is available at: http://www.austlii.edu.au/au/cases/cth/HCA/2014/22.html

Gemma Stooke is a Solicitor at King & Wood Mallesons.