Tony Blackshield
Turnbull’s four missed chances to end detention

Malcolm Turnbull has now had four legal opportunities – invitations, really – to rescue us from the quagmire of our war against refugees. These were moments where the law offered him political cover to dismantle the system of offshore processing, but each time he has ignored them.

His first opportunity came in January this year. Back in 2013, New Zealand had offered to take 300 of Australia’s refugees – 150 in 2014 and another 150 in 2015. Julia Gillard accepted the offer, but Tony Abbott rejected it. With the offer expiring in January, the possibility was raised again, but Turnbull dismissed it. A few weeks later New Zealand’s prime minister, John Key, renewed the offer. Again, Turnbull rejected it.

The posturing is self-contradictory. The government insists that the fate of the detainees on Nauru and Manus Island is entirely the responsibility of Nauru and Papua New Guinea respectively. The claim is obviously false. Yet if it were true, Australia could have no right to express an opinion about possible transfers to New Zealand: a transfer from PNG would be entirely a matter between PNG and New Zealand.

The second opportunity for Turnbull was the case of the woman known only as Plaintiff M68, decided on February 3. The final result turned on legislation introduced in June 2015 by the Abbott government – with Labor support – giving retrospective authority for the transfer of detainees to Nauru, backdated to August 2012. The High Court majority held that this legislation was valid, so that the plaintiff’s major contention need not be decided.

This was a victory for the government; yet the real significance of the case lay elsewhere.

In the first place, the plaintiff had hoped to test the limits of Commonwealth “executive power”, including the inherent prerogatives of sovereign government traditionally ascribed to the Crown. The Commonwealth’s formal agreements with Nauru – in 2001, 2012 and again in 2013 – were an exercise of executive power; but the plaintiff maintained that executive power stopped there. Her lawyers argued that although the asylum seekers were detained by Nauru, the Commonwealth had “funded, authorised, caused, procured and effectively controlled” their detention in a way that could not be regarded as an exercise of executive power.

Because of the retrospective legislation, five judges saw no need to decide this issue; but all seven judges agreed that the Commonwealth’s involvement was indeed extensive.

For example, they found that every time an asylum seeker is transferred to Nauru, the Australian government pays to Nauru a $3000 “visa fee”, and by March 2015 the total payments had added up to $27,893,633.

At the Nauru processing centre, the Australian government maintained a permanent office, staffed by officers of the Australian Border Force. The “program co-ordinator” was an officer of the Australian Immigration Department. The tasks of maintaining security and enforcing detention were carried out by Australian agencies under Commonwealth contracts – primarily by Transfield Services (Australia) Pty Ltd, through a subcontract to Wilson Security.

Only Justice Gageler and Justice Gordon considered whether all this was a valid exercise of executive power. Both decided that it could not be.

In the second place, the whole court reaffirmed the decision in the 1992 Chu Kheng Lim case: when custodial detention is “punitive”, it can be imposed only by a court, but where the purpose is not “punitive”, there may be legitimate exceptions. The detention of asylum seekers falls within such an exception – provided it is for the purpose of assessing their claims to refugee status, or arranging for their deportation if that claim is rejected. But the court has repeatedly stressed that this proviso must be taken seriously.

In the case of Plaintiff M68 the principal judgement, while accepting the retrospective legislation as valid, stressed that it was effective to authorise Commonwealth participation in overseas processing only “if, and for so long as, it serves the purpose of processing”. The legislation does not enable the Commonwealth “to support an offshore detention regime which is not reasonably necessary to achieve that purpose”. If the legislation were thought to authorise support for “an offshore detention regime which went beyond what was reasonably necessary for that purpose”, the legislation might no longer be valid.

All the other judgements made the same point. There could hardly be a more explicit warning that the nightmare situation on Nauru cannot be allowed to drag on for much longer. This could have been used as the legal rationale for dismantling offshore detention, but it was not.

And so a third opportunity came on April 26, when the PNG Supreme Court declared that detention of asylum seekers on Manus Island was unconstitutional, and ordered that it cease “forthwith”. Here was an explicit opportunity to close the camps, but Turnbull did not take it.

The decision depended primarily on section 42 of the PNG constitution: “No person shall be deprived of his personal liberty” except in eight specified circumstances. The seventh exception allows legislation authorising detention in two kinds of case: for prevention of “unlawful entry” into the country, or for purposes of “expulsion, extradition or other lawful removal”.

The significance of this decision goes beyond Manus Island. A similar guarantee of personal liberty, with precisely the same two exceptions, appears in Article 5 of Nauru’s constitution. Quite apart from its political impact, the PNG case might have legal implications for Nauru as well. But the two situations are different.

In the PNG case there was no question of “lawful removal”, so the only category needing discussion was that of “unlawful entry”. The court held that it could have no application to persons brought unwillingly to PNG, whose desire was to only enter Australia.

In two earlier cases in Nauru – in 2003 and 2004, both involving “rescuees” from the Tampa – the relevant purpose was “lawful removal”. Chief Justice Barry Connell had held that this purpose did justify detention – though he, too, ruled that the category of “unlawful entry” could never be relevant.

But these were decisions from another era. The “Nauru solution” was still in its early stages, with no possibility of permanent settlement in Nauru: the issue was only one of “temporary residence while being processed”. In his second judgement, the chief justice relied on the Chu Kheng Lim case – but only for the simple idea that detention is permissible so long as it is not “punitive”. Nowadays, Chu Kheng Lim stands for much more.

In 2013, these decisions were confirmed by Justice John von Doussa. But even then the “Nauru solution” was still in its 2012 version: it was still assumed “that their stay in Nauru would [never] be other than temporary”, and that “Australia would take responsibility for resettlement or removal”. The assumptions might be different today.

Moreover, Justice von Doussa made it clear that “long and unreasonable delay” in processing claims to asylum would raise a different issue, which “should be left for decision” to another day. Once again, the question comes back to what is “reasonably necessary”.

Last Friday, three days after the PNG decision, Turnbull had his fourth opportunity. Earlier, Transfield Services had tried to rebrand itself cosmetically as Broadspectrum (Australia) Pty Ltd. Now the Ferrovial Corporation, registered in Madrid, announced that it is taking over Broadspectrum. Ferrovial indicated that running detention centres was “not a core part” of the business rationale for the takeover, and “will not form part of its services offering in the future”.

The immigration minister, Peter Dutton, has blustered that Ferrovial must “continue to meet their contractual obligations”. As usual, his response is irrelevant.

The PNG court has held the detention centre to be illegal. The illegality is not merely incidental or minimal or severable: it goes to the root of the contract. The “contractual obligations” are not merely unenforceable, but legally void.

Every first-year law student remembers the case of Pearce v Brooks, decided in 1866. A prostitute had agreed with a coachbuilder for the hire of an ornamental brougham in which she could ride about the streets of London plying her trade. When he sued her for the hiring fee, it was held that there was no enforceable contract: its basis was illegal. Far from having a legal obligation to perform the contract, Broadspectrum and Ferrovial have a legal obligation not to do so.

The PNG court based its finding of illegality on the constitution. But if illegality needs to depend on specific enactment at the statutory level as well, it is there in section 355 of the PNG Criminal Code – which provides that a person who unlawfully “confines or detains another in any place against his will”, or “deprives another of his personal liberty”, is liable to imprisonment for a term not exceeding three years.

The operation of a detention centre might also infringe several other provisions of the PNG Criminal Code – section 79 (“Interfering with political liberty”), section 243 (“Definition of assault”); section 249 (“Sentence or process or warrant without jurisdiction”), section 283 (“Duty to provide necessaries”), section 353 (“Kidnapping”), and even section 52 (“Quasi-military organisations”).

This last appears to be a PNG special. But the other sections mentioned above are copied from the Queensland Criminal Code, though with slightly different section numbers. The crucial provision about deprivation of liberty appears as section 355 in both texts.

This is significant because the Queensland code is also in force in Nauru. In other words, any attempt to continue to operate the detention centres will be illegal both in PNG and Nauru. Ferrovial not only has no legal obligation to continue the operation of these centres, it has a legal obligation not to do so, and its operatives will risk imprisonment every day they try.

Poetic justice indeed.

This article was first published in the print edition of The Saturday Paper on May 7, 2016 as "Opportunity blocks".

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Tony Blackshield is an emeritus professor of law at Macquarie University and the co-editor of The Oxford Companion to the High Court of Australia.

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