The
High Court held valid a law which the dissenting judge acknowledges permits the
Commonwealth to do outside of Australia what it can’t do inside Australia.
Parliament
last year took the most unusual step of passing legislation retrospectively so
as to sidestep the detention limitations set out in an earlier decided case of
Lim. But for this, it would have been unlikely that the Government would have
been successful in the challenge.
The
High Court noted that it is lawful for Australia to make laws in respect of the
removal of aliens but it is not within the High Court’s power to determine the
validity of Nauruan law to detain those such aliens. There is a disjunction
between the laws enabling the deportation of a person from Australia and the
detention of that person in the land of another country (i.e. Nauru).
The
Commonwealth used the back door to avoid the limitations set out in the Lim
case by the natural disjunction between the laws of Australia and the laws of
Nauru and invoking the powers of the constitution. In other words the laws
permitting the removal of aliens from Australian is unhindered; just as is the
ability of Nauru to make laws to detain these aliens. By enacting law (section
198AHA) to facilitate the joinder of the operations of each countries’ laws in
respect to aliens it was found to have been within the powers of the
constitution. What would not have been constitutionally valid was for the
Commonwealth to pass a law that prescribes the detention of aliens in a foreign
country.
Therefore
the real issue in contention was the validity of the Commonwealth to make law
to facilitate and fund the ability of the Nauruan’s to detain these aliens,
specifically the ones deported from Australia. The majority of the High Court
held that it was within the powers of the Constitution (section 61) to make
laws to facilitate these functions. However, the ability is not totally
unfettered; it must be within reason and is ‘limited to action that can
reasonably be seen to be related to Nauru’s regional processing functions.’
Plaintiff
M68/2015 v Minister for Immigration and Border Protection & Ors [2016] HCA
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