As the Commonwealth Government contemplates what to do with the Bangladeshi woman in the recent High Court asylum case and her baby born in Australia, it will be relevant to consider the possible civil liability of the Commonwealth for its participation in her detention on Nauru for six months at a time when the Commonwealth Parliament had not specifically authorised the Executive Government to take action or make arrangements co-operating in such detention with a refugee processing centre (RPC).
Last year the Immigration Department advised the Senate:
It was originally planned that the RPC would operate as an ‘open centre’, comprising ‘community living institutions’ with minimal security, from which asylum seekers would come and go with relative autonomy, and engage with the local community. In ensuing consultation with the Government of Nauru, the model ‘evolved’ such that from its conception the centre operated as a closed facility, with movement outside the RPC only allowed on an escorted basis. On 25 February 2015, open centre arrangements were introduced at the RPC for certain cohorts of asylum seekers. The department advised that this was being ‘incrementally expanded to include all eligible asylum seekers’.
The High Court decided that ‘the Commonwealth did not itself detain the plaintiff’. But that was not the end of the matter. French CJ, Keifel and Nettle JJ said that ‘the plaintiff’s case concerns the participation by the Commonwealth and its officers in the detention by Nauru of the plaintiff. It is that participation which is required to be authorised.’
It is that participation which might found an action in tort for wrongful detention.
French CJ, Keifel and Nettle JJ said, ‘It may be accepted that the Commonwealth was aware that Nauru required the plaintiff to be detained. In order to obtain Nauru’s agreement to receive the plaintiff, the Commonwealth funded the Centre and the services provided there in accordance with the Administrative Arrangements. The Commonwealth concedes the causal connection between its conduct and the plaintiff’s detention.’ Equally it may turn out that Nauru was aware that the Commonwealth required the plaintiff to be detained, or that the Commonwealth and Nauru reached agreement that the plaintiff should be detained. But why?
The Commonwealth Parliament passed retrospective legislation authorising the detention regime. But just before the case commenced, the Nauruan government announced that they would no longer detain asylum seekers within refugee processing centres.
French CJ, Keifel and Nettle JJ said: ‘If the regional processing country imposes a detention regime as a condition of the acceptance of UMAs removed from Australia, the Commonwealth may only participate in that regime if, and for so long as, it serves the purpose of processing.’ Did the six month detention of the plaintiff serve the purpose of processing, given that Nauru no longer requires the detention of asylum seekers while processing them, given that Nauru originally intended to process asylum seekers without detaining them, and given that the Nauruan decision to detain asylum seekers ‘evolved’ through discussions with Commonwealth officials?
Justice Bell said that the Commonwealth brought about the plaintiff’s detention ‘in a practical sense’:
The Commonwealth did not seek to have Nauru detain persons taken to it for regional processing. Nonetheless, by applying for an RPC visa in the plaintiff’s name and by taking the plaintiff to Nauru, in a practical sense the Commonwealth brought about her detention under the regime that applied in Nauru. The Commonwealth parties accept so much.
Justice Bell said, ‘As a condition of its acceptance of a transferee from Australia, Nauru required that the transferee be detained in custody while any protection claim was processed and while any arrangements were made for removal from Nauru in the event the transferee was found not to be in need of international protection.’ Her Honour concluded, ‘The Commonwealth parties brought about the plaintiff’s detention in Nauru by applying for the issue of an RPC visa in her name without her consent.’ Justice Bell accepted that the plaintiff’s detention in Nauru ‘was, as a matter of substance, caused and effectively controlled by the Commonwealth parties’. Justice Bell said, ‘If a transferee were to be detained for a period exceeding that which can be seen to be reasonably necessary for the performance of those functions, the Commonwealth parties’ participation in the exercise of restraint over the transferee would cease to be lawful.’
Given that Nauru originally intended to process people without detaining them, and given that Nauru is once again committed to processing people without detaining them, the question arises: what was the purpose of the six months detention of the plaintiff? Was she detained for a period exceeding what was reasonably necessary to effect the processing of her claim?
Justice Gageler said that the focus had to be on the capacity of the Executive Government of the Commonwealth ‘to procure or enforce a deprivation of liberty’. He concluded that the Commonwealth’s contractor Wilson Security staff ‘exercised physical control over the plaintiff so as to confine her to the Regional Processing Centre’.
He concluded ‘that Wilson Security staff exercised that physical control over the plaintiff in the course and for the purpose of providing services which the Executive Government of the Commonwealth had procured to be performed under the Transfield contract’.
Justice Gageler said that the Commonwealth Parliament’s retrospective law was directed at ‘nothing other than conferring statutory capacity or authority on the Executive Government to undertake action which is or might be beyond the executive power of the Commonwealth in the absence of statutory authority.’ Most significantly, he insisted, ‘The section has no effect on the civil or criminal liability of the Executive Government or its officers or agents under Australian law or under the law of a foreign country. The lawfulness or unlawfulness of Executive Government action under Australian law or under the law of a foreign country conversely does not determine whether or not that action falls within the scope of the statutory capacity or authority conferred by the section.’
Gageler J found: ‘The requisite connection with that role would be broken were the duration of the detention to extend beyond that reasonably necessary to effectuate that role or were that role to become incapable of fulfilment.’ He thought that the plaintiff’s claim ‘that the Commonwealth and the Minister acted beyond the executive power of the Commonwealth by procuring and enforcing her detention at the Regional Processing Centre between 24 March 2014 and 2 August 2014 was well-founded.’ Thus the need for the Commonwealth Parliament to pass a retrospective law validating the Commonwealth action in 2015.
There is no doubt that the Commonwealth’s involvement in the six month detention of the plaintiff was unauthorised when it occurred. Prior to the plaintiff’s detention, Nauru saw no need to detain asylum seekers in order to process their claims. Now, Nauru sees no need to detain asylum seekers in order to process their claims. It could be a live issue for a court to investigate how the model of processing evolved to warrant detention. If there be evidence that the long term detention of the plaintiff and people like her contributes nothing to the efficacy of the processing of their claims, then the Commonwealth’s participation in a scheme aimed at effecting and financing the detention would arguably create a civil liability regardless of the retrospective Commonwealth law permitting the Commonwealth Executive to effect and finance detention but only for the purpose of processing.
Mr Dutton has a lot to think about. As Treasurer, Mr Morrison might also continue to have a few worries about the long term detention of persons on Nauru which he participated in when Immigration Minister.