Wednesday, 3 February 2016
Questions without Notice
Thank you very much indeed, Senator Lindgren. Yes, I can. As honourable senators would no doubt be aware, this morning the High Court delivered its judgement in the M68 case. That is the case in which the regional processing centre arrangements between the government of Australia and the Republic of Nauru were challenged. The case was resolved in the government's favour by a majority of six justices to one.
Specifically the court held that the entry into the memorandum of understanding of 3 August 2013 between the respective governments was a valid exercise of the executive power of the Commonwealth under section 61 of the Constitution. The court held that the conduct of the Commonwealth in giving effect to that arrangement was constitutionally valid, it being authorised by section 198AHA of the Migration Act, which the court found was itself a valid exercise of the aliens power under section 51(xix) of the Constitution. Furthermore, the court held that the conduct of the Commonwealth in securing funding and participating in the plaintiff's detention at a regional processing centre on Nauru was, for that reason as well, a valid law of the Commonwealth.
It has been asserted in this place—not, I should say, in fairness, by the opposition but by the Greens—asserted time and time again, that these arrangements were not constitutionally valid. The High Court has now authoritatively, by a six to one majority, decided that the arrangements are lawful, are constitutionally valid, and I would hope that the Greens, in particular, respect the decision of the court.
Thank you, Senator Lindgren. One of the claims that was made by the Greens—ignorantly, I am bound to say—was that the detention centres on Nauru were conducted by Australia, that Australia was in fact the nation that detained people at those processing centres. A majority of the court held clearly, as a matter of law—not as a matter of politics, Senator Hanson-Young, as a matter of law—that that was not so. In the joint judgement of the Chief Justice and Justices Kiefel and Nettle, they said this:
… the restrictions applied to the plaintiff are to be regarded as the independent exercise of sovereign legislative and executive power by Nauru.
Justice Keane said:
The plaintiff's detention in Nauru was not detention in the custody of the Commonwealth. … The plaintiff's detention in Nauru was in the custody of the Republic of Nauru. That is because the legal authority by which she was held in custody in Nauru, an independent sovereign nation, was that of Nauru and not that of the Commonwealth.
What it means, in short, is that those policies have been validated from a legal and constitutional point of view. The government was always confident that the amendments, in particular the amendments to the Migration Act, which were so strenuously resisted by the Greens, did have a sound legal and constitutional basis.
Honourable senators interjecting—
But this is now—Senator Hanson-Young and those of your colleagues from the Greens who I hear interjecting—beyond the political argument, because this issue has now been decided by the High Court by majority to be a matter of law. So please let us not hear any more bleating from the Greens that this is really Australia detaining these people, because the High Court has decided, as a matter of law, that these unauthorised arrivals are being detained on Nauru by the government of Nauru. (Time expired)