Plaintiff M68/2015 v Minister for Immigration and Border Protection

HIGH COURT OF AUSTRALIA

FRENCH CJ,
KIEFEL, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ

PLAINTIFF M68/2015  PLAINTIFF

AND

MINISTER FOR IMMIGRATION AND BORDER
PROTECTION & ORS  DEFENDANTS

Plaintiff M68/2015 v Minister for Immigration and Border Protection

[2016] HCA 1

3 February 2016

M68/2015

ORDER

The questions stated by the parties in the amended special case dated 7 October 2015, as paraphrased, be answered as follows:

Question (1)

Does the plaintiff have standing to challenge whether the conduct of the Commonwealth or the Minister in securing, funding and participating in the plaintiff's detention at RPC 3 on Nauru was authorised by a valid law of the Commonwealth or was part of the executive power of the Commonwealth?

Answer

Yes.

Question (2a)

Was the conduct of the Commonwealth in signing the Memorandum of Understanding dated 3 August 2013 authorised by s 61 of the Constitution?

Answer

Yes.

Question (2b)

Was the conduct of the Commonwealth in giving effect to that arrangement authorised by a valid law of the Commonwealth?

Answer

Yes, it was authorised by s 198AHA of the Migration Act 1958 (Cth), which is a valid law of the Commonwealth.

Question (3)

Were the laws by which the plaintiff was detained on Nauru contrary to the Constitution of Nauru?

Answer

The question does not arise.

Questions (4) and (5)

Was the conduct of the Commonwealth in securing, funding and participating in the plaintiff's detention at RPC 3 on Nauru authorised by a valid law of the Commonwealth?

Answer

Yes, see the answer to questions (2a) and (2b).

Question (6)

If the plaintiff were returned to Nauru, would the Commonwealth or the Minister be authorised to continue to perform the Memorandum of Understanding dated 3 August 2013 and to secure, fund and participate in the plaintiff's detention on Nauru?

Answer

Unnecessary to answer.

Question (7)

If the plaintiff were returned to Nauru would her detention there be contrary to Art 5(1) of the Constitution of Nauru?

Answer

Unnecessary to answer.

Questions (8) and (9)

If the plaintiff were returned to Nauru, would the Commonwealth or the Minister be authorised to secure, fund and participate in the plaintiff's detention by a valid law of the Commonwealth?

Answer

Unnecessary to answer.

Questions (10) and (12)

If the plaintiff were to be returned to Nauru, does s 198AD(2) of the Migration Act 1958 (Cth) require that she be taken there as soon as reasonably practicable?

Answer

Unnecessary to answer.

Question (11)

If yes to question (10), if the plaintiff were returned to Nauru would her detention be contrary to the Constitution of Nauru?

Answer

Unnecessary to answer.

Question (13)

What, if any, relief should be granted to the plaintiff?

Answer

The plaintiff is not entitled to the declaration sought.

Question (14)

Who should pay the costs of the special case and of the proceedings generally?

Answer

The plaintiff should pay the defendants' costs.

Representation

R Merkel QC and C L Lenehan with R Mansted, D P Hume and E Bathurst for the plaintiff (instructed by Human Rights Law Centre)

J T Gleeson SC, Solicitor-General of the Commonwealth and G R Kennett SC with A M Mitchelmore and P D Herzfeld for the first and second defendants (instructed by Australian Government Solicitor)

S P Donaghue QC with K E Foley and C J Tran for the third defendant (instructed by Corrs Chambers Westgarth Lawyers)

Interveners

G R Donaldson SC, Solicitor-General for the State of Western Australia with F B Seaward for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor (WA))

P J Dunning QC, Solicitor-General of the State of Queensland with F J Nagorcka for the Attorney-General of the State of Queensland, intervening (instructed by Crown Solicitor (Qld))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Plaintiff M68/2015 v Minister for Immigration and Border Protection

Migration – Regional processing – Where plaintiff was "unauthorised maritime arrival" upon entry into Australian migration zone – Where plaintiff was removed to regional processing centre on Nauru pursuant to s 198AD of Migration Act 1958 (Cth) – Where Commonwealth entered into arrangement in relation to regional processing functions – Whether plaintiff was detained by Commonwealth at Nauru Regional Processing Centre – Whether principles in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 apply.

Constitutional law (Cth) – Executive power of Commonwealth – Whether conduct of Commonwealth authorised by s 61 of Constitution – Whether conduct of Commonwealth authorised by s 198AHA of Migration Act.

Constitutional law (Cth) – Legislative power of Commonwealth – Whether s 198AHA of Migration Act is a law with respect to aliens – Whether s 198AHA of Migration Act is a valid law of Commonwealth.

Procedure – Standing – Whether plaintiff has standing to challenge lawfulness of conduct of Commonwealth with respect to plaintiff's past detention.

Private international law – Act of State doctrine – Where plaintiff's detention imposed by laws of Nauru – Whether Australian court should pronounce on constitutional validity of legislation of another country.

Words and phrases – "aliens power", "constraints upon the plaintiff's liberty", "control", "detention", "effective control", "memorandum of understanding", "non-statutory executive power", "regional processing country", "regional processing functions".

Constitution, ss 51(xix), 61.
Migration Act 1958 (Cth), ss 198AB, 198AD, 198AHA.

1. FRENCH CJ, KIEFEL AND NETTLE JJ. The plaintiff is a Bangladeshi national who was an "unauthorised maritime arrival" ("UMA") as defined by s 5AA of the Migration Act 1958 (Cth) upon entering Australia's migration zone. She was detained by officers of the Commonwealth and taken to Nauru pursuant to s 198AD(2) of the Migration Act, which provides that:

   "An officer must, as soon as reasonably practicable, take an unauthorised maritime arrival to whom this section applies from Australia to a regional processing country."

   Section 198AD(3) of the Migration Act provides that, for the purposes of sub‑s (2), an officer may place and restrain the UMA on a vehicle or vessel, remove the UMA from the place at which he or she is detained or from a vehicle or vessel, and use such force as is necessary and reasonable.

2. Nauru is a country designated by the Minister for Immigration and Border Protection ("the Minister") under s 198AB(1) of the Migration Act as a "regional processing country".  The reference to "processing" is to a determination by Nauru of claims by UMAs to refugee status under the Refugees Convention[1]. Both Australia and Nauru are signatories to that Convention. Directions have been made under s 198AD(5) of the Migration Act by the Minister as to the particular classes of UMAs who are to be taken to Nauru.

   [1]Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967).

3. On 3 August 2013, the Commonwealth and Nauru entered into an arrangement relating to persons who have travelled irregularly by sea to Australia and whom Australian law authorises to be transferred to Nauru.  This second Memorandum of Understanding ("the second MOU") recorded an agreement that the Commonwealth may transfer and Nauru would accept such persons, there referred to as "transferees".  Administrative arrangements for regional processing and settlement arrangements in Nauru of 11 April 2014 between the governments of the two countries ("the Administrative Arrangements") confirm that transferees will remain on Nauru whilst their claims to refugee status are processed.  By the second MOU and the Administrative Arrangements, Nauru undertook to allow transferees to stay lawfully in its territory and the Commonwealth agreed to lodge applications with the Government of Nauru for visas for transferees.  The Commonwealth was to bear the costs associated with the second MOU.

4. The plaintiff claims to be a refugee to whom the Refugees Convention applies.  She has applied to the Secretary of the Department of Justice and Border Control of Nauru to be recognised by Nauru as a refugee.  Her application has not yet been determined.

5. Upon her arrival on Nauru the plaintiff was granted a regional processing centre visa (an "RPC visa") by the Principal Immigration Officer of Nauru under reg 9 of the Immigration Regulations 2013 (Nauru).  Pursuant to reg 9(6)(a), the plaintiff's RPC visa specified that the plaintiff must reside at the Nauru Regional Processing Centre ("the Centre").  If a person is recognised by Nauru as a refugee an RPC visa becomes a temporary settlement visa pursuant to reg 9A of the Immigration Regulations 2014 (Nauru) (which replaced the Immigration Regulations 2013 (Nauru)) and the person is no longer required to reside at the Centre and may depart and re-enter Nauru.

6. Because the plaintiff is a UMA brought to Nauru pursuant to s 198AD of the Commonwealth Migration Act, the plaintiff is a "protected person" for the purposes of the Asylum Seekers (Regional Processing Centre) Act 2012 (Nauru) ("the RPC Act").  Pursuant to s 18C(1) of the RPC Act, a protected person may not leave the Centre without the approval of an authorised officer, an operational manager of the Centre, or other authorised persons.  Any protected person who attempts to do so commits an offence against the law of Nauru and is liable on conviction to imprisonment for a period not exceeding six months[2].

   [2]Asylum Seekers (Regional Processing Centre) Act 2012 (Nauru), s 18C(2).

7. The Centre comprised three sites – RPC 1, RPC 2 and RPC 3.  RPC 1 contained the administrative offices of the Centre, other facilities and specialised accommodation.  The other sites contained compounds which housed asylum seekers who were single adult males (RPC 2) and single adult females and families (RPC 3).  The Commonwealth contracted for the construction and maintenance of the Centre, and funds all costs associated with it, in accordance with the second MOU.

8. From 24 March 2014 to 2 August 2014, the plaintiff resided in RPC 3.  It was surrounded by a high metal fence through which entry and exit was possible only through a check‑point which was permanently monitored.  The plaintiff was able to move freely within RPC 3 save for certain restricted areas and at specified hours.  However, if the plaintiff had attempted to leave the Centre without permission, the Centre staff would have sought the assistance of the Nauruan Police Force.

9. The plaintiff did not consent to being taken to Nauru.  She did not apply for an RPC visa and did not consent to being detained in RPC 3.  Pursuant to reg 9(3) of the Nauruan Immigration Regulations 2013, an application for an RPC visa could only be made by an officer of the Commonwealth of Australia.  An application was made by an officer of the Commonwealth ostensibly on the plaintiff's behalf in accordance with cl 2.2.6 of the Administrative Arrangements, and the fee for the visa was paid by the Commonwealth.

10. Pursuant to the Administrative Arrangements, it was agreed that the Government of Nauru would appoint an operational manager, to be in charge of the day-to-day management of the Centre; and that the Government of Australia would appoint an officer as a programme coordinator, to be responsible for managing all Commonwealth officers and service contracts in relation to the Centre, including the contracting of a service provider to provide services at the Centre for transferees and to provide for their security and safety.  A Joint Committee and a Joint Working Group were to be established.

11. A Ministerial Forum was established to oversee the implementation of the regional partnership between Australia and Nauru and to provide updates on the delivery of projects in Nauru, including the operation of the Centre, and was co‑chaired by the Commonwealth Minister and by the Nauru Minister for Justice and Border Control.  The Joint Committee, comprised of representatives of the respective governments, met regularly to discuss the operation of the Centre.  The Joint Working Group, chaired by the Nauru Minister, met each week to discuss matters relating to the Centre, including regional processing issues.

12. Transfield Services (Australia) Pty Ltd ("Transfield") has been a service provider at the Centre pursuant to a contract with the Commonwealth, represented by the Department of Immigration and Border Protection ("the Transfield Contract"), since March 2014.  Transfield undertook to provide "garrison and welfare services" to transferees and personnel at the regional processing centres.  "Garrison services" include security, cleaning and catering services.  As service provider it was required to ensure that the security of the perimeter of the site was maintained.  The Department provides fencing, lighting towers and other security infrastructure.

13. Transfield subcontracted the Transfield Contract to Wilson Security Pty Ltd ("Wilson Security").  Representatives of the two companies attend regular meetings with, and report to, the Department of Immigration and Border Protection and to the Government of Nauru.  The Commonwealth occupies an office at RPC 1 at which officers of the Australian Border Force carry out functions in relation to the Centre or transferees at the Centre, including managing service provider contracts, Commonwealth-funded projects, such as construction projects, and relationships and communications between the Commonwealth, the service providers and the Government of Nauru.

14. On 2 August 2014, officers of the Commonwealth brought the plaintiff to Australia from Nauru temporarily for purposes relating to her health, pursuant to s 198B(1) of the Migration Act.  The plaintiff no longer needs to be in Australia for those purposes and is liable to be returned to Nauru.

    Section 198AHA

15. The principal statutory authority relied upon by the Commonwealth for its participation in the plaintiff's detention on Nauru is s 198AHA of the Migration Act.  It was recently inserted[3] into Pt 2 Div 8 ("Removal of unlawful non-citizens etc") subdiv B ("Regional processing"), but has effect from 18 August 2012.  It provides:

    [3]MigrationAmendment (Regional Processing Arrangements) Act 2015 (Cth).

    "(1)This section applies if the Commonwealth enters into an arrangement with a person or body in relation to the regional processing functions of a country.

    (2)The Commonwealth may do all or any of the following:

    (a)take, or cause to be taken, any action in relation to the arrangement or the regional processing functions of the country;

    (b)make payments, or cause payments to be made, in relation to the arrangement or the regional processing functions of the country;

    (c)do anything else that is incidental or conducive to the taking of such action or the making of such payments.

    (3)To avoid doubt, subsection (2) is intended to ensure that the Commonwealth has capacity and authority to take action, without otherwise affecting the lawfulness of that action.

    (4)Nothing in this section limits the executive power of the Commonwealth.

    (5)In this section:

    action includes:

    (a)exercising restraint over the liberty of a person; and

    (b)action in a regional processing country or another country.

    arrangement includes an arrangement, agreement, understanding, promise or undertaking, whether or not it is legally binding.

    regional processing functions includes the implementation of any law or policy, or the taking of any action, by a country in connection with the role of the country as a regional processing country, whether the implementation or the taking of action occurs in that country or another country."

    The proceedings

16. In the proceedings brought by the plaintiff in this Court part of the relief she claims is an injunction against the Minister and officers of the Commonwealth and a writ of prohibition prohibiting them from taking steps to remove her to Nauru if she is to be detained at the Centre.  The plaintiff also seeks orders prohibiting and restraining the Commonwealth from making future payments to Transfield pursuant to the Transfield Contract.

17. Recent steps taken by the Government of Nauru suggest that it is unlikely that the plaintiff will be detained at the Centre if and when she is returned to Nauru.

18. In early 2015, "open centre arrangements" were implemented at RPC 2 and RPC 3 in the exercise of the discretion of the operational managers.  Pursuant to those arrangements, persons who resided there could be granted permission to leave the Centre on certain days, between certain hours and subject to certain conditions.  Those arrangements were not formalised in writing.

19. Shortly prior to the hearing of this matter, the Government of Nauru published a notice in its Gazette to the effect that it intended to expand the open centre arrangements to allow for freedom of movement of asylum seekers 24 hours per day, seven days per week and that the arrangements were to be made the subject of legislation at the next sitting of the Parliament of Nauru.  The operational managers of RPC 2 and RPC 3 were said to have approved all asylum seekers residing there to be eligible to participate in these new open centre arrangements.  Regulations 9(6)(b) and 9(6)(c) of the Nauruan Immigration Regulations 2014, which placed restrictions on the movements of RPC visa holders, have been repealed.  Given these developments, the injunction and writ that the plaintiff seeks no longer assume relevance in these proceedings.  There is not a sufficient basis for making them.

20. The focus of these proceedings is therefore upon another remedy that the plaintiff seeks, namely, a declaration to the effect that the conduct of the Minister or the Commonwealth in relation to her past detention was unlawful by reason that it was not authorised by any valid law of the Commonwealth nor based upon a valid exercise of the executive power of the Commonwealth under s 61 of the Constitution. The conduct, in summary, is particularised as the imposition, enforcement or procurement by the Commonwealth or the Minister of constraints upon the plaintiff's liberty, including her detention, or the Commonwealth's entry into contracts and expenditure of monies in connection with those constraints, or the Commonwealth having effective control over those constraints.

21. The questions stated for the opinion of the Court are lengthy and we will not set them out in these reasons.  They are to be found in the document which follows the judgments in this case.  They are directed principally to the plaintiff's standing and to whether the Commonwealth and the Minister were authorised to engage in the conduct by which the plaintiff was detained at the Centre.  If the answer to the latter question is in the affirmative, it is further asked whether the restrictions on the plaintiff are contrary to the Constitution of Nauru.

    Standing

22. The question of standing cannot be detached from the notion of a "matter"[4] and is related to the relief claimed.

    [4]Abebe v The Commonwealth (1999) 197 CLR 510 at 528 [32]; [1999] HCA 14; Truth AboutMotorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at 637 [122]; [2000] HCA 11.

23. It is submitted[5] by the first and second defendants, being the Minister and the Commonwealth (hereinafter together referred to as "the Commonwealth"), that these proceedings concern past conduct and would have no further consequences for the plaintiff beyond the making of the declaration.  The plaintiff does not seek damages for her wrongful detention.  Nevertheless the declaration sought by the plaintiff would resolve the question as to the lawfulness of the Commonwealth's conduct with respect to the plaintiff's detention and whether such conduct was authorised by Commonwealth law.  This is not a hypothetical question[6].  It will determine the question whether the Commonwealth is at liberty to repeat that conduct if things change on Nauru and it is proposed, once again, to detain the plaintiff at the Centre.

    [5]By reference to Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 at 188; 18 ALR 55 at 69.

    [6]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582; [1992] HCA 10.

    The issues – non-statutory executive power and s 198AHA

24. The Commonwealth relies upon s 61 of the Constitution to authorise its entry into the second MOU with Nauru. The Commonwealth submits that such entry either is within the Executive's power to conduct external relations or falls within the express terms of s 61 of the Constitution, in that it is for the "execution and maintenance of … the laws of the Commonwealth". The purpose of the entry into the second MOU is to give effect to the scheme of the Migration Act, by ensuring that Nauru remains willing and able to perform the functions of a regional processing country under that scheme. It may be taken that the scheme to which the Commonwealth refers includes ss 198AB(1) and 198AD(2) and, following entry into the second MOU, s 198AHA.

25. The Commonwealth relies on s 198AHA as statutory authority for the Executive to give effect to the arrangement made between the Commonwealth and Nauru by the second MOU. It submits that, in recently enacting s 198AHA, the Parliament gave its permission to the Executive to implement the arrangements contemplated by the second MOU. Alternatively, the Commonwealth contends that it had non-statutory executive power or executive power under s 61 of the Constitution to give effect to the MOU.

26. The Commonwealth does not, however, rely on either s 198AHA, non‑statutory executive power or executive power under s 61 of the Constitution as authorising the detention of the plaintiff. It consistently maintained the position that the detention of the plaintiff on Nauru was by the Executive government of Nauru.

27. As will be explained in these reasons, although the declaration which the plaintiff seeks was claimed in terms that the Commonwealth itself detained the plaintiff, that was not the argument which the plaintiff presented at the hearing of the matter.  The plaintiff's case as put is that the Commonwealth participated in a practical sense, and at a high level, in her detention, and that the extent of the Commonwealth's participation in her detention was not authorised by statute or otherwise.

28. For these reasons, whether or not the Commonwealth had statutory power or executive power to itself detain the plaintiff is not in issue.  The issue is whether the Commonwealth had power to participate, to the extent that it did, in Nauru's detention of the plaintiff.

    Detention on Nauru

29. The central question identified by the plaintiff is whether the Commonwealth's involvement in her detention was authorised by a valid Commonwealth statute.

30. It is necessary at the outset to be clear about who detained the plaintiff on Nauru.  "Detention" in this context is detention in the custody of the State[7] and involves the exercise of governmental power.

    [7]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27; [1992] HCA 64.

31. There can be no doubt that the Commonwealth had the statutory power to remove the plaintiff from Australia to Nauru and to detain her for that purpose.  In Plaintiff S156/2013 v Minister for Immigration and Border Protection[8] it was held that s 198AD(2) of the Migration Act is a law with respect to a class of aliens and so is a valid law within s 51(xix) of the Constitution. Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs[9] holds that the legislative power conferred by s 51(xix) encompasses the conferral upon the Executive of authority to detain an alien in custody for the purposes of deportation or expulsion. That power is limited by the purpose of the detention and exists only so long as is reasonably necessary to effect the removal of the alien. It follows that the Commonwealth's power to detain the plaintiff for the purpose of removing her from Australia and taking her to Nauru ceased upon her being handed over into the custody of the Government of Nauru.

    [8](2014) 254 CLR 28 at 42-43 [22]-[25], 46 [38]; [2014] HCA 22.

    [9](1992) 176 CLR 1 at 10, 32-33.

32. The plaintiff thereafter was detained in custody under the laws of Nauru, administered by the Executive government of Nauru.  The Immigration Act 2014 (Nauru) requires that a person who is not a citizen must have a valid visa to enter or remain in Nauru[10].  Even if the plaintiff was taken to Nauru without her consent, the Immigration Act applied to her.  The plaintiff was obliged to remain at the Centre under supervision and was not free to leave it, because of the residency requirements of the RPC visa issued by the Government of Nauru, the prohibition on leaving the Centre in s 18C(1) of the RPC Act, which applies to the plaintiff because she has the status of a "protected person", and the offence provision in s 18C(2).

    [10]Immigration Act 2014 (Nauru), s 10.

33. The only exception to the prohibition in s 18C(1) is where prior approval is given to a resident of the Centre by an authorised officer, an operational manager of the Centre or other authorised persons.  The Secretary of the Department of Justice and Border Control of Nauru appoints authorised officers and must declare the appointment of an operational manager by notice in the Government Gazette[11].  No Commonwealth officers were appointed as authorised officers by the Secretary for the purposes of the RPC Act.  Staff of Wilson Security were appointed by the Secretary as authorised officers and were therefore authorised by the law of Nauru to exercise powers under the RPC Act.

    [11]Asylum Seekers (Regional Processing Centre) Act 2012 (Nauru), s 3(2).

34. Contrary to the plaintiff's submissions, it is very much to the point that the restrictions applied to the plaintiff are to be regarded as the independent exercise of sovereign legislative and executive power by Nauru.  The recognition that it was Nauru that detained the plaintiff is important, for it is central to the plaintiff's case that the legislative authority which the Commonwealth required, and which it is argued was not provided, is an authority to detain the plaintiff, with the concomitant power to authorise others to effect that detention.

35. Contrary also to the plaintiff's submissions, it is very much to the point that the Commonwealth could not compel or authorise Nauru to make or enforce the laws which required that the plaintiff be detained.  There was no condominium, which exists where two or more States exercise sovereignty conjointly over a territory[12], and no suggestion of any other agreement between Nauru and Australia by which governmental authority is to be jointly exercised on Nauru; assuming such an agreement to be possible.  Paragraph 76 of the facts agreed by the parties for the purposes of the special case assumes relevance here:

    "If Nauru had not sought to impose restrictions on the plaintiff as set out … above, none of the Commonwealth, the Minister, Transfield or its subcontractors would have sought to impose such restrictions in Nauru or asserted any right to impose such restrictions."

    This statement recognises that if Nauru had not detained the plaintiff, the Commonwealth could not itself do so.

    [12]See the discussion in Jennings and Watts (eds), Oppenheim's International Law, 9th ed (1992), vol 1 at 565 §170; Brownlie, Principles of Public International Law, 7th ed (2008) at 113-114.

36. Once it is understood that it was Nauru that detained the plaintiff, and that the Commonwealth did not and could not compel or authorise Nauru to make or enforce the laws that required that the plaintiff be detained, it is clear that the Commonwealth did not itself detain the plaintiff.

37. Accordingly, although the declaration the plaintiff seeks claims the Commonwealth itself detained the plaintiff and the word "detention" was used loosely in argument in connection with the Commonwealth's conduct, it is apparent 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.

    The principle in Lim

38. The plaintiff contends that her detention on Nauru was "funded, authorised, caused, procured and effectively controlled by, and was at the will of, the Commonwealth".  She relies upon the statement in Lim[13] that an officer of the Commonwealth Executive who "purports to authorize or enforce the detention in custody of … an alien" without judicial mandate will be acting lawfully only to the extent that their conduct is justified by a valid statutory provision.

    [13]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 19.

39. Clearly the Commonwealth sought the assistance of Nauru with respect to the processing of claims by persons such as the plaintiff.  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.  It may be accepted that its involvement was materially supportive, if not a necessary condition, of Nauru's physical capacity to detain the plaintiff.  But, for the reasons given above, it cannot be said that the Commonwealth thereby authorised or controlled the plaintiff's detention in the sense discussed in Lim.  That is sufficient to remove the basis for the plaintiff's reliance upon what was said in that case.

40. In any event, the plaintiff's reliance upon Lim is misplaced.  The principle established in Lim is that provisions of the Migration Act which authorised the detention in custody of an alien, for the purpose of their removal from Australia, did not infringe Ch III of the Constitution because the authority, limited to that purpose, was neither punitive in nature nor part of the judicial power of the Commonwealth. As a general proposition, the detention in custody of a citizen by the State is penal or punitive in character and exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt[14].  A qualification to this proposition is provided by the recognition that the Commonwealth Parliament has power to make laws for the expulsion and deportation of aliens and for their restraint in custody to the extent necessary to make their deportation effective[15].

    [14]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27.

    [15]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 30-31.

41. Contrary to the plaintiff's submissions, Lim does not refer more generally to a "concept of 'authorise or enforce' detention" which extends to a situation in which the detention is "not actually implemented" by the Commonwealth and its officers.  Lim has nothing to say about the validity of actions of the Commonwealth and its officers in participating in the detention of an alien by another State. It is nevertheless necessary that the Commonwealth's indisputable participation in the detention of the plaintiff on Nauru be authorised by the law of Australia. This directs attention to the statutory authority claimed by the Commonwealth under s 198AHA of the Migration Act. For the reasons set out below, that section provides the requisite authority. It is not necessary, therefore, to consider the hypothetical question whether, absent that statutory authority, the Commonwealth would otherwise be authorised by s 61 of the Constitution, or as a matter of non-statutory executive power, to participate in Nauru's detention of the plaintiff.

    Authorisation for participation in detention?

42. The plaintiff submits that s 198AHA is not supported by the aliens power in s 51(xix) of the Constitution because it does not single out that class of persons in its text or in its practical operation, and any connection with the enumerated subject matter is too remote or insubstantial. The submission should not be accepted. Section 198AHA is concerned with the regional processing functions of a country declared by the Minister under s 198AB(1) as a regional processing country to which UMAs may be taken under s 198AD(2). Just as s 198AD(2) is a law with respect to aliens[16], so too is s 198AHA.  Section 198AHA concerns the functions of the place to which an alien is removed for the purpose of their claim to refugee status being determined.  The requirement that there be a connection between the subject matter of aliens and the law that is more than insubstantial, tenuous or distant[17] is satisfied.

    [16]See [31] above.

    [17]Cunliffe v The Commonwealth (1994) 182 CLR 272 at 314; [1994] HCA 44; New South Wales v The Commonwealth (Work Choices Case) (2006) 229 CLR 1 at 143 [275]; [2006] HCA 52.

43. The plaintiff next submits that s 198AHA does not apply because the arrangement referred to in sub-s (1) is one with "a person or body" and the Government of Nauru is neither.  The sub-section itself makes a distinction between a "person or body" and a "country".

44. Were it necessary to resolve the meaning of "a person or body", resort could be had to s 2C(1) of the Acts Interpretation Act 1901 (Cth), by which "person" is to be taken to include a body politic. In any event the "body" referred to in s 198AHA(1) is apt to include the Executive government of a country through which arrangements would be made. The arrangements spoken of must include international arrangements which would be effected with the government of a regional processing country. So much is confirmed by the Explanatory Memorandum[18] and the Second Reading Speech[19] of the Bill inserting s 198AHA.  It would be an odd construction which has s 198AHA applying to contracts by the Commonwealth with service providers in a regional processing country but not to arrangements with the country itself relating to the provision of services.

    [18]Australia, House of Representatives, Migration Amendment (Regional Processing Arrangements) Bill 2015, Explanatory Memorandum at 2.

    [19]Australia, House of Representatives, Parliamentary Debates (Hansard), 24 June 2015 at 7488.

45. According to the natural and ordinary meaning of s 198AHA, it applies where the Commonwealth has entered into an arrangement with a regional processing country for the regional processing of unlawful non-citizens. The section does not in terms authorise the Commonwealth to enter into any such arrangement. It is, however, within the scope of the executive power of the Commonwealth with respect to aliens to enter into such an arrangement in order to facilitate regional processing arrangements. The second MOU provides for the regional processing of UMAs who are sent to a regional processing country in accordance with ss 198AB(1) and 198AD(2). It is essential to the scheme for the removal of aliens to a regional processing country for that purpose that that country not only be willing but also have the practical ability to do so.

46. Section 198AHA(2) authorised the Commonwealth to give effect to the second MOU including by entry into the Administrative Arrangements with Nauru and the Transfield Contract. The Commonwealth had power to fund the Centre and the other services to be provided under those arrangements. "Regional processing functions" are defined in sub‑s (5) to include the implementation of any law in connection with the role of the country as a regional processing country, and therefore the authority in sub-s (2) would extend to permitting the Commonwealth to provide services to carry into effect the laws of Nauru. In so far as those services extend to the exercise of physical restraint over the liberty of a person, that was authorised by the definition of "action" in sub-s (5). The nature and duration of that action, including participation in the exercise of restraint over the liberty of a person, is limited by the scope and purpose of s 198AHA. Section 198AHA is incidental to the implementation of regional processing functions for the purpose of determining claims by UMAs to refugee status under the Refugees Convention. The exercise of the powers conferred by that section must also therefore serve that purpose. 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. The Commonwealth is not authorised by s 198AHA to support an offshore detention regime which is not reasonably necessary to achieve that purpose. If, upon a proper construction of s 198AHA, the section purported to authorise the Commonwealth to support an offshore detention regime which went beyond what was reasonably necessary for that purpose, a question might arise whether the purported authority was beyond the Commonwealth's legislative power with respect to aliens.

    The Nauru Constitution

47. The plaintiff seeks to agitate the question whether the laws by which the plaintiff was detained on Nauru are valid laws, given Art 5(1) of the Constitution of Nauru. Article 5(1) provides that a person shall not be deprived of their personal liberty except as authorised by law for purposes there specified. The plaintiff says that this point is raised in response to the Commonwealth's defence that her detention was required by the laws of Nauru. The plaintiff also raises a point relating to the construction of ss 198AHA(2) and 198AHA(5) in order to argue for the invalidity of the Nauruan laws. It is submitted that these sub‑sections should not be construed as referring to detention which is unlawful under the law of the country where the detention is occurring. In that regard the laws cannot be viewed in isolation from the Constitution of that country.

48. These submissions raise questions about whether an Australian court should pronounce on the constitutional validity of the legislation of another country.  Whilst there may be some occasions when an Australian court must come to some conclusion about the legality of the conduct of a foreign government or persons through whom such a government has acted[20], because it is necessary to the determination of a particular issue in the case, those occasions will be rare.  This is not such an occasion.

    [20]Moti v The Queen (2011) 245 CLR 456 at 475 [51]; [2011] HCA 50.

49. The Commonwealth's amended defence does not raise any question as to the constitutional validity of the laws of Nauru.  It merely pleads that the plaintiff's detention was imposed by the laws of Nauru; which is to say, she was not detained by Australian law.

50. Strictly speaking, no issue arises on the plaintiff's case either.  The plaintiff's case concerns, and the declaration she seeks is framed around, the question whether the Commonwealth's conduct was authorised by a valid statute of the Commonwealth.  It concerns the power of the Commonwealth.  It does not concern the lawfulness of her detention by reference to the laws of Nauru.

51. The plaintiff did not articulate any basis to conclude that s 198AHA depends for its operation upon the constitutional validity of the laws of a regional processing country under which regional processing functions are undertaken.

52. It may be observed, however, that s 198AHA tends to point the other way.  Due to the definition of "regional processing functions" in sub-s (5), authority is given by sub-s (2) to implement Nauruan law, which, in context, must be a reference to laws passed by the Nauruan Parliament relating to regional processing.  Such authority is not further qualified by a requirement that such laws be construed as valid according to the Constitution of Nauru.

    A further submission?

53. On 28 January 2016, the parties filed in the Melbourne Registry of this Court a proposed consent order seeking re-opening of the proceedings for the limited purpose of amending the special case to make reference to the swearing‑in of staff members of Wilson Security as reserve officers of the Nauru Police Force Reserve in July 2013.  The amendment was based on documents which were disclosed to the plaintiff on 17 October 2015, after completion of the hearing in this matter.  It is not apparent why no step was taken to re-open the proceedings before 28 January 2016.  In any event, the amendment would not affect the outcome.  The proposed consent order was therefore refused.

    Orders

54. The questions raised by the special case, and which are set out in the document which follows the judgments in this case, should be answered only to the extent necessary for the resolution of the matters truly in controversy.  Paraphrasing the relevant aspect of the question stated, we would answer as follows:

    Question (1):  Does the plaintiff have standing to challenge whether the conduct of the Commonwealth or the Minister in securing, funding and participating in the plaintiff's detention at RPC 3 on Nauru was authorised by a valid law of the Commonwealth or was part of the executive power of the Commonwealth?

    Answer:  Yes.

    Question (2a): Was the conduct of the Commonwealth in signing the second MOU authorised by s 61 of the Constitution?

    Answer:  Yes.

    Question (2b):  Was the conduct of the Commonwealth in giving effect to that arrangement authorised by a valid law of the Commonwealth?

    Answer: Yes, it was authorised by s 198AHA of the Migration Act, which is a valid law of the Commonwealth.

    Question (3):  Were the laws by which the plaintiff was detained on Nauru contrary to the Constitution of Nauru?

    Answer:  The question does not arise.

    Questions (4) and (5):  Was the conduct of the Commonwealth in securing, funding and participating in the plaintiff's detention at RPC 3 on Nauru authorised by a valid law of the Commonwealth?

    Answer:  Yes, see the answer to questions (2a) and (2b).

    Question (6):  If the plaintiff were returned to Nauru, would the Commonwealth or the Minister be authorised to continue to perform the second MOU and to secure, fund and participate in the plaintiff's detention on Nauru?

    Answer:  Unnecessary to answer.

    Question (7):  If the plaintiff were returned to Nauru would her detention there be contrary to Art 5(1) of the Constitution of Nauru?

    Answer:  Unnecessary to answer.

    Questions (8) and (9):  If the plaintiff were returned to Nauru, would the Commonwealth or the Minister be authorised to secure, fund and participate in the plaintiff's detention by a valid law of the Commonwealth?

    Answer:  Unnecessary to answer.

    Questions (10) and (12): If the plaintiff were to be returned to Nauru, does s 198AD(2) of the Migration Act require that she be taken there as soon as reasonably practicable?

    Answer:  Unnecessary to answer.

    Question (11):  If yes to question (10), if the plaintiff were returned to Nauru would her detention be contrary to the Constitution of Nauru?

    Answer:  Unnecessary to answer.

    Question (13):  What, if any, relief should be granted to the plaintiff?

    Answer:  The plaintiff is not entitled to the declaration sought.

    Question (14):  Who should pay the costs of the special case and of the proceedings generally?

    Answer:  The plaintiff should pay the defendants' costs. 

55. The answer to question 14 in part responds to a submission by the plaintiff that the defendants should pay for her costs thrown away by amendments to the special case necessitated by changes in the circumstances of detention effected by the Government of Nauru, which were referred to earlier in these reasons.  In our opinion, that submission should be rejected.

56. BELL J.   The facts, the legislative scheme and the issues, as they were developed at the hearing of the parties' amended special case, are set out in the joint reasons of French CJ, Kiefel and Nettle JJ.  They need not be repeated, save to the extent it is convenient to do so in order to explain my reasons.

    The claims for relief and standing

57. By her amended application for an order to show cause filed on 21 August 2015, the plaintiff claims writ, injunctive and declaratory relief against the first defendant, the Minister for Immigration and Border Protection ("the Minister"), and against the second defendant, the Commonwealth of Australia ("the Commonwealth") (collectively, "the Commonwealth parties"), arising out of conduct that is said directly or indirectly to have procured or enforced constraints upon her liberty in Nauru.  

58. At the hearing of the parties' amended special case, the Commonwealth parties submitted that there is nothing left in the proceeding:  the writ and injunctive relief that the plaintiff claims is predicated upon this Court finding that on her return to Nauru it is likely that she will again be subjected to the constraints upon her liberty particularised in her amended statement of claim.  The Commonwealth parties contend that there is no longer a basis for that finding.  

59. The plaintiff also claims a declaration that the Commonwealth parties' conduct in enforcing or procuring, directly or indirectly, her detention from 24 March 2014, including by entering into contracts requiring or causing the enforcement of constraints on her liberty, was unlawful.  The Commonwealth parties contest the plaintiff's standing to seek this relief, because they claim the declaration would produce no foreseeable consequence for her. 

60. On 2 October 2015, the Nauru Government Gazette contained an announcement that, from 5 October 2015, open centre arrangements at the Regional Processing Centre in Nauru ("the RPC") were to be expanded to allow asylum seekers freedom of movement 24 hours per day, seven days per week ("the Notice"). 

61. On 4 October 2015, regs 9(6)(b) and 9(6)(c) of the Immigration Regulations 2014 (Nauru), which required asylum seekers not to leave the RPC without permission, were repealed.  At the date of the hearing, it remained a criminal offence for an asylum seeker to leave the RPC without prior approval from an authorised officer, an Operational Manager or other authorised persons[21]. 

    [21]Asylum Seekers (Regional Processing Centre) Act 2012 (Nauru), s 18C.

62. The intention of the Government of Nauru to enshrine the expanded open centre arrangements in legislation at the next sitting of Parliament was stated in the Notice.  In the interim, effect was given to the new regime by Operational Managers granting general approval to all asylum seekers to participate in the expanded open centre arrangements.

63. While it is open to Nauru to decide to return to a scheme under which asylum seekers are detained in the RPC until their claims for recognition of refugee status[22] ("protection claims") are determined, the introduction of the expanded open centre arrangements has removed the premise for the grant of the writ and injunctive relief claimed by the plaintiff. 

    [22]Article 1A of the Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967).

64. However, the declaratory relief that the plaintiff claims does not raise some abstract or hypothetical question.  It involves the determination of a legal controversy in respect of which the plaintiff has a "real interest"[23].  The declaration sought cannot be said to have no foreseeable consequences given that Nauru may choose to revert to a scheme under which asylum seekers taken to it by the Commonwealth are detained.

    [23]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582 per Mason CJ, Dawson, Toohey and Gaudron JJ; [1992] HCA 10; Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 at 359 [103] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; [2010] HCA 41, citing Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 355‑356 [46]-[47] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; [1999] HCA 9.

    The plaintiff's case

65. The plaintiff's pleaded case acknowledges that her detention was required under the law of Nauru. She contends that from 24 March 2014, when the Commonwealth entered into a contract with the third defendant, Transfield Services (Australia) Pty Ltd ("Transfield"), for the provision of garrison and welfare services at the RPC ("the Transfield contract"), until 2 August 2014, when she was brought to Australia for medical treatment, the Commonwealth parties funded, caused and effectively controlled her detention in Nauru. She contends that their conduct in so doing was unlawful because it was not authorised by a valid law of the Commonwealth nor was it a valid exercise of the executive power conferred by s 61 of the Constitution.

66. The Commonwealth parties' principal submission is that it is within the legislative power of the Commonwealth Parliament to authorise the Executive to expend monies to establish, maintain and otherwise provide support to Nauru to detain unauthorised maritime arrivals ("UMAs") who have been removed from Australia under s 198AD of the Migration Act 1958 (Cth) ("the Migration Act"), for the purpose of determining any protection claim made by those UMAs. They submit that s 198AHA of the Migration Act is such a law. I accept that is so. This conclusion makes it unnecessary to consider the Commonwealth parties' alternative submissions which invoke s 61 of the Constitution and s 32B of the Financial Framework (Supplementary Powers) Act 1997 (Cth), read with several items in the regulations, and a Schedule to the regulations, made thereunder[24].  It also makes it unnecessary to address Transfield's wider submission that the Commonwealth Executive may be invested with functions not forming part of the executive power of the Commonwealth. 

    [24]Financial Framework (Supplementary Powers) Regulations 1997 (Cth), reg 16 and items 417.021, 417.027, 417.029 and 417.042 of Sched 1AA.

67. For the reasons to be given, I agree with French CJ, Kiefel and Nettle JJ that not all the questions asked in the amended special case should be answered and I agree with the orders that their Honours propose.

    Section 198AHA and the MOU

68. Section 198AHA was inserted into the Migration Act by the Migration Amendment (Regional Processing Arrangements) Act 2015 (Cth). It has effect from 18 August 2012. On 29 August 2012 the Commonwealth entered into a Memorandum of Understanding with Nauru relating to the transfer of persons to and assessment of persons in Nauru. That Memorandum of Understanding was superseded by the Memorandum of Understanding signed on 3 August 2013, which remains in effect ("the MOU"). Each Memorandum of Understanding was entered into in the exercise of the non-statutory executive power of the Commonwealth to establish relations with other countries[25].

    [25]R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 643-644 per Latham CJ; [1936] HCA 52.

69. The MOU records the common understanding of the Governments of Nauru and the Commonwealth with respect to the transfer to Nauru of persons who have travelled irregularly by sea to Australia, or who have been intercepted by Commonwealth authorities in the course of trying to reach Australia by irregular maritime means, and who are authorised to be transferred to Nauru under Australian law ("transferees").  The purpose of the transfer is given as the processing of any protection claims made by transferees and the settlement in Nauru of an agreed number of transferees who are found by Nauru to be in need of international protection.  The Commonwealth states its commitment to bearing all of the costs to be incurred under and incidental to the MOU.  Nauru states its willingness to host one or more regional processing centres, while reserving the right to host transferees under other arrangements including community-based arrangements. 

70. Neither the MOU, nor the administrative arrangements giving effect to it, require that transferees be detained while their protection claims are being considered.  Throughout the period that the plaintiff was in Nauru, however, there was such a requirement under the law of Nauru. 

71. On its face, s 198AHA provides a complete answer to the plaintiff's case. Nauru is designated as a regional processing country under s 198AB of the Migration Act. Section 198AHA seemingly applies because the MOU is an arrangement entered into by the Commonwealth in relation to the regional processing functions of Nauru[26]. Section 198AHA(2) confers authority on the Commonwealth to make payments and to take, or cause to be taken, any action in relation to the arrangement or the regional processing functions of Nauru. Action includes exercising restraint over the liberty of a person in a regional processing country[27].  The regional processing functions of a country include the implementation of any law or policy, or the taking of any action, by a country in connection with its role as a regional processing country[28].  

    [26]Migration Act, s 198AHA(1).

    [27]Migration Act, s 198AHA(5).

    [28]Migration Act, s 198AHA(5).

72. The plaintiff contends that as a matter of construction s 198AHA does not apply to the arrangement between the Commonwealth and Nauru recorded in the MOU.  Alternatively, she submits that s 198AHA is invalid because it is not supported by a head of legislative power or that the provision is invalid to the extent that it exceeds the constitutional limitation on legislative power identified in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs[29].

    [29](1992) 176 CLR 1 at 27-28 per Brennan, Deane and Dawson JJ; [1992] HCA 64.

    The plaintiff's construction argument

73. Section 198AHA(1) provides that "[t]his section applies if the Commonwealth enters into an arrangement with a person or body in relation to the regional processing functions of a country". The plaintiff submits that the provision does not apply to an arrangement entered into with a "country" as distinct from a "person or body". The submission is maintained in the face of s 2C(1) of the Acts Interpretation Act 1901 (Cth) ("the Interpretation Act"), which provides that expressions used to denote persons generally include a body politic or corporate as well as an individual. Section 198AHA(1) is said to evince an intention that s 2C(1) of the Interpretation Act does not apply because "person" is not used in this setting to denote "persons generally": if "person" had that denotation, the addition of the words "or body" would be superfluous.

74. There is no reason not to interpret "person" in s 198AHA, conformably with s 2C(1) of the Interpretation Act, as including the artificial persons to which s 2C(1) refers, including bodies politic. As the Commonwealth parties submit, the reference to a "body" in the context of this statutory scheme has evident work to do: international bodies such as the United Nations High Commissioner for Refugees and the International Organization for Migration, while not legal persons, are bodies within the scope of s 198AHA(1).

    Legislative power

75. The Commonwealth parties submit that s 198AHA is supported by the aliens power in s 51(xix), the external affairs power in s 51(xxix) and the Pacific islands power in s 51(xxx). It is sufficient to consider the parties' submissions with respect to the aliens power.

76. The plaintiff's submissions draw on what is said to be the "limiting effect" of s 198AHA(3), which makes clear that s 198AHA(2) confers authority on the Commonwealth to make payments and to take action in relation to the regional processing functions of a designated regional processing country without otherwise affecting the lawfulness of the payment or action. Thus, it is argued, the provision does not regulate the rights, liabilities or duties of aliens and is not to be characterised as a law with respect to that subject matter[30].  Aliens, it is said, are not singled out in the text or in the provision's practical operation, and any connection to that subject matter is too remote or insubstantial. 

    [30]Cf Williams v The Commonwealth [No 2] (2014) 252 CLR 416 at 461 [50] per French CJ, Hayne, Kiefel, Bell and Keane JJ; [2014] HCA 23.

77. Section 198AHA is in Pt 2 Div 8 subdiv B of the Migration Act, which provides a scheme for "regional processing". The processing to which the subdivision refers is of the protection claims of aliens who have entered Australia by sea and who become unlawful non-citizens because of that entry. A duty is imposed on Commonwealth officers to take aliens of this description from Australia to a regional processing country[31], designated as such by the Minister[32] following a determination that the designation is in the national interest[33].  In determining whether it is in the national interest to designate a country to be a regional processing country, the Minister must have regard to whether the country has given assurances to Australia that it will not expel or return ("refouler") a person taken to it for processing and that it will make an assessment, or permit an assessment to be made, of whether a person taken to it under the scheme is a refugee[34].  The scheme is predicated upon a country agreeing to take aliens transferred to it from Australia for regional processing[35]. As the Commonwealth parties submit, the actions and payments in relation to the regional processing functions of the regional processing country authorised by s 198AHA(2) are, in legal operation and practical effect, closely connected to the processing of protection claims made by aliens who have been taken by the Commonwealth from Australia to the regional processing country for that processing. This provides a sufficient connection between s 198AHA and the power conferred by s 51(xix)[36].

    [31]Migration Act, s 198AD(2).

    [32]Migration Act, s 198AB(1).

    [33]Migration Act, s 198AB(2).

    [34]Migration Act, s 198AB(3)(a).

    [35]Migration Act, s 198AG.

    [36]Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28 at 43 [26]; [2014] HCA 22. See also Grain Pool of Western Australia v The Commonwealth (2000) 202 CLR 479 at 492 [16] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; [2000] HCA 14; New South Wales v The Commonwealth (2006) 229 CLR 1 at 143 [275] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ; [2006] HCA 52.

    The Lim principles

78. The plaintiff's remaining arguments depend upon the principles enunciated in Lim having application to an alien who is removed from Australia and taken, under s 198AD of the Migration Act, to Nauru and there detained under the law of Nauru. The first premise of the plaintiff's argument is that she was involuntarily detained in Nauru and the second premise is that the Commonwealth parties procured, caused and effectively controlled that detention. At the hearing, the Commonwealth parties accepted that they provided the material support necessary for the establishment and maintenance of the detention regime at the RPC. They did not accept that they procured, caused or substantially controlled the plaintiff's detention. These submissions direct attention to the nature of the plaintiff's detention in Nauru between 24 March and 2 August 2014 and to the Commonwealth parties' role in the operation of the RPC, both directly and indirectly through the contractual obligations imposed on Transfield under the Transfield contract.

    Detention at the RPC

79. On 22 January 2014, Commonwealth officers took the plaintiff, a UMA, to Nauru pursuant to s 198AD(2) of the Migration Act. On arrival in Nauru on 23 January 2014, the plaintiff ceased to be in the custody of the Commonwealth under s 198AD(3) of the Migration Act.

80. At that time, s 9(1) of the Immigration Act 1999 (Nauru) provided that a person who was not a Nauruan citizen could not enter or remain in Nauru without a valid visa.  The Act conferred power on the Cabinet of Nauru to make regulations, including with respect to classes of visa and the conditions of a visa[37].  Regulations made under that power provided for a class of visa known as a "regional processing centre visa" ("RPC visa")[38]. An RPC visa could only be granted to a UMA as defined in the Migration Act, who was to be, or who had been, brought to Nauru under s 198AD of that Act[39].  An application for an RPC visa had to be made before the person to whom it related entered Nauru[40].  The application for an RPC visa could only be made by an officer of the Commonwealth[41]. 

    [37]Immigration Act 1999 (Nauru), s 44.

    [38]Immigration Regulations 2013 (Nauru), reg 4(1)(d).

    [39]Immigration Regulations 2013 (Nauru), reg 9(1)(a). The only other category of person to whom an RPC visa could be granted was a person who was to be, or had been, brought to Nauru under s 199 of the Migration Act: reg 9(1)(b).

    [40]Immigration Regulations 2013 (Nauru), reg 9(2).

    [41]Immigration Regulations 2013 (Nauru), reg 9(3).

81. On 21 January 2014, an officer of the Commonwealth applied for an RPC visa in the plaintiff's name without seeking the plaintiff's consent.  On 23 January 2014, the Principal Immigration Officer of Nauru granted the application and issued an RPC visa to the plaintiff, conditioned upon the requirement that she reside at the RPC.  The plaintiff did not consent to the issue of the RPC visa.

82. The plaintiff was subject to constraints on her freedom in Nauru arising from the conditions of her RPC visa and from her status as a "protected person" under s 3(1) of the Asylum Seekers (Regional Processing Centre) Act 2012 (Nauru) ("the RPC Act").  As a protected person, she was required not to leave the RPC without prior approval from an authorised officer, an Operational Manager or other authorised persons[42].  She was subject to the same obligation under rules made by the Operational Manager of RPC3, the site within the RPC in which she was housed[43], and by the Immigration Regulations 2013 (Nauru), which regulations required the plaintiff to reside in the premises nominated in her RPC visa[44].   

    [42]RPC Act, s 18C.

    [43]Nauru Regional Processing Centre, Centre Rules, July 2014, r 3.1.3:  Republic of Nauru, Government Gazette, No 95, 16 July 2014.

    [44]Immigration Regulations 2013 (Nauru), reg 9(6)(a), (b) and (c).

83. 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, but submit that such a causal connection has nothing to say about the application of the principles enunciated in Lim, which apply to detention in custody by the Commonwealth.

84. Under the administrative arrangements giving effect to the MOU, Nauru was required to appoint an Operational Manager to be responsible for the day to day management of the RPC.  The administrative arrangements contemplated that the Operational Manager would be supported by contracted service providers and staff members who would provide a range of services, including security services.  The Operational Manager would monitor the welfare, safety and conduct of transferees with the assistance of the service providers.  The Commonwealth was to appoint a Programme Coordinator to be responsible for managing all Australian officers and service contracts in relation to the RPC, including by ensuring that service providers deliver services to the appropriate standard.  The Programme Coordinator has at all times been an officer of the Department of Immigration and Border Protection ("the Department") and is stationed in Nauru. 

85. The governance structures for which the administrative arrangements provide comprise a Ministerial Forum, a Joint Advisory Committee and a Joint Working Group.  The Ministerial Forum, co-chaired by the Minister and the Nauru Minister for Justice and Border Control, oversees the regional partnership between Nauru and Australia, including the operation of the RPC.  The Joint Advisory Committee comprises representatives of Nauru and the Commonwealth, who advise and oversee matters including the practical management of security services for the RPC.  The Commonwealth provides secretariat support to the Joint Advisory Committee.  The Joint Working Group is co-chaired by the Commonwealth and Nauru, and meets weekly.  Its terms of reference include that it is to advise on technical, operational and legal aspects of the management of the RPC, including the delivery of security services. 

86. Under the Transfield contract, Transfield undertook to improve the security infrastructure, and to enhance security arrangements, at the RPC.  The Department undertook to provide security infrastructure, which might include perimeter fencing, lighting towers and an entry gate.  Transfield is required to ensure that the security of the perimeter of the RPC is maintained at all times in accordance with the policies and procedures of the Department as notified to it by the Department from time to time.  Transfield undertook responsibility for "access control procedures" that are "sufficiently robust" to eliminate the possibility of unauthorised access to the RPC.  Further, Transfield is required to verify that all transferees are present and safe in the RPC at least twice each day, at times which take account of any curfew arrangements.

87. Among the "garrison services" which Transfield undertook to provide are security services, which include "structured security services" enabling Transfield to manage routine events at the RPC and to respond promptly and flexibly to any incident.  Transfield is required to provide the Department with security risk assessments and security audits.  It may conduct searches within the RPC only with the prior approval, or on the request, of the Department.  Transfield is required to discharge its contractual obligations in a manner that is adaptable to and readily accommodates changes in Commonwealth policy during the term of the contract, in order to ensure that the services it delivers accord with Commonwealth policy.

88. The step-in rights under the Transfield contract allow the Secretary of the Department, if he or she considers that circumstances exist which require the Department's intervention, at his or her absolute discretion, to suspend the performance of any service performed by Transfield and arrange for the Department, or a third party, to perform the suspended service or otherwise to intervene in the provision of the services by written notice to Transfield.

89. Transfield provides security and other services at the RPC through a subcontract with a subsidiary of Wilson Parking Australia 1992 Pty Ltd ("Wilson Security").  The subcontract at the time of the hearing was entered into on 28 March 2014.  Transfield was required to obtain, and did obtain, the Commonwealth's approval of its subcontract with Wilson Security.  Employees of Wilson Security are authorised officers under the RPC Act. 

90. Among the other service providers engaged by the Commonwealth to perform services at the RPC is International Health and Medical Services Pty Ltd, which provides primary health care for transferees.  Where, as occurred here, a transferee requires medical attention that is not available in Nauru, the transferee may be brought to Australia from Nauru for the temporary purpose of receiving treatment[45].  On no occasion has Nauru refused any permission necessary under the law of Nauru for a transferee to be taken from Nauru to Australia to receive medical treatment.

    [45]Migration Act, s 198B.

91. In the period covered by the plaintiff's claim, from 24 March 2014 until 2 August 2014, when she was removed from Nauru by the Commonwealth for the purpose of being brought to Australia for medical treatment, the plaintiff resided in RPC3.  RPC3 was surrounded by a high metal fence through which entry and exit was possible only through a checkpoint.  The checkpoint was permanently staffed by employees of Wilson Security, who monitored ingress and egress.  The plaintiff was entitled to move freely within RPC3, save that she was not permitted to be present in other transferees' accommodation areas between 5:00pm and 6:00am and was not permitted to enter specified restricted areas.  Contrary to the Commonwealth parties' submission, the detention to which the plaintiff was subject is not analogous to the lesser forms of restriction on liberty considered in Thomas v Mowbray[46]. 

    [46](2007) 233 CLR 307 at 330 [18] per Gleeson CJ, 356 [114]‑[116] per Gummow and Crennan JJ; [2007] HCA 33.

92. 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. It is correct, as the Commonwealth parties submit, to observe that while only an officer of the Commonwealth could apply for an RPC visa in the plaintiff's name, it remained for Nauru to determine whether or not to grant the visa. However, Nauru committed itself under the MOU to take those persons whom the Commonwealth transferred to it under s 198AD of the Migration Act. 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.

93. The Commonwealth funded the RPC and exercised effective control over the detention of the transferees through the contractual obligations it imposed on Transfield.  The first premise of the plaintiff's Lim challenge, that her detention in Nauru was, as a matter of substance, caused and effectively controlled by the Commonwealth parties, may be accepted. 

    The Lim challenge to the validity of s 198AHA

94. In Australia, unlawful non-citizens can be detained in custody without judicial warrant, under valid provisions of the Migration Act, for purposes which include the investigation and determination of any protection claim[47].  The plaintiff is unwilling to return to Bangladesh because she claims to be a refugee.  She has applied to the Secretary of the Department of Justice and Border Control of Nauru to be recognised as a refugee under s 5 of the Refugees Convention Act 2012 (Nauru).  Her application has not been determined.  The plaintiff contends that the Commonwealth Parliament cannot enact a valid law authorising the Commonwealth to engage in conduct causing, or effectively controlling, her detention in Nauru while her protection claim is investigated and determined because detention in Nauru under the scheme for regional processing is avowedly punitive in character. 

    [47]Migration Act, s 189.

95. An alternative ground of challenge to the validity of s 198AHA submitted by the plaintiff is that the section does not confine the authority that it confers, to exercise restraint over the liberty of a person in relation to the regional processing functions of a country, to that which is reasonably capable of being seen as necessary for the purposes of investigating and assessing any protection claim and removal from Nauru[48].  Each of these challenges derives from the principles stated in the joint reasons of Brennan, Deane and Dawson JJ in Lim.

    [48]Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 at 233 [34]; [2014] HCA 34.

96. The Commonwealth parties submit that the true principle enunciated in the joint reasons in Lim, with the concurrence of Mason CJ, is that legislation conferring power on the Executive to detain a person will only be invalid if it is a conferral of the judicial power of the Commonwealth. Even if officers of the Commonwealth have, directly or indirectly, exercised restraint over the plaintiff's liberty in Nauru, the Commonwealth parties submit that the conferral of authority to do so under s 198AHA(2) is not of the judicial power of the Commonwealth. They contend that the lawfulness of the plaintiff's detention is governed by the law of Nauru and that s 198AHA(3) makes plain that the authority it confers does not make lawful detention that would otherwise be unlawful. To the extent that the joint reasons in Lim state that an officer of the Commonwealth who purports to authorise or enforce the detention in custody of an alien will act lawfully only to the extent that the conduct is justified by valid statutory provision[49], the Commonwealth parties submit their Honours are stating a principle of common law.  Their Honours' reference to the constitutional immunity of citizens, in other than exceptional cases, from being imprisoned without judicial warrant[50] is criticised by the Commonwealth parties as inconsistent with the "true principle" for which Lim stands.  

    [49](1992) 176 CLR 1 at 19 per Brennan, Deane and Dawson JJ.

    [50]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27-29 per Brennan, Deane and Dawson JJ.

97. The analysis in the joint reasons in Lim, which commences with the common law's rejection of the lettre de cachet or other executive warrant authorising arbitrary arrest or detention, proceeds to a consideration of that rejection under a system of government in which the separation of judicial from legislative and executive power is constitutionally mandated[51].  It is to be kept in mind that the object of that separation is the protection of individual liberty[52].  It is in this context that their Honours explain that the purported investment of an executive power of arbitrary detention will be beyond the legislative power of the Commonwealth Parliament even if the investment were conferred in a manner which sought to divorce it from the exercise of judicial power[53]. 

    [51](1992) 176 CLR 1 at 27-29 per Brennan, Deane and Dawson JJ.

    [52]Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 11 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ; [1996] HCA 18.

    [53]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27 per Brennan, Deane and Dawson JJ.

98. It remains that Lim allows for the Parliament to confer power on the Executive to detain aliens without judicial warrant for identified purposes[54].  The constitutional holding in Lim is that a law, authorising or requiring the detention in custody of an alien without judicial warrant, will not contravene Ch III of the Constitution provided the detention that the law authorises or requires is limited to that which is reasonably capable of being seen as necessary for the purposes of deportation or for the purposes of enabling an application by the alien to enter and remain in Australia to be investigated and determined[55].  So limited, the detention is an incident of executive power.  If not so limited, the detention is punitive in character and ceases to be lawful. 

    [54](1992) 176 CLR 1 at 32 per Brennan, Deane and Dawson JJ.

    [55](1992) 176 CLR 1 at 33 per Brennan, Deane and Dawson JJ; Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at 12-13 [18] per Gleeson CJ; [2004] HCA 49; Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322 at 369 [138] per Crennan, Bell and Gageler JJ; [2013] HCA 53.

99. There is no principled reason why the Parliament may confer a power on the Commonwealth to cause and effectively control the detention of an alien taken from Australia, to a country which has been designated by Australia as a regional processing country, without being subject to the same constitutional limitations as apply to the detention of aliens for the purposes of processing their protection claims in Australia[56].  In my opinion, the plaintiff's invocation of the Lim principle fails, not because that principle has no application but because her detention in Nauru did not infringe the principle.

    [56]CPCF v Minister for Immigration and Border Protection (2015) 89 ALJR 207 at 240 [149]-[150] per Hayne and Bell JJ; 316 ALR 1 at 39-40; [2015] HCA 1.

100. The plaintiff points to statements in the MOU as evidencing that the purpose of the detention of transferees in Nauru was punitive. These include the parties' recognition of the need for "practical action to provide a disincentive against Irregular Migration, People Smuggling syndicates and transnational crime", the need to ensure that "no benefit is gained through circumventing regular migration arrangements" and the need to "take account of the protection needs of persons who have moved irregularly and who may be seeking asylum". It may be accepted that a purpose of the regional processing scheme for which Pt 2 Div 8 subdiv B of the Migration Act provides is to deter irregular migration to Australia. This object is pursued by the removal of UMAs to a regional processing country for the determination of their protection claims. However, the requirement for transferees to be detained, while the administrative processes involved in the investigation, assessment and review of their claims take place, does not thereby take on the character of being punitive.

101. Section 198AHA(2) does not confer unconstrained authority on the Commonwealth to take action involving the exercise of restraint over the liberty of persons. The authority is limited to action that can reasonably be seen to be related to Nauru's regional processing functions. Those functions, identified in the MOU, are the processing of any protection claim made by a transferee and the removal from Nauru of transferees who are found not to be in need of international protection. 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[57].

     [57]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 34 per Brennan, Deane and Dawson JJ.

102. As French CJ, Kiefel and Nettle JJ observe, the plaintiff's pleaded case does not raise an issue as to the lawfulness of her detention under the law of Nauru.  I agree with their Honours' reasons for concluding that the plaintiff's case is not an occasion to pronounce on the constitutional validity of the laws of Nauru.

103. The questions of law stated in the amended special case should be answered in the terms stated by French CJ, Kiefel and Nettle JJ. 

     GAGELER J.  

     Introduction

104. The Migration Act 1958 (Cth) has, since the insertion of subdiv B into Div 8 of Pt 2 in 2012[58], established a regime under which a person who is a non-citizen and who on entering Australia becomes an "unauthorised maritime arrival" must be detained[59] and taken to a designated "regional processing country"[60].  The non-citizen may be brought back to Australia for a temporary purpose[61] but must be returned once the need to be in Australia for that temporary purpose has passed[62]. 

     [58]Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth).

     [59]Section 189 of the Migration Act.

     [60]Section 198AD of the Migration Act.

     [61]Section 198B of the Migration Act.

     [62]Section 198AH of the Migration Act.

105. On 29 August 2012, the Commonwealth of Australia and the Republic of Nauru entered into an understanding set out in a document entitled "Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia, relating to the Transfer to and Assessment of Persons in Nauru, and Related Issues".  Under that Memorandum of Understanding – which was replaced by another Memorandum of Understanding ("the Second Memorandum of Understanding") in relevantly identical terms on 3 August 2013 – the Republic of Nauru agreed to accept the transfer of persons authorised by Australian law to be transferred to Nauru, and assured the Commonwealth, amongst other things, that it will make an assessment, or permit an assessment to be made, of whether or not a transferee is covered by the definition of "refugee" in the Refugees Convention[63].

     [63]Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967).

106. On 10 September 2012, the Republic of Nauru was designated as a regional processing country.  More than 2000 unauthorised maritime arrivals have since been taken to Nauru.  There they have been detained at a Regional Processing Centre, pending processing of their claims to be refugees within the meaning of the Refugees Convention.  Their detention at the Regional Processing Centre has been under the authority of Nauruan legislation, the validity of which under the Constitution of Nauru is controversial.

374. The question, then, is whether s 198AHA is beyond power or contrary to Ch III of the Constitution.

     (4)      Is s 198AHA beyond power? – Question 5

375. The Commonwealth relied on a number of heads of power to support s 198AHA – the aliens power, the immigration power, the external affairs power and the Pacific Islands power.  Each will be considered in turn. 

     (a)Aliens power – s 51(xix) of the Constitution

     (i)Introduction

376. Sections 198AB and 198AD of the Migration Act are laws with respect to aliens within s 51(xix) of the Constitution[303]. The scheme established by ss 198AB and 198AD regulates the entry of aliens into, or provides for their removal from, Australia. That is consistent with the object of the Migration Act[304].  But more importantly, a law regulating entry of aliens into or providing for removal of aliens from Australia is a law with respect to aliens.

     [303]Plaintiff S156/2013 (2014) 254 CLR 28 at 43 [25], 46 [38].

     [304]s 4 of the Migration Act; see also Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 at 230 [22]-[23]; [2014] HCA 34.

377. The relevant operation of the law now in issue (s 198AHA) goes beyond regulation of entry of aliens and goes beyond providing for removal of aliens.  It goes beyond those subjects by providing (in the operation now relied upon by the Commonwealth) for the Commonwealth to detain certain aliens, in a foreign state, after those persons have been removed from (or denied entry into) Australian territory.  That operation of s 198AHA presents a fundamental question about the power of the Parliament to provide for detention by the Commonwealth outside Australia.  That is, it presents a fundamental question about the powers (or more specifically, the limit of the powers) of the Commonwealth beyond its borders.  Those powers are not unlimited. 

     (ii)Principles

378. The legislative powers conferred by s 51 are bounded by Ch III of the Constitution. That is, the grants of legislative power contained in s 51 (which are expressly "subject to this Constitution") do not permit the conferral upon any organ of the Executive Government of any part of the judicial power of the Commonwealth[305]. 

     [305]Lim (1992) 176 CLR 1 at 26-27. See also Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 606-607; [1991] HCA 32.

379. The principle identified in Lim[306] gives effect to the fundamental proposition that the Parliament's legislative power to provide for the Executive to be able to effect compulsory detention, and associated trespass to the person, without judicial order is limited.  That principle is no less applicable here, where detention by the Commonwealth was effected by the Commonwealth's acts and conduct[307].

     [306](1992) 176 CLR 1.

     [307]See Part (2) of the Analysis section above.

380. Laws will be valid if "the detention which they require and authorize is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered"[308].

     [308]Lim (1992) 176 CLR 1 at 33.

381. Therefore, the validity of the provisions upheld in Lim depended upon identifying an exceptional reason permitting a law authorising executive detention.  The exceptions recognised[309] (and long since recognised) are the power to detain for expulsion or deportation and the power to exclude admission or to deport. That is, the legislative power conferred by s 51(xix) extends to conferring upon the Executive authority to detain an alien in custody to the extent necessary to make that expulsion or deportation effective[310].  That authority, when conferred in the context and for the purposes of executive powers to receive, investigate and determine an application by an alien for an entry permit to Australia and (after determination) to admit or deport that alien, is an incident of those executive powers and to that limited extent does not impermissibly restrict or infringe the judicial power of the Commonwealth vested in Ch III courts[311]. That authority is reflected in the object of the Migration Act – "to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens"[312] – and the statement that, to advance that object, the Migration Act is to provide "for the taking of unauthorised maritime arrivals from Australia to a regional processing country"[313]. That statement is not expressed to be an independent object. It is explicitly stated in s 4(5) of the Migration Act as being to advance the only object – "to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens".

     [309]Lim (1992) 176 CLR 1 at 32.

     [310]Lim (1992) 176 CLR 1 at 30-31.

     [311]Lim (1992) 176 CLR 1 at 10, 32.

     [312]s 4(1) of the Migration Act.

     [313]s 4(5) of the Migration Act. See also s 198AA(c) of the Migration Act.

382. The list of permissible purposes for executive detention under the aliens power may not be closed[314].  And this Court has said that the authority to detain an alien in custody extends to a power to detain outside Australia's borders for the purposes of repelling entry and for the purposes of making removal from Australia complete[315].  But whether that is the outer limit of the aliens power is not the question here.  The question is whether the detention of the Plaintiff by the Commonwealth after her removal to Nauru by the Commonwealth was complete is validly authorised. 

     [314]Lim (1992) 176 CLR 1 at 55; Al-Kateb v Godwin (2004) 219 CLR 562 at 648 [258]; [2004] HCA 37; ReWoolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at 12 [16]-[17], 26-27 [62], 85 [264]; [2004] HCA 49; Vasiljkovicv The Commonwealth (2006) 227 CLR 614 at 648 [108]; [2006] HCA 40.

     [315]CPCF (2015) 89 ALJR 207 at 240 [149]-[150]; 316 ALR 1 at 39-40.

383. Section 198AHA is part of a statutory scheme[316].  Is s 198AHA a law with respect to aliens?  The people s 198AHA deals with may be aliens.  But observing that they may be aliens ignores the fundamental question of the power of the Commonwealth Parliament to pass a law requiring the detention of an alien outside Australia and after the Commonwealth has exercised its undoubted power to expel that alien from Australia, or prevent entry by that alien into Australia.

     [316]See Plaintiff M76/2013 (2013) 251 CLR 322 at 363-364 [115]-[119].

384. Observing that the law relates to persons who are aliens may establish that it prima facie falls within the scope of the legislative power with respect to aliens conferred by s 51(xix)[317].  But it does not say anything about whether the law nevertheless is beyond power because the law goes beyond the limits identified in Lim[318].  Saying that the aliens power is "plenary" obscures the need to consider those limits. 

     [317]Lim (1992) 176 CLR 1 at 25-26.

     [318](1992) 176 CLR 1.

385. As was said in Lim, "any officer of the Commonwealth Executive who purports to authorize or enforce the detention in custody of … an alien without judicial mandate will be acting lawfully only to the extent that his or her conduct is justified by valid statutory provision" (emphasis added)[319]. 

     [319](1992) 176 CLR 1 at 19.

386. The "constitutional" holding in Lim was described in Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship in the following terms[320]:

     "[T]hat laws authorising or requiring the detention in custody by the executive of non-citizens, being laws with respect to aliens within s 51(xix) of the Constitution, will not contravene Ch III of the Constitution, and will therefore be valid, only if:  'the detention which they require and authorise is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered.'"  (emphasis added, footnote omitted)

     [320](2013) 251 CLR 322 at 369 [138], citing Lim (1992) 176 CLR 1 at 33. See also Plaintiff S4/2014 (2014) 253 CLR 219 at 231-232 [25]-[29]; CPCF (2015) 89 ALJR 207 at 272 [374]; 316 ALR 1 at 83.

387. It is the application of those principles to s 198AHA that is considered next.

     (iii)     Application of principles

388. Section 198AHA is invalid because it "contravene[s] Ch III's insistence that the judicial power of the Commonwealth be vested exclusively in the courts which it designates"[321].  It does that because it restricts liberty otherwise than by judicial order and beyond the limits of those few and confined exceptional cases where the Executive, without judicial process, can detain a person. 

     [321]Lim (1992) 176 CLR 1 at 33; Plaintiff M76/2013 (2013) 251 CLR 322 at 369 [138].

389. Section 198AHA does not deal with the power to exclude admission or to deport.  Exclusion and deportation are complete and finally effective on landing on Nauru.  Section 198AHA is relied upon as authorising the Executive to detain persons on Nauru.  But there is a fundamental problem.  The aliens power does not authorise a law which permits or requires detention in those circumstances.  It does not authorise that kind of law because the involuntary detention of persons at the behest of the Executive is permitted in only exceptional circumstances.  Detention under s 198AHA does not fall within either of the recognised exceptions in Lim.  And a new exception should not be created for this kind of detention.  This section of the reasons will explain these conclusions.

390. First, a preliminary point should be made. The fact that the place of detention is outside Australia does not mean that legislative power is relevantly unconstrained. The Parliament's legislative powers are not larger outside the territorial borders than they are within the borders. Put another way, what the Commonwealth contends amounts, in effect, to an argument that s 51(xix) permits Parliament to enact a law allowing the Executive Government to do anything to the person or property of any person who is an alien so long as the conduct occurs outside the territorial borders of Australia.  Why is the "aliens" power to be read as circumscribed by Ch III in the case of laws dealing with conduct in Australia but not affected by Ch III so long as the conduct occurs outside Australia? 

391. The detention of the Plaintiff by the Commonwealth on Nauru, which the Commonwealth asserts s 198AHA both requires and authorises, is not limited to what was reasonably capable of being seen as necessary for the purposes of removal of the Plaintiff from Australia (or the prevention of the Plaintiff's entry into Australia).  Removal from Australia was complete when the Plaintiff arrived on Nauru.  Moreover, the detention by the Commonwealth on Nauru was not necessary to enable an application for an entry permit to Australia to be made and considered.  The Plaintiff is unable to make such an application[322].  Further, the Plaintiff's detention by the Commonwealth on Nauru could not have been for the purpose of completing Australia's obligation to consider her application for refugee status, because that obligation rested on Nauru.

     [322]s 46A of the Migration Act.

392. It is to be noted that the detention of the Plaintiff (either at all or in its duration) was not reasonably necessary to effect a purpose identified in the Migration Act which was capable of fulfilment. As seen earlier, the object of the Migration Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens[323]. The Plaintiff's detention was not reasonably necessary for that stated object or any of the other stated purposes which are set out in s 4 of the Migration Act to "advance" that stated object. But the determinative point is more than one of statutory construction. It is a point about legislative power.

     [323]s 4(1) of the Migration Act.

393. Put simply, the aliens power does not provide the power to detain after removal is completed. 

394. The Commonwealth submitted that detention under s 198AHA is limited to detention which can be related to the regional processing functions of another country, and that s 198AHA simply "completes" the process of removal required by s 198AD. But those submissions are no answer. First, s 198AHA does not remove aliens from Australia to Nauru. That is addressed in ss 198AB and 198AD. Second, s 198AHA does not "facilitate" or "complete" that removal. The removal is complete when the alien is taken to Nauru, consistent with the stated object of the Migration Act[324].  Third, the Commonwealth's submission does not engage with, and treats as irrelevant, the fact that the Commonwealth detained the Plaintiff.  It is the detention by the Commonwealth of the Plaintiff outside Australia and after the Commonwealth exercised its undoubted power to expel her from Australia, or prevent entry by her into Australia, that cannot be lawfully justified. 

     [324]s 4(5) of the Migration Act. See also s 198AA(c) of the Migration Act.

395. In short, the effect of the Commonwealth's submission is that it can do outside Australia what it cannot do inside Australia – detain an alien in custody for a purpose other than one of the two relevant purposes stated in Lim[325] (leaving aside, for the moment, the prospect of the creation of a new category of permissible detention).  It is no answer for the Commonwealth to say that it can do so because it does this outside Australia.  Why?  Because the subject matter of the power is an alien, which prima facie engages the aliens power.  And the aliens power is subject to the limitation on power identified in Lim.  It is that limitation on power that the Commonwealth cannot address. 

     [325]As explained in Plaintiff S4/2014 (2014) 253 CLR 219 at 231 [26], there is a third permissible purpose – determining whether to permit a valid application for a visa which was peculiar to the statutory framework then in issue.

396. The further contention that the Commonwealth is authorised by s 198AHA to detain the Plaintiff in custody on Nauru if that detention is a condition of the willingness and ability of Nauru to receive the Plaintiff for processing, and that the authority to cause detention in custody conferred by s 198AHA(2) is therefore incidental to ss 198AB and 198AD of the Migration Act (which validly, under the aliens power, regulate the entry of aliens into or the removal of aliens from Australia), should be rejected. The Executive Government of Australia cannot, by entering into an agreement with a foreign state, agree the Parliament of Australia into power. The removal of an alien to a foreign country cannot sensibly be said to continue once that alien has been removed to that foreign country. Upon the Plaintiff's arrival on Nauru, the Commonwealth's process of removal was complete and the purpose for which removal was undertaken had been carried out. Removal was not ongoing. Australia can provide assistance to Nauru. But Australia cannot detain the Plaintiff on Nauru.

397. It was suggested in argument, in effect, that whether the Commonwealth was found to detain the Plaintiff was irrelevant and, further, that because the Commonwealth could validly provide foreign aid to Nauru to detain the Plaintiff, whether the Commonwealth detained the Plaintiff was a matter of form over substance – the Plaintiff would have been detained anyway, by Nauru alone, with the benefit of funding provided by Australia.  Neither point is right.  First, and fundamentally, questions of constitutional validity are not to be determined by reference to hypothetical assumptions about what steps might have been taken to achieve some desired objective.  Especially is that so when the steps that are assumed are steps that would have to be taken by a foreign state. 

398. Second, the error is revealed by consideration of the "Step In" provision in the Transfield Contract.  Under that provision the Commonwealth may at any time and from time to time take over the contractor's functions at the Nauru RPC.  That is, the Commonwealth may by its servants (leave aside the contractor as its agent) itself apply force to persons detained in the Nauru RPC for the purpose of confining those persons within the bounds of the place identified as the place of detention, the Nauru RPC (recalling that we are dealing here with the past conduct).  To that end, the Commonwealth may by its servants assault detainees and physically restrain them.  That it is the Commonwealth that may do this is no mere matter of form.  The argument which describes the relationships established as mere matters of form, to be ignored by observing that the Commonwealth could validly provide funding to Nauru for Nauru alone to effect the detention, stands principle on its head.  It does so because it treats the Commonwealth's detention of the Plaintiff as irrelevant.

399. The fact that if Nauru had not sought to impose restrictions on the Plaintiff, none of the Commonwealth, the Minister, Transfield or its subcontractors would have sought to impose such restrictions on Nauru or asserted any right to impose such restrictions may be put to one side.  The fact that a foreign state requests the Commonwealth to detain the Plaintiff in that foreign state does not and cannot authorise the Commonwealth to detain the Plaintiff in that foreign state. 

400. All of this makes clear that if, apart from Ch III considerations, s 198AHA would be a law with respect to aliens, it falls foul of the rule that the Commonwealth Parliament cannot give to the Executive a power to detain an alien for purposes outside the Lim exceptions (of which this is not one). 

401. And the same reasons make it clear that there is no basis (as a matter of fundamental principle, necessity or otherwise) to craft any new exception to the Lim rule just stated.  As a matter of fundamental principle, the detention function, by its nature and because of historical considerations, is essentially and exclusively judicial in character[326].  Section 198AHA vests part of that function in the Executive.  That is not permitted.  As a matter of necessity, the Plaintiff's removal from Australia by the Commonwealth was complete when she arrived on Nauru.  The Commonwealth had no need to and had no right to detain the Plaintiff in a foreign state.  No other basis has been identified that would justify, let alone authorise, the crafting of a new exception which would allow the detention of an alien by the Commonwealth, in a foreign state, after the Commonwealth has exercised its undoubted power to expel that alien from Australia or prevent entry by that alien into Australia.  The matter may be tested this way – what would be the content of any exception?  What would be the basis for any exception?  No answers have been provided to those questions.  

     [326]Lim (1992) 176 CLR 1 at 27.

402. And, in any event, there may be much to be said for the view[327] that the aliens power is not engaged at all. Section 198AHA imposes special disabilities on aliens which are unconnected with their entitlement to remain in Australia (they have been excluded and their removal is complete) and which are in no way connected with regulation of past or future entry into Australia, or with facilitating or requiring their removal or departure from Australia. However, it is not necessary to decide whether this is so because it is sufficient for present purposes that s 51(xix) is confined by Ch III.

     (b) Immigration power – s 51(xxvii) of the Constitution

     [327]Lim (1992) 176 CLR 1 at 57.

403. For the same reasons that s 198AHA is not a valid law under the aliens power, it is not supported by the immigration power in s 51(xxvii) of the Constitution. The removal of the Plaintiff to Nauru was complete on her arrival on Nauru. The Commonwealth had exercised its undoubted power to expel her from Australia or prevent her entry into Australia. That power was spent at the time of the Plaintiff's arrival on Nauru.

     (c)External affairs power – s 51(xxix) of the Constitution

404. Section 51(xxix) of the Constitution authorises the Commonwealth Parliament to legislate with respect to external affairs. One aspect of that power is the power to enact laws of domestic application that implement international agreements to which Australia is a party.

405. Section 51(xxix) can be relied upon to support legislation which implements an international agreement, regardless of the subject matter of the agreement, but subject to certain limits[328]. The relevant limits on the external affairs power are that it cannot be used indirectly to amend the Constitution and, importantly, like the other powers in s 51, it is subject to the limitations and prohibitions in the Constitution[329].

     [328]R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 640-641, 681-682, 687; [1936] HCA 52; The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 127, 170, 218-219, 258; [1983] HCA 21; Industrial Relations Act Case (1996) 187 CLR 416 at 478, 483-485.

     [329]R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 642.

406. What then is the scope of the obligation in the MOU?  That is a question of fact which the Court must decide[330].  The objectives and scope of the MOU have been addressed.  The stated objectives include regional processing and the establishment of RPCs.  As seen earlier, neither the MOU nor the Administrative Arrangements refer to detention. 

     [330]Queensland v The Commonwealth (1989) 167 CLR 232 at 239; [1989] HCA 36.

407. That raises the next question – can s 198AHA be described as implementing the MOU?  Section 198AHA applies if an arrangement has been entered into by the Commonwealth in relation to the regional processing functions of another country.  The MOU between the Commonwealth and Nauru is necessarily a matter which concerns Australia's external relations[331]. Section 198AHA is directed at implementing arrangements such as the MOU. Section 198AHA is therefore a law with respect to external relations. It deals with a subject directly within the subject matter of s 51(xxix).

     [331]Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 201-202, 220-221, 237, 257-258; [1982] HCA 27.

408. However, to the extent that s 198AHA authorises the Commonwealth to restrain the liberty of an alien in a regional processing country where removal of that alien from Australia is complete, that authorisation is not valid. As has been explained, the power in s 51(xxix) is subject to the limitations and prohibitions in the Constitution[332].  It is bounded by Ch III.  That includes the Lim limitation, which has already been addressed and which has been contravened. 

     [332]R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 642.

409. In particular, the external affairs power does not authorise the Commonwealth to make a law permitting the Executive to make an agreement with a foreign state that would permit or require the Commonwealth Executive to detain persons other than for purposes constituting some exception to Ch III requirements about judicial power.  The legislative power with respect to external affairs does not extend to authorising the Executive to detain persons contrary to Ch III.  That the detention may be associated with, even facilitate, some action by a foreign government (in this case determination of refugee status) does not deny the conclusion that the law purports to authorise the Executive to detain persons contrary to Ch III. 

410. Unwarrantable interference with an individual's liberty is not authorised and is to be prevented[333].  Here, the interference with an individual's liberty by the Commonwealth was no longer warranted once the person's removal to Nauru was complete.  To the extent that the detention by the Commonwealth of the Plaintiff on Nauru was no longer warranted, it may be, at least in Australian law, a tortious act[334]. The Commonwealth does not and cannot rely on the defence power in s 51(vi) of the Constitution, which, in times of war or conflict, may warrant the detention of a person[335].  Section 198AHA was not (and could not be) said to be a law supported as a law with respect to the naval and military defence of the Commonwealth and the several States[336]. 

     [333]cf Vasiljkovic v The Commonwealth (2006) 227 CLR 614 at 618 [6].

     [334]cf Barton v The Commonwealth (1974) 131 CLR 477 at 483; [1974] HCA 20.

     [335]Ferrando v Pearce (1918) 25 CLR 241 at 253, 261, 270, 274; [1918] HCA 47; Jerger v Pearce (1920) 28 CLR 588 at 592, 594; [1920] HCA 42; Lim (1992) 176 CLR 1 at 57.

     [336]s 51(vi) of the Constitution.

411. For those reasons, although the external affairs power in s 51(xxix) can be relied upon to support s 198AHA to implement the MOU, s 198AHA is invalid because it impermissibly restricts or infringes Ch III.

     (d)Relations with the Islands of the Pacific – s 51(xxx) of the Constitution

412. For the same reasons that s 198AHA is not a valid law under the external affairs power, it is not supported by the Pacific Islands power in s 51(xxx) of the Constitution. It is not in dispute that, in respect of the acts and conduct of the Commonwealth at issue in the Special Case, the Commonwealth's power under s 51(xxx) does not extend further than the external affairs power. As with the external affairs power, s 51(xxx) is bounded by Ch III of the Constitution. Section 198AHA is invalid because it impermissibly restricts or infringes Ch III.

     (5)Lawfulness of conduct under, and validity of, Nauruan laws – Question 3

413. We are concerned with the lawfulness under Australian law of the conduct of the Commonwealth and its officers in detaining the Plaintiff on Nauru.  That is a question about the validity of the Commonwealth legislation on which the Commonwealth relies as authorising that conduct.  We are not concerned with the lawfulness of that conduct under Nauruan law.  As already stated, the Executive cannot, by entering into an agreement with a foreign state, agree the Parliament of Australia into power.  Likewise, the Executive cannot obtain power from the Parliament of a foreign state. 

414. The Commonwealth accepted that no question of its authority to detain the Plaintiff on Nauru turned on whether the detention of the Plaintiff on Nauru was lawful under the law of Nauru.  That is unsurprising.  Australia is bound to respect the independence of another sovereign state, and the courts of one country will not, except in limited and presently irrelevant circumstances, sit in judgment on the acts of the government of another state done in the territory of that other state[337].  The question of the lawfulness of the detention by the Commonwealth of the Plaintiff does not require this Court to "sit in judgment" on the conduct of or the laws of Nauru.  The lawfulness of that conduct is judged according to Australian law and, for the reasons stated, it is not validly authorised under Australian law.

     [337]Underhill v Hernandez 168 US 250 at 252 (1897), approved in Potter v Broken Hill Proprietary Co Ltd (1906) 3 CLR 479 at 495, 506-507, 511; [1906] HCA 88; Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 at 40-41; [1988] HCA 25; Moti v The Queen (2011) 245 CLR 456 at 475 [51]; [2011] HCA 50.

     Future arrangements – Questions 6-12

415. The relevant facts, as far as they are able to be ascertained, were addressed in Part (6) of the Facts section of these reasons.

416. There is insufficient material before this Court to identify with precision what arrangements are currently in place and, no less importantly, what arrangements would be in place if the Plaintiff was returned to Nauru.  This Court does not answer hypothetical questions or provide advisory opinions[338].  It is therefore not appropriate for this Court to answer Questions 6-12 of the Special Case, which are directed at arrangements which might be in place if the Plaintiff were to be returned to Nauru. 

     [338]In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265; [1921] HCA 20; Mellifont v Attorney-General (Q) (1991) 173 CLR 289 at 303; [1991] HCA 53; Croome v Tasmania (1997) 191 CLR 119 at 124-126, 136; [1997] HCA 5; Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 262 [37]; [1998] HCA 49; Kuczborski v Queensland (2014) 254 CLR 51 at 87-88 [98]-[99]; [2014] HCA 46.

     Relief and costs – Questions 13 and 14

417. The question of the form and content of the relief should be remitted to a single judge of the Federal Court.  The Defendants should pay the costs of the Special Case and of the proceedings generally.

     Conclusion

418. For those reasons, I would answer the questions of law which the parties agreed in stating in the form of a Special Case for the opinion of the Full Court under r 27.08.1 of the High Court Rules 2004 (Cth) as follows:

     Question 1:               Yes.

     Question 2:               (a) No; (b) Yes; (c) Unnecessary to answer.

     Question 3:               Unnecessary to answer.

     Question 4:               (a) No; (b) Yes; (c) Unnecessary to answer.

     Question 5:Yes.  Section 198AHA is beyond power and therefore invalid.

     Questions 6-12:       Not appropriate to answer.

     Question 13:             Remit to a single judge of the Federal Court.

     Question 14:             The Defendants should pay the costs of the Special Case and of the proceedings generally.

     SPECIAL CASE QUESTIONS[339]

     [339]See [21] and [198] above.

     The parties agree in stating the following questions of law for the opinion of the Full Court:

     Standing

     (1)Does the plaintiff have standing to challenge whether the Commonwealth or the Minister was authorised, in the past, to engage in one or more of the following acts or conduct:

     (i)make the direction referred to at paragraph 6 [of the special case];

     (ii)      sign the Memorandum of Understanding;

     (iii)     sign the Administrative Arrangements;

     (iv)give approval for Transfield to enter into the 2013 Wilson Security Subcontract and the 2014 Wilson Security Subcontract;

     (v)contract for the construction and maintenance of, and fund, security infrastructure at the Nauru RPC, including a perimeter fence, as required by the Memorandum of Understanding;

     (vi)fund all costs of the Nauru RPC, as required by the Memorandum of Understanding;

     (vii)    enter into the Transfield Contract;

     (viii)exercise rights and discharge obligations under the Transfield Contract;

     (ix)establish and participate in the bilateral committees referred to at paragraphs 31‒34 [of the special case];

     (x)discharge the role of Programme Coordinator under the Administrative Arrangements;

     (xi)attending meetings with, and receive reports from, Transfield and Wilson Security;

     (xii)occupy an office on site at the Nauru RPC and carry out the functions referred to at paragraph 37 [of the special case];

     (xiii)take the plaintiff to Nauru pursuant to s 198AD(2) of the Migration Act on 22 January 2014;

     (xiv)for the purposes of effecting that taking, exercise powers contained in s 198AD(3) of the Migration Act;

     (xv)apply to the Secretary of the Department of Justice and Border Control of Nauru, without the consent of the plaintiff, for the grant of an RPC visa to the plaintiff;

     (xvi)pay to Nauru the fees payable for the grant of RPC visas to the plaintiff;

     in so far as those acts or that conduct facilitated, organised, caused, imposed, procured, or resulted in the detention of the plaintiff at RPC3?

     Authority for the Commonwealth's past conduct

     (2)      Assuming that:

     (A)the restrictions imposed on the plaintiff set out at paragraphs 66‒72 of the special case were lawful under the law of Nauru; and

     (B)the specification in the RPC visas referred to at paragraphs 53‒55 [of the special case] that the plaintiff must reside at the Nauru RPC, s 18C of the RPC Act and rule 3.1.3 of the Centre Rules were lawful and valid under the law of Nauru,

     to the extent that the answer to question (1) is "yes" in respect of any acts or conduct, was the Commonwealth or the Minister authorised, in the past, to engage in those acts or that conduct by:

     (a) s 61 of the Constitution?

     (b) s 198AHA of the Migration Act (assuming it is valid)?

     (c)s 32B of the Financial Framework (Supplementary Powers) Act 1997 (Cth), read with reg 16 and items 417.021, 417.027, 417.029 and 417.042 of sched 1AA to the Financial Framework (Supplementary Powers) Regulations 1997 (Cth) (together, the Financial Framework Provisions) (assuming each is valid)?

     (3)      If the answer to question (2)(a), (b) or (c) is "yes":

     (a)were the restrictions imposed on the plaintiff set out at paragraphs 66‒72 [of the special case] contrary to Art 5(1) of the Constitution of Nauru?

     (b)was the specification in the RPC visas referred to at paragraphs 53‒55 [of the special case] that the plaintiff must reside at the Nauru RPC, s 18C of the RPC Act and/or rule 3.1.3 of the Centre Rules invalid by reason of s 5(1) of the Constitution of Nauru?

     (4)To the extent that the answer to question (1) is "yes" in respect of any acts or conduct, was the Commonwealth or the Minister authorised, in the past, to engage in those acts or that conduct by:

     (a) s 61 of the Constitution?

     (b) s 198AHA of the Migration Act (assuming it is valid)?

     (c)the Financial Framework Provisions (assuming each is valid)?

     (5)If the answer to question (4)(b) or (c) is "yes", is the statutory provision referred to therein invalid because it is not supported by any head of Commonwealth legislative power or is contrary to Ch III of the Constitution?

     Authority for the Commonwealth's future conduct

     (6)      Assuming that, if the plaintiff were returned to Nauru:

     (A)the restrictions imposed on the plaintiff set out at paragraphs 66‒72 and 88–89 [of the special case] would be lawful under the law of Nauru; and

     (B)the specification in any RPC visa referred to at paragraph 87 [of the special case] that the plaintiff must reside at the Nauru RPC, s 18C of the RPC Act and rule 3.1.3 of the Centre Rules would be lawful and valid under the law of Nauru,

     would the Commonwealth or the Minister be authorised to engage in one or more of the following acts or conduct:

     (i)give effect to or rely upon the direction referred to at paragraph 6 [of the special case];

     (ii)      continue to perform the Memorandum of Understanding;

     (iii)     continue to perform the Administrative Arrangements;

     (iv)continue to perform any contract for the construction and maintenance of, and continue to fund, security infrastructure at the Nauru RPC, including a perimeter fence, as required by the Memorandum of Understanding;

     (v)continue to fund all costs of the Nauru RPC, as required by the Memorandum of Understanding;

     (vi)continue to exercise rights and discharge obligations under the Transfield Contract;

     (vii)continue to participate in the bilateral committees referred to at paragraphs 31‒34 [of the special case];

     (viii)continue to discharge the role of Programme Coordinator under the Administrative Arrangements;

     (ix) continue to attend meetings with, and receive reports from, Transfield and Wilson Security;

     (x)continue to occupy an office on site at the Nauru RPC and carry out the functions referred to at paragraph 37 [of the special case];

     (xi)apply, if required to do so, to the Secretary of the Department of Justice and Border Control of Nauru, without the consent of the plaintiff, for the grant of an RPC visa to the plaintiff; and

     (xii)pay, if required to do so, to Nauru the fees payable for the grant of RPC visas to the plaintiff,

     in so far as those acts or that conduct facilitated, organised, caused, imposed, procured, or resulted in the detention of the plaintiff at RPC3, by:

     (a) s 61 of the Constitution?

     (b) s 198AHA of the Migration Act (assuming it is valid)?

     (c)the Financial Framework Provisions (assuming each is valid)?

     (7)If the answer to question (6)(a), (b) or (c) is "yes", if the plaintiff were returned to Nauru:

     (a)would the restrictions imposed on the plaintiff set out at paragraphs 66‒72 and 88‒89 [of the special case] be contrary to Art 5(1) of the Constitution of Nauru?

     (b)would the specification in any RPC visa referred to at paragraph 87 [of the special case] that the plaintiff must reside at the Nauru RPC, s 18C of the RPC Act and/or rule 3.1.3 of the Centre Rules be invalid by reason of Art 5(1) of the Constitution of Nauru?

     (8)If the plaintiff were returned to Nauru, would the Commonwealth or the Minister be authorised to engage in one or more of the acts or conduct specified in question (6) by:

     (a) s 61 of the Constitution?

     (b) s 198AHA of the Migration Act (assuming it is valid)?

     (c)the Financial Framework Provisions (assuming each is valid)?

     (9)If the answer to question (8)(b) or (c) is "yes", is the statutory provision referred to therein invalid because it is not supported by any head of Commonwealth legislative power or is contrary to Ch III of the Constitution?

     Section 198AD(2) of the Migration Act

     (10)     Assuming that, if the plaintiff were returned to Nauru:

     (A)the restrictions imposed on the plaintiff set out at paragraphs 66‒72 and 88‒89 [of the special case] would be lawful under the law of Nauru; and

     (B)the specification in any RPC visa referred to at paragraph 87 [of the special case] that the plaintiff must reside at the Nauru RPC, s 18C of the RPC Act and rule 3.1.3 of the Centre Rules would be lawful and valid under the law of Nauru,

     does s 198AD(2) of the Migration Act authorise and require that the plaintiff be taken as soon as reasonably practicable to Nauru?

     (11)If the answer to question (10) is "yes", if the plaintiff were returned to Nauru:

     (a)would the restrictions imposed on the plaintiff set out at paragraphs 66–72 and 88–89 [of the special case] be contrary to Art 5(1) of the Constitution of Nauru?

     (b)would the specification in any RPC visa referred to at paragraph 87 [of the special case] that the plaintiff must reside at the Nauru RPC, s 18C of the RPC Act and/or rule 3.1.3 of the Centre Rules be invalid by reason of Art 5(1) of the Constitution of Nauru?

     (12) Does s 198AD(2) of the Migration Act authorise and require that the plaintiff be taken as soon as reasonably practicable to Nauru?

     Relief

     (13)     What, if any, relief should be granted to the plaintiff?

     Costs

     (14)Who should pay the costs of the special case and of the proceedings generally?