Short Summary: Plaintiff M68/2015 v Minister for Immigration and Border Protection

Today the High Court found 6:1 that the Commonwealth has the power to fund and control the Nauru offshore detention centre.

Importantly, the High Court found that our Government was indisputably participating in the detention of people in Nauru.

As Bell J noted [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.

However, the Court found that the detention was authorised by the retrospective legislation that was rushed through parliament in June last year. The introduction of retrospective legislation, as well as the transition to an open centre, highlights the Government’s repeated practice of attempting to circumvent the courts.

As Gageler J noted, [188] the plaintiff had a strong case before the introduction of the retrospective legislation:

It will be apparent from what I have written, and may be relevant to costs, that I consider the plaintiff’s central claim to have been well-founded until 30 June 2015, when s 198AHA was inserted with retrospective effect.

While the new legislation does give the Commonwealth power to fund and control offshore detention, the Court found some important limitations on that power, indicating that detention must reasonably necessary and for a legitimate purpose, namely to process people’s refugee claim on Nauru.

As French CJ, Kiefel J and Nettle J held [46]:

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.

As such, the ruling isn’t a blanket authority for the Australian Government. The court recognised limits on the government’s power around the purpose of detention and how long it goes for. The participation in the detention must be reasonably necessary for the implementation of regional processing to determine refugee status. The period of detention must not exceed what is reasonably necessary for the regional processing functions.

In a dissenting Judgement, Gordon J ruled that the retrospective law was invalid and the Australian Government’s actions were unlawful.

While the case was unsuccessful in challenging the Commonwealth’s funding and control of the Nauru detention centre, it did find that Australia is indisputably involved and responsible for the centre.

Nevertheless, the Immigration Minister still has complete discretion to allow these people to remain in Australia and the have their claims assessed in Australia.

As Daniel Webb, Human Rights Law Centre’s Director of Legal Advocacy, said:

The legality is one thing, the morality is another. Ripping kids out of primary schools and sending them to be indefinitely warehoused on a tiny remote island is wrong. We now look to the Prime Minister to step in and do the right thing and let them stay so these families can start to rebuild their lives.

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