High Court rejects challenge to offshore detention

Plaintiff M68/2015 [2016] HCA 1 (3 February 2016)

In a highly anticipated decision the High Court has rejected a constitutional challenge to the Federal Government’s regional processing framework. The majority of the Court held that s198AHA of the Migration Act 1958 (Cth) (Act) authorised the Commonwealth Government’s participation in the plaintiff’s detention. This decision was made after retrospective legislation was introduced after the case was filed with retrospective operation.


The regional processing framework was established in August 2013 when the Commonwealth and Nauru entered into a memorandum of understanding (MOU) for people who travelled irregularly by sea to Australia to be transferred to Nauru. Under this MOU and administrative arrangements entered into for the establishment of the regional processing centre (Centre), Nauru undertook to allow transferees to remain on its territory whilst their claims to refugee status were processed.

The Commonwealth agreed to bear the costs associated with the MOU. From March 2014 Transfield Services Australia Pty Ltd (Transfield) provided garrison and welfare services at the Centre (through a subcontract with Wilson Security) pursuant to a contract with the Commonwealth (Transfield Contract).

The Human Rights Law Centre represented the plaintiff in this case, a Bangladeshi asylum seeker. As an “unauthorised maritime arrival”, the plaintiff was detained by officers of the Commonwealth and taken to Nauru as a “regional processing country” under s 198AD(2) of the Act. In August 2014 the plaintiff was brought to Australia, with her husband, to give birth to their daughter.

The case was brought in the original jurisdiction of the High Court and sought, amongst other remedies, a declaration that the Commonwealth's conduct in:

  • imposing, enforcing or procuring constraints upon the plaintiff's liberty (including her detention);
  • entering into contracts in connection with those constraints, or
  • having effective control over those constraints was unlawful because it was not authorised by any valid law of the Commonwealth.

During the course of the proceedings the Commonwealth parliament passed the Migration Amendment (Regional Processing Arrangements) Act 2015 (Cth) which inserted s 198AHA into the Act. Section 198AHA retrospectively authorised the Commonwealth to take any action, and make payments, in relation to an arrangement entered into with a person or body in relation to the regional processing functions of a country.

A week before the case was due to be heard the Government of Nauru published a notice in its Gazette to the effect that it would expand existing “open centre arrangements” and would allow asylum seekers freedom of movement 24 hours per day, 7 days per week.


The Court delivered its decision in five separate judgments.  Each of those judgments held the plaintiff had standing to challenge the Commonwealth’s conduct, despite the recent legislative and “open centre” changes.

Four of the five judgments (Gordon J dissenting) held that the plaintiff was not entitled to the declaration sought. The majority found that the conduct of the Commonwealth in signing the MOU with Nauru was authorised by s 61 of the Constitution, that the conduct of the Commonwealth in giving effect to the MOU (including by entry into the administrative arrangements and the Transfield Contract) was authorised by s 198AHA of the Act and that s 198AHA was a valid law of the Commonwealth.

In a joint judgment Chief Justice French, Justice Kiefel and Justice Nettle held that the plaintiff was detained by the Government of Nauru, not Australia, and while the Commonwealth indisputably participated in her detention the conduct was authorised by s 198AHA of the Act. Their Honours further held that s 198AHA was a valid law supported by the aliens power in s 51(xix) of the Constitution.

Justice Bell similarly found that the Commonwealth’s conduct was authorised by s 198AHA. However, Her Honour accepted the plaintiff’s submission that her detention on Nauru was caused and effectively controlled by the Commonwealth.

Justice Gaegler was the only justice (in the majority) to rule on whether the Commonwealth’s conduct was lawful prior to the introduction of s 198AHA. His Honour found that the Commonwealth’s conduct was beyond executive power prior to the passage of the amending act, but that s 198AHA retrospectively conferred the necessary authority. His Honour also found that Wilson Security acted as de facto agents of the Executive Government of the Commonwealth in physically detaining the plaintiff in custody.

Justice Keane held that the plaintiff’s detention was caused by the Government of Nauru as an “independent sovereign nation” and that s 198AHA provided the requisite authority.

In dissent, Justice Gordon held that the plaintiff was detained by the Commonwealth on Nauru and that s 198AHA was invalid to the extent that it purported to authorise the Commonwealth to effect that detention. Her Honour held:

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". 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.

Her Honour held that the Commonwealth’s submission was in effect “that it can do outside Australia what it cannot do inside Australia” and that the “Executive Government of Australia cannot, by entering into an agreement with a foreign state, agree the Parliament of Australia into power”.

Each of the judgments declined to determine if the Nauruan laws by which the plaintiff was detained on Nauru were invalid - they had been challenged on the basis that Article 5(1) of the Nauruan Constitution requires that a person not be deprived of their liberty except as authorised by law.


While the High Court rejected this challenge, it did not give the Commonwealth unconstrained authority to engage in offshore detention. The joint judgment stated that:

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 [regional processing], a question might arise whether the purported authority was beyond the Commonwealth's legislative power with respect to aliens.

Similar statements were made by Justice Bell and Justice Gaegler, who pointed to the duration of an asylum seeker’s detention as a possible limit on the lawfulness and reasonableness of the Commonwealth’s conduct. This raises interesting questions as to when the Commonwealth’s conduct may go beyond what is reasonably necessary for the purposes of regional processing.

The full text of the decision can be found here.

Claire Toner is a Solicitor at King & Wood Mallesons.

Editor’s note: This case was the platform from which the Human Rights Law Centre, working closely with our pro bono partners, kept more than 267 asylum seekers in Australia, and was the launching pad for the highly effective #LetThemStay campaign. The success of the case and #LetThemStay has meant that none of the 267 have been deported and more than 200 are now living in the community in Australia. More information about the campaign can be found here: http://hrlc.org.au/letthemstay/