Plaintiff M68/2015 v. Minister for Immigration and Border Protection & Ors [2016] HCA 1 (2016)

Plaintiff M68-2015 v Minister for Immigration and Border Protection. 2016.

This case note provides an overview of the key facts and findings of the High Court in Plaintiff M68/2015 v. Minister for Immigration and Border Protection & Ors [2016] HCA 1, and sets out some of the key developments following the case. The plaintiff, an asylum seeker from Bangladesh, had been detained in Nauru at one of Australia’s two regional processing centres before being brought to Australia for medical treatment in 2014. She brought this case against the Australian Minister for Immigration and Border Protection, the Commonwealth of Australia and Transfield Services (Australia) Pty Ltd in an effort to prevent her return to Nauru. The main question in the case was whether the Australian government had the power, either in the form of a statutory or non-statutory executive power, to contract for and control the detention of asylum seekers in the offshore detention centre in Nauru. The majority of the court (French CJ, Kiefel, Nettle, Bell, Gageler and Keane JJ) held – in four separate judgments – that the government did have the necessary legal authority to be involved in the detention of asylum seekers in Nauru, although they were divided about whether the Australian government was actually in control of this detention and the basis on which it was lawful. Gordon J was in dissent, finding that the government had significant control over the detention of the plaintiff and had acted beyond its power in doing so. 

This case was one of a series of challenges launched on behalf of 267 people, many of whom had been brought back to Australia from offshore detention centres for urgent medical treatment. This group also included 37 babies born in Australia. Following the Court’s judgment, the #LetThemStay public campaign was launched in an attempt to keep the group in Australia. As at May 2016, many do remain in Australia, however their continued presence is ‘temporary’ and they may sent back offshore at any time at the Minister’s discretion.