Megan Driscoll and Houston Ash, ‘Australia’s Indefinite Stance on Indefinite Detention: Plaintiff M76/2013 v Minister for Immigration and Citizenship‘ (11 February 2014).

The High Court has decided a special case relating to the ongoing detention of a Sri Lankan refugee. As an ‘unauthorised maritime arrival’, Plaintiff M76/2013 is unable to make a valid application for a visa, and the Minister has declined to exercise his power to make an exception to that rule. Although the Minister does not intend to remove her to Sri Lanka, she has been detained purportedly under ss 189(1) and 196(1) of the Migration Act 1958 (Cth) for the purpose of a pending removal.

The Full Court answered the questions for its determination as follows:

1) Do ss 189, 196 and 198 of the Act authorise the detention of the Plaintiff?
The detention is authorised by ss 189 and 196.

2) If the answer to question 1 is ‘yes’, are these provisions beyond the legislative power of the Commonwealth insofar as they apply to the Plaintiff?
Save that the detention is validly authorised, it is not necessary to answer the question.

3) Does the fact that the Plaintiff’s case was not referred to the Minister for him to consider whether to exercise his power under s 46A(2) reveal an error of law?
Yes

4) What relief, if any, should issue?
A declaration that the exercise of the Minister’s power was affected by an error of law, namely that the officer, in deciding whether to refer the Plaintiff M76/2013’s application to the Minister, acted upon PIC 4002 as a consideration relevant to the decision.

5) Who should pay the costs of and incidental to this Special Case?
The defendant.

Notably, the Court also declined to reconsider its decision in Al-Kateb v Godwin [2004] HCA 37 on the basis that it was not necessary to answer the questions before the Court.