Australia’s Indefinite Stance on Indefinite Detention: Plaintiff M76/2013 v Minister for Immigration and Citizenship

By Megan Driscoll and Houston Ash

Plaintiff M76/2013 Case Page

Dozens of people who have been found to be genuine refugees remain in immigration detention in Australia because they are the subjects of secret adverse security assessments made by the Australian Security and Intelligence Organisation (ASIO). Plaintiff M76/2013 v Minister for Immigration and Citizenship [2013] HCA 53 was a case brought by one of these refugees, challenging her continued detention under the Migration Act 1958 (Cth). It was of particular interest to High Court watchers because the plaintiff sought to challenge the correctness of the controversial 2004 High Court decision of Al-Kateb v Godwin [2004] HCA 37. In that case, a majority of the High Court held that the Migration Act could authorise the indefinite detention of ‘unlawful non-citizens’. In the event, a majority of the High Court in Plaintiff M76 chose not to consider the correctness of Al-Kateb. However, Plainitff M76 nonetheless sheds some light on the prospect of Al-Kateb being overturned in the future. It also ties together two recent decisions of the High Court relating to Australia’s asylum seeker assessment procedures.

Plaintiff M76’s entry into Australia
The plaintiff in this case is a Sri Lankan Tamil woman, known to us as Plaintiff M76, who entered Australia by boat at Christmas Island in May 2010 seeking asylum. Under the Migration Act, she was classified as an ‘unlawful non-citizen’ and, having arrived in Australia at an ‘excised offshore place’, she was also an ‘offshore entry person’ (now ‘unauthorised maritime arrival’). Section 189(3) of the Migration Act required officers of the Department of Immigration to immediately detain her, and under s 196(1) she must remain in immigration detention until she is removed from Australia, deported, granted a visa, or she is dealt with for the purpose of removing her to a regional processing country. Section 198(2) of the Migration Act requires officers to remove Plaintiff M76 from Australia as soon as reasonably practicable provided that she either has not made a valid application for a substantive visa or her visa application has been finally determined. Continue reading

News: Dyson Heydon to head unions Royal Commission

In a joint press release, the Prime Minister, Employment Minister and Attorney-General today made their expected announcement of a new royal commission into trade union governance and corruption. The announcement revealed the new commissioner:

The Government will also recommend that The Honourable John Dyson Heydon AC QC be appointed as Commissioner to lead this inquiry. A former High Court Judge, His Honour has a distinguished legal career and I am pleased to confirm his willingness to accept this appointment.

Dyson Heydon is the most recent judge to leave the High Court, reaching the constitutionally mandated retirement age of 70 on 1 March last year.

In some respects, the role will be a familiar one for Mr Heydon. Continue reading