The Hon Michael Kirby’s High Court career (from 1996 to 2009) has been bookended by inquiries undertaken for the United Nations High Commissioner for Human Rights into human rights initiatives and abuses of foreign states: milestones that underscore his commitment to and involvement in United Nations bodies particularly related to AIDS and human rights. In 1996 he reported for the final time on recommendations for a human rights based governance model for Cambodia, then emerging from years of conflict and human rights abuse. His focus then was to ensure that a new government created a political and legal regime that protected internationally recognised human rights. This week a report authored by former Justice Kirby was released that detailed the current and historic widespread human rights abuses committed by the government of North Korea against its own people. Kirby concluded that the abuses and crimes against humanity were perpetrated by the government, institutions and policies of the state. Continue reading
By Megan Driscoll and Houston Ash
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  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  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