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

Facts: Asylum seeker M68 arrived in Australia by boat from Bangladesh and was taken to Nauru by Cth officials and detained. M68 challenged the constitutionality of the Commonwealth's (Cth) executive’s participation in detention in another country (Nauru). Cth argued that the plaintiff was detained under Nauruan, not Australian law. The plaintiff argued they were detained by the Australian government based on Australia’s degree of control over the circumstances of the plaintiff’s detention through the regulatory and contractual arrangements between the Australian government, private contractors, and Nauruan government. Following the commencement of litigation, Cth parliament passed legislation inserting s 198AHA into the Migration Act 1958, giving retrospective statutory authority to the Cth’s involvement in the detention of the plaintiff in Nauru.

Issue: Do the limits on the Commonwealth’s capacity to detain identified in Lim apply to the Cth's participation in executive detention in Nauru?

Held (majority - French CJ, Kiefel J, Nettle J & Keane J): No; Lim only applies where plaintiff is in the custody of the Commonwealth executive and in this case, plaintiff was not considered to be in Commonwealth custody on Nauru. In other words, the Cth only participated in the plaintiff’s detention, rather than detaining her directly, because the detention was effected by the Government of Nauru, and because the Cth could not compel or authorise Nauru to make or enforce the laws necessary for that detention, the plaintiff was not detained by the Cth itself.

Held (Bell and Gageler JJ): Yes; the relevant constitutional principles apply to the Cth Executive whenever it has “de facto control over the liberty of the person who has been detained, in relation to which actual physical custody is sufficient but not essential”.

Held (Gordon J): Yes; the Commonwealth was detaining the plaintiff on Nauru and Lim was not limited to detention “in custody”.

Issue: Were the constitutional limits on Commonwealth’s capacity to detain complied with?

Held (majority - French CJ, Kiefel J, Nettle J & Keane J): No need to answer; the constitutional limits identified in Lim did not apply and the Cth’s legal authority to participate in the detention on Nauru was supplied by s 198AHA.

Held (Bell & Gageler JJ): Yes; s 198AHA was valid. The detention is for the purpose of regional immigration processing, and meets the requirements of Lim.

Held (Gordon J, in dissent as to the result): No; s 198AHA was invalid. The Cth’s detention of the plaintiff in Nauru did not fall within recognised exceptions to the rule in Lim, nor form the basis of a new exception (i.e. the plaintiff’s detention in Nauru was not for processing for an Australian visa or removal from Australia).

Outcome: HCA (6:1) upheld the Commonwealth laws authorising Australia’s involvement in the establishment and operation of the Nauru Regional Processing Centre.

Obiter (Gageler J’s reasoning): s 61 describes, but does not define executive power; it categorises executive power into two categories:

1. Statutory powers/capacities

2. Prerogative powers/capacities

3. Capacity which is neither statutory nor prerogative

Gageler J considered that the Cth executive had an “inherent constitutional incapacity” to detain a person arbitrarily, because Cth officers were subject to habeas corpus under ss 75(iii) and 75(v) Constitution. Habeas corpus allows a court to determine whether a person is being detained and whether the detention is legal or illegal. As the plaintiff could not be detained under non-statutory executive power of the Cth, she could only be detained pursuant to a valid Cth law.