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Plaintiff M68/2015 v Minister for Immigration and Border Protection

Plaintiff M68/2015 v Minister for Immigration and Border Protection

Case [2016] HCA 1 3 February 2016

Statutory Construction

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HIGH COURT OF AUSTRALIA
FRENCH CJ,
KIEFEL, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ
PLAINTIFF M68/2015 PLAINTIFF
AND
MINISTER FOR IMMIGRATION AND BORDER
PROTECTION & ORS DEFENDANTS
Plaintiff M68/2015 v Minister for Immigration and Border Protection
[2016] HCA 1
3 February 2016
M68/2015
ORDER
The questions stated by the parties in the amended special case dated 7 October 2015, as paraphrased, be answered as follows:
Question (1)
Does the plaintiff have standing to challenge whether the conduct of the Commonwealth or the Minister in securing, funding and participating in the plaintiff's detention at RPC 3 on Nauru was authorised by a valid law of the Commonwealth or was part of the executive power of the Commonwealth?
Answer
Yes.
Question (2a)
Was the conduct of the Commonwealth in signing the Memorandum of Understanding dated 3 August 2013 authorised by s 61 of the Constitution?
Answer
Yes.
Question (2b)
Was the conduct of the Commonwealth in giving effect to that arrangement authorised by a valid law of the Commonwealth?
Answer
Yes, it was authorised by s 198AHA of the Migration Act 1958 (Cth), which is a valid law of the Commonwealth.
Question (3)
Were the laws by which the plaintiff was detained on Nauru contrary to the Constitution of Nauru?
Answer
The question does not arise.
Questions (4) and (5)
Was the conduct of the Commonwealth in securing, funding and participating in the plaintiff's detention at RPC 3 on Nauru authorised by a valid law of the Commonwealth?
Answer
Yes, see the answer to questions (2a) and (2b).
Question (6)
If the plaintiff were returned to Nauru, would the Commonwealth or the Minister be authorised to continue to perform the Memorandum of Understanding dated 3 August 2013 and to secure, fund and participate in the plaintiff's detention on Nauru?
Answer
Unnecessary to answer.
Question (7)
If the plaintiff were returned to Nauru would her detention there be contrary to Art 5(1) of the Constitution of Nauru?
Answer
Unnecessary to answer.
Questions (8) and (9)
If the plaintiff were returned to Nauru, would the Commonwealth or the Minister be authorised to secure, fund and participate in the plaintiff's detention by a valid law of the Commonwealth?
Answer
Unnecessary to answer.
Questions (10) and (12)
If the plaintiff were to be returned to Nauru, does s 198AD(2) of the Migration Act 1958 (Cth) require that she be taken there as soon as reasonably practicable?
Answer
Unnecessary to answer.
Question (11)
If yes to question (10), if the plaintiff were returned to Nauru would her detention be contrary to the Constitution of Nauru?
Answer
Unnecessary to answer.
Question (13)
What, if any, relief should be granted to the plaintiff?
Answer
The plaintiff is not entitled to the declaration sought.
Question (14)
Who should pay the costs of the special case and of the proceedings generally?
Answer
The plaintiff should pay the defendants' costs.
Representation
R Merkel QC and C L Lenehan with R Mansted, D P Hume and E Bathurst for the plaintiff (instructed by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Plaintiff M68/2015 v Minister for Immigration and Border Pro...

Details

AGLC: Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1
Case: [2016] HCA 1
Decision Date: 3 February 2016

CaseChat Overview and Summary

The plaintiff, an unauthorised maritime arrival, challenged the lawfulness of the Commonwealth's conduct in securing, funding, and participating in their detention at a regional processing centre on Nauru. The dispute concerned the executive and legislative authority of the Commonwealth to engage in such activities, particularly in light of arrangements entered into with Nauru. The case was heard as a special case stated for the opinion of the Full Court of the High Court of Australia.

The central legal issues before the Court were whether the plaintiff had standing to challenge the Commonwealth's past conduct, and whether that conduct, including the signing of a Memorandum of Understanding with Nauru and giving effect to regional processing arrangements, was authorised by section 61 of the Constitution or by section 198AHA of the *Migration Act 1958* (Cth). The Court was also asked to consider the validity of section 198AHA of the *Migration Act* itself, and whether it was a law with respect to aliens. Further questions related to the lawfulness of the plaintiff's detention under Nauruan law and the potential for future conduct to be authorised.

The High Court determined that the plaintiff did have standing to challenge the Commonwealth's past conduct. It held that the conduct of the Commonwealth in signing the Memorandum of Understanding with Nauru was authorised by section 61 of the Constitution. However, the Court found that section 198AHA of the *Migration Act*, which was relied upon to authorise the Commonwealth's actions in giving effect to the regional processing arrangement, was invalid as it was not supported by any head of Commonwealth legislative power. Consequently, the Court concluded that the Commonwealth's past conduct in securing, funding, and participating in the plaintiff's detention was not authorised by a valid law of the Commonwealth.

The Court answered the stated questions accordingly, finding that the plaintiff had standing and that the conduct was authorised by section 61 of the Constitution but not by section 198AHA of the *Migration Act*, which was held to be invalid. The question of what relief, if any, should be granted to the plaintiff was remitted to a single judge of the Federal Court. The High Court ordered that the defendants pay the costs of the special case and the proceedings generally.

Orders

Orders of the court

The questions stated by the parties in the amended special case dated 7 October 2015, as paraphrased, be answered as follows:

Question (1)

Does the plaintiff have standing to challenge whether the conduct of the Commonwealth or the Minister in securing, funding and participating in the plaintiff's detention at RPC 3 on Nauru was authorised by a valid law of the Commonwealth or was part of the executive power of the Commonwealth?

Answer

Yes.

Question (2a)

Was the conduct of the Commonwealth in signing the Memorandum of Understanding dated 3 August 2013 authorised by s 61 of the Constitution?

Answer

Yes.

Question (2b)

Was the conduct of the Commonwealth in giving effect to that arrangement authorised by a valid law of the Commonwealth?

Answer

Yes, it was authorised by s 198AHA of the Migration Act 1958 (Cth), which is a valid law of the Commonwealth.

Question (3)

Were the laws by which the plaintiff was detained on Nauru contrary to the Constitution of Nauru?

Answer

The question does not arise.

Questions (4) and (5)

Was the conduct of the Commonwealth in securing, funding and participating in the plaintiff's detention at RPC 3 on Nauru authorised by a valid law of the Commonwealth?

Answer

Yes, see the answer to questions (2a) and (2b).

Question (6)

If the plaintiff were returned to Nauru, would the Commonwealth or the Minister be authorised to continue to perform the Memorandum of Understanding dated 3 August 2013 and to secure, fund and participate in the plaintiff's detention on Nauru?

Answer

Unnecessary to answer.

Question (7)

If the plaintiff were returned to Nauru would her detention there be contrary to Art 5(1) of the Constitution of Nauru?

Answer

Unnecessary to answer.

Questions (8) and (9)

If the plaintiff were returned to Nauru, would the Commonwealth or the Minister be authorised to secure, fund and participate in the plaintiff's detention by a valid law of the Commonwealth?

Answer

Unnecessary to answer.

Questions (10) and (12)

If the plaintiff were to be returned to Nauru, does s 198AD(2) of the Migration Act 1958 (Cth) require that she be taken there as soon as reasonably practicable?

Answer

Unnecessary to answer.

Question (11)

If yes to question (10), if the plaintiff were returned to Nauru would her detention be contrary to the Constitution of Nauru?

Answer

Unnecessary to answer.

Question (13)

What, if any, relief should be granted to the plaintiff?

Answer

The plaintiff is not entitled to the declaration sought.

Question (14)

Who should pay the costs of the special case and of the proceedings generally?

Answer

The plaintiff should pay the defendants' costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH CJ, KIEFEL AND NETTLE JJ BELL J GAGELER J

The question of the form and content of the relief should be remitted to a single judge of the Federal Court. The Defendants should pay the costs of the Special Case and of the proceedings generally.Conclusion For those reasons, I would answer the questions of law which the parties agreed in stating in the form of a Special Case for the opinion of the Full Court under r 27.08.1 of the High Court Rules 2004 (Cth) as follows:Question 1: Yes.Question 2: (a) No; (b) Yes; (c) Unnecessary to answer.Question 3: Unnecessary to answer.Question 4: (a) No; (b) Yes; (c) Unnecessary to answer.Question 5:Yes. Section 198AHA is beyond power and therefore invalid.Questions 6-12: Not appropriate to answer.Question 13: Remit to a single judge of the Federal Court.Question 14: The Defendants should pay the costs of the Special Case and of the proceedings generally.SPECIAL CASE QUESTIONS[339][339]See [21] and [198] above.The parties agree in stating the following questions of law for the opinion of the Full Court:Standing(1)Does the plaintiff have standing to challenge whether the Commonwealth or the Minister was authorised, in the past, to engage in one or more of the following acts or conduct:(i)make the direction referred to at paragraph 6 [of the special case];(ii) sign the Memorandum of Understanding;(iii) sign the Administrative Arrangements;(iv)give approval for Transfield to enter into the 2013 Wilson Security Subcontract and the 2014 Wilson Security Subcontract;(v)contract for the construction and maintenance of, and fund, security infrastructure at the Nauru RPC, including a perimeter fence, as required by the Memorandum of Understanding;(vi)fund all costs of the Nauru RPC, as required by the Memorandum of Understanding;(vii) enter into the Transfield Contract;(viii)exercise rights and discharge obligations under the Transfield Contract;(ix)establish and participate in the bilateral committees referred to at paragraphs 31‒34 [of the special case];(x)discharge the role of Programme Coordinator under the Administrative Arrangements;(xi)attending meetings with, and receive reports from, Transfield and Wilson Security;(xii)occupy an office on site at the Nauru RPC and carry out the functions referred to at paragraph 37 [of the special case];(xiii)take the plaintiff to Nauru pursuant to s 198AD(2) of the Migration Act on 22 January 2014;(xiv)for the purposes of effecting that taking, exercise powers contained in s 198AD(3) of the Migration Act;(xv)apply to the Secretary of the Department of Justice and Border Control of Nauru, without the consent of the plaintiff, for the grant of an RPC visa to the plaintiff;(xvi)pay to Nauru the fees payable for the grant of RPC visas to the plaintiff;in so far as those acts or that conduct facilitated, organised, caused, imposed, procured, or resulted in the detention of the plaintiff at RPC3?Authority for the Commonwealth's past conduct(2) Assuming that:(A)the restrictions imposed on the plaintiff set out at paragraphs 66‒72 of the special case were lawful under the law of Nauru; and(B)the specification in the RPC visas referred to at paragraphs 53‒55 [of the special case] that the plaintiff must reside at the Nauru RPC, s 18C of the RPC Act and rule 3.1.3 of the Centre Rules were lawful and valid under the law of Nauru,to the extent that the answer to question (1) is "yes" in respect of any acts or conduct, was the Commonwealth or the Minister authorised, in the past, to engage in those acts or that conduct by:(a) s 61 of the Constitution?(b) s 198AHA of the Migration Act (assuming it is valid)?(c)s 32B of the Financial Framework (Supplementary Powers) Act 1997 (Cth), read with reg 16 and items 417.021, 417.027, 417.029 and 417.042 of sched 1AA to the Financial Framework (Supplementary Powers) Regulations 1997 (Cth) (together, the Financial Framework Provisions) (assuming each is valid)?(3) If the answer to question (2)(a), (b) or (c) is "yes":(a)were the restrictions imposed on the plaintiff set out at paragraphs 66‒72 [of the special case] contrary to Art 5(1) of the Constitution of Nauru?(b)was the specification in the RPC visas referred to at paragraphs 53‒55 [of the special case] that the plaintiff must reside at the Nauru RPC, s 18C of the RPC Act and/or rule 3.1.3 of the Centre Rules invalid by reason of s 5(1) of the Constitution of Nauru?(4)To the extent that the answer to question (1) is "yes" in respect of any acts or conduct, was the Commonwealth or the Minister authorised, in the past, to engage in those acts or that conduct by:(a) s 61 of the Constitution?(b) s 198AHA of the Migration Act (assuming it is valid)?(c)the Financial Framework Provisions (assuming each is valid)?(5)If the answer to question (4)(b) or (c) is "yes", is the statutory provision referred to therein invalid because it is not supported by any head of Commonwealth legislative power or is contrary to Ch III of the Constitution?Authority for the Commonwealth's future conduct(6) Assuming that, if the plaintiff were returned to Nauru:(A)the restrictions imposed on the plaintiff set out at paragraphs 66‒72 and 88–89 [of the special case] would be lawful under the law of Nauru; and(B)the specification in any RPC visa referred to at paragraph 87 [of the special case] that the plaintiff must reside at the Nauru RPC, s 18C of the RPC Act and rule 3.1.3 of the Centre Rules would be lawful and valid under the law of Nauru,would the Commonwealth or the Minister be authorised to engage in one or more of the following acts or conduct:(i)give effect to or rely upon the direction referred to at paragraph 6 [of the special case];(ii) continue to perform the Memorandum of Understanding;(iii) continue to perform the Administrative Arrangements;(iv)continue to perform any contract for the construction and maintenance of, and continue to fund, security infrastructure at the Nauru RPC, including a perimeter fence, as required by the Memorandum of Understanding;(v)continue to fund all costs of the Nauru RPC, as required by the Memorandum of Understanding;(vi)continue to exercise rights and discharge obligations under the Transfield Contract;(vii)continue to participate in the bilateral committees referred to at paragraphs 31‒34 [of the special case];(viii)continue to discharge the role of Programme Coordinator under the Administrative Arrangements;(ix) continue to attend meetings with, and receive reports from, Transfield and Wilson Security;(x)continue to occupy an office on site at the Nauru RPC and carry out the functions referred to at paragraph 37 [of the special case];(xi)apply, if required to do so, to the Secretary of the Department of Justice and Border Control of Nauru, without the consent of the plaintiff, for the grant of an RPC visa to the plaintiff; and(xii)pay, if required to do so, to Nauru the fees payable for the grant of RPC visas to the plaintiff,in so far as those acts or that conduct facilitated, organised, caused, imposed, procured, or resulted in the detention of the plaintiff at RPC3, by:(a) s 61 of the Constitution?(b) s 198AHA of the Migration Act (assuming it is valid)?(c)the Financial Framework Provisions (assuming each is valid)?(7)If the answer to question (6)(a), (b) or (c) is "yes", if the plaintiff were returned to Nauru:(a)would the restrictions imposed on the plaintiff set out at paragraphs 66‒72 and 88‒89 [of the special case] be contrary to Art 5(1) of the Constitution of Nauru?(b)would the specification in any RPC visa referred to at paragraph 87 [of the special case] that the plaintiff must reside at the Nauru RPC, s 18C of the RPC Act and/or rule 3.1.3 of the Centre Rules be invalid by reason of Art 5(1) of the Constitution of Nauru?(8)If the plaintiff were returned to Nauru, would the Commonwealth or the Minister be authorised to engage in one or more of the acts or conduct specified in question (6) by:(a) s 61 of the Constitution?(b) s 198AHA of the Migration Act (assuming it is valid)?(c)the Financial Framework Provisions (assuming each is valid)?(9)If the answer to question (8)(b) or (c) is "yes", is the statutory provision referred to therein invalid because it is not supported by any head of Commonwealth legislative power or is contrary to Ch III of the Constitution?Section 198AD(2) of the Migration Act(10) Assuming that, if the plaintiff were returned to Nauru:(A)the restrictions imposed on the plaintiff set out at paragraphs 66‒72 and 88‒89 [of the special case] would be lawful under the law of Nauru; and(B)the specification in any RPC visa referred to at paragraph 87 [of the special case] that the plaintiff must reside at the Nauru RPC, s 18C of the RPC Act and rule 3.1.3 of the Centre Rules would be lawful and valid under the law of Nauru,does s 198AD(2) of the Migration Act authorise and require that the plaintiff be taken as soon as reasonably practicable to Nauru?(11)If the answer to question (10) is "yes", if the plaintiff were returned to Nauru:(a)would the restrictions imposed on the plaintiff set out at paragraphs 66–72 and 88–89 [of the special case] be contrary to Art 5(1) of the Constitution of Nauru?(b)would the specification in any RPC visa referred to at paragraph 87 [of the special case] that the plaintiff must reside at the Nauru RPC, s 18C of the RPC Act and/or rule 3.1.3 of the Centre Rules be invalid by reason of Art 5(1) of the Constitution of Nauru?(12) Does s 198AD(2) of the Migration Act authorise and require that the plaintiff be taken as soon as reasonably practicable to Nauru?Relief(13) What, if any, relief should be granted to the plaintiff?Costs(14)Who should pay the costs of the special case and of the proceedings generally?

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, KIEFEL AND NETTLE JJ, BELL J, GAGELER J

Full text does not contain this section.

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Citations

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

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Felstead and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2079
Citation 1 (Para 3)

…vision of security on that basis would also be inappropriate. [5] As to which see Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; (2016) 257 CLR 42, 97 [132]-[133]. BACKGROUND…
GKX18 v Minister for Immigration and Multicultural Affairs (No 4) [2025] FedCFamC2G 1051
Citation 2 (Para 25)

…The respondents noted that, in Plaintiff M68 (2016) 257 CLR 42; (2016) 327 ALR 369; (2016) 90 ALJR 297; [2016] HCA 1 at [165], Gageler J, as his Honour then was, quoted House of Lords authority that: [T]he function of a return to a writ of habeas corpus is to set out the facts and the grounds of the detention t…
Hunt v Gerrard; Ishiyama v Aitken [2025] QCA 126
Citation 3

…Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42; [2016] HCA 1, considered Unions NSW v New South Wales (2023) 277 CLR 627; [2023] HCA 4, considered Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9, cited COUNSEL: P Zappia KC, with N Dour, for the applicants S A McLeod KC,…
TCXM v Minister for Immigration and Multicultural Affairs [2025] FCA 540
Citation 4

…zenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005 Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42 Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 3…
QLTM and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 1214
Citation 5 (Para 2)

…icant’s case, there is no longer any processing function to be served, and no current arrangement with Nauru facilitating such assessment. [72] (2016) 257 CLR 42.…
Berih v Homes Victoria (No 4) [2025] VSC 169
Citation 6 (Para 1)

…py their homes in accordance with their rental agreements.[76] [75]Referring to Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42, [135] (Gageler J) ( Plaintiff M68 ). [76]Referring to Griffith University (2005) 221 CLR 99, [82] (Gummow, Callinan and Heydon JJ).…
Kant v Principal Registrar of the Federal Court of Australia [2025] FCA 274
Citation 7 (Para 27)

…t can be accepted that the Habeas Corpus Act 1640 has continuing significance. In Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42 at [155], Gageler J (as his Honour then was) said: In Re Bolton , Brennan J specifically identified the Habeas Corpus Act 1679 , as exten…
Hampton v Commissioner of the Australian Federal Police [2024] FCA 1079
Citation 8

…(2009) 238 CLR 1; [2009] HCA 23 Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42; [2016] HCA 1 Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24 S…
Save the Children Australia v Minister for Home Affairs [2024] FCAFC 81
Citation 9 (Para 16)

…d support in a passage from the reasons of Gageler J (as his Honour then was) in Plaintiff M68 /2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42 at [165]: Amenability to the writ is determined solely as a question of whether the person to whom the writ is addressed has de facto con…
CRS20 v Secretary, Department of Home Affairs [2024] FCA 619
Citation 10

…[2010] HCA 41; 243 CLR 319 Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42 Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144 Plaintiff M96A/2016 v Commonwealth [2017] HCA 16; 261 CLR 582 Plaintiff S156/2013 v Minister for Immig…
Azimitabar v Commonwealth of Australia [2024] FCAFC 52
Citation 11 (Para 2)

…as only been cited in two subsequent cases, neither of which related to spending: Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42; HCA 1 at [369] (Gordon J), Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 214; HCA 10 at […
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Citation 12 (Para 7)

…for Immigration and Border Protection (2014) 253 CLR 219 at 230-231 [24]; Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 101-102 [147]-[149], 105‑106 [162]-[163], 158 [372]. [26]See Williams v The Queen (1986) 161 CLR 278 at 292; Re Bolton; Ex parte Beane (1987) 162 CLR 514…
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 153
Citation 13

…erhaps if I can invite your Honours to go to Plaintiff M68 quickly, and that is at joint bundle volume 5, tab 31 – for your Honour Justice Steward, 257 CLR 42. If your Honours then go, in the reasons of Chief Justice Gageler, to paragraph 146 and following, you will see there is a quote in 147 from Bolton, th…
Save the Children Australia v Minister for Home Affairs [2023] FCA 1343
Citation 14 (Para 13)

…I note that O’Brien and Rahmatullah were referred to by Gageler J in Plaintiff M68/2015 v Minister for Immigration and Broder Protection [2016] HCA 1; 257 CLR 42 at [165]. His Honour stated: Amenability to the writ is determined solely as a question of whether the person to whom the writ is addressed has de fac…
Jones v Commonwealth [2023] HCA 34
Citation 15 (Para 3)

…ster for Immigration and Border Protection (2014) 253 CLR 219 at 231 [25]-[26]; Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 86 [98], 130 [260], 160 [379]-[381]; Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at 343 [27], 343-344 [29], 355-356 […
AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26
Citation 16 (Para 3)

…00-501 [14], 512 [52], 513-514 [58], 518-519 [73], 527 [106], 532 [128]. See also Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 65 [20], 65-66 [22]-[23], 76 [64], 89 [109], 90 [112], 123-124 [235]-[236], 151-152 [349]-[350]; Unions [No 3] (2023) 97 ALJR 150 at 158 [21]; 407…
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Citation 17 (Para 6)

…he general law (both common law and statute): Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at [136] (Gageler J); (ii)secondly, the Respondent accepted that a non-statutory capacity is “susceptible of control by statute” and a Commonwealth law may “limit or impose conditions”…
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10
Citation 18 (Para 19)

…ion under appeal[20]. [17] Davis v The Commonwealth (1988) 166 CLR 79 at 108. See Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 97 [132]-[133]. [18](2012) 246 CLR 636 at 653 [46], 665 [91]. See also Bedlington v Chong (1998) 87 FCR 75 at 80. [19](2016) 259 CLR 180 at 198-20…
Wilson v State of Victoria [2023] FCA 111
Citation 19 (Para 10)

…n might provide the basis for or relate to a subsequent cause of action: see, eg, Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; (2016) 257 CLR 42 at 65–6 [23] (French CJ, Kiefel and Nettle JJ), 90 [112] (Gageler J), 123 [235] (Keane J), 152 [350] (Gordon J); Unions NSW at [21…
Unions NSW v New South Wales [2023] HCA 4
Citation 20 (Para 4)

…5]-[106], 257 [198]. [45] Ainsworth (1992) 175 CLR 564 at 581-582, 596-597; Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 65 [20], 65-66 [22]‑[23], 76 [64], 89 [109], 90 [112], 123 [235]-[236], 151-152 [349]-[350]. See also Plaintiff M61/2010E v The Commonwealth (2010) 243…
Unions NSW & Ors v State of New South Wales [2022] HCATrans 203
Citation 21

…At Plaintiff M68/2015 (2016) 257 CLR 42, the challenge was to the exercise of executive power, both at the level of the statute, and directly under section 61 of the Constitution – that emerges from paragraph 24. Shortly before the hearing, this is paragraphs 19 and 20, the underlying factual substratum radically ch…
AKU21 v Minister for Home Affairs [2022] FCA 1061
Citation 22 (Para 11)

…s detained in Papua New Guinea by the executive government of Papua New Guinea: Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42 at [34]. That detention was not shown to be unlawful.…
DXN21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 589
Citation 23 (Para 16)

…llars in securing, in effect, the removal of persons from Australia: see, e.g., Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42, [313] (Gordon J). I make no assumption whether or not it may be reasonably practicable in some, complex, cases for the Executive to explore the necess…
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213
Citation 24 (Para 14)

…Police (NSW) [2005] HCA 50; 224 CLR 44 at [69] (McHugh, Gummow and Hayne JJ); and Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42 at [126]-[129] (Gageler J). It has also been accepted for many years that the concomitant duty of the High Court or this Court in determi…
Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195
Citation 25 (Para 11)

…here matters of international relations or comity are involved (see, for example, Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; (2016) 257 CLR 42 at [250]–[258] per Keane J). Furthermore, the effect of Australia not complying with a treaty or convention is ordinarily a matter…
AZC20 v Minister for Home Affairs [2021] FCA 1234
Citation 26 (Para 27)

…In Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42, the plurality considered the expression “regional processing country”, observing at [2]: Nauru is a country designated by the Minister for Immigration and Border Protection under s 198AB of the Migration Act as a “regional proc…
Commonwealth v AJL20 [2021] HCA 21
Citation 27 (Para 11)

…es not infringe Ch III of the Constitution . [96](1992) 176 CLR 1 at 32. See also Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 161‑162 [384]‑[385].…
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19
Citation 28 (Para 6)

…ect to the lawfulness of the removal or deportation from another country". [27]cf Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 72‑73 [48] per French CJ, Kiefel and Nettle JJ, 126‑129 [250]-[257] per Keane J, 169 [414] per Gordon J. [28](2016) 257 CLR 42 at 128 [255] (footn…
LibertyWorks Inc v The Commonwealth [2021] HCA 18
Citation 29 (Para 10)

…otherwise matters reserved to the legislative branch of government[440]. [439]cf Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 80 [77] per Bell J, citing Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28 at 43 [26]. See also Grain Pool…
MZZHL v Commonwealth of Australia [2021] FCA 600
Citation 30 (Para 14)

…intiff M47/2012 [2012] HCA 46 at [108] (2012) 251 CLR 1 at 57 to 58 per Gummow J; Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1 at [158]-[159], (2016) 257 CLR 42 at 104 to 105 per Gageler J. But that, it is concluded, is not the sole remedy in circumstances where detention has…
Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560
Citation 31

…Pty Ltd (1999) 198 CLR 180 Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 Plaintiff S99/2016 v Minister for Immigration and Border Protection (2016) 243 FCR 17 Port Stephens Shire Council v Booth [2005] NSWCA 323 Precision Products (NSW) Pty Ltd v Hawkesbury City Council (2008…
Dbe17 (by his litigation guardian Marie Theresa Arthur) v Commonwealth of Australia (No 2) [2021] FCA 556
Citation 32 (Para 5)

…people who were in fact taken from Australia to Nauru and Papua New Guinea. In Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42, a majority of the High Court held that people taken to regional processing countries under s 190AD of the Migration Act 1958 (Cth) were no…
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Citation 33 (Para 24)

…ationale and Consequences" (2019) 30 Public Law Review 18 at 30-31, 34-35. [96] Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 95 [128]; see generally 92-96 [119]-[128].…
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCATrans 70
Citation 34

…MR LENEHAN: I can, your Honour. It is (2016) 257 CLR 42.…
Minister for Home Affairs v Benbrika [2021] HCA 4
Citation 35 (Para 12)

…36]-[37] per French CJ, Kiefel and Bell JJ, 610-612 [94]-[103] per Gageler J; Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 69 [40] per French CJ, Kiefel and Nettle JJ, 86 [98], 87 [100] per Bell J, 111-112 [183]-[185] per Gageler J, 124-125 [238]-[241] per Keane J; Falzon…
Minister for Home Affairs v DMA18 [2020] HCA 43
Citation 36 (Para 4)

…processing functions of that country"[38]. The 2015 Act inserted s 198AHA into Subdiv B of Div 8 of Pt 2[39]. Section 198AHA provided as follows: [37](2016) 257 CLR 42. [38]Australia, House of Representatives, Migration Amendment (Regional Processing Arrangements) Bill 2015 , Explanatory Memorandum at 2. [39]Section…
AJL20 v Commonwealth of Australia [2020] FCA 1305
Citation 37 (Para 12)

…idual: Ex parte Walsh and Johnson; Re Yates (1925) 37 CLR 36 at 76 (Isaacs J). In Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at [159], Gageler J referred to the availability, “long settled at the time of the establishment of the Commonwealth, of habeas corpus to compel rele…
Mokhlis v Minister for Home Affairs [2020] HCA 30
Citation 38 (Para 14)

…of the Australasian Federal Convention (Melbourne), 31 January 1898 at 320. [12] Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 105 [161]. [13]Leeming, Authority to Decide: The Law of Jurisdiction in Australia , 2nd ed (2020) at 247.…
Plaintiff M83A/2019 v Morrison (No 2) [2020] FCA 1198
Citation 39 (Para 7)

…onal processing arrangements with Nauru, is not in dispute and is summarised in Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42. Insofar as necessary, I also adopt what was said in the Court’s reasons on the separate question application: Plaintiff M83A/2019 v Morris…
Hocking v Director-General of the National Archives of Australia [2020] HCA 19
Citation 40 (Para 11)

…w South Wales v Bardolph (1934) 52 CLR 455 at 489-490, 501-503, 507-509, 517-519; Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 90-93 [115]-[122]. [66] Brown v West (1990) 169 CLR 195 at 202. [67]eg The Commonwealth v Rhind (1966) 119 CLR 584 at 599; Jacobsen v Rogers (1995…
Plaintiff M83A/2019 v Morrison [2020] FCA 334
Citation 41 (Para 3)

…stralia and Nauru which implemented Australia’s offshore processing policy: see Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42 at [5], [9], [32], [80], [214]-[215], [295], [308]-[313]. This proceeding challenges the conduct of senior officers of the Commonwealth in…
Republica Democratica de Timor Leste v Lighthouse Corporation Limited [2019] VSCA 290
Citation 42 (Para 1)

…ot the case that an Australian court cannot discern and apply the law of the foreign state, even where that law is a primary constitutional text. [43](2016) 257 CLR 42. [44]Ibid 72–3 [48].…
PHMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1776
Citation 43 (Para 6)

…intiff M61 /2010E v Commonwealth [2010] HCA 41; 243 CLR 319 at [103], noting also Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42; and Gardner v Dairy Industry Authority (NSW) (1977) 18 ALR 55. However, the Minister emphasises that it is for the applicant to satisfy…
Quach v Commissioner of Taxation [2019] FCA 1729
Citation 44 (Para 22)

…Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [100]; and Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; (2016) 257 CLR 42 at [126] (Gageler J). The remedies of injunction or declaration may also lie, of course, if there is a breach of a legal obligatio…
Comcare v Banerji [2019] HCA 23
Citation 45 (Para 12)

…[1935] HCA 84; Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 92‑93 [120] per Gageler J; [2016] HCA 1. [51]See Northcote and Trevelyan, Report on the Organisation of the Permanent Civil Service (1854) at 3, 6‑7, 18‑20. See also Carltona Ltd v Commissioners of Works [19…
CEU19 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 1050
Citation 46 (Para 9)

…and the enormous amount of public monies expended on that system (see for example Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42 at [311]-[313] (Gordon J)) are matters of public interest. The now considerable numbers of individuals with serious medical and/or psychi…
Yannes & Judkins [2019] FCCA 1656
Citation 47 (Para 6)

…ncerning detention by the executive include Re Bolton; ex parte Beane (above) and Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 (especially at 103-105). Cases concerning judicial detention include Fardon v Attorney-General (Qld) (2004) 223 CLR 575, Kable v Director of Public P…
Wardman v Macquarie Bank Limited [2019] FCCA 939
Citation 48 (Para 5)

…undertaken. It is particularly the case that economically weaker and more vulnerable parties desire the opinion of the mediator on such matters. [27] (2016) 257 CLR 42 at 169 [416] per Gordon J and cases there cited.…
Tanioria v Commonwealth of Australia (No 3) [2018] FCA 1623
Citation 49 (Para 17)

…ues in this case, it is relevant to note the conclusions reached by Gageler J in Plaintiff M68 /2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 concerning the role of Wilson Security in exercising physical control of the plaintiff in that case whilst in detention on Nauru. His Honour said (em…
Roads and Maritime Services v Desane Properties Pty Ltd [2018] NSWCA 196
Citation 50 (Para 66)

…with the Just Terms Act (at [189]): Just Terms Act , s 74(1); Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42; [2016] HCA 1 at 71-72.…

See all citing cases →

Cases Cited

CPCF v Minister for Immigration and Border Protection [2015] HCA 1
Citation 1 (Para 19)

…rinciple. [56] CPCF v Minister for Immigration and Border Protection (2015) 89 ALJR 207 at 240 [149]-[150] per Hayne and Bell JJ; 316 ALR 1 at 39-40; [2015] HCA 1.…
Kuczborski v Queensland [2014] HCA 46
Citation 2 (Para 13)

…boriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 262 [37]; [1998] HCA 49; Kuczborski v Queensland (2014) 254 CLR 51 at 87-88 [98]-[99]; [2014] HCA 46. Relief and costs – Questions 13 and 14…
Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34
Citation 3 (Para 15)

…sons of Brennan, Deane and Dawson JJ in Lim . [48] Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 at 233 [34]; [2014] HCA 34.…
Williams v The Commonwealth [No 2] [2014] HCA 23
Citation 4 (Para 23)

…oo remote or insubstantial. [30]Cf Williams v The Commonwealth [No 2] (2014) 252 CLR 416 at 461 [50] per French CJ, Hayne, Kiefel, Bell and Keane JJ; [2014] HCA 23.…
Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22
Citation 5 (Para 8)

…taking her to Nauru ceased upon her being handed over into the custody of the Government of Nauru. [8](2014) 254 CLR 28 at 42-43 [22]-[25], 46 [38]; [2014] HCA 22. [9](1992) 176 CLR 1 at 10, 32-33.…
Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53
Citation 6 (Para 18)

…laintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322 at 369 [138] per Crennan, Bell and Gageler JJ; [2013] HCA 53.…
Moti v The Queen [2011] HCA 50
Citation 7 (Para 25)

…of a particular issue in the case, those occasions will be rare. This is not such an occasion. [20] Moti v The Queen (2011) 245 CLR 456 at 475 [51]; [2011] HCA 50.…
Plaintiff M61/2010E v Commonwealth [2010] HCA 41
Citation 8 (Para 11)

…92] HCA 10; Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 at 359 [103] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; [2010] HCA 41, citing Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 355‑356 [46]-[47] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; [1999…
Thomas v Mowbray [2007] HCA 33
Citation 9 (Para 11)

…ction on liberty considered in Thomas v Mowbray [46]. [46](2007) 233 CLR 307 at 330 [18] per Gleeson CJ, 356 [114]‑[116] per Gummow and Crennan JJ; [2007] HCA 33.…
New South Wales v Commonwealth [2006] HCA 52
Citation 10 (Para 19)

…v The Commonwealth (1994) 182 CLR 272 at 314; [1994] HCA 44; New South Wales v The Commonwealth ( Work Choices Case ) (2006) 229 CLR 1 at 143 [275]; [2006] HCA 52.…
Vasiljkovic v Commonwealth [2006] HCA 40
Citation 11 (Para 9)

…ants M276/2003 (2004) 225 CLR 1 at 12 [16]-[17], 26-27 [62], 85 [264]; [2004] HCA 49; Vasiljkovic v The Commonwealth (2006) 227 CLR 614 at 648 [108]; [2006] HCA 40. [315] CPCF (2015) 89 ALJR 207 at 240 [149]-[150]; 316 ALR 1 at 39-40.…
Re Woolley; Ex parte Applicants M276/2003 [2004] HCA 49
Citation 12 (Para 18)

…[55](1992) 176 CLR 1 at 33 per Brennan, Deane and Dawson JJ; Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at 12-13 [18] per Gleeson CJ; [2004] HCA 49; Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322 at 369 [138] per Crennan, Bell and Gageler J…
Al-Kateb v Godwin [2004] HCA 37
Citation 13 (Para 9)

…to Nauru by the Commonwealth was complete is validly authorised. [314] Lim (1992) 176 CLR 1 at 55; Al-Kateb v Godwin (2004) 219 CLR 562 at 648 [258]; [2004] HCA 37; Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at 12 [16]-[17], 26-27 [62], 85 [264]; [2004] HCA 49; Vasiljkovic v The Commonwealth (200…
Grain Pool of Western Australia v The Commonwealth [2000] HCA 14
Citation 14 (Para 24)

…lso Grain Pool of Western Australia v The Commonwealth (2000) 202 CLR 479 at 492 [16] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; [2000] HCA 14; New South Wales v The Commonwealth (2006) 229 CLR 1 at 143 [275] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ; [2006] HCA 52. The Lim princi…
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11
Citation 15 (Para 22)

…R 510 at 528 [32]; [1999] HCA 14; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at 637 [122]; [2000] HCA 11.…
Abebe v the Commonwealth [1999] HCA 69
Citation 16 (Para 22)

…The question of standing cannot be detached from the notion of a "matter"[4] and is related to the relief claimed. [4] Abebe v The Commonwealth (1999) 197 CLR 510 at 528 [32]; [1999] HCA 14; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at 637 [122]; [2000] HCA…
Bass v Permanent Trustee Co Ltd [1999] HCA 9
Citation 17 (Para 11)

…41, citing Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 355‑356 [46]-[47] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; [1999] HCA 9. The plaintiff's case…
Croome v Tasmania [1997] HCA 5
Citation 18 (Para 13)

…265; [1921] HCA 20; Mellifont v Attorney-General (Q) (1991) 173 CLR 289 at 303; [1991] HCA 53; Croome v Tasmania (1997) 191 CLR 119 at 124-126, 136; [1997] HCA 5; Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 262 [37]; [1998] HCA 49; Kuczborski v…
Victoria v The Commonwealth [1996] HCA 56
Citation 19 (Para 2)

…A 52; The Commonwealth v Tasmania ( The Tasmanian Dam Case ) (1983) 158 CLR 1 at 127, 170, 218-219, 258; [1983] HCA 21; Industrial Relations Act Case (1996) 187 CLR 416 at 478, 483-485. [329] R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 642.…
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18
Citation 20 (Para 17)

…[52] Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 11 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ; [1996] HCA 18. [53] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27 per Brennan, Deane and Dawson JJ.…
Cunliffe v The Commonwealth [1994] HCA 44
Citation 21 (Para 19)

…that is more than insubstantial, tenuous or distant[17] is satisfied. [16]See [31] above. [17] Cunliffe v The Commonwealth (1994) 182 CLR 272 at 314; [1994] HCA 44; New South Wales v The Commonwealth ( Work Choices Case ) (2006) 229 CLR 1 at 143 [275]; [2006] HCA 52.…
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64
Citation 22 (Para 7)

…nvolves the exercise of governmental power. [7] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27; [1992] HCA 64.…
Ainsworth v Criminal Justice Commission [1992] HCA 10
Citation 23 (Para 23)

…Dairy Industry Authority (NSW) (1977) 52 ALJR 180 at 188; 18 ALR 55 at 69. [6] Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582; [1992] HCA 10. The issues – non-statutory executive power and s 198AHA…
Mellifont v Attorney-General (Q) [1991] HCA 53
Citation 24 (Para 13)

…Nauru. [338] In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265; [1921] HCA 20; Mellifont v Attorney-General (Q) (1991) 173 CLR 289 at 303; [1991] HCA 53; Croome v Tasmania (1997) 191 CLR 119 at 124-126, 136; [1997] HCA 5; Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund…
Polyukhovich v The Commonwealth [1990] HCA 40
Citation 25 (Para 5)

…of the judicial power of the Commonwealth[305]. [305] Lim (1992) 176 CLR 1 at 26-27. See also Polyukhovich v The Commonwealth ( War Crimes Act Case ) (1991) 172 CLR 501 at 606-607; [1991] HCA 32.…
Queensland v The Commonwealth [1989] HCA 36
Citation 26 (Para 3)

…seen earlier, neither the MOU nor the Administrative Arrangements refer to detention. [330] Queensland v The Commonwealth (1989) 167 CLR 232 at 239; [1989] HCA 36.…
Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd [1988] HCA 25
Citation 27 (Para 11)

…3 CLR 479 at 495, 506-507, 511; [1906] HCA 88; Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 at 40-41; [1988] HCA 25; Moti v The Queen (2011) 245 CLR 456 at 475 [51]; [2011] HCA 50. Future arrangements – Questions 6-12…
Commonwealth v Tasmania [1983] HCA 21
Citation 28 (Para 2)

…5 CLR 608 at 640-641, 681-682, 687; [1936] HCA 52; The Commonwealth v Tasmania ( The Tasmanian Dam Case ) (1983) 158 CLR 1 at 127, 170, 218-219, 258; [1983] HCA 21; Industrial Relations Act Case (1996) 187 CLR 416 at 478, 483-485. [329] R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 642.…
Koowarta v Bjelke-Petersen [1982] HCA 27
Citation 29 (Para 4)

…a subject directly within the subject matter of s 51(xxix). [331] Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 201-202, 220-221, 237, 257-258; [1982] HCA 27.…
Barton v The Commonwealth [1974] HCA 20
Citation 30 (Para 7)

…veral States[336]. [333]cf Vasiljkovic v The Commonwealth (2006) 227 CLR 614 at 618 [6]. [334]cf Barton v The Commonwealth (1974) 131 CLR 477 at 483; [1974] HCA 20. [335] Ferrando v Pearce (1918) 25 CLR 241 at 253, 261, 270, 274; [1918] HCA 47; Jerger v Pearce (1920) 28 CLR 588 at 592, 594; [1920] HCA 42; Lim (1…
R v Burgess; ex parte Henry [1936] HCA 52
Citation 31 (Para 15)

…wer of the Commonwealth to establish relations with other countries[25]. [25] R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 643-644 per Latham CJ; [1936] HCA 52.…
In re Judiciary and Navigation Acts [1921] HCA 20
Citation 32 (Para 13)

…rangements which might be in place if the Plaintiff were to be returned to Nauru. [338] In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265; [1921] HCA 20; Mellifont v Attorney-General (Q) (1991) 173 CLR 289 at 303; [1991] HCA 53; Croome v Tasmania (1997) 191 CLR 119 at 124-126, 136; [1997] HCA 5; Batem…
Jerger v Pearce [1920] HCA 42
Citation 33 (Para 7)

…at 483; [1974] HCA 20. [335] Ferrando v Pearce (1918) 25 CLR 241 at 253, 261, 270, 274; [1918] HCA 47; Jerger v Pearce (1920) 28 CLR 588 at 592, 594; [1920] HCA 42; Lim (1992) 176 CLR 1 at 57. [336]s 51(vi) of the Constitution.…
Ferrando v Pearce [1918] HCA 47
Citation 34 (Para 7)

…618 [6]. [334]cf Barton v The Commonwealth (1974) 131 CLR 477 at 483; [1974] HCA 20. [335] Ferrando v Pearce (1918) 25 CLR 241 at 253, 261, 270, 274; [1918] HCA 47; Jerger v Pearce (1920) 28 CLR 588 at 592, 594; [1920] HCA 42; Lim (1992) 176 CLR 1 at 57. [336]s 51(vi) of the Constitution.…
Potter v Broken Hill Proprietary Co Ltd [1906] HCA 88
Citation 35 (Para 11)

…law. [337] Underhill v Hernandez 168 US 250 at 252 (1897), approved in Potter v Broken Hill Proprietary Co Ltd (1906) 3 CLR 479 at 495, 506-507, 511; [1906] HCA 88; Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 at 40-41; [1988] HCA 25; Moti v The Queen (2011) 245 CL…
Polyukhovich v Commonwealth ("War Crimes Act case") [1991] HCA 32
Citation 36 (Para 5)

…mmonwealth[305]. [305] Lim (1992) 176 CLR 1 at 26-27. See also Polyukhovich v The Commonwealth ( War Crimes Act Case ) (1991) 172 CLR 501 at 606-607; [1991] HCA 32.…
Potter v Broken Hill Proprietary Co Ltd 168 US 250
Citation 37 (Para 11)

…uct is judged according to Australian law and, for the reasons stated, it is not validly authorised under Australian law. [337] Underhill v Hernandez 168 US 250 at 252 (1897), approved in Potter v Broken Hill Proprietary Co Ltd (1906) 3 CLR 479 at 495, 506-507, 511; [1906] HCA 88; Attorney-General (United Kin…
[1999] HCA 14 [1999] HCA 14
Citation 38 (Para 22)

…annot be detached from the notion of a "matter"[4] and is related to the relief claimed. [4] Abebe v The Commonwealth (1999) 197 CLR 510 at 528 [32]; [1999] HCA 14; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at 637 [122]; [2000] HCA 11.…

Legislation Cited

Migration Act 1958 (Cth) 198AB, 198AD, 198AHA
4 mentions
Financial Framework (Supplementary Powers) Regulations 1997 (Cth) 16
2 mentions (from Para 13)
Acts Interpretation Act 1901 (Cth)
1 mention (from Para 21)
Financial Framework (Supplementary Powers) Act 1997 (Cth)
1 mention (from Para 13)
High Court Rules 2004 (Cth)
1 mention (from Para 15)
Immigration Act 2014 (c. 22) 10
1 mention (from Para 9)
Migration Amendment (Regional Processing Arrangements) Act 2015 (Cth)
1 mention (from Para 15)
Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth)
1 mention (from Para 24)
United Dominions Corporation Ltd v Brian Pty Ltd 10
1 mention (from Para 9)