Plaintiff M68/2015 v Minister for Immigration and Border Protection & Ors - [2015] HCATrans 255

[2015] HCATrans 255

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M68 of 2015

B e t w e e n -
PLAINTIFF M68/2015
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Defendant
COMMONWEALTH OF AUSTRALIA
Second Defendant
TRANSFIELD SERVICES (AUSTRALIA) PTY LTD (ACN 093 114 553)
Third Defendant

FRENCH CJ
KIEFEL J
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 OCTOBER 2015, AT 10.19 AM

__________________

MR R. MERKEL, QC: If the Court pleases, I appear with my learned friends, MR C.L. LENEHAN, MS R. MANSTED, MR D.P. HUME and MS E. BATHURST. (instructed by Human Rights Law Centre)

MR J.T. GLEESON, SC, Solicitor‑General of the Commonwealth: May it please the Court, I appear with MR G.R. KENNETT, SC, MS A.M. MITCHELMORE and MR P.D. HERZFELD for the first and second defendants. (instructed by Australian Government Solicitor)

MR S.P. DONAGHUE, QC: May it please the Court, I appear with MS K.E. FOLEY and MR C.J. TRAN for the third defendant. (instructed by Corrs Chambers Westgarth Lawyers)

MR G.R. DONALDSON, SC, (Solicitor‑General for the State of Western Australia): May it please the Court, I appear with my learned friend, MS F.B. SEAWARD, for the Attorney‑General for the State of Western Australia, intervening. (instructed by State Solicitor (WA))

MR P.J. DUNNING, QC, (Solicitor‑General of the State of Queensland): May it please the Court, I appear with my learned friend, MS F.J. NAGORCKA, for the Attorney‑General of the State of Queensland, intervening. (instructed by Crown Solicitor (Qld))

FRENCH CJ: Mr Merkel.

MR GLEESON: Your Honours, can I make an application at the outset if it is convenient?

FRENCH CJ: Yes.

MR GLEESON: On behalf of the first and second defendants, I would seek to move upon a summons which we would seek to have filed in Court and returnable instanter, a copy of which is only now being provided to the Court. The purpose of the summons is to seek leave, which would be by consent, to file an amended special case which is in the form annexed to the summons. I also seek to leave to file and rely upon an affidavit of Mr Andrew Buckland, which has been sworn this morning. I make clear that the affidavit is only in respect to the interlocutory application and is not sought to be read in respect to the main appeal.

The purpose of the proposed amendment to the summons can be seen primarily if the Court would go to paragraphs 84 through to 89, which is on pages 22 to 23. Paragraph 84, which was always in the stated case, was an agreement that Nauru as a sovereign state always had the ability to make or vary its own relevant laws and the then agreement of the parties to what would happen if the plaintiff were…

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.

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Details

AGLC: Plaintiff M68/2015 v Minister for Immigration and Border Protection & Ors [2015] HCATrans 255
Case: [2015] HCATrans 255
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an application for judicial review brought by Plaintiff M68/2015 against the Minister for Immigration and Border Protection and others. The dispute concerned the lawfulness of the applicant's detention and the validity of certain decisions made in relation to their immigration status, particularly in light of international human rights obligations.

The central legal questions before the Court were whether the applicant's prolonged detention constituted an arbitrary detention contrary to international law, and if so, whether Australian domestic law provided a sufficient basis for such detention. The Court also examined the scope of the Minister's powers and the extent to which international human rights norms, as incorporated or reflected in domestic law, could inform the interpretation of those powers and the legality of detention.

The Court engaged in a detailed analysis of the constitutional framework and statutory provisions governing immigration detention, alongside relevant international human rights instruments, including the International Covenant on Civil and Political Rights. The majority found that while Australia has obligations under international law to avoid arbitrary detention, the domestic legislative framework, as enacted by Parliament, authorised the detention in question. They reasoned that the Parliament had made its intention clear in this regard, and that the courts were bound to apply the law as it stood, even if it conflicted with international norms. A dissenting judgment, however, argued that the prolonged and indefinite nature of the detention, without adequate judicial oversight or a clear legislative basis for its indefinite continuation, could amount to arbitrary detention under international law, which should inform the interpretation of domestic law.

Ultimately, the majority of the High Court dismissed the application for judicial review, upholding the lawfulness of the detention under the existing legislative scheme.

Orders