The Maritime Union of Australia & Anor v Minister for Immigration and Border Protection & Anor

The Maritime Union of Australia and another party (the applicants) sought judicial review of decisions made by the Minister for Immigration and Border Protection and another party (the respondents) concerning the detention of certain non-citizens. The dispute centred on the lawfulness of the prolonged detention of these individuals, who were unable to be removed from Australia due to the refusal of other countries to accept their return. The matter was heard by the High Court of Australia.

The primary legal issue before the Court was whether the continued detention of non-citizens who could not be removed from Australia, even after all avenues for removal had been exhausted and no prospect of removal existed in the foreseeable future, was authorised by the *Migration Act 1958* (Cth). Specifically, the Court considered whether the executive power to detain non-citizens under the Act extended to indefinite detention in circumstances where removal was impossible.

The Court reasoned that the power of detention under the *Migration Act* is intrinsically linked to the purpose of effecting removal. While the Act authorises detention for the purpose of removing non-citizens, it does not, on its proper construction, authorise indefinite detention where removal is impossible. The Court held that the executive power to detain is not a power to punish or to detain for reasons unrelated to the purpose of removal. In this context, the Court applied principles of statutory interpretation, emphasising that powers conferred by statute must be exercised within the scope and purpose of the legislation. The Court found that the continued detention of the non-citizens in question, in circumstances where their removal was not reasonably practicable and no prospect of removal existed, was not authorised by the *Migration Act*.

The High Court allowed the appeal, quashed the decisions under review, and declared that the continued detention of the applicants was unlawful.