The back door to legal offshore detention

The High Court held valid a law which the dissenting judge acknowledges permits the Commonwealth to do outside of Australia what it can’t do inside Australia.

Parliament last year took the most unusual step of passing legislation retrospectively so as to sidestep the detention limitations set out in an earlier decided case of Lim. But for this, it would have been unlikely that the Government would have been successful in the challenge.

The High Court noted that it is lawful for Australia to make laws in respect of the removal of aliens but it is not within the High Court’s power to determine the validity of Nauruan law to detain those such aliens. There is a disjunction between the laws enabling the deportation of a person from Australia and the detention of that person in the land of another country (i.e. Nauru).

The Commonwealth used the back door to avoid the limitations set out in the Lim case by the natural disjunction between the laws of Australia and the laws of Nauru and invoking the powers of the constitution. In other words the laws permitting the removal of aliens from Australian is unhindered; just as is the ability of Nauru to make laws to detain these aliens. By enacting law (section 198AHA) to facilitate the joinder of the operations of each countries’ laws in respect to aliens it was found to have been within the powers of the constitution. What would not have been constitutionally valid was for the Commonwealth to pass a law that prescribes the detention of aliens in a foreign country.  

Therefore the real issue in contention was the validity of the Commonwealth to make law to facilitate and fund the ability of the Nauruan’s to detain these aliens, specifically the ones deported from Australia. The majority of the High Court held that it was within the powers of the Constitution (section 61) to make laws to facilitate these functions. However, the ability is not totally unfettered; it must be within reason and is ‘limited to action that can reasonably be seen to be related to Nauru’s regional processing functions.’

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

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High Court finds offshore processing of asylum seekers is constitutionally valid

The High Court of Australia has found that the Australian Government’s offshore processing of asylum seekers is constitutionally valid.

The case has been brought by the Human Rights Law Centre which has worked with the Refugee Advice and Casework Service and the Darwin Asylum Seeker Support and Advocacy Network.

The case sought, amongst other things, a declaration that the Commonwealth's conduct in enforcing the plaintiff’s offshore detention or the Commonwealth’s entry into contracts in connection with this detention be ruled unlawful, by reason that such conduct is not authorised by any valid law of the Commonwealth.   

The High Court found that the offshore processing of asylum seekers is constitutionally valid and held, by majority, that the plaintiff was not entitled to the declaration. 


The High Court also held that the conduct of the Commonwealth in signing an MOU for the transfer of irregular maritime arrivals to Nauru was authorised by s 61 of the Constitution, and the MOU that included the administrative operations of the centre on Nauru and the Transfield contract was authorised by s 198AHA of the Act.

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