A majority of the High Court full bench in its M68 decision held that the commonwealth’s action is lawful under the constitution by section 63. Section 198AHA of the Migration Act also allowed Australia’s participation in offshore detention in a foreign country.
The argument by the lawyers of M68 a Bangladeshi woman that the government “funded, authorized, procured and effectively controlled “ her detention at Nauru is not valid under Australian law and infringed constitutional limits of powers under the constitution.”
The majority decision stated, “The plaintiff is not entitled to the declarations sought”.
The court also placed limits to detention for all the seven judges clearly said that Australia cannot simply detain people offshore for as long as it likes.
“That the commonwealth may only participate in that (offshore processing) regime if ,and for so long , it serves the purpose of processing”.
“The commonwealth is not authorized ….to support an offshore detention regime which is not reasonably necessary to achieve that purpose”.
According to the court Australia cannot have a regime of indefinite detention offshore This places limits for the government’s power to hold asylum seekers indefinitely .
A positive reaction to the decision will put the government to speed up the processing process.
Justice Michelle Gordon one of the judges who expressed dissent on the decision said< that section 198AHA of the Migration Act was “beyond power and therefore invalid” and another judge Justice Stephen Gageler though agreeing with the substantive ruling stated, “ the plaintiff’s central claim (that the commonwealth and the minister acted beyond the executive power of the commonwealth by procuring and enforcing her detention at the regional processing centre between 24 March 2014 and 2 August 2014) to have been well-founded until 30 June 2015, when section 198AHA was inserted with retrospective effect”.
M68 the Bangladeshi woman as known in the court was the lead plaintiff for the 267 asylum seekers who were in a boat intercepted in October 2013 by Australian officers and detained in Nauru from January 2014 until August 2014 and brought to Australia for medical treatment subsequently giving birth to a child.
The decision has implications for the 267 asylum seekers. Some of them were moved to Australia for medical reasons and out of this number 33 are babies born in Australia. Should they remain in Australia? There are protests for them to let them stay.
A Senate motion for them to stay failed for lack of support.
Statements made by the government do not show that they will let them stay.
Stay or back to Nauru?