Detention in Nauru held to be valid by HCA

Just a short update, and this is all over the news anyway. Today, the High Court of Australia released its decision on the case of a person known only as M68, who bought a case against the Minister for Border Protection (amongst others), claiming that their detention on the island state of Nauru was unlawful and that the Commonwealth did not have the power to detain M68 under the Migration Act.

The bench for this case consisted of French CJ, Kiefel, Bell, Gageler, Keane, Nettle, and Gordon JJ.

The majority of the High Court of Australia held that the relevant sections of the Migration Act were constitutionally valid and hence the actions of the Department in detaining M68 on Nauru was within the power of the Commonwealth to legislate.

Interestingly, the High Court did hold that M68 had standing to bring the action against the Department, but that the Commonwealth has the powers under the Constitution and the Migration Act to:


  • enter into a Memorandum of Understanding with Nauru to establish the terms on which Nauru would hold persons while Australia processes their claim for a visa;
  • give effect to that Memorandum of Understanding, by enacting laws to give effect to that Memorandum of Understanding; and
  • secure, participate in and fund the detention of M68 under those laws.


This was not a unanimous decision, but I can’t help but feel that the decision of the majority is sufficiently strong to be a very large block on future challenges to the legality of detention on Nauru under the Migration Act.

I’m not going to offer any political commentary on this decision as I simply don’t have the knowledge – social or legal – to offer up anything meaningful.

Perhaps it is best I just end this post by saying that I am incredibly grateful for my life and the opportunities I have, and that I believe in freedom, tolerance and kindness to all.



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