Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

PLAINTIFF M47/2018 PLAINTIFF

AND

MINISTER FOR HOME AFFAIRS & ANOR DEFENDANTS

Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17 Date of Order: 13 February 2019 Date of Publication of Reasons: 12 June 2019 M47/2018

ORDER

The questions stated in the special case for the opinion of the Full Court are answered as follows:

1. On their proper construction, do ss 189 and 196 of the Migration Act 1958 (Cth) authorise the present detention of the plaintiff?

Answer: Does not arise.

2. If so, are those provisions beyond the legislative power of the Commonwealth insofar as they apply to the plaintiff?

Answer: Does not arise.

3. What relief, if any, should issue to the plaintiff?

Answer: None.

4. Who should pay the costs of and incidental to this special case?

Answer: The plaintiff.

Representation

R Merkel QC with L T Livingston, E M Nekvapil and C G Winnett for the plaintiff (instructed by Human Rights for All Pty Ltd)

S P Donaghue QC, Solicitor-General of the Commonwealth, with P D Herzfeld and Z C Heger for the defendants (instructed by Australian Government Solicitor)

Australian Human Rights Commission appearing as amicus curiae, limited to its written submissions

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Plaintiff M47/2018 v Minister for Home Affairs

Immigration – Unlawful non-citizens – Detention pending removal from Australia – Where s 189 of Migration Act 1958 (Cth) requires unlawful non‑citizen be detained – Where s 196 requires unlawful non-citizen detained under s 189 be kept in immigration detention – Where plaintiff an unlawful non‑citizen – Where plaintiff arrived in migration zone using false passport and personal details – Where plaintiff kept in immigration detention since arrival in migration zone – Where plaintiff previously used false personal details – Where plaintiff's identity and nationality not known – Whether ss 189 and 196 authorise plaintiff's detention – Whether ss 189 and 196 constitutionally valid in application to plaintiff.