The High Court case

In February 2016, the High Court handed down its judgment in M68 v Minister for Immigration and Border Protection. In its judgment, the Court held that: a) the Australian government is not responsible for the detention of asylum seekers on Nauru; and b) Australia has the constitutional power to participate in the detention of asylum seekers offshore for a permissible purpose. However, the Court did limit Australia’s powers to the extent to which it is necessary to achieve the purpose of regional asylum processing.

The case was brought on behalf of a Bangladeshi woman who sought asylum by boat. She was first taken to Christmas Island and then, in January 2014, transferred by Australian officials to Nauru under a bilateral Memorandum of Understanding (MoU). In Nauru, she was detained and applied for refugee status; her application is still pending.

In August 2014, while pregnant, she was brought to Australia for obstetric treatment. While in Australia she applied to the High Court requesting it to prohibit the Australian government from returning her to detention on Nauru, on the basis that to do so would be unconstitutional. She further claimed that it was the Australian government that was responsible for her detention on Nauru. 

The decision

The majority of judges found that her detention was carried out by the Nauruan – not Australian – government. As such, Australia was not responsible for her detention. The Court decided that the Australian government was authorised to sign the MoU with Nauru by section 61 of the Constitution and that the relevant section of the Migration Act (section 198AHA) allows the government to take any action in relation to offshore processing functions, including returning the plaintiff to Nauru.

Impact and response

The Court’s decision affects more than just one asylum seeker. There are 267 people currently in Australia who can now lawfully be returned to Nauru against their wishes. These people were either transferred to Australia for medical treatment, or born here to asylum seeker parents.

Following the Court’s decision, a ‘Let Them Stay’ campaign developed in Australia, protesting the planned return of the 267.  In response, six State and Territory leaders offered to resettle the 267 asylum seekers affected by the decision. Churches have offered sanctuary to those who may be transferred offshore.  The campaign has gathered support from the medical profession, with particular concern for the wellbeing of 37 children born in Australia and 13 alleged rape victims. Doctors at a Brisbane hospital declined to discharge a baby destined for Nauru in an effort to prevent her deportation. She has now been released into community detention

Whether the 267 will be sent back remains to be seen. Immigration minister Putter Dutton has said the government is ‘not going to send children back into harm’s way’, while Prime Minister Malcolm Turnbull has said the government will not ‘imperil the health or security of any individual’.


If you think that something on this page is incorrect, please let us know.

Last updated 2 March 2016