Contribution of expertise on human rights to court processes

The Commission has the power to intervene, with leave of the Court, in proceedings that involve issues of race, sex, age and disability discrimination, human rights issues and equal opportunity in employment. In this period, we made three successful requests to intervene and judgment was handed down in one of the three matters in which we intervened (see the case study below).

In this case study, the Commission was granted leave by the High Court to intervene as amicus curiae and make submissions that indefinite immigration detention was unlawful. While the case was ultimately decided against the plaintiff on factual grounds, it is significant the Court continues to value the legal assistance provided by the Commission. The Commission has been active for many years in arguing against indefinite detention on both legal and policy grounds.

Intervention case study

Plaintiff M47 v Minister for Home Affairs

The plaintiff is a young man, approximately 30 years old, from northwest Africa, who claims to be stateless. He arrived in Australia on a flight from Europe in January 2010 and has been in immigration detention for nine years. He was refused a protection visa but Australia has been unable to identify a country to which he can be removed.

The plaintiff claimed that there was no prospect of him being removed from Australia in the reasonably foreseeable future. On this basis, he claimed that the Migration Act 1958 (Cth) no longer authorised his detention. In order to succeed on this argument, it would be necessary to overturn the 2004 judgment of Al-Kateb v Godwin in which a majority of the High Court held that indefinite immigration detention was not unlawful. Since 2004, some Justices of the High Court have cast doubt on the correctness of the decision, but it remains the current law.

The Commission argued that Al-Kateb had not been correctly decided. In particular, the Commission argued that the power in the Migration Act to detain unlawful non-citizens was limited to detention for the purpose of fulfilling the obligation to remove a non-citizen from Australia as soon as reasonably practicable. If removal was not reasonably practicable in the foreseeable future, detention can no longer reasonably be capable of being seen as necessary for the permitted purpose.

Ultimately, the High Court did not deal with the legal arguments because it was not satisfied that the plaintiff had cooperated fully with the Department of Home Affairs in establishing his identity. As a result, the Court was not prepared to draw the inference that the removal of the plaintiff from Australia was not reasonably practicable in the foreseeable future.

The plaintiff remains in immigration detention. While he was not successful in this case, it remains open to him or to another plaintiff to challenge Al-Kateb again in the future if it can be shown that the point has been reached where the person faces the prospect of indefinite immigration detention.