High court decision no blank cheque

High court decisions are not football matches: it’s not always clear who has won and by how much.

The full bench’s decision in M68 does uphold the government’s right to send asylum seekers to foreign countries to be detained. The court found the action is lawful under the constitution and empowered by the extraordinary breadth of a newly inserted provision in the Migration Act.

But the court’s decision is no blank cheque. All seven judges explicitly ruled that the commonwealth can’t simply detain people offshore for as long as it likes. 

Nor can it ask a foreign government to incarcerate people indefinitely on its behalf.

In a forecast of a likely area of future legal challenge, the joint decision from French CJ, Kiefel and Nettle JJ said explicitly that “the commonwealth may only participate in that [offshore processing] regime if, and for so long as, it serves the purpose of processing”.

“The commonwealth is not authorised ... to support an offshore detention regime which is not reasonably necessary to achieve that purpose.”