This case note provides an overview of the key facts and findings of the High Court in Plaintiff M68/2015 v. Minister for Immigration and Border Protection & Ors  HCA 1, and sets out some of the key developments following the case. The plaintiff, an asylum seeker from Bangladesh, had been detained in Nauru at one of Australia’s two regional processing centres before being brought to Australia for medical treatment in 2014. She brought this case against the Australian Minister for Immigration and Border Protection, the Commonwealth of Australia and Transfield Services (Australia) Pty Ltd in an effort to prevent her return to Nauru. The main question in the case was whether the Australian government had the power, either in the form of a statutory or non-statutory executive power, to contract for and control the detention of asylum seekers in the offshore detention centre in Nauru. The majority of the court (French CJ, Kiefel, Nettle, Bell, Gageler and Keane JJ) held – in four separate judgments – that the government did have the necessary legal authority to be involved in the detention of asylum seekers in Nauru, although they were divided about whether the Australian government was actually in control of this detention and the basis on which it was lawful. Gordon J was in dissent, finding that the government had significant control over the detention of the plaintiff and had acted beyond its power in doing so.
Kaldors hope new centre will change refugee conversation
Leading arts philanthropists Andrew Kaldor and his wife Renata both arrived in Australia as refugees, in circumstances not dissimilar to the asylum seekers of today. Mr Kaldor's family had escaped Hungary with the help of people smugglers and forged documents, while his Prague-born wife and her family were fleeing the Communist takeover in Czechoslovakia, now known as the Czech Republic.
Both families arrived in Australia in the late 1940s with little money and no connections, hoping to build a better life for themselves.
''The attitude of the Australians back then was a welcoming one and an accepting one,'' Mr Kaldor said. ''They acknowledged that these people were making a contribution to society. They were not a burden. Today, these people are seen as threats and a cost to society.''
Uneasy with the attitude towards asylum seekers in Australia, the Kaldors have put an undisclosed sum towards creating the world's first academic institution specialising in international refugee law.
Headed by Professor Jane McAdam, the centre for international refugee law officially opens at the University of NSW on October 30.
''When Tampa happened, refugees started to be demonised,'' Mr Kaldor said.
''They were alleged to be criminals who would throw their children overboard. We knew, having come from a refugee background, that was the wrong characterisation. We became sceptical of Australia's approach and that scepticism has just intensified.
''In the last election we got very frustrated. It was almost a vilification of refugees. We thought something [has] to be done to calm things down.''
Ms Kaldor describes what she was hearing on both sides of politics as being at odds with her own experience. ''Australia is a generous, welcoming country,'' she said.
The pair hope the centre will inspire evidence-based debate and inform both public opinion and political policy.
''We need a calm and reasoned discussion rather than yelling at each other and treating refugees as threats and a net cost to society when all facts show the opposite,'' Mr Kaldor said.
The younger brother of well-known visual arts philanthropist John Kaldor, Mr Kaldor points out that many of Australia's most successful businesses were started by people from a refugee background such as Harry Triguboff, Frank Lowy and the late Richard Pratt. ''If you are going to take the risk and flee and come here in a highly unorthodox and very dangerous way, you are going to be fairly courageous and resourceful,'' he said.
Professor McAdam, a world expert in international law for refugees and asylum seekers, hopes the centre will provide leadership in the asylum seeker debate.
''That has been missing from both sides of politics,'' she said. ''From my perspective, it's about holding governments to account for the international standards that Australia has voluntarily committed to.''
This article was first published in the Sydney Morning Herald, 24 October 2013