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  • The Commonwealth has been substantially involved in establishing and running the immigration detention centre in Nauru.
  • In M68, the High Court upheld the validity of the Commonwealth’s actions, meaning that offshore detention and processing in Nauru can continue.
  • However, the decision was fact specific and some members of the Court set out limits on the Commonwealth’s power to assist with detention that may remain relevant to Manus Island and any future offshore processing schemes.

On 3 February 2016, in Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1, (‘M68’) the High Court upheld the Commonwealth’s securing, funding and participating in the detention of ‘Plaintiff M68’ in Nauru, pursuant to an agreement between the Commonwealth and Nauru. In at least one media story after the decision, the Court was said to have held that detention in both Nauru and Manus Island had been found lawful, and that the Commonwealth has the power to detain people in other countries (Sydney Morning Herald, ‘High Court finds offshore detention lawful’, 3 February 2016). In fact, the Court said nothing about Manus and, while it upheld the Commonwealth’s activities in Nauru, it did not hold that the Commonwealth has an unlimited power to detain overseas. The result is that although processing on Nauru can lawfully continue, the situation in other centres or under other future arrangements has not been conclusively decided.

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