Gageler CJ
Gordon J
Edelman J
Steward J
Gleeson J
Jagot J
Beech-Jones J
2.
provided with a right to enter or reside in either of those countries. No country in the world has an established practice of offering resettlement to persons in Australia who have been convicted of sexual offences against children and the Department had never successfully removed from Australia any person convicted of a sexual offence against a child to a country other than a country which recognised the person as a citizen.
Against that background, on 5 April 2023 the plaintiff commenced a proceeding against the Minister and the Commonwealth of Australia in the original jurisdiction of the High Court under s 75(v) of the Constitution and s 30 of the Judiciary Act 1903 (Cth). The plaintiff claimed in the proceeding that his continuing detention was not authorised by ss 189(1) and 196(1) of the Migration Act. He claimed that to be the result of the proper construction of those provisions. He claimed in the alternative that those provisions contravened Ch III of the Constitution.
By a Further Amended Special Case ("the special case") in the proceeding pursuant to r 27.08 of the High Court Rules 2004 (Cth), the parties agreed on stating questions of law for the consideration of the Full Court of the High Court. The special case was heard by the Full Court on 7 and 8 November 2023. At the hearing, the position of the plaintiff was supported by the Australian Human Rights Commission, the Human Rights Law Centre, and the Kaldor Centre for International Refugee Law, each of which was granted leave to appear amicus curiae.
At the end of the hearing on 8 November 2023, the Full Court made an order stating answers to each of the questions of law stated for its consideration in the special case. The order was announced as having been agreed to by "at least a majority" because two members of the Court (Gleeson and Jagot JJ) did not agree that the Court should make orders without publishing reasons and, in any event, required further time to consider the matter. Having considered the matter, Gleeson and Jagot JJ agree with the order made on 8 November 2023.
The answers to the questions stated in the order made clear that the plaintiff failed in his claim that his continuing detention was not authorised on the proper construction of ss 189(1) and 196(1) of the Migration Act but succeeded in his claim that his continuing detention contravened Ch III of the Constitution with the result that those provisions lacked valid application to him. The answers went on to specify the relief to which the plaintiff was entitled. The relief included a declaration to the effect that his continuing detention had been unlawful since
