B and B and Minister for Immigration and Multicultural and Indigenous Affairs: Can International Treaties Release Children from Immigration Detention Centres?

The controversial decision of the Full Court of the Family Court in B & B and Minister for Immigration and Multicultural and Indigenous Affairs1 received substantial media coverage. It had the potential to radically change Australian immigration authorities' approach to children who are considered unlawful non-citizens within the meaning of the Migration Act 1958 (Cth) ('Migration Act')3 and who, since their arrival, have been detained in immigration detention centres. This case note focuses on the Full Court's decision. The matter was appealed to the High Court and judgment was delivered on 29 April 2004,4 as summarised at the end of this case note. Whilst the Full Court's decision was overturned and it was held that the Family Court did not have jurisdiction to release children from detention centres, an examination of the Full Court's reasoning is still of value as it provides a legal framework within which to examine Australia's approach to international treaties and provides a challenging example of how Australian domestic law can successfully operate alongside, and comply with, Australia's international obligations.