Immigration detention in Australia - an indefinite future for indefinite detention: Plaintiff M76's case

Plaintiff M76/2013 v Minister For Immigration, Multicultural Affairs and Citizenship and Ors' (,Plaintiff M76') dealt with the issue of indefinite detention of unlawful non-citizens. This case presented the High Court with the opportunity to reopen and re-examine the correctness of AlKateb v Godwin ('AI-Kateb'), which stands as authority for the permissibility of indefinite detention in Australia. The decision in AlKateb has been the subject of much academic debate and thus Plaintiff M76 was viewed with anticipation. The Court, likely to the disappointment of many academics and practitioners, largely sidestepped an examination of Al-Kateb 's correctness, demonstrating a reluctance in most serving High Court judges to reopen Al-Kateb. Hayne, Kiefel and Keane JJ confirmed the holding in Al-Kateb, while the remaining four judges avoided deciding on the correctness of the case. In light of the recent decision in Plaintiff S4/2014 v Minister for Immigration and Border Protection ('Plaintiff S4') and the ongoing rapid change in the composition of the High Court Bench, the approach to Al-Kateb may well be different in the future. The future of indefinite detention in this country is, therefore, itself indefinite.