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Pro Bono: How offshore processing was scuttled

Every Issue

Cite as: December 2011 85(12) LIJ, p.74

The untold story behind the M70 High Court decision focuses on teamwork and dedication.

It took only 25 days between a call for help and the resolution by the High Court of Australia of a significant legal and political issue fundamentally affecting the future of asylum seekers arriving on Australian shores.

On Saturday, 6 August 2011 a group of asylum seekers on Christmas Island were told they would be sent to Malaysia in two days. They were to be the first people removed under the so-called “Malaysia solution” under which Australia would send 800 asylum seekers to Malaysia and accept 4000 refugees from Malaysia for resettlement in Australia. One of the asylum seekers – the man who would later become Plaintiff M70 – asked for legal assistance for himself and his fellow detainees.

The immigration officers at Christmas Island tried to put him in contact with Legal Aid’s on-call solicitors. One call was to Simon Jackson, a solicitor in the ACT. He was at the gym at the time and did not answer his phone. When he received the message and called back, he wondered if he had been the subject of a prank call as he was put through to a person speaking a foreign language. However, Mr Jackson persisted and realised the matter was urgent and could not wait until Monday.

After making some inquiries he called the executive director of the Refugee and Immigration Legal Centre (RILC), David Manne. He was at home cooking for his family, but fortunately answered his mobile. Mr Manne quickly re-assembled the team that had successfully brought the M61 proceedings in the High Court in 2010:1 Debbie Mortimer SC, Richard Niall SC and Allens Arthur Robinson. Around 8pm the next evening that team, assisted by four hard-working counsel (Craig Lenehan, Kris Walker, Liz Bennett and Matthew Albert) obtained a 24-hour interim injunction from Justice Hayne in the High Court.

The interim injunction was extended on Monday, 8 August 2011 until judgment was delivered. The proceedings were heard by the Full Court two weeks later on 22–23 August and, just over a week later, on 31 August 2011, the Full Court delivered judgment in favour of the asylum seekers.2

The 25 days between that first call from Christmas Island and the Full Court’s judgment was a period of intense activity for everyone involved in the proceedings. The successful outcome was primarily the result of the hard work of RILC and the asylum seekers’ lawyers over those 25 days. It was also, however, based on the experience which members of the team had developed over many years acting pro bono for asylum seekers.

Earlier this year RILC, Richard Niall SC and Allens Arthur Robinson had brought High Court proceedings known as M54, which became the precursor to M70. M54 concerned a mother and her 4-year-old son who arrived in Australia by boat in May. The father had arrived earlier and had been recognised as someone to whom Australia owed protection obligations. Notwithstanding this fact, the mother and son were told that they would be sent to a third country – presumed to be Malaysia – from which it was likely that they would never be able to rejoin the father. These proceedings were discontinued after the government announced that the Malaysia deal would no longer apply to those who arrived after the announcement of that deal was made, but would only apply to those who arrived after the signing of that arrangement. The work on M54 was directly relevant to some of the issues raised in M70, and was particularly helpful in preparing legal and factual arguments at very short notice for the interlocutory injunctions.

The immediate effect of the High Court’s decision in M70 is that hundreds of asylum seekers will not be sent to Malaysia and will have their claims processed in Australia. The long-term effects of the High Court’s decision remain to be seen; however, the federal government’s recent attempt to allow offshore processing has been scuttled for perhaps the duration of the present government.

One of the chief motivators for lawyers who engage in pro bono work is to ensure that the protection offered by the rule of law is available to even the most vulnerable members of society. There can be few people in our society more vulnerable than asylum seekers who arrive in Australia with little or nothing and who then face imminent removal to a country in which they would have very limited rights and in which they fear persecution. There are many in the legal profession committed to helping asylum seekers obtain the protection to which they are legally entitled, but which would be out of reach without pro bono assistance. The proceedings in M61, M54 and M70 are just three of a vast number of such cases.

MALCOLM STEPHENS is a partner, CLAIRE FORSTER is a senior associate and MITCH RILEY is a lawyer with Allens Arthur Robinson.

1. Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14; [2010] HCA 41.

2. Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32.

Looking to help?

To help lawyers and firms become involved in pro bono work – legal services and otherwise – the LIJ profiles a community group and its needs each month.

Starlight Children’s Foundation

Contact person: Clare Bailey


Location: Melbourne

Starlight’s mission is to brighten the lives of all seriously ill and hospitalised children and their families throughout Australia. This is achieved through providing entertainment both in and out of hospital and the granting of wishes.

Current needs of group

Starlight Express Rooms use music in a wide range of forms – on Starlight TV, in activities with children (e.g. recording a song) and with visiting artists. This project would consider these uses and the copyright requirements associated with each, including ways for us to comply with copyright. It will be based in our offices in East Melbourne.


See for more information on skilled volunteering opportunities. For more information about volunteering in general see and


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