The government of Nauru announced on the weekend that the detention centre paid for and contracted out by the Australian government would become a 24-hour, seven-day-a-week “open centre”, with approved asylum seekers allowed to leave the facility and go out into the community.
But what does an “open centre” mean in practice? Are asylum seekers allowed to go where they please? And is this hasty change two days out from a High Court case that directly challenges the government’s offshore detention policy designed to protect the Australian government from a humiliating defeat?
What is the case before the High Court?
On Wednesday the High Court will hear a case that could potentially undo the former Labor government’s arrangement with the government of Nauru to detain asylum seekers who attempted to reach Australia by boat.
The case centres around a woman from Bangladesh who was detained in Nauru after attempting to get to Australia in October 2013. As per the government’s policy for asylum seekers arriving by boat, the woman was sent to Nauru in January last year under an agreement between the governments of Australia and Nauru. In August 2014, she was sent to Brisbane for medical treatment for health issues relating to her pregnancy. She gave birth to the child in December and remains in Australia with the now-10 month old girl. She is due to be sent back to Nauru, pending the outcome of the High Court case.
The Human Rights Law Centre, acting on behalf of the woman, is challenging whether it is constitutional for the government to send people from Australia to a foreign country to be detained in centres funded and, effectively, controlled by the Australian government.
“There are limits in our constitutional system to the power of our government to detain innocent people, and this case examines whether those limits have been exceeded by our government’s funding and active participation in the indefinite detention of men, women, and children on remote islands in other countries,” the Human Rights Law Centre’s director of legal advocacy Daniel Webb told Crikey.
The Australian government, in its submission to the High Court, has argued that the laws of Nauru govern detainees on Nauru, and that as per the rules of the regional processing centre visa — paid for by the Australian government at $3000 per visa — there are conditions around the movement of people granted that visa. The government states that under the visa arrangement, if the government of Nauru makes a positive refugee determination, that asylum seeker can then remain on Nauru but leave the detention centre, or he or she can move to a safe third country (that isn’t Australia). If a case goes the other way, the asylum seeker is to remain in the detention centre until appeals are exhausted and the asylum seeker is removed from Nauru. The government has argued there is nothing to stop asylum seekers leaving voluntarily, and said as of July 13 this year, 81 asylum seekers had left to go to countries other than Australia.
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The Australian government has made the argument that, despite the fact that the detention centre facilities and its security staff — operated by Transfield and Wilson Security — are funded by the Australian government for millions of dollars every year, the detainees are ultimately subject to the laws of Nauru. This is despite the Australian government bringing more than 600 asylum seekers to Australia for medical attention and for other reasons in the time the policy has been in place.
There were already some “open centre” arrangements for some of the centres on Nauru, which allows detainees to leave the centre without an escort five days per week between 9am and 9pm. This is conditional, however, and asylum seekers need to go through an orientation program and get medical clearance before leaving the centre.
How has the Australian government reacted to the court case?
Legislation passed in June with Labor support, gave the government retrospective authority to fund the billions already allocated over the past few years for offshore detention. Australia has had a policy of offshore detention since 2012, but the June legislation made it explicitly clear this was legal. Webb said in a media statement:
“The government repeatedly assures the Australian people that it is acting legally, but a government confident its actions are lawful doesn’t suddenly and retrospectively change the law when its actions are challenged in court.”
How has the Nauru government reacted to the case?
Just two days before the case was due to start, the Nauruan government announced that from today, the “open centre” arrangement already in place would be expanded out to 24 hours a day, seven days a week. The government of Nauru said it would ensure that all detainees were “eligible to participate” in the open centre arrangement.
Will the new open centre make a difference to the case?
Potentially. The legal argument around the case has changed as a result of the legal change, though it is likely that the validity of the new law will still be examined by the High Court, and whether it is appropriate for the executive branch of government to allocate funds for detainment in offshore detention.
The government will also need to argue as to why Nauru being an open detention centre now changes the case. When a case is taken to the High Court, the parties to the case agree on the facts of the case before the hearing, and they pose set legal questions for the High Court to examine. The facts that had been agreed between the two parties did not make reference to Nauru being an open centre. This means the Australian government now needs permission from the High Court to depart from the agreed facts of the case.
The open centre is an important improvement, but does not change the fundamental problem with offshore detention, Webb said in the statement:
“A transition to an open centre would be an important and hard-won improvement, but letting people go for a walk does not resolve the fundamental problems caused by indefinitely warehousing them on a tiny remote island. The men, women and children on Nauru need a real solution — settlement in a safe place where they can rebuild their lives. Instead they’re being left languishing in an environment that is clearly unsafe for women and children.”
In the submission to the court, the HRLC has argued that the idea of an “open centre” does not change the fact that asylum seekers are detained on Nauru or Manus. The woman in the case is still required to live in the detention centre, she would still need permission to leave the centre, and she cannot leave the island, cannot work, and cannot be visited by family members from outside Nauru.
It is also unclear at this point whether the asylum seekers who want to leave the detention centre will still be subject to searches and have restrictions on what they can take in and out of the detention centres, according to Refugee Action Coalition spokesperson Ian Rintoul. He told Crikey that they were subjected to searches coming in and leaving the detention centre, and were unable to take food from the detention centre. They are also limited in the amount of water they are able to take from the detention centre.
Whom will this case affect?
In addition to those already detained on Nauru and Manus Island, there are more than 200 people in Australia who have been brought from Manus and Nauru who are awaiting being sent back to the detention centres depending on the outcome of this case. The outcome of the case will determine not only if they are sent back to offshore detention, but the legality of the offshore detention for the 1577 asylum seekers in Manus or Nauru as of the end of May this year.
What does an ‘open centre’ mean for Nauru?
The safety of asylum seekers in Nauru is already a major concern, even before the open centre arrangement was expanded. Last week ABC’s 7.30 reported asylum seeker women were being raped inside and outside of the detention centre on Nauru. The report stated at least 23 men, women or children said they had been raped or sexually abused in detention or in the community on Nauru.
The Refugee Action Coalition also reports that on Wednesday last week, two refugees returning to their camp were attacked on Nauru by up to 12 local men. Rintoul has said in a media statement that the open centre would not change the safety of asylum seekers on Nauru.
“There is no security in the community or the refugee camps. There is no lighting. The government has simply created camps where single women and young refugees are preyed upon with impunity. The vicious attacks on refugee women in the community and these latest bashings make the ‘open camp’ arrangement a meaningless gesture. The Australian government is trying to avoid elements of the case before the High Court.”
“Some people found to be refugees are just too afraid to leave the detention centre. One Iranian refugee was savagely raped in May while she was in the community as under the open camp arrangement. The whole of Nauru is a dangerous gulag if you are an asylum seeker or a refugee.”
Prime Minister Malcolm Turnbull, who has spent much of his first weeks as prime minister talking about acting on violence against women, was asked about the 7.30 report and said that the Australian government was working with the Nauru government to improve safety for refugees:
“We’re taking a number of steps to work closely with the Nauru government to ensure the safety and security of all the refugees living in that community. We fund the deployment of the AFP officers to support and mentor the Nauru police in their basic investigations; in their policing and dealing with child abuse and sexual assault matters. So we are very committed to this. “