Solicitor-General of Australia Justin Gleeson

The Australian government has argued that although the detention centres on Nauru are the “designated” residence for asylum seekers sent there by the Australian government, the system is not, in fact, detention.

Yesterday the High Court sat for the first of the two days of hearings into the case of a Bangladeshi asylum seeker fighting against being returned to the Nauru detention centre. 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.

Crikey revealed yesterday that since late last week the Australian government has been planning to use the argument of Nauru’s new “open centre” arrangement, under which detainees can come and go into the community when they wish, in its defence. Curiously, the Australian government sought to make the “open centre” arrangement key to its High Court case before the Nauruan government announced it was putting the legislation before its parliament. How odd.

The Solicitor-General of Australia, Justin Gleeson, yesterday made the exact argument that if the woman were to be returned to Nauru, she would no longer be forced to stay in the detention centre

“The visa condition now requires residence in the centre but does not contain any restraints on liberty. You now know it is a 24-hour open access centre. Now, on no meaningful view could that be described as detention,” Gleeson said.

Chief Justice Robert French asked why being required to reside in a place would not be considered detention, but Gleeson said asylum seekers would not be forced to stay in the centre:

“It simply means that so far as you have a residence, now that the ‘remain’ conditions have gone, to say you must reside there it simply says, ‘That is your designated place of residence in Nauru.’ Because it is said to be 24-hour open access, come and go, it does not mean you have to return there at night. You may, but you do not have to sleep there at night.”

Gleeson said that the woman could leave the island as she wished, but that it was ultimately a matter for the Nauruan government:

“It may be that the permission has not been expanded to allow her to leave the island, so if she wished to leave the island she would face the other laws of Nauru … But as to what those laws are, we do not currently know whether there is in fact a prohibition upon leaving the island, should there be somewhere else she wishes to go. It has always been the position that she could voluntarily leave the island.”

The Australian government is arguing that under the memorandum of understanding with Nauru, there is no obligation for asylum seekers sent from Australia to Nauru to be detained, and that the circumstances in the detention facilities fall under Nauruan law. Counsel acting for the asylum seeker, Ron Merkel, argued yesterday that the way the centre operated, by Transfield under the guidance of the Australian government, meant Australia had a say in the detention of asylum seekers in Nauru:

“Whether or not the Commonwealth requested it or it was in the interests of the Commonwealth to have this detention is not to the point. The question is whether the Commonwealth Executive is in fact conducting a detention facility in another country.

“When one goes down to the day-to-day operation of the centre as a detention centre, that joint endeavour becomes an Australian endeavour. So at the top level we accept Nauru’s sovereignty and Nauru’s laws govern the centre and those laws impose the requirement of detention.”

Many of the roles in the centre, including operational manager and program co-ordinator, are appointed by the government of Australia, Merkel pointed out to the court.

“So that is significant and it helps explain the Transfield contract which is managed entirely by — not the program co-ordinator but by the Commonwealth, but the program co-ordinator is one part of that co-ordinator. ‘Service provider(s)’ are the entities contracted to provide services, and they have a role because departure from the centre can be given — permission can be given by a service provider.”

Merkel has argued that the operational manager makes the rules of the centre, including searching people coming into and going out of the centre, and that asylum seekers cannot leave the centre without approval from an authorised officer or the operational manager. The $3000 visa paid by the Australian government to Nauru on behalf of the asylum seeker to reside in Nauru is effectively putting them into detention, he said.

“The application for a visa is an application for the plaintiff to be taken into detention because the conditions of the visa are that she would be in detention. So, when the application is made under the regulation, it is an application by the Australian government to the officer to the Nauruan government that the plaintiff be taken to Nauru on conditions that will require her detention … the detention centre was constructed and is operated by the Commonwealth, so it is effectively being taken into Australian detention.”

The second and final day of hearings is underway today.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey