On day two of the High Court case that will determine whether the Australian government is acting unconstitutionally in paying for asylum seekers to be detained on Nauru, the company charged with running the regional processing centre, Transfield Services, has argued that the contract it signed with the Australian government has very little to do with detaining asylum seekers.

The High Court yesterday finished the second day of its 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.

On the first day, the Australian government argued that although the detention centres on Nauru are “designated” residence for asylum seekers sent there from Australia, the system is not, in fact, detention.

On the second day, Stephen Donaghue, counsel acting for Transfield Services, argued that the contract with the government was not about detaining the approximately 600 asylum seekers on Nauru. He said the contract listed programs and activities such as educational programs, recreation programs, and excursions that Transfield was required to offer to asylum seekers, but it did not specify detention.

“The Transfield contract does not in its terms even purport to require Transfield to provide any services in Nauru that would result in detention, unless that detention is authorised not by law of the Commonwealth but by law of Nauru.”

“When one looks at the Transfield contract it is clear that the overwhelming majority of services provided by Transfield, on any view of it, do not contribute or cause to detention, and insofar as there are a small number of obligations that might be said to have that effect they are, on analysis, doing more than responding to whatever the legal requirements of Nauru happen to be from time to time.”

Donaghue said the contract provided support for people transferred to Nauru but was not calling for detention.

“In our submission, the true characterisation of what is occurring in this contract is that the Commonwealth has contracted with Transfield to provide services in a context where, depending on what the government of Nauru chooses to do, it may or may not be detention, but that either way there will be a range of services that need to be provided to transferees.”

Chief Justice Robert French asked whether the contract gave the effect to detention arrangements in a physical sense, in that Transfield provides perimeter fences, lighting, and security officers. Donaghue said fencing was there to maintain a safe environment in the centre.

“Yes, perimeter fences, checks on — yes, it does all of those things, although the perimeter fence, in our submission, is not at least completely characterised as giving effect to detention, it also gives effect to security within the centre itself in terms of preventing people from entering rather than just preventing people from leaving and that is, we submit, an important function in terms of maintaining a safe environment within the centre.”

Donaghue said that while the Australian government has significant involvement in the regional processing scheme, the facts do no show that it is the Australian government’s involvement that causes detention to occur.

“[The contract] is nothing more than an obligation to take reasonable steps to do whatever Nauruan visas from time to time require and if as now seems to be the case those visas will not require residents at a centre, then the contract does not require any enforcement of residents at the centre.”

Counsel for the asylum seeker, Craig Lenehan, said the practical effect of the arrangements with the Transfield contract necessarily led to detention.

On Monday, Immigration Minister Peter Dutton denied that the Nauruan government’s decision to make the detention centres “open centre”,  under which detainees can come and go into the community when they wish, was timed to give the Commonwealth government a new argument for the High Court case this week.

“The Narauan Government now has made a decision that they will have that open centre arrangement 24 hours a day. So it’s worked progressively to the announcement today. So it’s not just an announcement 48 hours, as you say, before a court case,” Dutton said on Monday.

But Crikey this week revealed that since late last week the Australian government had been planning to use the argument of Nauru’s new “open centre” arrangement 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.

In light of the evidence exposed by Crikey, in a press conference today, Dutton refused to repeat his original claim:

“In relation to the specific question about the context of the High Court, I just don’t have any comment to make … In two interviews I have commented in relation to this matter. I made comments in relation to this matter before it went to the High Court, bearing in mind it has been in the High Court and there will be a decision handed down in due course. That is the comment I would make today.”

The High Court has reserved its judgment.

Peter Fray

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