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Feb 3, 2016

Hundreds of asylum seekers set to return to Nauru after High Court sides with govt

Asylum seekers had challenged the constitutionality of offshore immigration detention, but the High Court says the Nauru camps are perfectly legal.


Up to 267 asylum seekers could be sent back to Nauru from Australia in a matter of days after the High Court ruled in favour of the Australian government over a challenge to Commonwealth funding for offshore detention centres.

The case centred around a Bangladeshi asylum seeker fighting against being returned to the Nauru detention centre. Her boat was intercepted by Border Force in October 2013, and she was detained on Christmas Island and Nauru before being transferred to Brisbane for medical treatment in August 2014, where she gave birth to a daughter.

The Human Rights Law Centre, acting on behalf of the woman, sought to prevent her return to Nauru and challenged whether it was 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.

Now 267 people, including 37 babies and 54 other children, could be sent back to Nauru within three days as a result of the decision.

The High Court, by majority, found that signing a memorandum of understanding with Nauru to bear the costs of holding and processing asylum seekers in detention in Nauru was authorised under section 61 of the constitution, and that the Transfield Services contract for services on Nauru was authorised under the Migration Act. The judgment came down to a 6-1 majority, with only Justice Michelle Gordon dissenting.

The government’s hasty move in June 2015 to pass a law to ensure that it’s offshore detention policy was legal appears to have paid off. Justice Stephen Gageler pointed out that, without the amendment to the Migration Act in 2015, the government would have been acting beyond its power by detaining the asylum seeker in offshore detention to retrospectively make her detention legal.

“I consider the plaintiff’s central claim (that the Commonwealth and the Minister acted beyond the executive power of the Commonwealth by procuring and enforcing her detention at the Regional Processing Centre between 24 March 2014 and 2 August 2014) to have been well-founded until 30 June 2015, when s 198AHA was inserted with retrospective effect.”

The government had argued its case against the challenge based on the fact that the government of Nauru, one week before the hearing, announced it would make its detention centres in Nauru “open centres”, with asylum seekers free to come and go, 24 hours a day, seven days a week, and would quickly process the outstanding 600 asylum seeker claims in the next week.

Although the “open centre” arrangement is effectively in name only — with asylum seekers still required to live in detention centres and restrictions reportedly being placed on what they can take in and out of the centres — the Australian government was clearly relying on this new open centre arrangement as part of its argument in the High Court. And as for processing those 600 outstanding asylum seeker claims, at the end of December last year there were still 537 people in “open detention” on Nauru.

Last year Crikey revealed that while the government was playing dumb about the change to the detention centre arrangements and insisting it had only become aware of the public announcement given by the Naruan government on October 2, an internal document from the DIBP stated that on October 1 the Australian government had approached the High Court to inform the court about the Nauruan government’s “decision to expand the open centre arrangements”.

Immigration Minister Peter Dutton is facing pressure to intervene and stop the children in particular from being sent back to Nauru. The government is expected to comment later in the day, but on ABC’s Lateline program last night, the minister said it was still likely that the 267 people in Australia will be sent back to Nauru. In the case of a five-year-old boy who was allegedly raped on Nauru, Dutton said that the government would consider medical advice on whether he should be returned.

Shadow attorney-general Mark Dreyfus said that when Labor re-established offshore detention, it was never intended that asylum seekers would be left to “languish” in centres, but he stopped short of calling for an end to offshore detention.


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16 thoughts on “Hundreds of asylum seekers set to return to Nauru after High Court sides with govt

  1. Buddy

    Oh goody its ‘ legal’ to establish gulags in foreign lands that have been shown to cause harm and trauma to the poor souls who sought our protection. This must be a proud day for Australia! Not only have we stopped the boats and the drownings at sea we’ve managed to start a new game with refugees lives called ‘ die in that hellhole or go home’ But hey.. no more drowned people. The rank stench of hypocrisy from this government makes my eyes weep

  2. Nick Petroulias

    It’s time to remove that foreigner from the UK from section 61 of the constitution. And every other bit where she’s referenced, too.

  3. Norman Hanscombe

    It must be disappointing for you and your Fellow Travelers to find the Judges haven’t accepted your quaint ‘interpretations’ of Justice?
    If only the Crikey Commissariat Censor had more control of the Judiciary it would be more enjoyable for you, wouldn’t it.

  4. Jaybuoy

    Meanwhile back at the High Court..

    Once it is understood that it was Nauru that detained the plaintiff, and that the Commonwealth did not and could not compel or authorise Nauru to make or enforce the laws that required that the plaintiff be detained, it is clear that the Commonwealth did not itself detain the plaintiff……..”I’ve a feeling we’re not in Kansas anymore.”

  5. AR

    And here is the problem, plain & simple “Shadow attorney-general Mark Dreyfus … stopped short of calling for an end to offshore detention.
    Isn’t bipartisanship wunnerful?

  6. Jaybuoy

    And a bit more fantasy…

    Clearly the Commonwealth sought the assistance of Nauru with respect to the processing of claims by persons such as the plaintiff. It may be accepted that the Commonwealth was aware that Nauru required the plaintiff to be detained. In order to obtain Nauru’s agreement to receive the plaintiff, the Commonwealth funded the Centre and the services provided there in accordance with the Administrative Arrangements. The Commonwealth concedes the causal connection between its conduct and the plaintiff’s detention. It may be accepted that its involvement was materially supportive, if not a necessary condition, of Nauru’s physical capacity to detain the plaintiff. But, for the reasons given above, it cannot be said that the Commonwealth thereby authorised or controlled the plaintiff’s detention….

  7. zut alors

    There’s no more doubt: by a majority, we Australians really are a nation of pricks. The High Court made it official this morning. How bizarre to see the pollies traipsing into church yesterday for the beginning of parliamentary year service. Hypocrites, gather ye all.

    They are ever ready to throw 91 minors back into the cage with abusers & paed0philes on Nauru – but, hey, at least we didn’t let those poor littlies drown! Apparently a slow, tortured demise/death is more acceptable & polls better with Oz voters.

    We continue to support gutless politicians who trash our ethos of a fair go.

  8. AnisaS

    I heard one of the lawyers say this morning, before the ruling, that the legalities of this issues were complex but the morality was simple. The ruling similarly shows us that legality and morality are not necessarily correlated.

  9. CML

    Back decades ago when I did a year of law studies at Uni while studying a management degree…I well remember our law lecturer’s opening remark at our very first lecture.
    He said: “The first thing you all need to get into your heads is that the Law has nothing to do with morality or justice”.
    How right he was/is!!

  10. Norman Hanscombe

    When he said that, anonymous CML, I suspect he used a somewhat more sophisticated language, and I’m sure the more informed students gained much more from his lectures than did those on whom his subtleties were wasted.

  11. JKUU

    Another day of shame (sigh).

  12. David Hand

    It is clear what middle Australia wants and that is control of our borders. Zut may be ashamed to be Australian but that’s who we are and most want control of our borders. Just witness the slow motion train wreck that is underway in Germany and Sweden to understand why we want it. Half a million single Muslim men washing around in the modern tolerant German society spells doom and we ain’t seen nothing yet.

    So our government legislates to deliver what most Australians want and the refugee activist legal fraternity work hard to get around it. I respect them for their efforts and it’s great PR for the refugee lobby.

    Their main tactic has been to get asylum seekers onto Australian soil by whatever means they can because arrival on Australian soil triggers legal obligations by the government towards any migrant who can get here. This is what was behind all the fuss in October 2015 regarding the woman seeking an abortion. By the way, does anyone know if she’s had it yet or was the baby born? My money is on a nice bouncing baby because such publicity would be a huge endorsement of the government’s actions back then. The government won’t tell us because of privacy issues and the refugee lobby won’t tell us because they hide facts they don’t like.

    When it comes down to it, refugee advocates show an immature view of the world we live in, not much different from a beauty pageant contestant being in favour of world peace.

    What will Burnside et al have to say when we see distressing images of Pakistani and Iranian migrants being arrested and deported from Sweden? I expect tears of outrage and the usual diatribes about gulags, prisons, racism, hypocrisy, “ashamed to be a westerner”, ashamed to be white” etc etc blah blah blah.

    I’ve had to put up with my adolescent kids and so I guess I can put up with the refugee activist lobby.

  13. En Quiry

    The Australian (and common law) system of law means that the High Court can only decide on what’s put in front of it by the legal teams of both sides. It can’t be inquisitorial on its own initiative. It can’t tell the lawyers what arguments to fill those massive trolleys full of dead trees with. Therefore the case was only as good as the arguments. The Commonwealth arguments were absurd – that the centre on Nauru is not Australia’s doing. So were the other side that we depend on Nauru to run it properly, only it didn’t. If the amendment was at issue, the constitution gives the Commonwealth very broad power to legislate. Hardly surprising that refugee advocates were saying afterwards that it would have been difficult to win. Hardly surprising that the High Court didn’t take the terrific opportunity that was offered to it to shackle the international operations of the Commonwealth and narrow the independence that has been so hard won over more than a century of High Court cases. The fact remains that if the Commonwealth has the power to decide what happens on Nauru, then it has options as to what it does with that power. The Human Rights Commissioner Gillian Triggs has stated that a case-by-case assessment is essential.

  14. Norman Hanscombe

    So anonymous En Quiry, the result didn’t suit your prejudices therefore it was the fault of the lawyers on both sides, which is very even-handed of you (apart of course for your lopsided pretence at being even-handed with your asinine ‘argument) On the other hand, it has to be conceded that you didn’t blame Uncle Tom Cobley or Attila the Hun.
    Australian Citizens should be grateful you and your ilk aren’t running the Nation, even if the people smugglers would be delighted were that the case.
    Over to you, Crikey Commissariat Censor.

  15. En Quiry

    There there, Norman Hanscombe. Nobody says you have to check your assumptions.

  16. Marilyn Shepherd

    I love the cowardice of men like David Hand and Norman Handscum, I think they are the same man, who are terrified of babies.


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