Thursday, 4 February 2016

High Court judgment enables Australian Government to wash its hands of asylum seekers' fate


Today the High Court held, by majority, that the plaintiff was not entitled to a declaration that the conduct of the first and second defendants in relation to the plaintiff's past detention at the Nauru Regional Processing Centre ("the Centre") was unlawful. The majority of the Court held that s 198AHA of the Migration Act 1958 (Cth) ("the Act") authorised the Commonwealth's participation, to the extent that the Commonwealth did participate, in the plaintiff's detention.

The plaintiff is a Bangladeshi national who was an "unauthorised maritime arrival" as defined by s 5AA of the Act upon entering Australia's migration zone. She was detained by officers of the second defendant and taken to Nauru pursuant to s 198AD(2) of the Act. Nauru is a country designated by the first defendant as a "regional processing country" under s 198AB(1) of the Act.

On 3 August 2013, the Commonwealth and Nauru entered into an arrangement relating to persons who have travelled irregularly by sea to Australia and who Australian law authorises to be transferred to Nauru ("the second MOU"). By the second MOU and administrative arrangements entered into in support of the second MOU (including arrangements for the establishment and operation of the Centre) ("the Administrative Arrangements"), Nauru undertook to allow transferees to remain on its territory whilst the transferees' claims to refugee status were processed. The Commonwealth was to bear the costs associated with the second MOU. Since March 2014, the third defendant has been a service provider at the Centre pursuant to a contract with the Commonwealth to provide "garrison and welfare services" ("the Transfield Contract").

Section 198AHA applies if the Commonwealth enters into an arrangement with a person or body in relation to the regional processing functions of a country. Sub-section (2) provides, in summary, that the Commonwealth may take any action, and make payments, in relation to the arrangement or the regional processing functions of the country, or do anything incidental or conducive to taking such actions or making such payments. The plaintiff brought proceedings in the original jurisdiction of the High Court seeking, amongst other things, a declaration that the Commonwealth's conduct (summarised as the imposition, enforcement or procurement of constraints upon the plaintiff's liberty, including her detention, or the Commonwealth's entry into contracts in connection with those constraints, or the Commonwealth having effective control over those constraints) was unlawful by reason that such conduct was not authorised by any valid law of the Commonwealth.

The Court held, by majority, that the plaintiff was not entitled to the declaration sought. The conduct of the Commonwealth in signing the second MOU with Nauru was authorised by s 61 of the Constitution. The Court further held that the conduct of the Commonwealth in giving effect to the second MOU (including by entry into the Administrative Arrangements and the Transfield Contract) was authorised by 
s 198AHA of the Act, which is a valid law of the Commonwealth.

* This statement is not intended to be a substitute for the reasons of the High Court or to be used in any later consideration of the Court's reasons.

Transcript of full judgement can be found here


George Williams, Professor of Law at the University of NSW, writing in The Sydney Morning Herald on 3 February 2016:

The result was that the federal government has the power to detain people who come to our shores claiming to be a refugee. It also has the power to send those people to other countries without first determining whether their claims are correct.

Once removed, their fate is put beyond Australian law and the oversight of our courts. As Chief Justice French and Justices Kiefel​ and Nettle stated, once removed from Australia, the plaintiff is 'detained in custody under the laws of Nauru, administered by the Executive government of Nauru'.

This follows from the fact that Australian courts do not rule on what occurs within another sovereign state. This is true even if that state, as is the case with Nauru, is beholden to Australia, and has a dubious record of upholding the rule of law within its own borders. In such a case, asylum seekers can find themselves removed from Australia to what is in effect a legal black hole.

These findings of a majority of the High Court put beyond doubt the capacity of the Commonwealth to continue its offshore detention policies in Nauru.

What is striking is just how few checks now apply to these policies. There is no requirement that children are well treated, or that their best interests are safeguarded. There is also no need for asylum seekers to be treated fairly, such as by having their claims promptly and properly assessed.

By sending them to Nauru, the law enables Australia to wash its hands of such matters.

I note that the High Court ordered the Bangladeshi woman "M68" to pay the Federal Government's legal costs in this case, so not only will she and her infant be returning to an island nation of only 21 km² whose income appears to be derived in part from acting as an open-air gaol, she will go back burdened with a debt she can not possibly pay.

1 comment:

Anonymous said...

And in so doing the High Court of Australia relives and re -enacts the colonial fantasy of transportation upon which this country itself was built in the 1700s.