High Court Test Case Hearing Begins: Constitutional Powers and Offshore Asylum Seeker Detention

Thursday 8 October 2015 @ 10.49 a.m. | Judiciary, Legal Profession & Procedure | Legal Research | Immigration

Recently the ABC PM program reported that the Federal Government is facing a new legal challenge to its offshore detention and processing policy, with lawyers acting for more than 200 asylum seekers set to argue that Australia doesn't have the legal power to fund or facilitate detention centres on foreign soil, namely, detention centres like those in Nauru and Manus Island.

The High Court of Australia has agreed to hear the matter and hearings began yesterday (Wed. 7 October 2015 - and will run to Thurs 8 October 2015 - see Plaintiff M68/2015 v Minister for Immigration and Border Protection & Ors [2015] HCATrans 255 (7 October 2015)).  In the hearings the Full Bench of the High Court will hear the challenge to the lawfulness of the Federal Government’s role in offshore detention.

Background to the Proceedings

The case was commenced in May 2015 and is being run on behalf of a woman asylum seeker from Bangladesh who was brought to Australia as a result of a serious deterioration in her health during the late stages of her pregnancy, and who is now facing return to the detention centre on Nauru with her ten month old baby.

The woman's case is the lead case and is linked to a series of challenges being run on behalf of more than 200 people in similar situations who have been brought to Australia from the detention centres on Nauru and Manus Island. The 200 includes men subjected to serious violence on Manus Island and women who it is alleged have been sexually assaulted on Nauru and over 50 children, including 23 babies.

Nature of the Remedies being Sought

The asylum seekers are seeking to obtain orders from the High Court which:

  • prevent their return to detention on Nauru;
  • declare that their detention on Nauru would be unlawful; and
  • restrain the Government from continuing to make payments to Transfield Services under the current arrangements for running the detention centres.

Reasons why the Case Could be an Important Precedent

The case has the potential to become an important precedent in the law relating to migration and asylum seeker matters as it challenges the extent of the government's detention powers and the funding of such detention.

The Human Rights Law Centre’s (the HRLC) Director of Legal Advocacy, Daniel Webb, who is part of the legal team in the case, has said:

". . . the case raises important and untested questions around the legality of Australia’s role in operating and funding offshore detention centres".

The case raises "important and untested legal questions" about whether the Australian Government has the necessary power to detain, or cause the detention of, asylum seekers in foreign countries and to spend public money for that purpose. As Mr Webb further says:

“Australia should not be indefinitely warehousing people on remote islands. A vulnerable mother with a ten month old child should not face imminent return to a place that we know is harmful and unsafe, particularly for women and children, . . .”

While it is recognised that the Federal Government has the power to "detain asylum seekers in Australia" and to remove them from Australia it is not certain that the government  has the authority to lock them up on an indefinite basis as it is currently doing in offshore facilities. Again quoting Mr Webb:

“We know the Government has powers to detain asylum seekers in Australia and also has powers to remove asylum seekers from Australia. But the question is whether the Government has the authority to then lock them up indefinitely in the territories of other sovereign nations or to effectively procure that detention, . . .”

Another matter to be raised in the case is the basis for the Government’s funding of offshore detention. In particular it is set to examine the contractual arrangements under which the Federal Government now pays Transfield Services  a reported $1.22 bn to provide services inside the Nauru and Manus Detention Centres. On this Mr Webb says:

“It’s a truly extraordinary thing for the Government to be spending billions of dollars indefinitely detaining people in other countries. We know it’s harmful. We know it’s a breach of international law. We also know it’s also incredibly expensive. This case will examine whether that expenditure is lawful. . . In recent cases the High Court has said that, apart from some limited exceptions, legislative authority is required before the Government can spend public money on major policy projects. This case asks whether the necessary authority to spend on offshore detention exists, . . .”

Retrospective Legal Changes

It should be noted that when the HRLC commenced the case in May 2015, it argued that there ". . . was no Australian law which gave the government the necessary power to fund and facilitate the current offshore detention arrangements".

An argument to which the Federal Government then hastily responded by introducing, with the support of the opposition, the Migration Amendment (Regional Processing Arrangements) Act 2015 (No. 104 of 2015) (Cth) which states as its object the provision of statutory authority which applies where the Commonwealth has entered into an arrangement with another country with respect to the regional processing functions of that country. The legislation seeks to retrospectively authorise three years of offshore detention and the expenditure of several billion dollars for that purpose. The law passed through the Parliament in June 2015 within two days of it being announced. While making the case harder for the HRLC, Mr Webb says, the legislation does not defeat the case, because:

“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, . . .”

Nauru to Transit to an ‘open centre’

Another aspect which has changed since the case was commenced in May 2015 is the recent announcement that the Nauru detention facility will become an ‘open centre’, an interesting development which as HRLC points out, " . . . commence(s) more than three years after the re-opening of the detention centre but just two days before the High Court examines Australia’s role in it".

As HRLC further points out:

". . .increased freedom of movement would be a welcome development but the fundamental problems with the offshore arrangements remain. . . . 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, . . . ”

What Next

The legal team running the case is reported by HRLC as including barristers Ron Merkel QC, Richard Niall QC, Craig Lenehan, David Hume and Rachel Mansted with assistance also being provided by the Darwin Asylum Seeker Support and Advocacy Network. The case looks like being a very substantive one and it will be very interesting to see what the current High Court decides with respect to the issue of government authority.

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