Refugees challenge offshore detention in High Court

Issue 
The High Court of Australia.

On May 14 a group of 10 asylum seekers and their families began a case in the High Court challenging the legality of the government’s policy of offshore detention. The Human Rights Law Centre is running the case on behalf of the asylum seekers.

The Centre’s Director of Legal Advocacy Daniel Webb, who is part of the legal team representing the families, said the group has been temporarily returned to Australia but are facing imminent removal back to Nauru.

“We are helping a very vulnerable group of people — including people with serious medical issues, families with young children and even one family with a newborn baby — who have asked us to take urgent steps to stop them being sent back to detention on Nauru,” he said.

“They have all described conditions inside the centre as abhorrent. Their time detained on Nauru has clearly taken a toll on them and on their children. The United Nations, the Australian Human Rights Commission and the recent Moss review all make clear the Nauru detention centre is unsafe and unsuitable for children and families.

The asylum seekers are asking the High Court to rule on whether the government has the power to detain, or cause others to detain, asylum seekers in foreign countries and to spend public money for that purpose.

“Liberty is a fundamental human right,” Webb said. “The government needs clear legislative authority to deprive people of it or to enter into contracts and other arrangements that procure detention. One of the questions at the heart of this case is whether any such authority exists under any Australian law.

“We know the government has the power 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.”

The other issue in this case involves the legality of the government’s funding of offshore detention. The government reportedly pays Transfield Services $1.22 billion a year to provide services inside the Nauru and Manus centres. The asylum seekers will ask the court to consider whether these contractual arrangements are lawful.

Webb said: “It is 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 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.”

If the government wants to spend more than $1 billion on asylum seekers, there are more effective measures to spend it on, such as developing safe pathways to protection for refugees.

Webb said: “We’re currently spending over $1 billion a year detaining asylum seekers offshore. That’s more than five times the United Nations refugee agency’s entire budget for all of South-East Asia.

“Instead of using costly and cruel measures to stop the boats, Australia should be working with the United Nations to address why people get on them in the first place. We should be using our resources and our influence to develop safe pathways to protection for people who need to seek it.”

The asylum seekers are asking the High Court to:
- 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.

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