Photo by Marziya Mohammedali
The High Court ruled on February 3 that the federal government has the power to send 267 refugees and asylum seekers to Nauru, with only 72 hours' notice. But a #LetThemStay groundswell across the country is demanding the refugees be allowed to stay -- with snap protests across the country.
The 267 people includes 37 babies — many of whom were born in Australia — and at least 15 women who were allegedly sexually assaulted on Nauru.
The challenge was brought by the Human Rights Law Centre, which alleged the government had illegally detained a Bangladeshi woman on Nauru before she was taken to Australia for medical reasons, where she also gave birth.
Six of the seven judges on the full bench of the High Court found the government had acted within the law. Justice Michelle Gordon was the lone dissenter, finding that the controversial 198AHA of the Migration Act was unconstitutional and the government had acted illegally.
Section 198AHA is the extraordinary piece of legislation that the government — with the support of Labor — passed in June last year, after the challenge had begun, to retrospectively apply the legislation from 2012. This had the effect of making its policy of offshore detention in Nauru legal, while also targeting the court cases that were being brought against it.
While the court found it was legal for the government to use foreign countries to process refugee claims, it said that Australia was not able to act outside its own laws while doing so.
This means, in effect, that the conditions under which people are detained on Nauru is the Australian government's responsibility and blame for those conditions cannot be outsourced to Nauru.
The court also found the government can only detain asylum seekers on Nauru for as long as is reasonably necessary to process their claims.
The reality is that many asylum seekers have spent more than three years in detention — offshore and in Australia — waiting for their claims to be processed. It is hard to see the difference between long-term or indefinite detention and the government taking the time reasonably necessary to process asylum seekers' claims.
While the case was being heard, the Nauru government made the extraordinary announcement that the detention centre had suddenly been opened. This allowed the Australian government to argue it was not detaining anyone, as people are free to come and go from the centre as they please, and thus the plaintiff was not being sent back to detention.
However the court rejected this argument, saying the situation on Nauru could change at any time and the Nauruan government could even close the centre whenever it chose.
Although the detention centre is now “open”, the island itself is effectively an open-air prison with a radius of 22km. Refugees are regularly abused and have been sexually assaulted by locals when they leave the detention centre. An open prison could actually be more dangerous than the closed version.
'Hell on Earth'
Nauru has been described by those detained there in letters, poems and pictures “as hell on earth”.
The centre lacks proper medical facilities for asylum seekers, diseases are rampant and there is little fresh water. People are crammed into tents for years with no privacy or security and suffer regular abuse from guards and locals.
The widely-known case of Abyan shows the reality for women detained on Nauru. She was raped, pleaded for an abortion, was bought to Australia for the abortion and then sent back before it happened after she asked for counselling.
Many women fear going back to the centre, believing they will be assaulted again. A Tamil woman who was bought to Australia after she was allegedly sexually assaulted is among those who could be returned. She has said she will commit suicide if she is forced to return.
Local police rarely take assault allegations seriously and there are claims of cover-ups. Many woman fear reporting rape because of the risk of retribution. Lawyers for asylum seekers have said Nauruan police are influenced by their government and are too politicised to properly investigate rape allegations.
A Senate hearing revealed that out of 50 cases referred to the Nauruan police by the detention centre operators, charges have only been laid in five of them and no one has been successfully prosecuted.
Photo by Zebedee Parkes
A study done by the Australian Human Rights Commission shows 95% of children detained on Nauru are at severe risk of post-traumatic stress disorder.
Abuse of refugee children on Nauru is rampant. In October last year, two Afghani teenagers where beaten by locals while walking home. There are reports of a five-year-old being sexually assaulted and, despite being caught in the act, the perpetrator still has not been arrested or charged.
Recently, more than a dozen young children filmed a protest on Nauru, in which they detailed their regular abuse at the local school, including by teachers.
It is now illegal for detention centre staff to report child abuse. The offence carries a prison sentence of two years.
These are the conditions that the Australian government wants to send 37 babies back to.
The #LetThemStay campaign has being trending on Twitter and momentum is growing on the streets as people around the country call on the government to not deport 267 vulnerable people to Nauru.
The rallies kicked off with protests outside the High Court building. Their message was that even if the government has the legal right to deport people to Nauru, it should do the decent thing and let them stay.
About 50 people rallied in Armidale in a vocal march through one of the shopping malls.
A few hundred people came to a lunchtime protest in Sydney outside the Department of Immigration and Border Protection. The energetic protest included mums and babies holding placards featuring the babies who could be deported.
Photo by Peter Boyle
At least 5000 people rallied in Melbourne, including church groups, unions and community groups. They gathered at the State Library, then marched to the Liberal Party's headquarters on Exhibition Street, where they staged a sit-in, shutting down traffic.
Photo by Jacob Andrewartha
In Perth a couple of hundred people took part in an action outside Perth Immigration Residential Housing, where some of the 267 refugees who could be deported are currently living. They are reportedly very distressed but welcomed the support. The rally then marched to the Perth Immigration Detention Centre.
Photo by Marziya Mohammedali
Activists are preparing anti-deportation actions to try to block people being moved to Nauru. Churches have offered sanctuary to refugees at risk and will do what they can to “block” them from being taken away. Geelong Trades Hall has pledged to materially support churches offering sanctuary to asylum seekers. A key date for the campaign will be the upcoming Palm Sunday rallies on March 20.
The response to the High Court's ruling, with thousands of people coming together to protest the cruelty is a positive step for the refugee movement.
Stopping the deportation of 267 vulnerable people to Nauru and ending detention will only be won in the courts if there is enough pressure on the streets. Only when the refugee movement becomes so large that it is too politically costly for both major parties to continue their policy of detaining asylum seekers in places that have being described as “hell on earth” will we really win #letthemstay.
For more photos of rallies around Australia click here.