High Court hands down Nauru decision

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The High Court has rejected a challenge against the lawfulness of the government’s role in offshore detention in Nauru.

The court has found that the Commonwealth’s conduct was authorised by law and by section 61 of the constitution.

The case by 267 asylum seekers was led by a Bangladeshi woman in detention, who was brought to Australia for treatment after she experienced health issues during her pregnancy.  She brought a challenge to avoid being returned to detention after giving birth to her daughter in Brisbane.

Her lawyers argued that the government had “funded, authorised, procured and effectively controlled” her detention but was not authorised by a valid Australian law and infringed constitutional limits on the government’s power.

“The plaintiff is not entitled to the declarations sought,” the court said in its majority decision.

Justin Gleeson SC disputed assertions during proceedings that the government was effectively responsible for the detection of people it transferred to Nauru because it paid for their temporary visas and funded the processing centre.

According to the Guardian, two significant changes were made after the case was initiated.  The government pushed retrospective legislation through the parliament to shore up its offshore processing powers.

The detention facilities on Nauru also moved to an ‘open centre’ arrangement, allowing Australia to argue the woman bringing the case would not be being returned to detention if she was sent back to the island, The Guardian reported.
  • DanB on 8/02/2016 2:43:17 PM

    Jesi, I totally agree it's inhumane and degrading. Further, in my humble opinion, it's unnecessary (and I think the majority of State Premiers agree with us on that point as well!). It's also essential that we all remember 98% of us a migrants (unless you're an indigenous australian you're a migrant). Furthermore, the second stanza of the National Anthem is oft forgotten by those who want to reclaim Australia ("for those who've come across the seas, we've boundless plains to share"... or was that only meant to be "for those who've come across the seas and have white skin, native anglophone, with university education, plenty of cash and not fleeing persecution"?). With that said, there was nothing LEGALLY wrong with it.

    Harry, the Declaration on the Rights of Man was from the French revolution. It in no way found its way into the common law that we inherited from the UK in 1788. Moreover, the Declaration on the Rights of Man, if you would turn your attention to the specific clauses, expressly provides for the priniciple of sovereignty residing in the nation (Art. III); and don't try to bring the 1689 UK Bill of Rights or the Magna Carta into the debate unless you want to turn to actual provision. Neither help this argument and with a couple of limited exceptions, no longer apply in the majority of States in Australia (certainly not in NSW: see the Imperial Acts Application Act)

  • Harry on 8/02/2016 10:59:16 AM

    The Declaration of the Rights of Man was thrown overboard by western governments long ago.This is a sharp political question, and exposes peoples' politics,lawyers and judges included.Are people to be treated as equal human beings with rights to dignity.or called UMA's,and dumped on Devil's Island (ie,an impoverished client State)

  • jesi on 5/02/2016 1:12:09 PM

    Nauru Island is the size of Melbourne airport it's BS inhumane and degrading, most of us are immigrants ourselves except we didn't have isis lopping limbs and heads off left right front centre

  • Alan on 5/02/2016 12:27:00 PM

    DanB, agree.

  • DanB on 5/02/2016 11:55:44 AM

    Denyse Dawson, the High Court was doing its job - being the interpretation of the law - rather than being a political activist court (separation of powers, perhaps you've heard of it).
    Kathryn Jarzabek, totally agree.
    John O'Brien, don't quite see how it is one in the eye for leftie ambulance chasers. "Ambulance chasers" conjures up images of plaintiff lawyers running cases primarily to fill theirown pockets - not sure that the Human Rights Law Centre falls into that class.
    James Richardson, respect your view but I disagree.
    Zoe, not sure why you feel you needed to bring gendered arguments into this, plenty of men find it outrageous as well, same as plenty of women think it's a perfectly fine policy (Julia Bishop - foreign minister - for one).
    John, I hope you appreciate that "our way of life" is a multicultural one, such that "our way of life" isn't threatened by some asylum seekers - indeed labour research shows refugees work harder and contribute more to the economy than most of the rest of us
    Frank & Mary - agree

  • Mary on 4/02/2016 8:57:27 AM

    The scarey thing is that the media suggests the majority of Australians approve of the current policy - as indicated by voting - yet it is bi-partisan policy so how can all of us, who reject the policy on humanitarian grounds, vote for morality. Give Christmas Island to Indonesia - it should be there's anyway. Boats stop (if that is so darn important)

  • Frank on 3/02/2016 2:21:42 PM

    Glad to see that sanity is still in existence in the High Court. These people were brought here for medical treatment, that in itself should not validate their claim as refugees. let them be processed by the authorities, and if appropriate, give them the status, otherwise, back where they come from.

  • Beth on 3/02/2016 2:04:19 PM

    I agree with John, this mother is lucky to have had the benefit of our hospitals and medical staff to bring her baby into this world. what about the many thousands of pregnant women and children that couldn't raise the funds to push in the immigration/refugee line and are still awaiting processing. Its sad to say but this women and many illegally transported 'refugees' are so prepared to 'bite the hand that feeds them'.

  • John on 3/02/2016 12:43:23 PM

    Mother and baby are alive and well, living in better conditions than where they came from. The people smugglers are thwarted yet again. The borders remain secure. Our current way of life is not heading the way of Germany and Sweden. The Government has not broken the law. A win/win all around.

  • Zoe on 3/02/2016 12:25:01 PM

    Interesting that in the 4 comments so far the women commenting are appalled by the government actions and the men approve. What sort of person finds sending a baby, whose parent was seeking refuge in accordance with her rights under international law, to indeterminate detention "a welcome decision"?

  • James Richardson on 3/02/2016 12:03:19 PM

    Yes the practice is Draconian but alas it is the only way to stop the boats: at any one time there about 40,000,000 people who need re-settlement somewhere else in the world. Whilst Germany's position was admirable, it has opened a floodgate they are now not
    coping with, let alone the drownings. People smugglers cannot be encouraged.

  • John O'Brien on 3/02/2016 11:57:08 AM

    An unexpectedly welcome decision & one in the eye for the leftie ambulance chasers masquerading as humanitarians. Funny how an institution becomes "conservative" as soon as it detours from the so called "progressive" path.

  • Kathryn Jarzabek on 3/02/2016 11:27:37 AM

    I will be interested to read the judgment. The decision does not alter the fact that the practice is draconian and every Australian should be ashamed of government policy on this issue. As a profession we have a duty to speak out, as individuals we should protest unfairness.

  • Denyse Dawson on 3/02/2016 11:16:10 AM

    Unfortunately as expected, a conservative institution backing a conservative regime. Shame.

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