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High court throws out challenge to immigration detention on Nauru – politics live High court throws out challenge to immigration detention on Nauru – politics live
(35 minutes later)
11.55pm GMT
23:55
From the Uniting Church national assembly.
High Court declares Govt can detain on Nauru & Manus. Now the Govt must make a moral choice #LetThemStay. https://t.co/Ne9d6vAMf2
11.53pm GMT
23:53
And more.
The high court challenge has been lost. It's up 2 us 2 show pollies we will not give up on these kids #LetThemStay pic.twitter.com/niV7rXxJXh
11.51pm GMT
23:51
Snap protests are beginning.
RAC will hold a snap protest if the high court rules to send asylum seekers back to Nauru. Details and updates here: https://t.co/vC0PRzcOxz
11.50pm GMT
23:50
Politically, there will be no change in the policies of the major parties.
11.49pm GMT
23:49
So where to now following the High Court ruling?
This from Daniel and Ben’s story.
Most directly, the court’s decision will have implications for the government’s power to remove 267 asylum seekers, including 39 children and 33 babies who were born in Australia, to Nauru.
The government has given undertakings that it will give at least 72 hours notice before removing any of the asylum seekers involved in the case from Australia.
11.46pm GMT
23:46
Summary judgment
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.
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11.41pm GMT
23:41
11.34pm GMT
23:34
.@TurnbullMalcolm can STILL choose to keep 33 babies born in Australia, 54 other kids & their families from being sent to Nauru prison camp
11.31pm GMT
23:31
Protestors react to the majority High Court decision which threw out the challenge @gabriellechan @GuardianAus pic.twitter.com/BE9tpucfDK
11.31pm GMT
23:31
BREAKING NEWS: High Court challenge to offshore detention fails
Daniel Hurst
With Ben Doherty
Australia’s high court has rejected a challenge against the lawfulness of the government’s role in offshore detention in Nauru.
Lawyers for a Bangladeshi woman argued that the Australian government had “funded, authorised, procured and effectively controlled” her detention on Nauru, but this was not authorised by a valid Australian law and infringed constitutional limits on the government’s power.
In a decision announced in Canberra on Wednesday, the court found the Commonwealth’s conduct was authorised by law and by section 61 of the constitution.
A majority of the full bench found that section 198AHA of the Migration Act allowed for the commonwealth’s participation in the plaintiff’s detention in a foreign country.
“The plaintiff is not entitled to the declarations sought,” the court said in its majority decision.
Most directly, the court’s decision will have implications for the government’s power to remove 267 asylum seekers, including 39 children and 33 babies who were born in Australia, to Nauru.
The government has given undertakings that it will give at least 72 hours notice before removing any of the asylum seekers involved in the case from Australia.
The Bangladeshi woman - known as M68 in court document and the lead plaintiff in the case for the 267 asylum seekers - was on a boat intercepted by Australian officers in October 2013 and was detained on Nauru from January 2014 until August 2014, when she was brought to Australia for medical treatment and subsequently gave birth to a child.
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.
During the two-day hearing in October, Australia’s solicitor general, Justin Gleeson SC, disputed assertions that Canberra was effectively responsible for the detention of people it transferred to Nauru because it paid for their temporary visas and funded the processing centre.
But Gleeson argued that even if the high court made such a finding, the actions were authorised by the retrospective changes to the Migration Act in June.
Updated
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11.29pm GMT
23:29
High Court summary link
Here is the High Court summary of the judgement.
Updated
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11.28pm GMT
23:28
The High Court ruling was a majority of judges. Daniel Hurst is checking the split and any dissenting.
11.27pm GMT
23:27
Daniel Hurst
The majority of the court found that section 198AHA of the Migration Act authorised the commonwealth’s participation in the plaintiff’s detention.
11.26pm GMT
23:26
A quote from the High Court judges:
The plaintiff is not entitled to the declarations sought. The plaintiff should pay the defendant’s costs.
11.25pm GMT
23:25
High Court challenge to government's offshore detention policy fails
Daniel Hurst reports:
The challenge against the government has failed. The High Court found the commonwealth’s conduct was authorised by a valid law of the commonwealth or part of the executive power of the commonwealth and authorised by section 61 of the constitution.
11.23pm GMT11.23pm GMT
23:2323:23
ABC reporting.ABC reporting.
The High Court has thrown out a challenge to the Australian government's immigration detention on Nauru.The High Court has thrown out a challenge to the Australian government's immigration detention on Nauru.
Daniel is going through the summary now. Don’t want to get these things wrong.Daniel is going through the summary now. Don’t want to get these things wrong.
11.19pm GMT11.19pm GMT
23:1923:19
The High Court judges are handing down their decision now. Daniel Hurst is on the spot.The High Court judges are handing down their decision now. Daniel Hurst is on the spot.
UpdatedUpdated
at 11.19pm GMTat 11.19pm GMT
11.16pm GMT11.16pm GMT
23:1623:16
Bill Shorten is asked about the High Court decision expected right now.Bill Shorten is asked about the High Court decision expected right now.
I think Mr Turnbull has to do something about the inordinate delays in terms of processing people on Manus and Nauru. It’s wrong. The times have blown out under this current government. We will have to see what the High Court says and read that decision. But in the meantime, I do think that Mr Turnbull and his immigration spokesperson have got to explain why things are taking so much longer than they should.I think Mr Turnbull has to do something about the inordinate delays in terms of processing people on Manus and Nauru. It’s wrong. The times have blown out under this current government. We will have to see what the High Court says and read that decision. But in the meantime, I do think that Mr Turnbull and his immigration spokesperson have got to explain why things are taking so much longer than they should.
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11.14pm GMT11.14pm GMT
23:1423:14
Bill Shorten is doing a doorstop.Bill Shorten is doing a doorstop.
He lauds Paul Keating for dumping on a 15% GST. He is more shy on Keating’s idea that a one or two percentage increase could be ok for health spending.He lauds Paul Keating for dumping on a 15% GST. He is more shy on Keating’s idea that a one or two percentage increase could be ok for health spending.
Q: Are there merits in a more modest increase, perhaps 12%. Does that not derail your campaign for any increase to the GST?Q: Are there merits in a more modest increase, perhaps 12%. Does that not derail your campaign for any increase to the GST?
Shorten just keeps saying the government should not be increasing the GST to 15%.Shorten just keeps saying the government should not be increasing the GST to 15%.
When pressed, he says:When pressed, he says:
We will not support an increase in the GST.We will not support an increase in the GST.
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at 11.16pm GMTat 11.16pm GMT
11.07pm GMT11.07pm GMT
23:0723:07
Windsor was around for the very emotional debate in 2012 over offshore detention, when Joe Hockey and others cried. He was part of a cross-party group which tried to find other solutions through the policy issue - a group which include former Liberal MPs Mal Washer and Judi Moylan, Rob Oakeshott, Labor and Greens MPs.Windsor was around for the very emotional debate in 2012 over offshore detention, when Joe Hockey and others cried. He was part of a cross-party group which tried to find other solutions through the policy issue - a group which include former Liberal MPs Mal Washer and Judi Moylan, Rob Oakeshott, Labor and Greens MPs.
@TurnbullMalcolm Babies Malcolm Babies ....this is not you.@TurnbullMalcolm Babies Malcolm Babies ....this is not you.
10.58pm GMT
22:58
The Oz has an interesting Newspoll on superannuation. It finds:
More than 60% of voters support increasing the tax on superannuation contributions for high-income earners in a Newspoll that will buttress plans by the Turnbull government to strip back the generosity of tax breaks on compulsory savings.
The government intends to make the change in either the May budget or in its tax package, believing the move could generate about $6 billion a year to fund other tax cuts and boost con­fidence in the fairness of the superannuation system.
Reducing the scope of existing tax breaks for superannuation by 15 or 20 percentage points is one of the options being seriously examined by the government, as the latest Newspoll shows majority support for taking action, including among Coalition voters and those living in households earning above $100,000.
Under Tony Abbott and Joe Hockey, changes to superannuation’s very generous tax concessions were always ruled out. It was always perplexing, from a fairness perspective and from a political perspective.
The tax concessions on superannuation mean that individuals can churn income through their accounts, avoiding large lumps of tax - adding up to $6bn a year.
With Labor already announcing their policy to tighten superannuation concessions, the government already has the will or “political cover” to make the change with bipartisan support.
Updated
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10.45pm GMT
22:45
#Beardtalk @edhusicMP & @JoshFrydenberg discuss the merits of chin growth @gabriellechan @GuardianAus pic.twitter.com/NmKQfVjXiw
10.42pm GMT
22:42
No footy boots required for the Nationals party room.
Updated
at 11.12pm GMT
10.34pm GMT
22:34
The Australian Building and Construction Commission (ABCC) bill is back in the house. Brendan O’Connor, Labor’s employment shadow, is speaking on the issue.
10.22pm GMT
22:22
Peter Dutton is speaking on Sky ahead of the high court decision at 10.15am.
He is maintaining the rage about not allowing anyone who comes by boat to settle in Australia.
He says nothing will change and he is not talking about the possibility of being forced to change legislation if the high court finds Australia cannot detain people offshore.
Updated
at 11.12pm GMT
10.00pm GMT
22:00
The house of representatives is just starting. Senate is starting at 9.30am.
9.57pm GMT
21:57
Lenore Taylor sheds more light on the National party leadership. She reports:
The leader of the Nationals, Warren Truss, has privately told his colleagues he will make an announcement about his future in mid-March, with his expected retirement paving the way for Malcolm Turnbull to reshuffle his frontbench.
Truss chastised his Nationals MPs and senators at the closed-door meeting on Monday afternoon, saying he was disappointed and frustrated that the Nationals had been talking about themselves over the summer with a series of speculative stories about his resignation and possible successors.
He said he wanted the party room discussion to remain private and he did not want to read what he had revealed about the timing of his announcement in the newspapers.
Many MPs left the meeting believing Truss had said he would make an announcement at the end of next week but senior sources insisted he had said it would come at the end of the parliamentary session – in mid-March.
Remember Jamie Briggs and Mal Brough stood aside at Christmas time. A Truss announcement in mid-March potentially pushes the reshuffle back even further, potentially leaving new ministers very little time to get on top of their portfolios.
All indications are Barnaby Joyce will take the leadership while there is hot competition for deputy. Names mentioned regularly include Michael McCormack, Darren Chester, Luke Hartsuyker and perhaps more. The field would appear to to be open.
9.45pm GMT
21:45
So Phil Coorey’s story in the AFR quotes sources that contend the government has approached Labor to nut out the Senate reforms. There is a qualification that Malcolm Turnbull still prefers the spring option. But Coorey reports:
On Tuesday, after question time, Mr Turnbull canvassed voting reform directly with Labor, which is split on the issue, while acting Special Minister of State Mathias Cormann has sought talks with the Greens who, along with Nick Xenophon, are supportive of change and eager to vote it through the Senate.
Sources told the Australian Financial Review that the government wants the changes through parliament before it rises on March 17 for seven weeks. This would enable it to call an early election if it wanted to. If it chose to go full term, as is its preference, it would still stop micro-parties gaming the system, although the aim of cleaning up the Senate would take longer.
We understand the Greens are due to meet with the government about Aenate reform later this week.
Updated
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9.38pm GMT
21:38
Since the election of the eight crossbenchers, the major and minor parties have been pushing for Senate reform. At issue, is the very small votes that allowed candidates like Motoring Enthusiast party senator Ricky Muir to get elected after polling 17,122 first-preference votes where the quota for election was 483,076 votes.
Muir told ABC AM this morning, not surprisingly, that he did not think the system needed to be changed.
In reality, the party that I represent and many, many other micro parties that actually stood up for that election, would not have been there if they felt like they were represented by the major parties anyway. So the real question is, are the major parties living up to the expectation of the public or are they letting us down, forcing us to get political.
From a terrifying start, Muir has really grown into the job, bringing a certain everyman approach. He pointed out the irony of a government pushing legislation such as the building watchdog bill to stop bullying and thuggery in the industry while hanging the threat of Senate reform over the heads of crossbenchers.
I will vote on what I believe is the best in the interests of Australia on the available information and I won’t be threatened into a position by the threat of losing my Senate seat. If I lose my Senate seat by doing the best for what I think [for] Australia, so be it, I went down trying. But I’m not forced to go into a position by emotive campaigns.
Muir says he will enter the chamber of secrets to read the sixth volume of the trade union royal commission report and keep his options open for the bill. He voted against it the first time.
Updated
at 10.12pm GMT
9.09pm GMT
21:09
Good morning fellow political tragics,
There are a mess of things swirling around the political agenda this morning. Some are nebulous, such as Phil Coorey’s reports that the Turnbull government is trying to win support for Senate reforms. More on that coming. Some are concrete, like the high court ruling expected at 10.15am on whether Australia can detain people in another country. We will have full coverage when that happens.
Paul Keating has entered the tax debate in striking form. He is dead against a 5% increase in the GST. At the most, he suggests 1%-2% tied to health funding. Anything else will just encourage bad behaviour in government.
I will just pull out two of many choice quotes:
When a country gets locked into such permanently high taxation, there is no way out of it. Were the public to agree to give the political system such a load of money, the political system would simply go and spend it.
The GST is just a flat, bang you over the head, tax. It changes nothing; no behaviour, other than to put the tax weight onto the wrong people.
Mike Bowers is already down at the Senate doors, so we shall have some pictures soon. Follow us on the Twits @gabriellechan and @mpbowers or join the conversation below.
Updated
at 9.26pm GMT