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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)
12.35am GMT
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Greens MP Adam Bandt will try to amend the ABCC bill, calling for the house to instead establish a broad-based national anti-corruption watchdog.
The Greens have tried to do this in the past three parliaments with no support from the majors. It has support amongst the crossbenchers but without one of the major parties, it has no hope.
12.32am GMT
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In the house, the ABCC bill debate continues. Assistant treasurer and small business minister Kelly O’Dwyer is coming up at the press club.
12.14am GMT
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Greens senator Hanson-Young has described the High Court ruling as the first test for Malcolm Turnbull.
Sending these children to Nauru would be child abuse and Malcolm Turnbull needs to decide whether he is willing to authorise that. The evidence is clear and it’s undeniable that Nauru is unsafe for women and children and sending them back would be torture.
Keeping families on Nauru is untenable and we need to find a better way to protect people who are seeking asylum. We must create a fair and efficient system that will bring people here safely and integrate them into the community, so that their families can flourish.
12.10am GMT
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Individual High Court asylum seeker findings
The main orders were written by justices French, Kiefel and Nettle.
Bell then agreed with the answers to the questions of law.
Gageler agreed with the substantive answers to the questions, while noting that “the plaintiff’s central claim (that the commonwealth and the minister acted beyond the executive power of the commonwealth by procuring and enforcing her detention at the regional processing centre between 24 March 2014 and 2 August 2014) to have been well-founded until 30 June 2015, when s 198AHA was inserted with retrospective effect”.
Keane also found 198AHA was a valid law of the commonwealth.
Gordon believed 198AHA was “beyond power and therefore invalid”.
(It would seem section 198AHA made the big difference to the government’s case.)
12.06am GMT
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#Auspol @TurnbullMalcolm we will not support a government that does evil. #AsylumSeekers #Nauru pic.twitter.com/7wTjHcwU3c
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The judgement talks about section 198AHA which is the part of the migration act that was added retrospectively in June last year with support from both major parties.
This bipartisan change was made after the case had been initiated in order to shore up Australia’s legal position. I remember at the time it was last minute rush for legislation just before the winter recess.
Here is Shalailah’s story at the time:
The Coalition and Labor are contemplating an urgent legislative solution to a high court challenge that could potentially derail all offshore detention policies.
Labor convened a special caucus meeting on Wednesday morning to work out how best to react to the case. It supports changes to the Migration Act to fortify offshore processing. The Greens do not support it, but their votes are not needed to pass the legislation since it has the support of both major parties.
This is who voted for and against:
A bill aimed at closing a loophole that leaves Australia’s offshore processing system vulnerable to high court challenges has passed the Senate.
The bill passed the Senate on Thursday night 41 votes to 15. Crossbenchers Nick Xenophon, John Madigan and Bob Day joined with the Coalition and Labor to support the bill. The Greens, Jacqui Lambie, David Leyonhjelm, Ricky Muir, Dio Wang and Glenn Lazarus voted against it.
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From the Uniting Church national assembly.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/Ne9d6vAMf2High Court declares Govt can detain on Nauru & Manus. Now the Govt must make a moral choice #LetThemStay. https://t.co/Ne9d6vAMf2
11.53pm GMT11.53pm GMT
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And more.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/niV7rXxJXhThe 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 GMT11.51pm GMT
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Snap protests are beginning.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/vC0PRzcOxzRAC 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 GMT11.50pm GMT
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Politically, there will be no change in the policies of the major parties.Politically, there will be no change in the policies of the major parties.
11.49pm GMT11.49pm GMT
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So where to now following the High Court ruling?So where to now following the High Court ruling?
This from Daniel and Ben’s story.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.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 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.
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Summary judgmentSummary 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.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 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.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”).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.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”).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.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 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.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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at 11.53pm GMTat 11.53pm GMT
11.41pm GMT11.41pm GMT
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11.34pm GMT11.34pm GMT
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.@TurnbullMalcolm can STILL choose to keep 33 babies born in Australia, 54 other kids & their families from being sent to Nauru prison camp.@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 GMT11.31pm GMT
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Protestors react to the majority High Court decision which threw out the challenge @gabriellechan @GuardianAus pic.twitter.com/BE9tpucfDKProtestors react to the majority High Court decision which threw out the challenge @gabriellechan @GuardianAus pic.twitter.com/BE9tpucfDK
11.31pm GMT11.31pm GMT
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BREAKING NEWS: High Court challenge to offshore detention failsBREAKING NEWS: High Court challenge to offshore detention fails
Daniel HurstDaniel Hurst
With Ben DohertyWith Ben Doherty
Australia’s high court has rejected a challenge against the lawfulness of the government’s role in offshore detention in Nauru.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.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.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.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.“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.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 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.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.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 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.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.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.
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at 11.48pm GMTat 11.48pm GMT
11.29pm GMT11.29pm GMT
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High Court summary linkHigh Court summary link
Here is the High Court summary of the judgement.Here is the High Court summary of the judgement.
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at 11.30pm GMTat 11.30pm GMT
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The High Court ruling was a majority of judges. Daniel Hurst is checking the split and any dissenting.The High Court ruling was a majority of judges. Daniel Hurst is checking the split and any dissenting.
11.27pm GMT11.27pm GMT
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Daniel HurstDaniel Hurst
The majority of the court found that section 198AHA of the Migration Act authorised the commonwealth’s participation in the plaintiff’s detention.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 GMT11.26pm GMT
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A quote from the High Court judges:A quote from the High Court judges:
The plaintiff is not entitled to the declarations sought. The plaintiff should pay the defendant’s costs.The plaintiff is not entitled to the declarations sought. The plaintiff should pay the defendant’s costs.
11.25pm GMT11.25pm GMT
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High Court challenge to government's offshore detention policy failsHigh Court challenge to government's offshore detention policy fails
Daniel Hurst reports: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.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
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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
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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.
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at 11.19pm GMTat 11.19pm GMT
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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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at 11.16pm GMTat 11.16pm GMT
11.14pm GMT11.14pm GMT
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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
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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.