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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)
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Richard Di Natale is speaking on the High Court ruling. He says it a moral question, rather than a legal question.
He concedes there are challenges with the movement of people around the world.
We can’t argue we don’t know what is happening now...we are hearing from those brave medical professionals who are facing punishment...who are speaking out about what is happening in our detention centres.
The question now is for the prime minister who promised with his election we would see a new page in Aus history...this is happening under his watch...this detention network is a mental illness factory.
He wants to PM to agree that children should never be detained.
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Michaelia Cash would appear to be just having a swipe at Labor’s Brendan O’Connor.
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Albo hanging with his crew.
The Maritime Union of Australia is in town to protest the scrapping of the MV Portland and the use of foreign crew by owner Alcoa.
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The employment minister, Michaelia Cash, is coming up at 1pm on the ABCC. Compromise?
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From Bowers at the high court.
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The other thing Dreyfus did before the high court judgment was express his horror at the time spent in detention by women and children. He called for the government to do more – notwithstanding Labor’s establishment of Manus and reinstitution of offshore detention centres. (The policy area has been ratcheted up by both Labor and the Coalition over the past four governments.)
This was the exchange between Michael Brissenden and Dreyfus this morning.
Q: So do you think the policy should be overturned?
The policy has been instrumental in bringing the flow of refugees to Australia by boat to an end.
Q: But do you believe it’s time to overturn the policy?
We did not envisage, when we introduced this policy, that two and half years on you would have more than 1,000 men, women and children languishing in indefinite detention. It is time for the government to do a great deal more to end the dreadful circumstances in which these men women and children -
Q: Is it time to end offshore detention?
I don’t think it’s necessary to say that, that it is time to end that policy. What does need to be done is that the government’s got to do a great deal more so that we don’t have people in this situation. Two and a half years is an eternity, particularly for children and this present situation can’t be allowed to continue.
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Just picking up on some comments by Labor shadow attorney general Mark Dreyfus on the senate reform. Just for background, Lenore Taylor did a story last year which sums up the history. This is the Labor position today enunciated by Dreyfus. Just picking up on some comments by Labor’s shadow attorney general, Mark Dreyfus, on the Senate reform. Just for background, Lenore Taylor did a story last year, which sums up the history. This is the Labor position today, enunciated by Dreyfus.
The opposition is talking with the government and we are talking among ourselves as to what is the right way to reform Senate voting processes, we are not in government, it’s a matter for the government to put forward that proposal, we are hoping that occurs soon. The opposition is talking with the government and we are talking among ourselves as to what is the right way to reform Senate voting processes. We are not in government, it’s a matter for the government to put forward that proposal, we are hoping that occurs soon.
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Lunchtime politicsLunchtime politics
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While you are digesting the high court ruling, there was a bill that passed the house yesterday that Shalailah Medhora reported on here.While you are digesting the high court ruling, there was a bill that passed the house yesterday that Shalailah Medhora reported on here.
The bill would make it easier for Australia to return people if they were deemed eligible for “behaviour modification” to reduce the harm they might face in their home countries.The bill would make it easier for Australia to return people if they were deemed eligible for “behaviour modification” to reduce the harm they might face in their home countries.
Some of the examples used include being charged in their home country for drinking alcohol. In that case, the government could argue that an asylum seeker could simply not drink and return to their country safely. Then it comes down to the definition of behaviour modification. Would a LGBTI person be told their behaviour could be modified?Some of the examples used include being charged in their home country for drinking alcohol. In that case, the government could argue that an asylum seeker could simply not drink and return to their country safely. Then it comes down to the definition of behaviour modification. Would a LGBTI person be told their behaviour could be modified?
Labor’s Andrew Giles spoke on the bill in the house and described the provision “a terribly Orwellian concept”.Labor’s Andrew Giles spoke on the bill in the house and described the provision “a terribly Orwellian concept”.
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The Nationals senator Keith Pitt is speaking for the ABCC bill, saying he has seen it all as a former member of the building industry.The Nationals senator Keith Pitt is speaking for the ABCC bill, saying he has seen it all as a former member of the building industry.
He said he has seen toolboxes filled with glue, lockers welded shut and tyres let down because people didn’t agree with the union.He said he has seen toolboxes filled with glue, lockers welded shut and tyres let down because people didn’t agree with the union.
I have seen all of it and it is absolutely appalling.I have seen all of it and it is absolutely appalling.
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Greens MP Adam Bandt is just moving an amendment for a national corruption body. This is what he wants to do to the building watchdog bill:Greens MP Adam Bandt is just moving an amendment for a national corruption body. This is what he wants to do to the building watchdog bill:
The house declines to give the bill a second reading because the objective of dealing with alleged wrongdoing in Australian society would be better achieved by establishing a broad-based national anti-corruption watchdog.The house declines to give the bill a second reading because the objective of dealing with alleged wrongdoing in Australian society would be better achieved by establishing a broad-based national anti-corruption watchdog.
It has been seconded by the Tassie independent MP Andrew Wilkie.It has been seconded by the Tassie independent MP Andrew Wilkie.
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Greens MP Adam Bandt:Greens MP Adam Bandt:
If you really want to tackle (corruption), what we will have instead is an anti-corruption watchdog. If there is wrongdoing in the building industry, they will find it. And if there is corruption elsewhere, they will find it too.If you really want to tackle (corruption), what we will have instead is an anti-corruption watchdog. If there is wrongdoing in the building industry, they will find it. And if there is corruption elsewhere, they will find it too.
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The lawyer responsible for the high court case, Daniel Webb, is speaking to the media. He will not foreshadow further legal steps but appeals on moral grounds to the government to allow the babies and their families to stay in Australia.The lawyer responsible for the high court case, Daniel Webb, is speaking to the media. He will not foreshadow further legal steps but appeals on moral grounds to the government to allow the babies and their families to stay in Australia.
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The refugee coordinator of Amnesty International Australia, Dr Graham Thom, reacts to the high court ruling:The refugee coordinator of Amnesty International Australia, Dr Graham Thom, reacts to the high court ruling:
Despite the high court decision in this case, Amnesty International calls on Prime Minister Turnbull to do the right thing and permanently close the centre on Nauru and relocate the asylum seekers held there into our community.Despite the high court decision in this case, Amnesty International calls on Prime Minister Turnbull to do the right thing and permanently close the centre on Nauru and relocate the asylum seekers held there into our community.
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Ben DohertyBen Doherty
Regardless of the high court’s decision, Australia is under no legal compulsion to return the 267 asylum seekers to Nauru.Regardless of the high court’s decision, Australia is under no legal compulsion to return the 267 asylum seekers to Nauru.
The chief technical adviser of UNICEF Australia, Amy Lamoin, said Nauru was ill-equipped to assist refugees. Maintaining the offshore detention centre would “place undue stress on Nauru’s developing social and welfare systems” and take resources from Nauruan children, she said.The chief technical adviser of UNICEF Australia, Amy Lamoin, said Nauru was ill-equipped to assist refugees. Maintaining the offshore detention centre would “place undue stress on Nauru’s developing social and welfare systems” and take resources from Nauruan children, she said.
It’s unreasonable for the Australian government to shift this responsibility to one of its nearest neighbours. Nauru is a developing nation working to improve the education, child health and child protection outcomes for its own children. The additional pressure of Australia’s offshore detention program shifts our responsibility onto a developing country with its own existing needs.It’s unreasonable for the Australian government to shift this responsibility to one of its nearest neighbours. Nauru is a developing nation working to improve the education, child health and child protection outcomes for its own children. The additional pressure of Australia’s offshore detention program shifts our responsibility onto a developing country with its own existing needs.
Lamoin said the most vulnerable children and families must be allowed to stay in Australia.Lamoin said the most vulnerable children and families must be allowed to stay in Australia.
We cannot disrupt children and parents’ recovery processes and we cannot return them to a situation where they may experience serious harm.We cannot disrupt children and parents’ recovery processes and we cannot return them to a situation where they may experience serious harm.
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Ben DohertyBen Doherty
Save the Children’s Lee Gordon, who directed the charity’s child protection, welfare, education and recreation programs at Nauru for nearly two years, said the Australian government’s own inquiries into Nauru had found it was unsafe for children and vulnerable people.Save the Children’s Lee Gordon, who directed the charity’s child protection, welfare, education and recreation programs at Nauru for nearly two years, said the Australian government’s own inquiries into Nauru had found it was unsafe for children and vulnerable people.
I know from experience the devastating psychological and physical harm that is caused to asylum seekers and refugees living on Nauru. While families seeking asylum on Nauru now have freedom of movement their lives are in still limbo.I know from experience the devastating psychological and physical harm that is caused to asylum seekers and refugees living on Nauru. While families seeking asylum on Nauru now have freedom of movement their lives are in still limbo.
Gordon said the Australian government should quickly process the asylum claims on those impacted by today’s high court ruling. If found have valid protection claims, he said, they should be offered protection in Australia.Gordon said the Australian government should quickly process the asylum claims on those impacted by today’s high court ruling. If found have valid protection claims, he said, they should be offered protection in Australia.
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The 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 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.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.
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In the house, the ABCC bill debate continues. The assistant treasurer and small business minister, Kelly O’Dwyer, is coming up at the press club.In the house, the ABCC bill debate continues. The assistant treasurer and small business minister, Kelly O’Dwyer, is coming up at the press club.
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Greens senator Sarah Hanson-Young has described the high court ruling as the first test for Malcolm Turnbull.Greens senator Sarah 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.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.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.
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Individual high court asylum seeker findingsIndividual high court asylum seeker findings
The main orders were written by justices French, Kiefel and Nettle.The main orders were written by justices French, Kiefel and Nettle.
Bell then agreed with the answers to the questions of law.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 s198AHA was inserted with retrospective effect”.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 s198AHA was inserted with retrospective effect”.
Keane also found 198AHA was a valid law of the commonwealth.Keane also found 198AHA was a valid law of the commonwealth.
Gordon believed 198AHA was “beyond power and therefore invalid”.Gordon believed 198AHA was “beyond power and therefore invalid”.
(It would seem section 198AHA made the big difference to the government’s case.)(It would seem section 198AHA made the big difference to the government’s case.)
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#Auspol @TurnbullMalcolm we will not support a government that does evil. #AsylumSeekers #Nauru pic.twitter.com/7wTjHcwU3c#Auspol @TurnbullMalcolm we will not support a government that does evil. #AsylumSeekers #Nauru pic.twitter.com/7wTjHcwU3c
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The judgment 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.The judgment 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.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: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.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.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: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.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.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.
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
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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
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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
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Politically, there will be no change in the policies of the major parties.
11.49pm GMT
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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
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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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.@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
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Protestors react to the majority High Court decision which threw out the challenge @gabriellechan @GuardianAus pic.twitter.com/BE9tpucfDK
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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.
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