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High court upholds Australia's right to detain asylum seekers offshore High court upholds Australia's right to detain asylum seekers offshore
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Related: High court throws out challenge to immigration detention on Nauru – politics live
The high court has upheld Australia’s right to detain asylum seekers in foreign countries, rejecting a challenge to the constitutionality of the offshore detention system.The high court has upheld Australia’s right to detain asylum seekers in foreign countries, rejecting a challenge to the constitutionality of the offshore detention system.
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. Of those 267, the majority were moved to Australia from Nauru because of serious medical conditions that could not be treated in Nauru. Out of this group 33 are babies who were born in Australia to asylum seeker mothers. They have never been 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.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.
Related: Sri Lankan asylum seeker tells of terror on Nauru: 'If I am sent back, I will kill myself'
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.
The court was not unanimous in its decision. The court was not unanimous in its decision. Justice Michelle Gordon stated that section 198AHA of the Migration Act was “beyond power and therefore invalid”, and justice Stephen Gageler although agreeing with the substantive ruling he noted 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” .
The main orders were written by justices Robert French, and Susan Kiefel and Geoffrey Nettle.