#LetThemStay: An overview of the HRLC’s legal and advocacy work

The Human Rights Law Centre is proud to have partnered with GetUp! and the Australian Churches for Refugees Taskforce to create and coordinate the #LetThemStay campaign for the 267 people linked to our High Court case.

As our Director of Legal Advocacy, Daniel Webb said on the steps of the High Court, ‘The legality may be complex, but the morality is simple: indefinitely warehousing men, women and children on tiny remote islands is fundamentally wrong. It’s time for the Prime Minister, Malcolm Turnbull, to do the decent thing and let these families stay.’

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The case

In May 2015 the HRLC launched a High Court case challenging the lawfulness of Australia’s offshore detention arrangements.

The test case was run on behalf of a woman from Bangladesh who was detained on Nauru but was brought to Australia for urgent medical treatment during the late stages of her pregnancy. The case was linked to a series of challenges being run on behalf of 267 people who were brought to Australia for urgent medical treatment after suffering harm in offshore detention centres. The group includes women who have been sexually assaulted on Nauru and 37 babies born in Australia.

The case raised important and untested legal questions about the Australian Government’s power to fund and control detention centres in other countries.

“We know the Government has powers to detain asylum seekers in Australia and also has powers to remove asylum seekers from Australia. But it is another thing altogether to then spend billions of dollars bankrolling and actively participating in the detention of innocent people in other countries,” said the HRLC’s Director of Legal Advocacy, Daniel Webb at the time.

Retrospective legislation

In response to our legal challenge the Government rushed through new retrospective laws seeking to try and ensure the legality of its role in the offshore detention arrangements.

“The Government repeatedly assures the Australian people it is acting legally, but a Government confident its actions are lawful doesn’t suddenly and retrospectively change the law when its actions are challenged in court,” said Mr Webb.

While the Government had tried to give itself legislative authority to fund and facilitate detention on Nauru, serious and untested questions remained about whether its actions were unconstitutional.

Documents obtained via Freedom of Information confirmed that after the case was filed, the government redoubled its efforts to deport people as quickly as it could. For the next three months the HRLC team, together with fantastic pro bono lawyers around the country, identified and advised every single person at risk of deportation to Nauru or Manus who came to us for assistance. The legal team were in a race against time to advise people before the government deported them. With great support from our pro bono partners, we won that race 267 times.

Transition to an open centre on Nauru

Three years after the first person was locked up on Nauru but just days before the High Court was to consider the lawfulness of that detention,  the Government of Nauru announced a transition to an ‘open centre’. Publicly, the Australian Government said the changes were not connected to the High Court case. In court, it argued that the detention we were challenging had ended.

The move to an open centre was a hard-won improvement, but letting people go for a walk did not resolve the fundamental injustice of indefinitely warehousing them on a tiny remote island.

“The men, women and children on Nauru need a real solution – settlement in a safe place where they can rebuild their lives. Instead they’re being left languishing in an environment that is clearly unsafe, especially for women and children,” said Mr Webb.

The decision

On February 3 2016, the High Court handed down its judgement, with six of the seven judges confirming that due to the retrospective laws and the transition to the open centre, the Government’s arrangements on Nauru did not breach Australian domestic law.

The decision put the 267 people linked to the case at immediate risk of being deported to Nauru or Manus. Mr Webb said that calling the mother at the heart of the case to deliver news of the Court’s decision was the hardest phone call he’s ever had to make.

“This mother just wants what all mothers want – her child to have a decent life somewhere safe. With a stroke of a pen our Prime Minister, Malcolm Turnbull, could make that a reality. It’s time to bring some compassion, common sense and perspective back to the way we treat people seeking our protection,” said Mr Webb.

The community response

The HRLC and GetUp! launched a petition calling for the Prime Minister to let the 267 people stay.

In the days and weeks following the decision, an unprecedented level of support emerged from the community.

Church leaders took the extraordinary step of offering ‘sanctuary’ to people facing deportation raising the prospect of police raids on places of worship and possible charges for clergy.

Every state Premier came out and urged the PM to let our clients stay and offered to help resettle them in the community.

The United Nations intervened to warn the Australian Government that deporting our clients would risk breaching Australia’s obligations under the Convention on the Rights of the Child and the Convention against torture and other cruel treatment.

Thousands of people took to the streets at community events around the nation to urge the PM to let them stay.

‘Baby Asha’

Amidst this outpouring of public support, medical staff at a Brisbane hospital announced they would refuse to discharge an asylum seeker child from their care until a suitable home environment had been arranged citing concerns for her safety if she was returned to detention or Nauru.

Immediately, a community vigil with support from the union movement formed around the hospital vowing to block attempts to deport the baby known as ‘Asha’. The HRLC filed an emergency High Court proceeding to prevent the baby from being forcibly deported to Nauru.

“We made repeated requests for the government to agree to at least provide reasonable notice if it planned to deport this child, but they refused. We were left with no choice but to file an urgent case in the High Court. Just like the brave medical staff at the Lady Cilento Hospital and the communities of people who maintained a round-the-clock vigil outside the hospital, we could not sit back and do nothing while our Government ripped a baby from her hospital bed and send her to languish in a tent on Nauru,” said Mr Webb.

The situation now (as of 26 February)

After denying access to the client for three days, the Government backed down in the face of public pressure and moved baby Asha and her family into the community.

The Immigration Minister has stated that he still wishes to deport the family to Nauru along with the 267 other people linked to the original High Court case, but the HRLC has various legal proceedings underway to challenge such moves.

The situation is delicate and changes each day. With the generous pro bono support of our corporate law firm partners, the HRLC’s legal team is working around the clock and the #LetThemStay campaign continues to garner support and build pressure for  the Prime Minister to do the decent thing and let our clients rebuild their lives in safety.

“The politics may be complex but the morality is simple. Detention is no place for innocent, vulnerable people – neither is a tent on a tiny island. It would be fundamentally wrong to condemn these 267 people to lives in limbo on Nauru or Manus. The Prime Minister  should do the decent thing and let them stay,” said Mr Webb.

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