High Court set to hear challenge to offshore detention on Nauru - Nauru announces transition to ‘open centre’

The full bench of the High Court will this week hear a challenge to the lawfulness of the Australian Government’s role in offshore detention on Nauru. The hearing will proceed despite an eleventh hour announcement that the facility on Nauru is set to become an ‘open centre’.

The Human Rights Law Centre's Director of Legal Advocacy, Daniel Webb, said the lead case - to be heard on Wednesday and Thursday in Canberra - is being run on behalf of a woman from Bangladesh who was brought to Australia due to a serious deterioration in her health during the late stages of pregnancy, but is now facing imminent return to Nauru with her ten month old baby.

“Australia should not be indefinitely warehousing people on remote islands, especially babies. The family is absolutely terrified of being forced back to an environment that we know is harmful and that we know is unsafe, particularly for women and children,” said Mr Webb.

This is the lead case linked to a series of challenges being run on behalf of more than 200 people in similar situations who have been brought to Australia from Nauru and Manus for various reasons including urgent medical attention.

Transition to an ‘open centre’

In the past few days it has been announced that the Nauru detention facility is set to become an ‘open centre’. The proposed changes are set to commence more than three years after the re-opening of the detention centre but just two days before the High Court examines Australia’s role in it.

Mr Webb said allowing people increased freedom of movement would be a welcome development but the fundamental problems with the offshore arrangements remain.

“A transition to an open centre would be an important and hard-won improvement, but letting people go for a walk does not resolve the fundamental problems caused by 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 for women and children,” said Mr Webb.

Retrospective legal changes

When the HRLC commenced the case on 14 May this year, it contended that there was no Australian law which gave the government the necessary power to fund and facilitate the current offshore detention arrangements.

The government responded by hastily introducing one. With the support of the Opposition, the government enacted legislation which sought to retrospectively authorise three years of offshore detention and the expenditure of several billion dollars for that purpose. The law passed through the Parliament in June within two days of it being announced.

“The Government repeatedly assures the Australian people that 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.

Key legal issues

Despite the changes to the law, Mr Webb said that serious Constitutional questions remain about the Commonwealth’s involvement in offshore detention and the validity of the laws attempting to authorise it.

“We know the government has some power to detain people in Australia and some power to remove people from Australia. But it’s another thing altogether to then spend billions of dollars funding and facilitating the detention of innocent people in other countries. It’s that spending and that detention that this case challenges,” said Mr Webb.

“We sometimes lose sight of just how extraordinary it is for Australia to be underwriting and actively participating in the detention of people in other countries. We know it’s harmful and we know it’s expensive. This case will test whether it is legal,” said Mr Webb.

The people at risk of removal

Related cases to the one being heard have now been commenced on behalf of over 200 men, women and children returned to Australia for medical treatment but now facing forcible return to offshore detention.

“There are now over 200 people involved in these cases. They include men subjected to serious violence on Manus, women who’ve been sexually assaulted on Nauru and over 50 children, including 23 babies less than a year old. These are incredibly vulnerable people. They should not be returned to an environment that has already caused them a great deal of harm,” said Mr Webb.

A case raising similar legal issues in respect of the Manus detention arrangements is also underway and has been adjourned pending the outcome of the Nauru challenge. Ruth Hudson, Practice Group Leader at Stacks Goudkamp lawyers, is representing several of the men involved in the Manus case including the lead plaintiff.

“Many of the men experienced torture and trauma in their countries of origin. They report that they have witnessed and been subjected to extreme violence inside the Manus detention centre, as well as being required to live in conditions that have only served to further compromise their already fragile mental and physical wellbeing. They are suffering serious physical and psychological injuries and illnesses, each of which which demand our attention and assistance and they should not be sent back to Manus Island,” said Ms Hudson.

Temporary agreement not to remove without notice

The men, women and children involved in the case are covered by legal undertakings from the Australian Government that they will not be returned to Nauru or Manus Island without notice.

In the months since the case was filed, the HRLC has worked closely with the Refugee Advice and Casework Service in Sydney, the Darwin Asylum Seeker Support and Advocacy Network in Darwin and support agencies and private commercial lawyers around the country to ensure people at risk of deportation offshore have received legal advice about the case.

Katie Wrigley, Principal Solicitor at RACS, said many of the people involved in the case had been terrified that they would be sent back to Nauru without notice.

“It shouldn’t have taken a case in the highest court in this country for the government to promise not to deport vulnerable people – including babies – without any notice and without any opportunity for those families to speak with their lawyers, but at least for now, they can go to sleep at night without the fear of being suddenly woken up and secretly whisked away to offshore detention,” said Ms Wrigley.

The legal team running the case includes barristers Ron Merkel QC, Craig Lenehan, David Hume, Rachel Mansted, Emma Bathurst and Stacks Goudkamp Lawyers. Assistance has also been provided by the Refugee Advice and Casework Service and Darwin Asylum Seeker Support and Advocacy Network.

Media Alert – Door Stop Press Conference: 9:30am Wednesday 7 October 2015 in the High Court forecourt in Parkes Place, Canberra. Details here.

Related media coverage: