High Court sets date for case challenging offshore detention

The High Court will sit in Canberra on 7-8 October to consider the lawfulness of the Australian Government’s role in offshore detention on Nauru, in a case brought by a group of people seeking asylum.

The case, filed by the Human Rights Law Centre, raises important and untested questions about the Australian Government’s power to facilitate, fund and otherwise be involved in detention arrangements outside Australia.

HRLC Director of Legal Advocacy, Daniel Webb, said the case was being run on behalf of over 150 men, women and children who have been detained on Nauru previously and brought to Australia for medical treatment or to give birth.

“These families came to Australia seeking safety but their time locked up offshore has exposed them to danger and has clearly taken a toll on them and on their children,” 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.

“Many of the men experienced torture and trauma in their countries of origin. They tell us that the conditions and their experiences in detention, particularly the violence and unrest they witnessed in February 2014 and the deaths of fellow asylum seekers, has caused significant deterioration in their already fragile mental states. Many of them are suffering potentially permanent physical and psychological injuries,” said Ms Hudson.

The case so far

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 otherwise facilitate the current offshore detention arrangements.

The government responded by hastily introducing one. With the support of the Opposition, the government enacted legislation which seeks 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 the HRLC’s Director of Legal Advocacy, Daniel Webb.

Despite the legal changes, Mr Webb said that serious questions remain about the extent of the Commonwealth’s involvement in offshore detention and whether its actions are lawful.

“While the government and the opposition have tried to retrospectively authorise three years’ of offshore detention and spending, there are serious and untested questions about whether the Australian Constitution permits them to do so,” said Mr Webb.

“We know the Government has powers to detain people in Australia and powers to remove people from Australia. But it is another thing altogether to then be involved in the indefinite detention of innocent men, women and children in the territories of other sovereign nations,” said Mr Webb.

The people at risk of removal

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 pro bono 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 take a case in the highest court in this country for the government to promise not to deport vulnerable people – including newborn babies – without any notice and without any opportunity for those families to speak with their lawyers,” said Ms Wrigley.

“The case has provided important temporary shelter to some incredibly vulnerable individuals who, at least for now, can now go to sleep at night without fearing 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 and Stacks Goudkamp Lawyers. Assistance has also been provided by the Refugee Advice and Casework Service and Darwin Asylum Seeker Support and Advocacy Network.

For further information or media comments, please contact:
Daniel Webb, Human Rights Law Centre Director of Legal Advocacy on 0437 278 961 or daniel.webb@hrlc.org.au
Ruth Hudson, Stacks/Goudkamp Lawyers on 0410 228 992 or ruth@stacksgoudkamp.com.au