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Human rights campaigners say refugees are terrified after the High Court threw out a challenge to the Federal Government keeping asylum seekers in detention on Nauru. Courtesy ABC News 24.
The full bench of the High Court on Wednesday ruled that the federal government has the power under the constitution to detain people in other countries, finding that its conduct was within the law.
The 6-1 majority decision clears the way for the government to return about 250 asylum seekers in Australia, including 37 babies, to Nauru.
Prime Minister Malcolm Turnbull has been under pressure to allow child asylum seekers to stay in Australia regardless of the court's decision. The Greens said on Wednesday that forcing their return amounted to "child abuse".
In question time on Wednesday, Mr Turnbull reiterated the government's strong commitment to thwarting the people-smuggling trade, saying "the line has to be drawn somewhere and it is drawn at our border".
He said the High Court upheld Australia's border regime as legally and constitutionally valid, and claimed Labor's "experiments" with softer border protection led to 50,000 unauthorised boat arrivals and "hundreds drowned at sea".
Following the verdict Human Rights Law Centre legal advocacy director Daniel Webb, whose organisation brought the case to court, said "legality is one thing. The morality is another."
"It is fundamentally wrong to condemn these people to a life in limbo on a tiny island," he said.
"The stroke of a pen is all that it would take our Prime Minister or our Immigration Minister to do the decent thing and let these families stay."
The test case was run on behalf of a Bangladeshi woman who was brought to Australia from Nauru in August 2014 for medical treatment. Supporters said the woman, who has a baby daughter, was "terrified" of returning to Nauru, where asylum seekers say they have suffered physical and sexual abuse, poor health care and inadequate living conditions.
The woman argued that the Commonwealth's conduct, including restraining her liberty and entering into contracts to allow her detention, was not authorised by any valid Australian law.
The stroke of a pen is all that it would take our Prime Minister or our Immigration Minister to do the decent thing and let these families stayDaniel Webb, Human Rights Law Centre
The court ruled that the woman was not entitled to declare that her past detention was unlawful. It said a memorandum of understanding between the Commonwealth and Nauru on the processing of asylum seekers was authorised under the constitution, and other government conduct fell under the Migration Act.
Cases have also been brought for about 200 people who have been detained offshore and are now in Australia temporarily, including men who have been victims of violence on Manus Island and women sexually assaulted on Nauru.
The Human Rights Law Centre argued the Australian government asked Nauru to establish a detention camp, organised a perimeter fence to keep people inside and effectively controlled the detention of asylum seekers at the island - conduct it said was unlawful.
A former worker on Nauru, who has remained in close contact with asylum seekers and refugees, said those on the island saw the High Court case as their last hope and had reacted to the decision with "disbelief and despair". One asylum seeker had told her "we are all broken now".
The former worker reported receiving messages from children at Nauru before the verdict such as: "I am nearly dead. Only [the] High Court can save me" and "see you in Australia next week".
"I was extremely worried for most of those in contact with me who have developed mental health conditions on Nauru and have a history of self harm there," the source said.
"I have also been distressed for the families in onshore detention after [Mr] Dutton's threat to return them. I don't think he has any idea of the mental grenade his words were for those parents of children still suffering from their experiences on Nauru."
The former worker said many people were "at the end of their tethers after three years" on the island and, with their legal hopes dashed "I don't know what will help them endure the indignity, uncertainty and arbitrary cruelty of Nauru now".
The case in October last year followed the Nauru government's decision to fling open the gates of the detention camp to create an "open centre" 24 hours a day.
Lawyers for the Commonwealth had submitted that the woman involved in the test case would be free to come and go from the detention centre should she return to Nauru. They said the detention centre was established under Nauruan law.
Following the verdict, Greens senator Sarah Hanson-Young said sending the 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," she said.
"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.
"This is the first major test for the Prime Minister. Will he keep these children safe, where they can thrive and prosper, or will he dump them back on the prison island of Nauru?"
Senator Hanson-Young also called on Labor leader Bill Shorten to make clear his position on returning the children to Nauru.
Outside the court Mr Webb, of the Human Rights Law Centre, said he informed the plaintiff of the decision and it was "one of the most difficult phone calls I've ever had to make in my life".
"I had to call a young mother with a one year old baby and tell her that we lost. She hasn't slept fo days," he said.
"She wants the same things that every mother in the world wants and that is a decent life somewhere safe for her and her child.
She is now terrified that one night soon her and her child are gong to be woken up pulled onto a plane and left to languish in limbo on Nauru."
He said the decision of the judges was split, and the government's legal victory rested on a retrospective law they passed after we commenced this case".
"Right now I'm sure in the Immigration Minister's office it's high fives all round. They shifted the goal posts and they won in the High Court," he said.
"But let me tell you around the country right now there are 267 incredibly vulnerable people who will be terrified."
Those people, asylum seekers facing return to Nauru, included 54 children "in classrooms around the country right now" and about 12 women who "have been seriously sexually assaulted on Nauru or suffered serious sexual harassment on Nauru", Mr Webb said.
In a statement, Labor's immigration spokesman Richard Marles did not address the question of whether children should be returned to Nauru. He called on the government to immediately find ways to resettle refugees in third countries.
"[The government has] failed abysmally in securing any meaningful resettlement plan with a viable third country, instead wasting $55 million on a botched deal with Cambodia that has resettled only three people," he said.
"People have been left to languish in processing centres without any certainty for their future ... without an urgent resolution this government will be doing enormous damage to this refugee population."