Federal Politics


No clear winner likely from High Court ruling

Here's one reasonably safe prediction about Wednesday's High Court decision on the legality of the Australian government's role in offshore detention on Nauru: there will not be one unqualified winner.

Nauru insists asylum seekers are no longer detained in their 'open centre'.
Nauru insists asylum seekers are no longer detained in their 'open centre'. Photo: Andrew Meares

If the challenge on behalf more than 260 asylum seekers who were brought to Australia for medical treatment is defeated, the mental torment of those on Nauru and Manus is dramatically increased – and with it the risk of another awful episode.

If, on the other hand, the challenge succeeds, you can bet that the Peter Dutton has a contingency plan aimed at ensuring that offshore processing continues, so this result would not, of itself, end the ordeal of those seeking relief. Far from it.

Illustration: Ron Tandberg
Illustration: Ron Tandberg 

Given the way the case has transpired, with the goal posts moving not once, but twice, during proceedings, a more nuanced verdict would seem likely.

First, the Coalition government made retrospective changes to legislation to shore up its position after the case began. Then, the Nauruan government moved to an "open" centre arrangement, insisting asylum seekers were no longer being detained.


The latter change could make it harder to draw conclusions from the decision about the legality of the detention arrangement on Manus Island, where more than 900 men remain in what amounts to indefinite custody in harsh conditions.

Among the questions being considered by the full bench is whether the Australian government's role in the detention of those on Nauru was big enough for it to be considered the detainer.

If the court finds in the asylum seekers' favour on this question, it has to rule on whether that detention infringed the limits of constitutional power and, perhaps, whether retrospective laws were valid.

Even a "victory" on these questions would not necessarily free the asylum seekers from the prospect of return to Nauru, because the Australian and Nauru governments can say asylum seekers are no longer detained on the island.

But it would suggest a challenge on behalf of the Manus detainees, who have just endured their third Christmas in detention, could be successful.

As things stand, the Immigration Minister is intent on sending back those who came from Nauru for medical treatment, along with the babies born on the mainland, not least because this would leave barely a handful of children in mainland detention centres.

One measure of his determination not to bend could be the preparation of the family compound on Christmas Island to hold these people until a way can be found around any adverse decision.

Sooner or later, however, the Australian government will have to step back, see the bigger picture and find a way to end the suffering of those on Nauru and Manus.

Daniel Webb of the Human Rights Law Centre is right. "The legality is complex but the morality is simple – it is fundamentally wrong for the Government to condemn vulnerable people to a life in limbo on Nauru and Manus."

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