Offshore Detention: High Court Rules In Favour Of Government

03/02/2016 10:26 AM AEDT | Updated 15/07/2016 12:51 PM AEST
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NAURU - JANUARY 01: Men play Australian rules football in Nauru, South Pacific (Photo by Tim Graham/Getty Images)

CANBERRA -- The High Court has dismissed a challenge against the legality of Australia's offshore immigration detention regime, effectively sending more than 250 refugees to Nauru.

Lawyers for a young Bangladeshi mother -- who had been detained on Nauru but brought to Australia for medical treatment -- had argued the Commonwealth did not have legal authority to support offshore detention, and that such a system flouted the government's constitutional powers.

"The majority of the Court held that s198AHA of the Migration Act 1958 (Cth) ("the Act") authorised the Commonwealth's participation, to the extent that the Commonwealth did participate, in the plaintiff's detention," the decision read.

"The Court held, by majority, that the plaintiff was not entitled to the declaration sought. The conduct of the Commonwealth in signing the second MOU (Memorandum of Understanding) with Nauru was authorised by s 61 of the Constitution."

The ruling clears the way for more than 250 people currently in onshore immigration detention in Australia, including 37 children, to be moved to Nauru. The move is expected to occur within days.

Speaking on The 7:30 Report on Wednesday night, Immigration Minister Peter Dutton said the government will assess the cases individually and each asylum seeker will be sent back to Nauru when they no longer require medical treatment.

Dutton suggested some advocates have become "emotional" in their crusade against the government's asylum seeker policy and consequently "there is a lot of misinformation" about the treatment and conditions on Nauru.

"People are desperate to live in our country. Literally millions of people are. But the situation on Nauru is quite different than the way in which people are painting it," said the Immigration Minister.

The case was launched by the Human Rights Law Centre, on behalf of the young mother who now has a one-year-old son. Daniel Webb, the group's director of legal advocacy, told media after the ruling was handed down that he was bitterly disappointed with the verdict.

"It was a split decision. A majority of judges found the governments involvement was authorised by a retrospective law they passed after we commenced this case," he said.

"They shifted the goal posts and they won."

The law he referred to was section 198AHA, inserted into the Migration Act in August, which allows the commonwealth to " take, or cause to be taken, any action in relation to the arrangement or the regional processing functions of the country," including making payments to facilitate offshore processing and the incredibly broad provision to "do anything else that is incidental or conducive to the taking of such action or the making of such payments."

The High Court's ruling stated "the plaintiff's claim was well-founded until the insertion of s 198AHA."

Webb said HRLC would take time to analyse the decision before announcing their next move.

The news was met with dismay by the dozen protestors gathered outside the court. A refugee advocate ran from inside the building, showing two thumbs down to the supporters.

"It's gone down", she said.

"Ruled in favour of the government."

The woman claimed the plaintiffs were to pay costs for the case.

Greens immigration spokesperson Senator Sarah Hanson-Young quickly came out against the news.

"Sending these children to Nauru would be child abuse and Malcolm Turnbull needs to decide whether he is willing to authorise that," she said.

“The evidence is clear and it’s undeniable that Nauru is unsafe for women and children and sending them back would be torture.

UNICEF Australia's Amy Lamoin also spoke out against the ruling.

“It’s unreasonable for the Australian Government to shift this responsibility to one of its nearest neighbours,” she said.

“Nauru is a developing nation working to improve the education, child health and child protection outcomes for its own children. The additional pressure of Australia’s offshore detention program shifts our responsibility onto a developing country with its own existing needs."

"We cannot disrupt children and parents’ recovery processes and we cannot return them to a situation where they may experience serious harm."

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