Australia’s Damning High Court Decision


The High Court of Australia has recently ruled Australia’s offshore detention policies situated on the islands of Nauru and Manus to be lawful. The full bench of the High Court on Wednesday, February 3rd held that the Federal Government has the full judicial power under the constitution to detain people in other countries. Subsequently, it found that the acts conducted so far, with respect to asylum seekers being detained outside of the country’s borders, to be legal. The 6-1 majority decision allows the government to return approximately 250 asylum seekers in Australia back to detention centres in Nauru. Of the 250 or so asylum seekers, 37 are infants.

This ruling destroys all hopes for asylum seekers who wish to be settled into a safe and new home in Australia quickly and without complications. A former worker on Nauru, who has remained in close contact with the refugees and asylum seekers, said that those trapped on the island had viewed the High Court case to be their last hope, reacted to the verdict with “disbelief and despair”. One asylum seeker had even said to her that “We are all broken now.”

“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…I don’t know what will help them endure the indignity, uncertainty and arbitrary cruelty of Nauru now.”

Whilst Australian Prime Minister Malcolm Turnbull has been under extreme pressure to allow child asylum seekers to stay in Australia regardless of the High Court’s decision, Mr. Turnbull evinces an unwavering stance against tolerance for those who seek refuge from political instability or war in their own countries. During Question Time, Mr Turnbull repeated that the government’s strong commitment to fighting the people-smuggling trade by commenting that “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 unauthorized boat arrivals and “hundreds drowned at sea.”

However, it is evident that this issue is one that divides Australia and its political stage. In a statement, Labor’s immigration spokesman, Richard Marles, did not address the question of whether children should be returned to Nauru. Instead, 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.”

The Greens stated that the forceful removal of children from Australian soil to the appalling conditions on Nauru Island amounted to “child abuse.” Greens senator, Sarah Hanson-Young further emphasized that sending the children back to Nauru would constitute as “child abuse and Malcolm Turnbull needs to decide whether he is willing to authorize 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?”

Greens senator, Sarah Hanson-Young is referring to the string of reports regarding sexual and physical abuse from asylum seekers on Nauru and Manus Island. The company responsible for running the detention centre, Transfield Services, told a Senate inquiry that it received 67 allegations of child abuse up until May of 2015. 30 of these allegations were against detention centre staff. Furthermore, 33 asylum seekers allege that they have been raped or sexually assaulted at the centre and another 5 claim that they have been asked for sexual favours in exchange for contraband. Daniel Webb, who is the director of legal advocacy at Melbourne’s Human Rights Law Centre, said that Australia should not be settling refugees in the Nauruan community. He says that it is “becoming clear that Nauru, both inside the detention centre and outside of it, is not a safe place for women and not a safe place for children.” He believes that “It is fundamentally wrong to condemn these people to a life in limbo on a tiny island. 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 High Court Case was run on behalf of a Bangladeshi woman who was brought to Australia from Nauru in August of 2014 for medical treatment. Representatives of the asylum seeker said that the woman, who has an infant daughter, was “terrified” of returning back to the Island, where she would be condemned to physical and sexual abuse, poor health care and appalling living conditions.

The woman argued that the Commonwealth’s conduct, which includes the denial of her liberty and entering into contracts that determine her detention, was not authorized by any valid Australian law. However, in direct retaliation to these allegations, the court ruled that the woman was not entitled to declare that her past detention was unlawful. It was judged that a memorandum of understanding between the Commonwealth and Nauru on the processing of asylum seekers existed and was authorized under the constitution, and that other government conduct was covered under the Migration Act.

It seems to me that nothing has changed in Australia’s legislation since the White Australia Policy of the twentieth century, or even the Assimilation Policy (1951-1962). This country may pride itself on being one of the world’s most multi-racial and multi-cultural nations, but the truth is harder for the government to admit.

The all-powerful judicial power held by the Australian government within its constitution allows politicians, who are mainly straight, white males from privileged backgrounds, to determine the fate of particularly vulnerable people. This can be compared to the condemnable and racist acts that were carried out to ‘assimilate’ Indigenous Australians, which was encouraged by the Australian government 60 years ago. This new judgement, which is held by the High Court, is further evidence that the government endorses the systematic restriction of who can be “Australian” based on a discriminative standard: race.

With this High Court judgement, the Australian government has lost all credibility in the International Human Rights community. In order to regain respect on the international stage, as well as their own citizens, Australia’s government needs to seriously reconsider its abusive refugee policies and quickly take steps to restore its international standing as a country that upholds and respects the rights set out in Universal Declaration of Human Rights.

As Mr Webb from the Human Rights Law centre advocated, “Legality is one thing. The morality is another.”

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