The Nauruan government announced earlier this week that it will remove the remaining restrictions on the liberty of the asylum seekers detained there, and process all pending claims for asylum. It initially said it would process the claims in a week, but has since backtracked from that commitment.
Many have claimed that the announcement is a strategic move to undermine a constitutional challenge to Australia’s offshore detention regime, heard by the High Court this week – although the Australian government has denied this. So does the policy change spell the end of the challenge?
While that question can only be answered after the High Court’s decision, the hearings give a hint. The short answer is that the Nauruan government’s announcements have already had a much greater effect in the High Court than on Nauru itself.
The plaintiff in this case is a Bangladeshi woman who was detained on Nauru before being brought to Australia during her pregnancy. If the case fails, she, her ten-month-old baby and more than 200 people now in Australia will be sent back to Nauru or Manus Island.
The case, together with a similar one relating to Manus Island, began as a challenge to the Commonwealth’s power to spend money on offshore processing centres. This was on the basis of recent High Court cases that found that legislation was generally required to authorise the Commonwealth entering into contracts and spending money, subject to certain exceptions.
Not unusually, parliament intervened. In late June, the major parties combined to pass “emergency” authorising legislation, which applied retrospectively.
This meant the plaintiff was forced instead to argue that the emergency legislation was invalid because it did not fall within the Commonwealth’s powers to make laws set out under the Constitution. As the High Court’s questions made clear, this is a difficult argument to run. The authorising legislation appears clearly related to at least two of the broadest legislative powers of the Commonwealth – the power to regulate aliens and the power to engage in external affairs.
The plaintiff’s main argument now was that the Commonwealth, by in effect detaining asylum seekers on Nauru, went beyond its constitutional power to detain. The argument rested on two main steps.
First, previous cases had established certain constitutional limits on the executive’s power to detain asylum seekers in Australia. These limits included that such detention must be limited to permissible purposes and limited in time to what was reasonably practicable to effect that purpose, and that the courts must be capable of supervising the legality of that detention.
Second, these constitutional limits did not apply to detention on Nauru. The effect of this was that the offshore processing regime enabled Australia to do outside its borders what it could not do inside. This would in effect subvert the High Court’s role in supervising the constitutionality of executive power.
At the heart of this was an argument that the Commonwealth was to be treated as, in substance, detaining the asylum seekers. That argument rested on the evidence that the Commonwealth funded, authorised and controlled the offshore processing regime.
This is a difficult argument to run. Similar arguments failed last year before the High Court. As High Court justices pointed out this week, there is nothing in either the Migration Act or the Memorandum of Understanding that requires Nauru to detain asylum seekers.
Nauru’s announcements over the past week significantly undermined the plaintiff’s main argument. This argument rests on there being unconstitutional detention, and now there is no detention.
As a consequence, the Commonwealth argued that all of the questions (and associated remedies) in the case relating to the Commonwealth’s future conduct were no longer relevant.
The Commonwealth is also now arguing that it is not useful for the High Court to consider the legality of past detention. This is because deciding that question will not produce any real consequence for the plaintiff.
That might surprise lay observers, but Australian courts have long held that the courts should not decide cases where it can serve no useful result. While a claim for compensation could have been such a result, the case was never argued in this way – as the Commonwealth duly pointed out.
From this week’s hearings, it certainly seems that these sudden changes to policy in Nauru have dramatically weakened this constitutional challenge – if not yet the companion challenge to the constitutionality of offshore processing on Manus Island.
Yet again, it seems, the government may have successfully outmanoeuvred legal challenges by changing the law and the facts on the ground.
For the asylum seekers on Nauru, other facts on the ground remain much the same. They are still unsafe, separated from their families and unable to leave Nauru for a real life.
Malcolm Turnbull confronts a classic “wicked problem” in how to deal with the nearly 1600 asylum seekers who are stuck in terrible conditions on Nauru and Manus Island.
A “wicked problem” is one that is “highly resistant to resolution”. In this case, Turnbull has – if he chooses to take it up – the policy challenge of finding a humane outcome for the detainees while maintaining a convincing “tough on borders” stand vis-a-vis the people smugglers.
This would also involve a political challenge. Hardline conservatives in his party, still appalled by the leadership coup, will use the asylum-seeker issue as one marker by which to judge Turnbull. From the other perspective, so will some moderate Liberals in the party and small-l liberals in voterland.
The present unacceptable state of affairs has most recently been highlighted by the United Nations Special Rapporteur on the human rights of migrants, François Crépeau. He announced he was postponing his September 27-October 9 visit to Australia “due to the lack of full co-operation from the government regarding protection concerns and access to detention centres”.
Crépeau said the new Border Force Act, which threatens detention centre staff who disclose protected information with two years in jail, “would have an impact on my visit as it serves to discourage people from fully disclosing information relevant to my mandate”.
He had asked the government for a written guarantee that no-one he met would be at risk of “any intimidation or sanctions” under that act. The government was not prepared to give the guarantee required by his official terms of reference.
Crépeau said that since March he had repeatedly requested that the Australian government facilitate his access to its offshore processing centres, without success.
Immigration Minister Peter Dutton responded that the government had “accommodated to the fullest extent possible the requests of the office of the Special Rapporteur”. Access to centres in Papua New Guinea and Nauru “is the responsibility of these sovereign nations and needs to be addressed with their governments”, Dutton added.
The most recent numbers (late August) showed 936 males detained on Manus and 653 detainees in Nauru (446 men, 114 women and 93 children). Processing has been painfully slow.
Under the Abbott government it was thought acceptable to let these people languish, apparently indefinitely.
Hopefully Turnbull will take a different view. He hinted at this last week when asked by Sky’s David Speers about the people “stuck” offshore. “I have the same concerns about the situation of people on Manus and Nauru as you do, and as I would think almost all, all, Australians do,” he said.
When some saw this as a potential softening of policy, however, he quickly reiterated that these people would never come to Australia.
Turnbull should address several steps if he is going to deal with the plight of the people on Nauru and Manus.
First, the government should do whatever is required to give the Special Rapporteur proper access to people and places. Ensuring protection for those who speak with the Rapporteur and access to centres is the easiest part of dealing with the wicked problem.
Second, there should be more Australian oversight in the centres. Claims that the sovereignty of PNG and Nauru would be compromised do not hold water – Australia is paying the bills.
Third, the government should find a way of having the people in the detention centres processed more quickly. The processing is done by the Nauru and PNG authorities, so the Australian government says “ask them” in response to questions about delays – a convenient but not convincing answer.
Fourth, those determined to be refugees need to be resettled satisfactorily, bearing in mind that the government won’t allow them to come to Australia.
From the reporting we have seen – most recently at the weekend from The Age’s Michael Gordon, who visited Manus – the conditions of the small number whose refugee claims have been upheld and who are out of the detention centres are appalling.
The government promised large amounts of funding for Cambodia to take people. Only a handful of refugees went.
Other third-country destinations are needed. But what hope of finding them, when the world is awash with great human tides of asylum seekers? Are any countries interested in “people swap” deals?
Fifth, any attempt by people smugglers to take advantage of a more humane policy towards the Manus and Nauru people by trying to restart the trade would need to be stared down. Both sides of politics now endorse turnbacks and there is no reason to think this would not continue to be effective as a deterrent.
Sixth, the Border Force Act should be amended, to allow those working in detention centres proper rights to provide information publicly in appropriate circumstances. The Australian Medical Association has been campaigning against the legislation and its voice should be heeded – it has a professional not a commercial interest in the issue.
In his last days as prime minister, Tony Abbott had Australia make a generous gesture to 12,000 refugees from the Syrian conflict. That actually was easier than solving the problem of the people stranded in PNG and Nauru. But the fate of those close at hand and under our watch is equally important and increasingly urgent.