Did ‘ending’ detention on Nauru also end the constitutional challenge to offshore processing?

Joyce Chia, Monash University and Asher Hirsch, Monash University

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.

So what is this case about anyway?

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.

How did Nauru’s announcement change the case?

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.

Circumventing the courts

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.

The Conversation

Joyce Chia, Lecturer (Sessional), Monash University and Asher Hirsch, Tutor, Monash University

This article was originally published on The Conversation. Read the original article.

Australian Politics: 24 July 2013

The latest asylum seeker ‘solution’ proposed in Australia continues to gather a lot of attention in Australian politics. The links below are to articles that look at the policy from varying prospectives. The first article is an in-depth look at the situation in Papua New Guinea.

For more visit:

As the Kevin Rudd experiment continues to be a winner for Labor, the Liberals are beginning to face the leadership change question themselves, with a possible shift from Tony Abbott to Malcolm Turnbull becoming popular among voters.

For more visit:

Australia: Kevin Rudd Has Resigned as Foreign Minister

The Foreign Minister, Kevin Rudd, has resigned. Will he now challenge the Prime Minister and try and get his old job back? One thing is for sure, despite the rhetoric coming from Julia Gillard and her supporters, Kevin Rudd is not to blame for the woes of the ALP government. Sure, they can use Kevin Rudd as a scapegoat as they are attempting to do, but everyone knows that the Gillard led government is something of a joke and they have no chance of winning the next election.

To win the next election there needs to be change and that has to start with the leadership. Simon Crean is not the answer – which appears to be something that has been suggested in recent days. That would be a very poor choice. As much as some members of the government would hate it, I do believe as many do, that Kevin Rudd is the best chance the ALP has of winning the next election, whenever that may be. That is my own opinion of course, but to do so (win I mean), he would have to a much better job than he did last time and actually govern.

Pastor, Church Official Shot Dead in Nigeria

Muslim militants of Boko Haram blamed for killings in Borno state.

JOS, Nigeria, June 10 (CDN) — Muslim extremists from the Boko Haram sect on Tuesday (June 7) shot and killed a Church of Christ in Nigeria (COCIN) pastor and his church secretary in Maiduguri, in northeastern Nigeria’s Borno state.

The Rev. David Usman, 45, and church secretary Hamman Andrew were the latest casualties in an upsurge of Islamic militancy that has engulfed northern Nigeria this year, resulting in the destruction of church buildings and the killing and maiming of Christians.

The Rev. Titus Dama Pona, pastor with the Evangelical Church Winning All (ECWA) in Maiduguri, told Compass that Pastor Usman was shot and killed by the members of the Boko Haram near an area of Maiduguri called the Railway Quarters, where the slain pastor’s church is located.

Pona said Christians in Maiduguri have become full of dread over the violence of Boko Haram, which seeks to impose sharia (Islamic law) on northern Nigeria.

“Christians have become the targets of these Muslim militants – we no longer feel free moving around the city, and most churches no longer carry out worship service for fear of becoming targets of these unprovoked attacks,” Pona said.

Officials at COCIN’s national headquarters in Jos, Plateau state, confirmed the killing of Pastor Usman. The Rev. Logan Gongchi of a COCIN congregation in Kerang, Jos, told Compass that area Christians were shocked at the news.

Gongchi said he attended Gindiri Theological College with Pastor Usman beginning in August 2003, and that both of them were ordained into pastoral ministry on Nov. 27, 2009.

“We knew him to be very gentle, an introvert, who was always silent in the class and only spoke while answering questions from our teachers,” Gongchi said. “He had a simple lifestyle and was easygoing with other students. He was very accommodating and ready at all times to withstand life’s pressures – this is in addition to being very jovial.”

Gongchi described Usman as “a pastor to the core because of his humility. I remember he once told me that he was not used to working with peasant farmers’ working tools, like the hoe. But with time he adapted to the reality of working with these tools on the farm in the school.”

Pastor Usman was excellent at counseling Christians and others while they were at the COCIN theological college, Gongchi said, adding that the pastor greatly encouraged him when he was suffering a long illness from 2005 to 2007.

“His encouraging words kept my faith alive, and the Lord saw me overcoming my ill health,” he said. “So when I heard the news about his murder, I cried.”



The late pastor had once complained about the activities of Boko Haram, saying that unless the Nigerian government faced up to the challenge of its attacks, the extremist group would consume the lives of innocent persons, according to Gongchi.

“Pastor Usman once commented on the activities of the Boko Haram, which he said has undermined the church not only in Maiduguri, but in Borno state,” Gongchi said. “At the time, he urged us to pray for them, as they did not know how the problem will end.”

Gongchi advised the Nigerian government to find a lasting solution to Boko Haram’s violence, which has also claimed the lives of moderate Muslim leaders and police.

The Railway Quarters area in Maiduguri housed the seat of Boko Haram until 2009, when Nigerian security agencies and the military demolished its headquarters and captured and killed the sect’s leader, Mohammed Yusuf, and some of his followers.

The killing of Pastor Usman marked the second attack on his church premises by the Muslim militants. The first attack came on July 29, 2009, when Boko Haram militants burned the church building and killed some members of his congregation.

On Monday (June 6), the militants had bombed the St. Patrick’s Catholic Church, along with other areas in Maiduguri, killing three people. In all, 14 people were killed in three explosions at the church and police stations, and authorities have arrested 14 people.

The Boko Haram name is interpreted figuratively as “against Western education,” but some say it can also refer to the forbidding of the Judeo-Christian faith. They say the word “Boko” is a corruption in Hausa language for the English word “Book,” referring to the Islamic scripture’s description of Jews and Christians as “people of the Book,” while “Haram” is a Hausa word derived from Arabic meaning, “forbidding.”

Boko Haram leaders have openly declared that they want to establish an Islamic theocratic state in Nigeria, and they reject democratic institutions, which they associate with Christianity. Their bombings and suspected involvement in April’s post-election violence in Nigeria were aimed at stifling democracy, which they see as a system of government built on the foundation of Christian scripture.

Christians as well as Muslims suffered many casualties after supporters of Muslim presidential candidate Muhammudu Buhari lost the April 16 federal election to Goodluck Jonathan, a Christian. Primarily Muslim rioters claimed vote fraud, although international observers praised the polls as the fairest since 1999.

Nigeria’s population of more than 158.2 million is almost evenly divided between Christians, who make up 51.3 percent of the population and live mainly in the south, and Muslims, who account for 45 percent of the population and live mainly in the north. The percentages may be less, however, as those practicing indigenous religions may be as high as 10 percent of the total population, according to Operation World.

Report From Compass Direct News


Malaysian Christians Seek to End Restrictions on Malay Bibles

Federation calls for removal of ‘every impediment’ to importing and printing Scripture.

KUALA LUMPUR, Malaysia, April 6 (CDN) — Christian importers of Bibles that Malaysian officials detained are balking at conditions the government has imposed for their release, such as defacement of the sacred books with official stamps.

The Home Ministry stamped the words, “This Good News [Malay] Bible is for use by Christians only” on 5,100 Bibles without consulting the importer, the Bible Society of Malaysia (BSM), which initially refused to collect them as it had neither accepted nor agreed to the conditions. The Home Ministry applied the stamp a day after the government on March 15 issued a release order for the Bibles, which had been detained in Port Klang, 38 kilometers (24 miles) southwest of Kuala Lumpur, since March 20, 2009.

Another 30,000 Bibles detained since Jan. 12 on the island of Borneo remain in port after the Sarawak state Home Ministry told the local chapter of Gideons International that it could collect them if the organization would put the stamp on them. Gideons has thus far declined to do so, and a spokesman said yesterday (April 5) that officials had already defaced the books with the stamp.

The government issued letters of release to both organizations on March 15 under the condition that the books bear the stamp, “Reminder: This Good News [Malay] Bible is for use by Christians only. By order of the Home Minister,” and that the covers must carry a serial number, the official seal of the department and a date.

The Home Ministry’s stamping of the BSM Bibles without the organization’s permission came under fire from the Christian community. In a statement issued on March 17, Bishop Ng Moon Hing, chairman of the Christian Federation of Malaysia (CFM), described the Home Ministry’s action as desecration.

“[The] new conditions imposed on the release of the impounded Bibles … is wholly unacceptable to us,” he added.

Ng described the conditions imposed by the Home Ministry as tantamount to treating the Malay Bible as a “restricted item” and subjecting the word of God to the control of man. In response, Home Minister Hishammuddin Hussein has said the act of stamping and serialization was standard protocol.


Government Overtures

In the weeks following the March 15 release order, the government made several attempts to try to appease the Christian community through Idris Jala, a Christian from Sarawak state and a minister in the Prime Minister’s Department.

Idris issued the government’s first statement on March 22, explaining that officials had reduced earlier conditions imposed by the Home Ministry to require only the words, “For Christianity” to be stamped on the covers of the Bible in font type Arial, size 16, in bold.

Idris informed BSM that the Bibles could be collected in their present state or arrangements could be made to have stickers with the words “For Christianity” pasted over the imprint of the stamps made by the Home Ministry officials. In the event that this was not acceptable, the minister pointed out that BSM had the option of having the whole consignment replaced, since the government had received an offer from Christian donors who were prepared to bear the full cost of purchasing new Bibles.

In response, the CFM issued a statement on March 30 saying, “The offer made does address the substantive issues,” and called on the government “to remove every impediment, whether legal or administrative, to the importation, publication, distribution and use of the [Malay Bible] and indeed to protect and defend our right to use the [Malay Bible].”

Bishop Ng, however, left it to the two importers to decide whether to collect the Bibles based on their specific circumstances.

On March 31, BSM collected the mishandled Bibles “to prevent the possibility of further acts of desecration or disrespect.” In a press statement, BSM officials explained that the copies cannot be sold but “will be respectfully preserved as museum pieces and as a heritage for the Christian Church in Malaysia.” The organization also made it clear that it will only accept compensation from the Home Ministry and not from “Christian donors,” a term it viewed suspiciously.

On Saturday (April 2), Idris issued a 10-point statement to try to resolve the impasse. Significantly, this latest overture by the government included the lifting of present restrictions to allow for the local printing and importation of Malay and other indigenous-language Bibles into the country.

In Sarawak and Sabah, there would be no conditions attached to Bibles printed locally or imported. There also would be no prohibitions and restrictions on residents of these two states carrying such Bibles to other states. A significant 64 percent of Malaysian Christians are indigenous people from Sabah and Sarawak states who use the Malay language in their daily life, and having the Bible in the Malay language is considered critical to the practice of their Christian faith.

In the case of West Malaysia, however, in view of its larger Muslim population, the government imposed the condition that the Bibles must have the words “Christian publication” and the sign of the cross printed on the front covers.


Christian Response

Most Christians responded to this latest overture with caution. Many remained skeptical, seeing it as a politically motivated move in view of Sarawak state elections on April 16. Nearly half of Sarawak’s population is Christian.

Bolly Lapok, an Anglican priest, told the online news agency Malaysian Insider, “It’s an assurance, but we have been given such assurances before.” BSM General-Secretary the Rev. Simon Wong reportedly expressed the same sentiments, saying the Home Ministry already has a record of breaking its word.

The Rev. Thomas Phillips of the Mar Thoma Church, who is also president of the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism, questioned the timing of the proposal: “Why, after all these years?”

The youth wing of the Council of Churches rejected the proposal outright, expressing fears that the government was trying to “buy them over” for the Sarawak election, and that it would go back on its word after that.

Bishop Paul Tan, president of the Catholic Bishops’ Conference of Malaysia, called the proposal an “insidious tactic of ‘divide and rule,’” referring to its different requirements imposed on Malaysians separated by the South China Sea. Dr. Ng Kam Weng, research director at Kairos Research Centre, stressed that the proposal “does not address the root problem of the present crisis, i.e. the Allah issue.”


Muslim Reactions

The 10-point proposal has also drawn the ire of Muslim groups, who view it as the government caving in to Christian pressure.

Perak Mufti Harussani Zakaria expressed his disappointment, reportedly saying, “If the government does this, just cancel the law,” in reference to various state Islamic enactments that prohibit the use of the word “Allah” and other so-called Islamic terms that led to the banning of the Malay Bible. Malay Bibles have not been allowed to be printed locally for fear that they will utilize “prohibited” words.

The Muslim Organizations in Defense of Islam (Pembela) threatened to challenge the 10-point proposal in court if it was not reviewed in consultation with Muslim representatives.

On the same day Pembela issued its statement, the government seemed to have retracted its earlier commitment. The Home Minister reportedly said talks on the Malay Bibles were still ongoing despite Idris’ 10-point proposal, which purportedly represents the Cabinet’s decision.

As a result, James Redas Noel of the Gideons said yesterday (April 5) that he was confused by the mixed messages coming from the government and will not make a decision on whether to collect the Bibles until he had consulted church leaders on the matter, according to the Malaysian Insider.

The issue with the Malay Bibles is closely tied to the dispute over use of the word “Allah” by non-Muslims.

In a controversial court ruling on Dec. 31, 2009, judge Lau Bee Lan had allowed The Herald, a Catholic newspaper, to use “Allah” for God in the Malay section of its multilingual newspaper.

The Home Ministry filed an appeal against this decision on Jan. 4, 2010. To date, there is no indication as to when the case will be heard.

Christians make up more than 9 percent of Malaysia’s nearly 28 million people, according to Operation World.

Report from Compass Direct News

Somalia’s militant group pursues Christians into Kenya

Somalia’s militant group al Shabaab is no longer confining its agenda to the country’s borders. They are now spreading into neighboring countries. There will not be a rescue coming from the Somali government, reports MNN.

Todd Nettleton with Voice of the Martyrs says the peacekeeping help that Somalia is getting is hampered by the internal anarchy. "How do you provide support to a country that is basically a failed state, where there is chaos on the ground? "

A "failed state" describes a country with a fractured social and political structure. Nettleton notes, "Really, there is no authority structure. There is no government body that really has power to enforce their will on the country." Sadly, Somalia has been leading the Failed States Index for three years’ running.

The conflict is now extending into Kenya. One reason might be al Shabaab’s intent to eradicate Christianity and create a Muslim state. Nettleton explains. "We heard a report that al Shabaab literally had a list of Christians that they were seeking."

Since al Shabaab is hunting believers, they are fleeing. "There are Christians who have had to leave Somalia who are in some of these refugee camps in surrounding nations. As the al Shabaab philosophy spreads into those camps, those Christians are put directly at risk." For example: Kenya.

Despite the oppression, Nettleton says the Gospel can’t be discounted. There is still a remnant church, albeit deep underground.

Voice of the Martyrs has found a way to let them know they’re not forgotten. "It’s a challenge to find Christians, it’s a challenge to support them. We have provided some help to the families of martyrs in Somalia."

While the situation seems hopeless, there is one avenue that surpasses the political venues. "The most significant thing that we can do is to pray for the country of Somalia, to pray especially for our Christian brothers and sisters there."

Somalia is ranked fourth on the Open Doors World Watch list of countries that are noted for their persecution of Christians.

Report from the Christian Telegraph

Muslim Extremists Murder Christian Family in Pakistan

Lawyer, wife, five children shot to death after he tried to defend Christian.

ISLAMABAD, Pakistan, September 30 (CDN) — Islamic extremists killed a Christian lawyer, his wife and their five children in northwestern Pakistan this week for mounting a legal challenge against a Muslim who was charging a Christian exorbitant interest, local sources said.

Police found the bodies of attorney and evangelist Edwin Paul and his family on Tuesday morning (Sept. 28) at their home in Haripur, a small town near Abbotabad in Khyber Pakhtunkhwa Province (previously known as the North-West Frontier Province, or NWFP), according to Haripur Station House Officer (SHO) Maqbool Khan.

The victim and his wife Ruby Paul, along with their five children ages 6 to 17, had been shot to death.

“On Sept. 28 at around 8 a.m., we received a call from Sher Khan colony that people heard gunshots, and there was a group of people who ran from a house and drove away,” Khan said. “We went and found seven bodies in a house.”

Paul’s Muslim neighbor, Mushtaq Khan, told Compass that the previous day a group of armed men had threatened the lawyer.

“On Monday a group of armed men stopped Paul and took him by the collar and said, ‘Leave the town in 24 hours – we know how to throw out Christians, we will not allow even a single Christian to live here. We will hang them all in the streets, so that no Christian would ever dare to enter the Hazara land.”

The Hazara are settlers from northern Pakistan who are an ethnic mixture of Punjabi Jats and Pashtuns (also called Pathans). Drawing attention for demanding a separate province for themselves when the NWFP became Khyber Pakhtunkhwa, the Hazara community financially supports area Islamic extremist groups and is known for charging up to 400 percent interest to Christians. Paul had moved with his family to the area in February.

He had taken up the case of Robin Mehboob, a Christian taxi driver in Haripur who had received a loan of 150,000 rupees (US$1,725) from Noor Khan, an influential Muslim whose lending network extends to some parts of Punjab Province, to buy a taxi. Originally Noor Khan agreed that Mehboob would pay back 224,000 rupees (US$2,580) after one year, Mehboob said.

“I gave my property papers as a guarantee,” Mehboob told Compass, “but then the amount of the interest was raised to 500 percent because I am a Christian – he was demanding back 1.12 million rupees [US$12,893]. They have forcefully taken over my property and have confiscated my taxi as well. I am a poor man, the taxi is the only source of income.”

Paul took Mehboob and the documents of the original loan agreement to the Haripur police station, Mehboob said.

“We talked to the SHO, who said, ‘You can file a complaint, but I can assure you that no one will testify against Noor Khan, as he is supported by extremist groups,’” Mehboob said. “We filed the complaint, and one of the police officers informed [Noor] Khan that we went to the police station.”

On their way back from the police station, three cars filled with Noor Khan’s associates stopped near his house, Mehboob said.

“They came out and said, ‘How dare you Christians go to the police, don’t you know we own the law here?’ They assaulted us, beating us with fists and clubs, and warned that if we try to seek any assistance, they will kill us.”

Mehboob left Haripur that night and went to his brother in Sialkot.

Paul wrote to the Khyber Pakhtunkhwa government, Christian organizations and churches for help, explaining how Noor Khan and the extremist groups were driving Christians out of the area by taking over their property or threatening to kill them unless they sold their homes.

The Muslim extremist groups most active in the area are the banned Jamat ul Dawa, the Sunni Tahreek, and some groups linked with the Pakistani Taliban. The extremist groups were making fake documents to occupy properties owned by Christians, and Hazara investors were supporting the campaign, area Christians said.

The Muslim extremists have also threatened many Christians with death if they do not convert, they said.

Pastor Rehmat Naeem of St. Paul Church in Haripur told Compass that he had also received threats.

“Some extremists sent us threats through phone calls and letters, asking us to leave Haripur,” Pastor Naeem said. “Many Christians were forced to sell their property at very low rates and leave the area. Edwin Paul tried to help the Christians – he even talked to the higher authorities, but no one was ready to testify against the extremists.”

Pastor Naeem added that two months ago area extremists kidnapped eight missionaries; six have been released, and the two others are presumed dead.

A First Information Report has been filed in the murder of Paul and his family, and the District Coordination Officer and District Police Officer (DPO) have strongly condemned the crime and instructed the SHO to find those responsible, authorities said.

Chief Secretary of Hazara Division Ali Ahmed has released a statement ordering a police operation “under the Terrorist Act against the extremists and the Hazaras for forcefully driving away the Christians and killing seven innocent people. We will not allow anyone to threaten the religious minorities. It is the duty of the state to protect the life and property of its people. The DPO has been instructed to arrest the culprits in 72 hours and submit a report or he will be suspended.”

Report from Compass Direct News