It is hard to credit that two asylum seekers in Nauru could set themselves alight on Australia’s watch and the stories receive, compared to much else, so little attention in our hyper media cycle.
One would think the death of an Iranian man last week and the self-immolation of a Somali woman would be huge news, putting a great deal of pressure on the government as we move towards the election to outline an exit plan for Nauru.
But in the campaign the future of those on Nauru will be something neither side will be anxious to talk about.
Manus Island hit the headlines recently when the Papua New Guinea government announced, following a judgment of its Supreme Court, that the centre there will close.
Australian and PNG officials are now in negotiations that Australia hopes will find a way to keep the centre going. In a Tuesday statement the two governments said they’d continue “to work together on a road map”, meeting “regularly in the coming weeks”, which suggests the matter is being pushed safely beyond the election.
The government and the opposition are bipartisan on offshore processing. When it arises, the issue plays in favour of the Coalition, but it is not one Malcolm Turnbull seems naturally comfortably with. For political reasons Labor obviously tries to avoid it. That means the government isn’t being held to serious account – despite efforts by the Greens – in the way it is on much more minor matters.
In her valedictory speech on Wednesday, Labor MP Melissa Parke described the present system as “a festering wound that is killing off people and eroding our national character and respect”. Some in Labor are deeply unhappy and a few have been recently vocal about the ALP’s approach, but most don’t want the boat rocked.
As for the Liberals, those who used to speak up for asylum seekers have either left the parliament or gone quiet.
Amid his Wednesday media round of budget questions Turnbull was asked whether he ever thought he’d be defending keeping people in a position where they were so desperate they were killing themselves.
Turnbull sympathised with “the mental anguish that many of them are in … we grieve for them”, before swinging into the mantra that to keep our borders secure, people who sought to come to Australia by boat couldn’t be allowed to settle here.
Pressed on their future, Turnbull said the people on Nauru could move around there (it is an open centre); those on Manus judged to be refugees could settle there. There were also third-country options, while non-refugees were being encouraged to go home.
There was a hint of blame, when he suggested many had been led to believe they could end up being admitted to Australia.
Immigration Minister Peter Dutton has taken up a shovel to lay blame, bluntly heaping it on the activity of advocates. In a Tuesday statement on the Somali woman, Dutton said it was “of grave concern” she would “resort to such an extreme act of self-harm”.
“I have previously expressed my frustration and anger at advocates and others who are in contact with those in regional processing centres and who are encouraging them to engage in behaviours they believe will pressure the government to bring them to Australia. These behaviours have intensified in recent times, and as we see, have now turned to extreme acts with terrible consequences.
“Advocates and others who proclaim to represent and support the interests of refugees and asylum seekers must hear a clear message that their activities and these behaviours must end.”
In parliament on Wednesday, the Greens’ Adam Bandt challenged Dutton with a highly provocative question. “Aren’t you just showing pure cowardice by blaming the advocates helping the vulnerable, instead of accepting responsibility for your actions?” Bandt asked, then added: “Can’t we do better than this Labor-Liberal policy of not drowning, but burning?”
It was Manager of Opposition Business Tony Burke who jumped up to declare this was deeply offensive to all MPs. Bandt had to withdraw his “burning” line.
Dutton’s allegation must be deeply offensive to many advocates. More to the point, it is a cop-out – responsibility for what has become, in academic jargon, one of those “wicked problems” has to lie with the government.
Desperation and apparently extensive mental health problems mean the situation on Nauru is only likely to get worse. Having people there indefinitely is not a viable proposition. A workable strategy is needed, which also keeps the Australian border secure.
One of the debates of the coming campaign should be the search for practical answers. But it is a debate the government and opposition are not prepared to have, and nor are the media willing or able to give them a hard enough time to force them into it.
It’s a case study in how interests and circumstances conspire to push some issues off-stage in an election.
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 link below is to an article reporting on an alleged 70 billion dollar blackhole in the Coalition’s promises so far, in the lead up to the federal election.
The ALP asylum seeker policy appears to be a winner with Australian voters overall, with Kevin Rudd now being favored over Tony Abbott to deal with asylum seekers. However, the Pacific region isn’t impressed.
The link below is to an article reporting on the recent 4 Corners program and the Australian detention centres on Manus Island and Nauru. I have seen the program and it has confirmed my view that our asylum detention centres are a disgrace and should be shut down. We as a country need to reconnect with the principles of compassion and humanitarianism.