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.

Anglican Archbishop Kidnapped in Southern Nigeria

Gunmen abduct Edo state chairman of Christian Association of Nigeria after service.

LAGOS, Nigeria, January 26 (CDN) — Gunmen are still holding the Anglican archbishop of Benin diocese in southern Nigeria’s Edo state after abducting him on Sunday (Jan. 24).

Peter Imasuen, who is also the state chairman of the Christian Association of Nigeria (CAN), was abducted in front of his official residence on his way back from a church service. The kidnappers are reportedly demanding $750,000 for his release.

The armed kidnappers reportedly followed the archbishop from the St. Matthew Cathedral to his residence, where they dragged him out of his car and took him to an unknown location.

Executive members of CAN led by the Rev. Richard Ofere met with Edo Gov. Adams Oshiomhole yesterday on the abduction of the bishop; they declined to speak to news media but are believed to be working with family members and government officials on the matter.

Gov. Oshiomhole decried the kidnapping, which he blamed on the federal government’s withdrawal of soldiers from a state joint security program code-named, “Operation Thunderstorm” designed to help thwart militant violence and kidnappers.

He promised to meet officials of the president’s office on the need to increase security in the state and ensure that the bishop is released soon. Muslim President Umaru Yar’Adua left the country on Nov. 23 to seek treatment in Saudi Arabia, leading some to speculate on a leadership vacuum in the country.

“I feel I have failed as a governor to protect the lives of our people, but whatever we have to do will be done,” Gov. Oshiomhole said. “I have sent for all those who should know that everybody must do what needs to be done. We can never surrender to criminals.”

The identity of the kidnappers was not clear, but in recent years abducting top public figures for ransom has become common in the South-South and South- Eastern zones of the country, where militant groups have been campaigning against the poor level of development of the area.

Armed groups seeking a larger share of oil revenues for local residents have attacked oil installations in southern Nigeria since 2006. One major group, the Movement for the Emancipation of the Niger Delta (MEND), declared an open-ended ceasefire last October.

The cease-fire was meant to open the way for talk with authorities, but MEND recently said it was “reviewing its indefinite ceasefire announced on Sunday, Oct. 9, 2009 and will announce its position on or before Jan. 30, 2010.”

In the past four years, hundreds of foreign and local oil workers have been kidnapped in the region, with many being released unharmed after hefty ransom payments.

The militants have also blown up pipelines and offshore oil platforms.

Report from Compass Direct News