High Court challenge to offshore immigration detention power fails



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The decision reveals the striking breadth of the government’s power to deal with asylum seekers and refugees in ways that directly contravene international law.
AAP/Eoin Blackwell

Amy Maguire, University of Newcastle

The High Court has today rejected a claim that the Australian government can only exercise its powers outside Australia for purposes that would be legal under the law of the relevant foreign country.

This means the Australian government had and has the power to establish and maintain its offshore immigration detention facility in Papua New Guinea, despite detention of asylum seekers there violating PNG law.

Background to the decision

The case commenced in May 2016. The initial application was a class action seeking relief on international, constitutional, administrative and civil law grounds. The court later permitted the plaintiff to file an amended application on more limited grounds.

The sole current plaintiff is an Iranian man, taken into Australian jurisdiction while on board an asylum-seeker vessel in July 2013. He was transported to Christmas Island, detained, and categorised as an “unlawful non-citizen”. In August 2013 the plaintiff was transferred to the offshore immigration detention facility on Manus Island.

The plaintiff claims to be a refugee but has not participated in the assessment process in PNG. He does not want to be settled there as a refugee due to fear of reprisals after giving eyewitness testimony at the trial of those convicted for the killing of Reza Barati. He has not been officially detained since around May 2016, but feels effectively detained due to the hostile environment outside the grounds of the detention centre.

The case decided today responded to the decision of the PNG Supreme Court in the Namah case. That court found that Australia’s detention of asylum seekers on Manus Island violated PNG law.

Unlike in Australia, PNG has constitutional human rights protections. These forbid the deprivation of personal liberty in most cases where a person has not committed a crime.

PNG announced the detention centre would close. Its prime minister, Peter O’Neill, asked Australia to make other arrangements for all asylum seekers still on Manus Island. No such arrangement has yet been made for the plaintiff in this case. He cannot be forcibly returned to Iran, as Iran refuses to accept involuntary returns.


Further reading: How a charter of rights could protect Australians’ fundamental freedoms


What was the High Court asked to determine?

The court was asked to determine whether the Australian government has power under the Constitution to do the things it has done to the plaintiff (and many others).

The Namah decision prompted most of the questions put to the court. They tested whether Australia could validly make and continue its arrangements for offshore processing and detention of asylum seekers on Manus Island, in light of the Supreme Court decision that those arrangements violate constitutional rights protections in PNG.

At the hearing in May 2017, Chief Justice Susan Kiefel asked the plaintiff’s barrister how the Namah decision could bear on the court’s interpretation of the Australian government’s powers under the Migration Act. Those powers are defined by the act and must be interpreted according to the Australian Constitution.

The plaintiff argued the Constitution should be read to imply a limitation on governmental power. Specifically:

That the power is to be used for a legal purpose, meaning a purpose legal where it is exercised, where it has effect.

The PNG Supreme Court found it was illegal for Australia and PNG to bring in and detain asylum seekers on Manus Island. The plaintiff therefore argued that Australia was exercising its powers for an illegal purpose.

The plaintiff’s barrister, Tom Molomby, continued:

… it is somewhat internally contradictory to regard the Australian Constitution as establishing a rule of law for our nation, yet capable of giving power to committing acts in other countries which are contrary to the law of that nation.

The court was also asked to consider whether Australia’s statutory powers to do things necessary for regional processing of asylum seekers in PNG depend on whether those things are legal under PNG law.

The plaintiff argued that:

The agreements being beyond power in Papua New Guinea, they were also beyond power in Australia. There is no power to make an agreement with a party that does not itself have power to make the agreement. There can be no power to perform an impossibility.

The High Court’s reasons

The full bench of the court decided unanimously to reject the plaintiff’s application. The judgment noted that the plaintiff was not able to cite any authority in prior case law or the text or structure of the Constitution for the arguments made.

On this basis, the court concluded that:

… there should be no doubt that neither the legislative nor the executive power of the Commonwealth is constitutionally limited by any need to conform to the domestic law of another country.

The court further decided the plaintiff had misunderstood the significance of the Namah decision in the context of this application. According to the court, this decision said nothing about the PNG government’s capacity to enter into an arrangement with the Australian government to establish or maintain the detention centre.

The PNG Supreme Court decision found that the bringing in, detention and treatment of asylum seekers on Manus Island violated constitutional rights protections in PNG. But it did not mean the PNG government acted beyond power in agreeing its arrangement with Australia.

The High Court rejected the plaintiff’s claim that the Australian government’s statutory power, under the Migration Act, depended on whether relevant actions were legal under PNG law. The court relied on an earlier decision that related to offshore immigration detention in Nauru.

According to the court in that case:

The lawfulness or unlawfulness of executive government action under Australian law or under the law of a foreign country conversely does not determine whether or not that action falls within the scope of the statutory capacity or authority conferred by the section.

The bigger picture

This judgment is one in a series that demonstrates the lack of human rights protections in Australian law. It again reveals the striking breadth of the government’s power to deal with asylum seekers and refugees in ways that directly contravene international law.

However, cracks continue to widen in Australia’s punitive system of mandatory offshore detention for asylum seekers who travel by boat. The agreement Australia had with the US to transfer refugees there from Manus Island remains in doubt.

The lack of interest in the people at the heart of the dilemma was starkly revealed in the leaked transcript of the now-infamous Donald Trump-Malcolm Turnbull phone call.


Further reading: Trump-Turnbull call: trading people like pawns undermines the goals of international co-operation


Earlier this week, Liberal MP Russell Broadbent broke ranks with the government, calling for Australia to take responsibility for detained refugees who do not find resettlement in the US. Broadbent spoke out against the prospect of indefinite detention for people who have not committed any crime.

The ConversationAfter today’s decision, the responsibility to bring Australian law and practice into line with international legal obligations remains squarely with the government. The High Court has not found justification to intervene.

Amy Maguire, Senior Lecturer in International Law and Human Rights, University of Newcastle

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

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UN condemnation and a sports boycott: Australia again called on to end offshore detention



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EPA/Nyunt Win

Amy Maguire, University of Newcastle

On ABC TV’s The Drum on Monday, author Antony Loewenstein called for a sports boycott of Australia. Loewenstein’s argument was that such a move from other countries could force a change in approach to the offshore detention of asylum seekers who travel to Australia by boat.

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Sports boycotts have had a colourful history in the UN era. By far the most-well-known is the boycott of apartheid South Africa.

There has been debate regarding the impact of sporting boycotts in the past. In the South African case, sports boycotts were accompanied by wide-ranging political and economic sanctions. Apartheid was almost universally condemned as a violation of the international legal prohibition on racial discrimination.

No doubt a boycott of sports-loving Australia would be hugely controversial. However, a boycott seems highly unlikely to eventuate. Criticism of Australia’s refugee policies tends to come from or through UN humanitarian bodies and NGOs more so than from individual countries.

The major sporting codes in Australia are also largely domestic. So, boycotts of Australian rules football or rugby league would likely have a negligible effect. And a boycott would potentially risk the further entrenchment of negative attitudes toward asylum seekers travelling by boat.

Australia again criticised for offshore detention

Loewenstein’s argument was prompted by the latest in a long series of international critiques of Australia’s policy of mandatory offshore detention of people who seek asylum here by boat.

Specifically, the UN High Commission for Refugees (UNHCR) chief Filippo Grandi has accused Australia of misleading conduct.

The UNHCR describes as “exceptional” its decision to assist Australia in concluding a refugee transfer arrangement with the US. That arrangement has been mired in controversy. It was agreed in the final days of the Obama administration. Tensions arose early in the Trump administration over what the new president described as “the worst deal ever”.

The two countries now appear set to manage the transfer of a large number of those still in offshore detention on Nauru and Manus Island. The fate of those who do not pass US checks remains uncertain.

Yet, according to the UNHCR, Australia committed to resettling vulnerable affected refugees in Australia if they had family members already living in the community. However:

UNHCR has recently been informed by Australia that it refuses to accept even these refugees, and that they, along with the others on Nauru and Papua New Guinea, have been informed that their only option is to remain where they are or to be transferred to Cambodia or to the United States.

This means, for example, that some with serious medical conditions, or who have undergone traumatic experiences, including sexual violence, cannot receive the support of their close family members residing in Australia.

Human Rights Watch Australia regards the UNHCR’s statement as a stinging rebuke of Australia’s non-compliance with international legal obligations towards refugees and asylum seekers.

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The Human Rights Law Centre joined the call for an immediate end to offshore processing and the resettlement in Australia of the 2,000 people still on Nauru and Manus Island. Immigration Minister Peter Dutton has reiterated Australia’s commitment never to resettle refugees in Australia if they have been transferred to offshore detention.

Fruitless attempts to force compliance?

The perennial problem of international law – particularly troubling for students of the area – is the often overwhelming difficulty of requiring countries to comply. The international legal system lacks a court of compulsory jurisdiction, police force, or global parliament.

When compared with a robust domestic legal system like Australia’s, the international legal system appears weak on enforcement mechanisms. Famously, though:

Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.

Australia is – across a vast range of areas – an enthusiastic proponent of the international legal system. In the human rights context, Australia routinely comments on the performance of other countries and describes itself as a global leader in human rights.

However, as I wrote last week, there is a disjuncture between Australia’s policy and practice on asylum seekers and its bid for a seat on the UN Human Rights Council. Continued international critique of mandatory offshore immigration detention undermines Australia’s standing.

Political leaders of both major parties have maintained a longstanding commitment to punitive dealings with asylum seekers travelling by boat without visas. This is an area of Australian practice that seems unlikely to shift in response to international critique.

The ConversationInstead, the will to locate humanity within Australia’s refugee policy must come from within. While Loewenstein’s sports boycott proposal seems improbable, it was worth making to highlight Australia’s intransigence in this area.

Amy Maguire, Senior Lecturer in International Law and Human Rights, University of Newcastle

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

Offshore detention: Australians have a right to know what is done in their name


Johan Lidberg, Monash University

How did one of the world’s most-successful multicultural countries made up of refugees and immigrants end up harming children who came to us seeking protection and help? One of the answers to this question is secrecy.

Successive Australian governments, both Labor and Coalition, have dehumanised refugees and kept Australians in the dark about what really goes on in the offshore detention centres on Nauru and Manus Island.

The cornerstone of the strategy is to limit public access to information. The policy started by the Rudd Labor government in 2013 has been put into overdrive by the Abbott and Turnbull Coalition governments.

There are three pillars to the secrecy strategy:

  • outsourcing the centres to other sovereign nations;

  • outsourcing the centres’ operations to private contractors; and

  • imposing a gag on current and former detention staff through the Border Force Act.

Outsourcing detention

Australian journalists have found it very difficult, bordering on practically impossible, to obtain visas to visit Nauru. Applying for a media visa for Nauru comes with an A$8,000 fee – which is non-refundable even if the application is rejected.

The only journalists to be granted visas in the last two years filed stories that did not properly investigate or challenge the Nauruan and Australian governments’ versions of the situation for refugees.

This means the two governments directly and indirectly control who is allowed onto the island to tell the refugees’ stories of how they are treated. This leads to speculation that serves no-one – not the refugees nor the Australian government nor the public.

The second issue with outsourcing refugee processing to another country is that neither Nauru nor Papua New Guinea has Freedom of Information (FOI) laws. This means an important journalistic tool is missing when it comes to seeking information.

This, combined with the poor FOI history of Australia’s Department of Immigration and Border Protection (and its predecessor), which have repeatedly blocked and delayed requests, makes obtaining raw and unspun information about offshore refugee processing a time-consuming and frustrating task.

Outsourcing to private contractors

Wilson Security is contracted to provide security in the offshore centres.

The 2010 amendments to the federal FOI Act significantly strengthened the requirement on government agencies to obtain information from a private contractor when asked to do so.

However, contracting out adds another layer of complexity to using FOI effectively. The practical consequences are longer processing times, delays and the increased possibility of the contractor claiming the information can’t be released due to commercial-in-confidence issues.

The Border Force Act disclosure offence

In July 2015, the Australian Border Force Act came into force. Its controversial disclosure offence section extended the questionable Australian tradition of limiting public servants’ right to public speech and participation in public debate.

The section effectively stops current and former staff, including those from volunteer organisations such as Save the Children, speaking out about conditions in refugee detention centres.

It is nigh-on impossible to see how this gag section can be in the public interest. But it is easy to see how it is in the government’s political interest.

What are the consequences?

The consequence of the fortress of secrecy built on these three pillars is that Australians don’t know what is being done in their name on Nauru and Manus Island.

It also means the refugees are dehumanised. Suffering children and families become numbers instead of human beings.

Every one of the nearly 1,300 refugees currently on Nauru and Manus has heartbreaking and crucial stories to tell. If Australians were allowed to hear and see those stories, the centres would have been closed a long time ago.

If offshore detention is to continue, the Australian government should:

  • stop outsourcing to private contractors. The Department of Immigration and Border Protection should run the centres to allow for proper accountability;

  • be completely transparent about the centres’ operations. Redact personal information, but publish as much as possible, including incident reports;

  • facilitate access to the centres for journalists and members of the public; and

  • scrap the gag section on detention centre staff, current and former, in the Border Force Act.

We don’t need a Senate inquiry or royal commission to figure out what needs to be done. More than enough evidence is available thanks to the Nauru files, former detention centre staff sharing their experiences, and the Australian Human Rights Commission’s report on children in immigration detention. The government must do the decent and right thing by the refugees and the Australian public.

The Conversation

Johan Lidberg, Senior Lecturer, School of Media, Film and Journalism, Monash University

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

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