Court ruling leaves the buck with MPs

The High Court of Australia’s dismissal of a challenge to the legality of the regional processing centre on Nauru is a major decision with immediate implications for a group of asylum seekers comprising 160 adults, 37 babies and 54 children, who now face the prospect of being returned to Nauru.

The case was originally brought by an asylum seeker from Bangladesh, who was intercepted at sea by the Australian Government in 2013 and transferred to Nauru to determine her application for refugee status.

In 2014, she was brought to Australia for medical treatment related to her pregnancy and, after the birth of her child, the Australian Government sought to transfer her back to Nauru.

In 2015, she commenced proceedings in the High Court to stop the transfer. As a result of the High Court’s decision on February 3, the Government can now transfer her back to Nauru along with other asylum seekers who were being held in Australia pending the outcome of the case.

It is important to note the case did not involve a challenge to the fairness or morality of the policy of detaining asylum seekers on Nauru, or a challenge to the policy’s compatibility with human rights.

The Court’s decision does not amount to a stamp of approval on the merits of the policy of regional processing or make any findings on whether the asylum seeker’s human rights were violated. These are issues that are by and large left for Parliament to decide. If the policy of regional processing is to end, it is Federal parliamentarians who must do it.

There are, however, two dimensions to the case that raise considerable concerns about the prospect of holding the Government to account in the future for what occurs in regional processing centres.

Who is detaining the asylum seekers on Nauru?

The Australian Constitution places some limits on the power of the Australian Government to detain people. For example, the Government cannot detain people as punishment for a crime unless a court has first sentenced them to imprisonment.

A question before the High Court in this case was whether these limits on the Government’s detention powers apply to the asylum seekers on Nauru. A majority of the Court said no because they are being detained on Nauru by the Nauru Government according to Nauru law.

The difficulty with this reasoning is that the detention centres are effectively controlled by the Australian, not Nauru, Government. The Australian Government established the centres, contracted with private companies to operate them and pays for all the costs associated with them.

A possible implication of today’s decision is, therefore, that the policy of regional processing allows the Australian Government to avoid some of the constitutional restrictions that would otherwise apply if it detained the asylum seekers in Australia.

The reliance on retrospective legislation

The regional processing arrangements operated in accordance with an agreement that was entered into between the Australian and Nauru Governments in 2013, which replaced a similar agreement that was made in 2012.

When these agreements were first made, there was no legislation that expressly authorised the Commonwealth Government to enter into them. After proceedings were commenced against the Government in the High Court in 2015, Parliament hastily enacted legislation to provide the Government with authority to enter into these agreements.

The legislation was backdated to commence operation eleven days before the first agreement was made in 2012. A majority of the High Court held that the legislation authorised the agreements.

This sequence of events raises a number of concerns. First, it is possible the Australian Government acted for approximately three years pursuant to an agreement that was not legally authorised. Second, the reliance on retrospective legislation to validate the Government’s actions sets a troubling precedent.

It encourages the Government to be complacent about whether it has sufficient legal authorisation to act if it expects that Parliament can and will be able to bail it out through the enactment of remedial legislation. Further, it encourages the Government to act even if it has reasonable doubts about the legality of its actions if it expects the risk of a court challenge to be low.

Following the High Court’s decision, the onus now shifts back to the Government and Parliament to decide whether, as a political and moral matter, offshore processing should continue.

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