A- A A+

High Court not the answer to Nauru depravity

Frank Brennan |  03 February 2016

The moral depravity of Australian funded and orchestrated holding of asylum seekers, including children, on Nauru and Manus Island is to continue.

On Wednesday the High Court made clear that it is in no position to question the retrospective law passed by the Commonwealth Parliament on 30 June 2015 authorising the Australian Government to do whatever it takes to assist countries like Nauru with the detention of asylum seekers sent there by Australia as of 18 August 2012.

ABC report on Nauru storyThe court ruled by six to one that offshore detention and processing of asylum seekers was valid according to this law authorising the Australian government to enter into agreements with other governments and contracts with corporations to provide 'garrison and welfare services' in offshore regional processing centres such as Nauru and Manus Island.

The sole dissentient was the newest judge, Justice Gordon.

The case arose out of a claim by a Bangladeshi woman (categorised as an 'unauthorised maritime arrival' or 'UMA') who had been intercepted on 19 October 2013 on a boat headed for Australia seeking asylum. She was transferred to Christmas Island the next day. Three months later she was transferred to Nauru where she was held in detention at a refugee-processing centre for over six months.

Because of medical complications with her pregnancy which could not be treated adequately on Nauru, she was transferred temporarily back to Australia where she gave birth to her child on 16 December 2014. Not relishing the thought of taking her baby to the hellish conditions of Nauruan detention, she applied to the High Court questioning the legal validity of the offshore detention and processing regime.

The Commonwealth's lawyers obviously thought she had an arguable case. On 30 June 2015, the Commonwealth Parliament enacted the Migration Amendment (Regional Processing Arrangements) Act 2015 (Cth), which inserted s 198AHA into the Migration Act, with retrospective effect to 18 August 2012. This law authorised the government to take any action or 'make payments, or cause payments to be made, in relation to the arrangement or the regional processing functions' in other countries.

Presumably the Nauruan government lawyers and political advisers also thought there might be some problems. On 2 October 2015, just days before the High Court hearing, the Government of Nauru announced its intention 'to allow for freedom of movement of asylum seekers 24 hours per day, seven days per week' from 5 October 2015 and to introduce legislation to that effect at the next sitting of the Nauruan Parliament. The High Court was duly informed of these developments.

It is fair to say that prior to October 2015, the Commonwealth expected Nauru to detain these people, and with that expectation being realised was prepared to remunerate Nauru very handsomely, with retrospective parliamentary endorsement.

With the air of unreality reserved to the highest courts (and perhaps some religious authorities) three of the judges observed that 'the Commonwealth could not compel or authorise Nauru to make or enforce the laws which required that the plaintiff be detained' and thus the Commonwealth was not legally responsible for the detention.

These three majority judges did concede some limit to Commonwealth complicity in Australian funded detention of asylum seekers by another country: 'If the regional processing country imposes a detention regime as a condition of the acceptance of UMAs removed from Australia, the Commonwealth may only participate in that regime if, and for so long as, it serves the purpose of processing.'

Another of the majority judges, Justice Keane, said 'the plaintiff's submission that regional processing is punitive because it is designed to have a deterrent effect on the movement of asylum seekers must be rejected. A deterrent effect may be an intended consequence of the operation of regional processing arrangements, but the immediate purpose of s 198AHA is the facilitation of the removal of unauthorised maritime arrivals from Australia.'

I daresay none of these judicial niceties will bring much comfort to the Bangladeshi mum who might feel that her baby is being punished by being taken to Nauru where both of them could remain for up to ten years should they be found to be refugees, pending resettlement in Cambodia or any other participating third country.

If the Australian Constitution contained provisions similar to the human rights protections contained in the Nauruan Constitution, the High Court may have been able to offer some relief. But the High Court made clear that the detention of asylum seekers on Nauru was detention by the Nauruan government authorised by the Nauruan parliament, and thus it would be a matter for the Nauruan courts to determine if such executive action and legislative authorisation were constitutional.

The Nauruan Constitution, unlike the Australian Constitution, sets strict limits on the government's and the parliament's power to detain persons and to deprive them of their liberty. Australia just happens to fund and facilitate the arrangements authorised by the Nauruan government and parliament, whether or not those arrangements are constitutionally valid.

Justice Gageler rightly observed: 'Their detention at the Regional Processing Centre has been under the authority of Nauruan legislation, the validity of which under the Constitution of Nauru is controversial.'

Justice Gageler, our strongest civil libertarian judge (having been the Commonwealth Solicitor-General during some of the more difficult years of Australian asylum policy), considered that 'the plaintiff's central claim (that the Commonwealth and the Minister acted beyond the executive power of the Commonwealth by procuring and enforcing her detention at the Regional Processing Centre between 24 March 2014 and 2 August 2014) to have been well-founded until 30 June 2015, when s 198AHA was inserted with retrospective effect'.

If returned to Nauru, presumably the plaintiff and her baby will no longer be detained, given Nauru's newfound commitment to liberty for asylum seekers transferred from Australia. That then raises the fundamental political and moral question: why do we still want to transfer people like this (including babies) to countries like Nauru, Manus Island and Cambodia?

Just after Malcolm Turnbull became prime minister, I wrote to him and Opposition Leader Bill Shorten suggesting a bipartisan announcement at the opening of parliament this year. I suggested that each address the Parliament reconfirming their commitment to stopping the boats and turning back those who are not in direct flight from persecution in Indonesia. I urged the announcement of an agreed date for the closure of the facilities on Nauru and Manus Island.

I conceded that immediate closure of these facilities might allow unscrupulous people smugglers to ply their trade again with the message to asylum seekers in Indonesia that the appointment of a new Australian Prime Minister warranted renewed attempts at gaining access to Australia. I wrote, 'But after an appropriate delay, you could negate that possibility and you could close these facilities without any risk of asylum seekers thinking that Australia was once again a possible boat destination.'

Neither Turnbull nor Shorten was interested, repeating the mantras about preventing people smuggling, saving lives at sea and maintaining the integrity of Australia's borders. But all this can be done without sending this mum and her baby to Nauru. We're now told it can be done without actually detaining anyone on Nauru.

In the past, we were solemnly assured that it was necessary to detain these people in order to send a message to other asylum seekers waiting in Indonesia. The boats have stopped. They will stay stopped. Any boats that try to get here will be turned back provided only there can be the assurance that no one on board is in direct flight from persecution in Indonesia.

The people smugglers and their prospective clients now know that people are no longer held in detention on Nauru. It is no longer the hellish or uncertain conditions (with or without detention) on Nauru that deters people from getting on boats. It is the vigilance of our intelligence and military personnel which does that. The door is locked.

All major political parties are agreed on the need to stop the boats. The heads of the Australian defence force are now confident that the boats have stopped and that any future boats will be stopped or turned back. This is a very different situation from four years ago.

When Prime Minister Gillard failed to have her Malaysia solution implemented, she set up an expert panel chaired by Air Chief Marshall Houston. In August 2012, the Houston panel told the government that 'the conditions required for effective, lawful and safe turnbacks of irregular vessels headed for Australia with asylum seekers on board are not currently met in regard to turnbacks to Indonesia'.

So they looked for other short-term measures. Having studied Prime Minister Howard's 2001 Pacific solution, the panel concluded that 'in the short term, the establishment of processing facilities in Nauru as soon as practical is a necessary circuit breaker to the current surge in irregular migration to Australia'. Four years on, the Houston assessment of turnbacks would appear to be outdated and there is no longer a need for a circuit breaker. There is no surge; the boats have stopped.

Before becoming Prime Minister, Turnbull insisted that our treatment of asylum seekers on Nauru and Manus Island was 'harsh, but not cruel'. Now that there is no purpose to be served by maintaining the facilities on Nauru and Manus Island, the treatment of those persons is cruel as well as harsh.

A prompt resolution of the matter is required unless Australia is to be left with a legacy of shame which will be sure to be disclosed at a future royal commission with plaintive cries from our past leaders and retired public servants: 'We didn't know the trauma caused to children and others fleeing persecution by being placed in such uncertain, isolated hell holes.'

There is no joy to be found in our High Court applying a Constitution even more bereft of human rights protections than the Nauruan Constitution. It's time for our politicians to address the political and moral question: what purpose is actually served by sending this mum and her baby back to Nauru, given that the boats have stopped and will stay stopped regardless of where we now place this mother and child and others like them?

It's time to walk and chew gum at the same time. It's not an either/or proposition. There is no longer any need for a circuit breaker. The circuit is permanently cut. We can prevent people smuggling, save lives at sea, maintain the integrity of our borders and deal decently with the residual caseload of asylum seekers including this mother and her child.


Frank BrennanFrank Brennan SJ is professor of law at Australian Catholic University and Adjunct Professor at the Australian Centre for Christianity and Culture.



Comments should be short, respectful and on topic. Email is requested for identification purposes only.

Word Count: 0 (please limit to 200)

Submitted comments

Supporting one set of crimes to counter another set of crimes is morally, legally and ethically repugnant. Why is it Frank that you seem to be incapable of the simple demand that we live up to the conventions we ratify in both the spirit and letter of the law?

Marilyn 03 February 2016

I wouldn’t hold my breath waiting Frank; after so many years of politicians demonising refugees the Australian electorate has become so thoroughly insensitive to their plight that even the slightest hint of mercy would be electoral suicide.

Paul 04 February 2016

a lifetime in the law...reverencing justice and a fair go,,,then i read the decision and wanted to throw up.

jim macken 04 February 2016

Thank you so much to Frank Brennan and to Eureka Street for this immensely timely article. I will distribute it as widely as possible via social media. The 'legacy of shame' is here and now. We cannot stand by. History and heart both tell us how tragic that would be.

Stephanie Dowrick 04 February 2016

Well put Fr Frank. And to think French CJ was Jesuit educated!

Robert Colquhoun 04 February 2016

Thank you Frank Brennan. Depravity is the appropriate word. Now is the time for all good people to shout their disgust from the rooftops.

Janet 04 February 2016

Well spoken Frank, your concise but thorough examination of the issues adds clarity and direction to the discussion. Let's hope government, opposition and cross benches take note. There is a solution but it requires that our leaders come at it with hard heads and soft hearts. Your article points the way.

Matt Casey 04 February 2016

I absolutely endorse this argument. It is time for Turnbull and Shorten to show decency within the parameters of the deterrence policy. They can only do it if they do it together. I am in a country at the moment that we in the West spend a fair bit of time and energy criticising for alleged human rights abuses. We simply do not have a leg to stand on while this gross cruelty towards innocent people continues at the behest of our government.

Tony kevin 04 February 2016

There seems to be no way to end this horror as both major parties support it, yet it is obvious that there is a significant body of the population who are disgusted. Take, for example, the sign on the front of St Paul's Cathedral in central Melbourne, the doctors and nurses at the Royal Children's Hospital, and literally everyone I know. Governments should lead the people ethically and morally and not through weaselly use of their ability to pass disgusting laws. I refuse to vote for any party that supports this stuff and I hope you do too.

brian finlayson 04 February 2016

Once again Frank does not like the law. Why did he not write this article before the High Court decision? And Frank, at least in this country, you can challenge a law unlike some countries where these people have come from. It is not about the government; it is about the law and the law has decided. Stand for parliament Frank and offer us an alternative. In the meantime keep up your good work but try to offer us something positive that is also conservative.

PHIL 04 February 2016

Sadly with an election looming neither major party leader will want to appear weak to our brainwashed fellow Aussies . If only they could find the moral courage to listen to you and all those who deplore this situation

Sr Margaret Casey 04 February 2016

The good news this morning is that a number of Churches are offering sanctuary to those at risk of being sent back to Nauru. The number of churches involved is likely to grow, hopefully including Catholic Churches. They take this stance because paediaticians,, who have worked in Nauru have described the awful conditions there; children as young as 8 or 9 are attempting suicide. Can't it be disputed that our government has no legal responsibility for these conditions? If so, the law is an ass. The dissenting high court judge stated the respective law was rushed through Parliament and was therefore problematic. I respect her position. Thank you Frank for your very timely contribution.

Anna 04 February 2016

Thank you Fr Frank Brennan. Doesn't the moral bankruptcy of the Federal Parliament's response to this High Court decision freshly highlight the need for an Australian Bill of Rights?

Bob GROVES 04 February 2016

I can't really follow the argument in this article: we're told that "now that people are no longer held in detention on Nauru. It is no longer the hellish or uncertain conditions (with or without detention) on Nauru that deters people from getting on boats". But then further on we're told that "Now that there is no purpose to be served by maintaining the facilities on Nauru and Manus Island, the treatment of those persons is cruel as well as harsh". Can we get past this confusion and clearly state that detaining people on Nauru or Manus is unacceptable. I also don't accept the argument that the boats wouldn't re-appear if the camps were closed, and I don't accept that turning boats back to Indonesia is acceptable. Indonesia is not a signatory to the Convention, doesn't want the asylum seekers (who are passing through), and doesn't/can't treat them properly. It's totally immoral to turn back boats to Indonesia and say "that's their problem". I think Frank Brennan's suggestion to the politicians was impractical and wrong. As far as I can see the only solution will be one similar to the one Gillard tried - the Malaysia Solution - pity that she did it in a stupid hurry just to try and gain political points, and messed it up. We need to show more respect to our Asian neighbours if we're to get their cooperation in such a scheme.

Russell 04 February 2016

Advocates also claimed that the circuit was "permanently cut" prior to 2008, noting that those who had arrived between 1999 and 2001 had done so purely because of "push factors", which had come to an end. As soon as less "morally depraved" policies were adopted, however, the circuit turned out not to be so permanently cut. Which is why we are we where are today.

Ash 04 February 2016

Thank you Father Frank for another incisive commentary on a dark chapter in our political/judicial history There can be no basis for off shore relocation of refugees What's happened to the generous heart which characterised the Australian attitude to refugees between the Wars and after Political expediency has much to answer for,especially in an election year

Peter Hoban 04 February 2016

There's nothing more I can add to what hasn't already been said, except to express a total despair at the contempt with which our leaders are holding the Australian public with their continued referral to "stopping the boats", "defeating people smugglers", "protecting our borders" , when we all know that task has well and truly been accomplished (for good or for bad) and that continuing to crucify these unfortunate refugees serves no purpose other than propping up the pride and arrogance of these politicians. God help us.

AURELIUS 04 February 2016

When political leaders rely on the law to justify immoral policies and justify their stand with teleological argument then all is lost. There has to be someone who can get through to Malcolm Turnbull to get him to show leadership - true statesmanship by educating the liberal party that it would be to its electoral advantage to modify its policies.

Ern Azzopardi 04 February 2016

Thank God Fr. Frank you have reacted to this injustice It seems the victims are being punished for the crimes of the people smugglers. So hypocritical that Peter Dutton states we are a compassionate country and then says that off shore detention stays. Also that we are sending millions to Jordan to help refugees and won't help a few hundred here. Tell me which party will close the detention centre and they'll get my vote

Sheila van Gent 05 February 2016

Protest sign: To the High Court - OUR TREE of HOPE in JUSTICE, is HIGHER than YOUR PYRAMID of BRICKS of SHAME.

AO 05 February 2016

Three of the judges observed: 'If the regional processing country imposes a detention regime as a condition of the acceptance of UMAs removed from Australia, the Commonwealth may only participate in that regime if, and for so long as, it serves the purpose of processing.' Nauru no longer sees a need to detain people for processing. What if the plaintiff were now to sue the Commonwealth for past detention which was not required for processing, not authorized at the time, and Commonwealth funded and orchestrated? This might be a relevant consideration when it comes to the future of this mother and her baby.

Frank Brennan SJ 05 February 2016

Was it John Le Carré who said in effect that some people have to get their hands dirty so others can sleep well at night? Father Frank's last paragraph about the promised land of being able to put the smugglers out of business, save lives at sea, keep the borders intact and still be decent to the unauthorised maritime arrivals/ asylum seekers currently in custody is contingent upon the blunt-force circuit breaker of Tony Abbott's 'stop the boats', a circuit-breaker whose morality is still questioned by many. The Apostles appointed deacons to stretch the philosophy of what it means to lead a good life to cover messy practical requirements, a job bequeathed to their descendants in government, some, like the Catholic Mr Abbott to be fortunate to be girt by sea, and others, like the Lutheran Ms Merkel, not to be quite so blessed.

Roy Chen Yee 09 February 2016

The key person in our program of stopping the boats – aka disrupting the business model of the people smugglers - is an asylum seeker in Indonesia with a husband or a wife and children. This person is not allowed to work or study, their children are not allowed to go to school; they will never vote, their children will not vote. Their grandchildren? Who knows. The presence of this person in Indonesia is contrary to law, so any local authority who gets out of the wrong side of the bed and wants a feasible dog to kick, has this person immediately available. Should the Indonesian community become inflamed with xenophobia, which is always a possibility in any country, this person is a sitting duck. Feasible dog? Sitting duck? Both of these things and worse. If I'm right about this, any decency on the part of Australia will, in fact, restart boats. A remedy can only be found by much bolder action.

.Jim Jones 10 February 2016

Civil liability for detention on Nauru is a live legal issue. See http://johnmenadue.com/blog/?p=5587

Frank Brennan SJ 11 February 2016

Similar articles

#LetThemStay reveals the political capital of compassion

Somayra Ismailjee | 12 February 2016

#LetThemStay rallySince the first churches offered sanctuary to the refugees facing deportation to Nauru, a steady stream of voices have joined the call for compassion. As a political language, compassion is itself a reclamation of power. Extending safety, resources, or even a mere welcome to people in need proves that we have something to give. Strength is embodied by a capacity to aid and assist, rather than in cruelty. Empathy, care and compassion appeal to us on a level of emotion that runs deeper than mere rhetoric.

Gospel brutality reborn in our harrowing of refugee children

Andrew Hamilton | 11 February 2016

#LetThemStay rallyThe High Court decision on detention in Nauru came down just before the Christian season of Lent. It left the government free and determined to deport many young mothers and children to Nauru. For the mothers and children deportation will bring new trauma with renewed threat to their already precarious mental health. For the Australian public it again makes us ask what brutality, even to children, we are ready to tolerate. The savagery of this treatment is a suitable subject for Lenten reflection.

Notes (in Latin) on a football scandal

Brian Matthews | 10 February 2016

Domesday BookEslingadene/Isendene/Essendon was its quiet and bucolic self when Richard Green, one of its respectable citizens, farewelled it in the 1850s, migrated to Australia, settled near Melbourne and, honouring his home village, called the area Essendon. Like its northern hemisphere namesake, Essendon does not appear in the Domesday Book, but Macbeth-like vaulting ambition, disjoined from care and humanity, has enrolled it in a modern Doomsday register and stained its name ineradicably.

No retrospective fix for traumatised refugees

Kerry Murphy | 05 February 2016

Refugees Are People, Love Makes A Way protestor placardsThe practice of governments using the Parliament to change the law in order to win court cases is unfair, as only one party to a court case has the power to do this. The M68 case decided on Wednesday, which challenged the detention and transfer to Nauru of asylum seekers, was effectively won by the government because they changed the law retrospectively to make sure they would win. No retrospective fix will be possible for people who fled persecution only to face a punitive and hostile policy.

There's no cheap path to harmony

Andrew Hamilton | 03 February 2016

World Interfaith Harmony Week butterfly logoOf the United Nations Days and Weeks, World Interfaith Harmony Week is one of the most recent and perhaps the most modestly celebrated. It may also be the most needed. But the conversation cannot be confined to the churches and to those with religious faith. Its claim needs to extend beyond religious faiths to secular views of the world. The obstacle to such conversation is the religious settlement in Australia and Western nations, which can be described as negative tolerance.