High Court challenge to offshore detention

Update: High Court set to hear challenge to offshore detention on Nauru – Nauru announces transition to ‘open centre’ (5 October 2015)

A case has today been commenced in the High Court of Australia on behalf of a group of 10 asylum seekers and their families challenging the lawfulness of the Australian Government’s offshore detention arrangements.

The Human Rights Law Centre’s Director of Legal Advocacy, Daniel Webb, who is part of the legal team representing the families, said the group have been temporarily returned to Australia but are facing imminent removal back to Nauru.

“We’re helping a very vulnerable group of people – including people with serious medical issues, families with young children and even one family with a newborn baby – who’ve asked us to take urgent steps to stop them being sent back to detention on Nauru.

“They’ve all described conditions inside the centre as abhorrent. Their time detained on Nauru has clearly taken a toll on them and on their children. The United Nations, the Australian Human Rights Commission and the recent Moss review all make clear the Nauru detention centre is unsafe and unsuitable for children and families,” said Mr Webb.

The case raises important and untested legal questions about whether the Australian Government has the necessary power to detain, or cause the detention of, asylum seekers in foreign countries and to spend public money for that purpose.

“Liberty is a fundamental human right. The Government needs clear legislative authority to deprive people of it or to enter into contracts and other arrangements which procure detention. One of the questions at the heart of this case is whether any such authority exists under any Australian law.

“We know the Government has powers to detain asylum seekers in Australia and also has powers to remove asylum seekers from Australia. But the question is whether the Government has the authority to then lock them up indefinitely in the territories of other sovereign nations or to effectively procure that detention,” said Mr Webb.

The case also challenges the Government’s funding of offshore detention. The case will consider the contractual arrangements under which the Australian Government pays Transfield Services Pty Ltd a reported $1.22 billion to provide services inside the Nauru and Manus centres.

“It’s a truly extraordinary thing for the Government to be spending billions of dollars indefinitely detaining people in other countries. We know it’s harmful. We know it’s a breach of international law. We also know it’s also incredibly expensive. This case will examine whether that expenditure is lawful.

“In recent cases the High Court has said that, apart from some limited exceptions, legislative authority is required before the Government can spend public money on major policy projects. This case asks whether the necessary authority to spend on offshore detention exists,” said Mr Webb.

Mr Webb said that money spent on offshore detention could be much better spent on developing safe pathways to protection for refugees.

“We’re currently spending over $1 billion a year detaining asylum seekers offshore. That’s more than five times the United Nations refugee agency’s entire budget for all of South East Asia.

“Instead of using costly and cruel measures to stop the boats, Australia should be working with the United Nations to address why people get on them in the first place. We should be using our resources and our influence to develop safe pathways to protection for people who need to seek it,” said Mr Webb.

The asylum seekers are seeking orders from the High Court:

- Preventing their return to detention on Nauru;
- Declaring that their detention on Nauru would be unlawful; and
- Restraining the Government from continuing to make payments to Transfield Services under the current arrangements.

The legal team running the case includes barristers Ron Merkel QC, Richard Niall QC, Craig Lenehan, David Hume and Rachel Mansted.

Assistance has also been provided by the Darwin Asylum Seeker Support and Advocacy Network.

Related: Lawyers appalled at asylum seeker's treatment after suicide attempt on Nauru

For further information contact:
Daniel Webb, Human Rights Law Centre Director of Legal Advocacy on 0437 278 961 or daniel.webb@hrlc.org.au  
Tom Clarke, HRLC Director of Communications on 0422 545 763