This piece was first published by the ABC in The Drum.
The Nauruan Supreme Court is currently considering a case brought by a group of asylum seekers challenging the lawfulness of their indefinite detention on Nauru.
The challenge, led by prominent refugee advocate Julian Burnside QC, strikes at the core of Australia's transfer of asylum seekers to its isolated former colony. It also shines a light on our practice of employing former colonies to do our dirty work but then using their sovereign status to deflect criticisms their way.
The asylum seekers claim they’re detained in circumstances which violate the protection of personal liberty in the Nauruan Constitution. They seek, among other things, immediate release. A similar proceeding is on foot in PNG.
Since 14 September 2012, about 430 asylum seekers have been transferred to Nauru and a further 300 to Manus Island. Indefinite detention in remote places is a central component of the Australian Government's “no-advantage” policy. It's perhaps the most draconian of all the threats being used to deter people from coming to Australia by boat.
A court decision that such detention is prohibited by local laws would raise questions as to the future of our regional processing policy in its current form. It may well be that Australian Government policy will be frustrated, at least in part, by the Constitutions of its former colonies.
In addition to the issues of local law at their heart, the cases raise much broader questions about Australia's post-colonial politics.
The Australian Government's line on the Nauru case - that it’s a matter for the sovereign state of Nauru – is a familiar response.
When funding was sought from the Australian Government to provide the applicants in the Nauruan case with access to lawyers, they said it was a matter for Nauru as a sovereign nation.
When criticisms have been raised about the lack of media access to the detention centres on Nauru and Manus, the Government has said that regulating access is exclusively the responsibility of Nauru and PNG as sovereign states.
When allegations have been raised that the detention of people in the processing centres violates international human rights protections, Australia has said that our human rights obligations end once we’ve transferred people offshore to other sovereign states.
It's a matter for them, not us, seems to be the default defence. But this persistent deflection of responsibility belies the extent to which the Australian Government maintains effective control over the arrangements.
Under Australian law, asylum seekers who arrive in Australia are being taken by Australian authorities to Australian funded processing centres. While there, they receive services pursuant to contracts between service providers and the Australian Government.
At least in Nauru, Australian officers will be involved in their processing and our Department of Immigration has conceded that once the period of 'no-advantage' has run its course, the likelihood is that most will be transferred back to Australia.
All this is being underwritten by extraordinary amounts of Australian public expenditure. In relation to Nauru, costs to date have been estimated at around $1 million per asylum seeker transferred there.
It is plainly inaccurate, if not disingenuous, for Australia to deny effective control and responsibility over its offshore processing arrangements.
It is also incongruous for Australia to be employing Nauru and PNG as agents of our domestic policy, but then invoking their sovereignty and independence to seek to absolve ourselves of responsibility for any grievances raised.
There is incongruity too between what Australia is doing in PNG and Nauru to what said it would do in its successful UN Security Council election campaign. Australia held itself out as being a “principled advocate of human rights for all” and a country that “does what it says”. But rather than being a principled advocate for human rights, Australia may well be sub-contracting their violation.
Australia’s selectivity when it comes to human rights and respect for sovereignty are yet further indictments of our flawed approach to a difficult issue. Preventing asylum seekers from dying at sea is a legitimate, indeed essential, policy objective. But instead of punishing those who make it here to send a message to those yet to come, we should be focussing on developing alternative, safer pathways to protection for those who need to seek it.
Punishment and deterrence is the wrong paradigm for addressing the actions of desperate people who lack viable alternatives. A thoughtful regional solution is required, but our current policy achieves only regional complicity in an ineffective, harmful and potentially unlawful approach.
Daniel Webb is a Senior Lawyer at the Human Rights Law Centre.