The detention of asylum seekers on the Pacific island of Nauru is an “Australian endeavour” that breaches the constitution, lawyers for a Bangladeshi asylum seeker have argued on the opening day of a high court hearing.
The Human Rights Law Centre is bringing a series of challenges on behalf of more than 200 people who have been brought to Australia from Nauru and Manus Island – often for medical treatment – and are now facing return to the regional processing centres.
A hearing in Canberra – which began on Wednesday and is set down for two days – focuses on a woman was was detained on Nauru in 2014 but was brought to Australia for medical treatment at the late stages of her pregnancy. She gave birth in Australia and her lawyers are trying to prevent her return to Nauru, in a case that has broader relevance for Australia’s regional processing of asylum seekers.
Ron Merkel QC, for the plaintiff, sought to establish that the Australian government “funded, authorised, procured and effectively controlled” the centre on Nauru, and the detention was not authorised by a valid Australian law or the constitution.
“We say ultimately that this detention … was procured, caused, effectively controlled by and was at the will of the commonwealth,” he told the full bench of the high court on Wednesday.
“It’s not part of our case that Nauru has no role or involvement in the detention centre. It’s clear that at that high level it was a joint endeavour. Both Australia and Nauru had a critical role in overseeing the framework of the centre, but when one goes down to the day-to-day operation of the centre as a detention centre that joint endeavour becomes an Australian endeavour.”
Australia’s solicitor general, Justin Gleeson SC, opened proceedings by filing an amendment to the material before the court to reflect the Nauruan government’s announced move to an open arrangement for the detention centre.
He said until recently Nauru had an arrangement where people could leave the centre five days a week, up to 12 hours a day, if they met eligibility conditions.
Gleeson said the relevant minister on Nauru had indicated “that from Monday 5 October 2015, that’s this week, the arrangements will be extended” to include freedom of movement 24 hours a day, seven days a week.
He said legislation to formalise the new open centre arrangement was set to be put before the parliament of Nauru at the next sitting.
Gleeson, who has yet to set out the Australian government’s detailed defence, said the new arrangements would mean that “in no meaningful sense could this plaintiff or any person on Nauru” be detained.
But Merkel sought to play down the significance of the argument, saying the open centre arrangements could be withdrawn at any time without giving any reason.
He said Australia’s Migration Act powers relating to regional processing had been framed in broad terms, but the court should be cautious about “liberty of the individual” and wide interpretations of the power to restrain people.
Merkel pointed to the requirement for the Australian government to pay the $3,000 cost of extending each person’s Nauruan visa every three months and the fact such applications were made on the request of an officer of the commonwealth.
He also cited the Department of Immigration and Border Protection’s role in overseeing the contract with centre operator Transfield, which had to act in accordance with commonwealth policies.
He said the only service providers contracted to operate at the centre were engaged by the Australian government, and the department had the right to suspend those contracts and “step in” to run the centre.
Merkel said the Australian government was also able to “move a person at its will” back to the mainland for a temporary purpose, such as medical treatment.
Merkel also sought to pre-empt the federal government’s arguments about the arrangements being consistent with Nauruan law.
He suggested that the “supreme law of Nauru” was its constitution, prompting the chief justice, Robert French, to question “whether it’s appropriate for this court to enquire into the validity of the laws of another country”.
The hearing continues.
