Legalising Cruelties: The Australian High Court and Indefinite Offshore Detention
The High Court of Australia has done its occasional bit for refugees, though much of its legal reasoning has lead to
inadvertent consequences. During the Gillard years, it sank what would have been a notorious exchange of refugees with
Malaysia (the “Malaysian Solution”) as one that was outside the scope of the Refugee Act and discretion of the minister
of immigration. On other occasions, its reasoning has bafflingly concluded that infinite detention of refugees for
security grounds on a hypothetical basis is entirely legitimate.
The legal fraternity, and various NGOs were therefore curious on where the High Court would stand on the issue of
Australia’s own island gulag system, which received a considerable boost under the Abbott government from 2013. It
involved a case brought by a Bangladeshi woman whose imprisonment, her legal representatives claimed, had been “funded,
authorised, procured and effectively controlled” by the Australian authorities. This state of affairs, they contended,
was beyond the government’s constitutional powers. The legal team sought a declaration to that effect.
The majority of the Court held that s. 198AHA of the Migration Act 1958 (Cth) authorised the Commonwealth to detain the
Bangladeshi plaintiff, who had been deemed “an unauthorised maritime arrival” as defined by the Act. The Migration Act
also permits the relocation of such arrivals to regional processing countries, of which Nauru is one. Such language
conceals the essentially squalid nature of the process.
The wording of the Memorandum of Understanding (the so-called second MOU) is worth recounting. Entered into on August 3,
2013 between Canberra and the Nauru authorities, it is packed with euphemistic suggestion. “Administrative arrangements”
were to be established to deal with “transferees” whose refugee claims were being processed.
The Nauru government would, in the words of three of the judges, appoint “an operational manager, to be in charge of the
day-to-day management of the Centre”. The Australian government, in turn, “would appoint an officer as a programme
coordinator, to be responsible for managing all Commonwealth officers and service contracts in relation to the Centre,
including the contracting of a service provider to provide services at the Centre for transferees and to provide for
their security and safety.” The Australian government, during that time, would provide “garrison and welfare” services
in the true spirit of imprisonment.
What the MOU effectively created was a structure inimical to the interests of refugees and asylum seekers. Everything
was done to sanitise what effectively were de facto prison arrangements far from the Australian mainland, a direct
subversion of the UN Refugee Convention.
It would, however, be sold as a warranted approach to dealing with asylum seekers who dared use the sea as an option to
arrive in Australia. There would be, for instance, a “Ministerial Forum” overseeing the implementation of the agreement;
there would be a “Joint Working Group, chaired by the Nauru Minister,” meeting weekly to discuss matters arising with
Most sinister of all was the role given to Transfield Services, a private security company that is central to
Australia’s refugee policy. It is Transfield that received the primary responsibility for supplying “garrison and
welfare services” to transferees, a role that the High Court seems to treat like a minor community centre. “Garrison
services”, we are told in rather mundane fashion, includes security, cleaning and catering services.
Just to make matters a touch murkier, we are told that Transfield had, in turn, subscontracted its services to Wilson
Security Pty Ltd. Containing, and caging desperate human populations is a truly busy affair, and one that has involved a
private sector eager to profit from it.
The Bangladeshi applicant’s legal team were to be disappointed. The declaration was refused. The court refused to
disturb the nature of the second MOU between Australia and Nauru. It had been authorised by s. 61 of the Australian
Constitution. (The section simply enumerates that executive power in the Australian Commonwealth “is vested in the Queen
and is exercisable by the Governor General as the Queen’s representative, and extends to the execution and maintenance
of this Constitution, and of the laws of the Commonwealth.”)
Furthermore, the conduct of the Commonwealth pursuant to the second MOU was held by the majority to be entirely
consistent with the provisions of the Migration Act. The wisdom of such executive power, one used to sanction the
indefinite detention of asylum seekers and refugees offshore by other governments, was never questioned, shielded as it
was by the law.
Having gotten what he wanted, Prime Minister Malcolm Turnbull resorted to the tinny humanitarianism that has masked a
ruthless and questionable offshore detention program. Stopping boat arrivals and conveying their human cargo to
prison-like centres was for their own good. Far better that than letting them meet a gruesome fate on the high seas.
The United Nations Children’s Fund (UNICEF) claimed that the ruling did not affect “Australia’s moral responsibility or
its obligations to protect the rights of children in accordance with international human rights law.” What had
effectively taken place was a shift of responsibility “for this group of children and families to a developing state
[Nauru] in the region.”
The decision on Wednesday means that 267 asylum-seekers, including 29 children and 33 babies born in Australia, can be
deported to Nauru. A system of dysfunction and legalised rendition continues being perpetuated. The High Court has shown
once again the enormous weaknesses within a legal system that lacks a higher enshrined law, one that fetters, rather
than enhances, Parliamentary and executive discretion to harm others. Even more disturbing, it also suggests that such
harm can be outsourced to foreign governments by accord.
Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne.