High Court to test constitutionality of offshore detention

Transcript

Australia's highest court will sit in October to consider the constitutionality of the government's offshore detention of asylum seekers in Nauru and Papua New Guinea.

The case is being brought by the Human Rights Law Centre on behalf of 150 asylum seekers who were temporarily moved to Australia from Nauru for medical treatment.

When it was originally raised in May, the case argued that there was no Australian law which gave the government the power to facilitate offshore arrangements.

But the government, with the support of the opposition Labor party, hastily brought in such a law.

Despite this, the Human Rights Law Centre's director of legal advocacy, Daniel Webb, says the case is still going ahead because there are important and untested questions about the constitutionality of offshore detention.

DANIEL WEBB: Well initially the case contended that the Australian Government didn't have the necessary legislative power. There was no law that enabled it to facilitate or fund offshore detention. The Australian Government responded to that case by passing a law purports to give it the retrospective power to fund and facilitate offshore detention but there remain very serious questions, and untested questions, about whether the Australian constitution empowers the Parliament to pass a law like that. We know that the Parliament can make a law for the detention of people in Australia and that it can make a law for the removal of people from Australia but it's quite a different proposition to make a law that allows the Commonwealth  to be involved in and to fund the detention of innocent people indefinitely in third countries.

JAMIE TAHANA: What about the constitutionality of this is in question?

DW: Unlike other nations Australia doesn't have a Bill of Rights in its constitution but what it does have is a list of matters that the Parliament can make laws with respect to
there's a range of things that the parliament can pass laws in respect to and the question is, is there anything in the constitution that gives the government the power to be involved in and fund  the indefinite detention of innocent people in third countries?  They're important questions and they're untested questions and they go right to the core of the current offshore detention arrangements.

JT:  Offshore arrangements have been around in Australia for over a decade or so now, has any such challenge been made before or are you looking to set a precedent with this?

DW:  This case is unprecedented and it does raise these questions that haven't been tested before.  The case is actually being run on behalf of people who are in Australia.  It's being run on behalf of about 150 very vulnerable people, including pregnant women and new-born babies, who have all been detained on Nauru before and who have been brought back to Australia for a temporary purpose, to give birth of for medical treatment.  The reason the case is being run now is that we are raising these questions on behalf of our very vulnerable clients who desperately do not want to be sent back to an offshore environment that is already caused them a great deal of harm.

JT:  If you win this in October, does that mean the Nauru and Manus detention centres are shut down or just that these people will not be sent back?  What would happen if you win this?

DW:  It's difficult to speculate on that for a couple of reasons.  One is that the case is before the courts.  Two is we really need to wait and see what the court decides and then also how the governments of Australia and Nauru respond to any decision made by the court.

JT:  You say the reaction of the governments of Australia and Nauru but presumably if it's found to be unconstitutional that would make it very difficult to do retrospective law changes as happened last time, would it?

DW:  That's right.  The great thing about constitutional questions is that you can't legislate them away and what we've seen with Australia in recent times is that a typical response to court cases raising limits or potential limits on government power is for the government to just remove those limits.  It's less able to do that when the questions involved in the case are constitutional.  What has been challenged is not detention per say but the Australian government's role in it.  So the questions in this case relate to the Australian government and to what extent the Australian government can facilitate, contribute to, fund and otherwise organise the detention of innocent people in third countries.