This month’s High Court ruling that Australia’s offshore processing centres are legal has triggered widespread action in support of those that risk being deported to Nauru.
The test case was led by the Human Rights Law Centre (HRLC) on behalf of a woman that was brought to Australia to receive urgent medical treatment relating to her pregnancy. After giving birth, she attempted to keep the Australian government from sending her baby, as well as herself, back to Nauru by arguing that no Australian law permits the government to operate detention centres in other countries. At the time of taking this case the HRLC said that there were “serious Constitutional questions” regarding the centres. While the government could detain or remove people in its own country, questions were raised as to the government’s power to operate and fund facilities in other countries.
However, on February 3 the High Court ruled that it was lawful, drawing attention to a piece of legislation that was added just last year allowing it to do so. This decision meant that a total of 267 people who are in Australia for medical treatment, including 37 babies, could be sent back to the offshore detention centre at any time. Despite the ruling, Daniel Webb from the HRLC urged the government to consider the “morality” and grant asylum to these people.
The decision instigated a large public display of opposition. Demands from many parts of Australia including major religious groups, the Premiers of five states and the public called for refuge to be granted to these people and the closing down of the centres. Additionally, the resurfacing of abuse reports instigated a number of protests across the country as well as the viral social media campaign dominated by the hashtag #LetThemStay.
How Labor created and now protected mandatory detention
Mandatory detention was introduced by Labor government in 1992. Although at first it existed with a 273 day limit, this limit was removed 2 years later.
When the HRLC took on the case, the government realised that they had a legitimate argument. So the government drafted an amendment to the Migration Act. This amendment would give them the power to make an “arrangement with another country with respects to the regional processing function of that country” and to take “unauthorised maritime arrivals”, or ‘boat people’, “to a country that has been designated by the Minister”. It also covered for the billions that have been spent on the centres. This amendment would authorise offshore operations starting from August 2012, back when Labor was in government.
The insertion of this bill into the Migration Act after a case had been put against them alludes to the fact that the government created policies and then later changed Australian law to suit their agenda. This policy meddling directly affects the world’s most vulnerable, a group of people who need the protection of the law the most. Labor offered no opposition to this process and with their support, the amendment passed just 2 days after it was introduced.
When delivering the decision, the judge drew attention to this bill saying it is what ultimately protected the government’s actions – just as it was designed to do. Had it not been passed there was a real likelihood the centres would been deemed illegal and forced to shut down.
Pushing the Public into Action
Many reports have been released revealing the abuse and harm detention centres cause, so this decision already had a lot media and public attention with a focus on the babies that were born in Australia that could be sent to Nauru. However, the government’s initial response disregarded the growing calls to let them stay. Prime Minister Malcolm Turnbull said on the day of the deliberation that “the line has to be drawn somewhere and it is drawn at our borders.” Immigration Minister Peter Dutton assured Australians that he would look at every case individually and that “misinformation” about Nauru had been spread, relating to stories of conditions on the islands.
The following day the Human Rights Commission President Gillian Triggs, a strong critic of the policies, released a report that had been given to the government in November 2015. The report showed the high level of harm children have experienced and continue to experience at an immigration detention centre in Darwin. A team found that all of the children screened using the Parent Evaluation of Development scale were in the top two score categories for development risk, which puts them higher than any published results worldwide for this screening tool. Fearing that these could be the children the government could send back to Nauru, Triggs used these findings to publicly urge the government to allow them to stay. A professor that took part in the report said that the mere mention of returning to Nauru caused “palpable anticipatory trauma.”
In an unexpected move, given the secrecy enforced by Immigration, the Border Force’s own chief doctor, Dr John Brayley, spoke out against the detention of children this week, saying that “wherever possible, children should not be in detention”.
These reports and expert claims combined with the images of the Syrian refugee crisis has left a strong mark on the public’s conscience, although it has yet to impact government policy. As a show of support the Australian Christian Churches launched an appeal last September to raise funds for refugees in other countries. Now that there are vulnerable people on our land, churches have been offering sanctuary to all 267 people, risking 10 years jail time (although the government is unlikely to pursue this.) While this offer has no legal basis in Australia, it is not entirely an empty gesture but instead a strong show of opposition to Australia’s policies from an influential voice in the community.
Seeing this and the growing public rallies across Australian cities and towns, Victoria Premier Daniel Andrews published a letter on social media that he sent to the Prime Minister offering to take in the 267 people. This had many of his counterparts in other states supporting him and following suit. Given that Federal Labor is still standing by offshore processing, Andrews has turned on his party’s policies not just the governments while also showing that it will receive public support.
The rhetoric “stopping boats saves lives” no longer can be used when so many lives have been harmed under this policy. Using another popular argument, Turnbull warned of the flood of refugees that will try to enter Australia if we “open our borders.” This rhetoric is not only careless in its neglect for refugees but also violates a number of international laws and treaties that have been signed by Australia. Under this legislation, Australia has international obligations to protect the human rights of all asylum seekers and refugees who arrive in Australia, regardless of how or where they arrive and whether they arrive with or without a visa. These treaties include, but are not limited to; the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the Convention on the Rights of the Child (CRC).
Given that we are at a time of the highest level of displaced people since World War II, Australia’s obligations to respect these international mandates are of critical importance.
We avoided having a real discussion on the refugee crisis when our government announced its plan to accept an extra 12,000 people from Syria and Iraq. While it is welcomed news, all this did was restore our resettlement number to around 20,000 which it had been under Gillard. If the Turnbull government turns and listens to the public, Australia can finally begin to work on a better policy instead of the current action that has so far only settled 26 people of that extra 12,000.