Offshore dissension

Last week appeared another sorry chapter in the history of Australia’s treatment of refugees. The High Court agreed that our program of offshore detention was legal. A late and far-reaching amendment to the Migration Act had made it so.

While Australia participated in this detention, the court found, it was not directly enforcing it. Australia could not compel anything of Nauru, even if in practice it was doing just that.

The one dissenting judgement, though, is an offer of hope and sense. Written by the court’s most recent appointment, Michelle Gordon, it is alive to the principle that most candidly challenges Australia’s punitive treatment of refugees: that only a court may punish.

Gordon was unconvinced by the amendment passed last year, conferring on governments the power to maintain and fund offshore detention. She noted that the amendment allowed Australia to do “anything to the person or property of any person who is an alien so long as the conduct occurs outside the territorial borders of Australia”. She found, in extreme detail, the legal basis of the government’s argument invalid. Among other things, the amendment invested powers it could not confer. Moreover, Australia never properly removed from its own detention the people it was locking up abroad.

 “There could be no dispute that the Commonwealth took the plaintiff to a place outside Australia (namely Nauru),” she wrote. “But, on Nauru, the Commonwealth did not discharge the plaintiff from its detention. Despite having removed the plaintiff to a place outside Australia, the Commonwealth intended to and did exercise restraint over the plaintiff’s liberty on Nauru, if needs be by applying force to her… the Commonwealth detained the plaintiff on Nauru by its acts and conduct.”

Gordon’s judgement is plain and thorough and deserves to be read at some length. The follow passage, for instance, is of some use: “It was suggested in argument, in effect, that whether the Commonwealth was found to detain the plaintiff was irrelevant and, further, that because the Commonwealth could validly provide foreign aid to Nauru to detain the plaintiff, whether the Commonwealth detained the plaintiff was a matter of form over substance – the plaintiff would have been detained anyway, by Nauru alone, with the benefit of funding provided by Australia. Neither point is right.”

Gordon pulls this apart in steps. Constitutional validity cannot be determined on the hypothetical actions of a foreign state, she says. Moreover, the contract between Transfield and the Australian government for the operation of the detention centre contains a “step in” provision that would enable Australia or those under its employ to forcibly detain people inside the Nauru camps.

“To that end,” she writes, “the Commonwealth may by its servants assault detainees and physically restrain them. That it is the Commonwealth that may do this is no mere matter of form. The argument which describes the relationships established as mere matters of form, to be ignored by observing that the Commonwealth could validly provide funding to Nauru for Nauru alone to effect the detention, stands principle on its head. It does so because it treats the Commonwealth’s detention of the plaintiff as irrelevant.”

The force of this dissenting judgement is one of great prospect. It diligently pokes holes in the legal edifice built by successive governments to torture refugees. In it is the hope for future challenges that might one day dismantle this shame.

One particular line of Gordon’s is brief and brilliant. It encapsulates perfectly the fiction at the heart of our offshore detention regime, the lie of supplanted responsibility, of our parliament’s sophistry.

“In short,” she writes, “the effect of the Commonwealth’s submission is that it can do outside Australia what it cannot do inside Australia.”

One might politely call this a paradox. More accurately, it could be called a farce.

This article was first published in the print edition of The Saturday Paper on Feb 13, 2016 as "Offshore dissension".

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