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The High Court’s ruling that offshore detention is legal has cruelly condemned 37 Australian-born babies to a life of uncertainty on a bleak island. What was the government's ‘sleight of hand’ that protected our immigration policy? By Martin McKenzie-Murray.

The lawful truth of the High Court’s offshore detention decision

Plaintiff M68’s Australian-born daughter, who now faces deportation to Nauru.
Credit: SUPPLIED

Thursday, June 25, 2015, was a pivotal date for Australia’s immigration policies. In Parliament House, it was the second and final night of a hasty debate about proposed legislation – legislation that would dramatically fortify our policy of offshore detention. Before then, the status quo was under attack – there were High Court challenges to its legality, and the gloomy precedent of the same jurisdiction ruling against the Gillard government’s so-called Malaysia Solution in 2011.

The context of the parliamentary debate was simple: in May, the Human Rights Law Centre had started legal proceedings, founded on their contention that “there was no Australian law which gave the government the necessary power to fund and otherwise facilitate the current offshore detention arrangements”. The HRLC legal advocacy director, Daniel Webb, led the challenge on behalf of a Bangladeshi woman – known only as Plaintiff M68 – who had been detained in Nauru, but was transferred to Australia for medical treatment late in her pregnancy. It was here that she gave birth.

The government was spooked. If the High Court ever ruled offshore processing to be unlawful, it would be disastrous. An amendment to the Migration Act – 198AHA – was drafted and entered both chambers for debate. In the senate, Labor’s Kim Carr asked the following of Attorney-General George Brandis: “Can the minister confirm for the benefit of the senate that this bill does not change or in any way expand the current situation in regional offshore processing?”

Brandis could indeed confirm this. But the next question, and its response, would prove to be far more pertinent to this week’s High Court decision. Carr asked: “In relation to proposed new sections 198AHA(2)(a) and 198AHA(2)(c) can the minister clarify exactly what is meant by the phrases ‘any action’ and ‘do anything else’?”

Carr was highlighting the extraordinarily expansive language of the amendment, which would, of course, translate into extraordinarily expansive powers. Brandis responded: “The provision is intended to ensure that all aspects of the Commonwealth’s actions in relation to regional processing arrangements are captured… The intention of section 198AHA(2)(a) and 198AHA(2)(c), therefore, is to ensure that clear statutory authority is provided to cover the full gamut of the Commonwealth’s conduct in connection with regional processing arrangements, and the actions which the regional processing centre countries themselves take in connection with their regional processing functions.”

In other words, the amendment was about conferring carte blanche statutory power to the government regarding its arrangements for offshore detention. This wording would survive parliamentary debate and, with the support of the Labor Party, be enshrined in law. It was empowered to be retrospective, also – granting the government protection back until 2012.

M68 case lost in High Court

On Wednesday morning, Daniel Webb had a difficult phone call to make. The High Court’s judgement had been handed down. The HRLC’s challenge had been unsuccessful. Webb’s unnamed plaintiff, M68, and her child would likely be transferred back to Nauru – among the 37 babies born in Australia in similar circumstances. Before Webb fronted the media, he made the call.

“Calling my client to deliver news of the court’s decision was the hardest phone call I’ve ever had to make,” Webb told me. “How do you explain to a young mother that our law says her baby – born right here in Australia – will be condemned to a life in limbo on a tiny island? She wants what every mother in the world wants – her daughter to have a chance at a decent life somewhere safe.

“Her daughter is now one year old and has just spoken her first words. It’s so sad to think that she has never experienced freedom – she has spent every single day of her young life in detention. And it could be about to get a whole lot worse for her. There is simply no excuse.”

This expansive wording of 198AHA was central to the High Court’s decision this week upholding the lawfulness of our offshore processing. It is worth pausing on the court’s judgement:

“The principal statutory authority relied upon by the Commonwealth for its participation in the plaintiff’s detention on Nauru is s 198AHA of the Migration Act. It was recently inserted [into the Act],” the judgement read. It then specified those powers: “The Commonwealth may do all or any of the following: (a) take, or cause to be taken, any action in relation to the arrangement or the regional processing functions of the country; (b) make payments, or cause payments to be made, in relation to the arrangement or the regional processing functions of the country; (c) do anything else that is incidental or conducive to the taking of such action or the making of such payments.”

It’s crucial because the High Court’s judgement accepted that Australia’s offshore processing regime may very well be unlawful were it not for 198AHA. The judgement reads: “It will be apparent from what I have written, and may be relevant to costs, that I consider the plaintiff’s central claim (that the Commonwealth and the Minister acted beyond the executive power of the Commonwealth by procuring and enforcing her detention at the Regional Processing Centre between 24 March 2014 and 2 August 2014) to have been well-founded until 30 June 2015, when s 198AHA was inserted with retrospective effect.”

Far from being a vexatious claim from the HRLC, the proceedings shook the government into granting itself retrospective immunity.

Bipartisan support

Now, we must be careful here. A law is still a law despite its newness. The High Court may not disregard the relevant legislation because it was drafted in panic. But we may contemplate how close the government came to seeing its processing regime ruled unlawful, as we may contemplate the rushed consideration of 198AHA and with it the expansive powers the government granted itself.

Daniel Webb told me: “I don’t think we’ve ever seen a piece of legislation like this in Australia – retrospectively authorising three years of detention of thousands of innocent people in the middle of a case in our highest court. What’s almost as incredible as the law itself is how quickly it just sailed through our parliament with bipartisan support. Opposition leader Bill Shorten said at the time it took him ‘not more than 10 seconds’ to decide what to do. I only wish he’d spent those 10 seconds thinking about the 37 babies and 54 children whose lives he was helping sign away.”

Greens senator Sarah Hanson-Young echoed this to me: “The government rushed this legislation through parliament in under 24 hours, with Labor’s support, and no time was given for a proper debate.”

The senator also said: “The government changed the law to specifically undermine this challenge and the Labor Party backed them all the way. Moving the goalposts when you’re playing with people’s lives is not okay.

“This government was already known for its dirty tricks, but this move took that to a new low. This sleight of hand was done to ensure that Malcolm Turnbull can return 267 people, including 90 children, to the horrific detention camps on Nauru and Manus Island. The prime minister should personally guarantee that these people will not be sent offshore.”

On the matter of Labor’s support for the 198AHA legislation, the office of the opposition immigration spokesman, Richard Marles, could only refer me to his media release issued earlier that day. It was far from helpful. “Following today’s High Court decision on offshore processing, the Turnbull government must immediately secure proper third country settlement options for refugees,” the statement read.

“The Abbott–Turnbull government has failed abysmally in securing any meaningful resettlement plan with a viable third country, instead wasting $55 million on a botched deal with Cambodia that has resettled only three people.

“Over the last 24 months, media have also reported the government has held talks to resettle refugees with the countries of Philippines and Kyrgyzstan. All the while, people have been left to languish in processing centres without any certainty for their future.”

Yet the languishment Marles deplores is a function of 198AHA. Which he, of course, supported.

Offshore limbo

And so the highest court in the land has ruled offshore processing legal. The constitution is mute on the matter of asylum seekers. We have proved obstinate in the face of international censure, and detainees are now beholden to the squalor and legal caprices of troubled countries. In other words, asylum seekers are in a terrible place – subject to other countries’ contempt for the law, and unable to be much protected by our own. To which the supporter of offshore processing might say, “Well, at least they are not dead” – killed at home or at sea.

What we discovered on Wednesday is that there is little legal recourse for asylum seekers caught in offshore limbo. “Once removed, their fate is put beyond Australian law and the oversight of our courts,” the legal professor, George Williams, wrote this week. “As Chief Justice French and Justices Kiefel and Nettle stated, once removed from Australia, the plaintiff is ‘detained in custody under the laws of Nauru, administered by the executive government of Nauru’.

“This follows from the fact that Australian courts do not rule on what occurs within another sovereign state. This is true even if that state, as is the case with Nauru, is beholden to Australia, and has a dubious record of upholding the rule of law within its own borders. In such a case, asylum seekers can find themselves removed from Australia to what is in effect a legal black hole.”

Naturally, the two leaders of the major parties saw it differently. “The people smugglers will not prevail over our sovereignty,” the prime minister said in parliament this week. “Our borders are secure. The line has to be drawn somewhere and it is drawn at our border. Mr Speaker, I note today that a very significant judgment was handed down by the High Court of Australia.

“If we wish to stop people drowning at sea, if we want to keep our borders safe, if we want to maintain support for our whole immigration policy, if we want the capacity to bring in refugees from Syria, 12,000 additional refugees from persecuted minorities, then we need a strong border protection regime and this government will stand steadfast in protecting the border.”

Opposition leader Bill Shorten, rather strangely, suggested that offshore processing was central to defeating “the crime gangs”. Strange, in that we detain asylum seekers offshore before determining the validity of their claims. Before determining anything, in fact.

“The legality is one thing,” Webb told me. “The morality is another. The stroke of a pen is all it would take Malcolm Turnbull to do the decent thing and let these families stay. We are talking about kids who right now are in classrooms around the country – kids who have had tough, tough lives but who are just starting to rebuild them. We’re talking about 37 babies. Over a dozen women who have been sexually assaulted or harassed on Nauru.

“There’s no denying our policies are cruel – they harm everyone who is subject to them. But it would be particularly cruel to rip these kids from their classrooms, wake these babies in their sleep, and condemn them and their families to a life in limbo.”

Courts and morality

In 1857, the US Supreme Court issued one of its most notorious judgements. Known as the Dred Scott decision, the court rejected the appeal to freedom of Missouri slave Dred Scott on the grounds that the constitution did not protect the liberties of African Americans.

I am not suggesting an analogy here between the Scott decision and this week’s High Court decision – the Dred Scott ruling was corrupt; the High Court’s decision anything other. But Abraham Lincoln’s evolution on the issue is instructive. Initially, Lincoln moved very slowly. He had an abiding respect for the law, believing it tempered populism, superstition and moral absolutism. Sober attributes for a future president, but of limited power when the highest court did not recognise African Americans – nor the laws that did.

The man of action – the great emancipator found in Lincoln hagiography – was in reality a far more cautious and pragmatic man. Trusting in the court’s good faith and lack of bias, Lincoln once considered disagreement with the decision as “revolutionary”. But he changed. Seeing that the court was not, in fact, unbiased, but had ignored various state statutes, Lincoln’s deference began to weaken. He claimed the Supreme Court was in “conspiracy” to perpetuate slavery, and would call the decision “erroneous”. Lincoln’s conclusion was that the courts could not be the sole arbiter of morality – and that political change was also necessary.

The point here is that the status quo is placing children in harm. “We can’t litigate away cruelty and replace it with kindness,” Webb tells me. “We’ll continue to fight for the individuals we represent, but our broader challenge is to persuade the public that this is a matter of basic human decency – there is simply no excuse to cause such harm to innocent people, especially children.”

Until nine months ago, our offshore processing arrangements were likely unlawful. The fact that they are no longer so legally dubious does not expunge our responsibility to the safety and wellbeing of those seeking asylum. Political appeals must be made, but for them to be successful, opponents to offshore processing must also offer alternatives. Alternatives that counter the most persuasive aspect of the status quo – that drowning at sea has stopped.

This article was first published in the print edition of The Saturday Paper on Feb 6, 2016 as "The lawful truth". Subscribe here.

Martin McKenzie-Murray
is The Saturday Paper’s chief correspondent.