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Turnbull can Send Children Back to Nauru – High Court

3 February 2016 at 11:45 am
Lina Caneva
The High Court of Australia has found the Australian Government did act lawfully and can send asylum seekers back to immigration detention on Nauru. The court released its judgment which is expected to affect 267…

Lina Caneva | 3 February 2016 at 11:45 am


Turnbull can Send Children Back to Nauru – High Court
3 February 2016 at 11:45 am

The High Court of Australia has found the Australian Government did act lawfully and can send asylum seekers back to immigration detention on Nauru.

The court released its judgment which is expected to affect 267 asylum seekers currently living in Australia after receiving medical treatment. Ninety-one of them are children, including 37 babies born in Australia.

The decision came a day before the Australian Human Rights Commission publicly released its second damning report into the medical condition of children in detention at Wickham Point in Darwin.

“We were deeply disturbed by the numbers of young children who expressed intent to self-harm and talked openly about suicide and by those who had already self-harmed,” the report said.

The High Court case revolved around a Bangladeshi woman brought to Australia from Nauru because of serious health complications during her pregnancy. She gave birth to a daughter in Brisbane.

“The High Court has ruled that the Australian Government’s role in funding and participating in offshore detention on Nauru does not breach Australian law, but it did not give a blanket authority for the Government’s actions,” the Human Rights Law Centre said.

The Centre’s Director of Legal Advocacy, Daniel Webb, said 267 people were terrified they would now face immediate deportation to Nauru.

“The legality is one thing, the morality is another. Ripping kids out of primary schools and sending them to be indefinitely warehoused on a tiny remote island is wrong. We now look to the Prime Minister to step in and do the right thing and let them stay so these families can start to rebuild their lives,” Webb said.

“This mother just wants what all mothers want – her child to have a decent life somewhere safe. With a stroke of a pen, our Prime Minister, Malcolm Turnbull, could make that a reality. It’s time to bring some compassion and common sense back to Australian policy and law.

“We’re disappointed in the ruling. But the court’s decision isn’t a blanket authority for the Australian Government as the court has recognised important limits on the government’s powers around the purpose of detention and its length.”

The legal team who had been running the case included barristers Ron Merkel QC, Craig Lenehan, David Hume, Rachel Mansted, Emma Bathurst and Stacks Goudkamp Lawyers. Assistance has also been provided by the Refugee Advice and Casework Service and Darwin Asylum Seeker Support and Advocacy Network.

Webb said the government had shifted the goalposts during the case.

“When the challenge was first launched the Government made retrospective changes to the law which were waved through Parliament by the Opposition and then on the eve of the High Court hearing, a move to an ‘open centre’ on Nauru was announced,” he said.

“The legality is complex but the morality is simple – it would be fundamentally wrong for the Government to condemn these families to a life in limbo on Nauru.”

The Australian Human Rights Commission (AHRC) said the High Court decision did not alter Australia’s international obligations towards people seeking asylum.

“The High Court has confirmed that third country processing is lawful under our domestic legislation, but it did not judge whether it complies with international law,” President of the AHRC, Professor Gillian Triggs, said.

“Australia has obligations under international human rights law to protect the safety and wellbeing of all people under our jurisdiction, including people seeking asylum.

“These responsibilities remain whether or not third country processing is authorised by Australian law.”

Professor Triggs said the Commission was particularly concerned about the children and families who are due to be transferred to Nauru.

“Australia has obligations under the Convention on the Rights of the Child to ensure that in all actions concerning children, the best interests of the child shall be a primary consideration. We are also obliged to protect children from cruel, inhuman or degrading treatment or punishment,” she said.

“We are very concerned that returning these children and their families to Nauru would further compromise their health and wellbeing, placing Australia at risk of breaching these international obligations.

“The  High Court decision in no way requires the Government to return the children and their families to Nauru. The Minister for Immigration has discretion to decide whether or not they will be sent back.”

At the release of the AHRC’s latest report into the treatment of children in Australian detention centres, Professor Triggs said Australia’s “national laws, in effect, allow us to wash our hands of the welfare of refugee children once they leave Australia’s shores”.

“Our laws impose no standards on Nauru to meet educational and medical needs of refugees.  Indeed, the government’s chilling defence to claims that it is in breach of its duty of care is that it has no control over the treatment of refugees transferred to Nauru,” she said.

“Now it seems, it rests with the international community to use its influence to ensure the safety of refugee children under the agreed principles of international law.”

Also in response to the High Court decision, the UN Committee on the Rights of the Child reminded the Australian Government that it was obligated to follow the terms of the Convention on the Rights of the Child.

“This decision by the High Court greatly concerns us as these children and their families face a great risk in being sent to a place that cannot be considered safe nor adequate,” Committee Chair, Benyam Mezmur, said.

Lina Caneva  |  Editor  |  @ProBonoNews

Lina Caneva has been a journalist for more than 35 years. She was the editor of Pro Bono Australia News from when it was founded in 2000 until 2018.

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