Yesterday the Australian High Court handed down a remarkable ruling, stating that the detention of asylum-seekers by the Australian Government complied with domestic (Australian) laws recently enacted. It was remarkable because the ruling was entirely about procedure – not what is right or is wrong. As such, the High Court has given the green light to civil liberties activists and those who seek justice to now take matters into their own hands and do everything they can to liberate the refugees and asylum-seekers who are being held contrary to all notions of natural justice.
By agreeing that the Australian Government has acted within the (domestic) law the Australian High Court is explicitly approving all actions taken by that Government in the way it has detained refugees. In other words, the High Court has approved the Australian Government’s right to seize vessels on the open seas (against all maritime laws), to highjack those vessels (again, in violation of maritime laws), to kidnap the passengers on board those vessels (unlawfully, by all international laws), to detain those passengers and to hold them as prisoners (against all UN and other international protocols).
While the High Court ruling was entirely process-led, it also – possibly inadvertently – included statements that could be used in future submissions to subvert the Government’s policy re the offshore processing and detention of refugees.
For example, the High Court ruling stated that detention must not be indefinite. However, it failed to properly define what ‘indefinite’ meant: a year? six months? one month? As such, the ruling invites all detainees to challenge their current term of detention.
Moreover, one of the High Court justices – Gordon J – emphasised that as the detention of the asylum-seekers on Nauru, for example, was paid for and organised by Australia, the Australian Government retains the right to “step in” and take over the detention centre there at any time it chooses. She added: “The Commonwealth occupies an office at the Nauru RPC, at which officers of the Australian border force of the Commonwealth carry out functions in relation to transferees or the Nauru RPC.” And “The officers wear official clothing bearing the insignia of the Australian border force of the commonwealth and the Australian coat of arms.” In other words, the Australian Government – whatever it claims to the contrary – controls those centres. This is important, as will be seen below…
In addition, the (majority) joint ruling from justices French CJ, Kiefel and Nettle JJ stated that “the Commonwealth may only participate in that [offshore processing] regime if, and for so long as, it serves the purpose of processing…” But this is where the ruling gets interesting. The Australian Government funds the Nauru Government to host the dentention centres and pays Wilson Security and Transfield services (now Broadspectrum) to manage those centres. All this is unquestionably clear. But the court ruling went on to say that “The Commonwealth is not authorised… to support an offshore detention regime…”
In other words the High Court ruling – again, inadvertently – has highlighted a possible loophole for further legal action against the Australian Government. Basically, if the Australian Government is not authorised to support those centres as a detention regime – as the High Court stated – even though the Australian Government is clearly funding them – then that means the entire OPC programme is unlawful, after all, and so all funding must cease. And when funding ceases, Nauru and PNG will no longer be interested in hosting the detention centres.
That statement by the High Court is also significant (albeit unintentionally) because it recognises that the centres would not continue to exist if it were not for Australian Government funds. Ipso facto, as the Australian Government is the main ‘stakeholder’ in the OPC it should be held legally liable for all abuse – physical, sexual abuse – rape, beatings, poor health care, lack of education facilities, etc – past and future – endured by those detained in these concentration camps. Claims for compensation and damages should be lodged.
But legal claims take time and the Australian Government is expert at avoiding justice. And so it is clear that the only way justice will prevail is not via the courts – which have abandoned their responsibilities – but if ordinary citizens take action to prevent further abuse.
Meanwhile vulnerable people – including children – are now hoping their fates will not be abandoned too. Or are we to wait until the next rape, the next beating, the next suicide, or the next murder?
Do nothing and you are complicit.