Detention found to be lawful by the court is still not appropriate

Detention found to be lawful by the court is still not appropriate

Wednesday, 3 May 2017

The High Court has today ruled that the constitution allows the Commonwealth government to detain asylum seekers it has brought to Australia from offshore centres.

The case tested unresolved questions about the government’s power to detain asylum seekers and refugees it has removed from Australia and then brought back to Australia.

The case known as M96 was run by Victoria Legal Aid (VLA) on behalf of two female asylum seekers who were brought to Australia from Nauru in November 2014 for medical treatment. They had escaped persecution in Iran, and were detained in August 2013 on Christmas Island and then transferred to Nauru.

Today’s judgment confirmed that Australia’s constitution allows people seeking asylum to be detained by the Minister for Immigration and Border Protection – rather than by the order of a court – only for specific purposes. This includes their removal from Australia, or while decisions relating to visa applications are made.

The High Court found that the women were detained for a permissible purpose, ruling against our arguments. While it confirmed that detention in these circumstances is legal, it is not constitutionally required.

We say that detention in cases like this is not appropriate, and that important questions about the Commonwealth’s treatment of asylum seekers in Australia remain.

While the challenge was not successful, the High Court judgment confirmed for some 250 other asylum seekers held in Australia for a ‘temporary purpose’ that decisions by the Commonwealth government to send an asylum seeker back to an offshore processing centre can likely be disputed in the courts.

After submissions to the High Court were filed in December 2016, the mother and daughter were released into community detention in Melbourne where they must observe a curfew and other strict conditions.

They are still receiving treatment for a range of medical issues, and do not know what will happen to them or family members still detained on Nauru. They have been found to be refugees.

Under the National Partnership Agreement on Legal Assistance Services entered into by the Commonwealth and all the States and Territories, VLA is permitted to test the limit of government power, ensuring that the ways the government exercises its power it just and fair.

This case met several service criteria set out in the agreement and will help clarify the law.

Quotes attributable to Executive Director Civil Justice, Access and Equity, Dan Nicholson:

  • ‘While we are disappointed, today’s decision does not mean that this detention is required by the constitution or is appropriate.’
  • ‘It is not an endorsement of the government’s mandatory detention policy. The court stated that “detention might even be antithetical to the medical treatment for which the person is brought to Australia.” In this case, undisputed evidence makes it clear that the government’s decision to detain our clients for over two years has been deeply harmful to them, physically and mentally.’
  • ‘This decision clarifies for the other 250 asylum seekers and refugees currently in Australia for reasons like medical treatment, that a decision by the Commonwealth government to send them back to an offshore processing centre could likely be disputed in the courts.’  
  • ‘The government has unique and special powers which can have a serious and detrimental impact on this highly vulnerable and traumatised group of people. It is therefore important to test and clarify the legality of these powers.’

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