Legal challenge to Australia's offshore detention of asylum seekers goes ahead
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Version 0 of 1. A high court challenge to the Australian government’s offshore processing regime is still on the cards for later this year, despite the passing of rushed legislation through both houses of parliament. Amendments to the Migration Act that enshrine in legislation the Commonwealth’s ability to make laws relating to the funding and facilitating of offshore processing centres passed the Senate on Thursday night. The government had moved other legislation off the agenda in order to ram the legislation through before parliament rose for its six week winter recess. The finance minister, Mathias Cormann, had warned senators on Thursday morning that the chamber would sit as long as necessary to pass the changes. The high court challenge started in May, and justice Geoffrey Nettle, who presided over a directions hearing on the case on Wednesday, acknowledged that the case would at the very earliest be heard in September, raising questions over why the legislation was introduced in such a rush. Parliament sits again in August, so both houses would have had an opportunity to debate legislation before the case is likely to begin. Instead, the legislation passed through the chambers unimpeded, and there was no scrutiny by a parliamentary committee. Labor supported the retrospective changes and joined the Coalition in voting down amendments from the Greens and Liberal Democrat senator David Leyonhjelm. The legislation is backdated to 2012 to cover the Commonwealth from when then prime minister Julia Gillard decided to reopen the Nauru detention centre. The amendments passed this week potentially resolve the argument of whether the government can provide money for a big policy area without first legislating on it, as financing the centre in Nauru is clearly spelt out in the changes. But the second limb of the challenge – that the constitution does not give the government the power to detain people offshore – is ongoing and unaffected by Thursday’s legislative changes. Lawyer for the plaintiffs, Ron Merkel, told the directions hearing that there is a “constitutional limitation on the Commonwealth’s lack of power to detain”. The constitution gives the Commonwealth the power to detain people onshore who have broken the law, or deport them to their home countries, but does not specify that non-citizens can be removed and detained offshore. Daniel Webb from the Human Rights Law Centre, which is involved in the case, told Guardian Australia that “serious questions remain about whether it has valid legal authority to procure detention in the territories of other nations”. “It can detain people in Australia. It can remove people from Australia. But the indefinite detention of innocent men, women and children in third countries is another matter altogether,” Webb said. He argued that the government had “hastily shifted the goalposts” of the high court challenge by introducing the legislation. The attorney general, George Brandis, told the Senate on Thursday before the legislation passed that “the commonwealth believes that, under the pre-existing law, it is on strong legal grounds. It is also the view of the commonwealth that this legislation will strengthen and further undergird the Commonwealth’s legal position”. No formal hearing date has been set, and the high court still setting the parameters in directions hearings. The next directions hearing is in late July. |