High Court Ruling: Our Government Can Still Decide to Protect Refugee Rights

This article was originally published on Right Now.

Wednesday’s High Court decision upholding the legality of detention in Nauru is tragic in its result. But the decision was far from a vindication for the Government. In important ways the judgment signals an increasing willingness by at least some members of the High Court to rein in the excesses of Australia’s detention policies.

The case was litigated by the Human Rights Law Centre on behalf of a Bangladeshi woman brought to Australia while she was pregnant, and centred on two main claims: that no Australian law authorised the government to fund offshore detention arrangements, and that the detention by the Commonwealth Government on Nauru was unconstitutional.

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Short Summary: Plaintiff M68/2015 v Minister for Immigration and Border Protection

Today the High Court found 6:1 that the Commonwealth has the power to fund and control the Nauru offshore detention centre.

Importantly, the High Court found that our Government was indisputably participating in the detention of people in Nauru.

As Bell J noted [93]:

The Commonwealth funded the RPC and exercised effective control over the detention of the transferees through the contractual obligations it imposed on Transfield. The first premise of the plaintiff’s Lim challenge, that her detention in Nauru was, as a matter of substance, caused and effectively controlled by the Commonwealth parties, may be accepted.

However, the Court found that the detention was authorised by the retrospective legislation that was rushed through parliament in June last year. The introduction of retrospective legislation, as well as the transition to an open centre, highlights the Government’s repeated practice of attempting to circumvent the courts.

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Funding barriers shut out asylum seekers and refugees from further education

Asher Hirsch, Monash University and Joyce Chia, Monash University

“When I arrived in Australia I was 17. Now I’m almost 20. The best years of my life are gone. When can I go to school? When can I go to college? When can I have my education? I don’t know what will happen to me.

“I escaped from my country because I couldn’t go to school. The only thing I wished to have was a better life, a safe life, and to be educated – and I couldn’t have that.”

As secondary school students eagerly await their university offers, this young man faces a much bleaker future.

Abdul is one of around 30,000 people seeking asylum who are waiting for the government to finalise their refugee claims. Once they prove their claim for protection they are found to be refugees, yet because they arrived by boat they will only have access to temporary visas.

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Even Once They Win It, Citizenship Is Used Against Refugees

This article was original published on New Matilda.

Citizenship has been a hot topic for the Australian government over the last year. While debate surrounding the new anti-terrorism laws has received significant attention, another hidden attack on citizenship is taking place behind the scenes.

Refugees on permanent visas, who have been in Australia for over four years and are thus eligible to receive citizenship have been experiencing significant delays when applying.

Most of these people have one thing in common – they applied for protection after arriving in Australia by boat.

Now, four years later, they are still being punished simply because of a choice they made under desperate circumstances.

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Delays to citizenship for refugees appears discriminatory

Refugee Council of Australia’s research has shown refugees are being denied their right to citizenship, even after meeting all the requirements set by Government, seemingly because of the mode in which they arrived in Australia. Lead Researcher, Asher Hirsch, talks to the ABC about what appears to be a discriminatory practice, although not an official policy.

Read the full report here.

Delays to citizenship for refugees appears discriminatory from Refugee Council of Australia on Vimeo.

Did ‘ending’ detention on Nauru also end the constitutional challenge to offshore processing?

Joyce Chia, Monash University and Asher Hirsch, Monash University

The Nauruan government announced earlier this week that it will remove the remaining restrictions on the liberty of the asylum seekers detained there, and process all pending claims for asylum. It initially said it would process the claims in a week, but has since backtracked from that commitment.

Many have claimed that the announcement is a strategic move to undermine a constitutional challenge to Australia’s offshore detention regime, heard by the High Court this week – although the Australian government has denied this. So does the policy change spell the end of the challenge?

While that question can only be answered after the High Court’s decision, the hearings give a hint. The short answer is that the Nauruan government’s announcements have already had a much greater effect in the High Court than on Nauru itself. Continue reading