The High Court has thrown out a challenge to the government’s power to detain people offshore, but Malcolm Turnbull is under pressure over the looming return of more than 250 people to Nauru and Manus Island.
In a widely expected outcome, the court, by a six to one majority, rejected the claim brought by a Bangladeshi woman who was sent to Nauru. The woman was transferred to Australia for medical reasons in the late stage of pregnancy. She now has a one-year-old baby.
The case was linked to challenges being run on behalf of another 266 people, including 90 children – 37 of them babies. Of the total about 20 are from Manus Island.
The government has been waiting on the case’s outcome to send back the people, most of whom have come for medical reasons, including women to give birth. They include a five-year-old boy who had allegedly been raped.
As the High Court case progressed, the government rushed through legislation, with Labor’s support, to buttress its legal position, and the Nauruan government “opened” the detention centre there.
The court found that the Commonwealth’s action in signing an agreement with Nauru was authorised by Section 61 of the Constitution, covering executive power. The government’s authority to finance the detention has been found to be valid. The dissenting judge was Michelle Gordon, who was appointed by the Abbott government.
Speaking before the decision, Immigration Minister Peter Dutton said the government would look at “individual cases” when sending people back. “We have been very clear that we want to provide medical support to families that are in need,” he said.
He said he had asked for some detail about the five-year-old allegedly assaulted.
“We won’t tolerate that sort of behaviour by anyone. If there is a refugee somewhere that has assaulted the child of this refugee family, then nobody would tolerate that. We just don’t accept that for a moment.”
Shadow Attorney-General Mark Dreyfus said the government needed to deal with the future of the people on Nauru and Manus Island. He said no-one had envisaged when this system was set up by Labor – “that two-and-a-half years later people – men, women and children – would be languishing in these centres … facing infinite detention”.
Dreyfus did not say that it was time to end the offshore detention policy. “The government’s got to do a great deal more so that we don’t have people in this situation.”
Greens senator Sarah Hanson-Young called on Turnbull to rule out sending children and their families back to Nauru. “Sending these children to Nauru would be child abuse and Malcolm Turnbull needs to decide whether he is willing to authorise that,” she said. Nauru was unsafe for women and children, she said. “This is the first major test for the prime minister. Will he keep these children safe?”
The case was run by the Human Rights Law Centre. The centre’s director of legal advocacy, Daniel Webb, said the 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 school and sending them to be indefinitely warehoused on a tiny remote island is wrong. We look to the prime minister to step in and do the right thing,” he said.
Turnbull, replying in parliament to a dorothy dixer from a government MP, noted the court’s “very significant judgment” but made no reference to the future of the asylum seekers.
Reaffirming the government’s strong position on border protection, he said that “nobody should ever doubt the resolve of this government to keep our borders secure”.
“Our commitment today is simply this: the people smugglers will not prevail over our sovereignty. … The line has to be drawn somewhere and it is drawn at our border.”