Australia’s High Court has upheld the Federal Government’s right to pursue its controversial policy of detaining asylum seekers in offshore processing centres in a majority decision handed down on Wednesday.

The case, brought on behalf an anonymous Bangladeshi woman temporarily relocated from Nauru to Australia for medical treatment, and claiming that the conditions under which asylum seekers are being held on the island of Nauru violates the Australian constitution was dismissed.

The High Court has upheld the Federal Government’s M68 judgement

The ruling could mean that 267 asylum seekers, including around 90 children and infants born in Australia, will be sent back to Nauru in the coming days or weeks.

But that is not necessarily the end of the story.

While High Court ruling M68 upheld the government’s right to send asylum seekers to foreign countries to be detained it also found – and all judges agreed on this – that the commonwealth can’t simply detain people offshore indefinitely.

Nor can it ask a foreign government to detain people indefinitely on its behalf.

“The commonwealth is not authorised … to support an offshore detention regime which is not reasonably necessary to achieve that purpose,” the judgement said.

This means the federal government cannot create a situation where asylum seekers are indefinitely detained offshore; and that there are limits to its power to hold people or allow them to languish in detention while their claims of asylum are being processed.

The judgement noted that some asylum seekers being detained on Manus Island in Papua New Guinea have been held for 900 days while their claims are processed.

But it did find the action of detaining people offshore is lawful under the constitution and empowered by the wide breadth of a recently inserted provision into the Migration Act.

Section 198AHA was added to the Act last June with the support of the federal opposition after the High Court challenge was launched and it gives the commonwealth almost unfettered powers to establish, pay for and participate in detaining people in any foreign country that will agree to Australia doing it.

However, the judgement did reject the commonwealth’s claim that no one is detained on Nauru since all of the asylum seekers are now free to roam the island at will.

The judgement pointed out that there was nothing to stop the Nauru government reintroducing a locked camp regime or from forcibly detaining any new arrivals; and it noted that asylum seekers and refugees on Nauru say they are not free to leave the island.

Section 198AHA of the Migration Act gives Australia the right to “do anything … incidental or conducive” to restraining the liberty of people in foreign immigration detention.

The words ‘do anything’ might be enshrined in the Act but the High Court has ruled the government cannot go that far.

The smart money is on future challenges so stay tuned for more developments…

Laurie Nowell
AMES Australia Senior Journalist