What I really don’t understand, though, about the latest High Court decision / policy train wreck for the Government, is why this was never tested before.
The High Court decision kind of appears to say that maybe transporting people to Nauru was different because – I paraphrase – Australia was still responsible for all the processing, and because the MOU between Australia and Nauru was really short and probably created formal obligations for both countries. Or because refugees had already been carted off to Nauru, so the relevant section of the Migration Act obviously can’t have meant that it’s not OK to cart refugees off to Nauru. (It’s paragraphs 128 and 169 if you’re really that nerdy).
But the broader logic of the decision seems to be that unless the international and domestic legal protections for the protection and welfare of refugees are in place in the country concerned – and it would seem that they were not present in Nauru in 2001 and, arguably, still are not today – Australia can’t send them away.
Father Frank Brennan, and other commentators are highlighting that the judgement at the very least raises serious questions about the legitimacy of processing refugee claims on Nauru or in Papua New Guinea. Don Rothwell, Professor of International Law at ANU is quoted all over the place, saying
At face value it would be difficult at the moment to see how either Papua New Guinea or Nauru would immediately meet [the High Court's] criteria.
Are you seriously telling me that we could have avoided Howard’s “Pacific Solution” entirely if someone had just mounted a challenge to the Government’s power to arbitrarily “declare” a country an appropriate place for warehousing people for their asylum claims to be processed??!!
Lawyers, lawyers, lawyers. What were you doing between 2001 and 2007?
There was a High Court challenge in 2001 to a Federal Court decision about the legality of the detention of people on board the Tampa. But the High Court basically refused to hear the challenge. I think the argument went something like, “Well, maybe these people were detained unlawfully and carted off against their will to Nauru. But they’re on Nauru now, so I guess we’ll never know.”