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The n government asked Nauru to establish a detention camp, organised a perimeter fence to keep people inside and effectively controls the detention of asylum seekers at the island, the High Court heard on Wednesday.
This argument is central to a legal challenge to the lawfulness of n-funded detention centres at Nauru and Manus Island, which argues the federal government does not have the power under the constitution to detain people in other countries.
But lawyers for Immigration Minister Peter Dutton and the government’s detention centre operator, Transfield Services, say the centre was established under Nauruan law, and a new “open centre” arrangement means asylum seekers are no longer detained.
The test case is being run on behalf of a woman from Bangladesh who was brought to from Nauru in August last year for medical treatment. Her daughter is now 10 months old and supporters say the mother is “terrified” of returning to Nauru.
Cases have also been brought for about 200 people who have been detained offshore and are now in temporarily, including men who have been victims of violence on Manus Island, women sexually assaulted on Nauru, and more than 50 children.
The case, which was heard by the full bench of the High Court on Wednesday, followed the Nauru government’s decision on Monday to fling open the gates of the detention camp to create an “open centre” 24 hours a day.
Counsel for the Commonwealth Justin Gleeson SC said asylum seekers were now “under no obligation to remain at the centre” and it is simply an optional place of residence.
However counsel for the plaintiff Ron Merkel QC told the court the laws surrounding detention on Nauru remained unchanged and a “critical event” might occur that caused the Nauruan government to say “the open centre is now finished”.
Mr Merkel told the court that through a contract with Transfield Services, the Commonwealth funds, controls and implements the powers of detention. The plaintiff claims this contract is unlawful and invalid.
Mr Merkel questioned if Nauru had any involvement in the day-to-day operation of the centre, saying “this is effectively detention provided … at the will of the Commonwealth”.
Lawyers for the plaintiff submitted to the court that the Commonwealth caused the detention of the woman by asking the Nauruan government to create the camp and selecting who is detained there.
The Commonwealth procured the construction of a perimeter fence and other security infrastructure that kept the detainee inside, and applied and paid for a type of Nauruan visa that required her detention.
Commonwealth contractors controlled her movements and if it weren’t for the federal government, Nauru “would have had no interest in the detention of the plaintiff,” the submission said.
Lawyers for the Commonwealth submitted that the plaintiff “lacks standing to challenge” the Commonwealth’s conduct, and said the conduct is authorised by the Migration Act and other laws.
They say under the law, the woman should be taken to Nauru “as soon as reasonably practicable”.
Mr Gleeson told the court that the woman would be free to come and go from the detention centre should she return to Nauru, but would require separate permissions to leave the island.
He asked the court to reject the plaintiff’s claim that Nauru centre was “the Commonwealth’s detention”, saying this would mean Nauru had become a “territory” of .
Mr Gleeson said the logic of the plaintiff’s case meant no arm of the n Commonwealth has the power to ask another country to process asylum seekers, if this would involve detention – even though has the power to detain asylum seekers onshore.
The hearing continues on Thursday.
Outside the court before the hearing, Human Rights Law Centre legal advocacy director Daniel Webb said the case looks at the lawfulness of both past and future detention.
“Irrespective of [the open centre] changes there remain important and untested constitutional questions about the power of the n government to pay and control the detention of innocent people in other countries,” he said.
“Without doubt the questions at the heart of this case really strike at the core of the current offshore detention arrangements … the answer to these legal question will have significant implications going forward.”
Mr Webb said while the government has the power to detain people in and remove people from the country “it’s quite an extraordinary thing … to then fund and control the detention of those innocent people in the territories of other countries and it’s that detention and that spending that this case challenges”.
” should not be warehousing anyone on remote Pacific islands, especially not 10-month-old babies.”
He welcomed the open centre policy at Nauru but said “allowing people the freedom to go for a walk” does not address the “fundamental injustice inherent in leaving them languishing indefinitely”.
Mr Webb said under the separation of powers between the courts and the government “there are very clear limits on the power of the government to lock people up … the question is are those limits exceeded by our government’s involvement in detention offshore”.
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