Aliens, queue jumpers, boat people – call them what you will* - our High Court has found that the Commonwealth of Australia has the power to send them to any country willing to take and detain them, and that the Nauru detention centre is legit.

Background? Last year a Bangladeshi woman challenged the power of the Commonwealth of Australia to detain her, and 600 others, in the Nauru Regional Processing Centre (RPC). It’s one of the most significant legal challenges in the story of Australian migration law to date. Previous (largely unsuccessful) challenges attacked the power of the Commonwealth to enter into offshore processing arrangements. This time, the actual mechanics of that regime were in question.

The question in a nutshell? Does the Commonwealth itself detain refugees in the RPC, or is it the Nauruan government? If the Commonwealth, there was a good chance the regime interfered with the exclusive power of the Australian Courts to impose punitive detention – making it unconstitutional.

Dutton’s detention? Here’s an abridged list of the conditions which arguably amounted to detention by the Commonwealth:

  • the Commonwealth applies for Nauruan visas on behalf of refugees (without that refugee’s consent);
  • the Commonwealth can decide to transfer those people to Nauru, and Nauru is contractually obliged to accept them;
  • the Commonwealth bears all costs and responsibility for transfers of refugees; as well as building and operating the RPC – including the establishment of security systems;
  • the Commonwealth imposes contractual obligations on RPC operator, Transfield to ‘exercise use of force’ in the RPC in certain circumstances;
  • the Commonwealth has the option to ‘step in’ and take over the Nauru RPC under its contract with Transfield.

In all practical respects, it seems to us as though the Commonwealth is in charge of the RPC and responsible for the detention of the refugees within.

Sadly the majority of the High Court disagreed. It found that without the will of the Nauruan government, the Commonwealth couldn’t give effect to any of these activities, and as a result it was the Nauruan government which caused the detention of refugees in the RPC. As a result, the regime is lawful.