Australia's offshore processing challenged in court

Transcript

Ten asylum seekers have launched a High Court challenge on the legality of the Australian government's offshore detention policies, in a bid to prevent their return to Nauru.

The asylum seekers and their families, including a newborn baby, have been temporarily moved to Australia for medical treatment, but are facing imminent return to offshore detention.

The Human Rights Law Centre in Australia is running the case on behalf of the asylum seekers.

Its director of legal advocacy, Daniel Webb, says the group is asking the High Court to rule on whether the government has the power to detain asylum seekers in foreign countries.

Mr Webb says the legality of the government's funding of offshore detention will also be considered.

DANIEL WEBB: We're helping a very vulnerable group of people including families and even a child who is four months old, to try and prevent their return to detention on Nauru. Now these are all people who have been detained on Nauru before but have been brought back to Australia for various medical reasons and who really don't want to go back. And this case tries to prevent this group of people from being sent back to detention conditions which the United Nations and the Australian Human Rights Commission have made absolutely crystal clear are unsafe and unsuitable for children and families.

MARY BAINES: What are they asking the High Court to do? To prevent them from going back to Nauru - what claim do they have for that?

DW: Well the case raises some important and untested questions which really go to the core to the current offshore detention arrangements. In particular the case asks whether their detention on Nauru was lawful and would be lawful, and also whether the Australian government has the power to fund that detention. Now I mean it sounds complicated but the Australian government clearly has some powers to detain people in Australia and it clearly has some powers to detain people from Australia, but then spending billions of dollars indefinitely detaining those people in the territories of other countries, that's another thing altogether. And it's that detention by Australia or at least at Australia's behest, and that expenditure of Australian taxpayer dollars that this case challenges.

MB: How much is being spent by the taxpayer?

DW: We are currently spending over one billion dollars a year locking up innocent people in the territories of other countries, over a billion dollars a year detaining asylum seekers on Manus Island in Papua New Guinea and on Nauru. Now that's a huge number. It's even more huge when you understand that it is five times the United Nations refugee agency's budget for all of South East Asia. So I think instead of using such costly and such cruel measures to try and deter people from seeking Australia's protection, Australia should use that money to work with the UN and other countries in our region to ensure that people who need protection can access it safely.

MB: Has a similar case been brought before, or is this really a first?

DW: Well I mean cases have been brought before that have confirmed the government has the power to detain asylum seekers in Australia and also to confirm that the government has the power to deport people from Australia. But it is untested whether the government then has the power spend money to effectively procure the detention of these people in the territories of other sovereign nations. Now the High Court has previously made clear that under Australia's system of government, the government of the day needs clear legislative authority to detain people and it needs clear legislative authority, apart from in some limited exceptional circumstances, to spend public money. And this case asks whether the government has that necessary legislative authority to detain, and the necessary legislative authority to spend for that purpose.

MB: What would it mean if this case was successful, that all people detained on Nauru were being detained unlawfully?

DW: Potentially, yes. I mean it is difficult to speculate how the case may sort of progress, we need to wait and see how the government responds to it and also how the court ultimately deals with these important legal questions. But what we can say is the matters that are raised in this case go right to the heart of the current offshore detention arrangements. They challenge whether the government has the power to procure detention offshore and whether the government has the power to spend money for that purpose. Now the answers to those questions one way or the other, I think it's fair to assume will have very significant implications going forward.

MB: How long will this case take, do we know yet?

DW: No, it's difficult to estimate those things and there's a few variables. It depends what approach the government takes to this particular piece of litigation so we have to wait and see. But my best guess would be we're looking at four months, a little more, a little less, depending on how things progress.