High Court decision

COURT CASE UPDATES FOR ACTIVISTSThe High Court decision, the Supreme Court decision, and the Caseload Legacy Bill

High Court decision Two main elements to the court case, plus a subsidiary element – 1. Was it constitutional? (As in, according to Australia’s constitution) to use another sovereign place to detain people 2. If it was, whether or not we needed a Special Appropriation Bill, to essentially seconder a portion of the budget to be allocated to that, or if it could just be taken as part of the budget 3. The subsidiary element was the question of whether or not Australia is responsible for the detainees on Nauru

The case was relevant to both Nauru (Republic of Nauru) and Manus (Papua New Guinea), because both deal with offshore processing in sovereign nations that aren’t Australia. The case was undermined by both retrospective changes to legislation, and the ‘opening’ of the detention centre on Nauru (this is what essentially made the entirety of Nauru an open-air prison), as the lead client/claimant was from Nauru – became difficult to prove that people were now incarcerated Everyone who is attached to this case has lawyers working on a Plan B for them (individually, not as another class-based case)

Schrodinger’s 72 hours’ notice • Shen, GetUp! Refugee campaigns director: “The 72 hours notice definitely hasn’t been reneged” • Ian Rintoul, Sydney RAC: “As far as I’m aware, it’s been reneged” • Tom Clarke, HRLC Comms: “My understanding is the government is in the process of trying to remove the obligation to provide 72 hours notice and our lawyers are trying to keep that undertaking in place”

What does this mean for us in Melbourne? Whether or not the 72 hours notice is still in place, it really didn’t have any impact on us in Melbourne anyway. It only applies to people who are being moved off the Australian mainland, and people inside MITA and MIDC are almost always taken to Darwin first. It will be Darwin and possibly Brisbane (where direct transfers have occasionally occurred before) that any reneging will have the most impact.

PNG Supreme Court Case Two elements to this – • The constitutionality of the agreement with Australia to maintain a detention centre on our behalf there (more about this particular aspect later) 2. The enforcement of people’s human rights under PNG’s constitution (unlike our constitution, these are enshrined in PNG’s). In terms of which of these are relevant to the case, these include the rights to a lawyer, due process, not to be tortured, and liberty – all things related to people being inside a detention centre

Where is this case up to? A ‘status conference’ (similar to our ‘directions hearing’) is set for the 29th February, which will give a date for the full bench of the Supreme Court to sit. At this sitting of the Supreme Court, the legal team is asking for a finding on a) the constitutionality of the detention centre agreement with Australia, b) the enforcement of people’s human rights under the PNG constitution, and also c) the immediate release of those detained on Manus and a closure of the detention centre. There will also be subsequent orders re: the breach of people’s human rights under the constitution, but these will be on an individual case-by-case basis

The constitutionality element There was a related case that came before the National Court in PNG (a lower court in PNG than the Supreme Court) that challenged the constitutionality two years ago. The Supreme Court then decided it could be heard in the higher court. This decision came down in September, but has not been delivered yet. This means that the constitutionality question is actually settled, but we don’t know the outcome yet. It is likely this decision will be delivered at the same time as the current Supreme Court case’s decision is delivered

What does this mean for us? There is currently an injunction in place for the duration of the Supreme Court case to prevent people being deported (this will not continue once the case has concluded) Ben Lomai et al are confident it is likely they will be successful in their case. It seems probable if this eventuates, people will be brought to Christmas Island instead, which will mean a new political target for us – we don’t often talk about Christmas Island We can expect some wrangling by probably both governments to prevent anything progressive happening even if we win this court case. People may well be released from detention, but the terms of their release are really unclear and probably depend more on the strengths of the campaign rather than legals

Caseload Legacy (Fast-Track) Applicants The Caseload Legacy Bill passed at the end of 2014, which enacted a number of changes in the Migration Act. It applies to 30,000 people. The most significant changes were, in a nutshell: • Instituting a ‘fast-track’ process• Not all applicants will have a right to review• There will be no hearings, no new information allowed and no opportunity to respond to or correct adverse or inaccurate information• Non-refoulement obligations are irrelevant

(changes cont’d) • Changing the definitions of ‘refugees’ (e.g. people could be denied refugee status if DIBP thought they could move to another area of their home country in order to be safe), and ‘effective protection’ (e.g. a level of safety that is common in someone’s home country is all that would suffice) • People can be expected to modify their behaviour to avoid persecution • Children born in Australia or in offshore processing centres to asylum seeker parents who arrived by boat are deemed to be ‘Unauthorised Maritime Arrivals’ • The Minister can detain people at sea and transfer them/and their boats to another country irrespective of whether Australia has an agreement with that country

What does it mean for us? It’s much more likely than previously that asylum seekers will have their claims rejected. If they are rejected, and they are not able to appeal, they will then be given a “28 days’ notice” to either return to their country of origin ‘voluntarily’, or be forcibly deported. People have already started being issued with these notices, and some have opted to return ‘voluntarily’, but of those who haven’t, the DIBP have not yet made any moves to round them up (they’re largely in the community) and place them back in detention ready to deport them. Only a small number of applications have been submitted so far as part of the fast-track system, about 30 people. Of those 30 people, 80% have been rejected, which is roughly the inverse of what rejection rates historically have been

However, these are the people that DIBP have deemed ‘weakest’ – very little supports, have often not even had help making asylum seeker applications, etc. So the overall rejection rate is not likely to continue to be this high. It’s also worth noting that although there is no automatic right to review, and the review process of the RRT has been replaced with a special section of the Administrative Appeals Tribunal, so far people who have chosen not to return home voluntarily are all going through the AAT process – and it hasn’t started yet. The fast track is not very fast.Some people have opted to return ‘voluntarily’ – that is true. But nobody as yet has been deported so far as we’re aware

Border Force’s specific armed force, and the refugee campaign It seems that a combination of DIBP’s disorganisation, plus how unpopular it would be to deport people back to the Taliban etc are working in our favour. However, at the time of Operation Fortitude (#BorderFarce), a 5-6000 strong force was established to work with DIBP, all who will eventually be armed, trained in the use of force, be able to participate in raids, and be able to investigate and enforce immigration and customs laws. This force has been deployed as part of the boat turnbacks, but not onshore yet and we don’t really know what they’re planning on doing with it. The recruitment appears to be incremental and likely to occur over a 3-4 year period, which is how it's been announced in the budget papers.

Final thing that it means for us That we need to be diligent, because while it’s likely *not* to be the case that 80% of the 30,000 people affected by the Caseload Legacy Bill will be rejected, and subsequently deported, even 10% still equates to 3000 people Our best bet to stop this is to continue making it really, really, really unpopular to deport people back to danger

High Court decision