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Australia/Nauru: High Court Rules Offshore Detention of Asylum Seekers Is Lawful

(Feb. 5, 2016) On February 3, 2016, the High Court of Australia, Australia’s highest court, held in a 6-1 decision that the government is legally able to participate in the detention of asylum seekers in the Pacific island country of Nauru; this means that a number of people who were brought to Australia to receive medical treatment can now be sent back to Nauru to have their claims processed. (Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1, Australasian Legal Information Institute database.)


Under Australian law and policy, boats carrying asylum seekers trying to enter Australian territory may be turned back at sea, and people who do arrive without a visa are categorized as “unauthorised maritime arrivals” and transported to “regional processing countries.”  (Migration Act 1958 (Cth), ss 4(5), 5AA, & 198AD, ComLaw website; Operation Sovereign Borders, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION (DIBP) (last visited Feb. 4, 2016).)  Pursuant to agreements signed with Nauru and Papua New Guinea (PNG), regional processing centers have been established on Nauru and Manus Island, PNG.  (Elibritt Karlsen, Australia’s Offshore Processing of Asylum Seekers in Nauru and PNG: A Quick Guide to the Statistics, AUSTRALIAN PARLIAMENTARY LIBRARY (Oct. 12, 2015); Instrument of Designation of the Republic of Nauru as a Regional Processing Country Under Subsection 198AB(1) of the Migration Act 1958 (Sept. 2012), ComLaw website; Instrument of Designation of the Independent State of Papua New Guinea as a Regional Processing Country Under Subsection 198AB(1) of the Migration Act 1958 (Oct. 2012), ComLaw website.)

Asylum seekers processed in the two countries are not able to receive visas to settle in Australia.  (See Illegal Maritime Arrivals,  DIBP (last visited Feb. 4, 2016).)  Instead, if they are found to be refugees, the agreements with Nauru and PNG provide for resettlement in those countries.  A further agreement with Cambodia means that refugees can also be voluntarily resettled in that country.  (Memorandum of Understanding Between the Republic of Nauru and the Commonwealth of Australia, Relating to the Transfer to and Assessment of Persons in Nauru, and Related Issues (Aug. 29, 2012), DEPARTMENT OF FOREIGN AFFAIRS (DFAT); Memorandum of Understanding Between the Government of the Independent State of Papua New Guinea and the Government of Australia, Relating to the Transfer to, and Assessment and Settlement in, Papua New Guinea of Certain Persons, and Related Issues (Aug. 6, 2013), DFAT; Regional Resettlement Arrangement Between Australia and Papua New Guinea (July 19, 2013), DFAT; Memorandum of Understanding Between the Government of Cambodia and the Government of Australia, Relating to the Settlement of Refugees in Cambodia (Sept. 26, 2014), DFAT.)

The goals of Australia’s asylum seeker policies include border security and deterring the actions of smugglers who transport people by boat from transit countries, such as Indonesia and Malaysia, often in unsafe situations that have resulted in numerous deaths at sea.  (Janet Phillips, A Comparison of Coalition and Labor Government Asylum Policies in Australia Since 2001, AUSTRALIAN PARLIAMENTARY LIBRARY (Feb. 28, 2014); Press Release, Peter Dutton MP, Minister – 18 Months of OSB Delivers Stronger Borders (Mar. 18, 2015).)

The conditions at the Nauru and PNG facilities, the impact of detention on children, as well as the policy of sending asylum seekers to third countries for processing, have been criticized by refugee advocates, human rights organizations, and the UNHCR.  (See, e.g., Offshore Processing: Conditions, KALDOR CENTRE FOR INTERNATIONAL REFUGEE LAW (Apr. 7, 2015); Australian Human Rights Commission, Human Rights Issues Raised by the Transfer of Asylum Seekers to Third Countries (2012); Oliver Laughland, UN Refugee Agency Condemns Australia’s Offshore Detention Regime, GUARDIAN (Nov. 26, 2013).)

High Court Decision

The case determined by the High Court was brought by a Bangladeshi woman who had been on a boat that was intercepted by Australian officers in October 2013. She was taken to Christmas Island and then subsequently detained in Nauru until August 2014, when Australian officers brought her to Australia where she later gave birth to her daughter. As she no longer required medical attention, she was liable to be returned to Nauru. (Elizabeth Byrne & Stephanie Anderson, High Court Throws Out Challenge to Nauru Offshore Detention; Malcom Turnbull Vows People Smugglers Will Not Prevail, ABC NEWS (Feb. 3, 2016).) She challenged her removal from Australia, seeking a declaration that the Commonwealth government’s conduct with respect to her detention was unlawful as it was not authorized by any valid law. (Press Release, High Court of Australia, Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1, High Court of Australia website (Feb. 3, 2016).)

In June 2015, after the proceedings in the High Court had been filed by the plaintiff, the Australian Parliament passed amending legislation that included a provision specifically allowing the government to pay for and participate in matters related to the detention of persons held in regional processing countries. The new provision was given retroactive effect to August 18, 2012. (Migration Act 1958 (Cth), s 198AHA, inserted by the Migration Amendment (Regional Processing Arrangements) Act 2015, ComLaw website.)  The Court held that this provision authorized the government’s participation in the plaintiff’s detention and therefore that the plaintiff was not entitled to the declaration she sought.  It stated that the conduct of the government in signing the agreement with Nauru was authorized by section 61 of the Australian Constitution and that its conduct in giving effect to that agreement was authorized by a valid law. (Press Release, High Court of Australia, supra.)  Section 61 of the Constitution relates to the executive power of the Commonwealth government.  (Commonwealth of Australia Constitution Act, s 61, ComLaw website.)

Impact of the Decision

There are currently 267 asylum seekers in Australia who could be moved to Nauru following the High Court’s ruling. This includes more than 30 babies who were born in Australia to asylum seeking mothers.  (Daniel Hurst & Ben Doherty, Turnbull and Dutton Unmoved by Calls to Spare 267 Asylum Seekers from Deportation to Nauru, GUARDIAN (Feb. 3, 2016).)  Prior to the Court issuing its decision, the Minister for Immigration and Border Protection, Peter Dutton, had signaled his intention to send a group of 160 adults, 37 babies, and 54 children back to Nauru.  (Byrne & Anderson, supra.) The Minister stated after the decision that each case would be assessed individually and that he was “not going to send children back into harm’s way.”  (Hurst & Doherty, supra.)