Nauru, Children and the High Court

I feel like I have to write something about today’s high court decision that detaining refugees on Manus Island is lawful, but I don’t know where to start, or what to say that I haven’t said many times before, or that others haven’t said better.

So these will be somewhat random thoughts, out of order.

First, the high court found that detention on Manus Island is lawful.  I am not a lawyer, nor am I fluent in legalese, but I believe the key paragraphs are these:

The plaintiff brought proceedings in the original jurisdiction of the High Court seeking, amongst other things, a declaration that the Commonwealth’s conduct (summarised as the imposition, enforcement or procurement of constraints upon the plaintiff’s liberty, including her detention, or the Commonwealth’s entry into contracts in connection with those constraints, or the Commonwealth having effective control over those constraints) was unlawful by reason that such conduct was not authorised by any valid law of the Commonwealth.
The Court held, by majority, that the plaintiff was not entitled to the declaration sought. The conduct of the Commonwealth in signing the second MOU with Nauru was authorised by s 61 of the Constitution. The Court further held that the conduct of the Commonwealth in giving effect to the second MOU (including by entry into the Administrative Arrangements and the Transfield Contract) was authorised by s 198AHA of the Act, which is a valid law of the Commonwealth.

s 61 of the Australian Constitution states that “The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.”

Which I think means that yes, the government is legal and can make laws and carry out what is in the constitution because that is what government does.  (My own private interpretation of this sentence was “clearly I need to be writing to the Queen about asylum seekers!”, but I’m pretty sure that is not what I was supposed to take from that sentence.)

So far so good.

Section 198 AHA of the Migration Act of 1958 is a bit too long to quote in full here, which is why I have linked to it, but it is called “Power to take action etc. in relation to arrangement or regional processing functions of a country“, and includes provisions saying that yes, we can pay people to hold onto our refugees, and yes, that includes restraining someone’s liberty.

In other words, the plaintiff said ‘hang on, you can’t treat me like this because there is no valid law that allows you to do so,’ and that the High Court said ‘well, actually, there is a law that says we can treat you this way, and that law is valid because the government is duly appointed under the Constitution, and therefore has the power to make laws, including this one.’

(NB – I’d love to hear from someone who actually speaks Constitutional Law on whether I have this right…)

To my mind, this is a pretty narrow argument.  The High Court did not say that the government should lock people up in detention, or that the law allowing them to do so was ethical or right.  It simply said that yes, it was a duly legislated law by a duly elected government, so yep, it still counts.

Which brings us to the ethics of all this.  Such as they are.

The Government’s argument – and, let us be just, the argument made by Labor before them – amounts to this:

  1. We want to control the flow of refugees to our country, and who settles here.
  2. Therefore, we will only accept people who arrive through the proper channels.  No queue jumping!
  3. People smugglers / people arriving on boats are not using the proper channels, because a) queue jumping! and b) the boats are unsafe and people might drown
  4. Therefore, we must do whatever it takes to deter people smugglers and refugees who use their services, and cannot show any weakness.

I don’t actually have an issue with point one.  It’s fair enough to say that we need to have a quota that is sustainable for our economy and social services.  I think our quota is too low, but it’s fair enough to have one.  Point two is also semi-reasonable, though there is a fair bit of dispute about whether the ‘queues‘ refugees must not jump actually exist in many of the countries they are fleeing.  (And lest you think all my sources are way over on the left, here’s a paper on the subject from the Australian Parliamentary Library).

Point three is heading into dubious waters.  Yes, there have been many horrible incidents of refugees drowning at sea – but our current policy of towing boats out of Australian waters and back out to sea puts more lives at risk, and only ensures that if they drown, they do so out of sight.

And point four…

Point four is a problem.

Because point four is what makes it justifiable to send a five year old boy who has been allegedly sexually abused back to Nauru, where his abuser is still free.  Point four is what makes it allowable to send babies back to live out their lives on Nauru, to join a generation of children with limited access to education, and no meaningful future.  Point four is the ultimate in act utilitarianism, which says that the suffering of the few is acceptable if it prevents the suffering of the many.

The problem in this case is that the suffering of the few is very real, whereas the suffering of the many is hypothetical.

I’ve had conversations with people who believe that the asylum seekers are making all these stories of abuse up, so that they can come to Australia.  That they are self-harming to get attention.  That it’s all a publicity stunt, and a trick.

Look, I’ve never claimed not to have a great big liberal bias, but when we have doctors risking jail time to tell the 7:30 report about how traumatised the children from Nauru are, and about what appears to be epidemic levels of sexual assault of refugees, I’m inclined to believe them.

(And even if everyone was lying, would this justify locking up babies and condemning them to what amounts to life imprisonment, not for anything they have done, but because they have the misfortune to be born to parents who had the misfortune to come to Australia at a time when we had the misfortune to have utterly misplaced our sense of compassion?)

I used to volunteer as a counsellor on a suicide helpline.  We were trained in recognising suicide risk and addressing it.  We were taught about people who self-harm once, or regularly; with suicidal intent, or just because it somehow makes the pain more manageable.  We were taught that self-harm was one of the big risk factors for suicide – it starts to break down a boundary between things that are unimaginable and things that are possible, and, of course, there is always the risk that one will do more harm than intended and die as a result.

One thing I particularly remember was a trainer who talked about the idea that people who attempt suicide are ‘just doing it for attention’.

Maybe some want attention, she said.  But what drives you to the point where you think that cutting yourself, or burning yourself, or overdosing on panadol or other drugs is the only way to get anyone to pay attention to you?  There are, for most people, other ways to get attention that don’t risk your life or long-term health.  Perhaps some people who self harm do want attention.  And you know what?  We should give it to them, because clearly people who are hurting themselves, whatever the reason, need help.

People are hurting themselves on Nauru.  Children are attempting suicide.

They are trying to get our attention.

They should have it.


Things you can do

Phone calls, letters, emails…

The High Court has said it is lawful to return these people to Nauru.  But they haven’t said it is compulsory.  That means it is time to badger politicians again!  Phone calls are intimidating, but worth it if you can do it.  Letters are great.  Emails are also excellent!  Be polite and concise (this is not a gift of mine, but one should always aim for higher things), and tell them that you do not support deporting refugees back to Nauru.

Malcolm Turnbull (PM) – (02) 6277 7700; ; @TurnbullMalcolm
Peter Dutton (Immigration) – (02) 6277 7860 or (07) 3205 9977; ; @PeterDutton_MP
Bill Shorten (Opposition Leader) – (02) 6277 4022 or (03) 9326 1300;; @billshortenmp
Richard Marles (Shadow Minister for Immigration) – (03) 5221 3033; @RichardMarlesMP

QandA has a handy app to help you find your local MP.  If you are like me, your local MP already knows all about what you think, but it never hurts to reinforce the message!

It might also be good to write a letter of support to Karen Zwi and Hansantha Gunasekera, the two doctors who spoke out recently.  I’m not going to put their email addresses here, because there are some fairly awful people out there (check out any comment thread on any newspaper ever if you need evidence of this) and I’m not going to make it any easier for them to send nasty emails to people who are trying to help.


There are snap rallies being held around Australia tomorrow – follow this link to find one near you.


GetUp has a petition jointly with the Human Rights Law Centre which you can sign here.

Places to donate…

If money is something you have to give, consider donating to the Asylum Seeker Resource Centre, Doctors for Refugees, Save the Children, or Amnesty International.  Feel free to make other suggestions in the comments.

One thought on “Nauru, Children and the High Court

  1. Thank you. Thank you for standing up and writing this, and I hope that it being archived doesn’t lead to trouble for you down the track (because I worry at times where we are heading.)

    I still cannot believe we ended up here as a nation. This is appalling.

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