Refugee Council of Australia
Nauru from the air

Australia’s offshore processing regime: The facts

Legal challenges

There have been many legal challenges to Australia’s policy of offshore processing. Many of these in Australia have failed, although there have been some important rulings and changes as a result.

More info: Case notes (Andrew & Renata Kaldor Centre for International Law)

The High Court had previously upheld the constitutionality of detention in Nauru under the Pacific Solution.

Ruhani v Director of Police [No 2] (2005)

Similarly, the High Court upheld the detention of people on Manus Island detention centre under Australian law in June 2014.

Plaintiff S156-2013 v Minister for Immigration and Border Protection (High Court 2014)

Legal challenges did, however, lead to the ‘opening’ of the detention centres in PNG and Nauru. In October 2015, the detention centre became an ‘open centre’, which people were allowed to leave at any time. However, it took much longer before all refugees were moved out of the centre. This happened just before a court challenge in Australia to the legality of offshore processing in Nauru.

Australia welcomes Nauru open centre (Minister for Immigration and Border Protection, 2015)

Nauru centre opening has “dramatic effect” on detention challenge, court told (The Guardian, 2015)

To limit the effectiveness of this challenge, Parliament retrospectively authorised spending money on offshore processing. While the legal challenge failed, a campaign to #LetThemStay has meant that those transferred to Australia have not, so far, been returned to Nauru or Manus Island.

Plaintiff M68-2015 v Minister for Immigration and Border Protection (High Court, 2016)

#LetThemStay: An overview of the HRLC’s legal and advocacy work (Human Rights Law Centre)

A further legal challenge to the right of the Australian government to send people to Manus Island also failed in August 2017.

Plaintiff S195-2016 v Minister for Immigration and Border Protection (High Court, 2017))

Another legal challenge was more successful, with the Australian government paying a record $70 million to those detained on Manus Island to settle a class action in Victoria.

Manus Island Detention Centre class action (Supreme Court of Victoria)

While legal challenges in Australia have mostly failed, in April 2016, the PNG Supreme Court found that the detention in PNG breached its constitution. Despite this, hundreds of men continued to live there, although they were allowed greater freedom of movement.

Namah v Pato (Supreme Court of PNG, 2016)

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