Australian govt scrambles to legalise offshore processing

Transcript

Australia's government is rushing through legislation to authorise it to detain people in a foreign country.

The legislation seeks to render as legal Australia's offshore facilities for processing asylum seekers, including in retrospect .

The Abbott government has secured support for the legislation from the opposition Labor ranks.

This comes after a flaw was exposed in the offshore processing system in an ongoing High Court case where a group of asylum seekers on Nauru has challenged the legality of the system.

This group is represented by Australia's Human Rights Law Centre whose executive director Hugh De Kretser spoke to Johnny Blades

HUGH DE KRETSER: Our case argues that the Australian government is detaining or effectively detaining people on Nauru or Manus Island in Papua New Guinea. So if you look at the billion dollar-contract between Australia and Transfield, the contract which provides for the running of the detention centres, the Nauruan government is not a party to that contract; the PNG government is not a party to that contract in relation to Manus island, and there is no legal authority under Australian law for Australia to detain or procure the detention of people in a foreign country.

JOHNNY BLADES: is this a loophole that the Australian government is now scrambling to cover up, is it able to do that?

HDK: Yes, though I wouldn't describe it as a loophole, I'd describe it as a fundamental issue of human rights as to whether or not the parliament has explicitly authorised Australia to detain people in a foreign country. That's what this bill says. It says the parliament grants the government, in very broad terms, the power to lock people up in a foreign country and it's retrospective, so it goes back three years and says "if anything was unlawful about that over the past three years, we're now saying, if this bill is passed, that it was lawful", so there at least is transparency around what this bill is attempting to achieve. There's questions around even if it's passed whether or not it would be constitutional for the Australian parliament to say to their government "you have the power to lock people up in a foreign country" as opposed to transferring them to a foreign country for that government to detain them and process their refugee claims.

JB: There was some sort of High Court ruling last year to do with the facilities last year, was it related.

HDK: Sure, so there's been a range of High Court decisions around this and the legislation has changed a number of times, partly in response to those decisions. So again in broad terms, the cases show that the Australian government has the power to detain people in Australia while their refugee claims are processed. The Australian government has the power to transfer them to another country like Papua New Guinea or Nauru for their claims to be processed. What this case is about is whether or not the Australian government ha the power to then detain people in those foreign countries so the Nauruan government is not a party to the contract with Transfield which is the detention centre contract. So our case says it's Australia that is effectively detaining these people in a foreign country and there's no legal authority for that, and that questions hasn't been tested before in the High Court.