High Court decision does not rule out Nauru

01/09/11

The High Court’s decision yesterday does not affect the legality of the use of Nauru as an offshore processing centre. Contrary to assertions made this morning by Government spokesmen including Senator Conroy, the Reasons for Judgement are confined to the particular facts and circumstances of the arrangements with Malaysia.

In fact, the Court went out of its way to emphasise that point in paragraph 128 of its published Reasons. Their Honours said “the arrangements made with Nauru were very different from those that are now in issue.” In particular, yesterday’s decision turned on the issue of the absence in Malaysia of any domestic law or international legal obligation to protect the rights of asylum seekers. Furthermore, the Court did not strike down any provision of the Migration Act; it merely held that the Minister was not legally able to apply the relevant provisions of the Migration Act given the absence of any legally enforceable protections in Malaysia.

The suggestions by Government spokesmen that the decision makes it impossible to revive offshore processing in Nauru is a political excuse which is unsupported by anything in the High Court’s decision.