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LIV calls on the federal government to let them stay

LIV calls on the federal government to let them stay

By Kerry O'Shea

Advocacy Asylum Child Welfare Human Rights Justice 


The Law Institute of Victoria (LIV) calls on the Federal Government to abide by its international obligations not to remove asylum seekers affected by a High Court case decided this week.

The High Court’s decision in Plaintiff M68/2015 v Minister for Immigration and Border Protection & Ors affects 267 asylum seekers, including 39 children and 33 babies born in Australia.

The UN has said: “We believe that transferring these 267 individuals to Nauru… would put Australia at risk of breaching its obligation not to return any person to cruel, inhuman or degrading treatment under the Convention against Torture”.

Retrospective laws block review of offshore detention

On Wednesday a majority of the High Court found that section 198AHA of the Migration Act authorised the Commonwealth to detain asylum seekers on Nauru. This section was inserted with retrospective effect, after the lead plaintiff lodged her case, to shore up the government’s offshore processing powers.

The LIV is concerned that the government has successfully blocked judicial review of its offshore detention policy through enacting this retrospective legislation.

“We hold general concerns about retrospective legislation and note the rule of law principle that the law must be both readily known and available, and certain and clear,” LIV president Steven Sapountsis said.

International law on offshore detention

As a signatory to the International Convention Relating to the Status of Refugees, Australia has a duty to process asylum seeker claims and abide by international human rights law.

Mandatory or automatic detention is arbitrary and unlawful and Australia should only detain asylum seekers as a measure of last resort. Detention should not be used as a deterrent to asylum seekers. It is highly likely that Australia has a non-delegable duty of care for asylum seekers held in offshore detention.

In the LIV’s view, warehousing asylum seekers on Nauru and Manus Island fails to protect their human rights.

Many of LIV’s members act for clients subject to remote offshore detention and have had severe difficulties accessing their clients. LIV contributed to a 2015 submission to the Inquiry into conditions in Nauru, raising human rights abuses of detainees, and has endorsed the Law Council of Australia’s Asylum Seeker Policy.

In all actions concerning children, the interests of the child must be a primary consideration. Detention of children for the purpose of determining their immigration status is unlikely to ever comply with this principle.

The 2015 Moss Report highlighted the risk of rape, assault and sexual exploitation of children on Nauru. The LIV joins with the president of the Australian Medical Association in calling for all children held in immigration detention to be immediately released to a safe environment.

LIV’s work supporting asylum seekers

The LIV is a strong advocate on refugee and asylum seeker issues. The LIV convenes a Legacy Caseload Working Group that brings together 90-plus legal and community services professionals who work to address the unmet legal needs of asylum seekers in Victoria.

For further information regarding this media release please contact:
Kerry O'Shea, General Manager, Public Affairs & Legal Policy

T: 03 9607 9373

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