Achieving Change in Australian Refugee Policy: A Case Study in the Limits of Law and Political Activism?

In 2015, the Human Rights Law Centre, acting pro bono on behalf of a Bangladeshi woman (Plaintiff M68),[1] brought proceedings in the High Court seeking to challenge the legal validity of the regional processing arrangements.

Plaintiff M68 had been detained at sea by Australian officials in early 2014 and taken to Nauru. In August 2014, she had been brought to Australia for medical treatment. When her medical treatment was completed she faced being returned to Nauru. However, her lawyers argued that the Commonwealth’s conduct in contracting service providers pursuant to the Memorandum of Understanding (MoU) with Nauru[2] and so on was unlawful because it was not authorized by a valid law of the Commonwealth. The reason the plaintiff’s lawyers though this argument was worth running was because the High Court had decided in the recent past that, generally speaking, the Commonwealth could not enter contracts or spend money without legislation authorizing it to do so.[3] The government responded by rushing through legislation which inserted section 198AHA into the Migration Act 1958 (Cth) purporting retrospectively to authorize everything that had been done in relation to regional processing.[4] They were supported in this endeavor by Labor.

 

In Plaintiff M68/2015 v The Commonwealth,[5] a High Court majority (Chief Justice French and Justices Kiefel, Nettle, Bell, Gageler and Keane) found that the actual signing of the MoU with Nauru was within the executive power of the Commonwealth as provided in section 61 of the Constitution. As for the implementation of that MoU, the majority found that Migration Act section 198AHA was a constitutionally valid law of the Commonwealth because it was supported by the ‘aliens’ head of power and did not fall foul of Chapter III of the Constitution. The effect of section 198AHA was to kill the legal argument that the plaintiff could previously have relied upon.

 

When the High Court decided against Plaintiff M68, it placed not just the plaintiff but 267 other people in a similar position at risk of being returned to Nauru or PNG. At this point, the Human Rights Law Centre partnered with GetUp! and the Australian Churches Refugee Taskforce to achieve for their clients through political activism the outcome which had been denied to them by the law.[6] This was the beginning of the #LetThemStay campaign.

 

The language and processes of the law distance the individuals involved from the Australian people almost as much as their transfer to Pacific islands does. By contrast, refugee advocates focus their efforts on giving the plight of individuals centre stage in order to elicit public sympathy and thereby public pressure for policy change. The Human Rights Campaign Director of GetUp!, Shen Narayansamy, has described the #LetThemStay campaign in the following terms:

I can’t use the images of most of the clients; I will jeopardise their asylum claims. I can’t identify any of them, and the only thing I have is photos of babies,[7] so we use them. But we use them and they work and we drive advertising to the persuadable audience and we take videos of babies and we throw them across the country and we run seventeen front pages day after day…and it works. We move public opinion over the course of six weeks from 22% to 42% – which doesn’t seem like much until you know that in this country a 5% change in public opinion shifts an election.

But we do it, and we do it fast, and we do it knowing what works in our limited time frame – which is telling very simplistic stories of people and stories that ‘refugees are just like you and me’. Well they’re actually not; they don’t have the privilege of whiteness. But I have to tell these stories really, really quickly and change public opinion and make sure people don’t get on the plane.[8]

 

As well as being an example of hashtag activisim, the #LetThemStay campaign got thousands of people onto the streets. It resulted in the government backing off, in fact though not in rhetoric, from implementing its planned returns. However, it did not otherwise prompt the Government to act more humanely. Instead it made the Government even more determined than it already was[9] to avoid bringing seriously ill asylum seekers and refugees from Nauru and PNG to Australia for treatment regardless of medical advice.[10]

 

On 10 August 2016, The Guardian published 2000 leaked incident reports detailing assault, abuse, self-harm attempts and the like at the Nauru processing centre with children featuring disproportionately as the victims.[11] The Human Rights Law Centre, GetUp!, the Australian Churches Refugee Taskforce and the Asylum Seeker Resource Centre seized what appeared to be a politically propitious moment to ‘launch’ the #BringThemHere campaign.[12] The BringThemHere hashtag is still in circulation, with the central demand of those who use it being that the individuals previously taken to Nauru and PNG be brought to Australia.

 

Most recently, World Vision Australia initiated the #KidsOffNauru campaign[13] which has widespread support across the refugee sector and beyond.[14] The campaign is calling for all child refugees, children seeking asylum and their families on Nauru to be brought to Australia by Universal Children’s Day (20 November 2018). The campaign pre-empts the question ‘What about the men on Manus’ with the answer:

Our position is that no-one should be held indefinitely in detention and that an enduring solution must be found for everyone. This campaign focuses on prioritising getting children off Nauru and finding an enduring solution, as they are particularly vulnerable.

 

However, despite considerable and ongoing activism by refugees, people seeking asylum and advocates, not to mention the mounting toll of death and serious harm, the Coalition government has thus far remained determined that it will not succumb to pressure.

 

Campaigns such as #LetThemStay, #BringThemHere and #KidsOffNauru are important because as well as getting public opinion on-side they bring home to power holders the realization that public opinion is on-side. However, public sympathy can be very narrowly focused and transient and so any outcomes achieved through mobilizing it can be narrowly focused and transient as well. Politicians are well aware that there has been over a long period of time ‘consistent majority support for government policies of mandatory detention and offshore processing’.[15] The problem of how to create a stable climate of public opinion favouring refugees and people seeking asylum is one that is yet to be solved.

 

References Cited:

[1] Nicole Hasham, ‘High Court finds offshore detention lawful’, The Sydney Morning Herald, 3 February 2016, available at https://www.smh.com.au/politics/federal/high-court-finds-offshore-detention-lawful-20160203-gmk5q6.html

[2] Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia, relating to the transfer to and assessment of persons in Nauru, and related issues, 3 August 2013, available at https://dfat.gov.au/geo/nauru/pages/memorandum-of-understanding-between-the-republic-of-nauru-and-the-commonwealth-of-australia-relating-to-the-transfer-to-and.aspx

[3] Joyce Chia and Asher Hirsh, ‘Did “ending” detention on Nauru also end the constitutional challenge to offshore processing?’ , The Conversation, 9 October2015, available at https://theconversation.com/did-ending-detention-on-nauru-also-end-the-constitutional-challenge-to-offshore-processing-48667

[4] Migration Amendment (Regional Processing Arrangements) Act 2015 (Cth).

[5] [2016] HCA 1 (3 February 2016)

[6] Human Rights Law Centre, ‘#LetThemStay: An overview of the HRLC’s legal and advocacy work’, News, 26 February 2016, available at https://www.hrlc.org.au/news/2016/11/10/letthemstay-an-overview-of-the-hrlcs-legal-and-advocacy-work

[7] The 267 people at risk of return included 37 babies: Daniel Webb and Amy Frew, ‘Let Them Stay campaign a success’, Law Institute Journal, 90 (2016). One of these babies was ‘Asha’ who became famous when medical staff at the Brisbane hospital at which she was receiving treatment refused to discharge her until a ‘suitable home’ had been arranged: Khang Hoang, ‘What will happen to baby Asha?’, The Conversation, 17 February 2016, available at https://theconversation.com/what-will-happen-to-baby-asha-54735

[8] Meghan Fitzgerald, Tamar Hopkins & Shen Narayanasamy, ‘Justice, Social Action and Structural Change’, Australian Feminist Law Journal 42 (2016): 351-362 (This is an edited transcript of a panel from the Justice through Conflict; Conflict through Justice Symposium held at the University of Melbourne on 25 October 2016).

[9] Ben Doherty, ‘Hamid Kehazaei inquest exposes failures of Australia’s secretive immigration regime’, The Guardian, 10 December 2016, available at https://www.theguardian.com/australia-news/2016/dec/10/hamid-kehazaei-inquest-exposes-failures-of-australias-secretive-immigration-regime Hamid Kehazaei, aged 24, died from sepsis in September 2014 because of extreme delay in the authorization of medical evacuation by the Department of Immigration.

[10] See for example, Ben Doherty, ‘Court orders that boy, 10, at risk of suicide on Nauru be treated in Australia’, The Guardian, 21 March 2018, available at https://www.theguardian.com/australia-news/2018/mar/21/court-orders-that-boy-10-at-risk-of-suicide-on-nauru-be-treated-in-australia; Ben Doherty, ‘Doctors beg Australian Border Force to move terminally ill refugee off Nauru’, The Guardian, 24 May 2018, available at https://www.theguardian.com/australia-news/2018/may/24/doctors-beg-australian-border-force-to-move-terminally-ill-refugee-off-nauru?CMP=share_btn_tw

[11] Paul Farrell, Nick Evershed and Helen Davidson, ‘The Nauru files: cache of 2,000 leaked reports reveal scale of abuse of children in Australian offshore detention’, The Guardian, 10 August 2016, available at https://www.theguardian.com/australia-news/2016/aug/10/the-nauru-files-2000-leaked-reports-reveal-scale-of-abuse-of-children-in-australian-offshore-detention

[12]Human Rights Law Centre, ‘Human rights groups launch #BringThemHere campaign’, News, 10 August 2016, available at https://www.hrlc.org.au/news/human-rights-groups-launch-bringthemhere-campaign. In fact, the hashtag had started circulating contemporaneously with #LetThemStay, but the nature of hashtag activism is that a hashtag once initiated is available for appropriation and use by actors beyond the control of the initiator: Fitzgerald, Hopkins & Narayanasamy, ‘Justice, Social Action and Structural Change’.

[13] FAQ, available at https://www.kidsoffnauru.com/faq/

[14] Organisations joining the call to get #KidsOffNauru, available at https://www.kidsoffnauru.com/addyourorg/

[15] Andrew Markus and Dharmalingam Arunachalam, ‘Australian Public Opinion on Asylum’, Migration and Development (2018) DOI: 10.1080/21632324.2018.1474582