Australia’s offshore detention regime faces the most serious challenge to its legal foundation since it was re-established in 2012, with two unrelated but coincident court challenges holding the potential to dramatically restrict – or affirm – Australia’s right to send asylum seekers to detention offshore.



On Wednesday the full bench of the high court of Australia will decide on the government’s power to remove 267 asylum seekers, including 39 children and 33 babies who were born in Australia, to Nauru.

The lead case in the high court challenge is a Bangladeshi woman – named in court documents as M68 – who was detained on Nauru but brought to Australia in the latter stages of her pregnancy.

The court challenge, brought by the Human Rights Law Centre, challenges the right of the Australian government to detain people on foreign soil.

The HRLC argues the Australian government’s detention of asylum seekers in a foreign country infringes the constitutional limits imposed by the separation of powers.



The government argues it has the power to send people to Nauru and that it is not responsible for detention on the island. It also passed retrospective laws allowing it to fund and participate in the detention of people in foreign countries.



Two days before the case came before the high court, the Nauru detention centre became an “open” centre, allowing asylum seekers to move about the whole island. The Australian government then argued in court the people being sent to Nauru were not “in detention” there, so the question of the government’s authority was moot.

The immigration minister, Peter Dutton, has declined to comment before the court’s decision but said the court would assess all the specific facts of the case.

If the high court decides in favour of the government in M68, people could start being transported to Nauru as early as Saturday – the government is required to give 72 hours’ notice of any move.

However, if the decision goes against the government, it may move people to Christmas Island, where the Phosphate Hill family detention centre has recently been refurbished, reportedly as a contingency.



Daniel Webb from the HRLC said the high court’s decision had the potential to profoundly alter Australia’s offshore detention regime. But, he said, regardless of the high court’s decision, the government retained the power to release the asylum seekers into the Australian community.

“The high court could decide the future of the offshore detention arrangements but Malcolm Turnbull and Peter Dutton will need to decide the future of our clients,” he said.

“Whatever the high court decides, the stroke of a pen is all it would take for Malcolm Turnbull or Peter Dutton to do the decent things and let these families start rebuilding their lives in safety.”



However, as well as M68 in the Australian high court, the supreme court of Papua New Guinea is hearing a challenge that contends the offshore detention regime that currently houses more than 900 men on Manus Island is unconstitutional.

The PNG constitution guarantees “liberty of the person”, “right to freedom of movement” and “freedom from inhuman treatment”, as well as the right to access PNG courts and have access to a lawyer.

A PNG lawyer, Ben Lomai, argues asylum seekers have been denied these fundamental rights and that the state is required to release the men back to their first port of entry, Australia. He will argue PNG is also liable to pay compensation to them.

The court’s decision could have the power to close Manus.

Tension is building on both offshore detention islands before the court proceedings.



The Nauruan government issued a warning to asylum seekers and refugees that they are not allowed to protest.

The justice minister, David Adeang, said violence would not be tolerated and protests could not block roads. He said asylum seeker and refugee protests created tension between refugees and locals.

“We consider our refugee friends as guests in our country and we work hard to make their lives comfortable but sadly there is a small element of troublemakers who don’t care about Nauru and don’t value our hospitality,” Adeang said.

Meanwhile, in PNG, Wilson Security’s emergency response team has been conducting regular raids of the Manus detention centre, seizing asylum seekers’ phones and stripping rooms of anything they think could be used as a weapon, including clothes racks.

One asylum seeker said: “Everyone is scared and nervous about the high court decision. The ERT is marching in the compounds to build tension, they raid rooms and get people’s phones.

“Every one of us is mentally sick here, none of us even wants to do peaceful protest. Wilson’s are training every night in the field. They say ‘we are ready for everything’.”

A senior immigration department source in Canberra told Guardian Australia the government was “seriously worried about more unrest” and anxious to avoid a return to the violence of February 2014, when three days of rioting and an invasion of the detention centre by PNG police resulted in more than 60 serious injuries to asylum seekers, including a man having his throat slit, another being shot and the fatal beating of Reza Barati.