The full bench of the court on Wednesday rejected a legal challenge to the Federal Government’s offshore immigration detention regime.
It did so after considering the case of a pregnant Bangladeshi asylum seeker who was brought to Australia from Nauru for treatment for serious health complications.
She faced the prospect of being returned to the Pacific island with her one-year-old child.
In a majority decision the court said the woman’s detention on Nauru was not unlawful.
It also ruled the Commonwealth’s role in her detention was authorised under Australian migration laws, and the government’s offshore processing deal with Nauru was valid under the constitution.
The ruling has implications for 267 other people – including 91 children – who are in Australia for medical treatment.
The Federal Government is now under pressure to show compassion towards the group.
Save the Children, which has had a child protection role on Nauru, called on Prime Minister Malcolm Turnbull to show some compassion towards the 37 babies and older children.
“If found to be genuine refugees, we urge him to do the decent thing and offer these vulnerable people permanent protection here in Australia,” spokesman Lee Gordon said in a statement.
Australian Greens senator Sarah Hanson Young said the prime minister would be authorising child abuse if the families were sent back to Nauru.
“The evidence is clear and its undeniable that Nauru is unsafe for women and children and sending them back would be torture,” she said.
Ahead of the ruling, Immigration Minister Peter Dutton insisted the government was acting in the best interests of asylum seekers brought to Australia for health care.
But the government had to be mindful of the message being sent to people smugglers.
Although, he wanted to reduce the number of children in detention to zero, people smugglers were channelling a message to potential customers that “Dutton’s a soft touch and you can put women and children on boats and be successful”.
The federal government, with Labor’s support, had retrospectively changed laws to bolster the Commonwealth’s ability to pay for the offshore facilities last year.
Its case in part hinged on a sudden decision last October by the Nauru government to allow asylum seekers to roam around the island nation at will.
The Human Rights Law Centre, which ran the case, said its clients were terrified of being sent to Nauru.
“Ripping kids out of primary school and sending them to be indefinitely warehoused on a tiny, remote island is wrong,” spokesman Daniel Webb said in a statement.
“This mother just wants what all mothers want her child to have – a decent life somewhere safe.”
Amnesty International criticised the lack of transparency at the detention centre and said reports of sexual harassment and abuse were concerning.
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