Law as Resistance: Legal and Advocacy Strategies Against Australia’s Offshore Detention Policy

On 10 June 2022 in Australia, the Nadesalingam family returned to Biloela. For four years, the Nadesalingams were the public face of Australia’s punitive border protection policies and its controversial ‘fast track’ system. After years of litigation and campaigning by the community, the Nadesalingams were finally able to return to their home in Biloela. On the same day in England, the High Court refused an injunction to prevent asylum seekers being sent to Rwanda. Following in the footsteps of Australia’s offshore detention system, the UK has signed an agreement with Rwanda to send asylum seekers offshore for processing and resettlement. However, significant protests and last-minute legal action forced the Government to cancel its first planned removal of asylum seekers.

Law combined with public advocacy is often used as a strategy to resist the harmful and deviant conduct of states – what criminologists refer to as ‘state crime’. In this post, I discuss the various legal strategies used to challenge Australia’s offshore detention policy, and how these intertwined with other forms of advocacy.

Legal Challenges and Advocacy against Australia’s Offshore Detention Policy

Various legal and non-legal strategies were used to challenge Australia’s offshore detention regime.

In Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1, the constitutionality of offshore detention was challenged in the Australian High Court. The key issue in the case was whether the Government was authorised to enter into arrangements for the detention of asylum seekers offshore. The case did not succeed, however, immediately before the hearing, there was an announcement that the Nauru detention centre would transition from a ‘closed’ to an ‘open’ centre, possibly in response to issues raised by the case.

This case was part of the ‘Let them Stay’ campaign, which aimed to prevent the return of 267 asylum seekers from Australia to offshore detention. Protests occurred in capital cities throughout Australia and doctors refused to discharge patients where it was unsafe for them to return to detention. Churches proposed to invoke the right to sanctuary to prevent asylum seekers being removed, and states offered support for the asylum seekers to stay. In response to this campaigning, the Government reversed its position and allowed the asylum seekers to remain in Australia.

The case of Namah v Pato [2016] PJSC 13 also involved constitutional law. This case, commenced in the Papua New Guinea Supreme Court, considered the legality of offshore detention under the Papua New Guinea Constitution which enshrines a right to liberty. The Court found that the detention of asylum seekers violated this right and thus was unconstitutional, forcing the Government to close the Manus Island Detention Centre. Asylum seekers were removed and relocated to ‘transit centres’.

Tort law has also been a key strategy in challenging Australia’s offshore detention policy. In a series of cases beginning with Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483, lawyers argued that the Minister for Immigration and Border Protection owed a duty of care to provide appropriate medical treatment to asylum seekers. These cases secured the transfer of asylum seekers to Australia for medical attention. In response, legislation was passed by the Labor opposition and independents creating a statutory process for the medical transfer of asylum seekers to Australia. The ‘medevac law’ was in force for eight months before it was repealed by the Coalition after their re-election in 2019.

Tort law was also used in Kamasee v Commonwealth of Australia. In 2014, 1,905 men who were detained on Manus Island commenced a class action lawsuit against the Australian Government and its offshore detention contractors. The plaintiffs brought claims for negligence and false imprisonment. In 2017, prior to trial, the Government settled the lawsuit for $70 million.

Kamasee is one example of a strategy that targeted the businesses involved in offshore detention, without whom Australia could not have operated its policy. A successful boycott campaign was also organised against companies involved in Australia’s offshore detention system, and No Business in Abuse released a report drawing attention to business’ responsibilities under human rights law in relation to offshore detention. Investigative journalism highlighted the close relationships between the Government and businesses involved in offshore detention.

Asylum seekers and advocates also used international criminal law to resist Australia’s offshore detention system. In 2016, a group of 500 asylum seekers wrote to the International Criminal Court about their treatment in offshore detention. Communications to the ICC were also made by lawyers, activists and politicians. In 2020, the Prosecutor declined to open a preliminary examination into Australia’s offshore detention policy, finding that harms of offshore detention did not fit the narrow definitions of international crimes. While the communications did not result in a legal victory, civil society seized on the Prosecutor’s finding that finding that the conditions of offshore detention ‘constituted cruel, inhuman, or degrading treatment… in violation of fundamental rules of international law’. As an international actor with a special status, this statement from the Prosecutor added weight to arguments that Australia’s policy of offshore detention was inhumane and illegitimate, and featured prominently in the reporting on the Prosecutor’s announcement.

Reflecting on the Impact of Legal Challenges and Advocacy

Legal challenges formed one part of a broader context of advocacy against offshore detention. The resistance to Australia’s offshore detention policy shows how law can combine with the campaigns of medical professionals, religious bodies, sympathetic politicians and the community to challenge and resist harmful state policies.

Ultimately, the relationship between the state and civil society is dialectical, comprising action and counteraction. While Australia’s offshore detention policy remains in effect today, as the above analysis shows, advocacy against offshore detention has produced a number of victories. Throughout the duration of Australia’s policy, civil society have played a key role in shifting public opinion against offshore detention, eroding public support for punitive border policing practices and creating the conditions for government concessions, policy backdowns and acts of humanity.

In Australia, advocates will continue to call for the Government to adopt a fairer and more humane approach to asylum seekers and refugees. In England, the fight against offshore processing and resettlement in Rwanda is just beginning.

Assistant Professor in Law at the University of Nottingham and Head of the Forced Migration Unit in the University’s Human Rights Law Centre. She completed her PhD at UNSW in 2022. Her PhD thesis explored the potential of international criminal law to resist state crime, with a focus on communications to the International Criminal Court concerning Australia’s offshore detention policy.