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Detention of Australia’s Asylum Seekers in Nauru: Is Deprivation of Liberty by Any Other Name Just as Unlawful?

26 Pages Posted: 28 May 2015 Last revised: 6 Aug 2015

Azadeh Dastyari

Monash University - Faculty of Law

Date Written: May 1, 2015

Abstract

This article examines the detention of Australia’s asylum seekers in Nauru. In particular, this article assesses the conformity of the 2013 Memorandum of Understanding between Australia and Nauru with the protections against unlawful deprivation of liberty under the Constitution of Nauru and the protections against arbitrary detention afforded to asylum seekers under international law.

The article demonstrates that the confinement of asylum seekers in the Refugee Processing Centre in Nauru constitutes detention under the municipal law of Nauru and international law, notwithstanding the recently announced open centre arrangement at the Refugee Processing Centre in Nauru or objections to such a characterisation from Australia and Nauru. The article goes on to argue that the detention of refugees in Nauru under the 2013 Memorandum of Understanding with Australia is likely to be unlawful under the Constitution of Nauru, because detention is not for the purpose of effecting the removal of refugees from Nauru. Furthermore, the detention of asylum seekers who are subject to lengthy delays in processing, and thus to lengthy delays in release from detention (regardless of whether or not they are ultimately released into the Nauruan community), may be in contravention of the Constitution of Nauru. The detention of asylum seekers in Nauru also places Australia in violation of its obligations under articles 9(1) and 9(4) of the International Covenant on Civil and Political Rights and the obligations of both Australia and Nauru under article 37(b) of the Convention on the Rights of the Child. The article concludes by arguing that the release of asylum seekers into the Australian community is the best option for ensuring that Australia and Nauru comply with the Constitution of Nauru and their obligations under international law.

Keywords: Nauru, Constitution, extraterritorial detention, asylum seekers, refugees, offshore processing, offshore detention, Nauruan Law, Constitution of Nauru

Suggested Citation

Dastyari, Azadeh, Detention of Australia’s Asylum Seekers in Nauru: Is Deprivation of Liberty by Any Other Name Just as Unlawful? (May 1, 2015). University of New South Wales Law Journal, Vol. 38, No. 2, 2015; Monash University Faculty of Law Legal Studies Research Paper No. 2015/08. Available at SSRN: https://ssrn.com/abstract=2610477

Azadeh Dastyari (Contact Author)

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

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