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Australia's highest court: Keep asylum seekers on islands. What's next?

The Australian high court ruled Wednesday in favor of government policy interning asylum seekers in offshore facilities. What does this mean?

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    A combination handout picture shows some of the babies born in Australia to asylum seeker mothers who face deportation to one of Australia's controversial offshore asylum seeker detention centres on the Pacific Island of Nauru, in this undated handout photo released February 2, 2016.
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Australia’s high court has ruled in favor of the government’s detention of asylum seekers in offshore facilities.

The decision, announced Wednesday, came after the Human Rights Law Centre brought a case on behalf of a Bangladeshi woman who had been held at a detention center on the island of Nauru, but had been transferred to the mainland for medical treatment during pregnancy.

The ruling’s most immediate impact concerns the fate of more than 250 asylum seekers currently on the mainland for medical treatment, allowing, but by no means obliging, the government to return them to Nauru.

Yet the ramifications run deeper, marking another milestone in the debate over Australia’s controversial - yet effective – immigration policies.

The line has to be drawn somewhere and it is drawn at our border,” said Prime Minister Malcolm Turnbull during Wednesday’s question time, reaffirming the government’s policy of deterring asylum-seekers and ensuring “this pernicious, criminal trade of people smuggling cannot succeed."

Australia’s policy of interning asylum-seekers on islands such as Nauru dates back to 2001, introduced under the prime ministership of conservative John Howard.

The Labour government, under prime minister Kevin Rudd in 2007, scrapped the policy, with the incoming Immigration Minister Chris Evans calling it "a cynical, costly and ultimately unsuccessful exercise," as The Christian Science Monitor reported, citing a cost to the government of about $223 million.

Yet the policy undeniably discouraged would-be asylum seekers – mostly Afghans, Iraqis, Vietnamese, and Rohingyas – as new arrivals dwindled to almost nothing. 

It also enjoyed a degree of support, and Labour's Julia Gillard revived the practice when she replaced Rudd in 2010.

Today’s approach has at its core Operation Sovereign Borders, a “military-led border security initiative." Indeed, the numbers, once again, speak of the fulfillment of goals: In 2013, 300 or so boatloads of asylum seekers reached Australia. In 2014, the total was 1.

Yet the policy has been marked by controversy, plagued by allegations of rape and abuse at detention centers.

A report carried out by the Australian Human Rights Commission in 2014 concluded:

“The overarching finding of the Inquiry is that the prolonged, mandatory detention of asylum seeker children causes them significant mental and physical illness and developmental delays, in breach of Australia’s international obligations.”

In reacting to Wednesday’s ruling, the Commission's president, Prof. Gillian Triggs, said, “The High Court has confirmed that third country processing is lawful under our domestic legislation, but it did not judge whether it complies with international law.”

Professor Triggs went on to talk of Australia’s obligations under international human rights law “to protect the safety and wellbeing of all people under our jurisdiction, including people seeking asylum."

The group that launched the legal challenge, the Human Rights Law Centre, went further:

“The legality is one thing, the morality is another,” said Daniel Webb, director of legal advocacy. “Ripping kids out of primary schools and sending them to be indefinitely warehoused on a tiny remote island is wrong. We now look to the Prime Minister to step in and do the right thing and let them stay so these families can start to rebuild their lives.”

And while the government can now choose whether to return the affected asylum seekers to Nauru or not, Immigration Minister Peter Dutton indicated that such action would indeed be taken, once medical care was no longer needed, though he put no timeframe on it.

Yet opposition to the Australian government’s policy is by no means universal. One national paper, The Australian, ran a headline of "Australia controls its borders," describing the ruling as "welcoming and reassuring."

They [these policies] have prevented tens of thousands of people from taking risky voyages and being detained, allowed at least 10 detention centres to be emptied and closed, saved hundreds of lives and freed the immigration system to accept record levels of refugees in orderly processes.

“Despite this record of success against the odds, refugee advocates and Greens politicians still campaign to have the policies weakened.”

The piece then goes on to talk of the alternative path, stating that Europe is currently an apt example, “a social, economic and humanitarian disaster."

Yet it seems clear that some Australians want more scrutiny of the policy. Another news outlet, The Age, writes that a report is to be released Thursday by the Human Rights Commission, detailing a visit to a detention center near Darwin, where “clinicians had never confronted such traumatized children, and the prospect of return was aggravating their condition."

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