Sarah Stephen
On August 6, the High Court ruled that the federal government has the legal power to detain failed asylum seekers indefinitely — potentially for the rest of their lives.
In making its decision, the High Court considered the appeals of two men: Kuwait-born Ahmed al Kateb, a stateless Palestinian, and Abbas al Khafaji, who was born in Iraq but had lived in Syria since he was 11. Both men had had their asylum claims rejected. Kateb asked to be returned to Kuwait or the Gaza Strip.
Khafaji was found to be a refugee, but the government argued that he had "effective protection" in Syria. Drawing on the 2002 Masri ruling, the Federal Court ordered in 2003 that the men be removed from detention because there was no prospect of deporting them in the foreseeable future.
In August 2003, then-immigration minister Philip Ruddock appealed against the men's removal from detention, and the High Court decided it would hear the two appeals together.
There were deep divisions among the seven High Court justices, reflected in the 4-3 ruling, with Chief Justice Murray Gleeson among the minority.
The key points made by the minority were that mandatory detention should only apply until removal or a visa was granted. If the migration act did allow for indefinite detention, it would be against human rights and against Australia's international obligations and hence unconstitutional.
In his ruling, Justice Michael Kirby argued that Australian law should be interpreted in conformity with international law, which "has a strong presumption in favour of individual liberty and against a power of indefinite detention by the executive government".
Justice Michael McHugh strongly disagreed, claiming the argument "that the constitution should be read consistently with the rules of international law must be regarded as heretical". In a black-is-white statement, he argued that detention was not punitive: "As long as the purpose of the detention is to make the alien available for deportation or to prevent the alien from entering Australia or the Australian community, the detention is non-punitive."
Claire O'Connor, senior barrister representing Kateb in the High Court appeal told 91×ÔÅÄÂÛ̳ Weekly she was shocked by the decision. She had expected a ruling similar to the Federal Court's decision in the Masri case.
O'Connor, told ABC Radio on August 6: "The effect of this decision is that he will be locked up until the state of Palestine is created... Well, it's taken 51 years so far. I'm not holding my breath."
Liberty Victoria president Greg Connellan told the August 7 Melbourne Age: "It sends a horrific message to the rest of the world and seriously compromises our ability to argue that other countries who have used arbitrary, mandatory, indefinite detention are somehow doing the wrong thing."
The August 9 Age editorial argued: "By ruling that the government has the right to indefinitely detain individuals who have not been charged with an offence and who have nowhere else to go, the High Court has set a dangerous precedent."
Greens MP Michael Organ echoed this, arguing in an August 6 press release: "These laws make every immigration detention centre in Australia another Guantanamo Bay."
Democrats leader Senator Andrew Barlett told the August 9 Age: "People always assume there is some underlying protection, either in the constitution or international conventions, that prevents people being locked up without charge indefinitely on the whim of the minister. This just shows there isn't."
In a doorstop interview on August 10, ALP shadow immigration minister Stephen Smith reiterated that Labor's policy is to process 90% of cases within 90 days, with "a review structured into our immigration laws for long term detention cases". He made no commitment to make detention discretionary rather than mandatory.
Labor Party federal president Carmen Lawrence, on the other hand, used the opportunity of a protest rally outside federal parliament on August 11 to argue: "We need a bill of rights to protect civil liberties; to constrain the actions of the government. And we must change the immigration law to outlaw indefinite detention.
"We must ensure that our domestic law fully enshrines the principle that imprisonment should occur only after conviction by a court, not by arbitrary action of government."
Referring to Kateb, refugee lawyer Julian Burnside told 91×ÔÅÄÂÛ̳ Weekly: "He asked to be removed from Australia. He cannot be removed because there is no country he can go to. The government argued for, and won, the right to hold him in detention for the rest of his life. He has not committed any offence, but he faces the prospect of spending the rest of his life in a high security prison.
"The government could have amended the legislation to avoid that result. In its pursuit of a 'fair and decent society', it prefers to imprison innocent people for life."
Former diplomat and SIEV X whistleblower Tony Kevin commented on August 9: "I share the distress of all liberal-minded Australians at the cruel impact of this High Court ruling. I believe the focus has to be on getting the present law changed. Australian governments cannot leave these innocent people to rot in prison for the rest of their lives."
O'Connor told GLW she is convinced that the High Court's ruling gives weight to the need for two things — a bill of rights; and legislative amendments to the migration act that enable a court or the immigration department to release and grant a visa to a person who cannot be returned to any country.
Asked whether she thought the ruling could set a dangerous precedent for other 91×ÔÅÄÂÛ̳ of the community, O'Connor remarked: "Definitely it is dangerous, as it says there is no support for fundamental rights we might take for granted.
"As one of the minority judges pointed out, the right to liberty is the most basic of those rights. [The High Court ruling] is a call to arms for advocating for a bill of rights. Australia is the only Western democracy without one!"
From 91×ÔÅÄÂÛ̳ Weekly, August 18, 2004.
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