A quirk of timing and personnel gave us the Al Kateb decision of the High Court, meaning refugees can be permanently jailed. It’s time to re-visit the issue.
Caught, held, ‘no punishment’
By Louis A. Coutts*
In the disaster of the detention of asylum seekers, the real cause of the problem is completely overlooked: it can be traced to Australia’s High Court.
The fact that the Australian Parliament can pass laws that abridge fundamental freedoms is possible because of the licence extended to it by the High Court, the ultimate adjudicator of whether or not laws passed by the Federal Parliament are beyond the power conferred upon it by the constitution.
The Australian constitution enshrines the doctrine of the separation of powers of the legislative, executive and judicial branches of government. According to this doctrine, no branch of government can perform the functions of the other branches. This means that judicial functions can only be performed by the Judiciary.
By virtue of laws of the Commonwealth Parliament which have been upheld as valid by the High Court, all detainees in refugee detention centres are lawfully detained and yet they have not seen the inside of any court. Until they reach Australian territorial waters they are not in breach of any Australian law. When they do enter Australian territorial waters as genuine asylum seekers (as most people in detention are), they have a perfect entitlement according to international law to enter a country in which they seek asylum. The consequence of their entry into Australian territory without valid visa is indefinite detention, which is a euphemism for what we understand as “deprivation of liberty” or, in other words “imprisonment”.
Locked behind bars is no punishment
The High Court has determined that imprisonment can only be imposed by the judicial branch of government. How is it then that these people can be in the closest and oppressive detention when they have not had access to a court?
The answer is that the High Court, in a celebrated case involving an asylum seeker by the name of Al-Kateb, decided that detention requiring a determination of a court only applied when the detention is “punitive”. In other words, for the imprisonment to require the decision of a court it had to amount to punishment. The court decided in Al-Kateb that the detention was not punitive but merely an administrative function of the executive branch of government involving “detention” and that this detention, irrespective of its length, could properly be imposed by an officer of the Immigration department. It is challenging to accept that such detention does not amount to imprisonment,
The result is that the High Court has licensed the Australian Parliament to pass laws empowering officers of the Immigration department to indefinitely imprison (let us scrap the euphemism of “detention”) people genuinely seeking asylum.
Photo: Asylum seekers demonstrate on the roof of a building at Villawood Immigration Detention Centre in 2011 – JWC Adam pic
The Parliament and the Immigration department have now taken advantage of this decision to embark upon a policy of inordinately delaying the processing of applications for asylum, resulting in the harshest of detention regimes. This combination of delay and harsh detention is intended to send a message to would-be asylum seekers that if they come to Australia they will be “punished” by indefinite and indecent deprivation of liberty.
A dissenting member of the High Court in Al-Kateb found the detention in that case irreconcilable with previous decisions of the High Court, but the decision was reaffirmed in a later case by Heydon J (who was then one of the judges of the High Court). He was fixated on the “illegality” of Al-Kateb’s entry into Australia, an entry which was supported by international treaty to which Australia is a signatory. However, once again, the High Court has licensed the Australian Parliament to ignore Australia’s obligation under international treaty by deciding that, unless treaty obligations are specifically adopted in legislation, they have no effect on Australian law.
Processing can take but minutes
Some years ago a boat carrying asylum seekers was detained in international waters by Australian authorities. These asylum seekers were not in breach of Australian law and had the protection of international law. It is reported that it took a few minutes of phone calls for Australian authorities to process applications for asylum: the processing found that none of the people qualified for asylum and they were sent back. In this context, the claim of the Immigration department that the processing of applications for asylum is a prolonged and lengthy business lacks some credibility but does tend to lend support to the view that detention of asylum seekers is punitive.
Hopefully, sooner rather than later, the High Court will understand that liberty is a fundamental freedom in a civilised society and its deprivation, whether administrative or punitive, has to be the function of a properly constituted court of law and not that of an unelected bureaucrat. When our High Court ultimately adopts this powerful constitutional argument, the Australian government will be forced to reconsider its policy of indefinite detention.
ENDS
This item appeared first as an OpEd in The Age 20 Jan 2016 under the heading ‘How the High Court enabled indefinite detention’ http://tinyurl.com/zv6nd3n
* Louis A Coutts is a member of Civil Liberties Australia. He is honorary life member of the International Commission of Jurists {Victoria), author of a number of books and
author of the paper A review of Australian anti-terrorist legislation and the rule of law” http://icjvictoria.com.au/wp-content/uploads/2013/10/Anti-terrorist-laws-2.doc.pdf and Australia and the rule of law” shortly to be published.