The High Court and children in detention

In two important recent cases, the High Court has had to rule on the legal validity of the mandatory detention of the children of asylum-seekers. In both it concluded that the Commonwealth Government has the constitutional and statutory authority to detain children mandatorily — even for years. The conclusions of the Court were unanimous and, in my view, clearly right. This is not for a moment, however, to endorse the policy of the compulsory incarceration of minors embodied in the legislation that the Court was required to consider. I will return to this dissonance presently.

The first case was one of several involving the recently deported Bakhtiyari family. It came to the High Court as an appeal from the Family Court. The Family Court had decided that it could order the release of the Bakhtiyari children from detention in pursuit of a general, statutory responsibility for the welfare of children. This was a most adventurous interpretation of the Court’s jurisdiction. No matter how well intentioned, it was plainly, legally incorrect.

The High Court determined properly that the Family Court’s jurisdiction was confined by its statute to the pursuit of the best interests of the child only in the context of marital disputes or in the determination of the proper exercise of parental responsibility. It did not extend to providing a broader power to the Court to do anything it thought appropriate to advance the welfare of children more generally.

Consequently, the Court could not make orders with respect to the welfare of the Bakhtiyari children just because they were children in need. It could not order their release, therefore, particularly in the face of the comprehensive scheme of mandatory detention of those seeking asylum contained in the Commonwealth’s Immigration Act. This scheme, the Court ruled, was one which appeared to contain no relevant exception in relation to children.

The proposition that there was no exception for children was then challenged in the second case of Re Woolley. Mr Woolley was the manager of the Baxter Detention Centre. The applicants were four Afghani children aged 15, 13, 11, and 7 who had arrived with their parents on Australian shores seeking refugee status on the ground that they would be in danger of persecution if they returned to their homeland.

In Woolley the Court confirmed its initial view that the Immigration Act could not be read so as to provide children with a legal or constitutional immunity from mandatory detention. Children stood in no different position from their parents in this respect. The legal reasoning which led to this conclusion was straightforward.

The two central provisions of the Immigration Act that provide for mandatory detention refer to the detention of ‘unlawful non-citizens’. The definition of an unlawful non-citizen contains no exception for children. An unlawful non-citizen is a person who is not a ‘lawful non-citizen’ i.e. a non-citizen possessing a visa. A child is a person. Therefore, a child may fall within the definition.

In addition, it had to be presumed that Parliament would have known that adults and children would have been caught by the definitional provisions. As Chief Justice Gleeson noted:

it is hardly likely that Parliament overlooked the fact that some of the persons covered by those definitions would be children. Human reproduction, and the existence of families, cannot have escaped notice

Further, as Justice Kirby observed, the plight of children in detention had been drawn to Parliament’s attention in several, detailed parliamentary reports and reports from the Human Rights and Equal Opportunity Commission (HREOC). Despite this, no change to the legislation had been made. This reinforced the view that the mandatory detention of children had been, and continued to be, contemplated explicitly by the legislature.

The Constitution could not help either. It provides the Parliament with the power to make laws with respect to aliens (i.e. unlawful non-citizens). The statutory provisions with respect to mandatory detention are laws concerning aliens. They provide for the detention of aliens pending the scrutiny of their asylum claims, and if rejected, pending their deportation.

The only peg upon which an argument of constitutional invalidity could have been mounted would have been one that might have persuaded the Court that the purpose or effect of the detention was punitive. While it can be accepted as a matter of common sense and common knowledge that detention is harmful to children, the permissible evidence with respect to the punitive nature of the detention of these particular children was insufficient to make out the case.

In short, the plain words of the Immigration Act provided no room for an implication that the detention regime was inapplicable to children. Given the clarity of the words, and the intention behind them, it was not for the Court to undermine the legislature’s will. Justice Kirby, who is frequently but erroneously branded as radical, summarised the traditional position appropriately as follows:

For an Australian Court, a refusal to apply, and give effect to provisions of a valid federal act is not an available option. Fundamental to the Australian constitution is respect for the rule of law. If the law is clear and constitutionally valid, it is the duty of the Australian courts to apply its terms. This is so whatever judges or others might think about the content and effect of the law.

The Immigration Act provided no way out for the Court and, consequently, no way out for the kids.

This outcome, however well it might be justified legally, presents the Australian nation and legal system with a formidable dilemma. Australia’s incarceration of children, often for long periods of time, has been well recognized internationally and nationally as a grave assault on their human rights. It constitutes a significant infringement of Australia’s obligations under a number of international human rights conventions including, most notably, the International Convention on the Rights of the Child.

Yet, in the face of the plain intention of the Parliament to the contrary, nothing other than the replacement of the government at election (which in relation to this issue amounts to the interchange of Tweedledum with Tweedledee) can be done to rectify or moderate the injury. That, in turn, draws one’s attention sharply to certain critical matters that the High Court, as a matter of law, could not take into account when reaching its conclusions.

It could not consider whether the scheme of the legislation might be inconsistent with Australia’s international human rights treaty obligations. This is because a treaty’s provisions do not have direct effect in Australian law. So long as the Parliament’s contrary intention is expressed in plain words, any such inconsistency cannot justify a refusal by the Court to give effect to the domestic legislation.

It could not consider the consistent opinion of United Nations’ treaty monitoring bodies and rapporteurs to the effect that Australia is presently in breach of its treaty obligations: in this case, in breach of its obligation to ensure that no child should be deprived arbitrarily of their liberty and that detention of a child should be used only as a measure of last resort. The Court’s task here was simply to interpret the statute and determine its constitutional validity. Critical international human rights jurisprudence and opinion has no relevance to this function.

It could not consider the comparative law of other similar countries. This is because Australia’s detention regime, as set down by law, differs substantially from that of its closest counterparts. In Canada, the US, the UK and New Zealand, the detention of aliens, including children, is permitted but it is for the most part discretionary rather than mandatory. The law deriving from judicial consideration of these less arbitrary detention regimes, therefore, has no direct applicability or relevance here.

It could not consider the powerful, indeed overwhelming, evidence of the systematic abuse of children’s rights and the physical and emotional injury inflicted upon them in mandatory detention adduced by Australia’s Human Rights Commission. In its 900 page report ‘As a Last Resort’ (2004) HREOC concludes that:

Children in immigration detention suffered from anxiety, distress, bed-wetting, suicidal ideation, and self destructive behaviour including attempted and actual self-harm. The methods used by children to self harm included hunger strikes, attempted hanging, slashing, swallowing shampoo or detergents and lip-sewing. Some children were also diagnosed with specific psychiatric illnesses such as depression or post traumatic stress disorder.

The report should have been compulsory reading for the judges, particularly Justice Ian Callinan who suggested callously, and in the face of the comprehensive evidence of abuse, that children’s detention may not be punitive because they might receive a good education in the camps. But even had they read it, the judges still could not have used it to inform their legal analysis.

The only way in which evidence such as this might make its way into the Court’s legal deliberations would be if Australia had a constitutionally entrenched or statutory Charter of Rights, reflecting and incorporating the provisions of the international human rights conventions that it has ratified. But Australia is now the last country in the Western world not to have adopted such a Charter. Neither Australians nor aliens have recourse to a law of this kind. And so, we can make human casualties of innocent kids.

When reading the HREOC report, I came close to tears as I took in the following series of entries made by staff in relation to one particular twelve-year-old child. This case study was not isolated but was one of more than a hundred considered by the Commission:

11 April 2002: Child attempts to hang himself with a bed sheet on playground equipment.

12 April: Child’s mother becomes very upset and is taken to hospital for observation and assessment by psychologist. Says that she is on hunger strike. Child recorded as saying:

I wanted to kill myself because my mother doesn’t eat and she cries all the time Very tired of camp, getting up in the morning and seeing the fences and dirt. We came for support and it seems we’re being tortured. It doesn’t matter where you keep me, I’m going to hang myself.

19 April: Child attempts to hang himself from playground equipment. Child taken to hospital with his father.

21 April: Child returns to Woomera.

8 May: Child threatens self harm.

17 May: Child attempts to hang himself from playground equipment. Taken to Woomera and then returns.

22 May: Officer reports that the child said that ‘today is his last day. Told me tonight will be the end, his last night alive’.

30 May: Psychiatrist reports that ‘for this child the matter is simple. If he remains in custody he wishes to die. He can no longer bear razor wire and dirt. He worries about his mother’s wellbeing and also about his father who he says is constantly worrying and angry …’

7 June: Child found in the razor wire. He says ‘he can’t go on anymore’.

8 June: Child found in razor wire again.

14 June: Child climbs fence into the razor wire a third time. After about eight minutes climbs down again.

24 June: Child on hunger strike.

13 July: Child found in razor wire.

26 July: Child attempts to hang himself.

29 July: Child smashes lights in dining area, slashes arm with fluorescent tube.

January 2003: Child transferred to Woomera RHP.

December 2003: Child in detention at Port Augusta RHP.

It is said frequently of Australia’s constitutional system that ‘if it ain’t broke, don’t fix it’. If there is no way out for a child such as this — it’s broke.