Can The Courts Stop Mandatory Detention?

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The recent High Court challenge to the Government’s Malaysian Solution focuses attention of the use of the courts to challenge government action.

The courts have been the forum for a number of challenges to various aspects of Australia’s mandatory detention regime. Australia does not have a Charter of Rights, so we do not have an embedded set of human rights in our legal system. As a result, it is necessary to look for indirect ways of seeking to protect the human rights of people who, fleeing persecution in their own country, arrive in Australia and seek protection.

To understand the problem, it is necessary to have a brief look at some of the machinery under the bonnet of Australia’s legal system.

First, although Australia is a signatory to all major international human rights conventions, the provisions of those conventions do not form part of Australia’s domestic law. As a result, those conventions cannot be called in aid directly to provide a legal remedy.

Second, the Australian Constitution recognises that democratic governments have three distinct elements: the legislative branch, which makes the laws; the executive branch, which implements the laws; and the judicial branch, which interprets and enforces the laws. The first three chapters of Australia’s Constitution recognise and define those three elements: chapter one, the Parliament; chapter two, the Executive; chapter three, the Judicature.

From this structure (which we borrowed from the American model) comes the doctrine of the separation of powers. This says that one arm of government cannot exercise the power vested in another arm. Although this idea becomes complex and opaque in practice, it has a particular feature which is presently relevant: punishment is central to the judicial power, so neither the Parliament nor the Executive can directly inflict punishment on a person.

The Parliament can, and does, specify punishment for particular offences, but the punishment cannot be inflicted unless a chapter three court finds the offence proved and imposes the penalty prescribed. Equally, the Executive branch cannot decide of its own will to punish a person.

The first challenge to mandatory detention came in Lim’s case (1992). In its simplest form, the problem with mandatory detention is that it looks like imprisonment, and thus looks like punishment. The High Court decided, in substance, the detention of asylum seekers pending processing and (if necessary) removal was not punishment if "the detention which [the laws]require and authorise is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered". Although the particular laws in question in Lim’s case were invalid, the stage was set for our present mandatory detention laws.

Lim’s case has been applied frequently, but the next landmark in this area was al Kateb.

Ahmed al Kateb had sought asylum in Australia. He was held in detention pursuant to the current mandatory detention provisions which provide that a non-citizen who does not have a visa must be detained and must remain in detention until he gets a visa or is removed from Australia. He was refused a visa, but didn’t want to prolong his stay in detention for another year or so by challenging the refusal as he could have done. But he could not be removed from Australia, because he was stateless: there was nowhere to send him. He had not broken any law by coming to Australia to seek asylum, nor was he suspected of being a security risk.

Nevertheless, the Howard government argued that al Kateb could be detained for the rest of his life. By a majority of four to three, the High Court held that that was what the Migration Act means, and with that meaning it is constitutionally valid. It is an eloquent illustration of the point that our law does not contain adequate protection against the indecency of a vindictive government.

Ahmed al Kateb was rescued administratively and was released into the community as an act of grace. He is now an Australian citizen. Nevertheless, the case which bears his name stands as a significant threat to another group of asylum seekers currently in Australian detention centres. They have been assessed as genuine refugees, but they have been "adversely assessed" by ASIO with the result that they cannot be given visas. ASIO will not say why they have been adversely assessed: in all such matters, it maintains a sullen silence.

Recent Federal Court authority stands for the proposition that the Court will not overturn an ASIO adverse assessment if it has no information about the grounds for that assessment, and it will not force ASIO to disclose the grounds for the assessment. If ASIO makes a mistake, or acts on false information, or even if it is overly sensitive to the risk a person might represent, the end result is that the person cannot be given a visa. But they cannot be returned to their country of origin, because they have been assessed as a refugee.

Refugees in this position — about 25 of them at present — face the prospect of remaining in detention for life without knowing what they are supposed to have done wrong, and without any chance of answering it. Such a result should be intolerable in a democratic country.

Parallel with the al Kateb case was the case of Behrooz. That case tested this question: if the conditions in detention are as harsh as human ingenuity can devise, does the harshness make any difference to the lawfulness of that detention. The answer is no.

Al Kateb and Behrooz were decided together in 2004. Between them, they stand for the miserable proposition that indefinite detention, even for life in the worst conditions imaginable, is lawful. A third case decided that year held that the provisions apply equally to children.

The case of M70, which challenges the lawfulness of the Malaysia Solution, will be decided on Wednesday this week. It remains to be seen whether the Australian government can rid itself of a group of asylum seekers by trafficking them to a country which does not acknowledge any responsibility toward refugees, and has a poor human rights track record. What is clear however is that Australian governments, both Liberal and Labor, have repeatedly shown that they are willing to ignore all the dictates of human decency when the object of their attention is a group of people who are politically unpopular.

Sadly, most Australians do not know about the cases of al Kateb and Behrooz, and it seems that they do not care what the government does to "boat people". I suspect that this is because they have been conditioned by the Howard government’s repeated but dishonest use of expressions like "illegals" and "border protection". These naturally carry the suggestion that asylum seekers who arrive by boat are dangerous criminals. The slur has proved very durable, and the Gillard government has done nothing to counter it: indeed, it has pandered to it.

Such is the primitive state of human rights in Australia. A large tranche of the public is willing to accept that human rights do not apply if the person is "illegal" or a threat to our borders; that we can treat them in ways which would be met with outrage if done to an Australian; in short, that these asylum seekers are in some way less human than the rest of us.

Against that sort of prejudice, courts are powerless. What is needed is political leadership, but it has gone missing.

New Matilda

New Matilda is independent journalism at its finest. The site has been publishing intelligent coverage of Australian and international politics, media and culture since 2004.

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