Mr Behrooz jumps the razor wire but the High Court catches him

In the early hours of 18 November 2001, Mr Mahmed Behrooz and five colleagues broke out of the Woomera detention centre.* Mr Behrooz is Iranian. He had been in detention at Woomera for about twelve months. Heaven knows where he intended to go. He was in the middle of nowhere, did not know the lie of the land and his language was poor. But he couldn’t stand it and he ran nevertheless. Unsurprisingly, it was not long before the authorities returned him to custody.

Mr Behrooz was charged with escaping from immigration detention, an offence carrying a maximum term of five years. At the start of proceedings before the Magistrates Court his lawyers asked for a wide range of documents that related to the conditions at the Woomera centre. They needed the material to advance their defence.

What they wanted to argue was that the conditions in which Mr Behrooz was detained were so bad that it could not reasonably be said that he had escaped from legitimate custody. To flee from conditions that were cruel and inhuman could not fairly be equated, they said, with flight from ‘immigration detention’ as properly understood in the Immigration Act.

The request for the documentation was refused by the Magistrate. The case ended finally at the door of the High Court. There, the request for the documents was defeated and so was the defence.

The Court’s reasons for rejecting the case say much about its present approach to the plight of asylum-seekers, about their treatment by government and about the Court’s approach to the law. I will review its reasons briefly before offering a more general commentary.

The essential question before the Court was this. Could inhumane or intolerable conditions in the custody of asylum seekers at Woomera deprive that custody of its character as immigration detention? By a six to one majority the Court’s answer was no.

The majority’s position was founded upon its reading of the relevant provisions of the Immigration Act. In the Act, immigration detention was defined as a circumstance in which a person was held in a detention centre established under the Act. It was not in dispute that Mr Behrooz had been so held.

Once that was admitted, the Court said, the conditions under which a person was held could not form part of the statutory concept of immigration detention. The detention was conceptually distinct from its conditions. ‘That from which a person escapes is immigration detention’, the Chief Justice said. The conditions at a detention centre, no matter how intolerable or inhumane, could not alter that primary characterisation.

In another relevant section of the Act, immigration officials are empowered to detain a person so that they may be taken into detention and, then, be kept there. An official may take such actions, and apply such force, ‘as are reasonably necessary to do so’.

In argument, lawyers for Mr Behrooz contended that his placement in intolerable conditions may constitute an application of force that was far greater than necessary for the purpose. Justice Ken Hayne in the majority dismissed the argument as incorrect and irrelevant.

It is difficult to convey the technical manner in which the majority of the Court is approaching questions like this without quoting it directly. Here, therefore, is Justice Hayne’s response to the argument about reasonable force:

(In the Act) the phrase "as are reasonably necessary to do so" qualifies the expressions "taking such action" and "using such force". Those expressions, in turn, amplify what is meant by "take into" immigration detention and "keep or cause to be kept" in immigration detention. It is to those actions which "to do so" refers. The phrase "as are reasonably necessary to do so" does not qualify what is meant by "immigration detention". That latter term is, as has earlier been pointed out, a defined term. One of its meanings is being held by, or on behalf of, an officer at a particular kind of place. The conditions that exist at that place form no part of the statutory identification of what is "immigration detention".

Put simply this means that reasonable force can be used to get a person into detention and to prevent them from getting out. But once inside, the conditions to which that person is subjected, no matter how harsh or degrading, are irrelevant to the inquiry. As I will demonstrate in a moment, this is a deeply contestable proposition.

Justice Michael Kirby was in a minority of one. His approach to the issues could hardly have been more different. He signaled that from the outset:

In the Supreme Court of the United States, (Justice Brennan) observed that "where voteless, politically unpopular, and socially threatening" detainees bring proceedings before the courts to assert or defend their legal rights, judicial intervention may be indispensable "if constitutional dictates — not to mention considerations of basic humanity — are to be observed". I agree with this proposition. It informs my approach to this appeal.

Commencing from an appreciation of Mr Behrooz’s personal situation, Justice Kirby decided that the defence proposed by his lawyers was at least arguable and, therefore, the documents they required to bolster it should be made available. His reasons were complex but lucid. In summary they were these.

First, it was for the court and not the government to determine what ‘immigration detention’ means. Just because the government says that a person is in immigration detention is not conclusive of the fact that they are.

Secondly, if it could be proved by evidence that a person was subject to intolerable or inhumane conditions, it would be arguable, as a matter of statutory interpretation, that escape from them was not escape from ‘immigration detention’.

Thirdly, the meaning of the term ‘immigration detention’ should be determined, wherever possible, in a manner that is consistent with international human rights law. Australia is a party to all of the major UN human rights conventions. In the absence of explicit words to the contrary, it can reasonably be assumed therefore that ‘immigration’ detention will be defined, in law, as detention that does not offend the principle that a person deprived of their liberty ‘must be treated with humanity and with respect for the inherent dignity of the human person’.

What, then, are we to make of all this? To begin with, it is difficult to say conclusively that the majority opinion is wrong. If one accepts the legal frame within which those who normally comprise that majority operate, then it has to be accepted that their logic is impeccable. The problem, then, is not with the logic but with the outlook.

The majority perspective is informed by and infused with an adherence to technique. Being technical, it is also narrow and prone to abstraction. This abstraction, regrettably, can lead to the adoption of propositions that not only defy common sense but also, more perilously, deny our common humanity. A few examples can make the point clear.

In my last contribution to NewMatilda, The forgetting of wisdom: the High Court and Mr Ahmed Al-Kateb I recounted how it was that the majority had persuaded itself that the executive detention of a stateless person indefinitely, and perhaps for life, cannot be regarded as punitive. Consequently the judiciary cannot intervene, through constitutional means, to alter that tragic situation.

In Mr Behrooz’s case, two further, counterintuitive propositions have been derived. The first is that no matter how intolerable or inhumane the conditions in detention may be, that detention remains immigration detention. Its character cannot be transformed, for example, by understanding it as deterrence, segregation or punishment. This would be the case even if, as Justice Kirby put it, a person were detained ‘in an offshore cage selected in the vain hope of avoiding accountability to the standards of Australian law’.

The second is the remarkable notion that immigration detention is separable and distinguishable from its conditions. It is this stunning, hair-splitting that has permitted the Court to arrive at the position that what matters, for the purpose of determining its power to intervene, is the designation given to a detention facility rather than what happens there. As long as the plate on the gate contains the weasel-words ‘immigration reception and processing centre’, as it did at Woomera, that is enough. No further inquiry need be entered into. No further judicial intervention is allowed.

In fairness, the Court did not consider that a detainee was without remedy for mistreatment. A detainee, it said, was perfectly at liberty to sue for assault, if beaten, or in negligence, if uncared for. But this assertion too lacks foundation in reality.

Imagine, for just one moment, what prospect a powerless, impoverished, bewildered and frightened detainee with little or no English, no knowledge of the legal system, held far from any major town and without any reasonable access to effective legal advice would have of launching a successful civil action against Australian authorities. Absent Julian Burnside QC, not much one would have thought.

The High Court’s preoccupation with legal ‘technique’, then, is taking us down strange and injurious alleys. Sophisticated technique, of course, is enormously important. But particularly where those most vulnerable are concerned, it needs to be complemented by what I call the ‘judicial imagination’. By this I do not mean judicial activism or adventurousness.

Instead, the judicial imagination is one which, at one end of the legal spectrum, is capable of situating Australian law in the current of international and comparative legal developments. At the other, it is an imagination that permits those who judge to see clearly and empathise with the plight of the disadvantaged and desperate who arrive at their doors as litigants.

This latter capacity brings us back finally to Mahmed Behrooz. For the information of readers and judges, I understand that Mr Behrooz has now been taken into the protective custody of the Public Advocate of South Australia. His mental state has deteriorated to such an extent that, in the view of this Office, he should no longer be held in immigration detention. He is prone to nervous collapse, at times he rambles incoherently, at other times he is mute. He is human wreckage. This is our shame.

* The escape is still alleged rather than proven as the matter remains before the Magistrates Court of South Australia.