Senator Andrew Bartlett
Tuesday, August 17, 2004
 
Political Process
I'm currently trying to think of ways to break through some of the limitations of our political process. Last Friday's High Court decision on mandatory detention seems to me to be a major watershed; something that provides a massive leap in Government power in that most basic of areas - the ability to deny someone their freedom.

I think most people presume that it is the job of Courts, not Government politicians, to decide whether or not people should be locked up and for how long. However, it is now beyond dispute that a Government can do this, as long as they can get a law passed that determines that the imprisonment is "administrative". They've already got such a law in the Migration Act, and there's no even greater temptation for them to try to get such powers in other laws, with the so-called anti-terrorism laws being the obvious area.

I don't think the ramifications of this are being appreciated. I guess people just think it's only one more decision in the seemingly endless fight between the Government and advocates in trying to get people out of long-term immigration detention.

Someone emailed me, taking me to task when they read my comment that our legislation allows the government to lock up people for the rest of their lives, people who have committed no crime, who have merely come to Australia seeking protection.

This person believed that those who are presently in detention are those who have come to our country seeking asylum, through means other than the correct channels…thus they are circumventing the processes of our laws. The Howard Government has put a lot of effort in over the years trying to make people believe it is a crime to arrive in Australia seeking asylum, so it's not surprise that people think this lie is true. I wrote out a response - hopefully a non-legalistic and non-judgemental one. It seems a reasonably summary of the situation, so I thought I might adapt it for here.

Some of the people who are in immigration detention did arrive here with a valid visa. Some people seek asylum (I.e. apply for a Protection Visa) at some stage after they have arrived in Australia. Others may have arrived with a valid visa which has subsequently expired or been cancelled and may not have sought asylum at any stage. This was not the case with Friday's High Court rulings, but the judgement affects everyone who is immigration detention, whatever their background.

Arriving in Australia without a valid visa and seeking asylum is not a crime. It is explicitly permitted under our Migration Act and of course many people have done so successfully and been released into the community. If it were illegal to do this, there would some form of charge and penalty for doing so - there is not. That is why immigration detention is called administrative detention. It is not a form of punishment, because if it was it would be a breach of our Constitution. Only the Courts can administer punishment for breaches of the law (this has been established by previous High Court rulings dealing with immigration detention).

There are of course other channels which people can use to apply for asylum to Australia from offshore. The practicality and reality is that this avenue is not available to many people because of their circumstances (such as no Embassy or relevant United Nations office in their country or region). Another important factor is that this process of seeking asylum does not operate in a manner equivalent to other visa applications to Australia. There is no queue or overt criteria (beyond meeting the criteria of refugee) which determines who is accepted or when. In any case, the main point is that it is not a breach of our law to seek asylum in Australia, regardless of whether you arrived here with a visa or not.

Even if arriving in Australia without a visa to seek asylum were a breach of the law, I think a potential life sentence, with only a Government Minister, rather than a Court, having the power to release you regardless of the circumstances, is completely unacceptable. Yet that is the effect of the High Court ruling!

The major case considered in the Court's judgement involved a person who is stateless (this fact is not disputed by anybody as far as I am aware). He applied for asylum in Australia but was rejected. However there is no country that will accept him. This has specifically been tested - the person has signed documents saying he is willing to be deported to any other country that will accept him. He signed such documents in August 2002. Despite his willingness to leave, the Australian Government (which is no slouch at deporting people) has been unable to find any country willing to receive him. What the Court's ruling quite literally means is that this person can be detained for the rest of their life if we are unable to find another country who will receive him and this can now occur without recourse to any court or judicial process.

I find it hard to believe that many Australians would accept potential life imprisonment of any person without any form of charge or trial, solely at the discretion of a Government Minister, regardless of what they may have allegedly done. Whilst this High Court decision is undoubtedly particularly bad for the person concerned, my bigger worry is that the High Court has now confirmed that there is apparently no underlying protection in our Constitution or international treaties we have adopted that can prevent a Government from imprisoning someone indefinitely without charge if they can get a law passed which characterises that imprisonment as "administrative". The Migration Act has already been found to be such a law. Some of the new anti-terrorism laws give such powers, but only for a defined time. However, the risk is now there that those sorts of laws could also be expanded in future to remove such time limits and leave such detention up to the discretion of a politician, such as now applies under the Migration Act. Still, at present, people suspected of terrorism have far greater protection against arbitrary imprisonment than stateless people who seek protection from persecution (or indeed even just a country that will allow them to live in it).

Time for a Bill of Rights in Australia. The politically driven obsession with attacking people who arrive here in boats has led our country to a stage where a basic, centuries old right - protection against arbitrary imprisonment without charge or trial - is now gone. Our Constitution does not protect us against this fate, neither can the Courts. Only the Parliament (that is, the Senate) can stop it being further eroded and only the Parliament can reverse the situation.

posted by Andrew Bartlett @ Tuesday, August 17, 2004 Permalink
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