The Politics Of Indefinite Detention In Australia

The High Court of Australia is not known for its zealotry
in protecting human rights, and certainly not when
considering the persuasive pull of international law and
conventions. The Australian Parliament is usually given a
generous hand in making policies that tend to outrage such
conventions, a freedom made that much easier by an absence
of any bill of rights.

A grim example of this was the
2004 High Court decision of Al-Kateb
v Godwin, which gave the Commonwealth full assurance
that policies on indefinitely detaining unwanted, designated
“unlawful” arrivals were entirely within its power. The
case concerned the application of various provisions of the
Migration Act 1958 (Cth) requiring an officer of the
Commonwealth to detain those reasonably suspected to be
unlawful citizens in the migration zone and held in
immigration detention till their deportation or grant of a
visa.

In such provisions, a pincer movement against
such “unlawful citizens” had been enshrined with
stunning cynicism. Once detained and having their status
determined, such individuals might be found to be refugees.
Accordingly, they might receive a visa, though not if they
were those undesirables marooned in the offshore
concentration camps of Nauru and Manus Island. Since 2013,
Australian governments have proclaimed that those
undocumented souls seeking refuge in Australia by boat would
never be given the chance to settle in the country. Even in
the event of being deemed refugees, they might still be
refused a visa on character grounds or face the prospect of
deportation to a third country, the latter being something
of a favourite of Australian policy makers for two decades.
(A gaggle of European states have also been impressed by
this formula.)

What, then, of stateless citizens found
to be refugees and without fault? Or those who would not be
accepted by a third country? Or those who, having been
convicted of an offence and served time for it, could be
placed in a vicious limbo of de facto carceral
administration for the rest of their natural lives,
undesired by any country, and not allowed out in the
Australian community for failing to meet visa requirements
and deemed a threat to society?

To answer these
questions, the facts of Al-Kateb are worth recounting. Ahmed
Ali Al-Kateb was a stateless Palestinian born in Kuwait in
1976, having sought sanctuary in Australia in December 2000
without a passport or visa. He was duly detained under the
Migration Act. Efforts to gain a protection visa
proved futile. The Refugee Review Tribunal and the Federal
Court agreed with the decision makers. With Australia having
ceased to be an option, Al-Kateb informed the Department of
Immigration and Multicultural Affairs that he wished to be
transferred to Kuwait or Gaza. Those efforts also came to
naught.

Al-Kateb’s cupboard of legal options started
looking increasingly threadbare. With little else possible,
he resorted to that immemorial principle of Britannic common
law that he be released on habeas corpus grounds.
After all, the Australian authorities surely had no reason
to continue detaining him. He had committed no crime, and
there was “no real likelihood or prospect” of
Al-Kateb’s removal outside the country in the reasonably
foreseeable future, a point acknowledged by the Federal
Court.

In a granite hard decision, the High Court
rejected the claim. For one thing, the discretion was
mandatory under the legislation, not discretionary.
Nor was the exercise of such a detention power punitive,
thereby violating the separation of powers. In Chief Justice
Gleeson’s words: “A person in the position of the
appellant might be young or old, dangerous or harmless,
likely or unlikely to abscond, recently in detention or
someone who had been there for years, healthy or unhealthy,
badly affected by incarceration or relatively unaffected.
The considerations that might bear upon the reasonableness
of a discretionary decision to detain such a person do not
operate.”

Justice McHugh also reiterated the view
that the Migration Act required “the indefinite
detention of Mr Al-Kateb, notwithstanding that it is
unlikely that any country in the foreseeable future will
give him entry to that country. The words of the three
sections [189, 196, 198] are too clear to read them as being
subject to a purposive limitation or an intention not to
affect fundamental rights.” With Australia lacking any
express constitutional protection of habeas corpus,
Al-Kateb was doomed.

Efforts to challenge this ghastly
precedent over the years faltered. In the meantime, periods
of lengthy immigration detention ballooned. Currently, the
average period of time individuals held
in immigration detention by Australian authorities is
708 days. In May 2022, the detention period reached a
dubious peak of 736 days, with 138 having spent time in
detention for over five years.

All this has changed.
On November 8, the High Court handed down a stunning
decision in NZYQ v Minister for Immigration, Citizenship
and Multicultural Affairs & Anor, thereby archiving
Al-Kateb as a dark, judicial episode.

NZYQ was
a stateless Rohingya applicant who had fled Myanmar and
journeyed to Australia by boat in September 2012. He
received a bridging visa in September 2014. In January 2015,
he was arrested and charged with a child sexual offence, his
visa cancelled, and prison term imposed. Despite receiving
parole in May 2018, he was immediately thrown into
immigration detention. As a person regarded as stateless by
Myanmar and facing a genuine risk of persecution on his
return, NZYQ also faced the prospect of perennial detention
for not having a visa. On character grounds, Australian
authorities could continue to refuse granting it. It also
seems that no third country option arose as a serious
possibility, though this will only be known with certainty
once the judgment is published.

Much to the surprise
of those present, NZYQ’s legal team received the news
after two days of oral argument that it was unconstitutional
to detain a person where there was no real prospect of being
removed from Australia. As a consequence, the court held
that provisions under the Migration Act obliging the
authorities to detain “unlawful non-citizens” for such
inordinate periods should be read as beyond the immigration
power of the Commonwealth. NZYQ’s administrative
detention, being deemed unlawful, necessitated his
release.

The decision immediately affects 92 people in
immigration detention. But as the Australian Human Rights
Commission reminds
us, the perverse cruelties of Australia’s detention
system has, over the last two decades, affected “the lives
of tens of thousands of people, most of whom came to this
country seeking protection as refugees.”

Panicked,
the Albanese government has tried dousing the fires of
concern, though some of these have been lit by a few
parliamentarians prone to pyromania. Public safety, it has
been suggested, might be compromised by these reprobates
newly found with their freedom in the Australian community.
Instead of acknowledging the human rights dimension of the
case, the Home Secretary Claire O’Neil came close
to slighting the High Court. “If I had any legal power
to do it, I would keep every one of those people in
detention.” This was irrespective of the fact that they
had served time for any offences they had committed.

A
government spokesperson was also quick to point
out in the immediate aftermath of the High Court decision
that, “Individuals released into the community from
immigration detention may be subject to certain visa
conditions.” But instead of waiting for the decision’s
full publication, the government has cobbled a mash of
legislative measures in a paroxysm of populism.

On
November 16, Immigration Minister Andrew Giles introduced
laws applicable to 83 released detainees, among them
three murderers and a number of unspecified sex offenders.
“The Australian community reasonably expects that all
non-citizens in Australia will obey Australian laws.” Some
would, for instance, be electronically tagged. Curfews could
also be imposed. Attached visa conditions could also include
notification requirements for changes of address, any
illegal activities or change of address. “These
measures,” Giles stated,
“are consistent with the legitimate objective of community
safety and the rights and interests of the public.” How
these objectives square with such savage punishments as
five-year prison terms in violation is hard to
see.

The opposition leader, Peter Dutton, was left
unsatisfied by the proposals. As a proud, demagogic hater of
civil liberties, he feels that prolonged punishment is the
preferred formula. How this will be done constitutionally is
not something that bothers his minute, vengeful imagination.
But he proved enough of a fantasist to link the release of
the detainees to the threat of rising antisemitism in
Australia, a cavalier effort verging on the
imbecilic.

In responding
to Dutton’s conflating resolution, Prime Minister Albanese
thundered that linking “antisemitism with the decision of
the high court, is beyond contempt.” But the entire
chapter had been beyond contempt. Instead of respecting the
central tenets of a fair judicial system, the major parties
have heaped scorn upon it. It affirms the penological
fixation Australian politicians continue to suffer from when
considering the plight of refugees and asylum seekers who
dare arrive via unconventional channels. They are the
pseudo-criminals who pay people traffickers, the indecent
queue jumpers, the unprincipled, cashed up
opportunists.

Given that Australia already has a
suppressive regime of post-release control measures that
effectively mock and caricature sentences served by
prolonging state surveillance and control of society’s
“most dangerous”, another set of legal measures seeking
to achieve precisely the same purpose serves to deaden
liberty that bit more.

Dr. Binoy Kampmark was a
Commonwealth Scholar at Selwyn College, Cambridge. He
currently lectures at RMIT University. Email:

bkampmark@gmail.com

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