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The High Court’s surrender to the Morrison-Dutton immigration detention regime

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For almost thirty years, there has been a tussle between the courts and government in Australia over immigration detention. Alas, the High Court called a truce on that tussle yesterday with a 4-3 decision that was unprincipled and harsh.

Main image: Exterior of the High Court of Australia (Getty Images/kokkai)

In the past, whenever the High Court has set limits on what immigration officials and the minister can do, government has gone back to Parliament introducing increasingly complex legislation aimed at overcoming the court decisions, while acknowledging our international obligations. While maintaining the sovereignty of our borders and the control of our migration program, we Australians have long prided ourselves on being a good international citizen. We have voluntarily signed up to all the key international human rights conventions including the Refugee Convention and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Both these conventions oblige us not to ‘refoule’ or send back people from our shores to places of danger where they would face persecution, torture, or inhuman treatment.

On Wednesday, the High Court by a narrow margin of 4 to 3 agreed that the measures introduced by Scott Morrison when he was minister for Immigration passed muster. The case related to a Syrian man known as AJL20 who came to Australia as a child. He came from Lebanon travelling on a Syrian passport. He had been issued with a visa and was resident in the Australian community for nine years. In 2014, the minister cancelled his visa on the grounds that he no longer satisfied the character test. Those on temporary visas can have their visas cancelled by the minister if he judges them not to be of good character, even if they are not serving a prison term. Six days later AJL20 was taken into immigration detention. After almost three years in immigration detention, an immigration official determined on 25 August 2017 that the young man was ‘a person in respect of whom Australia has protection obligations’. But the minister’s delegate and the minister refused to take any action. As far as they were concerned, the young man would remain in detention until such time that departmental officials were able to remove him from Australia.

In September 2020, a Federal Court judge ruled that the ongoing detention was unlawful and ordered the release of AJL20 into the community. It was this decision which the government appealed to the High Court. The young man is now to be returned to detention until a way is found to remove him from Australia. And he has been ordered to pay the Commonwealth’s costs of the proceedings.

Some historical background is needed to place this decision in context.

Back in 1992, the High Court heard a case brought by Cambodian boat people who had been held in detention for two and a half years by the Hawke-Keating Labor Governments. Parliament had made a law authorising temporary detention of boat people ‘only until the departure of the vessel(s) from Australia or ‘until such earlier time as an authorised officer directs'. The government burnt the boats and told the court that the temporary custody could then continue indefinitely because the boats would never be departing. The High Court pointed out that detention usually results from a court order. Detention ordered by the executive without the opportunity for court determination and supervision needs to be confined to legitimate purposes set down by the Constitution.

 

'The High Court, by the narrowest of margins, has now endorsed the Morrison-Dutton mantra that we will decide who comes to this country and that those we don’t want will be held in indeterminate detention without a court order for as long as it takes for them to have the decency to request return to war-torn countries like Syria.'

 

The court decided that the valid purposes for detention were ‘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’. Parliament could not authorise the executive to detain aliens involuntarily beyond the time needed to achieve these purposes because the detention would then be ‘penal or punitive in character [which] under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt’.

After this decision, the government set about introducing amendments to the Migration Act. After the first Gulf War in 1991, there had also been a recurring problem with a trickle of Palestinians who were arriving in Australia on boats, with no way of getting back to the Gaza Strip. Especially problematic were those Palestinians who had lived for years in Kuwait. Given Saddam Hussein’s support for the Palestinian cause, many of these people had to leave Kuwait and they were technically stateless. No nation on earth was obliged to take them and Israel was not willing to let them go to the Gaza Strip. Some of these Palestinians arrived in Australia without visas, without passports, without a recognised nationality and with nowhere to go. Once rejected as refugees, they then applied to the government to be removed from Australia. But there was no country willing to accept them. Were they to spend the rest of their lives in detention? Was there any realistic prospect that they would ever be released? These Palestinians were no longer awaiting the processing of their claims. They had no real prospect of being removed. Government had more than enough time to assess that they were not health or security risks to the Australian community. So why keep them locked up? One of these Palestinians, Mr Al Kateb, went to the High Court challenging the legality of his ongoing detention in 2004.

The Commonwealth Solicitor General submitted that the law required detention ‘until’ a visa was issued or ‘until’ they could be removed. He told the court:

'Now of course “until” can involve a long wait. It can involve something continuing forever. We are all familiar with the expression “until hell freezes over”. That is a use of the word “until” meaning, in effect, forever, because it refers to an event which will never occur.'

By a slender majority of four to three, the High Court bought the argument. The majority of judges were convinced that the Parliament had power to make a law mandating detention of unauthorised arrivals, without the need for a court order or periodic court review, not only to assist with the processing of claims and with the pending removal of persons but also to keep them segregated from the Australian community.

Days prior to his retirement from the High Court, Justice McHugh who had been one of the four judges in the majority had cause to lament publicly the outcome in the Al Kateb Case. He told law students:

'Al Kateb highlights that, without a Bill of Rights, the need for the informed and impassioned to agitate the Parliament for legislative reform is heightened. While the power of the judicial arm of government to keep a check on government action that contravenes human rights is limited, the need for those with a legal education, like yourselves, to inform the political debate on issues concerning the legal protection of individual rights is paramount.'

On 25 September 2014, Scott Morrison introduced to Parliament the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. The Migration Act already provided that ‘An officer must remove as soon as reasonably practicable an unlawful non-citizen’ once all prospect of the grant of a visa has been exhausted or once the person detained requests removal from Australia. Morrison’s bill contained a new provision (section 197C) which stated: ‘An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen … arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.’ The new law stated: ‘it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen’.

To appease any fragile consciences in the Parliament, the government explained at the time that all would be well. In the explanatory memorandum on the bill, members and senators were assured:

'This change is in response to a series of court decisions which have found that the Migration Act as a whole is designed to address Australia’s non-refoulement obligations, which has had the effect of limiting the availability of the removal powers. Asylum seekers will not be removed in breach of any non-refoulement obligations identified in any earlier processes. The government is not seeking to avoid these obligations and will not avoid these obligations, rather it seeks to be able to effect removals in a timely manner once the assessment of the applicant’s protection claims has been concluded.'

Mr Morrison left unanswered the question of what happens when both the minister and his delegate decide not to issue any visa releasing a person from immigration detention despite the fact that it would be unsafe to return a person to a place like Syria during civil war when the person has lived in Australia since he was a child. In the case decided this week by the High Court, the public servants charged with the Syrian’s removal as soon as possible were concerned that the Syrian was owed protection obligations. The four judges who constituted the majority in the case said: ‘It is evident that the executive found the prospect of the removal of the respondent to Syria in breach of Australia’s non-refoulement obligations unpalatable. In that regard, it is equally evident that, if the minister wished to avoid the realisation of that unpalatable prospect, a visa might be granted to the respondent’.

What’s shocking about this is that the court knew that the minister had decided not to grant the respondent a visa. The court was telling the bureaucrats to get on and perform their ‘unpalatable duty’, putting aside ‘irrelevant considerations’ like Australia’s non-refoulement obligations, removing the young Syrian from Australia to a place of danger. It’s as if the judges were simply telling public servants not to be too squeamish about doing their duty. Who’d have thought that during Refugee Week, Australia’s highest court would endorse the Parliament’s view that our non-refoulement obligations under the Refugee Convention and the Convention Against Torture were now an irrelevance. Parliamentarians who voted for the law could content themselves that the government told them that such hard cases could be resolved by the minister granting a visa. The judges who interpreted the new law contented themselves that all was well even though they were on notice that the minister had no intention whatever of granting AJL20 a visa.

Justice Edelman in dissent observed:

'It is, at best, misleading to describe any obligation … as a “duty” upon the Executive to detain AJL20 when the Executive could have released AJL20 by exercise of a general power to grant him a visa …. As Hohfeld cautioned a century ago, the generalised use of “chameleon-hued words” such as “duties” can constitute a “peril both to clear thought and to lucid expression”. But, whether or not it would debase the content of a “duty” to speak in terms shrouded in the mystical logic of an obligation of the Executive to do something that it is not obliged to do, it is most unlikely that Parliament intended that significant consequences would turn upon fine questions of abstract legal theory that depended upon a loose characterisation of [the statutory provision] as a “duty” rather than a power.'

The High Court, by the narrowest of margins, has now endorsed the Morrison-Dutton mantra that we will decide who comes to this country and that those we don’t want will be held in indeterminate detention without a court order for as long as it takes for them to have the decency to request return to war-torn countries like Syria. After a thirty-year tussle, the High Court has thrown in the towel.

 

 

Frank BrennanFr Frank Brennan SJ is the Rector of Newman College, Melbourne, the Distinguished Fellow of the P M Glynn Institute, Australian Catholic University, and the former CEO of Catholic Social Services Australia (CSSA). 

Main image: Exterior of the High Court of Australia (Getty Images/kokkai)

Topic tags: Frank Brennan, immigration detention, refugees, High Court, Refugee Week

 

 

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Existing comments

Nicely written, well researched... a little subjective but it'd be pretty bland facts otherwise. The most surprising part is the Morrison - Dutton "mantra" passed muster under high court scrutiny; irrespective of which side of the immigration debate one is inclined it's sobering that the border protections are water-tight and the ministers deserve credit where it's due for the achievement of their objective. Perhaps key to appreciation of the law and court decision is the precision of the syntax; in performing a duty the servant is morally or legally obliged whereas an obligation is choosing to bind one's self to a person socially, legally or morally. It is possible to have an obligation to a person but not be obliged to behave in a particular manner to them. I doubt our parliamentarians were sufficiently aware of the difference between obliged and obligation to understand that the words are not interchangeable and with a preamble of reassurance thus we have law. Nuthin' up my sleeve...presto!


ray | 24 June 2021  

A very good analysis of the High Court case and also a most unfortunate decision one can only hope that in the future the court takes a different approach


Terence Duff | 24 June 2021  

Not being a lawyer, Frank, I will not presume to go there in my ignorance. But in laymen's terms, what is it about powerful people in politics, the judiciary and public life, who go home to families, living in a degree of comfort and prosperity, who can't accept that our detention policy and visa system is inhumane, cruel, mentally disabling and abhorrent to decent human beings. If it is to save more lives lost at sea then forgive me my cynicism, as we see those incarcerated in quasi death conditions. Even decent conditions in detention would be an improvement.


Henri | 25 June 2021  

I was alerted to the difference between a system of law that is Civil and one that is Common. Because we follow the Common Law of England, our courts depend on previous judgements to justify their decisions. In the present climate, the judgements towards refugees and asylum seekers therefore depend on what has gone before. When you look at Australia's attitudes towards 'others' (no matter how deserving) in the past, it is clear why the courts have to make such harsh judgements. We need wise people to recharge these attitudes and policies so that the sins of the past can be ditched. Where are the mainstream churches in all this? Silent! So, why should we expect secular Australia to change anything?


Jennifer Raper | 25 June 2021  

A most distressing decision


Pamela | 26 June 2021  

The four judges in the majority knew they were making a very harsh decision. They consoled themselves by stating in the final paragraph of their judgment that the Minister could still go ahead and grant the Syrian a visa in accordance with what Mr Morrison put before the parliament by way of explanation when he introduced the legislation. Let’s just watch in the days ahead and see if the Minister acts in accordance with the consoling thought of their Honours. This is how they concluded their judgment: ‘It is evident that the Executive found the prospect of the removal of the respondent to Syria in breach of Australia's non-refoulement obligations unpalatable. In that regard, it is equally evident that, if the Minister wished to avoid the realisation of that unpalatable prospect, a visa might be granted to the respondent – precisely as the Explanatory Memorandum to the Bill that introduced s 197C contemplated: "Australia will continue to meet its non-refoulement obligations through other mechanisms and not through the removal powers in section 198 of the Migration Act. For example, Australia's non-refoulement obligations will be met through ... the Minister's personal powers in the Migration Act, including those under section ... 195A ... of the Migration Act."’ Their Honours put the last sentence of the quote in italics, adding ‘(emphasis added)’. Let’s see how the Morrison government responds to their Honours’ emphasis.


Frank Brennan SJ | 26 June 2021  

God Love You, Frank, for this commentary! It gives the lie to the lament, expressed above, about the Churches' silence, though one has to ask if a contingent of senior 400-500 Catholic, Anglican, Uniting, Jewish, Muslim, Buddhist and other religious leaders might not stay the hand of the executive on this question. I intend taking it up with my member of parliament and, with the assistance of Frank's article, will write to the High Court and the Prime Minister on this question. Either way, we owe a resounding vote of thanks to Professor Brennan for the calm and collected role that he has played on this and associated issues of jurisprudential justice for forty years. The matter being of such unprecedented importance, one has also to ask if there is occasion to appeal to an international court in this matter. How can someone seeking asylum and in AJL20's appalling circumstances be refouled to a nation whose national borders are contested to the point that from one year to another the matter of their jurisdiction remains perennially in doubt. Although without a legal background, I believe that there are Australian international lawyers, such as the esteemed Geoffrey Robertson, who may assist.


Michael Furtado | 27 June 2021  

AJL20's lawyers now report: 'Last week he was returned to indefintie detention after living quietly with his partner and kids.' So much for the last words in the majority judgment quoting with 'emphasis added' Scott Morrison's explanation to Parliament at the time the law was being passed: 'Australia's non-refoulement obligations will be met through ... the Minister's personal powers in the Migration Act, including those under section ... 195A ... of the Migration Act.' The renewed indefinite detention of AJL20 confirms my assessment that the majority judgment is unprincipled and harsh.


Frank Brennan SJ | 04 July 2021  

Frank, I had hoped that continued reader contributions to this topic could keep the thread alive, front and centre on ES, the case and decision deserves further scrutiny and should warrant a "sticky" in the forum. The immigration debate has long become victim to rhetorical argument toolkit of extension and fear-mongering of conflagration; "if we do it for one we have to do it for everyone" and the likely international translation: "if they did it once they'll do it for everyone". Commonly, any party line responses to visa and border protections issues will contain "stop the boats" and invariably the irrepressible "drownings at sea"; I can understand why politicians and protesters alike pounce on the zinger one-liner wrap-up, it's because the skills of the orator are limited to the media cycle snippet timing so they're inclined to compress statements to axiomatic grab-bags; anyone expecting more than a few seconds air time had better have the favor of the network. Rather than step back from the apodictic mantra when they should ministers can become trapped in having to perpetuate the broad brush approach. Now the Minister is painted into a tight corner, irrespective that neither AJL20 or the Murugappans arrived by boat and before the Bill, the minutiae of any favorable immigation decisions are not going to be clear in Indonesia.


ray | 04 July 2021  

Ray, I had wondered about Frank Brennan's absence of response to your post. Of course, in his defense Rectors of Newman bear the responsibility of location at the apex of Jesuit intellectual influence on the Australian polity. Not only that, because Brennan does so at the service of refugees, it makes anything he says worth 'sitting up and listening'. Since you pour scorn in another discussion on my research (which is publicly-accessible on the internet) but decline to reveal your surname, the disadvantage I have in replying to your posts seems to have been remedied by Justice Perram in his scathing judicial opinion of Judge Street in a recent review case up before the Federal Court: ‘It reflects a complete lack of intellectual engagement with the argument which was being put and is indicative of a judicial method in which meaningless phrases are unthinkingly gathered from the authorities like twigs and patched together in some kind of forensic bird’s nest. Judgments like this are a blot on the judicial department of government.’ I wish I had studied the law for, had I done so, I might have been able to offer this opinion in response to your posts on https://www.eurekastreet.com.au/article/the-murugappan-family-and-the-cynicism-of-refugee-politics


Michael Furtado | 13 July 2021  

The High Court decisions to which I refer in this article are: Chu Kheng Lim v Minister of Immigration (1992) 176 CLR 1 at http://www7.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1992/64.html Al Kateb v Godwin (2004) 219 CLR 562 at 584 at http://www7.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2004/37.html Commonwealth of Australia v AJL20 [2021] HCA 21 at http://www7.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2021/21.html


Frank Brennan SJ | 14 July 2021  

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