Bad laws, not lawyers, lead to injustice: a response to Stuart Rees

Aug 30, 2021

On 19 August, Pearls & Irritations published a piece by Stuart Rees titled “Biloela and Assange: compliance with governments, not justice”. While I generally agree with Stuart, there was a misconception at the heart of his piece.

It is true that we have, in Australia, something which is generally referred to as a “Justice System”.

Lawyers typically refer to “the Legal System”. That is more accurate because, in theory at least, the legal system is the mechanism by which justice is achieved.

The basic point made by Stuart Rees is that the decisions of our Courts frequently show little sign of Justice.  In his opening paragraph, he says:

“The Australian High Court has turned down four year old Tamil Sri Lanka Tharnicaa Murugappan’s appeal for a visa and the chance of returning to her previous home in  Biloela, Queensland. In the Judges’ deliberations, the uncertainties and cruelties experienced by this child and her family apparently counted for nothing.”

Later, in relation to the High Court decision in AJL20, he says:

“This dismaying High Court decision emerges in the same political culture affecting deliberations about the Tamil, Biloela family. In that culture, deceit born of a desire to punish has not affected any concern with justice. Although Tharnicaa and her sister Kopika were born in Australia, they have been registered as born in Sri Lanka, a bureaucratic manipulation to make it easier to deport them.

I agree with Stuart’s dismay at the court decisions in relation to Tharnicaa and AJL20.  There are many court decisions I am not happy with.  But it is a very different matter to suggest that our Judges are not interested in Justice.

Personally, I have never encountered a Judge in our system who let ideological views colour their judgment.  To the contrary, all the judges I know of are diligent and careful, and do their job to the best of their ability, without any preconceived views.  To the contrary, all the judgments I have read (and I’ve read thousands) are the result of careful legal analysis.  Since the 17th century, in England, the role of Judges has been to interpret, and apply, the law.

There are many theories of Justice, but the one embraced in the Anglo-Australian-American system is that justice requires a fair process and an independent decision-maker. In Australia we are lucky: our Judges are skilled and conscientious; they are independent of the government which appoints them, and which pays their salary.  The same cannot be said in some jurisdictions outside Australia.

Since the early 18th century, in England (and, subsequently, in Australia) the ultimate power to make laws lies with the Parliament. If the Parliament makes laws which operate unjustly, then the only relevant questions for a Judge to deal with are:

  1. Is the law Constitutionally valid?
  2. Does the law apply in the circumstances of the case?
  3. If Yes to questions 1 & 2, how does the law operate in the particular case?

If the result of those questions is perceived as contrary to Justice, the fault (in our system) is not the fault of the Judges, it is the fault of the parliamentarians who made the law.

The area which arouses Stuart Rees’ concern is the Migration Act.  I share his concern.

There are at least three aspects of the Migration Act which give rise to injustice:

  1. Mandatory detention;
  2. The Minister’s discretion to allow (or refuse) to grant permission to apply for asylum;
  3. The Minister’s discretion to revoke a visa in certain circumstances.

Most injustice in Australia is the result of bad laws, implemented by dishonest, unscrupulous, parliamentarians.

It is not widely noted that the trial judgment in the Tampa case was handed down in Melbourne at 2.15pm on 11 September 2001, just hours before the 9/11 attacks on America.  At the time, John Howard was PM and Philip Ruddock was immigration Minister.

It was a later PM, Scott Morrison, who, as Immigration Minister under Tony Abbott, spoke of the refugee issue as one of “Border Protection”.

So, after the Tampa episode, people seeking to exercise their right to seek asylum (under Article 14 of UDHR) were disparaged as “illegal” and were locked up ostensibly to “protect our borders”.

Mandatory detention was introduced in 1992 by the Keating (Labor) government.  The relevant parts of the Migration Act, as it presently reads, are as follows:

Section 189 – Detention of unlawful non-citizens

(1)       If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

Section 196 – Duration of detention

(1)       An unlawful non-citizen detained under section 189 must be kept in immigration detention until:

(a)        he or she is removed from Australia under section 198 or 199; or

(aa)      an officer begins to deal with the non-citizen under subsection 198AD(3); or

(b)        he or she is deported under section 200; or

(c)        he or she is granted a visa.

(2)       To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.

(3)       To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa. …

There are, in fact, 2 streams of people who come here from other countries and seek asylum.  First, the aeroplane-people, who are able to come here on a visa (for tourism or business or study etc.). Typically, they come from countries which are not notorious for generating refugees.  They can come here by plane, which is much cheaper, safer and more comfortable than using a people-smuggler.  Once they arrive, they can clear passport control easily, as they have a visa.  Then they can apply for a protection visa, but they are allowed to live in the community.  Their asylum claims are accepted in 30-40% of cases.

The other stream is the boat-people, who can’t get a visa to come to Australia, so they can’t come here by plane: they use a people-smuggler to come here by boat.  We lock them up or (since mid-2013) we force them offshore, to Nauru or to Manus Island (part of Papua New Guinea).  Until forced offshore processing became part of our law in mid-2013.  Their asylum claims are accepted in more than 90% of cases.

So: we are untroubled by people who are probably not refugees, but we lock up and vilify the ones who probably are.

And it does not stop there.

Akram Al Masri came to Australia seek protection.  In 2002 the Federal Court ruled that the then immigration minister did not have the power to detain Mr Al Masri before his deportation from Australia. On appeal to the Full Federal Court, it was held that if he was not given a protection visa, and was not removed from Australia, he could be locked up for the rest of his life.  As it happens, he was refused a protection visa and was removed from Australia and sent back to Palestine.  He was killed in the Gaza strip.

Ahmed al-Kateb was a stateless Palestinian.  He came to Australia in 2000 as a boat-person.  The Migration Act, section 196, provides, in effect, that a person who is an ‘unlawful non-citizen’ (ie a non-citizen without a visa) must be kept in immigration detention until the person is removed from Australia, or deported, or granted a visa.

Al-Kateb was in detention for 3 years, but he was refused a visa and was not able to go to any other country at all, because he is stateless. For the duration of his legal challenge, al-Kateb was allowed to live in the community, with no work rights and no access to Medicare.  By a majority of 4:3, the High Court held that the purpose of Mr Al-Kateb’s detention was administrative and, so understood, was not punitive.  Accordingly section 196 was constitutionally valid, and they held, in substance, that al-Kateb could remain in detention for the rest of his life, if necessary.  The result, in my view, was unjust, but the injustice was the work of the politicians, not the Courts.  The Minister for Immigration at the time could have released al-Kateb into the community.

Mandatory detention can be in a detention centre, or in the community: it’s a matter for the Minister.

The existence of Ministerial discretion is a matter of particular concern, as Stuart Rees notes:

“In the mostly invisible deliberations about a visa for Tharnicaa, the little girl is fighting a law that states she cannot even apply for a visa unless the Minister exercises his discretion to allow it. Legal casuistry beyond belief and difficult to comprehend.”

Bad laws may have the sharpest edges taken off them by the Minister’s discretion.  The Minister for Immigration has a very wide discretion in most matters, and certainly has the power to produce a just result, where strict application of the Act would produce an unjust result.  But the Minister will not use that discretion if he or she is one of the many parliamentarians who, in the Australian system, are dishonest idealogues devoted to pursuit of their personal or religious goals, despite the injustice.

It is interesting to see the behaviour of Morrison and his current Immigration Minister, Alex Hawke. Both are, or claim to be, Christians.  Christian teaching has taken a battering over the past 2000 years, but deliberate cruelty was never part of it.  Nor was dishonesty.

So it is interesting to see Morrison and Hawke engaged in both cruelty and dishonesty in relation to refugees.

Calling asylum seekers “illegal” is dishonest. Yet, the most recent voyage into that dishonesty was recent: on 15 June 2021 Alex Hawke issued a Press Release concerning Thaarnicaa’s family.  In its final paragraph it said:

“The Government’s position on border protection has not changed. Anyone who arrives in Australia illegally by boat will not be resettled permanently. Anyone who is found not to be owed protection will be expected to leave Australia.” (emphasis added)

There is nothing at all in our Migration Act, or elsewhere in our legislation, which makes it an offence to come to Australia (as a boat person, or otherwise, to seek asylum.   After compulsory offshore processing became part of our law, a man arrived in Australia seeking protection from persecution.  He was sent to Manus.  The PNG authorities fairly soon accepted his asylum claim and recognised that he was a refugee.  After about six years in detention on Manus, he developed a cardiac problem, which the PNG system was unable to treat.  Under the now-repealed medevac legislation, Australia brought him here for treatment.  He was put in detention, until about a year later, when he was sent to America under our refugee-swap agreement.  He had spent about 7 years in detention, and never received the cardiac help he was brought to Australia for.

Our immigration detention centres are filled with people, described by our unscrupulous politicians as “illegal”, who have never been charged or tried as a consequence of their mode of arrival in Australia.

The conditions in immigration detention are so harsh, they can fairly be described as cruel.  Many Australians have been “locked down” during parts of the past 18 months, because of the Coronavirus pandemic.  At the time of writing this, Victorians have been in lockdown for a total of 200 days.  That doesn’t stop us from going out for exercise, or going to the shops for necessities.  Imagine then how it would feel to be held in detention for years on end, without having committed any offence and without the right to go out for exercise, or go to the shops for necessities.

Consider the circumstances of this man: Amin arrived in Australia in March 2001with his daughter.  They were held in Curtin, then in Baxter.

On the 14th of July 2003, 3 ACM guards entered Amin’s room and ordered him to strip.  He refused, because, apart from it being deeply humiliating for a Muslim man to be naked in front of others, his daughter (who was then 7) was in the room.  When he refused to strip, the guards beat him up, handcuffed him, and took him to the “Management Unit”.

The Management Unit is a series of solitary confinement cells.

Officially, solitary confinement is not used in Australia’s detention system.  Officially, recalcitrant detainees are placed in the Management Unit.  The truth is that the Management Unit at Baxter is solitary confinement bordering on total sensory deprivation.  I have viewed a video tape of one of the Management Unit cells.  It shows a cell about 3 ½  metres square, with a mattress on the floor.  There is no other furniture; the walls are bare.  A doorway, with no door, leads into a tiny bathroom.  The cell has no view outside; it is never dark.  The occupant has nothing to read, no writing materials, no TV or radio; no company yet no privacy because a video camera observes and records everything, 24 hours a day.  The detainee is kept in the cell 23 ½ hours a day.  For half an hour a day he was allowed a visit, or he could go into a small exercise area where he could see the sky.

No court had found him guilty of any offence; no court had ordered that he be held this way.  The government insists that no Court has power to interfere in the manner of detention.   Of course, the Minister could, but the Minister’s discretion is not subject to Court control.

There he stayed from 14 July until 23 July: each 24 hours relieved only by a half-hour visit from his daughter.  But on 23 July she did not come.  The manager of Baxter explained to him that she had been taken shopping in Port Augusta; that she would visit him next day.

But the next day, 24 July, his daughter did not arrive for her visit: the manager explained to him that his daughter was back in Tehran.  She had been removed from Australia under cover of a lie, without giving Amin the chance to say goodbye to her.

Amin remained in detention for another 8 weeks.  It took 3 applications in court to get him released.  The government did not contradict the facts or try to explain why they had removed his daughter from the country: they argued simply that the court had no power to dictate how a person would be treated in detention.

The judge found otherwise and ordered that Amin be removed from solitary confinement and be moved to a different detention centre.

The government appealed.

This is our taxes at work: tormenting innocent people, in ways that offend every decent instinct – and for what?  To deter people smugglers.  The HREOC report into Children in Detention concluded that the treatment of children in Australia’s detention centres was “cruel, inhumane and degrading”, and that it constituted systematic child abuse.  The Minister did not seek to deny the facts or the findings: instead, she said simply that it was “necessary”, that the alternative would “send a green light to people smugglers”.

So, that’s what our dishonest, unscrupulous politicians do.

It’s not that, in our courts, “the uncertainties … count for nothing. “  Rather, the Judges simply apply the law.

The people should be criticised are our politicians who pass, and implement, bad laws without considering the real human effect of what they do.

The behaviour of people like Morrison and Hawke makes their claims to be Christian look utterly false.

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