A majority of the High Court held that the Commonwealth Parliament could legislate for the indefinite detention of asylum seekers and that the Government could use that legislation to lock up indefinitely without trial or charge an alien who had not been granted a visa and could not be deported because no country would have them.
Several people are in that situation now. They have agreed to leave and want to leave, provided some country can be found to take them. None will, so the Government’s proposition is that the law allows them to be locked up indefinitely.
Four judges said present law did exactly that and the Constitution would not prevent it. Two other judges said there was some ambiguity with the present law, but if new unambiguous laws were enacted the Constitution would not prevent indefinite detention.
Only one judge, Justice Michael Kirby, said the Constitution would prevent indefinite detention without charge or trial.
Forget for the moment that the people being dealt with are refugees. Surely, it should be unacceptable to the Australian community that the Government could lawfully hold anyone in detention for the rest of their lives without charge or trial.
When the case was heard before the High Court I could hardly believe that the Commonwealth Solicitor-General was putting such a proposition to the court. That a majority of the court has now accepted it is terrible.
It runs against everything the law and lawyers should stand for.
The case got some media coverage, but nowhere near the prominence it should have. The Greens and Democrats made vehement statements, but Labor was silent.
Let’s not blame the High Court judges. They called the law as they saw it.
Justice Michael McHugh said, “Under the aliens power [in the Constitution], the Parliament is entitled to protect the nation against unwanted entrants by detaining them in custody. As long as the detention is for the purpose of deportation or preventing aliens from entering Australia or the Australian community, the justice or wisdom of the course taken by the Parliament is not examinable in this or any other domestic court. It is not for courts, exercising federal jurisdiction, to determine whether the course taken by Parliament is unjust or contrary to basic human rights. The function of the courts in this context is simply to determine whether the law of the Parliament is within the powers conferred on it by the Constitution.”
It reveals a clear case for a Bill of Rights in our Constitution.
Those who argue that Australia’s history of liberty and the rule of law are a better safeguard of basic human rights are now plainly wrong. Here we have the High Court saying that the present Constitution allows laws which are unjust and contrary to basic human rights. In short, it is a defective Constitution which allows Parliament to make laws for indefinite detention without charge or trial.
The price of liberty is eternal vigilance. But not just vigilance from outside, from terrorists and others — but also from within. Liberty gets eroded in small steps. It is not only immoral for the bulk of Australian citizens to ignore the plight of the asylum seekers facing indefinite detention, it is stupid. You never know whose liberty is at threat next. The Government’s anti-terrorism proposals are a good example.
In the 1950s Australians rejected the hysteria whipped up by the Menzies Government under the guise of meeting the communist menace. As it happened then, the High Court held that Menzies’ anti-communist laws were contrary to the Constitution. Not so this time.
Only Kirby in a majority of one argued to the contrary.
He said, “Indefinite detention at the will of the Executive, and according to its opinions, actions and judgments, is alien to Australia’s constitutional arrangements.”
He said the immigration power (like all legislative powers) was subject to the rest of the Constitution, notably the judicial power. He said that mandatory detention of asylum seekers “can turn into punishment in a comparatively short time. And punishment, under the Constitution, is the responsibility of the judiciary; not of the other branches of government.”
But the other six disagreed and we have to accept that that is the constitutional position. Our Constitution is defective in protecting basic liberties. We can no longer assume them. The Constitution is broke. It is now up to the people. The Constitution can only be fixed with a Bill of Rights. A Bill of Rights is not to be feared. Rather we should fear its absence.