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Melboune Launch of Tampering with Asylum

Fr Frank Brennan SJ AO
In company with Prof Robert Manne

Readers Feast, Melbourne

19 November 2003

Launch of Tampering with Asylum, University of Queensland Press, ISBN 0702234168

In 1992, the High Court had cause to consider the lawfulness of detention of those who arrived by boat in Australia without a visa. In Chu Kheng Lim And Others v The Minister For Immigration, Local Government And Ethnic Affairs And Another, Justices Brennan, Deane and Dawson observed:

[T]he legislative power conferred by s.51(xix) of the Constitution encompasses the conferral upon the Executive of authority to detain (or to direct the detention of) an alien in custody for the purposes of expulsion or deportation. Such authority to detain an alien in custody, when conferred upon the Executive in the context and for the purposes of an executive power of deportation or expulsion, constitutes an incident of that executive power. By analogy, authority to detain an alien in custody, when conferred in the context and for the purposes of executive powers to receive, investigate and determine an application by that alien for an entry permit and (after determination) to admit or deport, constitutes an incident of those executive powers. Such limited authority to detain an alien in custody can be conferred on the Executive without infringement of Ch.III's exclusive vesting of the judicial power of the Commonwealth in the courts which it designates. The reason why that is so is that, to that limited extent, authority to detain in custody is neither punitive in nature nor part of the judicial power of the Commonwealth. When conferred upon the Executive, it takes its character from the executive powers to exclude, admit and deport of which it is an incident.

In the light of what has been said above, the two sections will be valid laws if the detention which they require and authorize is 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. On the other hand, if the detention which those sections require and authorize is not so limited, the authority which they purportedly confer upon the Executive cannot properly be seen as an incident of the executive powers to exclude, admit and deport an alien. In that event, they will be of a punitive nature and contravene Ch.III's insistence that the judicial power of the Commonwealth be vested exclusively in the courts which it designates.

Chief Justice Mason agreed: " I also agree that authority to detain an alien in custody, when conferred in the context and for the purposes of executive powers to receive, investigate and determine an application by that alien for an entry permit and (after determination) to admit or deport, constitutes an incident of those executive powers and that such limited authority to detain an alien in custody can be conferred upon the Executive without contravening the investment of the judicial power of the Commonwealth in Ch.III courts."

Justice McHugh the only judge who decided the case 11 years ago and still sitting on the High Court bench said:

If a law authorising the detention of an alien went beyond what was reasonably necessary to effect the deportation of that person, the law might be invalid because it infringed the provisions of Ch.III of the Constitution. Similarly, if a law, authorising the detention of an alien while that person's application for entry was being considered, went beyond what was necessary to effect that purpose, it might be invalid because it infringed Ch.III.

McHugh insisted that the detention imposed not be punitive.

It is these observations of the High Court which explain the tenor of the Mr Ruddock's oft repeated and careful remarks:

Detention is not punitive nor meant as a deterrent. But it is essential that unauthorised arrivals are not allowed to enter the community until we are able to establish their identity and that they do not constitute a security and health risk.

Detention ensures that they are available for processing any claims to remain in Australia and that importantly they are available for quick removal should they have no right to remain.

The situation for people who overstay their visa is fundamentally different. We know who they are and have already assessed that they do not constitute a danger to the Australian community.

Ruddock once wrote to the Medical Journal of Australia: "Detention is not arbitrary. It is humane and is not designed to be punitive." These Ruddockian comments about deterrence and the non-punitive intent of the detention are related to the constitutional doubts about the validity of legislation authorising administrative detention of persons without access to the courts (now confirmed by the privative clause) when their detention is neither relevant nor incidental to the processing of their claims and when the detention is neither relevant nor incidental to their removal or deportation in the foreseeable future.

Caution has now been thrown to the wind. On 14 November 2003, Prime Minister Howard told ABC Radio: "The point of our policy is to deter people from arriving here illegally. That’s the starting point. That’s what people have got to understand. Our policy is to say to the world – we will take 12,000 humanitarian refugees a year, we’ll have that policy, we’ll run a non-discriminatory immigration policy, but we will not have people arriving here illegally and we will act to deter that occurring." While the borderline of truth is being regulated, perhaps our leaders could explain why we continue to detain unauthorised arrivals, including children, once we know they are not a health or security risk and once we know they are no more likely to abscond than other asylum seekers living in the community.

Has the Prime Minister now given us the true explanation? We have a panoply of measures in place, including the long term detention of children, hoping to deter others from coming here to seek asylum. Mr Ruddock knew there was only one problem with this simple prime ministerial explanation. The High Court has said detention for such a purpose is unconstitutional unless authorised and supervised by a court. So what is the position now? Is the Prime Minister confident that his newly constituted High Court will be more compliant to the Executive detaining people including children without a coherent rationale and without court order or supervision? Or is the management of the policy's marketing suffering the absence of Mr Ruddock's careful linguistic stewardship with the result that the regime of universal, mandatory detention might now be exposed, at least at the edges, to be unconstitutional? Or does the currying of electoral favour justify a closer sailing to the limits of constitutional power?

90% of the last wave of boat people were proved to be refugees and therefore not in need of removal. Those in detention are six times more likely to succeed in an appeal to the Refugee Review Tribunal. So it is hard to argue that detention helps with processing. Though we remove more than 10,000 people from Australia every year, on average only 222 of them are boat people. The search for a coherent rationale for universal mandatory detention of unauthorised arrivals including children is ongoing. So is the traumatic effect on the detainees.

Truth and consistency of policy are elusive with our developing policy of tampering with asylum. When the second boat to reach Australia in two years was being towed out on to the high seas two weeks ago, lawyers sought the intervention of the Supreme Court of the Northern Territory to ensure that the 14 Turkish Kurds could pursue their asylum claims if they had any, which of course was highly likely.

The Commonwealth saw fit to inform the court by affidavit: "On 6 November 2003 the AFP/DIMIA team boarded the vessel and conducted interviews with the crew and passengers to elicit intelligence information regarding possible people smuggling." Why did the Commonwealth not see fit to inform the court of the interviews conducted or about the information received about possible asylum claims? Or were no such interviews conducted? Presumably the Commonwealth Solicitor General received the same deceitful advice from public servants as did the ministers, namely "The passengers of the Minasa Bone did not claim asylum in Australia". The only additional problem was that court was to be kept in the dark by the model litigant, the Commonwealth. Would the Solicitor-General's presentation of the case been any different if he had been properly informed that the passengers on the Minasa Bone did claim asylum in Australia? Did the Commonwealth see itself as having primary responsibility for addressing the protection needs of these intercepted persons?

Just last month, Australia completed its participation in the UNHCR's annual EXCOM endorsing the "Conclusion on Protection Safeguards in Interception Measures". That conclusion sets down two relevant considerations "to ensure the adequate treatment of asylum seekers and refugees amongst those intercepted":

  • The State within whose sovereign territory, or territorial waters, interception takes place has the primary responsibility for addressing any protection needs of intercepted persons
  • Interception measures should take into account the fundamental difference, under international law, between those who seek and are in need of international protection, and those who can resort to the protection of their country of nationality or of another country.

John Howard formally abandoned this approach as "the old policy" backed by the Labor Party. He told ABC Radio on 14 November 2003:

(Labor's) position is let them in onto the Australian migration zone and make a determination. That is the old policy. That is not a deterrent. If we’d have done that in relation to this group of people, it would have sent a signal to the rest of the world that others could do the same. And that’s why the policy of excising the islands is so important, and that is why I’m amazed that the Labor Party continues to oppose that policy.

When intercepting asylum seekers inside our territorial waters, is Australia now following the US precedent of the shout test? When conducting the credible fear test in international waters, the US Coastguard directly asks Cubans and Chinese, "Do you have any concerns?" Others are not asked any questions about possible asylum claims. Unless they shout, "I want asylum", they are treated as having no credible fear. Perhaps Australia now applies no shout test at all. If we hear any claim to asylum, we simply lie up the chain of command denying that anything was heard. The Australian authorities went to great lengths to ensure that these 14 had no access to lawyers, the media or do-gooders. Only by ensuring complete isolation of persons without English language and without familiarity with the options available to them could the Australian authorities dare to submit to a court (as the affidavit did):

If the person or persons in charge of the vessel requested to be detached from the towline in order to proceed anywhere in the world except Australia, subject to the Commander of the HMAS Geelong being satisfied of the bona fides of that intention and subject to his being satisfied in relation to his obligations concerning the safety of life at sea, the towline will be detached and the vessel permitted to leave.

The Government's conduct on the high seas and in the court is consistent with the perspective that the protection needs, if any, of these intercepted persons were the responsibility of any country other than Australia and the last thing Australia wanted was to hear any expression of protection needs. The strategy could come completely unstuck if lawyers were able to advise these persons to claim asylum and if lawyers were to advise them that they had a right to go anywhere except Indonesia. Just one more contemporary instance of why we need vigilant lawyers and dedicated migration agents.

It is intriguing to note the new minister's explanation to the Australian public that these 14 could seek Australian protection visas in Indonesia. In previous years, Australia has granted only 13 such visas from Indonesia each year, and for a sound policy reason. The previous minister used to explain that the grant of any more visas from Indonesia would set up Indonesia as a honey pot. People smugglers and desperate asylum seekers would think they only needed to make it to Indonesia in order to have a fair chance of entering Australia lawfully. It is also intriguing to note the Indonesian reaction to the return of the 14. Mr Ruddock used to say that one reason Indonesia would not sign the Refugee Convention was the fear that Indonesia would then be compelled to receive back boatloads of persons from Australia who could have availed themselves of protection in Indonesia. Is Australia now in a position to force such returns even though Indonesia has not signed, and will not sign, the Convention?

The tampering with asylum and tampering with the truth are ongoing. I hope this book and the advocacy of people like Robert Manne can put a stop to both.

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