Australian Courts free themselves from draconian Migration Act laws
There is some good news today, and I think it stands in a context of developments around Australia which are also good news. The judiciary is developing some independence and opinion. Of course it always has had an opinion, but it seems that there is a shift. Below is news from the NSW Law Council, announcing it will embark on a project seeking to ask questions about permanent detention of asylum seekers, it will even question the need for detention itself. The judiciary are not just public servants, following laws made by politicians, but the courts have a duty to test laws against a broader framework, even in Australia, where we, I think, are in dire need for a Bill of Rights.
Last week Justice Justice Michael Kirby, at the University of Wellington, delivered Deep lying Rights - A Constitutional Conversation Continues as the 2004 Robin Cooke lecture, and he indicated that under the majority government of Howard since the 2004 election, the judiciary has a mandate to even more so scruninise the material presented before it. He also argued, and not for the first time, that Australia may need a Bill fo Rights:
"In Australia, we have a written Constitution that is accepted as enjoying a superior and entrenched status. As Justice McHugh remarked in Al-Kateb, Australia may now need a written Bill of Rights despite the opposition to that notion on the part of those on different sides in politics who cling to the idea of unrestrained legislative power and talk misleadingly of 'parliamentary sovereignty'."
Further, Justice Kirby goes on to remark about the role of the courts under a majority government:
"Where governments enjoy large majorities in a unicameral parliament, or effective majorities in both houses of a bicameral parliament, the role of the courts in protecting minority rights becomes more important. It is a power to be exercised lawfully, wisely and for the purpose of protecting the true sovereign - all of the people of the polity concerned... The temper of the present time is, sadly, often angry. In such a time, the calm and resolute voice of the judges, listening to the centuries, upholding fundamentals when they lawfully can, is more needed than ever before."
Opinion writer for The Australian Dennis Shenahan doesn't like it much and a discission item on the Kirby speech and the need for a Bill of Rights ensued on Margo Kingston's Web Diary.
Elizabeth Colman, in The Australian (Kirby prepared to curb Howard, November 25, 2004) writes about Kirby's speech:
HIGH Court judge Michael Kirby signalled last night that he was prepared to rein in the Howard Government's enhanced mandate, saying the rights of minorities were at risk of being abused.
Justice Kirby warned the Government that it still had to share constitutional power with the judiciary, despite the October 9 election granting the Coalition an absolute majority in the Senate.
Attorney-General Philip Ruddock hit back, saying the judiciary's role was to back parliament.
"There is in Australia respective roles for the legislature and the judiciary and I would anticipate any judge in any proceedings would uphold the law of Australia," he said.
Justice Kirby emphasised the reluctance of the High Court to override federal laws out of concern for human rights, pointing to the decision to overturn the Family Court's ruling that children be released from detention.
In a speech to the University of Wellington in New Zealand, Justice Kirby said the Constitution denied parliament "uncontrolled power".
"A democracy, and especially a federation such as Australia, is a place of shared powers. It has many checks and balances," he said. "The calm and resolute voice of the judges ... upholding fundamentals when they lawfully can, is more needed than ever before."
Judges' traditional role as parliamentary watchdogs would become "more important" after the Howard Government gained control of the Senate on July 1, he said.
"Where governments enjoy large majorities in a unicameral parliament, or effective majorities in both houses of a bicameral parliament, the role of the courts in protecting minority rights becomes more important".
Judges were a "calm" voice in the face of the largely reactive political landscape, Justice Kirby said.
"The protection of fundamental human rights, and especially the rights of minorities, is one of the great issues of the law and of the world today ... The judiciary has an essential role in achieving that end."
Justice Kirby said he was particularly concerned about the rights of minorities in the new era of government power, and renewed calls for an entrenched bill of rights.
"Parliaments, from time to time, overlook or even override the fundamental rights of minorities. In Australia, this has been done to those of minority religions, communists, refugees and others, including a minority I understand well, homosexual people," he said.
"Australia may now need a written bill of rights, despite the opposition to that notion on the part of those on different sides in politics who cling to the idea of unrestrained legislative power and talk misleadingly of 'parliamentary sovereignty'."
"To talk of parliamentary 'sovereignty' is ... misleading. It leads parliamentarians to believe that they enjoy a plenary and uncontrolled power. At least under Australia's constitutional arrangements, that is never so".
Link to the article in The Australian
Today three Woomera escapees went to the Magistrates' court in Adelaide. AAP reports:
"The Afghan men escaped the now-closed Woomera detention centre, in SA's far north, in 2002. The court was told the men, all of whom suffered mental illness and had attempted self-harm while in detention, had not intended to escape but had been encouraged by protesters. Chief Magistrate Kelvyn Prescott did not record a conviction against the men but ordered them to enter a $100 12-month good behaviour bond. "Your particular circumstances evoke a great deal of sympathy," Mr Prescott told them."
And the ABC reports: "The men's lawyer, Claire O'Connor, urged magistrate Kelvin Prescott not to record a conviction because her clients were suffering mental illnesses brought on by their detention. Mr Prescott agreed, saying psychiatric reports clearly showed that the men were under severe mental strain."
The results of this court case may not be earthshattering, but they are significant in terms of the incalculation of the growing body of evidence about circumstances of detention, built up over the last three years. For me, today is a day of celebration.
Refugee group backs Woomera escape rulingABC NEWS ONLINE
Wednesday, December 1, 2004. 2:05pm (AEDT)
There are hopes a court ruling against the conviction of three escapees from the Woomera Detention Centre will have wider implications for Australia's immigration laws.
South Australia's chief magistrate, Kelvin Prescott, yesterday ruled that the Afghan asylum seekers were suffering from mental illness at the time of the escape in 2002.
Jack Smit from refugee lobby group Project SafeCom says the ruling indicates the courts are fed up with what he says is the atrocious way Australia treats asylum seekers.
"I'm just glad that the courts now have, in terms of mandatory detention, come of age, if you like," he said.
"Because... for three years it has been clear to me and many, many other people around Australia and around the world that Australia's methods of dealing with asylum seekers is atrocious."
Move to change migration lawSydney Morning Herald
By Cynthia Banham
November 29, 2004
A group of high-profile lawyers, appalled by a recent High Court decision to uphold the Federal Government's right to detain asylum seekers indefinitely, have banded together to seek an overhaul of migration law.
In an unexpected move, the Law Council of Australia has set up a working group to examine possible legal reform of mandatory detention, saying lawyers have a responsibility to fight for the "fundamental human right" to liberty.
In August the High Court said the Migration Act - which allowed failed asylum seekers who could not be deported because no other country would accept them to be locked up for indefinite periods - was valid, a fact one of the majority judges, Justice Michael McHugh, said was "tragic".
The working group, which will be chaired by the Law Council president, Stephen Southwood, QC, and includes Sydney barrister Bret Walker, SC, will examine whether any further legal challenges are possible to the act.
If the lawyers decide no further challenges are possible, the group will consider whether legal reform is needed to give the courts a greater role in overseeing the long-term detention of asylum seekers, in terms of reviewing how long people had been detained, why they were still there, and what steps had been taken to finalise their refugee claims or deport them.
But the Law Council's working group will also look at whether detention is necessary at all, or whether there should be time caps of 18 months or two years on detention periods, after which asylum seekers should be released into the community under monitoring arrangements.
Because mandatory detention had bipartisan political support, Mr Southwood conceded the working groups faced significant obstacles.
But the Northern Territory barrister, who cited the example of the successful campaign begun by lawyers to repeal the Territory's mandatory sentencing rules, said the difficulty in the task did not mean "the argument should not be put, or an appropriate attempt made".
"Someone has to start the debate," Mr Southward said.
He said the working group's starting point was that the "liberty of the subject, and the liberty of aliens, is really the most fundamental of the human rights", and that lawyers had "a major role in ensuring the liberty of individuals".
The Immigration Department says there are 42 people in immigration detention centres who have been there for four years or more. Peter Qasim, a stateless asylum seeker born in Kashmir, has been in detention the longest - for six years and two months.
Mr Southwood said the Law Council's aim would be to "elevate the debate" over immigration detention, and try and demonstrate it was possible to achieve the Government's objective of national security while also maintaining people's right to liberty.
He pointed to a number of factors which he said meant an overhaul of immigration detention might be achievable today. Among them were that people were being held longer and longer, and that the Government had set up better systems to stop human trafficking.
"I think if [governments] continue to invest resources at the core area as opposed to the other end in terms of the detention, people will be more confident that the floodgates aren't going to open and we aren't suddenly going to be overwhelmed by populations of people," Mr Southwood said.
Link to the SMH article
Judge renews call for bill of rightsThe Age
By Meaghan Shaw
November 26, 2004
High court judge Michael Kirby has urged the judiciary to be vigilant to protect human rights and counterbalance governments with large majorities.
In a speech delivered in New Zealand yesterday, he also rekindled debate on an Australian bill of rights.
Justice Kirby said Australian parliamentarians did not have uncontrolled power - rather their powers were subject to the written constitution and court scrutiny. "Where governments enjoy large majorities in a unicameral parliament, or effective majorities in both houses of a bicameral parliament, the role of the courts in protecting minority rights becomes more important," he said.
He lamented Australia's history of parliaments overriding the fundamental rights of minorities. "In Australia, this has been done to those of minority religions, communists, refugees and others, including a minority I understand well - homosexual people."
Justice Kirby raised the issue of a bill of rights as he referred to recent High Court decisions upholding the mandatory detention of children and the indefinite detention of stateless asylum seekers. In those cases, the court found Parliament's laws to be valid despite a breach of international law. He said it was inevitable that calls for a constitutional bill of rights would grow as the High Court's "willingness" to find rights implied in the language and structure of the Constitution receded.
Attorney-General Philip Ruddock said the Government was not convinced of the need for a bill of rights: "We've been committed to the protection of human rights and we consider our democratic institutions - our Constitution, common law and current law including the anti-discrimination legislation we have in place - are adequate for that purpose."
Link to article in The Age
High stakes, when the right to detain is a givenSydney Morning Herald
November 30, 2004
Lawyers' associations have a vital role to play in questioning new laws, writes Bret Walker.
Murderers sentenced to life, and political calls for them to be cemented in jail. Prisoners sentenced to long imprisonment for terrible crimes, unrepentant and unreformed, serving their entire punishment, and then being held in custody to prevent them committing further offences, to public acclaim.
Unsuccessful asylum-seekers, refused entry because their claims of persecution are not believed, but unable to be returned home, or somewhere equivalent, because of threats, unrest or even war - and detained in custody in Australia, indefinitely.
What do these people, wretched as they are, have in common apart from that state? Some are being punished for what they have done, some have been punished in full for what they have done and are now jailed not to be punished but to prevent crimes not committed, and others have committed no offence and are not being punished, yet are in jail. Some know when they will be released; others could not possibly guess.
Parliament has enacted laws which authorise some people to be detained indefinitely, in some cases it seems for life, who have committed no crime and are not considered dangerous. So the High Court recently held, rejecting a challenge to the validity of laws permitting unsuccessful asylum seekers to be detained in custody, pending deportation. The indefinite duration arises when deportation is impossible, for various reasons including reasons not the fault of the detainee.
The loss of any individual's liberty is always serious. Now the High Court has declared such laws are valid, the question is whether those valid laws are good laws.
This is why the Law Council of Australia has set up a working group to examine possible reform of mandatory detention. People may ask whether it is appropriate for lawyers be involved in an issue like this.
Among the few voices raised to question the merits of the laws that create and continue the plights of persons mentioned above are the several strands of advocacy championed by the legal profession. Mostly, we speak through our peak body, the Law Council of Australia, or through local or specialised associations, or groups focused on criminal, migration or legal aid issues.
Apart from the differences one can spot between these various groups, it's not to be forgotten that the tens of thousands of lawyers in whose names, supposedly, those reform pleas are voiced, do not all oppose those penal, criminal or migration laws. Lawyers probably divide, politically, on these issues more or less as the general body of voters is split.
Three problems are, I think, unavoidable with such lawyers' advocacy. First, the more the legal bodies rely on their members' deeper and more detailed acquaintance with the rough end of these controversial polices, the more our general audience or readership - and their lightning-rods, our parliamentarians and ministers - distrust what is too easily dismissed as special pleading by a self-absorbed coterie of specialists. That answer is nearly always wrong about the lawyers' motives, but then none of us wants self-described experts to monopolise the debate, let alone decision, on these important public policies. The trouble is, why would anyone prefer the thunder of ignorance to the complaints of experience?
Second, there will forever be the confusion between lawyers arguing for fair process and tolerable principles on the one hand, and defending or promoting appalling, dangerous or illegal conduct on the other. How often is it sneeringly said of such lawyers that they should be ignored because no one decent could countenance supporting murderers, rapists, illegal aliens, etc? And some of those who sneer will never be persuaded by being asked to imagine their son, brother, mother in trouble and then the independence of critical lawyers is suddenly prized, by them at least, for once.
Finally, simply because the laws which are criticised by lawyers on those occasions manifest the policy choices of some government, the lawyers' organisations are taken to be partisan opponents of the Government. That is nearly always inaccurate or an overstatement. For one thing, in law and order debates, it's a rare thing for parliamentary oppositions to oppose the Government apart from urging further and further in the same direction.
For another thing, it reduces matters of transcendent importance, individual liberty, the international obligation to relieve the victims of disaster, and mercy - to mere aspects of day-to-day politics.
The wide range of people whose cases attract interventions by the legal profession at this political level defies simple description. The principles at stake are important for all manner of people and emergencies. If lawyers did not speak up to question the lengths these laws go to, their details as they are administered and their human consequences, who should? The Government won't, the Opposition daren't, and lawyers' organisations can.
Bret Walker is a Sydney SC, and a member of the Law Council's working group on the indefinite detention of asylum seekers.
Link to the SMH article
Law Council seeks to challenge High Court decision on asylum seeker detentionABC Radio | The World Today
Monday 29 November 2004 12:26:00
Reporter: Jayne-Maree Sedgman
ELEANOR HALL: Even as he ruled that the Government's immigration detention policy was legal, one of the High Court judges who made the decision described it as tragic.
Now the Law Council of Australia is moving to overturn the controversial ruling which found that the Federal Government does have the right to detain asylum seekers indefinitely, even if no other country will accept them.
The Council has established a working group to determine if the High Court decision, handed down three months ago, can be challenged. And the Council's President, Stephen Southwood QC, says that if there are no legal avenues available, then the Law Council will lobby for reform of the system.
Stephen Southwood has been speaking to Jayne-Maree Sedgman.
STEPHEN SOUTHWOOD: It's not that we so much disagree with the decision of the High Court. The High Court's function is to declare the law as it is. We have been monitoring the workings of the migration act and the position of asylum seekers for some time now.
It's really the effect of those decisions which has caused us to decide to review the state of the law as it is now, to see whether there are any additional arguments which may be put to the High Court and if not to look at making recommendations as to what we think might be appropriate amendments to the migration act in circumstances where it now does seem as though people can be detained for very long periods of time.
JAYNE-MAREE SEDGMAN: Realistically, are there many areas of legal challenge open to you, are there many apparent at this stage?
STEPHEN SOUTHWOOD: On the face of it, it looks as though any potential for further argument is very limited, so I think our major emphasis will probably end up being on a review of the legislation and considering what amendments we think can be made with the aim of trying to ensure maximum liberty, while at the same time recognising the need for there to be proper steps taken in this area to ensure national security.
JAYNE-MAREE SEDGMAN: Once you've examined the current system and come up with a number of reforms, can you take us through the process from there?
STEPHEN SOUTHWOOD: Well, what we will then be doing is in effect making a submission, firstly to the directors of the Law Council of Australia for their consideration and approval and if they approve the submission we make and the recommendations that are contained therein, we will be making a submission to both the Minister for Immigration ... or for Migration I should say, and also the Attorney-General.
JAYNE-MAREE SEDGMAN: You're looking for the courts to play a greater role when it comes to determining what should happen to people who have been in detention long term.
Are you optimistic that you will get the Government onside when it comes to reforming this process? I mean, you're effectively taking away some of the power that the current government currently has.
STEPHEN SOUTHWOOD: I think convincing the Government of the view that amendments are necessary will be difficult. However, simply because the job's hard it shouldn't mean that we shouldn't undertake it.
So we are anticipating that it will be a matter which will involve fairly extensive submissions and is going to take time. But I think when you have people being locked up for more than four years, and those people could have contributed to society, whether it be in Australia or somewhere else, it's time to have a real good look at what's happening.
ELEANOR HALL: President of the Law Council of Australia, Stephen Southwood QC, speaking to Jayne-Maree Sedgman.