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    Father Frank Brennan, having a cuppa at a conference in Albury-Wodonga in 2004

Australia's judicial isolation

Australia's courts are weak in their determinations, argues Frank Brennan

"Unlike the Australian High Court, the [British] House of Lords is now equipped with a strong constitutional armoury in the Human Rights Act 1998. This gives domestic effect to the European Convention of Human Rights which extends the fundamental human right to liberty and security of person not only to citizens but to all persons in the jurisdiction..."

Image: Frank Brennan takes a break with a cup of tea during the 2003 Rural Australians for Refugees Conference in Albury-Wodonga.

"...The majority of voters, the major political parties, and the majority of High Court judges have no qualms about a stateless Palestinian spending his life in detention in the Australian desert. After all, he came here without permission and it is not really punishment."

"In his journey from the bench to the academy, Justice Michael Kirby has put us on notice: 'Law alone is not enough. Justice is the precious alchemy of Australian law.' From July, the alchemy will be in even shorter supply in isolated Australia."

Australia's judicial isolation

Frank Brennan SJ
Fellow, the Jesuit Institute
Boston College, Boston, Mass (USA)

First published in Eureka Street
5 March 2005

Over the last year a major chasm has opened between decisions of Australia's High Court and those of the UK House of Lords and the US Supreme Court regarding issues of national security such as the long-term mandatory detention of stateless asylum seekers.

A week before Christmas, Justice Michael Kirby was in the national capital receiving an honorary doctorate. Before his university audience, he recited a litany of Australia's shortcomings in human rights. He said:

In the past year more than half a million British assisted migrants (who enjoyed common nationality when they came to Australia in the 1960s and 1970s) were revealed as vulnerable to ministerial deportation. If such laws are valid, the courts must uphold them. Earlier, the High Court unanimously upheld a law providing for detention of children behind razor wire in remote parts of this continent. That law is unchanged although parliament was thrice told that it is contrary to the international law of human rights. There were many other decisions of the High Court during the past year in which the court was divided on matters of deep principle ... (including) the right under federal law to hold a stateless person in detention indefinitely, despite the lack of any court order to punish him for any offence.

The list goes on. Of course many Australians, perhaps most, do not care. But for me, I confess that it makes depressing reading. Most judges of our tradition - perhaps most lawyers - like to think that in Australia we are always working towards just laws and court decisions that uphold fundamental human rights. Alas, in many things in the law, we seem to fall short. And there is not much that the courts can do about it.

Though there is nothing novel in Kirby's protest against our national shortcomings in the protection of human rights, his note of despair is new. He now sits on a court whose decisions make 'depressing reading' for at least one of its members. And what is more disturbing, he has concluded that 'there is not much that the courts can do about it'.

Just a few hours earlier on the other side of the globe, unknown to those in the Canberra graduation hall, the House of Lords delivered its opinion in a case which was a damning condemnation of the Blair Government's encroachment of civil liberties in the name of national security post-September 11. While the Australian courts were powerless to order the release of children from behind the razor wire, the law lords by a majority of eight to one were striking down a law which permitted the UK government to keep suspected international terrorists in detention. While Kirby sees himself as a lone voice on the High Court of Australia, he would have been at home among the majority of eight in the House of Lords.

While the majority of Australia's High Court authorised the long-term mandatory detention of a stateless Palestinian asylum seeker who was no security threat to the community, their colleagues in the House of Lords said such detention could not even be imposed on suspected international terrorists. The lords followed the lead of the US Supreme Court which had already struck down mandatory detention of convicted foreigners who had served their prison terms and who could not be deported.

Their lordships were unimpressed with the UK government's attempt to exclude the courts from any role by distinguishing between democratic institutions and the courts. The most senior law lord, Lord Bingham of Cornhill, said, 'The Attorney-General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision making as in some way undemocratic.' Meanwhile Australia's Attorney-General, Philip Ruddock, had made an art of such stigmatisation while Minister for Immigration.

Though the UK decision was shaped by a consideration of the interplay between the European Convention on Human Rights and Westminster's legislation, Lord Hoffmann was insistent: 'I would not like anyone to think that we are concerned with some special doctrine of European law. Freedom from arbitrary arrest and detention is a quintessentially British liberty, enjoyed by the inhabitants of this country when most of the population of Europe could be thrown into prison at the whim of their rulers.' He had to concede that the judges would have been powerless to intervene in this case prior to the passage of the UK Human Rights Act 1998 which rendered parliament's attempts to suspend habeas corpus or to introduce mandatory detention for persons not convicted of criminal offences subject to judicial review.

Over the last year, a major chasm has opened between the decisions of Australia's High Court, which has no bill of rights against which to assess national security legislation, and the UK House of Lords and the US Supreme Court, which do have bills of rights against which they can scrutinise parliament's overreach. Post-September 11, Australia's judicial isolation is now a problem. In the past, the shortfall in scrutiny of the excesses of executive government could be corrected in part by a Senate which the government did not control. That corrective will disappear in July. There was a time when Australian governments could also be reined in by the decisions and observations of international tribunals and UN bodies. But that corrective has also disappeared, with the Howard Government preferring Bush-style unilateralism. For example, in the case of the Bakhtiyari family who had spent more than two years in detention, the UN Human Rights Committee found: 'Whatever justification there may have been for an initial detention for the purposes of ascertaining identity and other issues, the State party has not, in the Committee's view, demonstrated that their detention was justified for such an extended period.' The committee concluded that the continuation of immigration detention for Mrs Bakhtiyari and her children for such a length of time, without appropriate justification, was arbitrary and contrary to the International Covenant on Civil and Political Rights.

The Australian Government simply disregarded the decision as the opinion of a group of foreign do-gooders imbued with human-rights rhetoric and no appreciation of the unique problems Australia confronted in the post-September 11 world. In so far as the Howard Government had provided the Australian public with an explanation for prolonged mandatory detention of asylum seekers, Mr Ruddock when Minister for Immigration never tired of putting the case in these terms:

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...

Nobody is forced to remain in detention. Detainees can choose to leave detention by leaving Australia. They can go wherever they wish to any country where they have, or can obtain, the right to enter, and we will do our best to facilitate that.

This particular Ruddock rendition came from his 2001 address to the synod of his own Anglican Church. It was his preferred statement which was then packaged as part of a departmental information kit and sent to those sensitive Christians upset at the sight of children behind razor wire. In hindsight, we now know that this political explanation for the detention was dictated in part by constitutional doubts about mandatory detention in light of the High Court's 1992 decision about the detention of Cambodian boat people. The High Court, as then constituted, wanted to ensure that there were some limits on the power of government mandatorily to detain asylum seekers who had not been convicted of any criminal offence. Ruddock was anxious to clarify that detention was designed and finely tailored to assist with the processing of asylum claims by persons arriving in Australia without a visa, and to assist with the removal of those persons who no longer had claims pending or who no longer had authorisation to remain in Australia. He justified the discrimination of treatment between those persons with and without visas by arguing that government had already had the opportunity to scrutinise those persons with visas before they arrived in Australia. But government anxious for the security and well-being of the Australian community was entitled to keep those persons without visas segregated from the community until there was the opportunity to determine whether they posed a threat to the community. This explanation was starting to wear thin when families including children were kept in detention for years rather than months while their claims were disputed in the courts. What was the need for ongoing detention in remote places like Woomera, Curtin, Port Hedland and Baxter, once the Government knew that parents and their children were neither a health or security risk? What was the need or justification for mandatory detention of failed asylum seekers where there was no immediate prospect of their safe return to Iraq, Iran or Afghanistan?

By a slender majority of four to three, the High Court bought the argumentquote

After the first Gulf War, there was a recurring problem with a trickle of Palestinians arriving in Australia on boats, with no way of returning 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 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? Their situation highlighted the inaccuracy in Ruddock's particularistic explanation for the rationale of the broadly framed mandatory detention rule. These Palestinians were no longer awaiting the process of a claim. They had no real prospect of being removed. Government had more than enough time to assess any health or security risks to the Australian community. So why keep them locked up?

In 1992, the High Court had no need to consider the situation of stateless persons with nowhere to go when the court was ruling on the detention of the Cambodian boat people. With a change in the composition of the High Court and with a change in the political environment post-September 11, the Government was emboldened to submit to the High Court in November 2003 that the law permitting detention until a person was removed from Australia or until they were granted a visa could entail detention without end. The Commonwealth Solicitor General submitted that the legislative provision 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.

When some commentators expressed shock at this description in the media overnight, the Solicitor General returned to court the next day and explained:

The point of that example, of course, is merely to illustrate that the word 'until' can be used and is frequently used to describe something which may not have a termination point. There are, of course, many love songs, with which Your Honours may or may not be familiar, in which the person singing the song proclaims that his love for a person will continue until a list of events which are obviously never going to 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. It is only lawmakers and judges from an island nation continent without land borders who could realistically implement a proposal for mandatory detention for all unauthorised arrivals for the entirety of their stay within a community. It is only a country without any bill of rights which could countenance such an outcome.

Justices in the majority were happy to loosen the constitutional constraints on mandatory detention imposed by the executive with approval from parliament without any need for judicial supervision. Justice Callinan surmised: 'It may be the case that detention for the purpose of preventing aliens from entering the general community, working, or otherwise enjoying the benefits that Australian citizens enjoy is constitutionally acceptable.' He was prepared to give government carte blanche:

It may be that legislation for detention to deter entry by persons without any valid claims to entry either as a punishment or a deterrent would be permissible, bearing in mind that a penalty imposed as a deterrent or as a disciplinary measure is not always to be regarded as punishment imposable only by a court. Deterrence may be an end in itself unrelated to a criminal sanction or a punishment.

Justice Hayne, who brought Justice Hayden along with him, could accept endless detention of a stateless person who had come without a visa because he viewed the segregation of such a person from the community as a legitimate government objective within the constitutional power of parliament. Parliament had power to authorise the executive to exclude unauthorised arrivals from the Australian community 'by prevention of entry, by removal from Australia, and by segregation from the community by detention in the meantime'. Hayne was adamant that such long-term segregation was not punitive. Having considered that government action to prevent a person reaching Australia would be viewed as punitive 'only in the most general sense', he held that 'segregating those who make landfall, without permission to do so, is not readily seen as bearing a substantially different character'. He did concede:

Because Immigration Detention Centres are places of confinement having many, if not all, of the physical features and administrative arrangements commonly found in prisons, it is easy to equate confinement in such a place with punishment.

But quoting the Oxford academic H. L. A. Hart, Justice Hayne thought he succeeded in demonstrating that such detention was not really legal punishment. He explained away the risk that an individual would spend the rest of his life in prison without ever having been convicted of a criminal offence and with no term of imprisonment having been imposed by a court:

It is essential to confront the contention that, because the time at which detention will end cannot be predicted, its indefinite duration (even, so it is said, for the life of the detainee) is or will become punitive. The answer to that is simple but must be made. If that is the result, it comes about because the non-citizen came to or remained in this country without permission.

Don't come to Australia without permission. You might end up in prison for life! Chief Justice Gleeson was one of three dissenting judges in the case. The dissenting judges found this outcome an extraordinary proposition. Gleeson saw the case as a straightforward exercise in statutory interpretation: 'The Act does not in terms provide for a person to be kept in administrative detention permanently, or indefinitely.' He drew a simple distinction:

A scheme of mandatory detention, operating regardless of the personal characteristics of the detainee, when the detention is for a limited purpose, and of finite duration, is one thing. It may take on a different aspect when the detention is indefinite, and possibly for life.

He went on to conclude:

The Act does not say what is to happen if, through no fault of his own or of the authorities, (a person who arrived without a visa) cannot be removed. It does not, in its terms, deal with that possibility. The possibility that a person, regardless of personal circumstances, regardless of whether he or she is a danger to the community, and regardless of whether he or she might abscond, can be subjected to indefinite, and perhaps permanent, administrative detention is not one to be dealt with by implication.

The Chief Justice said that there was a choice between treating the detention as suspended or as indefinite. Given the legislative silence, Gleeson thought that he could have resort to a fundamental principle of interpretation that the courts do not impute a legislative intent to abrogate human rights and freedoms unless such an intention is clearly manifested by unambiguous language.

Where the three dissenting judges found ambiguity, Justice McHugh, like the other members of the majority, could find only clarity of language, tragedy of circumstance and ambiguity of moral propriety being visited upon parliament and not upon the courts. None of the Chief Justice's close reasoning helped Justice McHugh, who conceded that the situation of the applicant was 'tragic'. Even if it be impossible to remove a person from Australia, McHugh would permit parliament to authorise government to keep a person in detention for the term of his natural life for the purpose of preventing entry into Australia or 'remaining in the Australian community'. McHugh could find no constitutional restraint on parliament legislating for the detention of unlawful non-citizens 'even when their deportation is not achievable' because detention even for life would be 'reasonably regarded as effectuating the purpose' of preventing such persons from entering or remaining in the Australian community.

The tragedy of this High Court decision is not just that there is no constitutional constraint on such paranoid and overreaching legislation by parliament; also the court is lax in its interpretation of the meaning and application of such legislation, preferring the view that the legislation covers all cases of unauthorised arrivals, including cases that were unforeseen by the High Court itself in 1992. When mandatory detention was first introduced, neither parliament nor the High Court envisaged instances in which persons would be kept in detention for life. It was always assumed that persons who had come without permission could end their detention by simply signing on the bottom line, requesting removal back home. In the 2004 decision, the High Court majority pointed out several times that the High Court judges in 1992 did not even advert to such a possibility. True, back then they did not, and neither did parliament. By applying tried and tested canons of statutory construction, the High Court could have avoided the deprivation of liberty until hell freezes over. It is one thing to justify short-term detention of someone because it was 'their own fault' that they came without permission. It is another to purport to justify detention for life because through no fault of their own, there is nowhere else for them to go.

In Australia, the difference in treatment of asylum seekers entering the country without visas and those entering with visas counts for nothing in determining the validity of legislation. Asylum seekers who arrive with a tourist visa or business visa are not taken into detention to assist with the processing of their claim. Neither are they taken into detention if their claim is rejected and there is no prospect of removing them to another place. There is no coherent rationale for the difference of treatment once you know the identity of the unauthorised arrival and know that they are neither a health or security risk.

The High Court's lack of armoury given the absence of a bill of rights, and its laxity in the use of its limited armoury, are highlighted by a study of the House of Lords decision. While the High Court has been powerless to curtail the long-term detention of children who are asylum seekers and the detention for life of stateless asylum seekers, the House of Lords has been able to spike government's attempts to detain suspected international terrorists without charge. In the United Kingdom the difference in treatment between suspected international terrorists who could not be removed to another country and other suspected terrorists who could be removed or who were UK citizens remaining in the community was determinative.

Post-September 11, the UK Parliament passed the Anti-Terrorism, Crime and Security Act 2001. Suspected international terrorists living in the UK and who were not UK citizens could be rounded up and deported. Those who were UK citizens could be taken into long-term detention only if they were charged with and convicted of offences. There were some suspected international terrorists who could not be removed to other countries because they faced the risk of torture or cruel and inhuman treatment on their return. Parliament legislated to allow open-ended detention of these persons in Belmarsh Prison without charge. They could apply to a Special Immigration Appeals Commission for bail, appealing against the government's certification of them as suspected international terrorists. Not even the availability of this bail procedure could save the legislation. The House of Lords maintained its traditional approach that detention was permissible 'only for such time as was reasonably necessary for the process of deportation to be carried out'. If there was no reasonable prospect of deportation in the near future, the detention could not be justified.

...their colleagues in the House of Lords said such detention could not even be imposed on suspected international terroristsquote

Unlike the Australian High Court, the House of Lords is now equipped with a strong constitutional armoury in the Human Rights Act 1998. This gives domestic effect to the European Convention of Human Rights which extends the fundamental human right to liberty and security of person not only to citizens but to all persons in the jurisdiction. Article 5 of the European Convention specifies the cases in which persons can be deprived of their liberty. The state can detain a person 'against whom action is being taken with a view to deportation'. Lord Hope of Craighead said: 'The article 5 right to liberty is a fundamental right which belongs to everyone who happens to be in this country, irrespective of his or her nationality or citizenship.' Lord Bingham promptly put paid to any attempt to extend the power to detain to long-term detention even of a suspected international terrorist, let alone of a peace-loving, stateless Palestinian who was not suspected of being a threat to anybody. He said:

There is no warrant for the long-term or indefinite detention of a non-UK national whom the Home Secretary wishes to remove. Such a person may be detained only during the process of deportation. Otherwise, the Convention is breached and the Convention rights of the detainee are violated.

Under the Human Rights Act, the UK government is able to derogate from the rights set out in the European Convention when there is a public emergency threatening the life of the nation. The law lords were happy to pay deference to government in the making of such a derogation, noting that the Home Secretary had referred to secret evidence that the law lords were not invited to examine. The lords were prepared to give the government the benefit of the doubt, trusting their security assessments, despite what Lord Hoffmann described as 'the widespread scepticism which has attached to intelligence assessments since the fiasco over Iraqi weapons of mass destruction'. But the lords were insistent that they still had their role to play as judges. When it came to long-term detention of a person already in the UK they had little sympathy for the government's reliance 'on the old-established rule that a sovereign state may control the entry of aliens into its territory and their expulsion from it'. The lords reaffirmed that habeas corpus protection is not restricted only to British subjects because, 'Every person in the jurisdiction enjoys equal protection of our laws.' The lords insisted that any derogation of rights otherwise guaranteed under the European Convention and international instruments such as the Convention on the Elimination of Racial Discrimination must 'go no further than is strictly required by the exigencies of the situation'. Furthermore, the instrument of derogation did not excuse the government from the prohibition of discriminating 'on grounds of nationality or immigration status'. On this basis, the House of Lords quashed the government's derogation order and declared that the law which permitted long-term detention of suspected international terrorists was incompatible with the European Convention.

In reaching this conclusion, the lords referred to many parliamentary reports and reports of the UN Commission on Human Rights as well as the Committee on the International Convention on the Elimination of all Forms of Racial Discrimination (CERD). Though such reports are not legally binding, the lords were still happy to quote them, noting that the findings were 'inimical to the submission that a state may lawfully discriminate against foreign nationals by detaining them but not nationals presenting the same threat in time of public emergency'.

The lords went out of their way to pay due deference to the government, noting 'the heavy burden, resting on the elected government and not the judiciary, to protect the security of this country and all who live here'. But parliament has charged the courts with their responsibility as well. According to Lord Nicholls of Birkenhead, 'The duty of the courts is to check that legislation and ministerial decisions do not overlook the human rights of persons adversely affected.'

It was no answer for the government to claim that the foreigners in detention could choose to leave the UK at any time. The government had submitted that their prison has only three walls. The detainees could leave on request. Lord Nicholls said:

But this freedom is more theoretical than real. This is demonstrated by the continuing presence in Belmarsh of most of those detained. They prefer to stay in prison rather than face the prospect of ill treatment in any country willing to admit them.

Not even Michael Kirby could match Lord Hoffmann's declaration: 'The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve.'

Baroness Hale of Richmond proclaimed: 'Belmarsh is not the British Guantanamo Bay.' She made a declaration which is now unthinkable in Australian superior courts:

It is not for the executive to decide who should be locked up for any length of time, let alone indefinitely. Only the courts can do that and, except as a preliminary step before trial, only after the grounds for detaining someone have been proved. Executive detention is the antithesis of the right to liberty and security of person.

Back in 1992, the High Court, like their colleagues in the UK, were prepared to place limits on executive and legislative power, asserting that only courts could exercise judicial power which included the authorised detention of a person for life. We have wandered far from our jurisprudential roots in this age of national isolationism with our judges and the voters showing such great deference to politicians who tell us how we need to segregate unvisaed persons from the community even if they not be a security risk. Our judges are now cultivating a barren judicial field asking only if detention is for a purpose authorised by parliament. This field is far removed from the English law lords' garden of guaranteed European rights and freedoms.

In the past year, the US Supreme Court has also flexed its muscle against government wanting to detain individuals at home and abroad without court supervision. The cases, including the claim by Australia's own David Hicks, have related to very different legal questions than the Australian and UK cases discussed here. But the judicial rhetoric of the US Supreme Court is resonant with much of what has been said by the House of Lords and by Michael Kirby. It finds no resonance in the judgments of the majority of Australia's High Court who think they are now bound to defer to government and to parliament on basic human rights, despite the risks of unchecked executive power at this time of national and international uncertainty. The key swing voter on the US court, Justice Sandra Day O'Connor, recently acknowledged that 'history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others'. Because the US constitution includes the bill of rights, there is a need for the US court to strike an appropriate constitutional balance between individual rights and national security. The present Australian High Court has been able to excuse itself from any such balancing exercise, interpreting Australian statutes as valid implementation of the Executive's will to place national security at such a premium that persons (including children) who constitute no security risk could be held in long-term, non-reviewable detention. In the US, O'Connor observed, 'Striking the proper constitutional balance here is of great importance to the nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear ... It is during our most challenging and uncertain moments that our nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.'

When our High Court came to review the lawfulness of indeterminate detention for harmless stateless Palestinians, they distinguished a 2001 US Supreme Court decision in which the judges had placed limits on the indeterminate detention of foreigners who had actually been convicted of serious offences in the US and who could not be removed from the US on the completion of their prison terms. Justice McHugh acknowledged that the indefinite detention of an alien in the US would be problematic but that was because their constitution's due process clause applies to all persons in the US, including aliens, whether their presence 'is lawful, unlawful, temporary or permanent'. Justice Callinan noted with some relief that the US decision could be disregarded 'because of the absence of the complication of a constitutional provision in Australia such as the Fifth Amendment'. Callinan also preferred the views of the dissenting judges in the US decision because their judgments contained 'more orthodox expressions of constitutional principle and practical reality'. It is troubling that a Palestinian asylum seeker could legally be kept in lifetime detention in Australia without judicial intervention. Offsetting 'practical reality' and 'the complication of a constitutional provision' ought to bear greater fruit for individual liberty. Justice Hayne, who was the only other member of the High Court majority who wrote a substantive judgment, saw no need to refer to the 2001 US decision though he did refer to a dissenting judgment of Judge Learned Hand from 1953:

Think what one may of a statute ... when passed by a society which professes to put its faith in freedom, a court has no warrant for refusing to enforce it. If that society chooses to flinch when its principles are put to the test, the courts are not set up to give it derring-do.

For their part the dissenting judges in the High Court thought the 2001 US decision helpful. Kirby thought it 'highly relevant to the decision in this case', urging 'the approach that we should take is precisely the same'. Justice Gummow thought it useful to follow the approach of the majority in the US decision who affirmed that there runs through immigration law 'the distinction between an alien who has effected an entry into (the country) and one who has never entered'.

It is only an isolated judiciary with a depleted armoury for the defence of human rights that can resign itself to possible lifetime detention of a stateless person with the observations of Justice Callinan:

This country has no greater obligation to receive stateless persons who cannot establish their entitlement to the status of refugee, than others who are not stateless ... Whether statelessness calls for a different treatment, as it may well do for practical and humanitarian reasons, is a matter for the legislature and not for the courts. Nor should the appellant be accorded any special advantages because he has managed illegally to penetrate the borders of this country over those who have sought to, but have been stopped before they could do so.

Perhaps the only cure for Justice Kirby's depression is a bill of rights which would force our judges to take up the slack in a post-September 11 world in which the Government will control the Senate, while thumbing its nose at international conventions and determinations. But that would require popular support for such a constitutional or legislative initiative, putting Australia once more in touch with other jurisdictions including the UK from whom we are now removed by a vast judicial chasm. At this time any informed Canberra observer knows that we will be waiting until hell freezes over.

Meanwhile the majority of voters, the major political parties, and the majority of High Court judges have no qualms about a stateless Palestinian spending his life in detention in the Australian desert. After all, he came here without permission and it is not really punishment. In his journey from the bench to the academy, Dr Kirby has put us on notice: 'Law alone is not enough. Justice is the precious alchemy of Australian law.' From July, the alchemy will be in even shorter supply in isolated Australia.

Fr Frank Brennan SJ, a Fellow at the Jesuit Institute, Boston College, was awarded the St Thomas More Society's Award for 2004.

Originally published at Eureka Street at

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