JUDGES SAFEGUARD LIBERTY

David Marr

SMH, 12.11.10,

UNANIMOUS decisions of the High Court are never an accident. Only every decade or so do all seven judges speak with a single voice on big issues of principle. It's their way of sending a blunt message to government. Their support for the Tamil asylum seekers M61 and M69 lays down the law about fair dealing for all refugees. But underneath it's about safeguarding liberty.

Everything in the case turned on the fact that they - like all boat people since mandatory detention was introduced by the Keating government in 1992 - were deprived of their liberty while their claims were assessed. One way of boiling down this dramatic decision to its essentials is this: the High Court will ensure the courts are always there to see that liberty is only lost according to law.

The judges appear to be making amends for what is widely regarded as one of the High Court's worst decisions. Five years ago a majority of the judges decided Ahmed Ali Al-Kateb, a Palestinian whose claim for refugee protection had been rejected, could be held in Australia in immigration detention for the rest of his life if no other country would take him off our hands. So shocking was that conclusion, that Al-Kateb was released from detention by the Howard government. They could not live with a rule they themselves had asked the court to make. Al-Kateb has since become an Australian citizen. But his name is in the law books marking an embarrassing low point in the High Court's valuation of liberty.

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Asylum Seekers are transported to Christmas Island by barge. Photo: Allison Millcock

The tone and approach of the judges to the predicament of M61 and M69 could not have been more different. This was all about setting limits on governments acting alone to deprive people of their liberty.

A little history is required at this point. Back in 2001, Australia set up a deliberately second-class system for assessing refugee claims by boat people. About 14,000 have gone through that system which has never been fundamentally challenged until now. The architects of the scheme tried to exclude the courts by separating as far as legally possible the assessment of claims from the minister's role in granting visas. Assessments of visa claims were said to be "non statutory" investigations - hence outside the control of the courts - and only once they were complete did the minister enter the picture. Whether he granted a visa at that point was something said to be absolutely at his personal discretion. Once again, the courts were supposed to be excluded.

They might work, said the court, except that while each case was going on - and here the judges used italics to indicate the crucial importance of these few words - "the claimant was detained". And that changes everything. Loss of liberty, said the seven judges, can only be for lawful purposes. No one can be detained in ways beyond the supervision of the courts.

Technically, the High Court collapsed the distance between the assessors and the minister. The court found that despite claims to the contrary, the minister was there at the start directing the assessors to do their work. They are not independent of the law but caught up in the machinery of the Migration Act. The work of the assessors - but not the minister - can therefore be directed by the courts.

The ultimate upshot? Shock, horror: all asylum seekers have to be dealt with fairly and according to law. And governments of all persuasions are on notice that the court now takes far more seriously its traditional role as guardian of liberty.

MAINLAND DETAINEES

Darwin detention: 449

Alternative accommodation in Darwin: 448

Sydney detention: 164

Alternative accommodation: 29

Melbourne detention: 19

Alternative accommodation: 41

Brisbane detention 38

Alternative accommodation: 87

Weipa Qld detention: 291

Perth detention: 33

Alternative accommodation: 23

Leonora, WA, detention 199

Curtin, WA, detention 747

Port Augusta detention 59

Adelaide alternative accommodation: 2

* Alternative accommodation includes community detention and transit housing

SOURCE: IMMIGRATION DEPARTMENT AS AT NOVEMBER 5



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