The great pretend

One part of growing up is the capacity to distinguish between the real and the make-believe. In early childhood development they talk about pretend play. Perhaps a toddler acts as if they are asleep or takes a sip from a cup they know is empty. Later they might treat a doll as if it were real or collect props and with a friend imagine they are explorers.

In children this is the development of social and emotional skills. In politicians it is the opposite. It is a desire to hold on to that which is not true, often at great social and emotional cost, to save them from encountering the world as it really is.

This week, one of the great pretendings of Australian life came to an end. The made-up logic of Al-Kateb v Godwin was finally undone. The High Court confronted the spurious logic of indefinite detention and found it to be unlawful. Twenty years of dress-ups can at last be packed away.

In a dissenting judgement, Michael Kirby wrote then what is still obvious now: “Indefinite detention at the will of the Executive, and according to its opinions, actions and judgments, is alien to Australia’s constitutional arrangements.”

The majority preferred a different, circular argument: being locked up was not punishment if the person locked up was innocent. There was a distinction to be drawn between imprisonment and segregation and an assurance that while detention camps might look and function like prisons it did not mean they were. Only the courts may punish, except if the punishment is of refugees.

This was the cruelty on which all other cruelties were built. Every time the detention system failed – and it failed often – it was saved by Al-Kateb. There was no need to clear the camps if the people inside them were not entitled to liberty. There was no need to offer settlement if a person without papers could be simply put in a room and forgotten. There was no need to act with speed or decency if time was immaterial.

When Ahmed Ali Al-Kateb’s case was heard, he had been in Australia fewer than four years. Many of the men and women who followed him would spend a decade or more in detention. The average period now is 708 days. These are long, innocent days, given away to a system that was only playing at being lawful. It is hard to imagine the damage that has been done.

Home Affairs has warned that the High Court’s decision could see the immediate release of 92 people. A further 340 might also be freed from long-term detention. The solicitor-general, Stephen Donaghue, submitted that the decision would expose the government to “inevitable” claims for false imprisonment and that some of these claims would be “undefendable”. There is only one answer to this: good.

The court is yet to publish its reasons. After 20 monstrous years, the decision was too urgent. This is the first case heard since Stephen Gageler was sworn in as chief justice on Monday. It ended a fantasy that for two decades has haunted and disfigured the country. On Wednesday, Australia learnt what was real and not real. On Wednesday, ever so slightly, Australia grew up.

This article was first published in the print edition of The Saturday Paper on November 11, 2023 as "The great pretend".

For almost a decade, The Saturday Paper has published Australia’s leading writers and thinkers. We have pursued stories that are ignored elsewhere, covering them with sensitivity and depth. We have done this on refugee policy, on government integrity, on robo-debt, on aged care, on climate change, on the pandemic.

All our journalism is fiercely independent. It relies on the support of readers. By subscribing to The Saturday Paper, you are ensuring that we can continue to produce essential, issue-defining coverage, to dig out stories that take time, to doggedly hold to account politicians and the political class.

There are very few titles that have the freedom and the space to produce journalism like this. In a country with a concentration of media ownership unlike anything else in the world, it is vitally important. Your subscription helps make it possible.

Select your digital subscription

Month selector

Use your Google account to create your subscription