A 20-year fight over the indefinite detention of asylum seekers has culminated in a law advocates fear will strand refugees behind bars for life. By Mike Seccombe.
Australian government legalises ‘a crime against humanity’
At 5.40pm on Wednesday, May 12, one member of the house of representatives stood up to speak his conscience. He was the only one.
Tasmanian independent Andrew Wilkie did not hold back. He effectively accused his major party parliamentary colleagues of implicating themselves in a crime against humanity, and he made a compelling case.
The subject of his speech was a piece of legislation entitled the Migration Amendment (Clarifying International Obligations for Removal) Bill, 2021, which – on the pretext of safeguarding refugees from being sent back to where they fled possible persecution, torture, ill treatment, or other serious human rights violations – provides for indefinite detention in Australia.
Wilkie told the handful of members present that he disagreed on principle with the notion of indefinite detention, which has long been part of the Australian immigration regime. But particularly that this bill would allow “that someone who has had their visa cancelled and for whatever reason is unable to be returned to their country of origin could be held in immigration detention for the rest of their days”.
He reminded his colleagues that under the Rome Statute, an international agreement to which Australia is party, “it is explicitly detailed that it is a crime against humanity to hold anyone in detention indefinitely”.
Wilkie also condemned the government for “disrespecting” the courts – whenever there was a ruling against it, he said, “the government just keeps changing the law until it finds a workaround” – and for resorting to making laws retrospective, and for having enacted, over the past 20 years, “almost 100 different laws … many of which have been quite unnecessary and are very worrying extensions of the power of the state”.
He continued, listing 10 different international agreements relating to human rights to which Australia was supposedly bound, but with which those compounding border security and migration laws were at odds.
Wilkie’s words made no difference. The amendment passed with bipartisan support, albeit with minor amendments from Labor.
So, why was this law rushed through? Immigration law experts, refugee advocates and Wilkie all agree that the Morrison government was, once again, intent on negating a decision made in the Federal Court, and on pre-empting a decision by the High Court in the case of a man known as AJL20.
AJL20 is a Syrian citizen, who came to Australia as a child in May 2005.
He subsequently was convicted of a crime, an assault, and as a result his Australian visa was cancelled in October 2014. For the next five years, he was held in detention, and attempted to obtain a protection visa to stay in Australia. Despite the Home Affairs Department finding that Australia owed AJL20 protection, he was finally rejected on character grounds in July 2019.
In the normal course of events, detention operates for one of two purposes: either as a temporary measure while an applicant’s case is assessed, or as a temporary measure while arrangements are made for their removal if their application is denied.
In the case of AJL20, removal was not pursued by the government after his claim was rejected. This might seem humane and in alignment with the principle of non-refoulement – that is, not forcing refugees or asylum seekers to return to a country in which they would face a risk of persecution.
But while AJL20 was not sent back to Syria, he wasn’t set free either.
He fell into a category described by his lawyer, Alison Battisson, the director principal of Human Rights for All, as “the totally screwed”. She says these asylum seekers are “the ones who say, ‘I’m either going to die in detention here, or I’m going to die overseas, back home.’ ”
If it came down to a choice between persecution in Syria or life spent in detention in this country, Battisson says that “frankly, I think that should be up to the detainee to determine where they want to face their horrible future”.
She took AJL20’s case to the Federal Court, arguing her client’s continuing detention served neither of the two purposes for which detention is supposed to operate.
“And if you’re merely warehousing people and not pursuing either of those purposes … therefore the detention isn’t authorised under the Migration Act, and it’s not authorised anywhere else,” she says.
It was, she admits, a high-risk strategy. AJL20 could’ve ended up back in Syria.
“We had AJL20 psych tested several times to make sure he understood what he was entering into,” she explains.
But on September 11 last year, Justice Mordecai Bromberg found his continued detention was unlawful.
“And he [AJL20] was released the same day, without a visa and not a citizen, but with an 80-page judgement to explain him being in the community,” Battisson says.
The government quickly appealed – skipping the full Federal Court and going straight to the High Court.
While the High Court hasn’t yet decided on his case, the government’s rush to change the Migration Act suggests it expected it would lose on current law.
Specifically, the change that Wilkie so vehemently opposed was to “modify” the effect of section 197C of the act, which was introduced in 2014 along with a raft of other draconian measures. Section 197C said that Australia’s non-refoulement obligations were “irrelevant” to considerations of what to do with “unlawful non-citizens” who had exhausted their visa options.
Introducing this latest “clarifying” amendment, Immigration Minister Alex Hawke said the change was “essential” to show that Australia was “committed to upholding human rights, and that we remain steadfast in our commitment to these treaties and their underlying principles”.
Implicit in those words, however, is the suggestion that in 2014, when it enacted 197C, the government was not steadfast in its commitment to fundamental international legal principles.
Battisson says it still isn’t.
She says the government is not so much protecting human rights as trading one right off for another: non-refoulement against indefinite detention.
“This trading of human rights is just abhorrent,” she says.
To understand the significance of AJL20’s case, and the government’s rush to enshrine legislative protections for indefinite detention, it’s necessary to trace back two decades to the infamous case of Ahmed Ali Al-Kateb, who arrived in Australia in 2000 by boat.
Al-Kateb was denied a visa, and in 2002 he wrote to then Immigration minister Philip Ruddock requesting to be removed to Kuwait or Gaza. But there was a problem. Although Al-Kateb was born in Kuwait, as the child of Palestinian parents he did not hold citizenship there. The occupied territory of Gaza was subject to Israeli control, and that country would not have him either.
“So Al-Kateb couldn’t be removed anywhere, because he was stateless,” says Dr Sangeetha Pillai, a constitutional lawyer, and a senior research associate at the Kaldor Centre for International Refugee Law at the University of New South Wales.
“It went to the High Court and the question was, what does the Migration Act authorise in that circumstance? And was it the case that [continuing to detain him] was actually envisaged by parliament, in that situation, when it wrote the Migration Act?”
On the second question, “the High Court to that said, ‘Yes.’
“That’s how we got indefinite detention as a feature of Australian migration law. And that’s been the position since 2004,” Pillai says.
But Al-Kateb in no longer in detention. He is now an Australian citizen, married with children, working for an engineering firm and coping as best he can with the psychological scars of his ordeal by law. How can that be?
“There is a whole lot of discretion in the Migration Act,” Pillai says. “Even when the law allows for detention, the minister has the power to undo that by making the choice to grant a person a visa, and that’s what they eventually did in the Al-Kateb case.”
Perhaps there is a case for limited ministerial discretion in dealing with exceptional immigration cases. However, say the many critics of the government’s refugee policy, it is being abused as a means of avoiding judicial scrutiny, and circumventing the constitutional separation of powers between the government and the legal system.
The insertion of section 197C in 2014 provides an example. Says Pillai: “When the government introduced that provision that said non-refoulement is irrelevant, it was pitched [by saying] ‘people are not going to be sent back to places where they would face persecution, because at a level of administrative discretion, that will be avoided’.
“It is part of a trend in migration legislation to attempt to essentially take, piecemeal, what Australia wants from international law, and increasingly allow ministers to take what they want and ignore what they want.”
David Manne, executive director and principal solicitor at Refugee Legal, says the ever-expanding recourse to ministerial discretion is but one aspect of the government’s efforts of “trying to take the law out of the law”.
“The overarching characteristic in immigration and refugee law and policy in the last two decades has been a radical deviation from the ordinary legal principles,” Manne says. “There has been a persistent pattern of governments fiercely resisting scrutiny by the judiciary, and an extreme expansion of executive fiat, outside the reach of the law.”
He harks back to a case he was involved in, when the then Labor government proposed what came to be called the Malaysia Solution, which would have seen up to 800 asylum seekers sent offshore.
“The High Court found six-to-one that it was unlawful, principally because Malaysia was not bound by international or domestic law to process or protect refugees,” Manne says.
The government response, he says, was to strip out those protections from the Migration Act “and replace them with provisions which effectively said that when deciding to expel asylum seekers abroad, the minister does not have to consider the availability of international human rights or domestic law protections in the other country”.
“The only consideration was to be whether the minister considers the transfer to be in the national interest, whatever that might mean. A political judgement,” Manne says.
At least in that case, the law change came after the court decision. Pillai cites another case, not dissimilar to what has happened to AJL20, when the government moved in anticipation of a likely legal defeat.
It related to the Australian government paying contractors on Nauru.
“The argument was … the Migration Act didn’t give them authority to pay for it. And before the case was heard, between when the case was launched and when it was actually heard, legislation was passed with bipartisan support that gave the Commonwealth authority – retrospective authority – to spend money on a very, very broad range of things relating to regional processing,” Pillai says.
As a result, the case failed. There could be no clearer example, she says, of the parliament “moving to cut the court out”.
The cost of the government’s determination to be seen to be tough on refugees – primarily driven by the Coalition but abetted by a Labor Party frightened of the possible political cost of not going along – has been massive, both financially and in terms of Australia’s reputation.
Billions upon billions of dollars have been wasted; this year’s budget, for example, allocated another $812 million for offshore processing, or some $3.4 million per person held offshore. As one former senior diplomat bitterly joked, it would be cheaper to give each of them a million dollars and tell them to apply as business migrants to the United States.
The other consequence is rushed and ill-considered legislation.
“It is not necessarily wrong or unlawful for the legislature to change the law in response to a court case,” says Madeline Gleeson, senior research associate at the Kaldor Centre. But there should be a considered process.
The most recent change, she says, enacted with haste and without due consideration of better ways to achieve the stated policy goal, is an example of how not to do it, and serves to further complicate “an already labyrinthine Migration Act, overly burdened with complex cross-referential subsections and exceptions, and unduly deferential to ministerial discretion”.
It is time to step back, she says, and look at alternative models operating in Britain, Europe and the US, where “governments have the powers they need to keep their populations safe within a framework of protection for basic human rights”.
Because now the piecemeal, inhumane approach has brought us to the point where it is legal for the government to detain unfortunate souls, potentially until they die, on the pretext of protecting their human rights. It makes no difference that the major parties argue there are only 20 others in a similar situation to AJL20.
“As a matter of principle, indefinite detention without effective judicial oversight should never be permitted in our legal system” Gleeson says.
And yet, it is.
This article was first published in the print edition of The Saturday Paper on May 29, 2021 as "Australian government legalises ‘a crime against humanity’".
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