John and Mandy’s foot in mouth disease?

As longer-term readers of this blog will be aware, in a general sense I accept the practical necessity of the Howard government’s offshore processing system for asylum seekers, sometimes referred to as the “Pacific solution”. That isn’t to say, however, that I see no legal or ethical problems with any aspect of that policy.

For example, the arguments of Julian Burnside QC about the legality of detention of asylum seekers under the laws of Nauru strike me as very substantial and quite likely to succeed in the Nauru Supreme Court (assuming that they were competently argued after Burnside’s visa to enter Nauru was suddenly revoked under circumstances strongly suggestive of complicity by the Australian government).

Nor have I ever been comfortable about the morality of mandatory, universal long-term detention of illegally-arrived onshore asylum seekers, especially children. Certainly, there’s an undeniable necessity to ensure that unsuccessful asylum seekers can’t easily abscond and disappear into the illegal economy, and universal detention is an effective way of achieving that goal. In the UK, where they don’t have mandatory universal detention, about 2/3 of unsuccessful asylum seekers abscond and are never found or deported. However, the cost of the universal detention policy, in both financial and human terms and to Australia’s reputation, is very high.

It doesn’t make sense to maintain that policy if there are viable, more humane alternatives. Some other European countries (most notably Sweden, if I remember rightly) experience much lower absconding rates than the UK, apparently mostly because they have universal photo ID systems that make it very easy to locate illegal entrants. Of course, the Hawke government’s 1980s experience with attempting to introduce such a system under the name “Australia Card” suggests that this sort of policy may be fraught with political risks. But September 11, Bali and subsequent events may well mean that Australians are now much more prepared to accept the necessity of some such system. To my mind, it would be far less morally objectionable than the long-term detention of children.

However, this post was actually motivated not so much by a desire to muse idly about an old and well-ploughed topic, but because of a specific article in this morning’s media. News Online reports both Prime Minister John Howard and Immigation Minister Amanda Vanstone making remarks which, it seems to me, potentially give refugee advocates a reasonable legal argument that the detention regime (in its actual operation if not its statutory inception) may be unconstitutional. The remarks were made following the release of a HREOC report that strongly criticised the detention of children. Here’s what Howard and Vanstone said:

FREEING child detainees would encourage people smugglers, PM John Howard said today, rejecting an official report urging the release of all detained children.

Mr Howard said the Government was doing its best to reduce the number of children in detention but he said mandatory detention was a necessary policy.

“We don’t like detaining children, we really don’t,” he told ABC Radio.

“But the problem is that if you reverse the policy of mandatary detention you will be sending a beckoning signal to people smugglers and you could see a resumption of the problems we had a few years ago.”

Immigration Minister Amanda Vanstone also warned that to release the children would play into the hands of smugglers.

“What it says to people smugglers is if you bring children, you’ll be able to be out in the community very quickly,” she said.

These remarks by Howard and Vanstone may eventually prove to have been unwisely honest about the government’s real motivations. Phillip Ruddock, during his long tenure as Immigration Minister, was always very careful to stress that the migration detention regime was in no way intended as a punitive or deterrent measure; it was a ‘last resort’ whose purpose was simply to ensure that unsuccessful asylum seekers remained ‘available’ for processing and deportation. The reason for Ruddock’s insistence was quite simple: if the motivation for detention was punitive, then it’s strongly arguable that it’s unconstitutional as a breach of the doctrine of separation of powers. The issue is explained in this edited passage from the High Court’s 1992 decision Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs (case references omitted for ease of reading):

The Constitution is structured upon, and incorporates, the doctrine of the separation of judicial from executive and legislative powers. Chapter III gives effect to that doctrine in so far as the vesting of judicial power is concerned. Its provisions constitute “an exhaustive statement of the manner in which the judicial power of the Commonwealth is or may be vested … No part of the judicial power can be conferred in virtue of any other authority or otherwise than in accordance with the provisions of Chap III”. …

There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character. The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth. That function appertains exclusively to the judicial power of the Commonwealth. That being so, Ch.III of the Constitution precludes the enactment, in purported pursuance of any of the sub-sections of s.51 of the Constitution, of any law purporting to vest any part of that function in the Commonwealth Executive.

In exclusively entrusting to the courts designated by Ch.III the function of the adjudgment and punishment of criminal guilt under a law of the Commonwealth, the Constitution’s concern is with substance and not mere form. It would, for example, be beyond the legislative power of the Parliament to invest the Executive with an arbitrary power to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt. The reason why that is so is that, putting to one side the exceptional cases to which reference is made below, the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt. Every citizen is “ruled by the law, and by the law alone” and “may with us be punished for a breach of law, but he can be punished for nothing else”. …

In this Court, it has been consistently recognized that the power of the Parliament to make laws with respect to aliens includes not only the power to make laws providing for the expulsion or deportation of aliens by the Executive but extends to authorizing the Executive to restrain an alien in custody to the extent necessary to make the deportation effective. …

It can therefore be said that the legislative power conferred by s.51(xix) of the Constitution encompasses the conferral upon the Executive of authority to detain (or to direct the detention of) an alien in custody for the purposes of expulsion or deportation. Such authority to detain an alien in custody, when conferred upon the Executive in the context and for the purposes of an executive power of deportation or expulsion, constitutes an incident of that executive power. By analogy, authority to detain an alien in custody, when conferred in the context and for the purposes of executive powers to receive, investigate and determine an application by that alien for an entry permit and (after determination) to admit or deport, constitutes an incident of those executive powers. Such limited authority to detain an alien in custody can be conferred on the Executive without infringement of Ch.III’s exclusive vesting of the judicial power of the Commonwealth in the courts which it designates. The reason why that is so is that, to that limited extent, authority to detain in custody is neither punitive in nature nor part of the judicial power of the Commonwealth. When conferred upon the Executive, it takes its character from the executive powers to exclude, admit and deport of which it is an incident.

The constitutional argument would be that, while detention “for the purposes of an executive power of deportation and expulsion” is a valid exercise of executive power that doesn’t infringe separation of powers, detention for the purpose of deterring others from attempting illegal arrival is essentially punitive (and therefore judicial) in nature and not incidental to Commonwealth executive power in relation to aliens.

However, the argument faces a major hurdle. The Migration Act provides for mandatory and universal detention for all illegal arrivals (i.e. those without visas). Detention isn’t dependent on a Ministerial decision, and it would be difficult to argue (legally as opposed to practically) that Howard’s and Vanstone’s clearly punitive and therefore legally improper motives could be imputed to the Parliament that passed the law providing for universal detention. Nevertheless, Howard’s and Vanstone’s remarks might conceivably provide some joy at least for the 5 Bhaktiyari children currently still at large despite a recent High Court decision overturning an earlier Family Court decision ordering their release. Presumably some form of bridging or other visas were issued to them subsequent to the Family Court order. Revocation of those visas will require a specific decision by the Minister, and today’s revelation by Vanstone of her real motivation for detention of asylum seeker children may irretrievably taint her future exercise of the power in a legal sense. That is, it might be possible for lawyers for the children to mount a plausible argument that any visa revocation decision she now makes will be for an unlawfully improper purpose.

PS – Of course, the reality probably is that the detention regime is motivated only partly by punitive/deterrent considerations, and partly by the availability/absconding danger factor mentioned above (the latter being quite proper in a legal sense). As my administrative law students will all instantly recall (or they’d better, because they’re facing a final exam soon), the situation with legality when an administrative decision is actuated by several purposes, only one of which is legally improper, is not completely settled. Some High Court decisions hold that a decision will be legally invalid if the improper purpose is a “substantial” part of the overall purpose, while others hold that the decision remains valid unless the improper purpose was the “dominant” factor. Which test is held to be the correct one may well be determinative of the outcome should this matter ever come to trial. Howard’s and Vanstone’s ill-advised remarks may well be sufficient to establish improper purpose on a “substantial” purpose test, whereas it would be much more difficult (if not impossible) to establish on the evidence that deterrence was the “dominant” purpose.