Never say never

abbas.jpgIt’s a wonderful day for a constitutional law academic. O frabjous day! Callooh! Callay! The High Court hands down two parallel decisions dealing with a plethora of subtle and interesting constitutional questions: the nature of judicial power and Chapter III of the Constitution; the distinction between the incidental power and the core aspects of a constitutional law-making power; fine distinctions of constitutional and statutory interpretation. I’ll have a ripping good time challenging undergraduate law students with all those lovely issues.

Unfortunately, Abbas Al Khafaji (an unsuccessful Iraqi asylum-seeker) and Ahmed Al-Kateb (a stateless Palestinian born in Kuwait) are very unlikely to share my sense of intellectual delight this afternoon. The High Court has just decided by a 4:3 majority that the Commonwealth can lawfully keep them in mandatory immigration detention indefinitely, perhaps even until death do them part from the clutches of Amanda Vanstone.

The result is even more unfortunate than it might seem for Messrs Al-Kateb and Al Khafaji, because there’s not a thing either of them can do about it, even though neither has committed any criminal offence. Nor is either an Al’Qaeda suspect or any other species of threat to Australia’s national security. It’s just that no country on earth will allow them entry, and Australia doesn’t want them either. But the Howard government still insists on their remaining in detention until deported. Since there’s no realistic prospect of their ever actually being deported (because no-one will accept them), it’s a particularly vicious form of Catch 22.

Although there are many delightfully subtle points of law involved in the various Justices’ reasoning, the main points are reasonably straightforward.

Statutory interpretation

The dissenting (or minority) Justices (Gleeson CJ, Gummow and Kirby JJ) held that:

  • The principal section authorising mandatory immigration detention of people arriving in Australia without a visa (section 196 of the Migration Act 1958 (Cth)) is ambiguous. In those circumstances, a beneficial interpretation should be preferred, consistent with the principle that Parliament is presumed not to intend to infringe fundamental civil liberties.
  • In any event, the evident statutory purpose of the section is for detention to facilitate availability for deportation. Once deportation is no longer a realistic possibility, the section no longer authorises ongoing detention.

Gleeson CJ explains this argument most clearly:

In its application to the appellant, the Act says that he is to be kept in administrative detention until he is removed, and that he is to be removed as soon as reasonably practicable. That could mean that the appellant is to be kept in administrative detention for as long as it takes to remove him, and that, if it never becomes practicable to remove him, he must spend the rest of his life in detention. The appellant contends that it is also capable of another meaning. It may mean that the appellant, who is being kept in detention for the purpose of removal, which must take place as soon as reasonably practicable, is to be detained if, and so long as, removal is a practical possibility, but that if, making due allowance for changes in circumstances, removal is not a practical possibility, then the detention is to come to an end, at least for so long as that situation continues. …

It is submitted for the respondents that the terms of the statute are general, but tolerably clear, and that if there is a silence on the particular problem raised by the case of the appellant, that is only because it is sufficiently covered by the general words. I am unable to accept that submission. The Act provides that the appellant must be kept in detention until he is removed from Australia under s 198, and s 198 provides that he must be removed as soon as reasonably practicable. The Act does not say what is to happen if, through no fault of his own or of the authorities, he 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. [KAP – my emphasis]

The majority disagreed, but I’ll deal with their reasoning further down the page.

Constitutional separation of powers

Justices Gummow and Kirby also decided in favour of Al-Kateb and Al Khafaji on the broader ground that indefinite administrative detention by the executive government breached the constitutional separation of judicial powers doctrine once it could no longer be said to be for the purpose of facilitating deportation. Justice Gummow explains why:

The continued viability of the purpose of deportation or expulsion cannot be treated by the legislature as a matter purely for the opinion of the executive government. The reason is that it cannot be for the executive government to determine the placing from time to time of that boundary line which marks off a category of deprivation of liberty from the reach of Ch III. The location of that boundary line itself is a question arising under the Constitution or involving its interpretation, hence the present significance of the Communist Party Case. Nor can there be sustained laws for the segregation by incarceration of aliens without their commission of any offence requiring adjudication, and for a purpose unconnected with the entry, investigation, admission or deportation of aliens.

The majority Justices (McHugh, Hayne, Callinan and Heydon JJ) rejected this argument, though very unconvincingly. Justice McHugh said:

It is not true, as Kirby J asserts, that “indefinite detention at the will of the Executive, and according to its opinions, actions and judgments, is alien to Australia’s constitutional arrangements”. During the First and Second World Wars, the National Security Regulations authorised the detention of persons who, in the opinion of the executive government, were disloyal or a threat to the security of the country. Many persons born in Germany were detained under these Regulations in both wars, while many persons born in Italy were detained under the relevant regulation during the Second World War. However, detention was not confined to those born in the countries with which Australia was at war. As the detention of members of the Australia First Movement demonstrates, foreign birth was not a necessary condition of detention. P R Stephensen, one of the leaders of that Movement, was detained for almost three and a half years.

Indeed, it wasn’t only the Australian government that perpetrated such acts. The US Supreme Court also upheld detention of ‘enemy’ aliens during World War 2, in Korematsu v United States (1944). But, as Justice Kirby tellingly observes:

Such cases are now viewed with embarrassment in the United States and generally regarded as incorrect. We should be no less embarrassed by the local equivalents.

Kirby goes on to observe that current US constitutional law (in an area where our constitutional structure was directly copied from the US model) rejects Korematsu:

In another important and recent case which can now be added to those that I have cited, Rumsfeld v Padilla, Stevens J (Souter, Ginsburg and Breyer JJ joining) explained:

“At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people’s rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber.”

Here it’s not even suggested that continuing indefinite detention has anything to do with “investigating and preventing subversive activity“. Al-Kateb and Al Khafaji are innocent of any wrongdoing. It’s just that the executive government feels like making an example of these men to deter others from choosing Australia as a destination. It’s an understandable objective, but achieved at what price? Moreover, when expressed in that way, it’s clear that what’s being done here is inherently punitive in nature. Punishment is a core attribute of judicial power. And judicial power is something our Constitution forbids the executive government to exercise.

International law relevant?

Justice Kirby would also have decided the matter by applying principles of international law. Neither Gleeson CJ nor Gummow J wanted a bar of that sort of argument, and McHugh J (one of the majority Justices) gave it short shrift indeed:

Finally, contrary to the view of Kirby J, courts cannot read the Constitution by reference to the provisions of international law that have become accepted since the Constitution was enacted in 1900. Rules of international law at that date might in some cases throw some light on the meaning of a constitutional provision. Interpretation of the term “aliens” by reference to the jus soli or jus sanguinis is an example. But rules of international law that have come into existence since 1900 are in a different category.

The claim that the Constitution should be read consistently with the rules of international law has been decisively rejected by members of this Court on several occasions. As a matter of constitutional doctrine, it must be regarded as heretical.

Kirby’s argument is actually much less silly than McHugh makes it sound, but it didn’t command any support at all from his brother Justices so I won’t spend any more time on it here.

The majority decision – never say never

The central reasoning of the majority Justices was brutally simple:

  • Section 196 is clear, straightforward and unambiguous. There is simply no scope for the beneficial interpretation advanced by the minority. The section clearly intends to provide for mandatory detention in all circumstances until deported, however long that might take.
  • The fact that there is no foreseeable or realistic prospect of deportation doesn’t mean that the statutory purpose of detention pending such deportation isn’t still operative.

The majority reasoning was most clearly expressed by Justice Hayne:

This appellant’s case stands as an example of why it cannot be said that removal will never happen. His prospects of being removed to what is now the territory in Gaza under the administration of the Palestinian Authority are, and will continue to be, much affected by political events in several countries in the Middle East. It is not possible to predict how those events will develop. The most that can be decided with any degree of certainty is whether removal can be effected now or can be effected in the future pursuant to arrangements that now exist. Of course, it must be accepted in the present appeal that, as the primary judge found, “there is no real likelihood or prospect of [the appellant’s] removal in the reasonably foreseeable future”, but that does not mean it will never occur. Whether and when it occurs depends largely, if not entirely, upon not only the course of events in the Middle East (his preferred destination being Gaza) but also upon the willingness of other countries to receive stateless Palestinians. [KAP – my emphasis]

Never say never, as James Bond might have put it! All Mr Al-Kateb will need to do, as he counts off the months and years spent behind razor wire at Baxter or Villawood, is to hope the situation in the Middle East solves itself. No problem. Might happen any day now.

What does it all mean?

The uncompromising ruthlessness of the majority Justices’ reasoning is most starkly encapsulated by a passage quoted by Justice Hayne from (US Federal Court) Judge Learned Hand in a dissenting opinion in United States v Shaughnessy:

“An alien, who comes to our shores and the ship which bears him, take the chance that he may not be allowed to land. If that chance turns against them, both know, or, if they do not, they are charged with knowledge, that, since the alien cannot land, he must find an asylum elsewhere; or, like the Flying Dutchman, forever sail the seas. When at his urgence we do let him go ashore – pendente lite so to say – we may give him whatever harborage we choose, until he finds shelter elsewhere if he can.”

It’s a rather more verbose way of expressing John Howard’s immortal wedge quote:

We will decide who comes to this country and the circumstances in which they come.

Al-Kateb v Godwin is noteworthy also for the evident toe-to-toe acrimony between Justices McHugh and Kirby. The opinions of both are well worth reading for their entertainment value alone. Intellectually I prefer Chief Justice Gleeson’s relatively conservative reasoning. Nevertheless (and unusually for me), I also endorse Justice Kirby’s more heartfelt approach. Must judges remain detached, cool and objective when they’re adjudicating whether governments may imprison innocent people forever? It’s one thing to support mandatory detention of unlawful immigrants pending deportation (as I do), but quite another to countenance the indefinite detention of someone who has done nothing wrong other than to display such poor judgment as to come to a country that pretends to be free, but whose constitution and laws allow an innocent man to be locked up without hope of release. Kirby at least expresses the outrage any decent human being must surely feel about a government that perpetrates such injustices:

As Gummow J points out, the law-making power with respect to aliens, upon which McHugh J relies for his contrary opinion, is granted to the Federal Parliament subject to the Constitution. That includes, relevantly, subject to Ch III of the Constitution. Indefinite detention at the will of the Executive, and according to its opinions, actions and judgments, is alien to Australia’s constitutional arrangements.

This Court should be no less vigilant in defending those arrangements – and their consequences for the meaning of legislation and the ambit of the judicial power – than the United States Supreme Court has lately been in responding to similar Executive assertions in that country. The constitutional norms are not the same in each country. We have no equivalent to the Fifth Amendment in our Constitution. The United States Constitution contains no express subjection of the legislative power to Art III. Its notions of the judicial power have developed somewhat differently. But the result of each Constitution is similar in this respect.

I dissent from the majority view in this case. Potentially, that view has grave implications for the liberty of the individual in this country which this Court should not endorse.

“Tragic” outcomes are best repaired before they become a settled rule of the Constitution. …

We should be no less vigilant than our predecessors were. As they did in the Communist Party Case, we also should reject Executive assertions of self-defining and self-fulfilling powers. We should deny such interpretations to federal law, including the Act. Unlike Callinan J, I would not have this Court surrender the power of unlimited executive detention to a Minister’s “intention” any more than to an open-ended interpretation of the Parliament’s command that removal from Australia be “as soon as reasonably practicable”. This Court should be no less defensive of personal liberty in Australia than the courts of the United States, the United Kingdom and the Privy Council for Hong Kong have been, all of which have withheld from the Executive a power of unlimited detention.

Quite so. Maybe it’s not such a wonderful day after all. I’m not even slightly delighted . In fact it’s a day of mourning not just for Messrs Al-Kateb and Al Khafaji, but for everyone who values liberty, the rule of law and the constraints on unlimited executive power which are so central to liberal democratic principles. What a bunch of miserable bastards.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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qm
qm
2022 years ago

Thanks for this Ken, a good analysis. I must say that I am a little surprised at the majority opinion, not at the ambiguity question, but on the separation of powers. It is perhaps a reflection on the changes in our attitudes to national security and individual freedoms since the War on Terror began. In the past their approval of mandatory detention has resisted the separation of powers argument because there is a clear end in sight. However, to argue that this is the case here is merely a legal fiction. Perhaps if the Tampa decision had reached the High Court before they were shipped off to Nauru then the precedent might have been set differently.

Ken Parish
Ken Parish
2022 years ago

QM

I agree. Although I think Gleeson’s statutory interpretation reasoning is fairly clearly to be preferred on principle over the majority view, it’s shortcoming in a broader sense is that it would be simple for the legislature to overcome by amendment of the Act (assuming it could get it through the Senate). Gummow and Kirby’s separation of powers argument is slightly more arguable, but still well within the bounds of conventional judicial reasoning on Chapter III, and wouldn’t readily permit the Parliament to overcome it.

The majority approach blithely ignores basic constitutional principles and concepts in favour of a ridiculously constipated definition of judicial power that essentially surrenders abjectly to an overbearing executive government. That isn’t what the Founding Fathers (especially Andrew Inglis Clark) had in mind for the High Court as the keystone of the federal arch. So it’s actually a sad day for constitutional lawyers as well as lovers of liberty.

yobbo
2022 years ago

This sounds familiar. There was a guy in a similar situation (Palestinian I think) who was stuck in Charles De Gaulle airport for 10 years because he had no country of origin to go back to. They were making a movie about it.

Why can’t the Iraqi go back to Iraq?

Ken Parish
Ken Parish
2022 years ago

Sam

I don’t know, and I don’t know why he can’t go back to Syria either (where he was at one time). The Federal Government put confidential security evidence before Mansfield J at first instance, and he ade a confidentiality order forbidding disclosure of those facts, but concluded on the basis of them that there was no reasonable prospect of his being able to return there. I’m not sure that the possibility of Iraq was argued as such, because the first instance hearing took place before last year’s US/UK/Aust invasion/liberation. The nature of High Court appeal is such that the matter is argued on the basis of the factual findings in the court of first instance. Thus it might conceivably be possible for Al Khafaji to go to Iraq now Saddam’s gone. I just don’t know.

It’s the point of principle that concerns me as much as the plight of the individuals: that executive government now has an unlimited power of indefinite detention of aliens who have nowhere to go and have done nothing wrong, and no court can do anything to intervene.

peggy sue
peggy sue
2022 years ago

We can just hope that some other country will show up Australia, and grant these men refugee status.

c8to
2022 years ago

“It’s just that the executive government feels like making an example of these men to deter others from choosing Australia as a destination.”

im confused, havent these two men been before the high court and the judiciary has made the decision, not the executive.

Al Bundy
Al Bundy
2022 years ago

I swear that my blood pressure escalates dangerously every time Kirby opens his mouth. On the subject of the detention of ‘enemy’ aliens, he says:

…Such cases are now viewed with embarrassment in the United States and generally regarded as incorrect. We should be no less embarrassed by the local equivalents.

Oh, really? I wonder, is Kirby a scholar of WWII? I doubt it. Does he recall what the Reich’s perspective on homosexuals was? Even better, what the Reich’s perspective on homosexual intellectuals was. My point being that those were dark and violent days, and for some coddled, hand-wringing elite enjoying the comfort and security of modern day Australia to suggest that he knows what our elders should have done back then is presumptive to say the least.

In fact, my old man was dodging Jap machine gun bullets in New Guinea at the time, and I don’t think the civil rights of Japanese internees was of pressing concern to him at the time. My uncle died as a tail gunner in the Middle East fighting the Nazis – you remember them, that little outfit with a penchant for sticking pink stars on gays and putting them in ovens.

But the Kirbster would prefer we had not resorted to anything so vulgar as detaining their countrymen over here.

The majority decision was absolutely correct:

…The section clearly intends to provide for mandatory detention in all circumstances until deported, however long that might take…

Having said that, I sincerely hope Fatty Vanstone has the brains to use Ministerial intervention to expedite their release not too far down the track. That should take the wind out of the civil rights lobby’s sails and make sure that Al Khafaji and Al Kateb do not become martyrs to the cause of a Bill of Frights.

c8to
2022 years ago

i agree this statement is supercilious:

“…Such cases are now viewed with embarrassment in the United States and generally regarded as incorrect. We should be no less embarrassed by the local equivalents”

this is a fairly pathetic argument. it appears he hasnt analysed the security threat of foreign nationals in wartime, against the costs to civil liberties of detaining them (probably in relative comfort)…he merely states they are “viewed with embarrasment”

Ken Parish
Ken Parish
2022 years ago

C8to and Al

You’re probably right that one of the main reasons why the majority didn’t embrace the constitutional argument (i.e. that indeterminate administrative detention in this situation is an exercise of judicial power by a body that isn’t a court) was the consciousness that wartime exigencies might conceivably require internment of enemy aliens.

But that doesn’t justify the bizarre majority reasoning in this case. It would have been quite possible to hold this situation as an impermissible exercise of judicial power by the executive (as they should have done IMO), while noting that wartime conditions might justify actions that would not be constitutional at other times. The defence power (section 51(vi)) has always been interpreted so that its scope expands during wartime and shrinks when we’re at peace. Infringements of basic freedoms that would be totally unacceptable during peacetime might have to be tolerated when we’re at war.

The High Court could simply have acknowledged that the defence power might permit exercises of power by the executive that would be regarded as judicial power at any other time (e.g. internment of enemy aliens), but proceeded to strike down the purported exercise of power in the present situation, which has nothing to do with war or national security threats.

You’d hope that even in wartime it wouldn’t be necessary to intern ‘enemy’ aliens indiscriminately without any evidence or basis for suspicion against individuals before internment. But it might well depend on the imminence of peril and the extent to which the enemy has established “fifth columns” within the country that might be very difficult to detect. So I agree that Kirby’s statement is a bit sweeping and naive, but he’s still making a valid point: generally speaking, and except in very extreme circumstances, imprisonment should only occur after conviction by a court, not by arbitrary executive action. It’s a critical protection of liberty, and one we should guard jealously.

mark
2022 years ago

But Al, Kirby’s absolutely right: the Americans are embarrassed about detaining Japanese immigrants (and even people of Japanese descent) during WWII. The fact that your uncle was killed by Germans might seem relevant to you, but AFAICT it’s not the most convincing refutation of Kirby’s writings one could possibly come across. “The Nazis hated homosexuals, therefore he should not comment on the way Americans view the actions of their government against Japanese people.” Okay, then.

“YOU NEED ME ON THAT WALL!”

Maybe detaining foreigners is necessary in wartime. Never having had to deal with the issue personally, I’m not qualified to comment “yea” or “nea”. But it is not something to be done easily or on a whim, and it is not something to be proud of.

It is also an example of something the government should not — and, IMHO (although the High Court seems to disagree), cannot — do in peacetime. There’s something about the Executive getting the power to indefinitely detain people for reasons of their own that really doesn’t sit right with me, and I don’t see how anyone could applaud it. Not even if it would teach those nasty people-smugglers a lesson.

Al Bundy
Al Bundy
2022 years ago

Mark,

Look up the history of Pearl Harbor, and see if you can guess who it was that provided the incredibly detailed intelligence on the geography of the port and the disposition of the Seventh Fleet back to Hirahito to prepare for the 1941 attack.

Ethnic Japanese civilians living in Hawaii, that’s who.

I’m suggesting that Kirby’s ’embarrassment’ might be moderated in the case of German war-time internees if he saw the treatment his fellow homosexuals were receiving in Nazi Germany. It just might bring home the realisation that there are bigger threats to his precious agenda on civil rights than the executive arm of a democratically elected government.

No one is telling you to be proud of anything, Mark. I’m simply refusing to share Kirby’s embarrassment, that’s all.

c8to
2022 years ago

i actually don’t think theres anything wrong with the executive determining that asylum seekers who have nowhere else to go remain in detention.

having said that, in this case it seems like the right thing to do would be to release these two, (if they clear security checks) and make a big fuss about how they really had nowhere else to go, that deportation was absolutely impossible, and then that australia made an exception and took them in, being the nice guys that we are.

this would hopefully allow us to have a strong deterrent stance (since it is clear that if we have a soft approach we merely encourage people smuggling, as opposed to helping the most genuine refugees) and yet still do the just thing in the case of these two individuals.

hopefully this would not result in much of an influx of people since we could still deport anyone who had somewhere else to go.

as a further point, i think the constitution should only apply to australian citizens and permanent residents, not just anyone who turns up on our shore, which would obviate the need to excise parts of australia. (im not saying people who turn up on our shore should not be treated justly, but we should be able to set different laws for them and not be bound by the constitution necessarily

John Quiggin
John Quiggin
2022 years ago

There is justified embarrassment over Australia’s detention practices in both World Wars. We held lots of anti-Nazi Germans (for example, those deported from the UK in the Dunera) years after it should have been apparent they were on our side.

And while I’m no fan of the Australia First group, people with similarly silly and/or repugnant views were allowed to air them in Britain during the War. The fact that this case is being cited by the High Court majority ought to be ringing alarm bells.

That said, this decision and the associated policy are far worse than anything done in either of the wars. The government has made no claim that the people they are locking up indefinitely present any threat whatsoever.

Don Wigan
Don Wigan
2022 years ago

Wartime conditions may require some special treatment, as Al implies. But we should also be careful it doesn’t drift into jingoism, which is probably where Kirby was coming from.

To give you a practical example from World War I, my sister-in-law’s grandfather, a German migrant, was a prosperous storekeeper in WA. His store was razed to the ground by ‘patriotic’ vandals and he and his family were interned.

At the end of the War they moved to the Barossa in SA, where at least they felt safe with fellow ex-German settlers. They took up the rather weird Christadelphian faith for the one reason that it was vehemently opposed to War, which they regarded as an evil and encouraging others to evil.

W
W
2022 years ago

Ken, Great post. Knew you’d do good work on this. I disagree with your conclusions. I think better legal judgement has prevailed in the majority opinion. There is no ambiguity in the relevant law, no matter how much Kirby Gleeson and Gummow go in search of. And just because deportation cannot occur today is no reason for detention to suddenly become illegitimate. Deportation can occur in future – quite probably will within 4 years if Bush gets returned and he keeps on his clean up of Middle East hypocrisy in the Arab nations’ refusal to accord Palestinians any rights and he keeps his pressure on Israel and the Palestinians to get their stinking cesspool mess cleaned up as well, probably on a new border for Israel where they give up all Gaza and part of the West Bank but not all of it. Kuwait is the bad guy in this fact situation re Al-Kateb. They refuse to take him because he has no papers – and they give him no papers because his parents were Palestinian. Disgraceful. And I am delighted that our highest court has not let the Kuwaitis off the hook.
Let’s start a movement to get the Kuwaitis to let Al-Kateb go home. He has asked to go back to his home and Oz is willing to arrange it for him. I am delighted the court has its eye firmly on interpreting our law as it is and not letting it get weakened to suit some scumbag Arab despots and the loonyleft feelgood wing of jurisprudence in this country, which thankfully is a minority only. A noisy one which is a very good thing – Kirby’s judgements are a pleasure to read however wrongheaded I find his conclusions when he starts on his International Law cheering. But thank goodness it is a minority because if they were in the majority we’d have judgements of the quality of that crap spouted by the International Criminal Court at the Hague about Israel’s wall – appalling all round.

mark
2022 years ago

Fair enough, Al.

But — there’s always a ‘but’, eh? — the Executive still must not be allowed the power to detain anyone they choose, for whatever reasons they choose. The Govt is hardly bothering to conceal that they wish to detain people as punishment (“pour encourager les outres”, which I’ve definitely misused and probably mispelled, but you get the drift). By sitting back and letting them do it, the highest court in the land is signalling that an independant judiciary may as well not exist in Australia. That’s disgusting.

mark
2022 years ago

(caveat I forgot to add to that comment: “in peacetime”. Even if one were to concede that we are at war in some form or other, despite “Mission Accomplished” and all, it’s hard to imagine how keeping these gentlemen locked up aids the war effort.)

Darren
2022 years ago

Thankyou for this very well thought out piece.

Would it be ok for me to link it from my site? I’ve done so but if you wish for me to remove the link please let me know via email.

Once again thankyou, this is of reat help.

Shalom

d

Darren
2022 years ago

“Thus it might conceivably be possible for Al Khafaji to go to Iraq now Saddam’s gone”

Well, I’d ask if it’s fair to send a man with no property, money and no way of earning money over the last many years in Australia back to a country where there is nothing for him to go to.

cate
cate
2022 years ago

Why isn’t anyone asking why we can’t accept people that our government recognises as refugees? Al Khafaji has been called a refugee by the department of immigration since 2000. so why continue to lock up a refugee?

He fled the person our country has been fighting ie Saddam.

Ken Parish
Ken Parish
2022 years ago

Cate

A point well taken. It was found that Al Khafaji was a refugee from Saddam’s Iraq (i.e. that he had a well-founded fear of persecution if returned there), but he was also found to have a right to protection in a third country (namely Syria). There is an exception (designed to prevent “forum shopping”) in the Refugee Convention amd the Migration Act that denies a visa where a refugee has such a right to protection in a third country but has failed to avail themselves of it. The DIMIA delegate refused Al Khafaji a visa on that bais, and the RRT agreed.

Al Khafaji then requested in writing that he be returned to Syria. However Syria refused to take him despite the government’s best endeavours!!! So even if Al Khafaji had made reasonable efforts himself to avail himself of his (alleged) right to protection in Syria prior to his refugee application being determined, it wouldn’t have done him any good. It didn’t exist. Yet he remains in “detention” (prison) forever.

Such are the Orwellian rules applying to refugees, and such is the evil cynicism of successive Ministers for Immigration (Ruddock and Vanstone). And yet the RWDBs on this discussion thread apparently feel it’s perfectly OK that he should remain imprisoned forever. I frankly don’t understand their mentality (or that of Ruddock, Vanstone and the Department that advises them to act in this way).

jen
jen
2022 years ago

I haven’t read the comment thread.

what stops the other high court judges from interpreting the constitution in accordance with international law – yes I’m thinking global community again community first and law after -this is a real example of that – another opportunity to change the way we govern ourselves in an international legal context that includes all citizens and doesn’t allow some to not exist like this – these guys are lost in the world because the law won’t catch up with their predicament. Does this make any sense or is there just too much I don’t know for you to begin to answer?

jen
jen
2022 years ago

Mr Bundy

those were dark and violent days but they WERE – this is 50 years later the world has an experienced looking for inspiration UN (IMO – which steadfastly ignores the detail of situations – that’s what parish is for)and we communicate more closely (bleedin obvious here) so what is the problem with allowing people who are innocent to be free? – Aust law lets criminals out on probation etc

Ken Parish
Ken Parish
2022 years ago

Jen

I know you’re interested in this international law stuff. To save you having to wade through all the judgments, I’ll copy and paste Kirby’s reasoning on the point, and McHugh’s contrary argument. Then you can muse about it yourself. In fact, I might even put up a short post about it and attach the relevant judgment extracts, so others who want to debate that specific point can do so.

Bec
Bec
2022 years ago

Darren and Cate – I agree with you both totally. I am astonished by some of the comments on this web site.

I don’t know why some people believe they are superior to these men who have simply sought asylum in Australia. While these website surfers are sitting in the comfort of their home, and surfing the internet in their idyllic world of freedom, these men are sitting in detention, perhaps for the rest of their lives.

Think about that for just one moment and you may realise that this is quite serious!

What did they do to deserve this kind of treatment? and why are they not treated like human beings? Is it because they are from the ‘MIDDLE EAST’? Are they sub-human?

Abbas Al Khafaji has been recognised as a genuine refugee by DIMIA, the RRT and the courts. He was not given refugee status because the Australian Government believed that he had ‘effective protection’ in Syria. This fact has recently been proven false, since they won’t allow him to return!

All Abbas wants is his FREEDOM. To be treated like a human being – would be great too! He asked the Government to send him anywhere, just as long as he was released from immigration detention! However, the Australian government are unable to send him anywhere and every other Western democratic country has refused because they believe Australia should grant him protection, especially since we are a safe country and have signed the Refugee Convention!

When Abbas and his family left Iraq, because his father was involved in a political opposition group, their Iraqi citizenship was cancelled by Saddam. However, when Abbas got to Syria, he lived there with his family as illegal immigrants – with no documentation and no rights.

In Syria, Abbas was not allowed to work, regster marriage, births, etc… You know – all those BASIC things that we can do!

Technically, the Australian government could return him to Iraq. But, Australia has not sent any Iraqi refugees back yet, because it is clearly UNSAFE.

I don’t know who Al and C8to think they are, deciding that REFUGEES who may have no property, money or family in Iraq should be returned there. Or maybe Al and C8to represent the people in Australia who genuinely believe that Afghanistan is a safe place as well and those poor Afghani refugees were rightly returned there too!

I wish i was that naive!

Refugees are people who flee their homeland not because they WANT to but because it is their only hope at living a normal life like you and me where they are not at risk of SERIOUS human rights violation. Abbas and all the other refugees did something any of us would do in the same situation.

This Government has chosen to PUNISH those who are merely seeking our protection and asylum. This should not sit well with any person’s morality.

If the majority of Australians feel that the Government is justified in their actions. (And if people feel that way after educating themselves about the real facts and not just reiterating government rhetoric) – I am truly ashamed to be AUSTRALIAN.

yobbo
2022 years ago

“If the majority of Australians feel that the Government is justified in their actions. (And if people feel that way after educating themselves about the real facts and not just reiterating government rhetoric) – I am truly ashamed to be AUSTRALIAN.”

Well fuck off then, hippie. (someone had to say it, might as well be me).

Mark Platt
Mark Platt
2022 years ago

I think yob is asking for some indefinite detention for that one :)

Ken Parish
Ken Parish
2022 years ago

No, we observe international humanitarian law principles here at Troppo, Mark. But I don’t think those principles prevent us from circulating a copy of Sam’s anti-Qantas rant among all the cabin crew next time he travels on the Flying Kangaroo (if the Gravett empire ever reappears). What we need is a Perth informant.

Mark Platt
Mark Platt
2022 years ago

So. Where’s Rob Corr when you need him?…

Lucy
Lucy
2022 years ago

I am surprised at how xeneophobic some of these comments are. Is it possible to remove offensive comments from this forum? Many of us are interested in protecting Abbas’ human rights, and I think that should be our focus.

I would like people to keep in mind that Abbas is human being, and as such is entitled to dignity and respect.

Before we jump to conclusions about who is and is not deserving of respect for their human rights, put yourself in Abbas’ position. How you would feel if your life was in danger because of your father’s political beliefs, and no country would offer your protection? How would you feel if for seeking asylum in another coutry, you were locked up indefinitely?

Please, to everyone who cares about human rights, express your discontent about the decision to Amanda Vanstone. Pressure is the only way we will get the government to act. Abbas needs permenant protection now. Hasn’t he suffered enough?

Al Bundy
Al Bundy
2022 years ago

I say, Bec, do STOP YELLING. We can hear you perfectly well.

The only opinion I recall proffering on the fate of the two in question was that the Minister should use her discretionary powers to get their arses out of the can. Where that fits in with your outburst, I’m not exactly certain.

My interest in the matter lies in the judicial activism of a particular high court justice, and his constant attempts to subvert the power of the Executive (that’s the bit of the government you and I (aka ‘the people’) vote for).

As for your shame at being Australian, six generations of my family have toiled long and hard and fought in several wars so that hand wringers like yourself might be free to speak their shame at being Australian. However objectionable I might find the sentiment, I am pleased that you can do so without fearing any greater consequence than a Yobbo style rebuff.

To summarise my position on this pair, I find the situation to have parallels with the ‘battered wife’ defence in cases of spousal homicide. IMHO this bit of nonsense was a fine example of judicial activism which is now cited as precedent every single time the missus does away with hubby. Instead of finding a guilty verdict and reflecting the mitigating circumstances by issuing a suspended, or perhaps token, sentence, we get this dangerous business of a get-out-of-gaol-free card.

The same applies to the case in question. I just express my preference that the Minister, as my representative, is the one that gets them out of the can, not some bunch of unelected pontificators discussing esoteric principles of ‘International Law'(my opinion of which might be found elsewhere in this fine forum).

mark
2022 years ago

Lucy, I don’t think Ken’s much of a fan of censorship. He’ll close threads that he thinks are getting too heated, and will delete spam comments, but he’s not one for deleting stuff he (or you or I) disagrees with. But y’can ask, I guess.

Al, the Executive is actually that part of government that we don’t vote for (America does). We vote for the Legislature. The party with the most seats in the House of Reps is then invited by the (appointed) G-G to form Government. After single-handedly creating the Government of Australia, the G-G then gets to create his Cabinet, from the ranks of elected officials (although he may temporarily appoint outsiders).

Okay, in practice the G-G is whoever a PM wants him to be. And the actual ruler is the leader of the party in government. And Cabinet, while appointed by the G-G, is appointed out of the people the PM wants to do the job. But under the Constitution, we do not vote for the Executive — and it’s only under a creative interpretation of conventions that we can say we vote for it in practice, too.

Pedantry aside, if you replace “Executive” with “Legislature”, your point stands. But that then ignores that the HC should be disagreeing with the Executive over the separation of powers here :-)

Al Bundy
Al Bundy
2022 years ago

Mark, thanks. You’re correct, of course.

Still, while the voting public doesn’t get to choose the Cabinet, it does get to choose the reps that make it up, and effectively choose which party will be in government.

If the Australian public are truly revolted by the decision to keep this pair in detention, then the Opposition should make that a rallying point for the next election, and legislate changes to the Migration Act when they get elected.

It still gives pays a lot more lip service to democracy than seven lonely men on the shores of Burley Griffin arguing with one another.

Robyn Clothier
Robyn Clothier
2022 years ago

How fortunate that we who are already in Australia, already are! And how convenient that we do not have a land border with any other country! With the detention centres at a comfortable distance from our cities and contact with detainees made very difficult, we are free to argue the technicalities of the law without having to think too much about the actual people involved.

Australia is one of the richest countries on earth. We can afford to be more generous than this! Its time we changed our laws to match our moral responsibilities.

mark
2022 years ago

Thing is, Al, could the country stomach Howard’s attempts at counter-arguments? It would certainly be an interesting election issue, anyway: “Howard and his cronies have locked up two innocent men without due process. These men will be locked up for the rest of their lives, for reasons of dubious effectiveness and legality. Howard thinks you’re stupid enough to cheer on such a thing!” Sounds a bit unwieldy, though.

Mind you, Latham would probably be more eloquent than I. At the very least, he’d manage to fit in the words “arse” and “bloody” which, try as I might, I simply could not achieve.

Al Bundy
Al Bundy
2022 years ago

I don’t think the issue will have any resonance in the election, Mark. The people who feel strongly about it were not going to vote for the Coalition under any circumstance anyway. I don’t think this one’s a vote swinger.

Oh, and by the way…when you said:

Al, the Executive is actually that part of government that we don’t vote for (America does).

If you look at the role of the states and the Electoral College in the Presidential elections, I’m not sure that the Yanks have any more say in their Executive than we do.

trackback
2022 years ago

nowhere in the whole wide world

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Freeze in Hell

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The Cookie Minister and The Law

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