The High Court has firmly and justifiably wrapped the Government over the knuckles for its shabby treatment of boat people held in detention. The treatment was shabby because the Government passed a law two days before the Federal Court was to resume hearing a case in which 37 Cambodians sought release from custody after up to two years in custody. The law attempted to prevent the court from hearing the case.
The calamity was the Government’s own making. Successive Governments have been caught in a dilemma. If they create rigid rules and apply them strictly they are accused of heartless inflexibility. If they allow more discretion they are accused of favouritism and permitting uncertainty. In the past 10 years, the Government has had disadvantage of both horns of the dilemma as its policy jumped from one to the other and then back, largely attempting to please ethnic lobbies on one hand and economic and union concerns on the other.
The end result has clearly been inhumane. It is simply unacceptable for a civilised nation to keep people in custody for years while their refugee status is ascertained. It is equally unacceptable for a nation which respects the rule of law to usurp the role of the courts in such a way.
Clearly, the Government of any sovereign nation is within its rights to determine which people will enter and which will not. Determining that will done in the he context of international obligations to refugees. Australia, in general, applies those rules generously, perhaps too generously. The High Court yesterday did not canvas Australia’s international obligations. It concentrated on the main issue: how can the Government detain people longer than a time reasonably necessary to check out claims for refugee status. This should take, as the court ruled, nine months at the most.
The case highlights a classic division between executive, legislative and judicial power in Australia. That the judiciary was willing to step in after the executive and legislature clearly failed is a matter for some rejoicing by people who treasure liberty. The executive failed because it could not execute the administrative task of determining refugee status within a reasonable time. The legislature failed because it tried to deny the courts jurisdiction to hear the Cambodians’ plea.
The lesson for the Executive Government is clear: it can expect more judicial intervention when it fails to do its job. It was same in the legal representation case brought down by the High Court last month. People charged with serious offences are entitled to state-provided legal representation if they can’t otherwise afford it. If the state fails in that, the trial will be stayed.
In the immigration field, the Federal Government must put in place administrative procedures which enable refugee status to be determined quickly and fairly. That does not mean a wholesale “turn-them-round-within-an-hour” policy. It can, however, mean turning round people in a matter of days. It must mean coming to a final determination within nine months at the absolute most.
Australia does not want its courts clogged with immigration cases. More importantly, it does not want to encourage queue jumping by not dealing firmly and fairly with claims for refugee status.
Yesterday’s case was not about the number of refugees Australia should take, or the overall policy questions of immigration in general. It should certainly not be greeted as granting open slather to boat people, nor should it be greeted with xenophobic cries about yellow hordes arriving on the sparse northern coast. Nearly all claimants for refugee status arrive by aircraft, not in boats. Boat people are a tiny fraction of immigrants.
Not all people in Australia have exactly equal rights. Children have less than adults, convicts less than the unconvicted, bankrupts less than solvents, permanent residents less than full citizens, and illegal arrivals less than legal arrivals. The law can, with justice, treat people in different categories differently. Children cannot vote, convicted permanent residents can be deported, bankrupts cannot direct companies. Illegal arrivals can be treated with administrative speed. But they cannot be locked up for two years with no recourse. At least not in a country that has a pretence to be a liberal democracy.
Whatever the number of immigrants Australia ultimately takes and whatever the soundness or otherwise of the reasons for arriving at the number, the Australian Government has an obligation to treat all people within in jurisdiction with humanity and fairness, according to law.