THE LATIN phrase habeas corpus means “”you should have the body”. For 800 years, habeas corpus has been part of the law we inherited from England.
In 1215 King John granted the right of habeas corpus to his subjects. It meant that a subject could not be imprisoned without due process of law. An imprisoned person could, by a writ of habeas corpus, be brought before a judicial officer who would inquire whether the imprisonment was justified.
So the general proposition that people should not be imprisoned without due process of law became part of the common law of Australia.
So how does Australia get away with a policy of mandatory detention for all non-citizens who do not have a valid visa, including children, some of whom had been locked up behind barbed-wire in the desert for more than a year?
The reason is that the common law can be overturned by Acts of the Parliament and by the Executive Government.
As at December last year, 2023 people were in detention in six immigration detention centres. Of them, 728 had been in detention for more than six months and half of those for more than a year. In 1999-2000, 4174 boat people were detained. Only half that number is in detention at any one time, indicating an average stay of about six months.
But these are just figures. The Department of Immigration is fairly diligent about making its numbers public. Behind the figures lie many stories of courage, suffering and misery. Until recently these stories were contained behind the barbed wire of the desert detention centres. But thanks to Dr Aamer Sultan, an Iranian refugee who has been in detention for nearly two years, descriptions of the effects on refugees are coming out. Also a video tape has been smuggled out of the Villawood detention centre and was played on the ABC’s Four Corners this week.
One might well ask why it has taken so long to get the story out when the English legal tradition has it that there should be a freedom of communication in society to allow the media access to government institutions. Once again, though, that common-law freedom can be taken away quite easily by Acts of Parliament and by executive acts in the same way that habeas corpus rights can be taken away.
The Migration Act 1992 and the regulations under it provide for mandatory detention for all unlawful non-citizens. Any non-citizen 1/2 including a child 1/2 without a valid visa is deemed to be unlawful. The regulations enable the minister to make exceptions on compassionate, health and other grounds. So we have a reverse onus of proof where people are detained unless the minister decides otherwise. The Migration Act also gives power to the minister to determine the conditions of detention, including restricting communications between detainees and the wider Australian community.
It may be that other factors have caused the delay in getting this story out. They include a lack of interest by people in the media, the sheer cost of getting reporters to these remote places and the a lack of interest by media consumers, many of whom think these people can be dismissed as just foreign refugees 1/2 not real humans with real children and real emotions.
Nonetheless, the legal and political systems have a lot to answer for. Our Westminster system gives all power to Parliament. The Australian Constitution, as a general rule, does not guarantee human rights. And so, when you get a combination of Liberal and Labor MPs taking a certain position, very little can be done.
Notice that the mandatory detention provisions were enacted in the period of the Labor Government and came into force in September 1994, again in the Labor period.
It is apparent that the Westminster tradition and the common law are no longer enough to protect human rights. Before 1992, migrants without visas could only be detained on certain grounds, such as health, security or other threat. That is the approach most European countries continue to adopt, and it is one that you would expect of a liberal democracy.
How can any Australian government justify the detention for months on end of small children? How can any Australian government justify the detention of anyone 1/2 child or adult 1/2 for indefinite periods when the no crime has been committed and when no threat to national health or security is posed? It smacks of oppressive regimes like China, Zimbabwe and Malaysia. Indefinite imprisonment in Australia is usually reserved for the worst category of murderer.
And many refugees now face indefinite detention. If they are denied refugee status they cannot be sent back to places like Iraq, Iran and Afghanistan because (often under government policy) we have trade embargoes or no diplomatic representation.
We need a Bill of Rights in our Constitution. It would provide for such things as no detention without due cause and for freedom of communication to enable the media and others to monitor government performance. Without such constitutional guarantees we can see where the parliamentarians of the past decade or so might take us.
A Bill of Rights would protect us from the worst excesses of parliamentarians. Not only in the human costs from breaching rights, but also from the economic costs. More than 80 per cent of these refugees will ultimately be released and most of the others would present for deportation without detention if we developed a system of bonds from existing citizens and tightened employment procedures so they could not work without a visa. So why lock them up at a cost of $105 a day? So why add to the trauma that will make these people less useful and less grateful citizens, at great future cost in health care and lower employability? And why risk future compensation claims?
Even on the most hard-nosed view, the costs of detention are higher than the risks of release. And the cost to our jurisprudence and reputation for respecting human rights is not measurable.
Mandatory detention of all refugees is not protecting Australia from being swamped. It is a knee-jerk policy developed by fear of voter back-lash by two miserable, lazy, major parties which have not got the leadership, morality or intellect to explain how and why there is a better way. They can no longer be trusted with the broad parliamentary power they now have.