The Full Family Court appeared to pluck jurisdiction from the air this week when it ordered the release from Baxter Detention Centre of five Pakistani children.
Many people who detest mandatory detention have applauded the decision. I do not. I am saddened by it. It is yet another corrosive effect of this damnable policy.
It has already corroded the fundamental role of the public service to give fearless and honest advice. Now it is corroding the rule of law.
The Family Court had no business with these children. There is no legal or constitutional base for its decision. The High Court is going to overturn it, as inevitably as anyone can state when it comes to the law. It seems to me that the Family Court has morally been pressured into stepping way beyond its jurisdiction to do something about the dreadful consequences of the mandatory-detention policy. Strict legalism has gone out the window. The precious rule of law has been corroded.
This week’s decision had two stages. The first was whether the Family Court had jurisdiction to make orders with respect to these children. The second was, if it had jurisdiction, what was the best interests of the children.
On the second leg, the court made the obvious decision. No, it was not in the best interests of these children to be locked up in the hellish immigration detention centre with its violence, isolation and primitive response to the educational and social needs of children. And as someone acting in the place of a parent, the Minister for Immigration was in no position to play a role. Any submission of his that the children were better off in custody was easy to reject.
On the first leg, however, the court was on impossible ground. Did it have the jurisdiction to enter the fray? I think not, but it contrived the law in order to rescue these children.
This is how the Family Court contrived the law. Let’s go back to the Constitution. It says the Commonwealth Parliament has power to make laws with respect to, “Divorce and matrimonial causes; and (italic) in relation thereto (italic), parental rights, and the custody and guardianship of infants.”
Note the critical words, “in relation thereto”. Are the parents of these children getting divorced? Do they have a matrimonial dispute? No. Could they even contrive such a dispute to attract the jurisdiction of the Family Court? No. The Family Court can only hear matrimonial disputes between citizens, those domiciled here or those ordinarily resident here. If you are an illegal immigrant, it is a bit hard to fit those categories.
In this case the court relied on Section 67ZC of the Family Law Act. This says, “In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children. In deciding whether to make an order . . . a court must regard the best interests of the child as the paramount consideration.”
It sounds sweeping, but it is cast in the overall context of a contest over the residency of children when parents are in dispute and in any event is subject to the constitutional requirement that the laws on custody and guardianship be connected to divorce and matrimonial causes.
To the extent that the states have referred power to the Commonwealth over guardianship, it has been done in the context of ex-nuptial children being the subject of what are essential matrimonial disputes.
The fundamental point is that the Family Court has never had an overarching jurisdiction with respect to the welfare of all children in Australia. Its jurisdiction has always been constrained to sorting out matrimonial and quasi-matrimonial brawls. That was its constitutional bedrock.
It this case it has reached out for something that sadly was not there: an overarching law that requires the application of human decency.
We do not have it in Australia. We do not have a Bill of Rights.
It was counter-productive on several grounds for the Family Court to attempt to extract something from the existing law to rescue these children from detention.
First, it is corrosive of the rule of law to manufacture jurisdiction where it does not exist.
Secondly, the High Court is almost certain to overturn it.
Thirdly, the children in the middle of the case will be shuffled from pillar to post and even if this family gets a one-off a reprieve under cynical media-management requirements, others like them will not.
Besides, this week’s case was decided on its own circumstances. Even under the Family Court’s contrived view of the law, there first had to be a requirement that these children faces indefinite detention — because of the circumstances in Pakistan. That will not be true in most other cases. So assumptions that every child in custody will be freed is just cruel hyperbole.
It would have been better in the long run (if not for this family) for the Family Court to have acknowledged that under existing law the Minister for Immigration has the power to imprison children — and the for us as a society to acknowledge that we need limits to executive power in the form of a Bill of Rights applied by an independent judiciary that simply would never have allowed the imprisonment of children in the first place.
A one-off suspect decision that corrodes the rule of law to rescue one family is of little use. Applaud as you might, three judges’ view of morality twisting the law to get a result in one case is a dangerous path.
The only good this case will do is highlight the general weakness of Australian human-rights law. When the High Court inevitably chucks out the Family Court’s reasoning, maybe we’ll wake up to it and maybe do something about it.
Just lift the veil for a moment. Forget the black hair and dark brown eyes. These five kids were aged 15, 13, 11, 9 and five. We all know kids this age. How could we have allowed our government to have put kids of this age behind barbed wire for nearly three years – for more than half the lifetime of the youngest child? We all know kids of this age.