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WSWS : News & Analysis : Australia & South Pacific

Australian High Court rubberstamps Howard government’s treatment of Tampa refugees

By Mike Head
13 December 2001

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In a decision with far-reaching implications for democratic rights, the Australian High Court late last month sanctioned the Howard government’s continued use of military force to remove asylum seekers from territorial waters and transport them to detention camps on remote Pacific islands. A panel of three justices refused to consider an appeal from a split decision of the Federal Court allowing the expulsion of the 433 Afghan refugees aboard the Norwegian freighter, the Tampa, in September.

The verdict means that hundreds of asylum seekers will remain incarcerated, at the behest of the Australian government, in hellish conditions on the tiny island of Nauru. Within two days of the ruling, the government formally asked Nauru to take up to 500 more asylum seekers, on top of the 700 Afghan and Iraqi refugees already being held there against their will. In return for a further cash payment of $10 million from Canberra, the Nauru government has now agreed to detain up to 1,200 people at a time.

Seeking to act on behalf of the refugees, Melbourne solicitor Eric Vadarlis applied for a High Court appeal against a two-to-one ruling by the Full Federal Court, which declared that the government has vague “executive” or “prerogative” power under the Constitution to detain and remove “aliens” and take any other action it considers necessary to protect “national sovereignty”.

Vadarlis asked the High Court to reinstate an original habeas corpus order by Federal Court Justice Tony North that the refugees had been illegally detained. North ruled that the government had flouted its own migration legislation and had determined “at the highest level” to “use an unlawful process to detain and expel the rescuees”. He ordered the government to bring the Tampa refugees, then crammed aboard a military troop carrier, to the Australian mainland, where they would have the right to apply for asylum under the Migration Act and the 1951 international Refugee Convention.

The government immediately thwarted North’s decision by appealing to the Full Federal Court and ordering the naval troopship to set sail for Nauru. In his High Court submission, Vadarlis’ barrister directly accused the government of “evading” North’s ruling by “taking persons out of the jurisdiction”.

He insisted that the case raised “an obvious issue of public interest” because the government had asserted an “alleged prerogative power” that had not been exercised “since at least the year of the revolution”. This was a reference to the English Revolution of the 17th century, which ended the feudal-based absolute monarchy.

Despite the historic significance of the case, the judges summarily dispensed with it after a hearing that lasted less than two hours, followed by a bare 15-minute recess. In a one-page judgment, they declared that the claim for a writ of habeas corpus —detention without trial—had been “overtaken by events,” namely the government’s forced transfer of the Tampa refugees to Nauru.

Under the High Court’s rules, an applicant for special leave to appeal does not have to prove his case, merely that he has an arguable one. Nevertheless, the three justices simply asserted that: “If the persons concerned are now detained (a question about which there has been no trial) each would be detained in a foreign country subject to whatever is the law of that country”.

The judges chose to disregard affidavits showing that the Australian government is paying all the costs of the Nauru detention camp and that Australian officers are “overseeing” the “arrangements” there. Whatever the precise legal situation in Nauru, the refugees are clearly being held on Australia’s behalf. Moreover, Australian military personnel herded the refugees off a naval troopship onto Nauru, despite vigorous protests by the asylum seekers. This means that their imprisonment is the direct continuation of the detention that was ruled illegal by Justice North.

In any case, the government breached an undertaking to bring the refugees back to Australia should it lose the appeal. Instead, it presented the High Court with a fait accompli—Australia was no longer detaining the refugees, because they had been removed to Nauru. In effect, the three High Court judges rewarded the government for thumbing its nose at the legal process.

This is not the first time that High Court judges have refused to allow refugees facing deportation to argue their case before the court. In April 2000, Chief Justice Murray Gleeson, then recently appointed by the Howard government, summarily rejected applications for interim injunctions by Kosovar refugees to delay their mass deportations so that they could challenge the legality of their removal.

On this occasion, three other members of the court—Mary Gaudron, Kenneth Hayne and William Gummow—have taken the same approach. Hayne, like Gleeson, is a Howard government appointee, while the previous Labor government selected Gummow and Gaudron. Gaudron has long been regarded as one of the court’s most liberal members.

Despite the magnitude of the issues at stake, the High Court decision was hardly reported in the mainstream media. This silence was a sharp contrast to the recent election campaign, which was completely dominated by a bipartisan government-Labor Party witchhunt against asylum seekers. Backed by the opposition, the government demonised refugees as illegal “queue jumpers” and likely terrorists. It not only mobilised the navy and SAS troops against the Tampa refugees but dispatched warships to turn back more than 1,000 other asylum seekers in leaky boats.

More than 350 refugees died as a direct result of the policy, when their overloaded fishing vessel sank off the Indonesian coast. Among the victims were at least five families who had been refused entry to Australia to re-unite with their husbands and fathers who had previously been granted refugee status.

During the Federal Court hearings of the Tampa case, various media commentators and legal academics declared that “meddling” lawyers and the courts had no right to contest the government’s actions, i.e. that the government should be beyond any legal restraint. At least one prominent columnist accused civil libertarians of protecting “criminals” and of defying the public will.

The same view was reflected in several comments from the High Court bench. When Vadarlis’ barrister contended that the government had acted “contrary to law,” Gaudron accused him of “playing political games,” insinuating an illegitimate political purpose behind his challenge to the government’s illegal action.

Despite being urged to do so, the three judges also refused to clarify the issue of legal standing for lawyers, like Vadarlis, seeking to protect the rights of refugees who are militarily blocked from appealing to a court themselves and are held incommunicado without access to legal advice. More than 1,100 asylum seekers are currently being treated this way on the offshore Australian territories of the Cocos, Christmas, Cartier and Ashmore islands. All of these islands have been “excised” from the Australian migration zone under legislation passed to retrospectively authorise the expulsion of the Tampa and other refugees.

Likewise, the judges refused to rule on the dubious constitutional validity of the post- Tampa laws, which include unprecedented provisions preventing any legal challenge to the forced removal of refugees and their boats from Australian waters. One section of the legislation states: “All action to which this Part applies is taken for all purposes to have been lawful when it occurred.” Another clause specifies that no legal proceedings can be commenced or continued against the Commonwealth in relation to such action.

The laws give government or military officers wide-ranging authority to board, search, detain and turn around refugee boats, using whatever means are considered “necessary and reasonable,” including force. The legislation does not define “necessary and reasonable force” but even if it did, the definition would be pointless because all conduct under the legislation is protected from legal review.

These provisions allow refugee boats to be sunk deliberately to prevent them landing on Australian soil. And this is not far-fetched. Shots have already been fired in the direction of at least one over-crowded and sinking boat, whose occupants government ministers then falsely accused of throwing children overboard.

The government’s own Human Rights and Equal Opportunity Commission told the High Court that the laws were unconstitutional on two grounds, but the judges declared it was “unnecessary” to consider such questions.

Eric Vadarlis, the lawyer who mounted the appeal, told the World Socialist Web Site that the result was “very disappointing” for the refugees on Nauru, who would now be “forgotten” and “off the front pages forever”. He revealed that lawyers who had sought to visit the asylum seekers had been denied visas on the pretext that all the accommodation on the island was booked out.

He described the verdict as “frightening” from the standpoint of arbitrary government power. “It is the start of the line. At the moment, the government has incredible and wide-ranging powers. The prerogative of the executive is unchecked. It is not just for migration. It could be for freedom of assembly, or any conduct at all.”

At this point, the measures rubberstamped in the Tampa case—arbitrary detention and unfettered use of executive power—apply directly only to asylum seekers, but the Howard government’s assault on democratic rights will not stop there. Following the High Court decision, Attorney-General Daryl Williams confirmed the government’s intention to proceed with legislation giving the political police—the Australian Security Intelligence Organisation (ASIO)—powers to detain people for interrogation for up to 48 hours without charge, deny them access to legal advice and force them to answer questions, on pain of imprisonment for up to five years.

See Also:
Another inquiry into Australia's refugee detention centres
[11 December 2001]