High Court ruling sparks concerns over Australia’s commitment to human rights

The Liberal Party’s pandering to base political interests undermines Australia’s entire legal system and the separation of the judiciary and the political system.

The return of Prime Minister Anthony Albanese to Australia marked the end of his state visits to China and Tuvalu, offering some respite from the incessant chatter from conservative commentators about “Airbus Albo™” and other commentary about him spending “too much time” overseas, and not enough on domestic issues. On his return, the first major topic addressed in Parliament was the fallout from a High Court decision declaring that a Rohingya asylum seeker held in indefinite immigration detention was unlawful held—the far-reaching consequence of this ruling was the recognition that all indefinite detentions of asylum seekers were also unlawful, resulting the immediate release of 81 people.

This legal development pushed the political landscape into familiar territory surrounding the politics of asylum seekers, drawing the Liberal Party into the fray with their characteristic megaphone diplomacy. The opposition’s narrative often moves towards overplayed pantomime, portraying such situations as a “threat to national security”, a recurring theme that is designed to challenge the credibility of the Labor government. Nevertheless, the core issue should revolve around the fundamental principles of justice—no government should have the authority to detain individuals indefinitely—and the imperative to apply the law judiciously.

This High Court decision overturned a previous ruling from 2004, which had deemed the indefinite detention of asylum seekers was lawful. Responding quickly to the legal vacuum created by the ruling, the government hastily pushed through legislation to address the newly released group of stateless individuals: however, given the historical politicisation of asylum seeker matters in Australia since at least 1998, concerns loom over the potential introduction of new, equally draconian laws in response.

A central aspect of a healthy and functioning democracy lies in how it treats its most vulnerable members but there have to be doubts about Australia’s claim to be a champion of human rights, as the issues of due process in detention seems to have fallen by the wayside. Detainees, some languishing in confinement for well over a decade, challenge the foundational principles of justice. While a reasonable argument can be made for some form of detention during the processing of asylum seekers to ensure health and domestic security, prolonged, uncharged, and untried detentions are untenable and contradict many of the United Nations conventions that Australia is a signatory to.

The federal government’s hurried legislation attempts to grapple with the dilemma of stateless individuals, yet the fear remains that it might lead to the imposition of new draconian measures that will again be challenged in the High Court. The broader question raised by this issue is whether Australia’s commitment to human rights is faltering, as the nation comes to grips with the moral and legal dimensions of immigration detention.

Complex legal challenges for refugees and asylum seekers

The release of individuals classified as stateless, following this High Court ruling against indefinite immigration detention, has brought to light a range of complex legal circumstances. Some in this group have failed Australia’s “character test” in their asylum applications, and a minority have committed serious criminal offences in their homelands. However, it remains a foundational tenet of Australian law that, with only a few exceptional cases, individuals cannot be incarcerated indefinitely without trial and without due legal process.

The High Court’s 2004 ruling initially justified the indefinite detention of stateless individuals, which was extended to all asylum seekers, including those deemed to be genuine refugees. Advocates for refugees have long contested this system, pointing to the draconian and inhumane conditions endured by asylum seekers on Nauru and Manus Island and it is a recent legal development that marks a significant departure from Australia’s approach to immigration detention.

While the reasoning behind the High Court decision is yet to be revealed, the lack of information hasn’t deterred the leader of the opposition, Peter Dutton, from employing his usual tactics of fear and loathing. Dutton has been quick to paint the released individuals as “hardcore criminals” and “potential terrorists”, leveraging this narrative to criticise the Labor government. Other Liberal Party MPs, seizing the opportunity, have also amplified the rhetoric, linking asylum seekers to broader issues such as anti-Semitism, the Voice to Parliament and other issues related to immigration and border security.

Despite the absence of evidence supporting these claims, the political agenda set by Dutton continues to shape public perception. The Labor government, seemingly without an effective political response, continues to be accused of fostering division and compromising community safety, even though it is the words of Dutton that are creating this social division. The political quagmire surrounding asylum seekers is not new; the Labor government did introduce mandatory detention in 1992, unwittingly providing the Coalition with a potent political weapon, ever since it first ventured into this issue in 1998, headed by the Minister for Immigration at the time, Philip Ruddock.

Over the past 25 years, the Liberal Party has skillfully capitalised on asylum seeker issues, reaping political rewards from incidents such as the MV Tampa affair in 2001 and the events of 9/11 in New York. In contrast, the Labor Party has struggled to formulate a coherent political strategy to address the complexities of asylum and refugee policies: surely after 25 years, they would have realised that these are the “bread and butter” issues of Liberal Party politics, and should have been able to develop a strategy to deal with the issues. Instead, they have often resorted to crafting legislation that appears tough on refugees in an attempt to deflect public scrutiny but, quite often, end up creating more political problems for them, and devalue their attempts to position themselves as the political party that takes human rights seriously.

The refugee crisis is not abating, and the challenges are evolving. Environmental refugees, potential geopolitical conflicts, and natural disasters are factors that could contribute to increased displacement. The notion that Australia might be flooded by millions of refugees is a rhetoric that is often overstated, without evidence, and usually exploited by populist right-wing politicians, such as Dutton and One Nation’s Pauline Hanson. However, many refugees are driven by the urgency of seeking sanctuary, and are more likely to settle in the first available country rather than navigating the considerable distance to Australia.

Despite claims that Australia is seen as an “easy destination” with promises of free housing and cars, the reality, has been rather a provision of all mod cons, a prolonged and uncomfortable detention, in some cases, up to 16 years. The hope now is that the government does not respond to these developments by enacting even more stringent laws, exacerbating the already challenging situation faced by asylum seekers and refugees. This situation demands a nuanced and more humanitarian approach, a task that seems to be elusive for Australian policymakers unable to deal with the enduring complexities of immigration and asylum policies.

A clash of political narratives and legal imperatives

The persistent stance of Dutton and the Liberal Party on immigration detention issues is cynical and predictably unwavering, even in the face of a High Court ruling challenging their long-held practices. Dutton’s narrative has taken yet another predictable turn, now suggesting that Prime Minister Albanese should have refrained from attending the APEC meeting until the immigration detention issue is resolved.

Minister for Home Affairs Clare O’Neil, has sought to provide clarity on the government’s response. O’Neill addressed the parliament during the week, shedding light on the High Court’s decision and emphasising the constitutional basis of the ruling.

Clare O’Neil: “I want to address a number of falsehoods that have been raised by the opposition in this debate. And the first is one that I’ve heard directly from the leader of the opposition. And what he has come out today is something just frankly and very directly is incredibly stupid. He has come out today and said, ‘Oh, don’t worry about the Constitution, just pass a law to put them all back into tension’. I just want to remind the Leader of the Opposition—who has been here for 22 years—that he knows, and I know, that the Australian Constitution and a full court decision of the High Court cannot just be overturned by a decision of this chamber. That is not the political system in which we operate. I know it and he knows it.”

O’Neil underscored the separation of powers in Australia’s system and stressed that ministers, like anyone else, are obligated to abide by the law of the land. She unequivocally stated that the government has no choice but to comply with the High Court’s directive to release individuals from immigration detention: this is the constitutional system that Australia operates under.

The parliamentary discussion that continued during the week, highlights the complexity and legal constraints surrounding the government’s response to the High Court decision. It underscores the clash between political narratives and legal imperatives, further fueling the ongoing debate over the treatment of asylum seekers and the government’s adherence to the rule of law. Government are compelled to navigate a delicate balance between its established policies, legal obligations, and public perception, and the Liberal Party’s pandering to base political interests undermines Australia’s entire legal system and the separation of the judiciary and the political system.

Seeking a balanced approach to legislation and humanitarian values

Despite the clarifications from Minister Clare O’Neil, it appears evident that the Liberal Party remains committed to playing politics with the immigration detention issue. The government, in turn, faces the challenge of fighting back politically while seeking agendas that are compatible with Labor values, as well as attempting to de-escalate the political tensions surrounding the matter, which always favour conservative politics, and usually ramped by conservative media interests.

Fundamentally, addressing this situation requires adhering to basic principles—both in policy and in law. The government must articulate a commitment to applying the rule of law, establishing clear rules on the duration of asylum seekers’ detention, and outlining the criteria for achieving particular visa statuses. These measures align with basic human rights principles, which were lacking in the previous legislation administered by the Liberal–National Coalition.

Addressing the broader perspective on refugees and asylum seekers, there is a recognition that while the ultimate goal of a refugee is to return home—once it is safe for them to do so—it also has to be understood that this situation is impossible, even when the conditions in their home country improve politically. No one should ever be returned to the country they have escaped from, usually from oppressive political and social situations.

As the debates continue and legislative solutions are sought, the federal government faces the formidable task of reconciling legal imperatives, balancing community concerns, and committing to the humanitarian aspects of asylum and refugee policies. Achieving this delicate balance will be crucial in shaping a more just and compassionate approach to immigration issues in Australia which, for far too long, have been lacking.