Indefinite Detention Without Trial, That Is Australia, Says SA Barrister Claire O’Connor SC

The majority of the High Court ruled on 23 June that Australian law provides for the indefinite detention of asylum seekers, refugees, and stateless people in immigration detention under the authority of the executive branch of government.

The finding came directly on the back of the Morrison government having passed laws to clarify that it was not required to send “unlawful noncitizens” back to their countries of origin to face the risk of irreparable harm, but rather it can simply hold them without end in our nation’s detention centres.

The outcome of both these actions was to close a legal loophole that 2020’s AJL20 Federal Court case had identified, which led to the release of a Syrian refugee after six years of detention, as the court found that constitutional limits don’t permit ongoing detention without purpose.

Yet, while these recent moves shocked many, the truth of the matter is that the majority of the High Court had already set an indefinite detention precedent in 2004’s Al-Kateb, which involved the court finding a stateless Palestinian man could legally be locked up forever.

Eight years too long

The 19 July this year marked eight years since then PM Kevin Rudd made it mandatory for asylum seekers arriving by boat to automatically be detained in offshore detention camps on the soil of poorer foreign countries.

This regime has since seen over 4,000 asylum seekers who arrived by boat detained within its facilities, for no crime whatsoever and without trial. And on 30 June this year, there still remained 233 asylum seekers in immigration detention on Nauru and Papua New Guinea.

Indeed, the Morrison government is currenting holding over 100 unlawful noncitizens in onshore immigration detention, who have been there for over five years. And with these new developments reinforcing indefinite detention, the number of these long-term detainees is only set to grow.

“It’s all a lie”

Renowned SA barrister Claire O’Connor SC provided counsel for 2004’s Al-Kateb. And she recently appeared on the Women and Children First podcast, where she expressed her distain for the cruel and racist manner in which our nation deals with people fleeing persecution.

The lawyer was also involved in the 2017 class action filed against the Australian government on behalf of 1,905 refugees and asylum seekers formerly detained on Nauru. Although rather than let the case proceed to trial, the government provided a $70 million out-of-court settlement.

O’Connor also represented the families of the deceased for the inquest into the 2010 sinking of the SIEV 221 off the coast of Christmas Island, which saw close to 50 asylum seekers lose their lives as the wooden fishing boat smashed against the rocky coast of the remote Australian territory.

Sydney Criminal Lawyers spoke to Claire O’Connor SC about the impact of Al-Kateb, the government’s habit of providing compensation to refugees after they’ve subjected them to torturous conditions, and why our nation treats the globe’s most vulnerable with contempt.

Firstly, the majority of the High Court ruled in June that it was permissible for the executive to detain refugees and asylum seekers in indefinite detention for administrative purposes.

This followed on government amendments to the Migration Act made in May, which clarified indefinite detention was permitted in statutory law.

Many in the community were shocked by these outcomes. Ms O’Connor, you’ve been advocating in the immigration law space for two decades now. So, how did you take these developments?

I was not at all surprised, because there is no understanding of or commitment to protecting refugees at all in Australia.

In my view, the law has always been according to the minority in Al-Kateb.

That is, it is unlawful to detain someone without a purpose that’s authorised by the government or immigration. That purpose being either processing or removals, and once those purposes disappear – for example, with a stateless person – detention is no longer lawful.

That was my argument in Al-Kateb, and that has always been my view.

But, clearly, the majority back in 2004 didn’t agree. And once the majority didn’t, then it was always the law here that you could detain someone forever who wasn’t going to be processed or removed.

In the decision this year, they said they weren’t revisiting Al-Kateb. But the fact that the court again confirmed the same principle – and the statute reflected this – was no surprise. It was no shock to me.

The reason we can do that is because we don’t have a bill of rights in Australia.

As you’ve just noted, you provided counsel for the 2004 Al-Kateb case, which involved the ongoing detention of a stateless Palestinian man. It determined that indefinite detention was lawful, which set the common law precedent.

In your opinion, what did that ruling mean for the nation?

There were two detainees before the court at the time – Al Khafaji and Al-Kateb – and both were arguing that they were stateless, and the actions of the government permitted them to be locked up forever.

Both men are Australian citizens now. And both of them never went back to substantial detention anyway. Al Khafaji went back for about 14 days.

So, what it meant was we have a country that allows for the indefinite detention of persons without trial or without suspicion of committing any offence. That is Australia.

This country has a foundation of racism, which has permeated every aspect of its legislative and social life. So, it is no surprise that it’s reflected in its treatment of the most vulnerable, which are refugees and Aboriginal people.

That is just what Australia is.

Two weeks ago, marked eight years since offshore detention for asylum seekers coming by boat became mandatory.

These days, a lot of the focus is rightly on this current stage. But you worked closely on the situation during the initial stages of offshore detention, which occurred over 2001 to 2008.

What was it like to see our nation abandon this policy only to return to it?

Well, it was appalling. But, you know, all detention was appalling. I’ve been to Woomera, Baxter, Maribyrnong, Villawood, Christmas Island, Perth, the Adelaide detention centre, the Darwin detention centre and the Brisbane Airport detention centre.

All of the detention centres here are disgusting foul places. And the fact that you can keep people in them now for eight years is cruel and mean. It’s internationally wrong.

International law has criticised Australia constantly for this.

You were involved in the 2017 Manus Island class action that saw over 1,900 former immigration detainees filing to sue the federal government for their illegal detention in deplorable conditions.

The federal government avoided the courtroom by settling the action out of court with $70 million in compensation.

What does this outcome tell us about the mindset of successive governments in relation to the running of these offshore detention camps?

People have been suing since 2002 for the conditions of detention. It’s not just offshore. It’s onshore too.

There is a case going through the courts here that I am not involved in for Saadat’s period in Baxter Detention Centre.

Cornelia Rau, of course, sued for her period of detention in Baxter and the Brisbane detention environment.

Many hundreds of people have taken action against the Commonwealth for the breach of the duty of care while in immigration detention.

The Manus Island class action was just an example of a group of people suing. But the Commonwealth has settled many, many cases.

One of the first cases they settled monetarily, was the case of Shayan Badraie, who was a young child in Villawood and Woomera in the early 2000s. He’s now a young adult.

The level of care for that young boy who had stopped speaking and was very distressed about being in that cruel environment as a very young child, meant that he was permanently scarred, as many detainees are. So, they often sue.

What we can then see is that the conditions of detention are so horrific that they’re meant to deter other people from coming here, as well as the acknowledgement – via the legal process and money paid out – that the conditions are so cruel that they breach duty of care.

It’s a very perverse environment where we do horrible things to good people to stop other good people asking us for help.

You mentioned a bill of rights. What sort of difference could this make to the treatment of asylum seekers and refugees caught up in the Australian system?

Usually, a bill of rights picks up the international treaties. So, the treaty against torture, the Refugee Convention, the commitment to civil and political rights: all the treaties and obligations that we have internationally.

It would also have fundamental rights, like protection against arbitrary detention without trial. It would also have fundamental rights expressed in relation to conditions, fairness and justice.

Those instruments prevent other countries from doing what we do.

If you look at the Al-Kateb decision, one of the majority judges, Justice McHugh, actually expressed that in his judgement: if there had been a bill of rights in Australia that prevented arbitrary, indefinite detention then he wouldn’t have been able to decide in favour of the Commonwealth.

At the end of the day, we have three charters in Australia now: one in Victoria, one in the ACT and one in Queensland.

So, there is some political will at the state level to protect people’s human rights, but there isn’t a discussion in Australia about what it means and what it doesn’t mean to have a federal bill of rights.

I am very surprised there isn’t that understanding of people’s civil responsibilities and obligations to each other, and how to protect their own rights and duties.

There is a fear mongering about it. But just look across the Tasman, and New Zealand has had a bill of rights since 1992, and the wheels aren’t falling off that country, in terms of granting people rights that the rest of the citizenship wouldn’t want them to have.

Australia used to have a reputation of being the “lucky country”. Being a world leader in human rights is another phrase that was bandied about. And the PM insists he believes in a fair go for all.

But you have a different view to this.

I don’t think anyone has ever said that Australia has had a good record on human rights. We didn’t give Aboriginal people citizenship until 1967.

The most incarcerated Indigenous population in the world is the Aboriginal people. We had a White Australia Policy during my lifetime. So, how could anyone ever say that they believed Australia had a good record?

We’ve done some good things. It was the first place in the world where women could vote, although New Zealand gave them the vote first.

We’ve done some interesting work in relation to discrimination legislation. So, we have federal and state discrimination legislation. We have found protections that are guaranteed.

But it has never been described as a place where human rights are seen as predominant.

And lastly, Ms O’Connor, currently, there’s a lot of focus on the plight of the Medevac refugees and the detainment they’ve been subjected to over here since arriving. However, there’s still around 230 asylum seekers being held on Nauru and in PNG.

The fact that offshore detention is continuing isn’t a front and centre issue at present.

In your opinion, is offshore detention simply a policy that’s slowly coming to an end, or is it something that might take on a more prominent role again?

If there was any loosening around the policies of people who seek asylum, then the other party would take political mileage from it.

The interesting thing is there is this myth that Australia was being swamped with refugees – swamped.

The Coalition has always said that the six years that we had Rudd, then Gillard, then Rudd again as our leaders was a terrible time for refugee numbers, as we were being swamped.

But 50,000 thousand people came here – or it was just under 50 – in six years. In that same period, 1.2 million people migrated to Australia. So, the numbers were not big.

Then there’s the second argument that always gets thrown against you if you want to change the policy, which says that you just support people’s lives being risked when they take leaky boats.

But that is so easy to prevent. I did the inquest into the 221, which was that ship that crashed off the edge of Christmas Island and 49 people died as a result.

If you want to save lives at sea, you just go to the 100 kilometre border with Indonesia – and instead of them spending three or four days on the dangerous journey across to Australia to reach Ashmore Reef or Christmas Island – you just rescue them beforehand.

You rescue them. You don’t wait for them to get to Australian waters, and after they’ve risked drowning, then turn around and say we’re going to lock them up in order to stop other people coming because we’ll prevent them from drowning.

It’s all a lie. One day, people are going to view this period of Australian history the same way that we view the way that we stole Aboriginal land, that we had White Australia policies, and the same way that we view the fact that we stole Aboriginal children without lawful reason for doing so.

We are shamed. This is shameful. And the lies that are being told to justify a shameful practice to the most vulnerable people in the world shudders me with incredible anger.

I cannot believe it occurs. I cannot believe that over the two decades that I have been involved in this, every time we think a policy couldn’t get worse, it gets worse.

Tomorrow, if you said, “We’ve now got a policy that we just shoot at the boats. I would say, “Yeah. It had to come to that, because we actually have a ‘don’t care for people’ policy about it.”

I don’t understand where that comes from, because two-thirds of Australians are either first- or second-generation citizens, so why wouldn’t you be more compassionate to people who are having to flee persecution.

Image: “Yongah Hill Immigration Detention Centre” by DIAC Images is licensed under CC BY 2.0