Australia- Land of Totalitarinaism?

Yesterday the High Court released several interesting rulings on several disparate issues of which the most important one, in my opinion, was the ruling that refugees must not be separated from our justice system.

Coincidentally I started listening to a podcast from America's "Being" radio programme which featured an interview with an American expert on the use of torture by democracies. It's a very interesting interview which documents the spread of torture in combat situations back into domestic police and correctional institutions.

The point that Darius Rejali makes is that it only becomes possible for extreme abuses to take hold when individuals or classes of individuals are removed from external monitoring by independent bodies such as the courts. I don't think anyone would suggest that asylum seekers have been tortured or abused except by the mental anguish caused by indefinite detention, but we should be concerned by any attempt by government to remove the rights of people to access courts.

In today's SMH, David Marr gives an excellent summary of the reasons for the High Court decision:

A little history is required at this point. Back in 2001, Australia set up a deliberately second-class system for assessing refugee claims by boat people. About 14,000 have gone through that system which has never been fundamentally challenged until now. The architects of the scheme tried to exclude the courts by separating as far as legally possible the assessment of claims from the minister's role in granting visas. Assessments of visa claims were said to be "non statutory" investigations - hence outside the control of the courts - and only once they were complete did the minister enter the picture. Whether he granted a visa at that point was something said to be absolutely at his personal discretion. Once again, the courts were supposed to be excluded.

They might work, said the court, except that while each case was going on - and here the judges used italics to indicate the crucial importance of these few words - "the claimant was detained". And that changes everything. Loss of liberty, said the seven judges, can only be for lawful purposes. No one can be detained in ways beyond the supervision of the courts.

Technically, the High Court collapsed the distance between the assessors and the minister. The court found that despite claims to the contrary, the minister was there at the start directing the assessors to do their work. They are not independent of the law but caught up in the machinery of the Migration Act. The work of the assessors - but not the minister - can therefore be directed by the courts.

The ultimate upshot? Shock, horror: all asylum seekers have to be dealt with fairly and according to law. And governments of all persuasions are on notice that the court now takes far more seriously its traditional role as guardian of liberty.

I hope that the politicians will now examine the implications of this High Court decision. As Marr says unanimous decisions by the Bench are rare, and they nearly always indicate that a serious breach of human rights has occurred.

We need our politicians now to start giving leadership in this issue instead of responding to irrational racism.

We need them to change their language about asylum seekers and leave the name calling behind.

We need them to start speaking in terms of compassion and respect instead of fanning the flames of hatred.