In the disaster of the detention of asylum seekers, the real cause of the problem is completely overlooked and can be traced to Australia's High Court. The extent to which the Australian Parliament can pass laws that abridge fundamental freedoms is related to the license extended to it by the High Court, which is the ultimate adjudicator of whether or not laws passed by the federal Parliament are beyond the power conferred upon it by the constitution.
The Australian constitution enshrines the doctrine of the separation of powers of the Legislative, Executive and Judicial branches of government. According to this doctrine, no branch of government can perform the functions of the other branches. This means that judicial functions can only be performed by the judiciary.
By virtue of laws of the Commonwealth Parliament, which have been upheld as valid by the High Court, all detainees in refugee detention centres are illegally in Australia and yet they have not seen the inside of any court. Until they reach Australian territorial waters, they are not in breach of any Australian law.
When they do enter Australian territorial waters as genuine asylum seekers (as most people in detention are), they have a perfect entitlement according to international law to enter a country in which they seek asylum. The consequence of their "illegality" according to Australian law is indefinite detention, which is a euphemism for what we understand as "deprivation of liberty" or, in other words "imprisonment".
The High Court has determined that imprisonment can only be imposed by a properly constituted court. How is it then that these people can be in the closest and awful detention when they have not had access to a court?
The answer is that the High Court, in a celebrated case involving a refugee named Ahmed al-Kateb (al-Kateb v Godwin), decided that detention requiring a determination of a court only applied when the detention is "punitive". In other words, for the imprisonment to require the decision of a court, it had to amount to punishment.
The court decided in the al-Kateb case that the detention was "administrative" and therefore could be imposed by the legislature and implemented by the Executive without a court determination.
The result of this is that the High Court has licensed the Australian Parliament to pass laws empowering the executive branch of government to indefinitely imprison (let us scrap the euphemism of "detention") people genuinely seeking asylum.
The Parliament and the Immigration Department have now taken advantage of this decision to embark upon a policy of inordinately delaying the processing of applications for asylum, resulting in the harshest of detention regimes. This combination of delay and harsh detention is intended to send a message to would-be asylum seekers that if they come to Australia they will be "punished" by indefinite and indecent incarceration.
A dissenting member of the High Court in the al-Kateb case found the detention in that case irreconcilable with previous decisions of the High Court, but it was reaffirmed in a later case by "Heydon J", as he was then – Justice Dyson Heydon.
He was fixated on the "illegality" of al-Kateb's entry into Australia – an entry that was supported by international treaty to which Australia is a signatory. However, once again, the High Court has had licensed the Australian Parliament to ignore its and Australia's obligation under international treaty by deciding that unless treaty obligations are specifically adopted in legislation, they have no effect on Australian law.
Some years ago a boat carrying asylum seekers was detained in international waters by Australian authorities. These asylum seekers were not in breach of Australian law and had the protection of international law. It is reported that it took a few minutes of phone calls for Australian authorities to process applications for asylum and found that none of the people qualified for asylum and were sent back.
In this context, the claim of the Immigration Department that the processing of applications for asylum is a prolonged and lengthy business lacks some credibility, but does tend to lend support to the view that detention of asylum seekers is punitive.
Hopefully, sooner rather than later the High Court will understand the awful consequences of a questionable decision and withdraw the license it has extended to the federal Parliament and the bureaucracy.
At that point, the Australian government will be forced to reconsider its policy of indefinite detention.
Louis A. Coutts is an honorary life member of the International Commission of Jurists (Victoria), author several books and author of the soon-to-be-published paper A review of Australian anti-terrorist legislation and the rule of law.