Australia’s controversial policy of mandatory detention of asylum seekers has come under renewed pressure, this time from the country’s leading judges.
Late last month, in two historic rulings, Australian courts handed down judgements that released asylum seekers held in the Baxter Detention Centre, 300km from the city of Adelaide in South Australia.
The significance of the courts’ intervention in the long-running asylum seeker debate was evident from the swift reaction from Australian Immigration Minister Philip Ruddock, who accused the courts of hearing asylum seeker cases more quickly than those of other litigants.
The first case, decided on August 25, involved perhaps the most emotive and bitterly contested aspect of Australia’s policy of mandatory detention — the incarceration of children in detention centres.
The practice has been condemned by medial groups in Australia and, on several occasions, by the Australian Human Rights Commission and the United Nations. Recently the Family Court of Australia joined in the chorus of disapproval.
A full Bench of the court, comprising three judges, ordered that five children, who fled from Taliban-ruled Afghanistan in 2001 and who had been held for 32 months at the Baxter Detention Centre, be reunited with their mother immediately. In the court’s view the evidence was “overwhelming” in favour of the children being released from detention.
The Family Court’s decision met with a stinging rebuke from Ruddock. He accused the judges of having a “desire to be involved in dealing with these matters and dealing with them quickly” whereas, he said, other litigants in the Family Court and prisoners in the criminal courts had to wait years for their matters to be heard.
Ruddock also said the Australian government would appeal the decision through the Australian High Court.
In a significant development, the Australian Labour Party Premier of South Australia, Mike Rann, welcomed the court’s decision, saying that it “is iniquitous for a country like Australia to hold children in detention”.
In taking this stance, Rann has broken ranks with many of his party colleagues, including the premier of Australia’s largest state, New South Wales, Bob Carr, who is a strong supporter of mandatory detention.
On August 26, in a second blow to the Howard government’s policy stance, Federal Court Judge John Mansfield ruled that an Iranian asylum seeker, Mohammed Amin Mastipour, be released from detention at Baxter so that his mental condition could be assessed by health professionals in Adelaide.
Mastipour had been held in solitary confinement for 43 days prior to the court-ordered release, and his daughter had been deported back to Iran during that time. He is believed to be suffering from a severe depressive illness.
The preparedness of the Australian courts to involve themselves in cases concerning the treatment of asylum seekers is following a trend established in the United Kingdom.
On July 31 English Judge Maurice Kay ruled that the Blair government’s policy of denying government support for food, clothing and shelter to asylum seekers who failed to claim refugee status as soon as they arrived in the UK amounted to inhuman and degrading treatment.
Judge Kay said the policy created conditions for people “so destitute that no civilised nation could tolerate it”.
Ironically, the Australian courts decisions last month could strengthen the Howard government’s political hand on immigration policy.
Since it was elected in 1996 the government has launched a series of attacks on the judiciary in Australia, accusing it of being “out of touch” with the Australian community’s attitudes on issues such as civil liberties and indigenous rights.
Prime Minister John Howard has appointed a number of conservative judges to the High Court — a court that had during the 1980s and early 1990s earned international acclaim for a series of judgements that championed aboriginal land rights, freedom of speech and the right to legal counsel in criminal trials.
Analysts say Howard and Ruddock will be hoping that when the High Court hears the appeal against the Family Court decision to release the five Afghan children, those conservative credentials will result in the decision being overturned and send a message to judges that intervening in this area of government policy is off-limits.