Monday, October 13, 2003

Guantanamo escape may be justified: Kirby

Justice Kirby . . . queries what "lawful punishment" means...

If a cell in Guantanamo Bay, the American prison holding two Australians captured in the war on terrorism [The Coalition of the Killing's resource wars in the Middle East], had a broken toilet, was full of vermin, rats and cockroaches, and bread was the only food, would a detainee not be justified in law to try to escape?

This was the question Justice Michael Kirby threw at the Federal Government's barrister, the Solicitor-General David Bennett QC, in a ground-breaking case heard in the High Court yesterday, testing for the first time Australia's mandatory immigration detention scheme.

The hearing involved three separate cases.

In one, asylum seekers who escaped from the Woomera detention centre claimed as their defence that conditions were so bad their detention was invalid.

The Solicitor-General argued that if conditions were bad in prison, a person had the right to seek remedies in either tort or criminal law; but no matter how bad the conditions, it did not make the detention itself illegal.

His argument divided the bench. Justice Kirby said he had seen prisons in Cambodia which were so bad that if he were detained in one he would "feel duty-bound, as a human being, to remove myself from it".

"If you say that if conditions fall below those standards, which are standards of human dignity, are so awful that they do not then respond to the word in an Australian statute - 'prison', 'detention', 'punishment' - then a person is not in prison, detention or punishment but in a vermin-infested cell and therefore entitled to walk away from it, because that is not the lawful punishment for which Australian law provides," Justice Kirby said.

However, some of his brother judges took a different view.

Justice Michael McHugh said imprisonment did not become unlawful "because the person is bashed every day by jailers". [?]

Justice Kirby cautioned him to "keep an open mind" and said: "A point would be reached where, if there is violence, that is not punishment, that is not the lawful punishment that a court of law in Australia has provided."

The second case testing the legitimacy of immigration detention concerns Iraqi-born Abbas Al-Khafaji, whom the Government acknowledges is a refugee but denies him a visa, saying he could seek asylum in Syria.

The man was released from detention by the Federal Court after three years because, although he had been asked to be deported, the Government had been unable to find a country willing to accept him.

The third case involves a stateless Palestinian whose refugee application has been refused. He too has asked to be deported, without success.

Justice Ian Callinan also clashed with Justice Kirby over his comments about Australia's obligations to asylum seekers found not to be refugees.

Justice Callinan suggested that in relation to people found not to be refugees, "then possibly none of the [Refugee] Convention provisions at all apply to them".

Justice Kirby retorted: "Surely you cannot just lock them [up] forever because they do not happen to meet the requirements of the convention."

"I am not suggesting that," Justice Callinan replied. "It may be that if they do not have any status as refugees, then they may be dealt with in a different way entirely from the way in which the convention requires them to be dealt with."

By Cynthia Banham 13 November 03


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