The High Court of Australia is not known for its zealotry in protecting human rights, and certainly not when considering the persuasive pull of international law and conventions. The Australian Parliament is usually given a generous hand in making policies that tend to outrage such conventions, a freedom made that much easier by an absence of any bill of rights.
A grim example of this was the 2004 High Court decision of Al-Kateb v Godwin, which gave the Commonwealth full assurance that policies on indefinitely detaining unwanted, designated “unlawful” arrivals were entirely within its power. The case concerned the application of various provisions of the Migration Act 1958 (Cth) requiring an officer of the Commonwealth to detain those reasonably suspected to be unlawful citizens in the migration zone and held in immigration detention till their deportation or grant of a visa.
In such provisions, a pincer movement against such “unlawful citizens” had been enshrined with stunning cynicism. Once detained and having their status determined, such individuals might be found to be refugees. Accordingly, they might receive a visa, though not if they were those undesirables marooned in the offshore concentration camps of Nauru and Manus Island. Since 2013, Australian governments have proclaimed that those undocumented souls seeking refuge in Australia by boat would never be given the chance to settle in the country. Even in the event of being deemed refugees, they might still be refused a visa on character grounds or face the prospect of deportation to a third country, the latter being something of a favourite of Australian policy makers for two decades. (A gaggle of European states have also been impressed by this formula.)
What, then, of stateless citizens found to be refugees and without fault? Or those who would not be accepted by a third country? Or those who, having been convicted of an offence and served time for it, could be placed in a vicious limbo of de facto carceral administration for the rest of their natural lives, undesired by any country, and not allowed out in the Australian community for failing to meet visa requirements and deemed a threat to society?
