Climbing Jacob's Ladder: The High Court and the Administrative Detention of Asylum Seekers in Australia

Abstract:     
On 8 December 1992, the High Court delivered its judgment in a case which raised significant issues about the manner in which the federal Parliament can legislate both to detain aliens, and to immunise such detentions from the scrutiny of the courts. From the perspective of refugee advocates in Australia, virtually every aspect of Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (hereafter Chu Kheng Lim) was disappointing. The High Court's ruling gave little joy to the plaintiff Cambodians, some of whom by that time had spent over three years in custody. In spite of holding that the Cambodians' original detention had been illegal, the Court found that special legislation passed in May 1992 could be relied upon to justify their continued incarceration.
Chu Kheng Lim was disappointing also for those who have been following the ongoing saga of the High Court's relationship with the government on issues pertaining to human rights. A majority of judges held unlawful a section prohibiting any court from ordering the release of the detainees. However, the substantive effect of the ruling on the detention clauses meant that this was very much a Pyrrhic victory. Even if it was too much to expect the release of the Cambodian plaintiffs, the High Court could have been more expansive in its approach to the issues at the centre of the case. The decision leaves unanswered many questions concerning the rights of aliens in Australia and the role to be played by the Courts as guardian of those rights. At a time of unprecedented activism in the High Court - when it has moved to discredit the notion that Australia before white settlement was terra nullius; to uphold the accused's right to counsel in circumstances where lack of legal representation would make a criminal trial unfair; and to assert that reasonable freedom of political expression is a necessary condition of democratic government – the decision in Chu Kheng Lim is, at best, bland.

Number of Pages in PDF File: 20

Keywords: refugee, immigration, detention, High Court, human rights

JEL Classification: K10, K30, K33

Accepted Paper Series