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Judgment Cases That Changed Australia S01E03
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00:13Detention is a big punishment for people who didn't commit a crime.
00:18Trying to survive.
00:21I can't go back to my country.
00:24I can't go anywhere else without being scared.
00:27Being arrested for being stateless.
00:33I'm just going to be here forever.
00:36Until I die.
00:48One of the greatest things about Australia is the ability of everyday Australians to be able to go to the
00:53highest court in the land.
00:55The islanders will then have a chance to prove their traditional title.
01:00Commonwealth has no rights to send people here and sell it for their benefit.
01:05It is a check. It's a limit on government power.
01:08It's shown courage at times, but it's been really gutless at other times.
01:14A Victorian prisoner is planning to challenge the law banning Australia's inmates from voting.
01:20That did not seem very fair. How dare they?
01:23It is constantly doing things that affect everyday lives of Australians.
01:28It wields enormous power.
01:32Sexual acts between consenting male adults in private are illegal.
01:36We knew that the High Court was the likely destination for this issue.
01:42And the judges are a kind of safety valve.
01:46They can look freshly at things that elected politicians want.
01:51They are unelected. Who do these people think they are?
01:55If you haven't a visa, you must be detained.
01:58It's my life you're deciding on.
02:01It's fundamental to the operation of democracy.
02:04It doesn't get any higher than the High Court.
02:2025 Cambodians and one Vietnamese sailed into Broome on Western Australia's northern coast, expecting to find refuge.
02:30Where do you come from? Here!
02:35We left Cambodia when I was 10 years old, so I remember everything.
02:39No-one wants to leave their home, I can tell you that.
02:41No-one wants to leave the community, the friends, the family.
02:47More than half the Cambodian population had someone in their family murdered during the Pol Pot regime.
02:55I remember my dad saying to me that if we get sent back, he would kill himself.
03:01And I remember saying to him that I would kill myself with him.
03:10We chose Australia because we've heard many great things about Australia.
03:15It is a safe country, very fair country.
03:20It has a great human rights record.
03:24Refugees are welcome.
03:28You are now an Australian citizen and a British subject.
03:35One of the really big celebratory narratives Australians like to tell ourselves was of the migration scheme after the Second
03:42World War.
03:44They step ashore. The old life behind them, the new ahead.
03:50So we had displaced persons from right across Europe.
03:55They were the refugees of that era.
03:58And about 170,000 displaced persons came to Australia between 1947 and 1952.
04:04They come with hope in their hearts to start a new life in this democratic land.
04:10We tend to tell ourselves that we did it out of Australian generosity.
04:13But it was always about Australia's national interest.
04:17Boosting the white population of Australia in the immediate aftermath of the Sycamore War.
04:27But we're welcoming some and not others.
04:33The boat does change significantly in the 70s.
04:37And that image of the big liners and the smiling, waving migrants is replaced by leaking boats,
04:44overcrowded with desperate refugees from Vietnam.
04:48The communist triumph in Vietnam soon saw boatloads of Vietnamese refugees sailing south.
04:56I think all the person in the boat now want to go to Australia.
05:01Malcolm Fraser led the country in insisting that Australia should take Vietnamese boat people as they were then known.
05:08We had to give these people a home.
05:11And we fulfilled that obligation.
05:15But the public opinion was not so embracing.
05:20There were so many problems here on the home front that need to be solved first of all,
05:23before we start taking an extreme flux of people from overseas.
05:26Who's paying for them? We're paying for them.
05:28How are we going to afford them? We can't.
05:32Australia was very concerned with anybody arriving in the country without being processed.
05:38People spontaneously seeking asylum is quite different to people being resettled as refugees.
05:45The government responded to that quite firmly by really providing alternative pathways.
05:52Australia took in many more refugees during that period, coming by air, not in those boats.
06:00In time, the Vietnamese flood was tamed.
06:04Australia was once again able to choose which refugees it would take and from where.
06:17No boats come for a very long time.
06:24Almost a decade after the last boat had arrived from Vietnam, two boats landed to the north of Australia.
06:33And there's a heap of people on board, five, six on the roof.
06:39Each underrest are all under the awnings.
06:42So I remembered being carried off the boat by a white immigration officer.
06:48And the feeling was incredible to be landed on that beautiful white beach.
06:53Finally we're safe.
06:54We were so, so overjoyed.
06:58However, we didn't know that we were going to be entering into detention all that one day.
07:04The lawyers would take the Department of Immigration to the High Court for illegally detaining us.
07:15Mary Ivey.
07:18Up until 1989, it was generally not the practice to keep people in detention.
07:25You detained the people you needed to detain.
07:28And everybody else went into the community.
07:31The Cambodians were the first time that I had clients in detention.
07:37And it was the detention of the children that dragged me into this.
07:50I was 26 or 7.
07:55And I was asked to assist with the Cambodian project.
08:00So basically when they first arrived, they weren't given access to lawyers and decisions weren't made for a very long
08:05time.
08:07We didn't know when we would be let out.
08:10I was, by then, 13, 14.
08:13It was hot.
08:16It messes with your head.
08:19People thinking they can just pay whatever they like, take whatever risks they like and come here
08:25and think that they're just going to automatically be accepted in this country.
08:30That's not the way it's going to work.
08:31As the minister, Gerry Hand was responsible for detaining Cambodian boat people while their claims for refugee status were processed.
08:39All of the elements of what we often associate with the Howard era were basically being set up in 1990.
08:47Some have spent longer in detention in Australia than in Pol Pot's Cambodia.
08:52And you personally have no qualms about that decision?
08:55Not only no qualms about it, but I will be forceful in ensuring that that is what's followed.
09:02Their basic demand is for temporary visas.
09:06When they received their rejections, then we were able to seek judicial review of those decisions.
09:14Federal court found flaws in the processing of their claims and sent them back for review.
09:19A further legal bid was due to proceed to have them released from detention in Port Hedland and Sydney pending
09:26that review.
09:28And that request was what prompted a new mandatory detention legislation.
09:36The legislation gets through the House of Representatives in double-click time.
09:43Australia cannot afford to allow unauthorised boat arrivals to simply move into the community.
09:48The new laws say everyone who is unlawful must be detained and removed from Australia.
09:54Earlier, there had been powers to detain people, but they were discretionary.
10:00The minister may detain.
10:02This time, the legislation provided that the minister must detain.
10:10It's mandatory, no choices, no questions.
10:13So normally, if a decision is made to detain a person, you can challenge the decision.
10:23But if there's no decision, if it's decisionless, there's nothing to challenge.
10:28The most important aspect of this legislation is that it provides that a court cannot interfere with the period of
10:35custody.
10:36I repeat that.
10:37The most important aspect of this legislation is that it provides that a court cannot interfere with the period of
10:43custody.
10:44The decision comes virtually on the eve of a court case for the release of 38 Cambodian boat people.
10:51What do I say to my clients?
10:54The parliament has decided that you can be locked up and you can't challenge it.
11:00Lawyers acting for the Cambodian boat people have confirmed they will mount a High Court challenge to new legislation prohibiting
11:07their release.
11:07A lawyer visited us one day while we were in Port Helen to say that they're taking our case to
11:16the High Court.
11:18And he asked who would like to be famous and put their hand up.
11:22And my brother being my brother, he said, you can use my name.
11:27So that's how he became the name that represent us all.
11:35At the heart of Lim is this question of who's in charge when it comes to deciding whether someone will
11:40be incarcerated.
11:41In a country like Australia, you assume that it's the courts.
11:44You go through a trial, a jury might find you guilty, and that's the basis of a detention.
11:52What do you do when an asylum seeker comes into the country?
11:54Is it appropriate that that person can be detained without a criminal conviction?
11:59Is it appropriate that essentially parliament can make that direction?
12:06Punishment is solely the domain of the courts and there's very good reason for that.
12:11It's a public process, it has to be justified by reasons, and a person has the right to be heard.
12:16That allows for an approach to the imposition of punishment, which is driven by what the law says, not by
12:25what an administrative official, for example, might think's a good thing.
12:29What would happen if government officials were able to send you to jail on the stroke of a pen?
12:35That's the concern.
12:37It's fundamental to our democracy.
12:46When I came to plead the case, I submitted on behalf of the Commonwealth that detention for the purpose of
12:52being removed or as soon as practicable, when you'd been refused an entry permit, could not be regarded as punitive.
13:01It must be regarded as incidental to the alien's power.
13:07The alien's power has always been a central and a controversial power under the Australian Constitution.
13:15Files are kept on each alien.
13:17They cannot vote, become political candidates, and are not entitled to an Australian passport or social benefits.
13:24Its main purpose, when the Constitution was enacted, was to allow the Commonwealth to exclude persons of colour from Australia,
13:34particularly people from China, but also from India.
13:41Every country has power to control its borders and who comes in and who comes out.
13:47So from that point of view, I don't think our alien's power itself is unusual.
13:54The alien's power is unusual. It's unusual because it is so broad. It simply says aliens, and it doesn't say
14:00how aliens should be treated.
14:04It's a tough law, but remember, that's what it was intended to be.
14:18Today at the High Court, the full bench upheld the right of the Commonwealth to detain those entering Australia illegally.
14:24The High Court found that that detention regime was in fact lawful.
14:30The court said that the detention of citizens was punitive, but they'd created this exception for non-citizens.
14:41If you can show that a person is not a citizen, then everything changes and even our concept of punishment
14:51can be changed.
14:52It just felt, as long as it's about aliens, you can do whatever you like under the aliens' power.
15:00But the High Court did impose limits on the circumstances in which the government could detain people.
15:06It had to genuinely be for the purpose of deportation or for allowing the person to apply for a visa.
15:15That's the famous limb test. It becomes the really forgotten, misused, confused and abused limb test.
15:24If a person was detained for any other purpose, then that would be unconstitutional and would be encroaching on the
15:31exclusive powers of the courts to dish out punishment.
15:34That laid the foundations of many more laws that followed to really close Australia's borders and to make sure that
15:41asylum seekers would be detained if they arrived on our shores.
15:48Much bigger reforms came into effect in 1994.
15:51The Migration Act was changed quite dramatically.
15:55Lim had put a huge emphasis on the fact that this detention was not indefinite.
16:02Laws at the time had a very clear 273 day time limit.
16:07In effect, after 273 days, you'd have to be released.
16:11Those changes that were made by the government in 1994 removed that 273 day cap.
16:20After that change, you had an explosion in the number of people being detained.
16:26A new cohort of arrivals coming mostly from the Middle East and Africa.
16:31You know, with the increased arrivals, you also saw increasing the number of people in detention.
16:34We didn't discriminate between men, women and children. Everyone was detained.
16:39Send them all back. We're keeping too many. It's costing them too much.
16:42If they complain, go back to where they came from.
16:45Flash forward to the shock of 9-11.
16:48Hijacked planes slam into New York's World Trade Center.
16:52Australian troops board the Norwegian asylum ship.
16:55The Tampa. The Tampa. The Tampa.
16:57400 Afghan refugees remain in limbo tonight.
17:01You can't guarantee that people who come here illegally may not have terrorist links.
17:10It's become a hugely intense time with more and more people being held in more and more remote and cruel
17:21situations.
17:22We will decide who comes to this country and the circumstances in which they come.
17:28The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa.
17:48The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa.
17:48The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa.
17:48The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa.
17:48The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa.
17:48The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa.
17:49The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa. The Tampa.
17:54The Tampa. The Tampa. The Tampa. The Tampa
17:59I had no choice but coming to Australia.
18:05My family is from Palestine.
18:08We are stateless witches.
18:11We can't apply for passport or citizenship.
18:18I mean, I have nowhere to go.
18:22Israel won't allow him to live in the West Bank or Gaza.
18:26Kuwait doesn't allow him to go there.
18:28No right to live in Jordan.
18:30And then, of course, the Commonwealth then said,
18:31oh, well, we'll just keep him in detention.
18:33Indefinite.
18:35For life.
18:37I'm not a criminal. What's going on?
18:42If someone's done a crime,
18:44he knows he's going to have his freedom in 10 years, 20 years.
18:51But we have to live with this situation forever.
18:57It's taking peace of you every day.
19:00To break you bit by bit, every moment.
19:07By months, years, you end like a corpse.
19:13Without soul, without feelings, without brain.
19:19You're just a stone.
19:22Or you need to be a stone.
19:24Otherwise, you can't survive.
19:30Smoke can be seen billowing from the Woomera detention centre
19:33in South Australia's far north this morning.
19:35Several buildings were set alight at around 4 o'clock this morning.
19:38It was probably the Woomera riots
19:42that really raised the subject to a different level.
19:50Authorities used tear gas and water cannon
19:52to repel protesting inmates at the Woomera detention centre.
20:02People don't behave like that unless they're under great stress.
20:08So I was talking to a friend about this
20:11and we decided to write personal letters
20:15to people who are in detention centres
20:17and say, we are opposed to this government policy.
20:24We don't think it's right.
20:27I also enclosed a blank piece of paper
20:31and a stamped addressed envelope
20:34so that the letter could come back to me.
20:37Yes.
20:40After Kirtan, they moved us to Pakistan.
20:50And I did receive letters from Australians outside,
20:55supporting letters.
20:59One of the letters I received, it was from Jocelyn.
21:07She's sorry for what's happening to us
21:09and she's angry with the government.
21:13Give me hope.
21:15A little light came from out of these fences around me.
21:26He apologised for his poor English.
21:33And in one letter I wrote suggesting to him
21:37he could draw a picture of his situation.
21:51From then on, it was not just, you know,
21:54I object to the detention system.
21:59I saw it much more in personal terms.
22:04A and B camera.
22:06Take one.
22:07I love that.
22:09Action.
22:10Lovely.
22:12For me, the client is not a dollar sign.
22:15The client is a human.
22:16I'm Palestinian.
22:18We were expelled in 1967.
22:21Seeing people killed everywhere,
22:23these images are still in my head.
22:25So when I've heard that Australia is detaining people,
22:29I thought I have to do something
22:31because I know exactly how they feel.
22:34And I could relate to them and I could fight for them.
22:43She said, I'm not going to leave you alone.
22:46I'm just going to fight for you to get out of the detention.
22:49We asked for the removal.
22:53By official letter, we didn't receive a response.
22:58So does that mean Ahmed going to stay in detention forever?
23:05And I got to know Abby Hampton and we just got on very well.
23:07We started to do some cases together.
23:09Claire is not intimidated by the system.
23:12And this is what I like.
23:13She asked me if I would actually challenge the lawfulness of Ahmed's detention.
23:20We filed an application for Ahmed for habeas corpus.
23:25Habeas corpus is an ancient right that we have to be released
23:29if we're not lawfully detained.
23:31Free my body, it basically says.
23:40I was just sitting in my room and the officer walked to my room
23:45and told me, Ahmed, you need to come with us.
23:50Me and another Palestinian, they give us a piece of paper.
23:56A decision that we are released from detention immediately.
24:08Put us in the car and dropped us in the middle of nowhere.
24:18I don't know where we were.
24:20I've never been in Australia before, been in detention only.
24:26Officer just left and what, what now?
24:36I have a friend drove me all the way to Baxter.
24:40I went to the detention centre.
24:41They said, we don't know where they are.
24:45You left them in the middle of nowhere.
24:55Remembering driving, driving until we reached and I saw them in the street.
25:07The government did not accept that we cannot lock
25:11non-citizen in a detention centre indefinitely.
25:16These were very, very difficult issues.
25:18There were boatloads of people seeking to access Australia.
25:24The law is that if you have no lawful basis to be in Australia,
25:28in other words, if you haven't a visa, you must be detained.
25:33So the government took Al Qatab case to the High Court to argue that they are authorised to keep someone
25:41in detention indefinite if they cannot be removed.
25:48I've never been to the High Court.
25:51The first impression, high building of cement and glass, very clinical.
25:56However, when you enter the rooms, you can feel it.
26:00The energy in the room is power.
26:05We would look at, like, who are you?
26:08Even the other teams, like, do you need help?
26:11Which is great, but we know what we're doing.
26:18They invited me to come with them.
26:22We want people to see a face.
26:26He's not a terrorist.
26:27He's not a threat to this country.
26:29He's human.
26:34I can't believe I'm in somewhere like this, in a High Court, being in this situation.
26:41I want the judges to hear my story.
26:46This was really the question that was at the very heart of Al Qatab.
26:49What happens to people who, where there's no real chance of being removed from Australia,
26:55who are subject to mandatory detention,
26:57does the government have the power to hold these people indefinitely?
27:01This is a heart and minds case.
27:03So you actually had to move the hearts and minds to show the High Court judges
27:09why they should be saying that the government should have their power limited.
27:14That's what we were trying to do.
27:17Our argument was that if you cannot remove someone or give them a visa,
27:22you can't detain them because it becomes unconstitutional.
27:28If you keep them in detention, then this is punitive or a punishment.
27:34In our system, punishment is imposed by the court, not by the parliament.
27:40It was so fundamentally clear to me that you shouldn't lock someone up without trial.
27:46I couldn't imagine losing it.
27:51I don't generally form views on the merits or demerits of my arguments.
27:57I put them.
28:01It's the court's job to form views on what they think is correct.
28:06I would understand the arguments on both sides
28:09and I'd work out how most attractively to put the arguments on my side.
28:16In a sense, the main skill which a solicitor general needs in the High Court
28:22is the ability to count to four.
28:25Four is the critical number.
28:28One is addressing seven judges and endeavouring to persuade at least four.
28:34And I'd be concentrating my argument on all the matters
28:38that are likely to convince the seventh justice.
28:43I relied in my argument very much on Mlim because the court held in Mlim
28:51that immigration detention was not punishment.
28:56Of course, in El-Kateb, the purpose was to facilitate his ultimate removal from Australia.
29:07And that is the purpose of immigration detention.
29:12We don't care about their intention.
29:14If his intention contradicts the constitutional rights
29:19and is unconstitutional, then you have to come to that conclusion.
29:24It doesn't become punishment merely because it's unpleasant for the person concerned.
29:31It's a huge punishment.
29:34Punishment for being stateless.
29:37Punishment for asking for help.
29:40It's a punishment for trying to survive.
29:44Finding somewhere safe.
29:47It's a punishment for deciding to come to Australia without knowing all the details.
30:05Taking away someone's liberty is a punishment.
30:08You just know it.
30:10We don't detain anyone lightly for the rest of their lives in Australia.
30:15And we shouldn't.
30:17My main argument concerned the meaning of the word until.
30:23The relevant section in the Migration Act said an unlawful non-citizen had to be detained until the person was
30:33either removed from Australia or received a visa.
30:37But my argument was that the word until in relation to an event which will never occur means forever.
30:46And I quoted an unusual source.
30:51My wife, who was a federal court judge, was also an absolute expert on 1960s pop songs.
30:59And I'll recite for you the relevant verses.
31:02I'll love you till the bluebells forget to bloom.
31:05I'll love you till the roses have lost their perfume.
31:09I'll love you till the poets run out of rhyme.
31:13Until the twelfth of never.
31:15And that's a long, long time.
31:18My client, he was being told that the prospect of him being in detention would be until the State of
31:23Palestine was created.
31:25It's cruel.
31:27And it was particularly cruel because of the way the Commonwealth argued it, I thought.
31:37Lenny said, they won't be locked up till I'm dead.
31:52It's coming to the end now.
31:55And I hope the judges, they will understand what, as a person like me, is dead is what he needs
32:05to survive.
32:11When he understood it was the highest court, we had nowhere else to go after that.
32:15He knew that.
32:17So in his mind, if we lose, then I'm going to end up in detention for life.
32:35He rang me and said that he understood that the High Court decision would be made, and he didn't want
32:44to spend the day on his own.
32:46For him, it was really a matter of life or death.
32:50So we both found things to do to occupy ourselves.
32:58I heard the phone ring, his phone ring.
33:05And then it was silence.
33:10The Federal Government has won its High Court challenge to keep failed asylum seekers in detention, even when they can't
33:16be deported.
33:17The High Court found that the Government could legally detain failed asylum seekers for an indeterminate period, even if they
33:23cannot be returned to another country.
33:27I didn't understand what's happening.
33:31He was completely drained of colour.
33:37It was shock, but it was not just a normal shock.
33:42It was like some kind of physical attack that had taken away his breath and his ability to speak.
33:50It's my life you're deciding on.
33:56If you're going to take me to the detention, I'm going to kill myself before I get to that one.
34:01It's much better for me to die straight away than going to that place.
34:06That's a hell.
34:15The decision in Al-Kateb was decided by the tightest of possible margins.
34:20So it was a four to three split.
34:22The minority of us, Chief Justice Gleeson, Justice Gummo and myself, took the view that you couldn't rely on the
34:31Act to resolve the case of Mr Al-Kateb.
34:36The majority said, any person who comes to Australia must be detained. What's the difficulty?
34:44I think the emotion itself came out in the judgements. This divided the High Court quite fundamentally.
34:49When you look at the result, four judges holding you to be detained for the term of your natural life,
34:55that must be wrong. I was quite shocked.
34:57Judges frequently have to make decisions that lead to outcomes that they don't personally like, but if they have fidelity
35:04to the law and the principle of the rule of law, then that's what they have to do.
35:10They, as a court, give a tick to punishment by politicians, give a tick to the notion of holding a
35:18person behind bars, not having committed any crime and not having gone through any court process.
35:25This case basically greenlit the policy of indefinite detention, which is unknown in any other liberal democracy in the world.
35:37The Al-Kateb decision of the High Court is without any doubt the worst decision it has made in its
35:43history, without any doubt.
35:53One of the irony's of the Al-Kateb case, of course, is that he lost in the courts, but subsequently
36:02the government created a class of visa for his situation, so he was able to stay, and he remains in
36:10Australia.
36:15So, he actually did better with the executive than with the courts.
36:22From the moment Al-Kateb was handed down, lawyers, including myself, felt it was ripe for overruling.
36:27This decision couldn't stand, but it did.
36:31It gave courage to Parliament that a court wasn't going to challenge them.
36:35It withstood challenge after challenge for 20 years.
36:41People might say, well, that takes too long, there were a lot of people locked up for too long while
36:45all this was happening.
36:47Remember, that could have been cured by the political process.
36:52Successive governments, of course, didn't want Al-Kateb reconsidered, because Al-Kateb was very important to their immigration policies.
36:58It meant they could determine that people would be held indefinitely.
37:02In Australia.
37:03In the years that followed, we saw the highest number of people detained in immigration detention that we've ever seen
37:11in Australia.
37:12It was, actually, we saw an increase in the duration of detention of people being held.
37:16Three years, three years, three years.
37:18Now, for two years, I'm living out of ten months in Christmas Island.
37:21Yes, yes, yes, and intent.
37:23We have been committed, and we continue to be committed, to a mandatory detention system.
37:31Australia's border protection policy has not changed.
37:35It is resolute.
37:37It is unequivocal.
37:38You will never live in Australia.
37:42You will remain in this camp, and you will spend a very, very long time here.
37:55And then comes another case.
37:58The case surrounds a Rohingya man from Myanmar, known in court as NZYQ.
38:04Now, the Rohingya are the stateless of Asia.
38:08This case, the new case, was of somebody who had served a serious prison term for serious offences.
38:16He was a pedophile.
38:17No other country was prepared to take the Rohingya man.
38:21He had done his time in prison, so he'd done the punishment part.
38:26The question was, did that mean that he has to be kept in immigration detention for the term of his
38:33natural life?
38:34The attitude of the government was that he could stay in prison forever.
38:43So NZYQ became the vehicle for challenging Al-Khateb.
38:55In terms of the legal question at stake in NZYQ, it was the very same question that was Al-Khateb.
39:01Does the government have the power to hold these people indefinitely?
39:05The High Court of Australia is now in session.
39:08Please be seated.
39:12It's very rare for the High Court to ever overturn one of its own decisions.
39:16It's free to do so.
39:16It's not bound by its own precedent.
39:22Sometimes it appears that the previous decision was either wrong or has really reached its use-by date, if I
39:30can use that crude term.
39:32The doctrine of precedent obliges courts to follow previous decisions.
39:37It isn't so controlling that the court is incapable of recognising that a wrong turning has been taken.
39:47Many people thought, well, perhaps the High Court had missed that opportunity.
39:51It's rare and unusual.
39:53And particularly in a case like Al-Khateb, which is such a cornerstone of the nation's immigration policy,
39:58it speaks of a willingness of the court that is very rarely found across its history.
40:05The court will adjourn momentarily to consider the course given.
40:11All stand.
40:13The High Court of Australia stands adjourned.
40:17The court will normally hear a case over a couple of days.
40:21It'll deliberate, sometimes literally for months.
40:23It will then give you tens, maybe hundreds of pages of reasoning to explain what it's doing.
40:31The court retired, but took 16 minutes before they came back into court.
40:37Here we have one of the biggest cases of the decade.
40:40We had a decision straight after oral argument finishing.
40:44I was breathless when I saw that, to be honest.
40:48The High Court of Australia is now in session.
40:51Please be seated.
40:52Which tells you that they were waiting for this opportunity.
40:56They all came to the same decision.
41:01The order I'm about to pronounce is the order of the court with which at least a majority agrees.
41:08A snap decision, 20 years in the making.
41:12The High Court declaring indefinite immigration detention unlawful.
41:17Indefinite immigration detention when there's no prospect of removal in the foreseeable future is unconstitutional.
41:25What the High Court has done is redrawn a new line between what the parliament can do and what the
41:31courts must do.
41:32They've said effectively that politicians can't punish people and that is a difference in what has been understood to be
41:38Australian law for a long time.
41:40It is a blast to the politicians to say, politicians write the laws, courts punish. Fundamental to our democracy.
41:50The court has a role. It makes the decisions. We're all bound by that.
41:56Should I be happy with the decisions? No.
41:58These are matters that should be dealt with by the legislature and if the legislature had determined a way of
42:03dealing with it, my view is that that is to be the preferred way.
42:06When it came to the politics though, it set off a firestorm.
42:09The Albanese government has been accused of failing to protect the community from immigration detainees.
42:15We have been very clear about trying to deal with a decision of the High Court.
42:21I must follow the law like every other Australian and the High Court has required us to release these people
42:26into the community.
42:27The High Court ordered one person. You released 140.
42:30If it were up to me, all of these people would be back into detention.
42:34We don't know who they are. We don't know where they are. We don't know what crimes they have committed.
42:38How many are you going to invite into your home? How many are you going to look after?
42:41There's a rush to introduce new laws for the 140 plus detainees released by the High Court.
42:47Cabinet signing off on changes to migration laws upended by the High Court, including ankle monitoring bracelets and breaches of
42:54restrictions are now a crime punishable by up to five years in prison.
42:58The Federal Government has lost a crucial High Court battle. The ruling found it's unconstitutional to use ankle bracelets and
43:06curfews.
43:07Ultimately, today's High Court ruling was out of the Government's hands.
43:11Clarity will only come through further test cases before the High Court.
43:21As you get these decisions, like NZYQ, which prompted a flurry of legislative activity, you then get the next case
43:32and you got a flurry of legislative activity.
43:34That has become a really disturbing pattern in terms of governmental response to judicial decisions.
43:47Anybody could see the fight developing between the courts and the government.
43:52In immigration detention, the government sees itself as having absolute power.
43:59And it's become so accustomed to having absolute power that it won't take no for an answer.
44:07The judges are independent from the government. It is, in fact, their very job, as written in the Constitution, to
44:14stand up to power and hold politicians accountable.
44:17And I tell you what, if there's not tension, the system isn't working.
44:20The court is meant to confound and disappoint our political leaders to make sure they operate within legal bounds.
44:25And we need a High Court comprised of judges that they have the balls, being bold, being assertive, that this
44:36is the High Court and we make decisions.
44:50This is my home now.
44:52And I've spent most of my life here.
44:55And for the longest time, I always told my story with a lot of positivity.
45:03However, realised that I have a lot of anger.
45:06It's that living your psych without you knowing.
45:12All the emotions that I never got to process as a child in detention.
45:37Maybe the day I started really feel home, 2017, when I have my first child.
45:51When I went to get him a passport, really a passport.
45:57And I could see in his eyes, he's not stateless.
46:01He have a home.
46:03Friends, he will build up his life here.
46:06At least he will not go through what I've been through.
46:13The moment I felt, it's okay what I've been through, it's okay.
46:18It's nice to feel he has a home.
46:24It's okay, I give it to my child to have a better life.
46:34Do you think prisoners should have the same right to vote as you do?
46:37A Victorian prisoner is planning to challenge the law,
46:40banning Australia's 20,000 inmates from voting.
46:43How dare they?
46:44The Roach case was one of those real dilemmas that you faced as the High Court.
46:48or part of his life.
46:49The Roach
46:50The Roach
46:51The Roach
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