Bird, Greta --- "An Unlawful Non-Citizen is Being Detained or (White) Citizens are Saving the Nation from )Non-White) Non-Citizens" [2005] UWSLawRw 5; (2005) 9(1) University of Western Sydney Law Review 87

AN UNLAWFUL NON-CITIZEN IS BEING DETAINED OR (WHITE) CITIZENS ARE SAVING THE NATION FROM (NON WHITE) NON-CITIZENS

Greta Bird[*]

The refugee is the representative of total otherness and the symbol of our own exile...Her arrival reminds us that we too, in our safe houses are never at home...[1]

The title of this paper is prompted by Gayatri Spivak’s construction of the sentence ‘White men are saving brown women from brown men.’ Spivak describes her ‘insistence on imperialist subject-production as the occasion for this sentence...’ In this she confesses she ‘discloses a politics’.[2] In choosing this title I too am revealing a politics and will speak of agency, responsibility and subject production.

In this paper I draw on theorists such as Derrida, Levinas, Agamben, Lacan and Kristeva and explore the detention of ‘unlawful non citizens’ in Australia. I look at the nation’s resistance to difference. Australia’s legal foundations are rickety[3] and there is, I argue, a horror in the collective unconscious of the original inhabitants and those others who cross the borders without invitation. There is a resort to distraction and denial and an evading of responsibility on a large scale. I demonstrate this by analysis of a 2004 High Court judgment, the Al-Kateb case.[4] Here the majority of the judges find Ahmed Ali Al-Kateb ‘an unlawful non-citizen being held in detention’. The ‘law’ or the ‘executive’ has spoken; the judges and ordinary citizens are innocent.[5] The ‘state of exception’, indefinite detention without trial, becomes unexceptional. The case raises questions of the limit of the doctrine of the rule of law and of the nature of justice.

July 2004

Jean Baudrillard theorises that ‘as consumers of mass media, we never experience the bare material event but only the informational coating that renders it ‘sticky and unintelligible’...’[6] The media distorts; but where the government restricts access to information these outlets often provide the only means we have of uncovering what is being done in our name. The federal government refuses to allow the media into the detention centres on the grounds that the refugees’ ‘right to privacy’ must be respected.[7] In January 2004 an ABC journalist was arrested and charged near the Woomera Detention Centre, and other journalists warned to leave the vicinity. The Australian Press Council expressed concern at the restrictions on media access to asylum seekers. The Council stated that ‘the real issue is the right of the Australian people to know what their government is doing in their name.’[8]

This ‘regime of censorship’ means that Australians have ‘only the haziest picture of what life is like behind the wire...’[9] However, I share responsibility for their erasure. I agree with Levinas that monstrous acts, such as the Shoah, arise where ‘the other person becomes ...faceless... someone whose life or death is for me a matter of indifference.’[10]

Stories of conditions in detention centres have been reported by those few officials with access to refugees. For example, Dr Glenda Koutroulis, a psychiatric nurse at the Woomera Detention Centre, resigned and spoke out in breach of a confidentiality clause in her contract at Woomera. Koutroulis felt that to remain silent would be ‘to collude with torture’. Inside Woomera, she witnessed on an almost daily basis asylum seekers slashing and mutilating their bodies and suicide attempts. Attempts to self-harm were often initiated by children, she said.[11] Although an indirect account of hidden suffering, news items such as this are an assault; the pain of knowing that fellow human beings, children, women and men are locked in detention centres because they have breached ‘our borders’ is unbearable. Their erasure behind the razor wire is indecent.

As an employed person in a wealthy western nation, I have an opportunity to be in denial and at times I tune out. Erasure takes place at both institutional and personal levels. Baudrillard writes that the ‘verite experience is ... a frisson of the real, an aesthetics of the hyperreal, ... a vertiginous and phony exactitude, ...an excessive transparency.’[12] Big Brother,[13] Australia’s TV verite, beckons with its sanitised ‘reality’ and I succumb, sip a dandelion soy latte and contemplate my ‘compassion fatigue’[14]. But even as I avoid responsibility, on the screen is a trace of the refugees. Merlin, ejected from the Big Brother house, faces the TV cameras with his mouth taped shut, to show the silencing of those in detention. He holds up a sign ‘Free th[e] Refugees’ and refuses to remove the tape from his mouth. Many of the viewers are angry that their ‘hyperreality’ has been invaded by the real.

I attend meetings and events of a local refugee support group, such as the launch of Dark Dreams[15]. I can face the refugee ‘problem’ in the company of warm hearted activists.[16] However, alone on my couch, I do not want to engage with the horror of what we are doing in the camps. And in my university office I do not want to write about these ‘others.’ Raimond Gaita argues, ‘It should not be controversial that it is evil to incarcerate children behind razor wire as part of a strategy to deter asylum seekers from landing on our shores.’[17] I agree with Gaita’s argument. However I convince myself that I have nothing to contribute to this debate as an academic. There are ‘experts’ in refugee law better placed to publish and draw attention to what is happening in our name. Michel Foucault emphasised the microphysics of power relations, theorising that ‘power comes from below’ and that there are ‘a multiplicity of points of resistance’.[18] Political action at the local level together with spiritual practice, is for me, surely sufficient. My academic life can be closeted off from this horror.

August 2004

And then I read the High Court judgment in Al-Kateb[19]. I am overcome with emotions: angry, sad and depressed. Human rights law is predominantly based on a liberal understanding of a universal, common, humanity. The case of Al-Kateb, marks a rupture in the connection between ‘our humanity’ and the law.

For Levinas, the ontology of alterity is based on the recognition of the absolute proximity of the most alien. Responsibility to the other is central to the ethics of alterity. It is what Costas Douzinas refers to as the non-essential essentialism of ‘our humanity’, opening me to ‘the domain of language, intersubjectivity and right’.[20] The other calls my self into being. As Levinas expresses it my responsibility arises in ‘the very straightforwardness of the face to face, without the intermediary of any image, in one’s nudity, that is, in one’s destitution and hunger.’[21]

The topics we choose to write about, where we choose to put our energy, tell us something about ourselves. I must write. However I find it hard to focus my energy on refugees, their position is too precarious. They remind me perhaps of the instability of my identity; Derrida theorises ‘identity as continual movement.’[22] The refugees challenge my position as a privileged, white person. I am Australian, born in a land illegally taken from its rightful owners, Aboriginal peoples and Torres Strait Islanders. Living under a constitution steeped in racism.[23] And my subject position allows me the privilege of avoiding consciousness of race, of slipping into a theoretical engagement with difference, rather than an embodied negotiation with friends and colleagues whose visible markers of difference do not afford them this luxury. As Aileen Moreton-Robinson writes: ‘white women ...are located in power relations where whiteness remains invisible, natural, normal and unmarked.’[24]

Australia of the Constitution is a nation built on migration and one in denial of the immemorial rights of Aboriginal peoples and Torres Strait Islanders. For a long time immigrants were predominantly Anglo-Celtic. The ‘White Australia’ policy restricted non white immigration until the 1970s. There are still citizens, as Ghassan Hage reminds us, who maintain the fantasy that Australia is an Anglo nation. These assimilationists can readily become paranoid about the arrival of what they perceive as the ‘alien other.’[25] They are ripe for the type of propaganda unleased by the government and a docile media during the ‘children overboard’ incident.[26] Meanwhile the Australian birth rate is plummeting: headlines in the quality press decry the number of foetuses being aborted in Australia. Women must be prepared, the Treasurer smirks, to ‘have one for the country.’ Peter Costello seems largely disinterested in the refugee babies and in the high mortality rate of Aboriginal infants. Surely he can see there are enough babies, enough people on the planet. Why can’t we ease our anxiety over the birth rate by granting entry to more asylum seekers? I am having many of those moments Patricia Williams describes when she questions her sanity.[27] I cannot get the judgment out of my head. I re-read the case.

Al-Kateb

Ahmed Al-Kateb is a young man, twenty six years old. A stateless person; he has been designated an ‘unlawful non citizen’ in Australia. In Kafka’s chilling book, The Trial, ‘K’ is arrested and spends his life trying to find out what crime he has committed.[28] Al-Kateb is not guilty of any crime, but like ‘K’ must be tormented by the irrationality of his treatment. As Slavoj Zizek argues ‘administrative measures are gradually replacing the rule of law...’.[29] Costas Douzinas writing of the exclusion of ‘aliens’ speaks of ‘ a lack at the heart of the polity, which...always comes back, in xenophobia and racism, in hatred and discrimination...’[30] Ahmed Al-Kateb is being constituted as the alien ‘other’ in an Australia unreconciled with its originary trauma.[31]

The speaking subject in Australia is the white, heterosexual male.[32] The language available to Al-Kateb does not allow him to give voice to his specificity. He is bounded by terms such as ‘alien’ and ‘queue jumper.’ Further, his experiences of trauma and detention are’ radically singular and timely; they resist and at the limit destroy language and its ability to construct shared worlds.’[33] He is judged an ‘illegal’ because the law, passed by Australia’s democratic parliament, says anyone who enters Australia without a visa is ‘a designated person’ who must be held in detention until they are deported. Al-Kateb cannot now, or in the foreseeable future, be deported anywhere. There is no country in the world to which he can claim citizenship: he is stateless. Al-Kateb identifies himself as a Palestinian born in Kuwait. However, this fact of his birth does not make him a citizen as Palestine does not have statehood recognised at international law and his long residence does not even entitle him to permanent residence in Kuwait.[34] His imprisonment is challenged in the High Court where in a split, 4/3 decision, the majority find that the arrest and detention is lawful and unbounded in time. I cannot believe this.

How is it that Australia, a country without the death penalty, and with a pride in its common law roots, is able to lock an innocent person up for life? The answer lies in the nature of law. Although the common law favours liberty its principles can be over ridden by statute. The majority judgments find the detention of Al-Kateb a valid exercise of executive power under the Migration Act1958 (Cth). The judgments are couched in a black letter analysis.[35] In positivistic mode the majority High Court judges take a literal approach to interpreting what they perceive as the clear words of the statute. They decide that Parliament’s purpose encompasses the ‘tragic’ result in this case. The Australian constitution, without a Bill of Rights, and with a continuing racist history does not, the majority finds, put a brake on executive detention of ‘aliens.’ In Britain, in contrast, an 8-1 ruling the law lords finds that the ‘indefinite detention without trial’ of terror suspects breaches the European Convention on Human Rights, which is binding on the United Kingdom, and is therefore unlawful. In a strong judgment Lord Hoffmann opined that: ‘The real threat to the life of the nation ... comes not from terrorism but from laws such as these.’ Lord Scott of Foscote described the administration of the anti-terror laws as ‘the stuff of nightmares, associated ... with France before and during the revolution, with Soviet Russia in the Stalinist era, and now associated, as a result of section 23 of the 2001 Act, with the United Kingdom.’[36] In Australia the indefinite detention of asylum seekers, such as Ahmed Al-Kateb, is not linked to the ‘war on terror’ except in the imaginary of the co-alition government. It resonates however with an historical horror of the ‘alien’.

Ian Duncanson’s paper, ‘Telling the Refugee Story,’[37] looks at the desire to keep Australia white from the very beginnings. Aborigines, Kanaks, Chinese, could not be Australians – they were not white.[38] The Australian nation is perceived as under threat from the refugee. They are impure and may pollute the nation. They are deceitful, not really poor (having paid people smugglers) and are ‘queue jumpers.’ To cross the border without a visa is to be an outlaw, an ‘illegal.’[39] In order to protect what ‘we have worked hard to earn’, we have to decide ‘who will come here.’[40]

The rich place barriers before the poor to stop their getting even ‘crumbs from the table.’[41] The definitions at international law of the refugee or stateless person who can lawfully ask for asylum are very restrictive. Few ‘unlawful non-citizens’ can satisfy the criteria. Governments may, as an act of grace, issue temporary visas; however the grounds for issuing these shift. As Sarah Kyambi writes: ‘Reversing the hierarchy of purity and impurity reconfigures our conception of responsibility to those who stand at the threshold of nation. Their exclusion cannot be seen as something that simply ‘happens’, but must instead be recognised as something that is ‘done’...’[42]

The creation of a threat from a demonised other serves to give a sensation of stability to an otherwise shaky nation. Australian identity is being reshaped in the image of the ‘laconic bushman’ and his wife baking Anzac biscuits[43] in the background.[44] There is a concerted push to overturn the imaginary of a cosmopolitan, reconciled society, an identity seen as issuing from the metropolitan elites.[45]As the twenty-first century progresses we get deeper into the ‘culture wars’.[46] Combatants stand ready to fight in response to John Howard’s battle cry to ‘replace the black armband view of history’ with a recycled, earlier whitewashed story of mateship, egalitarianism and heroism. [47] John Howard even wanted ‘mateship’ written into the Constitution.[48] Compared to the infidel hordes ‘we’, the ‘coalition of the willing’ are ‘Christian’ and ‘civilised’.[49] George Bush implores us to fight ‘terrorists’ and ‘evil’.[50] However the construction of this division into good/evil ushers in, as Giorgio Agamben alerts us, ‘the state of exception (a state of death) [that] now invests all structures of power and eradicates any experience and definition of democracy’.[51]

Hospitality

Jacques Derrida has written about hospitality: ‘In the hospitality without conditions, the host should, in principle, receive even before knowing anything about the guest. A pure welcome consists not only in not knowing anything or acting as if one knows nothing, but also in avoiding any question about the Other’s identity...’[52] He also points out that this ‘unconditional hospitality is impossible...We would not simply leave the house with no doors, no keys and so on and so forth.’[53] However Derrida did not forsake action because a pure welcome was impossible. Assuming a responsibility for the ‘other’ he worked to improve the French laws concerning asylum seekers. He and like minded citizens ‘signed a petition saying that, in certain conditions, we [a]re ready to shelter in our houses people who [a]re considered illegal immigrants in France.’[54]

Similarly it is ‘impossible’ to offer unconditional hospitality to all who want to enter Australia. However once we identify the ‘illegals’ as people like ourselves we may want to clothe and feed them and take them into our homes.[55] Indeed many people are feeding and offering shelter and other forms of assistance to refugees throughout Australia[56]. Derrida says: ‘We are not dreamers,...But we have the desire for this perfectibility...unconditional hospitality.’[57] It is in this sense that the term we is used here, not in a philosophical slippage into essentialism.

As I look at the lines drawn on maps of the planet[58], I realise the artificiality of the borders. A nation’s boundaries are most often drawn as a result of colonial or imperial adventures. There was a time when 85% of the planet was under colonial control by Euro-American powers. In spite of theoretical decolonisation[59] little has changed in terms of wealth distribution.[60]

The ‘compassionate’, ‘Christian’ west has untold wealth, and did not Jesus speak of his love of the poor, and tell the story of the Good Samaritan who was prepared to offer aid to the ‘enemy’, seeing in the alien ‘other’ a common humanity.[61]

Al-Kateb’s Argument

Ahmed Al-Kateb is a Palestinian born in Kuwait. Being born in Kuwait or living there for years do not entitle people to permanent residency or the grant of citizenship.[62] He arrives in Australia and is refused a visa to remain as a refugee or stateless person. However he cannot be deported, now or in the foreseeable future, as there is not a country prepared to accept him. He is in Heller’s classic Catch 22 situation.[63] There are two central questions before the High Court. First is whether the legislation does clearly provide for the indefinite detention of ‘aliens’, even where this appears to conflict with common law principles and Australia’s international obligations. The second inquiry is whether such legislation breaches Ch III of the Constitution.

Al-Kateb argues that as his removal is not practical, then the detention is unlawful and must come to an end. He ‘seeks an order in the nature of habeas corpus’[64] that will result in his release. [65] The respondents reply that they have the intention or purpose to remove Al-Kateb, and even though removal is but a remote possibility, and he may be locked up for the whole of his life, they are within the statute.[66]

When the case comes to trial Ahmed Al-Kateb has been allowed out of detention on conditions and is living in Sydney pending the hearing of this appeal.[67] In the centre he was a non person in every sense. He existed when in detention as a number, emptied of ‘humanity’.[68] AL-Kateb was reduced, along with others in the camps, to ‘bare life’. As Agamben writes: ‘The fundamental categorical pair of Western politics is not that of friend/enemy, but that of bare life/political existence, zoel/bios, exclusion/inclusion.’[69]

The majority of the High Court judges, McHugh, Hayne, Callinan and Heydon, regard the holding of Al-Kateb as non punitive. As Justice Hayne surreally says:

Because Immigration Detention Centres are places of confinement having many, if not all, of the physical features and administrative arrangements commonly found in prisons, it is easy to equate confinement in such a place with punishment[70]

His Honour does not fall into this semantic error. Douzinas reminds us that the justice of human rights calls for ‘not the detached position of disinterestedness but that of proximity, closeness and concern for the other’.[71] However Justice Hayne, in disembodied fashion, embraces detachment and finds Al-Kateb is not being punished, no matter what the detainee’s view of the matter is.[72]

If I were behind bars in a detention centre, subjected to degrading treatment, for an indeterminate period I would be having a ‘punitive’ experience no matter what a judge told me. But that is not how the law operates. The orthodox view of law posits that it is impartial, neutral and objective.[73] It is the text of the law that demands the ‘tragic’ result in this case.[74] The Parliament has expressed the views of the electors in the Migration Act and the judges are compelled to follow the law. The majority judges do not to allow emotion to sway the implementation of the law. If this person is to be released from detention it must be through the will and favour of the political arm of government.

The judgments

For the majority the statute is clear. They are positivists and do not resile from a law that is severed from justice. Fitzpatrick reminds us that ‘even the most ardent legal positivists would not say that their posited law can remain in a settled stasis but must, rather, give way, and give a way, to what is beyond it.’[75] The majority however find nothing outside of posited law. Detention of ‘unlawful non-citizens’ is mandatory. International law cannot, the majority hold, act as a brake on this clear legislative power. As McHugh decides: ‘It is an enduring – and many would say a just – criticism of Australia that it is now one of the few countries in the Western world that does not have a Bill of Rights. But, desirable as a Bill of Rights may be, it is not to be inserted into our Constitution by judicial decisions drawing on international instruments that are not even part of the law of the country.’ ‘The people’ must bring about change ‘hard though its achievement may be.’[76] McHugh and his brother judges, Callinan, Hayne and Heydon, find that the Constitution may be interpreted to undo treaties that Australia is party to, such as the International Convention on Civil and Political Rights.[77]

Deportation is not punishment, instead it is designed to protect ‘the community from undesired infiltration’. Here we see McHugh drawing on images of the ‘alien’ as a polluter of the pure Australian nation. He embarks on a ‘moral panic’[78] saying that those who could not be deported could ‘thwart the operation of the Migration Act’ and ‘could become de facto Australian citizens’.[79] This point is also made by Justice Callinan. These men appear concerned that Australia would lose some potency if the bureaucracy could not lock ‘aliens’ up for life. These positivist judges have abandoned the language of neutrality and resorted to partiality and subjectivity. As Lacan points out, there is always a danger that the unity of the ego, the fantasy of ‘self-mastery’ will slip, leaving a human being in ‘constant danger of sliding back again into the chaos from which he [or she] started’.[80]

This ‘chaos from which he started’, is interpreted by Julia Kristeva to mean the maternal womb.[81] The formalism of positive law, with its erasure of ambivalence, provides a sense of sure footedness or certainty. It allows the maternally derived body to be disavowed. As Luce Irigaray writes: ‘In order to become men, they continue to consume...[the mother], draw on her resources and, at the same time, they deny her...’ [82] The rational, legal mind can prevail and make the nice distinction between punishment and detention. McHugh says that Parliament could pass a law making it a crime to be in Australia without a visa and providing for mandatory detention. [83] However he neglects to mention that such a law would entail judicial scrutiny of the mandatory nature of the sentencing and the fact that the sentence was indeterminate.

His Honour appears uncomfortable about the result, but washes his judicial hands of any guilt. ‘For such laws, the parliament and those who introduce them must answer to the electors, to the international bodies who supervise human rights treaties to which Australia is a party and to history. Whatever criticism some – maybe a great many – Australians make of such laws, their constitutionality is not in doubt.’[84] The Constitution then is to blame. Just as in Kartinyeri[85] where the Commonwealth argued that the race power in the Constitution could support the genocidal laws of the Nazi Third Reich [86] and the majority judges sitting on the ‘constitutional court’ could do nothing about it, so here the judges cannot act. A similar position was taken in the Kruger case[87], where as Manderson writes, ‘for Justice Dawson, and for Justice McHugh, even a genocidal law would be legally enacted.’[88]

Parliament must answer to the electors and yet the electors voted, we are told, on mortgage interest rates.[89] They returned with an increased majority the government who passed the ‘unlawful non-citizen’ laws. We will never know how many of the electors are ashamed at laws that provide for the detention of children behind razor wire and the ‘gaoling’ of a young man like Ahmed Al-Kateb for life for entering Australia without a visa. However we can only presume that the ‘moral panic’ created by government advertising around the ALP and interest rates was more persuasive in the polling booth than empathy for asylum seekers. So we must rely on ‘international bodies’, the same bodies vilified by the Howard government,[90] or ‘history’ to query the Parliament. Depressingly, for those of us interested in human rights, there appears to be little that can be achieved through law and ‘history’ seems a very, very long way off and infinitely malleable[91] .

And so Justice McHugh can be at ease; he has played his part in the detention of Al-Kateb. The result, in his Honour’s words, leaves the appellant in a ‘tragic’ position.[92] I view the outcome as a travesty of human rights, but that is not the majority judges’ concern. In their interpretation of the judicial function their role is purely to do the will of Parliament. In the Australian constitutional context they are innocent, just as law is innocent.[93]

Justice Hayne, also maintains his objectivity and impartiality. In non corporeal terms he concludes his judgment about Al-Kateb’s situation with a quote from Judge Hand, an American judge. If an alien cannot find asylum somewhere, he (sic) ‘must... like the Flying Dutchman, forever sail the seas.’ [94]

The Flying Dutchman

The Flying Dutchman is a ‘maniacal Dutch sea captain who, either mad or drunk sailed into a storm,... singing loud and obscene songs...challenging the wrath of God Almighty by swearing a blasphemous oath.’ In one version of the tale God says; ‘As a result of your actions you are condemned to sail the seas for eternity...to never know a moment’s peace. ...gall shall be your drink, and red hot iron your meat.’ In another version, ‘the captain this time swears at the devil, who then condemns him to sail the spectral seas forever.’[95] Justice Hayne by drawing on this legend is comparing Al-Kateb’s position to that of the Flying Dutchman, a person who, either drunk or mad or both, has blasphemed against the Christian God and either brought down the wrath of God or of the devil on himself. The Flying Dutchman can perhaps be seen as the author of his fate. However what has Al-Kateb done? He is not drunk or mad or blasphemous and has not brought down the wrath of Allah or the devil on himself. He has entered Australia as a stateless person and asked for asylum. He has felt the wrath of the Australian government. The analogy between the two cases may have been drawn thoughtlessly; however it is part of a negative attitude displayed towards Al-Kateb throughout this judgment.

Justice Callinan’s dispassionate judgment brings to my mind Derrida’s distinction between justice and the legal decision. The legal decision ‘simply consists of applying the law’ and is one where ‘the judge is a calculating machine.’[96] ‘[F]or Derrida justice imports an unlimited responsiveness to the singularity of the other.’[97] Justice Callinan does not show responsiveness to the applicant. Indeed he states the facts using language that points to a lack of credibility in Ahmed Al-Kateb, demonstrating the cogency of Foucault’s argument that ‘power constructs knowledge.’ For example Justice Callinan begins his judgment by stating: ‘he claims to be a stateless Palestinian....He said he did not possess a passport.’[98] Callinan sets out the unsuccessful applications Al-Kateb has brought to the department, the tribunal and the Federal Court referring pejoratively to Al-Kateb’s ‘litigious endeavours’.

For Callinan the consummate positivist, there is no ‘licence to rewrite the statutory language,’ as the minority judges do.[99] He does not see any ‘problematic moments in the text that undermine its apparent coherence or stability.’[100] The fact that the likelihood of the appellant’s removal is ‘currently slight’ is irrelevant to his detention. And, ‘Nor should the appellant be accorded any special advantages because he has managed illegally to penetrate the borders of this country...’[101] The minority judges in contrast find the word ‘detention’ linked to the concept of legality or illegality.

Justice Callinan agrees with views expressed by the minority judges in the United States case of Zadvydas v Davis that: ‘Nothing in the Constitution requires admission or sufferance of aliens hostile to our scheme of government.’[102] The relevance of this position to this case is unclear. There is no evidence that Al-Kateb is hostile to a democratic system. This would be one reason why he has chosen to seek asylum in Australia. The quotation does however refer to ‘aliens’ and link them with hostility to ‘our’ way of life. The underlying theme of the text is one of demonising the ‘alien’.

Justice Callinan then speaks about the dangers of ‘aliens’ becoming citizens.[103] His Honour endorses harsh behaviour towards ‘aliens’ and blames them for the lengthy periods of detention they suffer. ‘Another practical consideration is that by their manner of entry, repetitive unsuccessful applications and litigation founded on unsubstantiated claims, or, if and when it occurs, escape from immigration detention, some aliens may attract so much notoriety that other countries will hesitate or refuse to receive them. In those ways they may personally create the conditions compelling their detention for prolonged periods.’ [104] Again this is reminiscent of the blame often attached to other marginalised people, such as women, who have ‘asked for’ the treatment they receive from the virtuous citizen.

Justice Callinan gives short shrift to the notion that statutes are to be interpreted in accordance with Australia’s international obligations.[105] His concluding remarks on this point elevate parliamentary, or more accurately executive sovereignty, above the rule of law. The statement, ‘It is a matter for the Australian Parliament to determine the basis on which illegal entrants are to be detained,’[106] eschews a role for the courts in determining whether such detention is lawful. It is difficult to envisage any brake on executive power either in the common law or the Constitution arising after this interpretation. Justice Kirby makes his opposition to this interpretation clear. ‘Unlike Callinan J, I would not have this court surrender the power of unlimited executive detention to a minister’s ‘intention’.’[107]

The minority judgments of Chief Justice Gleeson, and Justices Gummow and Kirby provide a strong contrast to those of the majority judges. Where the majority see clarity, they find ambiguity. These men are concerned at the loss of fundamental freedoms involved in a literal interpretation of the statute. Gleeson says: ‘A statement concerning the improbability that Parliament would abrogate fundamental rights by the use of general or ambiguous words is not a factual prediction, capable of being verified or falsified by a survey of public opinion. In a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by Parliament.’[108]

It is not often that judges refer to their emotions. The act of judging is, in positivist theory, constructed as a rational, unemotional task. Deane and Gaudron in Mabo (No 2) refer to the ‘emotive language’ in their judgment as somewhat unusual for the High Court.[109] Justice Kirby has written about the emotion involved in judging[110] and, giving voice to his humanity, has said: ‘Human rights start from human love.’[111] Douzinas reminds us that human rights have an ‘uncomfortable place in the text of law. To the extent that they become positivised legal discourse...they share... a dominant logic which necessarily violates the demand of justice.’[112] Kirby is aware that justice demands a response to the singularity of each person. Although he uses the orthodox lawyer’s tools of statutory interpretation, the judge brings a broad context to his judgment. He moves in the direction of Derrida’s justice.

Kirby’s judgment reveals him as a passionate supporter of international human rights law. He sees a growing importance for international law, particularly in the area of human rights. Following Lord Steyn in the United Kingdom case of R(Daly) v Secretary of State for the Home Department , Kirby agrees that in the law ‘context is everything’[113]. The Constitution is vastly different than in 1901, the context has changed. ‘Now the Constitution speaks not only ‘to the people of Australia who made it... It also speaks to the international community as the basic law of the Australian nation which is a member of that community.’ [114] Kirby optimistically asserts that efforts seeking to ‘cut off contemporary Australian law (including constitutional law) from the persuasive force of international law are doomed to fail.’[115] However the judge is clearly frustrated by McHugh’s judgment. Justice Kirby says: ‘Tragic’ outcomes are best repaired before they become a settled rule of the Constitution.’[116] He cannot understand why McHugh argues for Chapter III protection of due process rights before ‘the academy and the profession’ and does not put these views into effect in this judgment.[117]

Conclusion

Australia is a member of the international community and a signatory of many human rights treaties such as the International Convention on Civil and Political Rights. The Australian Constitution alone among western nations does not contain a Bill of Rights guaranteeing due process rights and preventing arbitrary detention at the will of the executive. However the High Court has, at times, drawn on fundamental common law principles, such as the right to personal liberty, to interpret legislation in a way that promotes basic human rights. In this case the majority judges put the decisions of the executive and the ‘purpose’ of the Parliament above these fundamental principles. They privilege parliamentary supremacy in a politico-legal system where Parliament often equates with the executive. They adopt a literal, positivistic reading of the statute, choosing law over justice. They pose as neutral positivists attempting to ‘reflect the position of the reasonable lawyer who likes to concern himself with formal structures and keep politics and morality out of it altogether.’[118] However deconstructing their language it appears emotionally and morally charged.

The minority judges are less positivistic and their judgments contain elements of natural law. They evoke considerations of fundamental principles of justice to temper the literal terms of the legislation. Statutes are to be read in context and that context embraces the time honoured freedoms derived from the common law and most recently enshrined in international law. They find that the indeterminate, perhaps permanent, administrative detention of Ahmed Al-Kateb renders the detention punitive and therefore a breach of Chapter III of the Constitution. As Justice Gummow writes; ‘The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the executive.’[119] Justice Kirby’s judgment also affirms the strength and importance of common law traditions and asserts that: ‘The express subjection of the legislative power to the judicial power in the Australian constitution is not a mere formality.’[120]

However the four majority judges find that the detention provided in the statute is not punitive. Following their interpretation of the positivist legal philosopher, HLA Hart, they find that punishment can only occur where it is attached to breach of a law. Al-Kateb has not committed any offence, therefore he is not being punished.

The decision demonstrates a court divided over the extent to which a democratically elected Parliament can deny human rights to ‘aliens’ and ultimately to any citizens.[121] Giorgio Agamben, writes that the Homo Sacer, under ancient Roman law, was a person whose killing would not amount to murder.[122] Slavoj Zizek, posits that in the new millennium, the Homo Sacer is an ‘object of disciplinary measures, and/or even humanitarian help, but is not a citizen’.[123] The asylum seeker falls into this category; she or he falls outside law. Agamben sees a collapse in recent times between ‘the Rule of Law (Etat de Droit) and the State of Emergency (Etat d’ Exception) ...’[124] In Agamben’s vision there is a link between democracy and totalitarianism; the suspension of civil liberties as part of the war on terror has now become an ordinary event in democracies and law in this ‘state of exception’[125] has lost its content.

For me the decision resonates at a deep level. It emphasises the instability of white claims to sovereignty and nation in Australia. The attack on refugees by Australian governments is beyond any threat they could possibly offer a polity secure in its identity. The measures demonstrated in the ‘Pacific Solution’, the treatment of the few hundred ‘tired, hungry and unarmed men, women and children rescued by the Tampa,’[126] and the legislation providing for mandatory, administrative detention of ‘unlawful non-citizens,’ are designed to shore up the borders; to demarcate the line between ‘us’ and ‘them’. Justice Callinan refers in his judgment to the illegal penetration of the borders of this country by ‘aliens’. The language of illegal penetration brings to mind both the rape of women in time of war and the penetration of the borders of Aboriginal nations by the white man in 1788.

The original horror in Australia for the white invaders was of the Aboriginal peoples who they deemed ‘heathen’ and later the Chinese who were fantasised as seducers of white women. I interpret this horror in the unconscious as a fear of ‘the abject’. Julia Kristeva traces the idea of pollution by the ‘abject’ in Judeo-Christian culture to the Hebraic ‘pure/impure distinction, tahor/tame, [that] shows up in the biblical episode of Noah’s burnt offering to the Lord after the flood. ‘And Noah built an altar unto the Lord; and took of every clean beast, and of every clean fowl, and offered burnt offerings on the altar.’[127] Kristeva sees the abject as ‘that part of the subject it attempts to expel....’[128] The abject threatens the unity of the subject’s existence but paradoxically resides within the subject.[129]

Drawing on this I assert that refugees are for many legal citizens the impure part of the body politic. ‘The abject attests to the impossibility of clean borders...’[130] ‘Aliens’, such as Ahmed Al-Kateb, have in Australia been cast as the abject. Their very descriptor ‘alien’ speaks of ‘otherness.’

Jacques Lacan, writing on subjectivity, points to its fluidity and the subject’s terror that they might descend into chaos. The subject fantasises about wholeness and completion. This individual fantasy is discernible, I argue, at the level of the Australian nation.[131] Citizens fear the fragmentation of the body politic, like they fear the return of their ‘fragilized...pre-oedipal’, maternally dependent body.[132] The perceived ‘other’ is actually, at least in part, a projection.’[133] We do not meet the other unmediated we project onto her our fears and fantasies.

Australia is a nation of ambivalence. We white citizens are unreconciled with Aboriginal peoples and have shown a hard heart in our treatment of refugees.[134] We are ill at ease in our white skins and have chosen to exclude Ahmed Al-Kateb, and others like him. We white citizens are detaining the ‘unlawful non-citizens’. Turning away from ‘humanity’ and justice however comes at a price. We assume ethical responsibility for that choice and, as a nation, are diminished by it.[135]

[*] LLB (Hons) University of Melbourne, LLM (Monash University), MPhil (Cambridge University), Associate Professor and Director of Postgraduate Studies and Research, School of Law and Justice, Southern Cross University. I want to thank Jo Bird for research assistance and encouragement in the writing of this paper.

[1] Costas Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the Century (2000) 357.

[2] Gayatri Spivak, A critique of Postcolonial Reason: Toward a History of the Vanishing Present (1999) 284.

[3] I base this assertion on the arguments put forward by the High Court in Mabo v Queensland [No 2] (1992) 107 ALR 1 about the fictional quality of the doctrine of ‘terra nullius.’ The legal basis of the Australian nation may now lie in the ‘act of state’ doctrine. Deane and Gaudron JJ at 58 state that the British Crown’s extension of its sovereignty over the Australian colonies was ‘an act of state’... ‘The validity...could not be challenged in British courts....’

[4] Al-Kateb v Godwin [2004] HCA 37; (2004) 208 ALR 124.

[5] Here I am deconstructing law’s claims to objectivity, neutrality and innocence. A useful introduction to this critique of positivist legal interpretation can be found in Margaret Davies, Asking the Law Question: The Dissolution of Legal Theory (2nd ed, 2002), ch 3 ‘Natural Law and Positivism’, 67.

[6] Jean Baudrillard, The Gulf War Did Not Take Place (1995) [trans by Paul Patton] 10.

[7] Australia is signatory to the International Covenant on Civil and Political Rights, which condemns the arbitrary or unlawful interference with the individual’s privacy. The High Court has recently recognised the tort of unjustified invasion of privacy, see: Australian Broadcasting Corporation v Lenah Game Meats Ptd Ltd (2002) 208 CLR 199. However, the right of freedom of political expression is also recognised under the ICCPR and is an implied right in the Australian Constitution: see: Australian Capital Television v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106.

[8] Jack Herman, ‘Access to Refugees’, Australian Press Council News, No 14(1) (February 2002). <http://www.presscouncil.org.au/pcsite/apcnews/feb02/refugees>

[9] David Marr and Marian Wilkinson, Dark Victory (2003) 135.

[10] Simon Critchley and Robert Bernasconi (eds), The Cambridge Companion to Levinas (2002) 13.

[11] Penelope Debelle, ‘Blowing the Whistle on Hidden Suffering in Woomera’, The Age (Melbourne), 24 April 2002. This story was found at: <http://www.theage.com.au/articles/2002/04/23/1019441244295.html>

[12] Jean Baudrillard, Simulcra and Simulation (1994) [trans by Sheila Faria Glaser] 28. Baudrillard is discussing American television’s 1971 ‘verite experiment,’ the precursor to the Big Brother franchise.

[13] Big Brother is a reality TV show in which a group of people are placed in a house and are filmed 24 hours a day. The show is broadcast every night for weeks, and each week the public phones in to ‘evict’ the housemate they like the least. Each evictee is then interviewed live to air. Merlin, an evictee managed to smuggle the materials into the house to make the sign. He refused to speak when being interviewed by Big Brother host Gretel Killeen. The studio audience mostly booed and hissed at Merlin, and he was eventually led off stage by security. The show was watched by an estimated 1.8 million people. See Sacha Molitorisz, ‘The Eyes Have It: Big Brother Defies the Odds and Returns for a Fifth Season’, The Sydney Morning Herald: The Guide (Sydney), 2 May 2005, 5.

[14] I am attending weekly meditation sessions at the Buddhist Society practising ‘loving kindness’ to all creatures in the universe and meditate daily. I am finding the engendering of compassion towards those who have engineered the detention system difficult. However I acknowledge my part in the society that has produced these laws. I see this outpouring of compassion by meditators as one way of achieving political change. However at times, being unenlightened, I seek to avoid this engagement and grasp at distractions.

[15] Sonja Dechian, Heather Millar and Eva Sallis (eds), Dark Dreams: Australian Refugee Stories by Young Writers Aged 11-20 Years (2004).

[16] I did, for example, spend two years on the organising committee of the Activating Human Rights Conference (2003) Centre for Law, Politics, Culture, Southern Cross University, which provided a space for academics/activists to come together and work for change. Among participants were people who had been detained in the centres.

[17] Raimond Gaita, Breach of Trust: Truth, Morality and Politics, [ Quarterly Essay Issue 16] (2004) 6.

[18] Michel Foucault, The History of Sexuality Volume 1: An Introduction [trans by Robert Hurley] (1990) 94, 95.

[19] Al-Kateb v Godwin [2004] HCA 37 http://austlii.edu.au at 10 August 2004. The case is now reported see n5.

[20] Costas Douzinas, The End of Human Rights (1999) 350.

[21] Emmanuel Levinas, Totality and Infinity: An Essay on Exteriority (1969) [trans by Alphonso Lingis] 200.

[22] See Sarah Kyambi discussing Derrida, ‘National Identity and Refugee Law’, in Peter Fitzpatrick and Patricia Tuitt (eds), Critical Beings: Law, Nation and the Global Subject (2004) 34.

[23] Greta Bird and Loretta Kelly, ‘Women Speak Out: Critical Perspectives on the Proposed Preamble to the Constitution’[2000] AUJlHRights 13; , (2000) 6 (1) Australian Journal of Human Rights 265.

[24] Aileen Moreton-Robinson, Talkin’ Up To The White Woman:Indigenous Women and Feminism (2000) 183.

[25] Ghassan Hage, Against Paranoid Nationalism: Searching For Hope in a Shrinking Society (2003) 65-66.

[26] ‘The election of 2001 is often called the ‘Tampa election’, because a turning point for Howard was the government seizure of a Norwegian cargo vessel called the Tampa, which was carrying over 400 asylum seekers rescued from a sinking boat. Rather than allow the refugees to land in Australia, Howard ordered the military to pick them up and take them by force to a hastily improvised detention centre on Nauru, thus initiating the Pacific Solution. Meanwhile, Howard claimed that the refugees had thrown children overboard to compel the Navy to pick them up and bring them to Australia. He said he did not want ‘people like that’ in Australia, and ‘We will decide who enters this country and under what conditions’’. Tony Dewberry, Dateline Australia ‘Federal Election Spotlights Plight of Refugees’, (2001) 25(4) Freedom Socialist < www.socialism.com/fsarticles/vol25no4/australia.html>. See also Marr and Wilkinson, above n 8 and Catherine Dauvergne, ‘Making People Illegal’ in Fitzgerald and Tuitt, above n 23.

[27] Patricia J Williams writes: ‘So you should know that this is one of those mornings when I refuse to compose myself properly; you should know you are dealing with someone who is ...trying to decide if she is stupid or crazy.’ Patricia J Williams, The Alchemy of Race and Rights (1993) 4.

[28] Franz Kafka, The Trial (1937).

[29] Slavoj Zizek, ‘Are we in a war? Do we have an enemy?’ newsgroup<Monday Reading Group-Agamben’s Homo Sacer>, (15 August (2003) 6. <http://16beavergroup.org/Monday/archives/000374print.html> Zizek continues: ‘Is today’s rhetoric legitimising more and more suspensions of human rights?’

[30] Costas Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the Century (2000) 357.

[31] For a discussion of this trauma of origins from an Aboriginal scholar’s perspective see Irene Watson, ‘The Power of the Muldarbi, the Road to its Demise’ (1998) 11 Australian Feminist Law Journal 28.

[32] Elizabeth Grosz, Sexual Subversions: Three French Feminists (1989).

[33] Douzinsas, above n 2, 360. For a discussion of the inter-generational effects of trauma see Judy Atkinson, Trauma Trails (2002).

[34] As Gummow J points out: ‘Long term residency in Kuwait or birth there did not guarantee to Palestinians citizenship or the right to permanent residence’, 146 [ 79].

[35] Margaret Davies, Asking the Law Question: The Dissolution of Legal Theory (2nd ed, 2002), ch 3 ‘Natural Law and Positivism’67.

[36] Lord Scott [155] A v Secretary of State for the Home Department [2004] UKHL 56 electronic version <http://www.bailii.org/uk/cases/UKHL/2004/56.html> . I would like to thank Ian Duncanson for bringing this case to my attention. See also Muriel Grey, ‘Britain Has Become a Kafkaesque Nightmare’, 19 December 2004 sundayherald online <http://www.sundayherald.com/46754> at 1 of 3.

[37] Ian Duncanson, ‘Telling the Refugee Story: The ‘Ordinary Australian’, The State of Australia’, (2003) 14 Law and Critique.

[38] Compare with Paul A Passavant, ‘The Paradox of Human Rights’, in Fitzpatrick and Tuitt, above n 23.

[39] Catherine Dauvergne, ‘Making People Illegal’, in ibid.

[40] Duncanson, above n 38 quoting the Prime Minister, John Howard.

[41] Jesus tells a story about the rich man’s table in the New Testament of the Christian Bible. The Holy Bible (undated). St Luke chapter 16, verses 19-31 ‘And there was a certain beggar named Lazarus... desiring to be fed with the crumb’s which fell from the rich man’s table...’

[42] Kyambi n 23, XX.

[43] Anzac stands for the Australian and New Zealand Army Corps. The Anzac biscuit is made mostly from golden syrup and oats and was baked by the women at home to sustain the men on the front. The biscuit has now achieved iconic status.

[44] Macgregor Duncan, Andrew Leigh, David Madden, Peter Tynan, Imagining Australia: Ideas for Our Future (2004). ‘There is...one Australian story that has long served as a surrogate story of nationhood and independence. According to the Anzac legend, the landing at Gallipoli [Turkey] on 25 April, 1915 was where the Australian nation was spiritually forged. It was our baptism of fire, our national coming of age, the definitive statement of our nationhood. Since then Anzac has become the seminal reference point in Australia’s search for national identity...

Gallipoli...was a small failed campaign in a mostly pointless war ...While important, Anzac represents our biblical Exodus. We are still looking for our genesis.’ Ch 1 ‘Australian National Identity’ (22-23).

[45] For a discussion of the return to ‘the picket fence’, the values of 1950s Australia, a nation noted for its monoculturalism see Marion Maddox, God Under Howard: The Rise of the Religious Right in Australian Politics (2005). Maddock writes (at 5): ‘One often noted feature of John Howard’s prime ministership has been his rapid and unflinching roll-back of once-cherished liberal achievements’ and (at 30-31) ‘[Howard’s] accession [he won back the Liberal Party leadership in 1995] was the fruit of a careful program going back at least to 1992, to win once and for all the internal party struggle between social liberals and ‘family values’ conservatives.

The successful family values crusade was waged by the Liberal Party’s little studied Lyons Forum. That crypto-Christian pressure group provides a key to Howard’s 1995 leadership revival and continued ascendancy. Though Howard himself expresses only amorphous religious commitments, his position within the parliamentary party is shored up by his willingness to front, and exploit, a religious right social agenda.’

[46] Duncan, Leigh, Madden and Tynan n 44, 17: ‘The elites prefer new values such as tolerance, diversity, respect, justice, compassion, which they view as not only more apt for the modern Australia, but also more cultured, cosmopolitan and intellectual. ...

The difficulty with this is that many ordinary Australians do not believe that the old values are outmoded...For them the values of egalitarianism, mateship and fairness speak as meaningfully today as they did a generation ago.’

[47] Duncanson. above n 38.

[48] Bird and Kelly, above n 24.

[49] Passavant, above n 39, 153

[50] Peter Singer, The President of Good and Evil: the Ethics of George W Bush (2004)

[51] Zizek, above n 30, 9.

[52] Paul Patton and Terry Smith (eds), Jacques Derrida Deconstruction Engaged: The Sydney Seminars (2001) 94.

[53] Ibid 101.

[54] Ibid 100

[55] In the consensual reality we construct for ourselves we show empathy towards those persons (and animals) to the extent that they trigger positive feelings in us . There are many well documented occasions when people have sacrificed their lives for these ‘others.’ Jacques Derrida, Writing and Difference (2001) [trans by Alan Bass] writes, concerning the purported disagreement between Husserl and Levinas ‘as concerns the other’: Husserl affirms that ‘the other ...can never be given to me in an original way and in person, but only through analogical appresentation...If I did not approach the other by way of analogical appresentation, if I attained to the other immediately and originally, silently, in communion with the other’s own experience, the other would cease to be other.’(at 154) Levinas in contrast theorises: ‘The stranger is infinitely other because by his essence no enrichment of his profile can give me the subjective face of his experience from his perspective, such as he has lived it.’ (at 155) Derrida concludes that ‘Levinas and Husserl are quite close here.’ The message of films such as Letters to Ali, shown in Melbourne, October 2004 is that once the ‘refugee’ becomes known there is a desire to release them from captivity and feed and clothe them.

[56] Australian readers wanting to offer ‘hospitality’ can contact websites such as <http://www.sparelawyers.com/slfr.html> Spare Lawyers for Refugees is a non-profit support and advocacy network for people held in Australian immigration detention centres.

[57] Patton and Smith, above n 52, 101. The author has added the emphasis.

[58] Most maps inflate the size of countries in the developed world and shrink the under developed nations.

[59] A number of Aboriginal and white scholars argue that Australia is a colonial society with Indigenous peoples excluded from full citizenship.

[60] Susanna Mitchell., ‘Debtor-Creditor Relations in Good Times and Bad’, Briefing Paper delivered at the Multi-stakeholder consultations on ‘Sovereign debt for sustained development: Issues for countries that access financial market’ held at the United Nations in New York on 7th and 8th March 2005, found at http://www.jubilee2000uk.org/ (4 May 2005). Thanks to Robert Cunningham for bringing this site to my attention.

[61] Reference here is to the story of the Good Samaritan in the New Testament of the Christian Bible. St Luke Chapter 10, verses 29-37 ‘But a certain Samaritan, as he journeyed came upon a wounded man, and when he saw him, he had compassion on him.’ The Holy Bible (undated).

[62] As Gummow J points out: ‘Long term residency in Kuwait or birth there did not guarantee to Palestinians citizenship or the right to permanent residence’. 146 [ 79]

[63] Joseph Heller, Catch 22 (1962).

[64] ‘...[H]abeas corpus, is a basic protection of liberty, and its scope is broad and flexible.’Gleeson CJ 132 [ 25].

[65] The Laws of Australia, Government, Chapter Three – Nature of Relief, Habeas Corpus [19.7] 80 ‘ Habeas corpus lies to require a person having control of a prisoner to bring that prisoner before a court along with the cause of the detention, in order that the court may examine the legality of the detention. The court may either return the prisoner to custody or order his or her release.’

[66] Gleeson CJ 129 [16]

[67] 152 [107] Al-Kateb has now been granted a temporary visa and is out in the community.

[68] There is much psychological research about the detrimental effect of techniques, such as the use of numbers rather than names, on the mental health of detainees. For a personal account see Hai-Van Nguyen, ‘Journey to Freedom’ in Dechian, Millar and Sallis, above n 14, 198: ‘155980 155981: My parents hold the numbers, scrawled...across their chests... [Many years later] My parents recite the numbers to me as we sit around the kitchen bench... ‘It’s something one never forgets,’ my mother says, ‘you wear it in your mind.’ For the treatment of non-Anglo prisoners see Greta Bird and Mark McDonell, ‘Muslims in the Dock: A Transgressive Narrative of Law and Life’ [1997] AUJlHRights 7; (1997) 3(2) Australian Journal of Human Rights 111.

[69] Giorgio Agamben, Homer Sacer: Sovereign Power and Bare Life (1998) [trans by Daniel Heller-Roazen] 8.

[70] 190 [264]

[71] Douzinas, above n 2, 369

[72] As this holding is not punitive it does not breach Chapter III of the Constitution that provides that only a court can punish. Compare Chu Kheng Lim and Others v The Minister for Immigration, Local Government and Ethnic Affairs and Another (1992) 176 CLR 1, at 27 where Brennan, Deane and Dawson JJ said: ‘It would, for example, be beyond the legislative power of the Parliament to invest the Executive with an arbitrary power to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt’.

[73] Davies, above n 36.

[74] Justice McHugh 133 [31] in his judgment refers to the position of the appellant in this case as ‘tragic.’

[75] Peter Fitzpatrick, Modernism and the Grounds of Law (2001) 72.

[76] 144 [73]

[77] For a discussion of international law and domestic law see: Sam Blay and Ryzard Piotrowicz, ‘The Awfulness of Lawfulness: Some Reflections on the Tension between International and Domestic Law,’ (2000) 21 Australian Year Book of International Law XX.

[78] Stanley Cohen, Folk Devils and Moral Panics: The Creation of the Mods and Rockers (3rd ed, 2002) In this edition Cohen argues that refugees are among the new ‘folk devils’.

[79] 136 [46]

[80] Jane Gallop, Reading Lacan (1985) 84 quoting Jacques Lacan, ‘Some Reflections on the Ego’.

[81] See for example, Julia Kristeva Powers of Horror: An Essay on Abjection (1982). Kristeva writes ‘of pre-objectal relationship, in the immemorial violence with which a body becomes separated from another body in order to be...’ 10.

[82] Luce Irigaray, ‘Establir un genealogie de femmes’ Maintenant 12, 28 Mai, quoted in Grosz n32 at 121.

[83] His Honour knows that a court would be unlikely to find the constitution allows a mandatory life sentence for entering the country without a visa. He says: ‘The only difference is that in one case the detention flows by the court applying the legislation and making an order and in the other it flows from the direct operation of the Act.’ 137 [46].

[84] McHugh J 137 [48].

[85] Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337.

[86] See Mark McDonell, ‘Racism’ in Greta Bird, Law and Cultural Diversity (1998) 42.

[87] Kruger v Commonwealth [1997] HCA 27; (1997) 146 ALR 126 at 163.

[88] Desmond Manderson, ‘Apocryphal Jurisprudence’ (2001) 23 Studies in Law, Politics and Society 24.

[89] See The Age (Melbourne), 11th October 2004.

[90] Australia was, for example, dismissive of the United Nations High Commission for Refugees during the Tampa ‘incident.’ See Marr and Wilkinson, above n 27, 107: ‘The Howard Government treated the UNHCR solution as a kind of diplomatic trick.’

[91] For a discussion of ‘history’ and Aboriginal people see Watson, above n 32 and Robert Manne (ed), White Wash: on Keith Windshuttle’s Fabrication of Aboriginal History (2003).

[92] McHugh J 133 [31].

[93] See Peter Fitzpatrick, ‘Racism and the Innocence of Law’ (1987) 14(1) Journal of Law and Society 189.

[94] Hayne J 191 [269].

[95] For a description of the Flying Dutchman legend see <http://en.wikipedia.org/wiki/The_Flying_Dutchman> . I want to thank Suze Bird for providing me with details of this website.

[96] Fitzpatrick, above n 73, 74. In my opinion neutral objective language is not dispassionate. The language displays a passion. However it is a passion to achieve detachment from the singularity, indeed the humanity, of the person seeking justice.

[97] Ibid.

[98] 272 [191],this reference to ‘claims’ and ‘said’ is reminiscent of the language used to undermine the credibility of female rape victims and Aboriginal complainants such as the ‘stolen generation.’ Author emphasis added.

[99] 197 [292].

[100] Jack Reynolds and Jonathan Rolfe (eds), Understanding Derrida (2004), Christopher Norris, Ch 3 ‘Metaphysics’ 20.

[101] 199 [301]. Author emphasis.

[102] 194 [284]. Scalia J’s emphasis [1953] USSC 38; 345 US 206 (1953) at 222-3.

[103] His Honour couches this in terms similar to those used by McHugh J.

[104] 196 [289]. Author emphasis.

[105] ‘The appellant also submits that the intent of Parliament should be interpreted by this court in a manner that is consistent with Australia’s ‘international obligations.’: that is, parliament should be presumed to have intended that any provisions for detention in the Migration Act comply with Art 9 of the International Covenant on Civil and Political Rights which admonishes against ‘arbitrary detention.’

These submissions cannot be accepted. The statutory language is clear and unambiguous....

The fact that the appellant is stateless does not alter the position...Whether statelessness calls for a different treatment,... is a matter for the legislature and not for the courts.’ 199 [297, 298, 301]

[106] 199 [298].

[107] 162 [149].

[108] 130 [20].

[109] Mabo (No 2) (1992) 107 ALR 1 at 91 (Deane and Gaudron JJ). ‘...we are conscious of the fact that, ...we have used language and expressed conclusions which some may think to be unusually emotive for a judgment in this court.’

[110] Michael Kirby, (1998) ‘Judging - Reflections on the Moment of Decision’, Charles Sturt University, Fifth National Conference on Reasoning and Decision-Making.

[111] Michael Kirby, 2002 speech to the graduating LLB students at the School of Law and Justice, Southern Cross University.

[112] Douzinas, above n 2, 368

[113] 168 [174].

[114] 169 [174].

[115] 173 [190]. For a fuller discussion of this issue The Hon Justice Michael Kirby, ‘International Law-The Impact on National Constitutions (7th Annual Grotius Lecture presented at the American Society of International Law, 2005).

[116] 162 [149].

[117] 163 [154]. Kirby cites the dissent in the United States case Rumsfeld v Padilla 72 USLW 4584 (2004) at 4595 to strengthen his position: ‘Unconstrained Executive detention for the purposes of investigation and preventing subversive activity is the hallmark of the Star Chamber.’

[118] Davies, above n 36, 92.

[119] Gummow J, 137 [159] quoting the United States judge Scalia J in Hamdi v Rumsfeld 72 USLW 4607 (2004) at 4621.

[120] 163 [153].

[121] As Kirby J 153 [163] in his minority judgment argues, ‘the express subjection of the legislative power to the judicial power in the Australian Constitution is not a mere formality.’

[122] Agamben, above n 68.

[123] Zizek, above n 30.

[124] ‘Monday Reading Group - Agamben's Homo Sacer’, August 15 2003, p 3 of 13, <http://www.16beavergroup.org/monday/archives/000374print.html> , (accessed 6 May 2005).

[125] Giorgio Agamben, State of Exception (2005) [trans Kevin Attell].

[126] Dauvergne, above n 40, 91.

[127] Kristeva, n 81, Ch 4 ‘Semiotics of Biblical Abomination’, 92.

[128] Elizabeth Grosz, n 32, 72 describing Kristeva’s position.

[129] Julia Kristeva, Pourvoirs de l’horeurr: Essai sur l’abjection (1980). Kristeva introduces this concept of the abject in chapter one, ‘approche de l’abjection’, 9-39.

[130] Grosz, above n 32, 73. Kristeva, above n 81, 92-93.

[131] For a fuller discussion of this issue see David J Tacey, Edge of the Sacred: Transformation in Australia (1995).

[132] Elizabeth Grosz, Jacques Lacan: A Feminist Introduction (1990) 45.

[133] Jane Gallop, Reading Lacan (1985) 60-61.

[134] There is now a broad literature in the area of ‘Whiteness’ studies. I have drawn particularly on writings by authors such as Irene Watson, Aileen Moreton-Robinson and Gayatri Spivak in speaking of the white subject.

[135] Deane and Gaudron JJ in Mabo (No 2) (1992) 107 ALR 1 at 82 speak of Australia’s treatment of Indigenous Australians in these words: ‘The nation as a whole must remain diminished unless and until there is an acknowledgement of, and retreat from, those past injustices.’