Mugged by bad law

Philip Lillingston I 3 May 2024 I The Spectator Australia

In the course of human affairs and communications, words have specific meanings, and nowhere is this more important than in our courts of law. When our mate relates to us his recent misfortune of, while at work, a robber breaking into his house and stealing his expensive coin collection, we fully understand what happened even though there was no robber (as no violence or threat of violence occurred) but instead a burglar. If perchance the burglar was caught and a negligent prosecutor charged him with robbery, because that was the word the victim used, then the judge would be obliged to acquit the accused.

In late April of this year, the media reported the violent robbery and bashing of a 73-year-old Perth grandmother and cancer patient allegedly by a ‘freed immigration detainee’. It was reported that had been released a few months earlier by immigration authorities, not?because he posed no threat to the community, but due to a November 2023 High Court of Australia decision,?NZYQ v Minister for Immigration. This judgment declared the government had no authority to ‘punish’, by ‘detaining indefinitely’ unsuccessful illegal immigrants who either refused to leave or were denied entry in other countries, and there is ‘no real prospect of removal becoming practicable in the reasonably foreseeable future’.

What becomes interesting is that even though the rationale for the court’s decision was a valid syllogism, it was a syllogism for a situation different to what was presented in court by the plaintiff. To wit: only the legislature has the authority to declare what is a crime and what the punishment shall be; only the judiciary has the authority to punish an individual for committing said crime; ergo, if the executive, on behalf of the legislature, takes it upon itself to punish alleged offenders, then that action is invalid.

All well and good, but the problem is that our highest court appears to have become rather loose about the meaning of the words ‘punish’ and ‘detain’, at least in my opinion.

Getting back to our mate who was burgled. If he decided to personally install security devices on the outside of his home to prevent further burglaries, and doing so after a liquid lunch, caused him to fall off the ladder and break his leg, his religious mother might castigate him and declare that God was punishing him for his excess drinking. But as much as he undoubtedly suffered, when away from the ecclesiastical courts, punishment is not concurrent with suffering.

Punishment, like all words recognised by the courts, has a specific meaning. The Australian Oxford Dictionary?defines it as ‘to cause an offender to suffer for an offence’, and it is?not?an offence by anybody’s code of ethics, to exercise a lapse of judgment when climbing a ladder, whether or not you have just finished a beer.

The HCA has told the government that it is punishing illegals. But for the act of punishment, you need two ingredients: the crime or wrong committed, and the instigation of the punisher.

Are the wrongs the fact their home country won’t accept them back, or that they refuse to leave? One wonders just what is it that the government is punishing him?for?

And what?in fact?is the actual act of punishment? When the aspiring immigrant illegally comes ashore but is prevented from further entrance upon our land, it is he who has instigated the action, not the border guard who metaphorically does nothing but simply ensures the gate remains closed.

Denying a person a benefit he has no right to is not punishing him. If on a very hot?day,?some stranger knocks on your door and asks to use your swimming pool, you are not punishing him when denying his request. That the immigrant is suffering because he is denied entry is from the instigation of his?own?actions. There is no punisher, but he?himself?who fell off the ladder.

Similarly, another word used often in current immigration litigation is ‘detain’, defined as to ‘keep in confinement or under restraint’.

Whereas illegals technically are?actually?kept in confinement, the motive is not to keep them imprisoned, but only to prevent them getting ‘lost’ in the Australian community. It is like when on a picnic and having to leash Rover to the nearest tree, not because you want to deny him the joy of scampering around in the parklands, but because if free, he will head straight for everybody’s laid out food. It is somewhat spurious to claim a person in a cell is being detained while there is always one door of the cell open to allow him to travel to any other country. All illegal immigrants have to do to be free of confinement is to show their guards an airline ticket and visa for another country. Go to any prison in Australia and see if that trick works for a convict being detained for from 7 to 12 years.

This whole problem could have been solved by semantics years ago if the word ‘prevention’ had been adopted, instead of detention, when talking about preventing those immigrants deemed to be not deserving admittance.

Why is this issue of semantics so important? Because the meaning of the words we use in legal interactions is very important when there can be so much at stake. What happens when we follow the lead of Humpty Dumpty and declare, ‘When I use a word it means what I choose it to mean – neither more nor less?’

Some people will choose the meaning of a word that suits them better, even at the expense of creating very harmful laws. Such laws would permit immigrant applicants who were denied entry because of their criminal record, sometimes of very serious crimes, to be released into the community and potentially continue their criminal proclivities.

As even the HCA’s Chief Justice Stephen Gageler himself declared, ‘someone who is completely obtuse has a better case’ to be released [into the community] ‘than someone who can be reasonable’. Or as a plaintiff counsel, Craig Lenehan?SC?was forced to admit, that an ‘intransigent’ detainee who it ‘can be predicted will be intransigent into the future’ will have to be released into the community.

Author: Philip Lillingston

Philip Lillingston is a mature-age law graduate who lives in Melbourne.