Enmeshed in the law that applies in Australia is the right of " habeas corpus " which prevents a person being locked away forever - and forgotten. The wording is derived from Latin and translates into " produce the body. ".
It ensures the right of appeal and it harks back to the early days of English law when the king ruled by " divine right " and the country was often engaged in civil war as possession of the crown changed hands. Backing the losing contender could result in the loss of property and indefinite imprisonment - or execution.
Habeas corpus and Magna Carta could be said to be the start of the civil rights movement and it remains an important part of civil law today. Some people despair that the endless applications to the various levels of the entwined Federal and state court systems for appeals to be heard and decided is seriously undermining the justice system. They contend that justice delayed - is justice denied !
The Federal court recently handed down a finding that will have implications for detainees in immigration centres. This man originally came to Australia as a child and never sought citizenship and because he engaged in a life of crime the Commonwealth succeeded in having his visa revoked and he was held in a detention centre awaiting deportation.
His country of birth was Syria, which is now engaged in a civil war aided by armed help from other countries. The Commonwealth was legally obliged to protect him from harm and as a consequence he was not sent to Syria, but was also not covered by a " protection visa " , which left him in limbo in detention.
In July this year, the Immigration Minister declined to consider granting such a visa and he launched an appeal which was heard in the Federal court. He sought damages for false imprisonment for the time he was locked up in July, 2019, and an order that he be released immediately. That appeal succeeded and he walked free from the Immigration centre where he was being held in Western Australia.
It is quite clear that his freedom was contingent on habeas corpus, this centuries old protection against unlawful detention. It is equally clear that this decision will be carefully studied by defence lawyers within Australia with the aim of using it to help their clients.
The factor that decided this outcome was the issue of a " protection visa " and it is likely this will result in a flood of fresh appeals from those held in immigration detention and that will further slow the deportation process.
Such is the way the law operates by working within a cascading tier of courts with various levels of authority. The ultimate legal decision is delivered by the justices of the High Court of Australia. That is the final court of appeal and in earlier times it was possible to take such matters overseas for a ruling from the privy council in England. That has ceased and the final decision now rests with our High Court.
It is often said that nothing is certain within the law. It is always open to " interpretation ". But habeas corpus is one of the foundations of our law and it is comforting to know that it stand between us and an indefinite stay is prison without hope of relief.
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