News: The final campaign week and the High Court hears three asylum seeker cases

Next week is the final week of the 2013 federal election campaign. It has been a campaign where immigration issues have been prominent despite the Rudd government attempting to neutralise the politics of irregular migration by entering into the highly publicised arrangement with Papua New Guinea for that country to detain asylum seekers and settle refugees who arrive in Australia by sea. While other matters of policy and electioneering might occupy news bulletins next week, irregular migration and refugee laws will be front and centre before the High Court. In what must be a novel occurrence for a final week of an election campaign, the government’s approach and performance on one of the most contentious matters of its term will feature in three significant High Court cases.

On Tuesday 3 September the High Court will hear argument on the case of Magaming v The Queen, a case brought by a convicted people smuggler challenging the mandatory minimum sentence of five years that was imposed on him. The appellant will argue that mandatory minimum sentences are unconstitutional because they infringe the principle of separation of powers.

On Wednesday 4 September, the High Court will hear argument on the case of Plaintiff M76/2013 v Minister of Immigration, Multicultural Affairs and Citizenship. In this case the plaintiff is a refugee from Sri Lanka who has been detained indefinitely and denied a permanent visa because of an adverse ASIO assessment of the risk the plaintiff would present to the Australian community. The plaintiff will, among other things, argue that indefinite detention is unconstitutional. The court will be invited to overturn (or distinguish) its previous decision on this general matter in Al Kateb v Godwin [2004] HCA 37.

On Thursday 5 September, the High Court will hear argument in a case that challenges the arrangements made by the Australian government with the Papua New Guinean government to transfer asylum seekers to Papua New Guinea with the stated and purported intention that those asylum seekers be permanently barred from being granted a visa to Australia. In that case it appears, though documents have not yet been released, that an Iranian asylum seeker will argue that the Australian government lacks the constitutional power to enter into or implement that arrangement because its power to make laws with respects to aliens (foreigners) is insufficiently broad to cover the arrangements.