<nettime> Friday's court case

[Dave/Cherry <ross777au {AT} bigpond.com>]

Below is a firsthand report which we received from a contact in 
Adelaide who attended the court case in Adelaide on Friday.  It helps 
to flesh out anything you may have read in the press.
Dave McKay, Refugee Embassy

Adelaide Magistrates Court, Courtroom 17, 10.15am, Friday June 7 -- 
Chief Magistrate Moss presiding.

I arrived at the Court this morning with the intention of showing 
solidarity with the refugees who were being charged by the 
Commonwealth Government of being unlawfully at large under the 
Immigration Act 197A. The previous night I had delivered a letter to 
the refugees to the Adelaide Watchhouse where they were expected to 
arrive (note, as of 11.30am June 7 the police were still awaiting the 
refugees' arrival and had received no update as to their whereabouts 
from ACM).

There were about 12 or 13 people in the courtroom, mainly members of 
the legal profession. There was a lawyer representing the 3 or 4 
detainees (number unclear but 4 names were on the Lists), a lawyer 
representing the DPP (Department of Public Prosecutions), a lawyer 
for the Commonwealth Attorney-General's Department and a lawyer for 
DIMIA (Department of Immigration and Multicultural and Indigenous 
Affairs). These last three made representations to the Magistrate. 
The defendant detainees did not appear.

It was difficult to understand the proceedings as it was highly 
technical language for a layperson. But this is what I think it was 
about ...

There are currently another 32 cases of being unlawfully at large, 
ie, escaping from detention. The charges against these people will be 
defended on the same grounds, raising the lawfulness  or otherwise of 
mandatory detention. These cases will raise "pure questions of law". 
(As I understand it, factual evidence will not be taken into account 
in matters of "pure law", as this is about Constitutional issues.) 
Therefore the outcome of the case before the court today will affect 
the subsequent cases.

The Defense wants to use sub-poenaed documents from a wide range of 
Commonwealth agencies involved in detention matters as evidence.

The DIMIA lawyer argued that to comply with the collection of such 
sub-poenas would result in the Department having to "expend enormous 
resources." She stated that as a government department DIMIA is 
required to address issues of security, policy and privacy. She 
argued that there were "very real privacy issues of the detainees." 
She said that this would also involve public expenditure of monies, 
and that it is in the public interest that this matter is reserved 
for consideration by the Supreme Court.

The DPP lawyer questioned if there was sufficient material before the 
court to state a case. He said that if the court case commences now 
it could result in a very lengthy prosecution. He talked about the 
indeterminate nature and length of a summary trial when ultimately a 
lot of the evidence will be deemed irrelevant.

The lawyer representing the Commonwealth Attorney-General's 
Department said that they had an interest in the resolution of 
Constitutional issues. She talked about the seriousness of the 
issues, and that they needed to be resolved ex-judicio by a full 
sitting of the Supreme Court.

Chief Magistrate Moss said that he didn't need to hear a 
representation by the Defense laywer.  He spoke of the 
appropriateness and validity of certain sub-poenas which seek to 
obtain a wide range of documents from Commonwealth departments. He 
acknowledged the imporatnce of this case given that another 30 odd 
will follow in its wake. He thought that the proposed defense had a 
real possibility of success.
His firm view is that in the interests of administration of justice 
the parties must get on with the job, issue the sub-poenas, collect 
the documents, and then the court will be ready to hear the trial. 
There is the appeals process after the trial if it is required.

He then made the order, formally finding that the sub-poenas are 
valid and should be complied with. He exempted documents relating to 
the 23 months prior to the alleged escape, and those which referred 
soley to children. The departmen ts involved were given 8 weeks to 
comply with the sub-poenas (the Defense argued unsuccessfuly that 
this was too generous a timeframe, given that with relation to the 
Tampa incident the Departments involved used 100 people to collect 
all documents over one weekend).

The sub-poenaed documents will be produced before the Court, ie, the 
Defense won't get to see them beforehand. A date of 10am on August 2 
was set to discuss how the matter will proceed, and the Magistrate 
requested that on this date the DPP give some indication of how long 
the trial would take.



Postscript.

Some statistics from DIMIA's submission to the Human Rights and Equal 
Opportunities Commission's "National Inquiry into Children in 
Immigration Detention"

As of 12 April 2002:

1618 people in all Immigration Detention Facilities
184 of these people are children
346 of these have been in detention between 12-18 months, 55 are children
256 have been in detention for OVER 18 months, 28 are children


343 people are Iranian nationals
288 people are Afghani nationals
133 people are Iraqi nationals

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