Fundamental rights set adrift in the Pacific

The same would go for Nauru. The minister may stand tall under the media spotlight, but his counsel in court will say that this is neither punishment nor deterrence, merely a necessary method of exclusion.

The reason for this artifice lies in our Constitution: if detention at the behest of our executive were a punishment, it would conceivably fall foul of an implied prohibition that punishment can only be imposed by a court exercising judicial power.

Some members of the court who dislike the very idea that the Constitution might be read against the backdrop of individual rights have queried the existence of this "constitutional immunity", but for the time being it is still good law. As a result, if the purpose of detention is indeed to deter others, it would indicate a punitive purpose, and the detention would be unconstitutional.

The timing of the Nauru announcement coincided with the announcement of the citizenship test initiative. We are being asked, as a society, which values reflect what it is to be an Australian. We should remember that in a liberal democracy, liberty is a predicate to almost every facet of our lives: social, civic, personal and political.

By its very nature, being deprived of the fundamental rights of liberty and movement places a severe burden on the individual who would otherwise enjoy such freedoms.

In the hands of an increasingly powerful executive, it becomes a dangerous tool of state. This much was recognised by our law as far back as Magna Carta.

As Lord Bingham, one of Britain's most senior judges, recently pointed out, "freedom from executive detention is arguably the most fundamental and probably the oldest, most hardly won and the most universally recognised of human rights".

This is why the highest courts in the US and Britain have jealously guarded liberty of person as a foundational value, as applicable to the alien as the citizen, and not to be easily sacrificed at the executive's whim.

Unfortunately, our High Court has largely isolated itself from this global constitutionalism and the values it reflects. In 2004, to its international embarrassment, a majority on our High Court found the right of liberty less compelling than the fiction that mandatory and potentially indefinite executive detention was for a legitimate purpose: to exclude aliens from another legal fiction termed the Australian community.

Furthermore, despite the well-documented toll that our inhumane detention apparatus exacts on detainees, the court rejected an effects test for establishing what amounts to punishment, defining it so narrowly as to allow the Government essentially to legislate its way around any potential constitutional limitation.

The decision of our court that detention was not punitive, couched in the dry legalism that is enjoying an unedifying renaissance and infected with legally irrelevant concerns about rewarding "unlawfuls" for their mode of arrival, seems far removed from the practical reality we witness on our television screens in which the minister tells the would-be refugee from war-torn Sri Lanka, Iraq or Afghanistan: "Come to Australia, and this is what we will do to you."