If a cell in Guantanamo Bay, the American prison holding two Australians captured in the war on terrorism, had a broken toilet, was full of vermin, rats and cockroaches, and bread was the only food, would a detainee not be justified in law to try to escape?
This was the question Justice Michael Kirby threw at the Federal Government's barrister, the Solicitor-General David Bennett QC, in a ground-breaking case heard in the High Court yesterday, testing for the first time Australia's mandatory immigration detention scheme.
The hearing involved three separate cases.
In one, asylum seekers who escaped from the Woomera detention centre claimed as their defence that conditions were so bad their detention was invalid.
The Solicitor-General argued that if conditions were bad in prison, a person had the right to seek remedies in either tort or criminal law; but no matter how bad the conditions, it did not make the detention itself illegal.
His argument divided the bench. Justice Kirby said he had seen prisons in Cambodia which were so bad that if he were detained in one he would 'feel duty-bound, as a human being, to remove myself from it'.
'If you say that if conditions fall below those standards, which are standards of human dignity, are so awful that they do not then respond to the word in an Australian statute - 'prison', 'detention', 'punishment' - then a person is not in prison, detention or punishment but in a vermin-infested cell and therefore entitled to walk away from it, because that is not the lawful punishment for which Australian law provides,' Justice Kirby said.
However, some of his brother judges took a different view.
Can't wait for Philip Ruddock, Australia's own grand inquisitor to read this one.