A packed asylum-seeker boat in distress earlier this year. Photo: Reuters
In 2006, the late Tom Bingham - then Britain's most senior judge - gave a seminal speech on the rule of law at Cambridge University. He divided the broad principle of the rule of law which underpins democracy into eight ''sub-rules'', many of which are being undermined by the Gillard government's extraordinary proposal to excise the whole of the Australian mainland from the migration zone.
Bingham advocated that, first, the law must be accessible, intelligible, clear and predictable; second, questions of legal rights should be resolved by application of the law, not the exercise of discretion; third, laws should apply equally to all, apart from when objective differ-ences justify differentiation; fourth, the law must afford adequate protection of fundamental human rights; fifth, means must be provided for resolving civil disputes without prohibitive cost or delay; sixth, ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers; seventh, adjudicative procedures provided by the state should be fair; and last, the state must comply with its obligations in international law, whether deriving from treaty or international customary law.
Applying these sub-rules to Australia today means that, as a party to the 1951 Refugee Convention, our nation is required to enact and enforce laws that comply with its convention obligations. The Gillard government's plan to excise the Australian mainland from the statutory migration zone is in clear breach of the obligation of a democratic society to protect fundamental human rights and comply with a nation's international obligations.
The Refugee Convention requires nations that are signed up to it to provide access to courts and legal assistance for refugees in the country in which they reside, to a standard that would be available to nationals of that country. This includes asylum seekers whose refugee status is yet to be determined.
Australian law - as with that of most countries - makes various distinctions among citizens, permanent residents, temporary visa-holders and irregular arrivals (including asylum seekers). Currently, asylum seekers who arrive by boat at excised locations like Christmas Island have substantially less access to courts and legal assistance than these other categories of residents in Australia, even those on tourist visas.
So we already offend one of Bingham's sub-rules - that which requires equal application of laws and for our laws to be consistent with our treaty obligations. This cruelly absurd discrimination is reinforced by the fact that asylum seekers who arrive by plane will not have their access to courts and legal assistance curtailed to the extent of those who arrive by boat.
A spurious argument may be proffered that the objective difference that justifies differ-entiation in access to courts and legal assistance is that the govern-ment's intention is to deter asylum seekers from travelling to Australia by boat.
However, at the point of seeking access to a court for the determin-ation of an asylum claim, all asylum seekers are required to be treated equally, regardless of their method of arrival. Anything less breaches Bingham's seventh sub-rule, which requires that adjudicative procedures provided by the state should be fair.
Australian immigration case law is rife with examples of the inap-propriate exercise of broad discretionary powers conferred upon decision-makers. Some decisions made under the proposed excision regime will almost certainly contravene Bingham's second and sixth sub-rules which require decision-makers to exercise powers fairly and for law to determine claims rather than discretion. In the process, the human rights of asylum seekers will not be protected, constituting a breach of the fourth sub-rule.
Then we come again to Bingham's sixth sub-rule, that the executive should not exceed the powers conferred on it. This latest chapter in the sorry saga of inhumane asylum-seeker legislation by Australian governments, one would think at first blush is beyond the powers conferred on the Commonwealth to regulate migration.
Although the statutory regime may be related to a constitutionally legitimate end, namely regulating migration, this proposed excision reaches too far. This extraordinary intrusion into asylum seekers' rights - which are recognised by international and Australian domestic laws - is not reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power.
At this point, six of Bingham's
sub-rules are in peril. Or to put it in the vernacular, the Gillard government, potentially supported by the Coalition, is trashing the rule of the law for the sake of political gain.
Australia, in signing the Refugee Convention, made a promise to the world and to asylum seekers. That promise was that the rule of law would be applied to the asylum claims of those who come to this country by boat or by plane. If the executive and the Parliament pass the proposed excision of the whole of continent law, then as a nation we have broken that promise.
If the federal government wants to abandon the Refugee Convention it should state this intent clearly and not pretend that we do care about some of the most vulnerable people on our planet.
Greg Barns is a barrister and a spokesman for the Australian Lawyers Alliance.
Matt Stevens has been a legal policy adviser to the Australian government and is a master of law graduate from the Australian National University.