Immigration Advice & Rights Centre Inc.

In the field of immigration law, the executive arm of government receives continual condemnation from the judiciary with respect to its failure to afford procedural fairness and natural justice in accordance with the rule of law. Cases such as Plaintiff M61, Haneef and Plaintiff S157 highlight instances where the Department of Immigration displayed callous disregard for established rules of fairness and equality in favour of advancement of its policy agenda.

So what impact do these judicial utterings have on the drafting of legislation within the immigration portfolio? Does criticism from the federal courts bring the legislature into line with the rule of law or are these criticisms falling on deaf ears?

The consistent passage of legislation in order to circumvent the rule of law and procedural fairness is arguably demonstrated in no other area of law as frequently as Australian immigration law. Quoting Justice Sackville, the Honourable Justice McHugh, stated:[1]

Irrespective of which political party is in government, migration law has seen a “bipartisan governmental mistrust of the role performed by the courts in reviewing migration decisions”.

It is often identified in extra-judicial commentary that the role of the judiciary is crucial in maintaining the check and balance system in the Australian democratic model.  Therefore it remains of even greater importance that the judiciary not be swayed by political banter deliberately aimed at influencing decisions.^[2]  The Honourable Justice McHugh AC, in his paper titled ‘Tensions between the executive and the judiciary’,^[3] noted that it comes as no surprise that the judiciary’s re-defining of executive boundaries is continually met with displeasure.

In an empirical study undertaken in Canberra,[4] it was found that most administrative decision makers find value in the judicial review process.  Respondents in the study considered the avenue of appeal operated to maintain a check and balance system and that administrative law decisions offer assistance in the performance of their duties.  Despite these findings, it is hard to see that the decisions in the immigration context are having a positive impact on the executive’s exercise of power.

Departmental decision makers are often guided by immigration policy in reaching their determinations.  As a result, the unfortunate situation in which we find ourselves is to ask the courts to interpret the law and enforce the rule of law.  Despite repeated judicial determinations regarding the absence of recognition and adherence to the rule of law Departmental decision making processes do not appear to be changing.

Over the past decade both major political parties argued that irregular maritime arrivals seeking asylum in Australia breached our sovereignty, thereby justifying disposal with the rule of law and human rights standards. Despite being called to account by the United Nations, the Australian Government sees no need to align itself with international human rights standards or amend legislation to recognise the rule of law. If criticism by the United Nations and the Australian federal courts do not force the Department to align legislation and policy with the rule of law, what hope do we have? The legislature will continue to draft legislation to prevent avenues of appeal, diminish individuals’ rights and move the goal posts so frequently that judicial review applications swiftly become futile.

by Andrea Christie-David