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Excising the Rule of Law

  • 21 April 2015

Albert Venn Dicey (pictured), the nineteenth century English jurisprudent who coined the term 'Rule of Law', suggested that it had three principles:

1. That no one should be punished or made to suffer without being found guilty of something in an ordinary court;

2. That everyone, no matter what their status, should be answerable to the law and the courts, and

3. That protections of liberty or personal freedoms arise from the work of the courts. Leaving aside his stress on the ordinary courts – a piece of petty sniping at French administrative law (of which he actually had very little understanding) and the real question of whether Dicey’s version of the rule of law is adequate to safeguard liberties in a modern state, even his minimalist version looks naively optimistic in contemporary Australia.

A bill, the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015 is currently working its way through Federal Parliament. This would allow those working in detention centres, including immigration officers or, more usually, private contractors, to use against those in their care, 'such reasonable force as the authorised officer reasonably believes is necessary' to do anything from protecting themselves or a person in their charge to moving such a person from one place to another.

Note, this is not about reasonableness of the officer’s conduct per se, merely whether an officer reasonably believes that their conduct is reasonable. In the law, whether or not conduct is reasonable is judged against the state of knowledge and education that the person themselves has. Given that many people working at detention centres will not have had a legal education, this is not necessarily a high threshold.

While the Secretary of the Department may investigate a complaint of excessive force, there is no obligation on him or her to do so. Complaints to the courts are specifically excluded if the officer acts 'in good faith' – something which itself is difficult to disprove, given that the whole test is the reasonableness of the officer’s belief. This leaves only the remote chance of a challenge to the High Court on constitutional grounds. (Section 75 of the Constitution preserves the right to challenge certain administrative decisions – it is not really applicable to acts of violence).

It hardly needs mentioning that violence against detainees is not a theoretical issue. Quite apart from Reza Berati and Hamid Hehazaei, both of whom died as a result