Excising the Rule of Law


Albert Venn Dicey 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 of their experience of Australian hospitality in camps administered by the Government overseas and confirmation of torture in those camps by the UN, there have been troubling reports of violence by guards against those in their care within Australian detention centres – with three reports of violence within two months at one centre exposed by Fairfax.

Whatever one makes of Dicey in the Australian context these days, he certainly had a point when suggesting that there is nothing like the prospect of being sued or charged with a crime to keep people with power honest. By the same token, a Government grant of immunity from the courts is usually a pretty good sign of something to hide. Of course, this is not the only example of Government squeamishness in relation to oversight of its actions. The Government’s reluctance to reveal details of what is going on 'on-water' and in its off-shore camps is notorious. One of those arrested in the weekend’s anti-terror raids is still languishing in prison without warrant, pursuant to legislation passed in the wake of the September 2001 bombings and, as I noted last year, the ASIO Act 1977 (Cth) was recently amended to protect potentially nefarious actions by that body from inconvenient scrutiny.

As it is, the proposed legislation drives a coach and horses (to take a suitably nineteenth century image) through Dicey’s rule of law – actually inverting it.

1. No officer will be made to suffer in an ordinary court for anything done to someone they are looking after because they will never get there.

2. If you have the charge of immigrants and asylum seekers in an Australian detention centre, you will not be answerable for your actions in the courts (ordinary or otherwise), and

3. Their liberty or personal freedoms are not protected and the courts have nothing to work on. Australia’s federal politicians speak a lot about democracy and the rule of law – especially when it comes to foreign policy. I wish they would say that more often – and mean it.

Justin GlynJustin Glyn SJ is a Jesuit presently studying for the priesthood. He has previously practised law in South Africa and New Zealand and has a PhD in administrative and international law.


Topic tags: Justin Glyn, jurisprudence, asylum seekers, immigration detention, Albert Venn Dicey



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Existing comments

i dont like this one little bit i doubt if the Pope does either. It is a skippery elope towards cruelty. And other nasty Stuff

Irena | 21 April 2015  

This made chilling reading. Being a guard in a detention centre is a great responsibility. Those who undertake that task need compassion, people skills and a conscience. The Secretary of the Department employing them needs to live up to his/her high standard of education and oversee the welfare of these guards. The public service should have strong and separate powers from the government of the day and not just say - Yes, Minister.

Pam | 21 April 2015  

Thanks Justin- a very clear unpacking of a piece of nefarious legislation!

Libby Rogerson | 21 April 2015  

Incidentally re "Rule of Law. The phrase can be traced back to 16th century England, and it was popularized in the 19th century by British jurist A. V. Dicey. The concept was familiar to ancient philosophers such as Aristotle, who wrote "Law should govern". The development of the legal concept can be traced through history to many ancient civilizations, including ancient Greece, China, Mesopotamia, India and Rome
[Cf Wikipedia]

Father John George | 21 April 2015  

Many thanks for this, and for so much more, Justin. I have just finished reading Raymund Schwager's "Must there be scapegoats?", where so many of his reflections on René Girard's work shed light on Australian violence. He says, "The capacity of violence for self-deception is unfathomable." The manipulation of law and the exercise of deceit which you so clearly show in this piece brought my mind to this quote on p. 172: "The danger of violence does not lie in open brutality. This occurs rarely. Much more insidious is the ability of violence to infect others under the guise of good reasons, and even to bring reason itself under its spell."

Susan Connelly | 21 April 2015  

Oh Justin! What have we done. You are young; use your skills and passion to encourage future generations to leave a better world to their great-grandchildren.

Mahdi | 21 April 2015  

Wouldn't it be great if the people we had working with detainees had training - not just in the physical handling of people, but also more broadly, such as cultural studies or, gee, I don't know, how about actually caring about people?

Mathew Drogemuller | 21 April 2015  

Justin. The people who are proposing these draconian laws are products of the Jesuit Education Program in Australia.
Perhaps they are reaching back to the earlier days of the Inquisition, run by the Jesuits, to find inspiration on how to torture people and especially the innocent.
Perhaps Jesuit Education of children needs your attention. It certainly has produced men of exceptional cruelty in Australia, if the present crop are an indication.
Would the Jesuit schools in Australia be proud of such "old boys" or is it all ok as it doesn't affect us?

Carmel | 21 April 2015  

Just so, Justin. But has not the 'need' for such a rule been instituted by the overzealous 'defence' of complainants who have been provided with a never-ending supply of lawyers who put together all manner of 'defences' against what might be seen by many as unreasonable charges? I see your point, and note that similar logic could be applied to carers in nursing homes etc, however your argument would be much more worthy if you were to acknowledge the problem and provide alternative solution(s).

Des Byrne | 21 April 2015  

The world is facing the greatest acceleration of changes to basic traditions that has ever been seen, and confusion and disorientation can be seen everywhere. The response from many Governments seems to tend to regress to an era before it was realised that God governs everything by Constant and Universal Laws, though we do not yet fully understand or appreciate them. In that bygone era, Kings, Knights, and Abbots, seemed to think that by acting autocratically they were imitating God, and that they had a divine right to do so.

Robert Liddy | 21 April 2015  

Thanks, Justin. Dicey is far from the last word on this, but, as you note, 'even his minimalist version looks naively optimistic in contemporary Australia.' There is a similar smell of overturning conventions that have served the country well around the ICAC challenge to the High Court's interpretation of its powers; and an outright stench in the claim that the allegation of the return by the Australian Navy of asylum seekers to Vietnam is an 'operational matter' and therefore one that the Australian Government chooses not to comment on. The rule of law and the conventions of Parliamentary government are never out of date, and there must be a heavy burden of proof on those who would argue that we deviate from them. Thanks for keeping us focused on this.

Denis Fitzgerald | 21 April 2015  

Des, thank you for your question about the,

"overzealous 'defence' of complainants who have been provided with a never-ending supply of lawyers who put together all manner of 'defences' against what might be seen by many as unreasonable charges?"

I may be naive, but I have not seen much sign of this. Legal aid, even for actual asylum claims, has been removed (to say nothing of allegations of abuse) and I know of no occasions where asylum seekers held under Australian auspices have successfully taken their abusers to court. There certainly have been harsh words from international bodies and even domestic watchdogs but nothing seems to have come of them. To my knowledge, even the killers of Hamid Kehazaei and Reza Barati have yet to be brought to justice. As far as I can see, the authorities on this one have the whip hand and are scarcely being beset by vexatious claims. I am always happy to hear of any cases to the contrary.

Justin Glyn SJ | 22 April 2015  

Frankly, the 'detention bill' smacks ominously of Nazi Madagascar Plan. The Madagascar Plan was a proposal of the Nazi government of Germany to relocate the Jewish population of Europe to the island of Madagascar. As a police state under the SS-it was part of the forensic evolution from forced emigration, relocation, through to the holocaust.

Father John George | 22 April 2015  

I once applied for a job as a social/security staffer at detention centres and was invited to sit the Serco exam in a conference centre hall at Parramatta, alongside mainly young migrants, young women in hijabs, and a handful of tough bouncer-type blokes. I was called back for an interview and spent an hour being asked in detail about how I would respond to a variety of potential incidents. I suspect I over-thought my responses and the traditional bouncer blokes got most of the jobs.

MARKUS | 22 April 2015  

A perceptive and legally knowledgeable article, Justin, as we would expect from you. Private contractors possibly using excessive force in what are Australian facilities being exempted from the normal legal restraints: it does not look good for the future of Australian democracy. Or is that too to be suspended in the interests of administrative efficiency?

Edward Fido | 22 April 2015  

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