Excising the Rule of Law

Albert Venn Dicey, the nineteenth century English jurisprudent who coined the term 'Rule of Law'.

Albert Venn Dicey, the nineteenth century English jurisprudent who coined the term ‘Rule of Law’.

“It hardly needs mentioning that violence against detainees is not a theoretical issue.”

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.

This article was first published in Eureka Street.

Justin 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.

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