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Refugees: politics and the rule of law.

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Refugees Politics and the rule of the law Justice Geoffrey Hill, Federal Court of Australia 4-6-2002

The federal government’s 2001 border protection legislation was designed to keep the Federal Court out of the refugee appeals process. But the court has decided to hear a group of test cases, provoking renewed criticism from immigration minister Philip Ruddock. In a graduation speech at the University of Sydney on 24 May, Justice Hill responded the the minister’s attacks.

I should like to commence by congratulating all of you who have graduated this morning. I remember that when I graduated in this Great Hall in Law almost exactly forty years ago, I felt that it was somewhat of an anti climax, for such a long time had elapsed between the publication of the final results and the ceremony. But this is an important day in your life as it is in mine. For it marks the culmination of the course of study you have embarked upon and completed. For those graduating with a first degree in law, it marks the beginning of your careers and the attaining of the degree which will qualify you to practice in a great career. For those graduating with a Masters Degree it marks an important stage in a process of learning which, I hope will continue throughout your life. And for those family and friends who have given support during your studies I add also my congratulations in seeing you through.

Some years ago at a function where judges mingle with students I remember a student asking me whether I had when I was at law school the ambition to be a judge. I thought the question was rather amusing, probably because at the time I was a student the possibility would have seemed unattainable. But I am proud that this is where I have ended up. I have always enjoyed my life in the law, whether as a solicitor, as a junior barrister, Queens Counsel, judge or as a lecturer, even if part time, at the Law School. Indeed, I have been very fortunate. As a postgraduate student in London I visited the Soviet Union and met Russian students in the then Leningrad. They refused to believe that a student from Australia whose parents had not been rich and who had died long before I had graduated could have gone to university, and studied not only in my own country, but also in America (thanks to the Ford Foundation and Fullbright scheme) and England, thanks to a scholarship from this university. It conflicted with the Communist propaganda they had been fed. I am really grateful that for the many opportunities I have had.

That takes me to the theme of my address. Among the many gifts which being a student at this university have brought, three stand out. I want to say something about each of them, but about one in particular.

First I received the knowledge and the way of thinking which equipped me to be a very successful lawyer.

Secondly and very importantly, I learned something about the importance of justice and particularly the rule of law. It is this I want to say more about.

The rule of law is something that we, who live in a fairly laid back society, rather take for granted. But we should not. Someone once said that the price of liberty is eternal vigilance. That has never been truer in Australia than right now. The idea of a free society is a very fragile one. It is always under attack, and often from people who are well meaning. That attack is incremental - it does not happen all at once. Rather it can happen over time. Legislation to take away rights in a time when there may be a fear of a terrorist attack, introduced with good intentions (and Daryl Williams, the present Federal Attorney General who I count as a friend is

undoubtedly well intentioned) ,which takes away the rights of persons who are arrested to consult a lawyer, initially for 48 hours but theoretically, with multiple applications, indefinitely, might later be used by a government not so well intentioned, to subvert freedom where no risk of a terrorist attack exists. The security legislation introduced by the British in the colonies pre independence is used now in Malaysia and in other countries to detain without charge or trial political adversaries of the government.

There are other inroads on the rule of law which I find at least, equally disturbing. Perhaps the most significant is an increasing trend to seek to immunise administrative decisions from judicial scrutiny. Now as a judge I can understand that some (not all) bureaucrats are unhappy when decisions that they have made become the subject of legal proceedings and are found not to be in accordance with law and are set aside. Some, not all politicians are likewise angry, when a law or a regulation for which they are responsible is held to be unconstitutional or otherwise void as contrary to law.

But there is scarcely anything more important to a free society than that administrative decisions or legislation can be the subject of scrutiny by an independent judiciary. Indeed, the only protection of our freedom which exists in Australia is the rule of law.

And, as a judge I think there is nothing more significant in what I do than to stand between the government and the citizen to ensure that the law has been obeyed.

There is a growing tendency for politicians in particular, to attack the Courts, to attack the judges personally and to attack the foundations of our system of justice. I do not suggest that our system of justice is perfect. I do not suggest that all judges are perfect. Open debate on legal issues and reasoned criticism of judgments is an important part of a free society. As a lecturer at this university I am often critical of the reasoning in many decisions and I defend the right of others to be equally critical of my decisions. Judges, like politicians, must be prepared to be criticised. But one aspect of Australian society which worries me is that there is far too little open critical debate and far too much playing the man or woman.

I am prepared to accept that the judicial system can be abused. That is the view of the present government (it was also the view of the previous Labor government) in the area of migration and refugee law. Yes, it is true that many people (it is actually a quite low percentage) who have applied to be considered as refugees will, if permitted to, seek judicial review of decisions refusing them permission to stay and appeal until their appeal rights are exhausted, notwithstanding that they have no case. Wouldn’t you, if you thought you had even a small chance, use the procedure of a court to permit you to stay in Australia, rather than be removed to Iraq, Iran or Afghanistan? I do not pretend that I can suggest what the solution is to the so-called refugee problem is. It is a very complicated question. But that is not the point. The fact that there have in the past been a relatively large number of applications to the Federal Court for judicial review of decisions of the Refugee Review Tribunal (and a small number of them have been successful because the Tribunal actually made legal mistakes in deciding what may be a life and death question) is not sufficient justification for our parliament to pass legislation to prevent persons seeking judicial review of decisions which they claim were made wrongly. It is a dangerous development.

It is only a few weeks ago that a politician (I shall not name him, but you will know who I mean) was reported in the Sydney Morning Herald as having given an address in London in which he referred to the: unelected and unresponsible (sic) officials of the Court who apparently were at the heart of the problems with refugees. The same politician had sometime earlier, singled me

out for personal attack (oddly the newspaper report of that attack suggested that the Minister had in support of his argument referred to a case where I found for the Minister, but I suppose he had not read it).

When I became a judge I took an oath that I would do justice. Yet the result of the legislation to prevent asylum seekers applying to any court to have judicial review of decisions of the Minister or the Refugee or Migration Review Tribunals is that I can not do justice at all. In one case, for example, I had to listen to a barrister paid by the government say that the Tribunal has made a decision which is clearly wrong in law. The Tribunal member appeared not to have read the section under which he was supposed to be acting. He completely addressed the wrong question. The barrister then, no doubt instructed by the government, told me that this decision, wrong in law although it was, must stand and neither I, nor any other judge in any other court could do anything about it. That is not justice. And it is a dangerous precedent. This time it is refugee decisions that, while wrong cannot be challenged. Next time it might be some other decision that could personally affect you and your rights.

And it doesn’t just stop with refugees. I read that the present Minister for Communications wants to pass legislation to ensure that a bureaucratic decision in an area within his portfolio can not be the subject of appeal to Courts, even if wrong and contrary to law.

The rule of law and freedom are both too hard won to be allowed to be taken away by stealth. Although I do understand the arguments against a bill of rights, the time has come, I think, for one. But don’t expect politicians to be enthusiastic. It can only happen if you, the intellectual leaders of the next generation, are prepared to fight for it. I don’t want to sound melodramatic. But ultimately societies have to fight to maintain human rights and freedoms. And they are at risk.

Finally, I have learned from my experience at the university that I have much to gain from giving back to the university something in gratitude for the benefits I have received from studying here. I am sure that you too will benefit from doing the same. How that gratitude is expressed is a matter for you. Australia does not have the culture of university endowment that America has. Yet universities are more and more starved of government assistance and have more and more need to find money to survive and grow, especially if the students in the future are to have access to world standard teaching and research.

There are other ways in which you can show your gratitude to the university. You can do so by giving of your time to the university to teach or help the students who come after, or to raise money for the university. You can do so even by acknowledging the importance of education to our society. There is always something that you can do.

I had a very close friend, now long dead, who was always helping those who were less fortunate than she was. She used to say that her return was to see that those she helped would later help others and she was a very happy person, for it was true. What you do in helping future generations of students will bring rewards to you as what she did helping others brought rewards to her.

The Hon Graham Hill has been a Federal Court judge since 1989.