That the Family Court would intervene speedily to
protect the human rights of children in detention centres
should come as no surprise to Immigration Minister,
Philip Ruddock. The role of the courts in our system
of democracy is to ensure that cases involving the rights
of individuals who are currently being impacted by decisions
of the executive are dealt with expeditiously so as
to remedy any harm that might be occurring. Mr Ruddock's
assertion that the Family Court was providing some form
of special treatment to children and their families
behind razor wire merely indicates that he has forgotten
the fundamental principles of law and convention that
govern the role of the courts in such cases.
Last week the Family
Court in Adelaide ruled that five children currently being held at the Baxter Detention Centre must be immediately released. This decision overturned a previous
decision of August 5 made by a judge of the court. The children have been in detention since January 2001.
Mr Ruddock has said that the federal government will
appeal the decision. But he knows that there is a long
tradition of courts intervening to protect individuals
against the actions of the executive. That is a fundamental
outcome of the separation of powers doctrine that governs
our constitutional and governmental system.
And that should be a proposition that conservatives like Mr Ruddock are keen
to uphold. The rule of law and the right of the individual to challenge the state
are two mantra that the Liberal Party has been trotting out for years. As well
they might, because it is consistent with what our High Court judges have been
saying. As one of this country's most distinguished jurists, former High Court
Chief Justice Gerard Brennan said more than 20 years ago:
Judicial review is neither more nor less than the enforcement of the rule
of law over executive action; it is the means by which executive action is prevented
from exceeding the powers and functions assigned to the executive by the law and
the interests of the individual are protected accordingly.
The Family Court's decision on Monday is also indicative of a more general
approach by courts in the area of asylum seekers to force governments to accord
them fundamental human rights. Earlier this month in the UK, Justice Maurice Kay
ruled that the Blair government's policy of denying government support for food,
clothing and shelter to asylum seekers who failed to claim refugee status as soon
as they arrived in the UK amounted to inhuman and degrading treatment. Justice
Kay said that the policy created conditions for people "so destitute that
no civilised nation could tolerate it".
But once again, there is nothing remarkable about
this decision - it is merely the application into a
relatively new area of government policy of the principle
of judicial review.
However, Mr Ruddock is also concerned that somehow
these five children who have been in detention for two
and half years have been "queue jumping" by
having their appeal heard so quickly. He told the media
that "Many Australians would like to think that
they could get their matters dealt with by the Family
Court in the time frame that these matters seem to be
This is nothing but cynical politicking on the part
of Mr Ruddock. The reality is that when children are
involved, or there is potentially continuing harm being
done by the actions of the executive against any individual,
the courts traditionally have moved to deal with cases
In fact, two years ago this month, it was Mr Ruddock
who couldn't wait to get Justice North's decision on
the Tampa crisis which sought to overturn the government's
draconian legislation, before a Full Court of the Federal
Court within days!
And that Court obliged because in that case, as is
the case here with these children, there was a continuing
situation of liberties versus executive power that needed
to be resolved quickly. To be blunt, deciding the extent
of the rights of children behind razor wire is far more
urgent than a property dispute between a divorced couple
squabbling over who gets the cutlery and the antique
In dealing with the future of the five detained children
over the past couple of months, the Family Court has
merely been doing what courts have always done as the
equal partner of the legislative and executive branch
of our constitutional system - ensuring that there is
check on the power of governments and parliaments. To
suggest otherwise, as Mr Ruddock and his supporters
are doing, is mere intellectual dishonesty.
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