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The courts can act quickly to stop harm caused by government policies

By Greg Barns - posted Wednesday, 10 September 2003

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 dealt with".

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 expeditiously.


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 furniture.

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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About the Author

Greg Barns is National President of the Australian Lawyers Alliance.

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