The Rule of Law

I have always considered that Australia was a country under the rule of law. The principle of the separation of powers, which Queensland premier Joh Bejelke-Petersen so famously could not articulate, means that no-one can place themselves above the law or even outside the law. The law always applies - both in its obligations and protections.

It should not have been a surprise, but it was, when I heard yesterday that the Indonesian citizens who are allegedly "people-smugglers" have been held in immigration detention for nine months without charge. Such frustration leads people to do extraordinary things.


Not so long ago, an Australian citizen was taken into custody in China - Stern Hu - without being charged for quite some time. Do we remember our indignation about that? How outrageous that he should be allowed to be detained for so long without even saying what he was charged with.

Indeed, even within our own country, we are outraged if a citizen is taken into custody for a prolonged period of time without the prosecutors making it clear what they have been charged with.

Yet here are some Indonesian citizens spending months in detention who have yet to be charged. No a whisper of outrage. I find it of further interest that they are suspected of committing criminal offences but they are not being held in remand in a justice facility -rather they are held in immigration detention.

Would it be outrageous for me to suggest that the only reason for this circumstance is a deliberate strategy to deny these people access to the rule of law? Without knowing the charge they cannot advise legal counsel - if they have access to one.

There has been a systematic breakdown of the rule of law in Australia over recent years, and most of us have acquiesced to it - not so much as whimper.

Excision of Islands from Australia's Migration Zone
In 2001, the Howard government made changes to the Migration Zone as a deliberate attempt to deny asylum-seekers access to the rule of law. It was a result of political frustration that when an asylum-seeker did not like the adverse administrative decision about their claim they could appeal to the Administrative Appeals Tribunal where 90% of the cases were sent back for reconsideration (they got it wrong) and those claims that were not upheld by the AAT could be further appealed to the high court - all in all a process that could take several years.

The effect of the excision of the islands was that asylum-seekers had to make it right to the mainland if they were to have full access to the rule of law. Reaching the islands only gave them access to administrative law - which so often, when it is tested in superior courts, has been badly done.

The Pacific Solution
Again the Howard government initiated a form of processing for asylum-seekers that preneted them from getting legal advice, denied them access to Australian law, and even excluded the government from scrutiny of its actions because all they did was in another country. Another plank of the rule of law is pulled up adn thrown away.

Terrorism Laws
Under these laws people can be kept in limbo without charge for very ong periods of time, and they can even be denied the comfort of letting their family know where they are. Dr Haneef was the classic example of the abuse of this law and yet, sadly, even the current Labor government seems to support the injustice that was purpetrated under this law.

So, all in all, I suppose I should not have been surprised about those people being detained in Darwin for so long without any charges being laid against them. We need to gain a voice for HUMAN RIGHTS in this country and seek the re-establish the rule of law as a fundamental principal of Australian society - after all isn't this the land of a fair go?