Discriminatory Access To Justice For Asylum Seekers

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DISCRIMINATION UNDER THE AUSTRALIAN JUSTICE SYSTEM STUDENT NAME ‘All Judges are familiar with certain types of litigant that occupy a disproportionate amount of court time. Yest they also know that some people with just causes lack the means even to approach the courts’. * Murray Gleeson A fundamental concept of the rule of law is that the law is applied equally to all members of a society. Australia, as well as other common law nations around the world, aspires to the rule of law. If it is the case that ‘some people with just causes lack the means to even approach the courts’, this must be a fundamental injustice, directly in contradiction to the principles of the rule of law. Justice Brennan stated that ‘no case can command…show more content…
For asylum seekers, all the issues discussed for the homeless apply. However their inability to access justice runs even deeper. An important case that exhibits this fundamental injustice is Al-Kateb v Godwin where it was held that indefinite detention of a stateless person without charge is lawful in Australia. Indefinite detention without charge has been outlawed by the Supreme Court of the United States in relation to immigrants and the United Kingdom’s House of Lords. Australia stands alone internationally in perpetrating this injustice. The Migration Litigation Reform Act 2005 (Cth) excludes asylum seekers from their legal rights. It grants the Court the ability to deliver judgment on any issue, including the case as a whole, if they believe it has no reasonable grounds for success. This may seem reasonable, however the definition of ‘no reasonable grounds for success’ is as follows: For the purposes of [these sections], a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of…show more content…
It is clear that under statute law, no right or even desire for fair access to justice exists. This is in direct contrast to the rich history of the common law right to procedural fairness, and the right to a fair trial implied by Chapter III of the Australian Constitution. The question that must be asked is why this is allowed to occur. The simple answer is the unfortunate truth of representative democracy, what is believed by the majority is not necessarily morally right. As said by the Honourable Justice Michael Kirby; Majorities can certainly err. They have done so in the past. They will do so again. ... Electoral majoritarianism can sometimes be selfish and indifferent to wrongs and discrimination. Both major political parties currently actively support discrimination against asylum seekers, as well as the continuation of the Northern Territory intervention. There is simply not a feasible option for the Australian people to show their distaste for the discrimination that is occurring, even if they are both aware of and oppose it. As long as these policies benefit the major parties politically, they will continue. III. WHAT CAN BE

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