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Editors --- "On the Outside Looking In" [2007] AltLawJl 11; (2007) 32(2) Alternative Law Journal 65

On the Outside …
Looking in

Standing on the outside looking in. Not just a great song, but a powerful metaphor for an increasingly common feature of our laws.

Internationally, nationally and at a state and territory level, there are many examples of express, differential treatment of certain classes of persons by the law, such as terrorist suspects, asylum seekers, and prisoners. Just like the song suggests, they can only stand on the outside and look in on the laws that most Australians enjoy.

Internationally, a prominent example is the treatment of Guantanamo Bay detainees, including Australian citizen and former detainee David Hicks. Amnesty International reports that over 350 people are indefinitely detained at Guantanamo Bay without charge or trial. On 17 October 2006 the United States Military Commissions Act, which establishes the processes for trying the detainees, was enacted. The Act creates a trial system that has been widely condemned as failing human rights.

At a national level, our laws separate out terrorist suspects and offenders and asylum seekers for differential treatment.

For terrorism suspects, the Anti-Terrorism Act 2004 (Cth) introduced special provisions in relation to bail (offenders charged with terrorist offences were only to be given bail in exceptional circumstances), non-parole periods (a person sentenced for a terrorism offence has to be subject to a non-parole period of at least three-quarters of the sentence period), investigative periods (extending the total maximum period from the standard 12 hours to 24 hours) and periods of arrest for terrorism offences.

Australian governments have long sought to deny migrants and refugees access to review by the courts of migration decisions, despite the High Court of Australia having an original jurisdiction under the Constitution to perform this function. Legislation such as the Migration Reform Act 1992 (Cth) and the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) have adopted different forms of restriction, including attempted privative clauses, to limit and exclude judicial review.

In Queensland, a recent anti-discrimination case has resulted in the state government announcing its intention to invoke new restrictions on prisoners seeking access to legal redress for discriminatory treatment. The case involved a prisoner winning an anti-discrimination case against the government over its failure to provide him with meat prepared according to his religious beliefs. The Minister for Police and Corrective Services was reported as saying

Either I go through the expensive process of an appeal, or I just tend to go into Parliament and change the legislation, and I’d rather do the latter because it’ll be a quicker and easier option.

In response Michael Cope of the Queensland Council for Civil Liberties observed that this is just another attack by the Queensland government on prisoners. They have this persistent attitude of the last few years of depriving prisoners of their fundamental rights, clearly taking away their right to judicial review and other sorts of things.

The announced restrictions will build on amendments to Queensland corrective services legislation that commenced on 1 July 2006, removing a prisoner’s right to challenge decisions about security classification and placement through judicial review.

Exclusion from access to the law is, of course, nothing new for Indigenous Queenslanders, who have historically endured differential treatment under national and state law, ranging from the denial of Australian citizenship until 1967 to their subjection to regimes of control and exclusion under various pieces of Queensland legislation. The continuing legacy of those regimes was seen most recently in the death of Mulrunji on Palm Island while in police custody.

The above examples display a consistent theme: a willingness by government to legislatively exclude certain members of our community from access to legal rights and protections on the basis that they are ‘undeserving’ of those protections. This is a disturbing trend that undermines the greatness, in principle at least, of our society’s commitment to the rule of law through its equal application to all its members.

QUEENSLAND COMMITTEE


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