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Rule of law or protection from terrorism, is it possible to have both?

Globally, we are witnessing a humanitarian crisis on an unprecedented scale. Serious consideration is being given to the Australian model for responding to asylum seekers, particularly in the Mediterranean.

The politically popular model is problematic for the rule of law and respect for fundamental human rights, deliberately muddling the language of migration, international security, rule of law and terrorism to limit public debate.

In speaking on The Balance Between Migration, International Security, Rule of Law and Terrorism - What Bar Associations can do to facilitate this conversation? at the International Bar Association Conference, Bar Issues Committee Showcase, Law Council President, Fiona McLeod SC explored these points in depth.

In opening, Ms McLeod quoted Attorney-General, Senator the Hon George Brandis QC who noted:

In protecting our people from terrorism … we must be careful to ensure that our legislative and policing response is at all times consistent with our values and obedient to the rule of law, even if, on occasions, that may constrain what our law enforcement authorities can do. That is the price we pay for being democracies; but our very character as human rights respecting democracies is itself a source of greater strength.

… Nevertheless we, as lawyers must always be alert to ensure that due process is always observed, that the right of access to the courts is never denied, that the role of lawyers in representing their clients is always respected, that judicial power is not subordinated to executive discretion, and that Ministers and officials always respect the rule of law and the authority of the courts as the ultimate arbiters of the rights of citizens.

“We have accepted departures from international law, including treaties and conventions to which we are a party, and erosions of the rule of law…” Ms McLeod said.

Ms McLeod reminded the audience that from the perspective of international law, it is never illegal to seek asylum and provided an overview of the Australian context including: 24,500 asylum seekers who arrived between 13 August 2012 and 1 January 2014, who were prevented from making a claim for refugee status due to a pause in processing; cuts to legal funding for asylum seeker applicants; increased waiting times for pro bono legal assistance as a result.

In May 2017, the situation worsened with the government announcing all asylum seekers in the group had until 1 October 2017 to lodge their application or be permanently barred from applying for an asylum protection visa. There were around 7,000 people waiting for legal assistance to complete the 41-page form, which is written in English.

The Australian legal profession responded, rallying to provide hundreds of additional hours of pro bono assistance. Unfortunately, there were about 500 applications that failed to make the deadline. The future of this group “which includes families with young children and Rohingyar asylum seekers from Myanmar remains uncertain,” Ms McLeod said.

You can watch Fiona McLeod's session here

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