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Redefining the boundaries

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Cite as: (2004) 78(4) LIJ, p.26

Former High Court Justice Mary Gaudron delivered a compelling address at the Dame Roma Mitchell International Women’s Day Luncheon on the importance of the rule of law and how Australia was failing in its duty to uphold it.

Former High Court Justice Mary Gaudron delivered a compelling address at the Dame Roma Mitchell International Women’s Day Luncheon on the importance of the rule of law and how Australia was failing in its duty to uphold it.

Former High Court Justice Mary Gaudron has labelled laws redefining Australia’s migration zones as a “cute legal fiction” that showed the government was either incapable of understanding or unwilling to respect the rule of law.

And Ms Gaudron has called for an international rule of law involving universal jurisdiction to protect human rights and properly punish those who ignore those rights.

Speaking at the Dame Roma Mitchell International Women’s Day Luncheon on 4 March, Ms Gaudron delivered a passionate address on human rights to more than 470 members of the legal profession at Crown Casino.

The speech lived up to the high interest in the event, which prompted a shift of venue to accommodate the mostly female crowd. The crowd was the biggest for a Law Institute luncheon.

Among the honoured guests were Supreme Court Chief Justice Marilyn Warren, Supreme Court reserve judge Rosemary Balmford, Solicitor-General Pamela Tate and numerous County Court judges.

Ms Gaudron, standing in the middle of a huge stage and before an enthralled audience, spoke eloquently about the current worldwide threat to the rule of law and, in turn, human rights.

She said that no rule of law or human rights would be respected unless there was universal access to courts or tribunals vested with jurisdiction and power to protect those rights.

There was also a need for an independent judiciary and an independent and fearless legal profession.

“Because the rule of law is fundamental to the protection of human rights it is distressing in the extreme to note that some western democracies have, in recent times, shown themselves either incapable of understanding or unwilling to respect the rule of law,” she said.

“Unfortunately, Australia must be counted in their number.

“At least that is so, so long as our law artificially defines ‘the migration zone’ so as not to include parts of Australia or its territories.

“By means of the legal fiction that Australia is less than the sum of its parts, Australia denies to persons who would assert a right to asylum under international law access to tribunals and courts which might otherwise rule upon their claims.”

The federal government passed laws in September 2001 excising a group of islands and other offshore places from the migration zone. It then attempted to pass a law last November excising almost 4000 islands off the Australian coast.

Any person caught on those islands would then be denied the right to apply for an Australian visa.

However, the Senate blocked the legislation.

In an ironic twist, as Ms Gaudron was delivering her speech at the Dame Roma Mitchell Luncheon, the customs vessel Dame Roma Mitchell intercepted a boat carrying 15 asylum seekers on Ashmore Reef.

At the time of writing, the federal government was yet to make a decision on the fate of the group.

Speaking after Ms Gaudron’s speech, federal Attorney-General Philip Ruddock said Ms Gaudron’s comments reflected a dispute over government policy rather than the role of the rule of law.

He said that while Ms Gaudron would argue that people landing on any part of Australia should be able to make a claim for asylum, the federal Parliament had decided otherwise.

“The difference is that she has a policy view, and she wants to express it and to dress it up as if it’s a rule of law issue,” Mr Ruddock told The Age.

“I don’t mind having a different policy view, but don’t tell me it’s a breach of the rule of law when the courts have maintained it and upheld it.”

During her speech, Ms Gaudron also attacked the treatment of prisoners at Guantanamo Bay, which she said was a situation yet more distressing than the “cute legal fiction” of the migration zone.

She said there had been no attempt to hide the fact that it was always intended that the prisoners, held on suspicion of being terrorists, should be denied access to the US courts and a fair trial before a properly constituted court.

They had also been denied the benefits of international law as prisoners-of-war.

All this pointed to a serious assault on the rule of law.

“The Guantanamo solution does serve to highlight the fact that the laws of even powerful victor nations are inadequate to deal with all aspects of international terrorism.

“Thus far, the only means other than a Guantanamo-type solution that has been utilised to bring those engaged in terrorist activities to justice is to try them in domestic courts ... or in specifically constituted ad hoc tribunals.

“There are disadvantages in either course, although nothing like the affront involved in the Guantanamo solution.”

Ms Gaudron said that the prosecution of those engaged in human rights abuses suffered from the same difficulties as the prosecution of those involved in international terrorism.

As an example, she pointed to the use of domestic legal tribunals as being of little avail to victims of human rights abuse because the countries where those abuses occurred had no real rule of law.

There was a parallel between this and the inability of national courts and tribunals to adequately deal with all aspects of the criminality involved in terrorism.

This was because the assertion of universal jurisdiction was meaningless if the accused person could not be brought within jurisdiction, she said.

“What I want to suggest today is that unless there is an international rule of law we can neither protect human rights nor properly defend ourselves against international terrorism.

“An optional rule of international law falls very far short of an international rule of law.

“Yet, I fear that without a rule of international law involving universal jurisdiction with respect to human rights, abuses will go largely unpunished.”

Speaking after the event, Victorian Women Lawyers convenor Sarah Coffey said Ms Gaudron’s choice of topic was a “pleasant surprise” and was in tune with the spirit of Dame Roma Mitchell.

“It also shows a real maturity in the function. We want this function to become an event where such controversial ideas can be put forward,” Ms Coffey said.

Mary Genevieve Gaudron

  • Born in 1943.
  • Admitted to the New South Wales Bar in 1968.
  • Took silk in 1981.
  • Australian Conciliation and Arbitration Commission deputy president 1974-1980.
  • NSW Legal Services Commission chair 1979-80.
  • NSW Solicitor-General 1981-87.
  • High Court Justice 1987-2003.

Jason Silverii

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