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    « Difficulty with the word "could" | Main | The minimalist republic »
    Friday
    Feb122016

    Migratory thoughts

    While the High Court was tangling with M68's case, JD student Barely Legal was hearing submissions from fellow undergrads on the inner meaning of the Migration Act ... Justice v Law ... Purposive v Literal ... Denning v French ... Politics and law 

    AS I sat in my migration law summer intensive I had the benefit of hearing my fellow classmates' views on the history and current state of Australian migration law. 

    Needless to say, opinions varied. 

    One student pointed out that Australia's history of immigration is one of "obfuscated racism". 

    Another bright spark argued that "bikies from overseas" were one the biggest threats Australia faced, so arbitrary character assessments of all migrants are justified.  

    I am in awe at the lengths to which our parliament will go to keep some people out. It involves constant reworking of that legislative Frankenstein's monster, the Migration Act, now running at over 1,000 pages with no end in sight. 

    Justice Rachel Pepper from the NSW Parks & Gardens Court cited The Parliamentary Draftsman in a lecture to our JD admin law class. It's apt:   

    I'm the Parliamentary Draftsman,
    And my sentences are long:
    They are full of inconsistencies,
    Grammatically wrong.
    I put Parliamentary wishes
    Into language of my own,
    And though no one understands them
    They're expected to be known.

    French CJ has said: 

    "Those who are subject to the law, those who invoke it and those who apply it are entitled to expect that it means what it says."  

    Peppered with poetry

    If his first concern is the law, and its literal interpretation, what then of the pursuit of justice? What of a purposive approach, so missing from the majority in M68 

    The highly quotable Lord Denning once said: 

    "Unlike my brother judge here, who is concerned with law, I am concerned with justice." 

    His "brother" could well have been French CJ. The dichotomy is enough to make a student's head burst. French or Denning? Literal or purposive? 

    My sizzled brain turned back to the Migration Act, perhaps the best example we have of a legislative "orgy" - a trait bemoaned by former chief justice Murray Gleeson 

    Just as the Migration Act is a creature of politics, so too our classroom discussion of it took the same form. 

    Denning won the day here in the lecture room. We wanted justice, not law. Why wouldn't we, after the parliament was allowed to get away with retrospective legislation, validating past illegalities and giving the department of immigration power to take "any action" in regional processing centres? 

    The problem for a law student, who has to pass exams, is that justice cannot be graded on a bell curve, whereas knowledge of the law, and the application of it, can be. 

    Why then were we distracted by the "merits" of border protection and the "rights of human beings and refugees"? 

    Probably because it's so much more fun than the real stuff. 

    We were sidetracked by a bit of doggerel about the parliamentary draftsman, but it put me in a frame of mind to toss off my own contribution. Maybe it will be cited by Justice Pepper to another batch of law students: 

    I am a law student,
    And my sentences lack cred:
    I struggle to understand the logic,
    In my lecturer's head.
    I put the Migration Act:
    Into hyperbole all my own,
    And though no one listens,
    My opinions meet with groans. 

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