The inclusive potential of ‘judicial power’: Australian developments

Australia’s tough stance on undocumented migration is well known. At their most extreme, these policies have seen thousands of asylum seekers, including children, languish for years in prison-like detention centres. Given their insulation from populist politics, Australian judges are uniquely placed to use their power to directly affect the course of government policy on migration and have done so in a number of tangible ways.
This paper focuses on one particular judicial device that has served to humanise detained asylum seekers, even while it has often not vindicated their specific legal claims. That device, in its simplest terms, has been to define the ‘judicial power’ conferred by the Australian Constitution in a way that makes the ordering of punitive detention an exclusively judicial function. From this position the High Court of Australia, has been able to insist that the executive government has no power to engage in detention that can be characterised as punitive.

‘Undeserving’ individuals and what does it tell us about the statelessness legal framework?

There is a category of ’undeserving’ persons who are excluded from the mechanisms of prevention, protection and reduction of statelessness. They can be deprived of nationality and such action is not per se arbitrary and contrary to international law. Further, they may be excluded from protection as per Article 1 (2) (iii) of the 1954 Convention relating to the Status of Stateless Persons. Finally, their access to naturalization procedures (reduction) may barred when deemed to pose threats to public security or having criminal history; this is also non-controversial under international law. ‘Undeserving’ may not only be adults posing threat to public security but also minors, whose parents for example committed a fraud in naturalization procedures. What is the basis for singling out such a category of persons? Do securitarian considerations only undermine the consensus that statelessness is mala in se, as suggested by C. Batchelor, or is it already off?

Friend and Enemy in the age of rhetoric of crisis

The topic seeks to explore the meaning behind friend and enemy, not only at a superficial level, which it has been doing by scholars. Furthermore, this dichotomy is wrapped by a rhetoric of constitutional crisis. In my impression, the claiming of a constitutional crisis is only a label to a topic in which people has no certainty about what it means.