Ron Merkel was a Federal Court Justice from 1996 until 2006. Merkel first became involved in asylum seeker issues in 1985 after working as Senior Counsel on an immigration case which, to him, exposed the extreme procedural unfairness of Australian law. As a QC and Federal judge, Merkel saw from the early 90s the government’s attempts to progressively single out and immunise administrative decision making in refugee and migration law from review. Merkel is working as a QC after leaving the bench, with a focus on public interest cases such as the 2014 case in which he represented the 157 Sri Lankan asylum seekers left at sea, against Immigration Minister Scott Morrison.
More information on Ron Merkel
- Ron Merkel’s Barrister Profile, Victorian Bar.
- “Lunch with Ron Merkel: Asylum seekers and indigenous disadvantage”, The Sydney Morning Herald, 2014, An article outlining the influences of Merkel’s position on both indigenous and asylum seeker policy.
- Human rights medal, Australian Human Rights Commission, 2011, A brief summary of the humanitarian work Merkel has done which led to his receipt of this award.
- “’Courageous’ judge retires”, The Age, 2006, An article discussing Merkel’s retirement and his future plans to continue practice as a QC.
- Kioa v West, 1985, a case in which Merkel was SC.
- Minister for Immigration & Multicultural & Indigenous Affairs v NAMW, 2004, an Immigration case for which Merkel provided judgement.
- Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs, 2002, an Immigration case for which Merkel provided judgement.
Transcript of Interview
Interview conducted by Fiona McLeod
MS MCLEOD This is Fiona McLeod interviewing Ron Merkel. Okay, thanks Ron Merkel. The first question I want to ask you is a general one which is that you’d observed inside court and outside, that the scope of administrative review is very important as a check on executive power and that particularly, with a Migration Act that scope has been very limited in the last few years. Is there any general comment you’d like to make at the outset about importance of administrative review?
MR MERKEL Yes, administrative review as you just said is probably the most important check on untrammelled use of executive power that we have. Particularly, in this federal sphere with which we’re concerned in migration. It’s the check, and of course, when it gets whittled down and it’s circumstances are narrowed and limited by Parliament, then it becomes less of a check and at the same time gives more authority to those in the executive to do two things. One is two exercise power in a way that’s not checked and secondly, to do so behind closed doors, which again is a big problem because as has always being said, I think said by Sir Gerard Brennan the Chief Justice ‘abuse of executive power flourishes in the dark’. So, they’re matters of real concern in this area.
MS MCLEOD As a judge you’re confined of course, to the individual cases that come before you so, where issues have a political momentum if you like, is that somewhat frustrating as a judge?
MR MERKEL No, I think the role of the judge is just to adjudicate on cases according to the law as it’s prescribed. I don’t think we are frustrated by political outcomes, we may have strong views about the way the law should be framed but I don’t think they really intrude on – to the decision making process. So, when we’re limited in our decision making by the grounds of review being restricted that’s accepted and that’s acted upon and that’s the way the law should be.
MS MCLEOD In the case of the Migration Act there have been over the last few years amendments or rolling series of amendments to reduce that power of review even further, has there been any personal sense of frustration about that?
MR MERKEL Well, if you talk about my thoughts as a person who has an interest in human rights, I can express one view. If you talk about my thoughts as a judge I’ll express another view because as I said as judge our role is purely to interpret and apply the law and if Parliament decides to lay down the law in a restrictive way then that’s the way we must deal with it. As long as the restrictions are within the constitutional limits. As a person who has an interest in human rights I may have a totally different view, that doesn’t intrude onto my decision making that’s something that I might express if you want extra-judicially or since I’ve left the bench.
MS MCLEOD As a barrister now again practicing in the area of human rights do you have a view or would you express a view about our compliance with international conventions?
MR MERKEL Yeah, I think that we have not complied very well with the kind of criteria that the conventions lay down or intend. One of the parts of refugee law and migration law that is disturbing, is that initially it started off as an area of broad, judicial review with the broadest of grounds that would apply to most administrative decisions. So, that if you have decisions concerning your property rights, Custom’s Act decisions, tax decisions, a whole raft of administrative decisions in the federal arena, you’re given a fairly broad right of administrative challenge and in fact, Australia was probably leading the world in it’s development of administrative law through the Administrative Decision Judicial Review Act, the RRT Act. That applied to migration decisions as well until natural justice was found to apply to migration decisions and the government then decided to codify migration law. So, all visa’s were given the category, were given requirements, but at the – and that meant it took discretion out and it became very reviewable as a matter of administrative law. But then from the early 90’s onwards governments seemed to single out refugee law and migration law, as areas where administrative decision making was going to be progressively immunised from review. I think the sad things is that developed progressively without an appreciation that these are the areas which touch upon peoples human rights and personal rights very deeply and very directly. Much more so than for example property rights and property interest which were always given great protection for administrative review. So, the irony was that the government in the area where it should be most concerned were protecting administrative decision making as a pragmatic measure but in other areas allowing it to be challenged in a fairly unfettered and a fairly reasonable way. So, I think it was that departure that caused all of the problems that we’ve seen in our migration law over the last 15 or so years.
MS MCLEOD Yes, in terms of the cases that have come before you there was one particular case where the Minister was unable to deport a person back to the Gaza, the Gaza Strip, because he couldn’t transit neighbouring countries to get there and the issues that case arose concerned the Minister not only undertaking reasonable steps to return someone home but not being able to detain them indefinitely unless that could be achieved. That case look liked – first of all I will ask if you can comment on the obligation on the Minster under the Act, not to detain someone unless there’s a real attempt to return them home in a general sense?
MR MERKEL Look, the problem of indefinite detention came about for two reasons. One is that the government departed from the fundamental principal of detention, which is usually to stop abscondment. So, the idea of detention, of someone pending a particular role that the government may play in respect of that person is not to punish them but merely to ensure that what the government is going to do with that person will be able to be done. So, we know it very well in bail and criminal proceedings where there’s a risk of abscondment before trial, the courts can keep people in detention pending trial to prevent abscondment. The same kind of analysis applies to migration or refugees. If a person is unlawful or has no right to be in Australia and there’s a reasonable basis for fearing that if that person is not kept in detention they might abscond so you cannot deport them if they are found to have no right e.g. after a refugee claim has been refused, it’s quite appropriate to use the detention power. What the government did is forgot that fundamental principal which is fairly basic to any human rights you don’t keep people in detention unless they’ve done something wrong or it’s for a particular purpose that the government’s entitled to have. What they really did is just totally removed any discretion and said there shall be mandatory detention of everybody. So, that there’d be no discretionary decision that moved them into detention that could be challenged because it was a duty, and therefore they were then available to be deported. What the indefinite detention cases threw up is the problem that the government hadn’t foreseen which is that they would not be able to deport people. So, by their restrictive regime they then created a regime where people could be kept in detention indefinitely because they were no longer able to be deported. So, they violated two principles, abscondment was never an issue because they put that to one side and deportation was never possible. Now, that outcome I don’t think was ever anticipated and there was a great dispute in the courts in respect of my decision, full Federal Court decision, and even a split High Court, on whether the act should be interpreted to permit indefinite detention in those circumstances. But the problem was never really a problem for the courts the problem was really with a highly restrictive codified regime that had lost a sense of what the purpose of detention was really to be about.
MS MCLEOD And that prompts a question about another case that you had where that intention may have gone awry, because the man was out of detention but arrested because he was illegally trying to work to feed his family. Now, his options were either beg for food or work, and work illegally, which led to his detention and prompted the attempts to re-deport him. That surely must be another case where the unintended result is that somebody has to live off charity or beg on the streets if they’re to be out of mandatory detention.
MR MERKEL Again, that’s a good example of the situation that arises when the government loses a sense of what these powers are for and uses them for a purpose that they were never intended to be used for. These laws, like mandatory detention and like the prohibition of refugees engaging in any work even if it’s necessary to feed their children, all of those law were for the purpose of trying to deter people from coming to Australia. In other words if you came you’re going to be put through a pretty, hard, tough life and really the convention was designed not to try and deter people from seeking refuge or asylum but to try and create an environment where in appropriate cases they should feel free to do so. So, that even though the convention is a bit ambivalent on how refugees who wish to claim status but haven’t had that status established, are to be treated. Really the government undermined the whole purpose of the convention by embarking on a series of administrative and legislative measures designed to deter people from ever claiming asylum and as I think I said to one of the select committees when they tried to make the Pacific solution a universal solution, is basically -undermines the whole point of a refugee convention and takes us back to what the Swiss Government were doing to Jews back during the 2nd World War. Where they were turning them back on the border, sending them ultimately to concentration camps, which was one of the circumstances that led to the creation of the refugee’s convention after the 2nd World War. So, we find we’ve come almost 360 degrees back to, not a Nazi type policy, but back to the kind of insensitivity that led to the convention being a necessity. So, we’ve recreated the very circumstances that led to the convention and we’ve then denied them. If every country approached the convention in this way refugees would have nowhere to go.
MS MCLEOD Australia doesn’t approach the convention or hasn’t in the last few years approached the convention the same way that European countries might, who have far greater numbers coming to their shores. Does that reflect just a personal view, does that reflect something about our unwillingness to be generous to our neighbours who are less well off do you think? Or something about us as a society?
MR MERKEL Look, why successive governments have taken this mean spirited approach is a vexed issue. I think that there’s always been this flood gates mentality that if we start allowing 100 or 200 to come it’s going to be 1,000 then it’s going be 10,000. Our migration history full of that mentality which has never really been realised but it’s a fear government creates or government has. I don’t think it’s justified, I think that’s the reason why they’ve created this approach. It’s not just the Howard Government, before that the Keating and the Hawk Governments both had periods where they were fairly restrictive on these laws and the Howard Government, made what the Keating Government had put in place and operative in ’92, ’94, into a fine art. Which became even more highly restrictive than had previously been the case but again it gave so much discretion to a Minister which is really not the purpose of what these laws should be about. Particularly, when they touch upon people’s rights so basically.
MS MCLEOD A fundamental convention ground for claiming the status of a refugee is the well founded fear of persecution by reason of membership of a group.
MR MERKEL Or race, religion, colour.
MS MCLEOD Yes, there was one case where a family claimed a well founded fear on the basis of their association with a family member who’d been persecuted and – or not persecuted for a reason by membership of one of those groups, but because he owed a debt and he was killed by drug lords. Is there – obviously lawyers will argue that people fall within the convention grounds and lawyers will argue they don’t. Is there anything you want to say about how we interpret those fundamental principles and how the court should interpret them in light of the issues in that case?
MR MERKEL Look, that comes under the social group exception provision of the convention and that was something that was placed in the convention for good reason. Social groups may not necessarily be defined by race, religion and so forth but they may, as fundamentally, be discriminatory or as discriminatory as many other. For example, the Romanoff’s in Russia or people associated with the Russian royal family were all murdered for the purpose of preventing any royal succession. That was a family group. You find other family units in China, there was great discrimination against what were regarded as the bourgeoisie, family members were discriminated against because they were regarded as members of the bourgeoisie. So, you have many social groups, you have the problems with homosexual groups, you have problems in different societies that are persecuted because of their social group relationship which may or may not be a family base. So, the idea of the convention was to try and capture discrimination against or persecution against social groups, in much the same way as there was discrimination against race and it was thought to embody the same evil. Now, of course there are boundaries where that starts to get into grey areas but in theory if innocent people, as members of a family, are suffering persecution for no other reason than being members of a family, then it raises the social group exception and if it falls within a social group that should warrant no basis for reading it down. There were honour killings in Albania and we see that in, certainly, Islamic society. So, should people who may have to suffer an honour killing as a representative of a family or whatever, or react in a particular way, should they be excluded from the protection of the convention. It’s not readily apparent that social group should be excluded but of course, the government decided that it was to be a much more restrictive approach and therefore they amended the legislation to try and exclude family groups as a social group.
MS MCLEOD There have been a number of cases I’m aware of in the RRT where Falan Gong had been denied, a claim for refugee status on the basis that they belonged to a recognised religion or organized group and some of those practitioners had difficulties in the court overturning those decisions because of the narrow confines of the rights of appeal. Do you think that groups, the other society groups, is broad enough to encompass unrecognised groups like Falan Gong?
MR MERKEL I would be surprised if there was a valid or properly arrived at decision that said persecution in China if someone is a member of the Falan Gong would fall outside the convention. I think, I’m not familiar with the cases but I’d be surprised if those cases turned on that decision as against whether someone was not accepted as having a well founded fear of persecution by reason of being a member of the Falan Gong because they do, for many reasons, fall comfortably within a social group or religious persecution. But it may depend on the evidence presented in a particular case. They certainly would be a group that the convention would intend should be protected as I understand it, but whether you are merely a sympathiser with the group or whether your are a participant in it requires all sorts of boundaries where the areas start to grey a little bit.
MS MCLEOD Yes. In some of the cases the factual situations disclose the procedures of customs officers interviewing people at airports, and that interview in one particular case before you being used against the applicant and he didn’t have access to a transcript of the interview. As a general principal, what do the rules of procedural fairness otherwise known as natural justice, require, when a person has a direct interest in the outcome of their application?
MR MERKEL I think a person should always be given an opportunity to deal with the issue on which their case might turn and what happened in some situations is, they were given a theoretical opportunity to raise it at some earlier point of time but were not given the opportunity to deal with it in the very instance where it was about to be used against them in a particular way and in our court system generally that would not amount to a real opportunity to deal with the case that’s being put against you at the time that case is being put. Cases of fluid matters which may be critical at an earlier stage may lose their significance or may be distant in a person’s mind at a later stage so the idea is that every decision maker, if that decision maker is going to afford natural justice, should be satisfied that the matter on which the case might turn, is a matter that the person before them has had an opportunity to address as part of that decision making process.
MS MCLEOD Just a couple of side questions, given your depth of experience in public interest cases, you would know to what extent the courts rely on the Bar taking on cases pro bono and on community groups to bring these issues to the fore. Is there any comment you would like to make about that for the record?
MR MERKEL Yes I think that public interest cases should be singled out as special categories of cases where costs laws should be developed to ensure that people can bring public interest cases in an appropriate case without a liability for cost. I think costs is a terrible burden for people to have to face when bringing public interest cases to the courts. There are not special rules that would in effect give them access to justice. I’m not saying that we should have the American system where a no cost rule ensures everyone has access to justice but on the other hand we’ve gone to the other extreme and no matter how bona fide and warranted a claim might be and how important it’s determination might be, there’s no doubt that there’s a real deterrent in people bringing cases if their liable to cost orders if they lose. So I think that’s an area that is very important to be addressed because it really undermines the whole principle of access to justice. Particularly when as we all know access to justice is expensive and even when they get pro bono assistance, that just means they’re not paying for their part of the case but it doesn’t protect them from liability for costs. We had this problem recently in the Vicky Roach case in the High Court, which it involved a very important question of enfranchisement or disenfranchisement of voters and we had a real problem getting some politicians for example, to offer to be plaintiffs in the High Court because of the potential problem for them of a cost liability. So that that case may not have ever been able to see the light of day in the High Court unless someone was prepared to bravely come forward and bear the risk of a cost judgement against them so there’s a real chilling effect.
MS MCLEOD Would you like to see an expansion of the Commonwealth and various state funding of public interest cases where there are real issues to be tried?
MR MERKEL I think there needs to be an expansion but my own experience is that there are sufficient barristers and solicitors who are prepared to take on any important public interest case, as a pro bono case. So I think while that’s an important part of what the government’s role should be, I think the costs problem for people taking on cases, that is, the liability for costs, is the bigger part of the problem. That is a real deterrent.
MS MCLEOD And also for the record, to what extent do the courts depend on the Bar appearing for parties in those important cases?
MR MERKEL Totally, there’s no doubt that the formulation of the case, presentation of the arguments, are critical to their outcomes and the courts in Australia simply don’t have an inquisitorial role. They’re reliant on how the issues are presented to them, how the cases are argued and even with proactive judges, there are some who are more proactive than others, they still are heavily reliant on the profession for the cases to be presented so that’s critical to the functioning of our adversary system.
MS MCLEOD Another side issue. Do you have any view about the positioning or physical location of detention centres away from metropolis support systems? In the outback, Christmas Island, far from access to services and lawyers and – – –
MR MERKEL Many of the detention centres were deliberately set up in remote locations as part of this punitive approach. There was no reason for them to have to be in those locations and the kind of locations and settings they were placed within, were all part of this deterrent type of approach which the government have pursued. I think that was quite an unacceptable and quite an improper way of dealing with it. Of course people who had done nothing wrong other than to seek to avail themselves of a legal right this country gives them, should not be punished for doing it and absent the risk of abscondment they should be placed in a community setting and even if there was a risk of abscondment, that doesn’t mean they’re untrustworthy, it just means there was a perceived risk. They should be given humane environments and be able to survive in the community as best they can. Not posted in isolated places, I mean even our prisoners are not put in isolated remote locations, so I think a lot of people have a lot to answer for, for that whole regime.
MS MCLEOD Do you have a view about the family separation issues that were undertaken deliberately to deal with male and female separation, children?
MR MERKEL Yes, quite a strong view. It shows how, once you derail your principle, you only aggravate the abuse of the principle by the steps you take. So the derailing of the principle, was everyone had to be put in detention. That was never a proper principle for reasons I have already explained because there was no risk of abscondment. When they finally accept that not only is there a zero risk of abscondment for women and children in those circumstances, but it’s also inhumane to keep them in detention. So what they do is they allow the women and children out of detention, keep the male in again, irrespective of the male’s risk of abscondment because the male in a family setting like that has something close to a zero risk of abscondment, so what they’ve done is, starting off with one inhumane principle by making it a little less inhumane in those circumstances, they have actually separated the family. Which again has no rationale or no common sense whatsoever about it. In fact it violates the so-called principles that the government that imposed this regime thought was sacrosanct. You know families are inviolable yet they violate families of human beings.
MS MCLEOD Now have you had an opportunity to go out to any of the detention centres?
MR MERKEL No.
MS MCLEOD Of the stories that you’ve heard and the stories that were before you, are there any themes that recur that have caused ongoing concern about physical and mental health of detainees?
MR MERKEL Look, there are a number of cases that have come up before the Courts where the cruelty and inhumanity of the environment creates a culture, a culture of disbelief, so that amongst people who are not well trained there’s a culture of disbelief of any the symptoms that show there is a serious problem.
MS MCLEOD But those who are responsible for the management and – – –
MR MERKEL Those who are responsible for their management, regards etc, even the medical staff start with an assumption that’s it’s a try on, it’s not genuine. Assumption more often than not that’s quite misconceived but unfair, so we had from time to time horrific cases, personal cases, come before the courts of circumstances where people were severely mentally disturbed and mentally ill who were not being appropriately treated. But, again it comes all as part of an overall system where there’s no accountability because the legislature tries to immunise it, there’s no transparency because everything occurs behind closed doors. That is a certain recipe for the kind of outcomes we saw and eventually, what finally blew the lid was Australians were being detained or permanent residents were being detained, and that led to the whole thing starting to crumble and reviews take place. But really they were the extremities of the system within which there were far more vicious and terrible outcomes in terms of human lives, which never really saw the light of day in many instances because they didn’t happen to be Australian citizens.
MS MCLEOD There has been talk about the relaxation of the Pacific solution and generally a relaxation of the long term detention rules, getting back on track do you think in terms of the fundamental principals?
MR MERKEL While the Act remains in it’s present form, I don’t think there is any getting back on track according to fundamental principals. I think what is happening is that the current government doesn’t have the ideological underpinning against refugees that the previous Howard government had. So that I think what is happening is the more humane approach to individual cases and outcomes and maybe an endeavour to start rethinking the principals that should govern refugees. So I think that is what we are seeing, that ideological absence means that we are starting to see the people involved in this process more as human beings and starting to maybe readjust ourselves as to how they should be dealt with. But until the laws change and there’s a fairer system and mandatory detention is removed for detention only for good reason, when we have administrative review of human rights standards in accordance with administrative law, not highly restrictive law, then I think we will start to get to a fairer society in respect of refugees.
MS MCLEOD Would you be advocating not only a Bill of Rights or Charter of Human Rights but one that extended to non- citizens in Australia?
MR MERKEL I have no doubt whatsoever, and I don’t think many would quarrel with it, that if you are going to have a Charter of Rights that must apply to all people in your country. Doesn’t matter whether they are citizens, permanent residents, visitors, human beings are human beings so the Human Rights standards must apply to people full stop. The idea that you could have discriminatory or preferential rights depending on your citizenship or your legal status is itself a violation of human rights. I don’t think that should ever even be an issue.
MS MCLEOD And obviously that would be something that you would be very keen to see happen at a Commonwealth level.
MR MERKEL I think so. I have always been an advocate of the Charter of Rights but a lot of thought needs to go into it and what might be the ideal nowadays is no longer being even sought. What is being sought nowadays is not like a US or even a Canadian Bill of Rights but something like the English charter which Victoria has taken on. But again, already as these cases are starting to come before the courts, a Charter of Rights is not going to be a panacea for all wrongs unless you have got a system in place that enables them to be effectively accessed and there is a culture in place where government is trying to give the effect not just to the letter of the Charter but to the spirit and intention underlying it. I think we are still a long way away from that.
MS MCLEOD Picking up a thread that you mentioned before about untrained management of detention centres, is there an issue do you think of the government delegating or contracting out that responsibility to third parties? As they do with prisons.
MR MERKEL I think the contracting out of public responsibility in respect to detainees is an unacceptable outcome. It is commercialising what really is lying at the heart of government responsibility and you can never ever, no matter how you try and do it, have commercial enterprises whose motive is profit, conduct a detention in a responsible and proper manner. As long as it is driven by the profit motive, it must mean it has to cut costs and it has to look at a cost effective way of detaining people and that should not enter the government’s thinking. It has higher responsibilities than that to people who are detained, so the idea of contracting out detention facilities, I think should, and always should, remain unacceptable.
MS MCLEOD In all the cases you have come across and all the factual situations you have heard about, is there anything that stays with you as a powerful moment that you want to talk about?
MR MERKEL I think there was one case which came on before Federal Court where a young Iranian had complained of being sexually abused and had all the symptoms which any reasonable informed observer would have accepted, that this girl was suffering serious personality disorders and problems and her plight was just totally ignored and the serious sexual abuse was part and parcel of the cause of her being a refugee in a family coming to Australia in an Islamic society. They were a Christian family and the abuser was said to be Islamic. The tribunal rejected the case and the evidence that came out of the file and the detention facility showed that any sensible person would have said that this poor girl, who I think was only twelve or thirteen at the time had severe mental illness consequence of some traumatic event and that was the traumatic event that brought them to Australia yet everyone in the system was not prepared to give any credence to it and it was a shocking case and when it came on before the Court the transcript was so terrible, the neglect to confront these issues throughout the system, both at the decision making level and at the detention level was so bad that the government was quite embarrassed by it and they then eventually I think gave the family a protection Visa and brought their detention to an end. I think that case more than any other, exemplified how inhuman and how inhumane the system had become and even though the matter settled in court it still drove me to actually write something about it to say in any system of society but particularly our own, sometimes there comes a point when enough is enough. You know a lot of people should have been answerable for what happened to that poor girl But no one was.
MS MCLEOD I have heard it said that judicial review generally is a fairly blunt instrument for achieving justice when the law seems bent on injustice. Would that be the sort of case that would – the case you are talking about, that prompted your frustrations?
MR MERKEL No, actually judicial review in that case even though it may have been limited, in fact did produce a just outcome in the result but that was because the process had finally made transparent what never had been able to be revealed and made accountable what never had been able to brought to account. So I think general statements like that don’t really assist. Judicial review just doesn’t permit merits review. But it is an important check on power as we started off, saying at the beginning of this interview in that case, shows how that check worked, even though the court’s decision may have been limited in many ways by judicial review, the court process was able to be used to produce a just outcome. What the decision would have been, but we have never got to because the case was resolved.
MS MCLEOD But only at the point at which the court or the minister, was before the court.
MR MERKEL Yes.
MS MCLEOD And represented and advised no doubt, in any case.
MR MERKEL But as part of the judicial review process, so in a sense the case revealed maybe aspects of the best and the worst of the process. I think the question of judicial review is a difficult one. All I am really saying is that of course it can’t produce merits review because that’s not it’s purpose but on the other hand it is a critical vehicle for ensuring fair outcomes which may not always be just because the law itself may not be just.
MS MCLEOD And in that particular case, which obviously left an impression on you, there was a good outcome if you like or at least some hope for that particular applicant. There must have been a number where you weren’t left with that sense of satisfaction.
MR MERKEL No. Quite a few where I was left with a discomfort, not that I knew that the outcome was necessarily unjust, because usually if I thought an outcome was necessarily and demonstrably unjust, I used to say so. Sometimes I would have said that this particular case has an outcome that maybe in accordance with law but it may not necessarily be in accordance with justice. But we are not well placed to identify what the outcome should have been. What we are often well placed to see is to see where maybe someone had less than a fair crack of the whip or a fair go at what the outcome could have been.
MS MCLEOD Last question. Is there anything that you want to say for the record given that this tape maybe viewed by those who have been in detention and those who are working in the field?
MR MERKEL That’s a difficult question. I think that people should understand that the legal processes in the courts act in a way that I think underlies what is behind the separation of powers in the federal constitution, which is to ensure that people have a fair go at whatever their legal rights are, they get a fair access as to having their cases ventilated. When their cases are ventilated they’re done so before an independent and fair tribunal and even though some judges differ in views and approach to others, I think they endeavour to give the effect to what really the separation of powers is all about and that is that there is an independent judiciary. There is an executive that is held in check by that judiciary and a parliament that lays down the laws and sometimes when the outcomes are not as fair as many might see them to be, their criticism is one that maybe is directed at the laws or how they are administered but generally speaking I think the judiciary do their best to try and make sure the laws operate in accordance with our legal system and are not personal, and outcomes are not geared to what individuals may or may not have had done to them. So in other words it is probably justice according to law that they get and not according to the whims of individuals and I hope that is understood by most people in the system.
MS MCLEOD Of course many people come from places where there is no rule of law, no democratic re-elected government or when they see a minister appear in court, they assume that the minister is the prosecutors’, the police are aligned with the courts. In Australia we have a different system don’t we?
MR MERKEL I think I can only speak for the lawyers and the judges involved in the process. I think they do the best they can and ensure everyone gets a fair hearing according to law and usually just outcomes are not guaranteed but if they’re not obtained it’s probably not because of the judiciary, it’s probably because of either executive or legislative decision making.
MS MCLEOD Thank you Ron Merkel.
MR MERKEL You’re welcome.
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