Preface

This book arises from a project funded by the Australian Research Council entitled ‘The Asylum Seeker in the Legal System: A Comparative and Theoretical Study’. The purpose of this project is to conduct a comparative study of the responses of five national legal systems, including that of Australia, to the problem of reconciling the rights of asylum seekers with the ‘integrity’ of the rule of law. The overall aim is to conduct a theoretical inquiry into the normative principles or values underlying the five legal systems. The project’s specific aims are to identify: the responses of each of the three branches of government (the executive, the legislature and the judiciary) to the problem, and their relative significance as a response in each legal system, and comparatively; the significance of differences in the nature and structure of decision making at the administrative level in determining the response in each legal system; in this context, the differences in, and the significance of, constitutional and other legal guarantees of human rights in each legal system; the ‘community’ and its significance in determining the values that underpin the different legal systems. The philosopher Ronald Dworkin’s ‘interpretive theory of integrity’ is used as a comparator and framework for analysis. In particular, the following issues are examined: Is there a coherent legislative principle? (Of what significance is the method and extent of incorporation of international law obligations into the legislation of the national legal system?) Of what significance are differences in the nature and structure of decision making at the administrative level? How integral is the adjudicative process? Of what significance are differences in the Constitution and the human rights framework for the adjudicative role? What values underpin judicial reasoning? Are the courts deferential to executive policy in their approach to refugee law? The community and its role. What is the relationship between the executive arm of government and refugee advocates, including nongovernmental organizations (NGOs) in the formation of policy?