Redefining 'justice' in mandatory immigration detention and fast-track review: towards a new theory of administrative justice

People seeking asylum by boat in Australia face strict processing procedures and mandatory and indefinite immigration detention. The government aims of strengthening border security, preventing people smuggling and deterring so-called ‘illegal queue-jumpers’ has led to bipartisan support for harsh treatment from both major parties. This has subsequently led to the criminalisation of the immigration sector, or ‘crimmigration’, characterised by harsh treatment of people seeking asylum by boat in Australia coupled with increasing ministerial discretionary powers. Measures introduced by the Australian government include onshore and offshore detention, strict character tests, limits to review and a refusal to enable persons seeking asylum by boat to apply for permanent protection in Australia. This thesis is centred in this hotly contested and controversial area of the law. In this thesis by publication, I critically analyse the policies and practices of mandatory detention and fast-track review procedures through the lens of a rigorously developed and innovative normative theory of administrative justice. The purpose of this thesis is two-fold. Firstly, I make an original contribution to the literature by developing a rigorous, perceptive and nuanced theory of administrative justice suitable to analysing Australian administrative law systems. Secondly, in applying the normative theory of administrative justice, I provide a close analysis of Australia’s treatment of people seeking asylum from principles essential to good administration and quality decision-making. As an inroad into this thesis, I begin with an exploration of the nature of mandatory practices, comparing and contrasting mandatory immigration detention with mandatory minimum sentencing in Australia. I consider how the nature of mandatory practices is inherently unjust and raises serious implications for due process. My comparison highlights the dearth of theory on ‘administrative justice’ and the lack of protection or standards afforded to non-criminal people seeking asylum when compared to the sharp focus on standards of ‘criminal justice’. I then turn to the notion of ‘administrative justice’ — a concept that remains relatively unexplored in Australia in both content and definition. I provide an original contribution to the field by proposing a carefully formulated theory of administrative justice that is based on substantive rule of law theory and informed by the existing literature. Instead of providing a list of values, this theory notably groups administrative justice properties in themes and considers the need for principled tensions between properties. I then demonstrate the functionality of this concept by applying this novel theory to two different facets of administrative law in Australia: mandatory immigration detention and review of asylum decisions by the Immigration Assessment Authority. In so doing, I consider the government aims of these practices through the lens of this theory of administrative justice. I also consider other administrative justice properties. Some complement the aims of the government and others must be balanced in principled tension. I make an original and necessary contribution to the field by evaluating how mandatory immigration detention and fast-track review fall short of the government aims that these practices were purportedly developed to realise. I explain how a failure to balance administrative justice properties in principled tension has led to the systematic poor treatment of individuals at the hands of the state. By applying this new theory to specific case studies, I demonstrate that the theory has the flexibility to be applied across other administrative settings. This contribution offers a refined framework for lawmakers, policymakers and other stakeholders to evaluate administrative systems in Australia and abroad and uncover areas ripe for reform.