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Letter of Advice on Constitutional Law

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I hope you are doing well. Before, we begin our discussion I will shed some light on the constitutional law. Constitutional Law is the body of law defining the relationship of different entities within a state. This includes the cabinet, legislature and the judiciary. The Stop the Bill (2012) put up by the Federal Opposition provides in section 5 that: if any marine vessel with persons aboard who do not possess valid documentation for lawful entry into Australia, approaches Australian territorial waters with the intent to enter Australian territory, or enters Australian territory, that vessel shall be forcibly removed from Australian waters by Australian military vessels, or other military equipment which may be deemed necessary.  This is bill majorly tries to stop any entry to the country irrespective of the reasons behind the need for entry. It is important to analyze this bill as it goes to the House of Representatives and the senates given that there have been disastrous cases as a result of in-admission and consequently drowning which has been comprehensively covered in this letter. It has further covered aspects of refugee seeking asylum in Australia which are related to the bill.


According to Douglas (2009, p.142), Australia has a yearly quota of some 13,700-refugee admissions, which, in proportion to its population, is one of the highest in the world. Just like in all other countries, entry into the country is granted on basis of having valid documentation which includes visas or Electronic Travel Authorization. The policy of the Australian Government is that, despite this distinction in law, asylum seekers who arrive in excised offshore places, namely asylum seekers who arrive by boat will also be subject to mandatory detention (Linda, 2011, p.1)

However, looking at a case of August 2002, a boat with 400 refugees on board sunk after allegedly being denied entry to Australia by the government resulting to the death of 353 of the refugees after they drowned (Catherine, 2005, p.26). These were people seeking their democratic right to seek refuge in Australia (Bede, 2009, p.1). Taking up responsibilities for such catastrophes is imaginable and everyone will try to clear themselves without considering that human rights have been infringed with loses of lives. According to Stanley (2010, p.12), powerful circumstantial evidence strongly suggests that the drowning were the direct result of deliberate political decisions taken by the government.

In 2010 a total of 82 boats were identified transporting an average of 47 illegal immigrants (UNHCR, 2010, p.1). The total estimates a total of 3,934 people. With the cost of illegal movement to Australia estimated at between US$5,000 and $10 000 per person, these, by the standards of the region were the super affluent who could afford the expense and the queue jumping that it provided (Douglas, 2009, p.42). It could be because of such reasons that the opposition is putting forward this bill. It is evident that both the cases of illegal movement to Australia by boats are not acceptable. However, proper analysis will indicate that at times it is necessary to grant asylum as shown by the case of the drowned refugees (United Nations, 2009, p.2).

With the fundamental International human rights currently in place, it is most likely that the court would give a ruling against the bill considering the implications and relations with the international states (UNHCR, 2001, p.1). This means that the bill could be challenged in a court of law citing disasters that may result in cases of denied entry. Talking of section 5(b) of the bill, should there be a person who directly tries to offer assistance to any person on board a vessel which would be subject to section 5(1), then this will change the case from refugees seeking asylum to smugglers trying to enter Australia illegally (Global Detention, 2011, p.2). It is therefore important to put clearly establish the reasons for those on board and seeking entry. It should be noted that in cases of refugees seeking asylum, the claims must be verified as is usual and proper protocols in offering asylum followed.  Referring to initial cases of refugees seeking asylum, according to Schneider and Daley (2011, p.1), the court in August 2011 ruled against the government’s decision to send the refugees who had arrived to Malaysia signifying its illegality.


After the analysis given, it is important to state that the bill is unconstitutional according to the Australian laws and also considering the International treaties regarding refugees. Australian constitution provides for Refugees protection and rights as outlined by Stanley and should the bill get through, it will be possible to successfully challenge it before a court of law. However, it is important to outline that section 5(2) of the bill suggests smuggling as it involves a second party who is involved in helping out. The two sections of the bill are distinct therefore, section 51(xxix) does not support section 5 in a case of refugees seeking asylum but may be admissible in a case of an individual trying to smuggle a person(s) which would then be illegal and pose a threat to all Australians, United Nations. The cases of smuggling have been rampant with smugglers trying to use all loopholes available not only via the sea but via land and air as well. Therefore, in order not to compromise the security of Australians nor put the lives of refugees at stake, it will be important to put clear the reasons as to why people would want to gain access to the country. This means that it will be important to will be wise to have the bill amended before being passed to the House of Representatives and the senate for adoption if it is to successfully go through the House of Representatives and the senate without opposition.

I strongly believe that the facts highlighted in this case will be of great help to you.

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