The taking of test cases, even if they are unsuccessful, can change public attitudes, an international conference on public interest law will be told today. The conference, in Dublin's Royal Hospital, is organised by legal rights organisation Flac.
Julian Burnside QC has represented those campaigning in Australia and the Pacific for environmental rights and for trade union rights. He was one of the founders of the Justice Project, which aims to reform Australia's refugee policy, particularly with regard to its compulsory detention of "unauthorised arrivals".
He pointed out that the number of people arriving in boats to seek asylum was running at about 1,000 annually. This compares with 120,000 coming into the country as official immigrants. "To combat this [the unauthorised arrivals] we lock them all up, men, women and children, for four or five years."
He told The Irish Times that Australia also took in 12,000 refugees annually, of whom 8,000 were pre-selected off-shore from various UN resettlement programmes. The remainder came from those who applied for asylum following their "unauthorised arrival" and those who obtained humanitarian leave to remain after entering Australia.
Some of these overstayed on previous visas, and then sought asylum. Only 20 per cent of those who sought asylum after such legal entry were granted it, yet none of them was detained, he said. However, over 90 per cent of the "unauthorised arrivals" eventually obtained asylum status, after spending long periods of time in detention.
"We're locking up innocent people with the intention of deterring others. Is this an ethical way to treat people?" he asked.
He pointed out that if the law was a bad law in the first place, a test case would be unsuccessful. But challenging it could change public attitudes.
Hurricane Katrina showed that race, poverty and injustice remained intractable problems in the United States almost 50 years after segregation in schools was found to be unconstitutional, according to another speaker.
Robert Garcia is the head of the Centre for Law in the Public Interest in Los Angeles. It combines taking test cases with campaigning for equal access to schools, parks and transport in Los Angeles.
He pointed out that half a century after the seminal 1954 case, Brown v the Board of Education, which found the segregated schools of the southern states to be unconstitutional, 91 per cent of the children in schools in Los Angeles are of colour. White families are fleeing to the suburbs or sending their children to private schools.
"Twenty-nine per cent of the people of New Orleans did not have access to transportation," he told The Irish Times. "Officials knew that, but did nothing."
Today's conference will also hear speakers from Northern Ireland and the Republic, Britain, Canada and South Africa.