For much of its history, Australia’s judiciary has been highly homogenous — comprising white, middle-aged males from privileged socio-economic backgrounds. In recent years, there have been calls to redress this ‘diversity deficit’, namely, the gap between the composition of the judiciary and the composition of the population at large. This chapter examines the challenges faced by this social project by asking (1) why judicial diversity matters; (2) what characteristics are important for a diverse judiciary; (3) how we measure the diversity deficit; and (4) what action is needed to redress the diversity deficit. The chapter argues that we should broaden our categories of interest, guided by the underlying justifications for diversity and understandings of the social fabric derived from the national census. The changing nature of Australian society requires us to look beyond gender and race in fashioning an inclusive judiciary that is fit for purpose in the 21st century.

THE EVOLUTION OF INTERNATIONAL MIGRATION LAW

Migration has been an integral part of human activity for as long as people have inhabited the earth. Whether moving as individuals, families or tribes, migration is an age-old response to the physical need for food, shelter and security, and the psychological need for adventure and exploration. However, while migration has marked all periods of human history, the phenomenon of ‘international migration’ had to await the reordering of the geopolitical landscape as a collection of territorial States in which governments had authority over settled populations residing within defined geographic boundaries.

The Treaty of Westphalia (1648) was a critical turning point in establishing that new landscape, but for the next two centuries individuals still enjoyed substantial freedom in traversing the boundaries of the State. This reflected an attitude of hospitality to strangers that was inherited from ancient cultures and expressed through cosmopolitanism. This attitude can be seen in the scholarly works of the great writers of international law of the eighteenth and nineteenth centuries, who, with few exceptions, took a liberal attitude to the movement of people across borders for trade, commerce and other purposes. If law in this early period paid scant attention to regulating migration, it was partly for the practical reason that the number of people involved was modest because modes of transport were confined to land crossings by foot or horse, and sea crossings by wind-powered sailing vessels. There were some notable exceptions to this laissez-faire approach, but the circumstances in which law was invoked to regulate international migration were few.

PRINCIPLES OF NATIONALITY

The concept of nationality

Nationality is essentially an institution of domestic law, but it has consequences in international law. Under domestic law, a national owes a duty of allegiance to the State, and may be obliged to pay taxes and render military service to that State. A national has the right of permanent residence and the right to participate in public life and, in most States, enjoys social benefits available only to nationals. Under the laws of some States, criminal jurisdiction may be exercised over a national even in respect of crimes committed abroad.

Nationality is a key concept in international migration law. The ability of individuals to change their residence to another State, or even to travel abroad temporarily for business or pleasure, is constrained by questions of nationality. Nationality is also important in international law generally. Until the emergence of human rights law in the era of the United Nations, how a State treated its own nationals was regarded as a matter of exclusive domestic jurisdiction and not subject to international law. However, States did have international obligations towards foreign nationals in their territory, and a foreign State could defend the interests of its nationals if they were breached by the host State. Thus, the rights of individuals were mediated through the bond of nationality. The foreign State could act on behalf of its nationals by exercising the right of ‘diplomatic protection’, since an injury to a national was regarded as an injury also to the State of which he or she is a national.

Preface

International migration has been a topic on the lips of policy makers for a very long time. The policy interests of States vary widely. Some seek to promote immigration to meet local labour shortages, or facilitate emigration to generate a stream of remittances and foster local development. Others take a more cautious approach because of concerns about irregular migration or national security, or because their societies historically have not welcomed foreigners. These different policy stances are reflected in a vast and complex array of national migration laws that span issues of nationality, entry, exit, deportation, detention, visa classes, status determination, migration-related crime and access to social services. These laws are generally well known within States because they are applied on a daily basis by immigration officials, consular officers, border patrols and crime investigators.

By contrast, the framework of international law governing migration is fragmented and unfamiliar. While some pockets are well recognised – refugee law being the principal example – many dimensions of the international legal framework remain unknown to all but a small coterie of specialists. Many individuals who formulate national migration laws, policies and practices, or are required to implement them, are thus unaware of the rich lode of international agreements, customary law, resolutions, recommendations and guidelines informing developments at the national level.