A litmus test for the health of a democracy is what a Government does when it loses cases in the highest court in the land. In Australia, there is a history of both Labor and Coalition governments legislating away a loss by changing the law so they win the legal point in the future.
Sometimes this may be a genuine reform, but the experience of those working with refugees is that Governments do not take kindly to defeats in the courts and want to limit or prevent access to the courts in the first place.
Differences in policy are likely between Governments and advocates, but to ensure justice, the process should be transparent. Governments do not like their decisions being subject to judicial scrutiny, but this is an essential part of our democracy.
For some time there have been attempts to legislate away from the rule of law in refugee processing, by trying to minimise judicial review of decisions on asylum seekers by the executive. The excision provisions introduced in 2001 meant cases would be processed in a legal vacuum, by ministerial discretion, rather than be subject to the law.
The decision in the High Court regarding two Tamils called M61 and M69 challenged that position. The High Court found that the Government made errors of law in these two cases.
The so called 'refugee status assessment' (RSA) process for excised asylum seekers who are in detention around the country mimics parts of the onshore protection visa process. Applicants are provided with representation, they are interviewed, an assessment is made, and a review is possible.
The review is done mainly by former Refugee Review Tribunal members. Curiously these 'reviewers' are subcontracted by a company called Wizard People. Until now, the officers looking at these cases did not feel bound by the more rigorous RRT procedural fairness requirements. So assessments were made which, if done by the RRT, would have been overturned by the Courts for jurisdictional error.
Legally, you can only be detained while your case for asylum is being considered or arrangements are being made to remove you. The High Court found that for the detention of excised people to be lawful, there must have been a process underway to consider whether people met the refugee criteria.
This process must also comply with the laws of procedural fairness and other laws. It cannot be done in a 'law free zone'. It was in the process of considering the claims that the High Court found errors of law.
In the cases of M61 and M69 adverse assessments were made based upon country information that was not given to these applicants to comment upon. The High Court found unanimously that in the process of the 'review' these failures were errors of law.
The first consequence of the decision is that many cases will need to be reconsidered. This will take some time and, unless alternatives to detention are established, more detention centres will be needed to cope with the increasing numbers of people detained.
The Government has an opportunity to take the middle ground and release people into the community while this process is undertaken. That will free up the detention centres and also must be cheaper than keeping thousands of people detained for long periods.
The hardline approach would be to re-establish the 'Pacific Solution' (which was neither pacific nor a solution) and try to escape possible judicial review.
The response by the Government will tell us how willing the minority Labor Government is to accept that these decisions should be made in a legal process where asylum seekers are given procedural fairness and are subject to the rule of law.
Kerry Murphy is a partner with the specialist immigration law firm D'Ambra Murphy Lawyers. He is a student of Arabic, former Jesuit Refugee Service coordinator, teaches at ANU and is one of Australia's top immigration lawyers as recognised the Australian Financial Review Best Lawyers survey in 2009 and 2010.
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12 November 2010
The asylum seeker decision of the High Court has everything to do with justice and absolutely nothing to do with any 'sportsmanship"..a flippancy that has no place in a matter of such seriousness.
The High Court decision was a case of the blindingly obvious simply needing public confirmation..really nothing more. The real question was why the challenge wasn't made years ago. Where has the public conscience languishing for almost a decade?
Surely a bright suburban solicitor could have spotted this clear as sunlight flaw...although I'm mindful that John Howard was also once a suburban solicitor before becoming PM...and a key offender in this particular matter.
One could drive a tip truck through the ranks of law firms lacking the moral outrage to defend real rights, to battle shriekingly obvious injustices.
All three of the High Court decisions made yesterday underscore my point....The asylum seeker anomaly..the temerity of the Australian Taxation Office...legally upset by a determined student..and the arrogance of the South Australian Premier in his misguided and unlawful one man stand against his State's bikies...and put firmly back in his box..In all cases, a marked absence of real backbone, a woeful lack of lawyers willing to even go in to battle against the obvious of injustices.
Some say, even today,(read The Australian today) that the decision concerning the asylum seekers was no big deal..no cause for jubilation. Such commentators have little or no regard for actual justice, or the purity of law.Essentially, they've yet to personally experience the pain of justice denied.
12 November 2010
Thanks Kerry. Your expose (previous article) of the ASIO bottleneck was very important to an understanding of procedural fairness and I would like to know your views on fair/unbiased and accurate interpreting in that process. Asylum claimants are often illiterate and speak no English. Their claims for protection - on which their future lives can hang- are interpreted by DIAC employees hired for that purpose. How well qualified are the interpreters, and what level of professional accreditation do they have? How is the accuracy and integrity of the interpreting assessed? We know from the past that the shortage of Dari and Hazaragi speaking ethnic Hazara interpreters compromised many an interview on Nauru and elsewhere. Hazara claimants said they could not tell their tragic accounts to people who are Tajik or Pashtun or Iranian- and withheld information very relevant to their claims.
I support your call for the release into the community of asylum seekers while their claims are thoroughly assessed. There is no justification for depriving people of their freedom when they have not committed a crime or even been accused of doing something illegal. When he was in Northam WA I heard Chris Bowen interviewed and say to the racist critics attending the community meeting, that the detainees did not have to be feared - they are not criminals. So why imprison them?
12 November 2010
The High Court decision challenges both Labor and Coalition to revise their policies by adopting the middle ground: this would give asylum seekers a fair go and ensure that they are subject to the rule of law. Surely the time has long passed when, in all conscience, the fate of asylum seekers is used to gain political advantage. The lack of a compassionate bipartisan approach towards refugees,most of whom are innocent victims of cruel circumstances, causes great and needless hardship and does serious harm to Australia's international reputation.
14 November 2010
And all the Afghans and Sri Lankans jailed under the illegal suspension of their claims need to be released and compensated.
It would be nice if just one a stupid government would apologise for breaking the law and damaging lives instead of jerking their knees and trying to find more ways to break the law.
Because there is no legal way to exile an asylum seeker once they arrive here.
14 November 2010
keep up great work
same appplies to eureka
19 November 2010
I agree, Brian Haill. With some notable outstanding exceptions- David Manne, Julian Burnside, Greg Barns, to name a few- the legal profession has been mostly silent while Governments have extended executive power at the expense of fundamental principles of our system of law. If the main targets were not aslyum seekers arriving by boat, the representative bodies for the legal profession would have been outraged. In protecting the basic tenets of justice, there is no place for ideology and prejudice.