It was a big day for the High Court yesterday, with a ruling that two Sri Lankan asylum seekers were denied “procedural fairness” by the Migration Act during a review of their refugee application.
But there is some confusion over what exactly this means. Does it completely affect the future of offshore processing of asylum seekers, including the planned East Timor processing centre? Or is it just a technicality, a change that makes it fairer but that — according to Immigration Minister Chris Bowen — “has the potential to elongate the time it takes to process refugee claims.”
The biggest win is that asylum seekers arriving by boat will be treated with the same rights as those arriving by plane, including a full right of appeal. Usually asylum seekers arriving by boat only have direct personal intervention by the Immigration Minister as their only source of appeal.
Here’s what the commentariat are saying:
The Australian
Lauren Wilson: Ruling a blow to asylum strategy
Australia’s capacity to detain asylum-seekers on Christmas Island and refuse them access to appeal determinations is in doubt.
Mark Schliebs: Iraqi wonders how friends will cope
Muntather Alshimari struggled to keep his sanity during the 10 months he spent in immigration detention centres. And following yesterday’s High Court ruling he fears asylum-seekers will endure even longer waits.
Chris Merritt: Despite hue and cry, it’s not a massive win
The real impact of the High Court’s decision in the asylum-seeker case will be felt by bureaucrats and lawyers, not refugees. This decision will not free anyone from detention. It has struck down no law.
The Age
Michael Gordon: History takes high ground
This was always morally repugnant. The High Court has now deemed it legally repugnant.
David Marr: As one, judges show they safeguard liberty
Unanimous decisions of the High Court are never an accident. Only every decade or so do all seven judges speak with a single voice on big issues of principle. It’s their way of sending a blunt message to government.
Julian Burnside: A victory for basic rights
Members of the public who, for their own reasons, are unhappy about so-called ”boat people” should not be disturbed by yesterday’s judgment. On the contrary, they should understand that the court has upheld and reaffirmed one of the most basic protections our legal system provides to reduce the risk of oppression and injustice at the hands of the executive government. They should reflect for a moment on the fact that the same principles protect their rights.
The Daily Telegraph
Simon Benson: Offshore refugee system in chaos
The entire refugee processing system is now in chaos after the court ruled the Government could no longer hold people on Christmas Island outside the protection of normal Australian law.
This is a Labor government stuffup.
Even Burnside on Lateline admitted it came about by the changes that Labor made in 2008.
Basically Labor put in place a system to “raise the bar” on processing in 2008 and as a result the courts decided that based on that decision, boaties had not been given a fair trial. The ruling at no point questioned the valid process of offshore processing, simply that based on Chris Evans stuff up that boaties should be given the same legal rights as onshore asylum seekers.
Labors immigration policies are a rolling joke, they can’t run our borders or anything else for that matter.
@GEEWIZZ
Parroting Coalition Propaganda does not change facts. This was a defeat of the Howard Government policy of excising parts of Australia to make them exempt from scrutiny of Australian Courts. Inspired no doubt by the Bush excuses for Gitmo.
The High Court has stated bluntly that there can be no exemption of equal access to the Law of the Land. The whole point of Howard’s policy was to give that very exemption. Labor just carried the policy on.
David Marr is spot on! A unanimous ruling is indeed unusual. The message it conveys is graphic.
(6-1 for dismissing the SA Government Appeal on their extraordinary ‘bikie law’).
It seems to me that the issue is not the primary outcome. It has more to do with the judicial system sending a clear message to Government that it is they -NOT Government who implement the law.
It is Government that implements the law – it is just that the manner of implementation has to be constitution with what the law says (including the Constitution, previous judicial interpretation, common law, etc). The judicial system interprets whether or not the implementation is lawful.
Because the judgement inevitably focuses narrowly on the specific circumstances of the two asylum seekers who lodged the appeal, it isn’t always possible to expand on what the implications of the decision might be for others.
But @GEEWIZZ is seriously stretching things to say this has nothing to with the Coalition. It was a Howard era law (supported by the then Labor Opposition of course) that the High Court examined in its judgement, and it is a safe bet to say that the same decision would have applied to any similar appeal made by ‘offshore entrant’ asylum seekers who were assessed outside the usual statutory refugee determination process during the time of the Howard government.
(This doesn’t mean those sent to Nauru (hard to be sure how this decision might affect people in that circumstance – I’ve heard differing seemingly plausible opinions on that), but those who were assessed in Australia).
It is arguable (although not certain), that the government could try to continue to use a refugee assessment process for ‘offshore entrants’ that was outside the reach of the legal system, but if they did it is now clear they would not be able to detain people while they did so. The irrational insistence of the government (and the Opposition) in retaining mandatory detention means the Howard era changes which sought to place asylum seeker assessment out of the reach of the law has been exposed for the rushed dodgy pre-election fix it’s always been.
The easiest solution is for all boat arrivals to have access to the existing system available to other asylum seekers. I doubt it would cost any more (and would cast far less if the farce of mandatory detention was ended), and would have much greater legal certainty – but adopting sensible approaches to dealing with asylum seekers seems to be beyond our political capacity.
The economics of Christmas Islands law breaking nonsense alone should stop it.
Nauru = $1.5 billion at a conservative estimate for 1200 people, 790 of them came here anyway but are damaged and need ongoing care which will add up to another $1.5 billion or more over their lifetimes. The 300 or so who went to New Zealand and other countries were never locked up but those countries bear the brunt of the damage we wilfully did to them. Woomera, while it was loathsome cost $170 million over 3.5 years to jail 4,000 people. 99% of them are now citizens although many hundreds will be suing for damages and will end up costing 10 times more than the original idiotic costs.
Christmas Island – $400 million initial building, another $100 million for extra buildings, $370 million per annum to run it including $6.6 per kilo of ordinary food to be flown out there, $1.4 million last year for power, and almost all the people (169 of the 8,000 or so locked up there have been sent home, almost all others were granted visas on primary decisions).
The cost of the Brisbane motel run as a hostel with minimum security is $2.4 million per annum.
Why on god’s green earth do the lying fucking liars continue to waste billions while children are dying of starvation and does anyone here want to count up the number of times over the last 9 years that I have said the parliament were acting illegally?
Millions I would think.
Now to another point made yesterday.
For any detention to be lawful there has to be a process. I made this point on 10 April this year on Adelaide radio 891. “The Afghans and Sri Lankans cannot legally have their applications suspended and be locked up.”. Human rights watch, Amnesty, UNHCR and HREOC all made the same point so watch out for more compensation claims for illegal imprisonment.