A Fair Go In The Courts


Asylum seeker bashing was one of the ugliest features of the 2010 federal election season. Apart from exceptions who were as few as they were notable, candidates fell over themselves to reassure their electorates that they would brook nothing but a very hard line on those who seek asylum in Australia.

This morning, the High Court handed down a decision which raises big questions about the Government’s current policy of processing asylum seekers in offshore detention centres. The case involved two Tamil men whose refugee claims were denied. They sought to appeal this but were unable to do so because they were held in offshore detention. It is on this question of procedural fairness that the Court ruled today, finding unanimously that there had been an error of law.

David Marr set the bar high when he argued in today’s Sydney Morning Herald that "a decision in favour of the men could halt dozens of deportations and change the fate of thousands of boat people held in camps across Australia."

Initial responses to this decision from advocates have been positive. Minutes after the decision was handed down, David Manne, Executive Director of the Refugee and Immigration Legal Centre tweeted "Our High Court challenge was successful! Huge implications for asylum seekers, and the rule of law in this country." Phillip Ruddock, in an equally telling soundbite, called it "diabolical".

Tamil activist Sara Nathan issued the following statement about the decision:

"We are very happy that the two Sri Lankan Tamil asylum-seekers’ case against Australia’s excised territories policy has been won by the refugees.

"This paves the way for all refugees to have access to a legal appeal. Previously, only those who arrived boat did not have that right but those who arrived by plane had that right.

"Now the High Court can make the final decision rather than a Minister who may be swayed by political opinion and an outsourced review provider who relies on the government to renew their contract!

"The refugees are relieved and very happy."

This judgment serves as a powerful reminder of the role of the judiciary in a constitutional democracy. Except when they hand down controversial decisions, the judiciary are generally less prominent in public discourse about good and bad laws. The members of the High Court aren’t elected, they’re appointed by the Governor-General on the advice of the Prime Minister. Judges cop flak when they make unpopular decisions — and we’d bet that some stern headlines will appear on this tomorrow — but they don’t have to ride the breaking news cycles, nor are they accountable to their electorates.

Tony "Turn Back The Boats" Abbott last night argued in Brisbane that if judges continue to hand down light sentences, it is "almost inevitable" that we will shift to a system whereby judges are elected. It might have been another impromptu policy statement for Abbott — it’s sometimes hard to tell — and it doesn’t augur well for a respectful response to this latest decision from the Court. But when elected representatives like Abbott offer throwaway thought-bubbles in lieu of considered policy, it comes as a relief that at least some decisions of national import are being measured more carefully.

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Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.