High Court judges question Tampa laws

by Peter Mac

The legality of the Howard Government's asylum seeker laws has been called 
into question by three judges of the Australian High Court.

The court is hearing an appeal on behalf of Roqia Bakhtiyari, who has been 
detained in a detention centre even though her husband has been released 
into the community.

The Bakhtiyaris made international news recently when their two sons, who 
had escaped from Woomera Detention Centre, sought refuge in the British 
consulate in Melbourne. Britain later refused to offer them asylum and 
returned them to the custody of Australian authorities.

Mr Bakhtiyari has now been separated from his family for three years.

In an attempt to justify returning him to a detention centre, the Howard 
Government recently alleged that he had lied about his nationality. This 
allegation has not been proven.

However, legal representatives of Mrs Bakhtiyari and another plaintiff have 
now taken the family's case to the High Court, arguing that laws relating 
to the detention of asylum-seekers violate the Constitution.

The current laws, which constitute a variation of the former Migration Act, 
were enacted late last year at the time of the Tampa crisis.

The Howard Government exploited the situation to great effect, not only 
successfully pressuring the ALP to support the legislation, but even riding 
to victory at the subsequent election by whipping up a wave of public 
hysteria against "boat people".

Now, however, some legal chickens are beginning to come home to roost.

The Howard Government had long accused asylum-seekers of using their legal 
right to appeal to the Federal and High courts as a means of delaying their 
deportation. The Government saw the Tampa crisis as an ideal opportunity to 
remove these legal rights.

Over-zealous and cocky at their tactical success in exploiting the Tampa 
crisis, they included within the legislation wording stating that decisions 
of the Minister, the Department of Immigration and tribunals relating to 
asylum-seekers "must not be challenged, appealed against, reviewed, quashed 
or called into question in any court".

The new law bars the publication of the names of parties to immigration 
appeal cases. It also appears to deprive asylum-seekers of the right to 
appeal to the High Court, although an oddly contradictory clause in the 
legislation places a 35-day time limit on appeals to the High Court against 
immigration decisions.

(The latter clause was said by some to have been included in the 
legislation in order for the government to effectively frustrate applicants 
from appealing against adverse immigration decisions, in the event that the 
Court ruled that the law violated the Constitution.)

Alas, the Government appears to have overlooked the fact that the 
Australian Constitution grants people the right to seek a judicial review 
of any ministerial decision.

It also prevents parliament from "legislating so as to unreasonably 
interfere with the judicial power of the Commonwealth", i.e. from muzzling 
or interfering with the processes of the Federal Court, which is 
essentially what the amended Migration Act appears to do.

Last week, counsel for the Bakhtiyaris argued that in attempting to strip 
asylum seekers of their right to appeal against ministerial decisions, the 
amended Migration Act is in violation of the Constitution.

At least three of the seven judges hearing the case are said to have found 
the counter-argument put by Solicitor-General, (David Bennett QC, for the 
government) an affront. One of them, Justice Michael McHugh, later declared 
hotly that, "This is the Constitution we're talking about, not a Dog Act"!

Justice Mary Gaudron attacked the provisions relating to suppression of the 
names of parties to migration cases.

Justice Gaudron commented that she might find it "sensible, practical [or] 
desirable to use the names of these people" in her judgements. She added 
acidly that the government was not entitled to direct her as to how she 
should write them.

For his part, Justice Michael Kirby stated that the 35-day limit for 
appeals in immigration cases in effect deprived visa applicants of their 
constitutional right to appeal to the High Court. He noted that this 
disadvantaged many asylum-seekers, most of whom lacked English language 
skills and had little or no access to appropriate legal advice in detention 
centres.

With regard to the constitutional implications of the case, Justice Kirby 
told Mr Bennett simply, but soberly, that "we are here to do justice, but 
you want to take that away from us."