CPA - The Guardian

Last week’s decision of the High Court of Australia was of major significance for those who seek asylum within our shores. The Court’s decision concerned the case of two applicants for asylum who are known only as M61 and M69, and who had claimed that they had been denied procedural fairness because their applications were not dealt with under Australian law. The seven judges of the Court agreed with them, and declared that the government had made an error of law by not applying the decisions of the Court in determining their cases.

A protest in Melbourne earlier this year to highlight the plight of 254 Tamil asylum seekers who had spent 100 days on a boat in Merak, Indonesia, following the Australian Prime Minister’s request to the Indonesian President to have the vessel intercepted to prevent it from reaching Australia.

The essence of the Court’s decision was to reaffirm that loss of liberty can only be carried out as a matter for legal process, that all applicants are entitled to legal representation, and that a decision on whether an applicant for asylum has received fair treatment is ultimately up to the courts, not the government or the public service.

The decision has major implications, not only for present and future applicants for asylum, but also for hundreds who have had their applications rejected by the government since the off-shore processing policy was introduced by the Howard government nine years ago.

David Manne, the lawyer representing the two applicants, declared that the ruling “applies to every asylum seeker in Australia subject to the offshore processing regime, and it means not a single one of those people should be forced from Australia until they have had their claims assessed through a new and lawful process.”

Paul Power, chief executive of the Refugee Council of Australia, commented: “The main impact is to put all people seeking asylum in Australia on an equal footing. Both the mainland and offshore asylum processing will now be subject to judicial review.”

A history of shame

In order to appreciate the implications of the Court’s decision, it is necessary to review some key events. In 1992 the Keating government established mandatory detention, a procedure under which asylum seekers were forcibly detained while their cases were assessed.

In 2001, after the Tampa incident, the Howard government established off-shore processing of asylum claims. This applied to people who arrived on Christmas, Cocos and Ashmore Islands, or were taken there after they were intercepted at sea. These islands were all Australian territory, but the government had excised them from Australian law for the purposes of immigration. In practice the policy applied almost exclusively to people arriving off-shore, whereas those arriving on-shore were detained for a minimum period, if at all, and were then released into the community.

In 2005, the Howard government’s ruthless asylum seeker policy was carried to its ultimate conclusion, when the High Court accepted the government’s argument that Ahmed Ali Al-Kateb, a Palestinian whose application for asylum had been rejected, could be held in detention until a country was found that would accept him.

If carried to its logical conclusion, the legal implication was that he could actually be detained, in effect imprisoned, until he died, if no accepting country was found. The subsequent political uproar, which included a rebellion by a number of Liberal MPs, was a huge embarrassment for Howard. Ahmed’s case contributed to the government’s very callous image, which was a significant factor in the outcome of the 2007 election. Ahmed was finally, and very quietly, granted citizenship.

After the election the Rudd government made little change, retaining mandatory detention and continuing the policy of discrimination between on-shore and off-shore arrivals. The detention of asylum seekers in off-shore centres in other countries like Nauru was discontinued, but the essence of the infamous “Pacific Solution” policy was retained. The Gillard government now wants to open a new centre in East Timor – that is, if the government of that country agrees, which it certainly does not seem inclined to do at the moment.

Still a long way to go

This High Court’s decision is of major significance, but it is just the first step in what is required to remedy the unjust treatment of asylum seekers by a long line of federal governments over the last 18 years.

Indeed, it is possible that the government might challenge last week’s decision. However, an appeal to the full bench of the High Court would be unlikely to succeed, given that the decision was unanimous, a very rare occurrence for the Court.

The Court did not make a finding that the current policy of off-shore processing of applications was invalid, so if it wanted to, the government could still maintain the off-shore Australian detention centres, and could also pursue the opening of another centre in East Timor, without contradicting the Court’s decision.

It could even attempt to override the decision by simply maintaining all aspects of the current policy, even though this would raise the possibility of a court injunction. It sounds as though the Liberals favour that approach. “The only winners are people smugglers and lawyers. The big losers will be Australian taxpayers who will fund asylum seekers’ legal challenges,” snarled Scott Morrison, opposition spokesman for immigration.

On the other hand, off-shore processing and the denial of rights to legal representation were interlinked elements of a policy framework, so the elimination of one inevitably weakens the justification for retaining the other. The opportunity now exists for Gillard to dump all the shameful aspects of the current asylum seeker policy, established by the conservatives and intended to subordinate justice to political opportunism. The Greens would certainly support such a move, as would most of the independents, in all probability – and possibly even some of the no-so-conservative members of the Opposition.

The best approach would be for the government to do so, not just as a convenient political move, but as a matter of principle. It should follow the lead set previously by the few decent Liberals who rebelled against the Howard’s vindictive and opportunist use of the asylum seeker issue. That’s the way for the Gillard government to go – but let’s see what happens.

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