Significant court win for asylum seekers
by Peter Mac The terrible problems facing those seeking asylum in Australia continue to make front-page news. Desperate asylum seekers continue to seek release from the government's infamous detention centres, and (in some cases assisted by local people) they resort to breaking out of their confinement. Others continue the nightmare process of seeking judicial review of their cases. The long-suffering Baktiari family, for example, took their case to the High Court, only to have the Court reject their claim that the Minister for Immigration was wrong to refuse to issue them a protection visa. However, the High Court of Australia last week issued a highly significant ruling in a case that overturned the Howard Government's infamous amendments to the Immigration Act. Lawyers who mounted the case against the Act had argued that the amendments were unconstitutional and should therefore be declared invalid by the Court. The Court rejected this argument, and ultimately awarded 75 percent of the Government's costs against the plaintiff. For this reason the Minister for Immigration, Phillip Ruddock, greeted the Court's decision as a victory for the government. The Court ruled that the government was entitled to pass the laws under the Constitution. However, the Court did not support the government in its attempts to deny asylum seekers access to Australian law. The government had particularly sought to deny applicants for asylum the right to appeal against administrative decisions by the Refugee Review Tribunal. The Court, however, found that while the Tampa laws themselves were constitutional, the "privative" clause inserted in the Migration Act last year in no way prevented the Court from reviewing Tribunal decisions and ordering that certain cases be re-determined, where the court believed that the Tribunal may have erred in law. Federal Labor MP Duncan Kerr, who led the case against the government, commented that from now on: "no statutory provision can prevent the High Court's right to ensure that administrative decisions are made lawfully." At stake in this case was a major legal issue, and the ruling has profound implications for applicants for protective visas, including the 700 people currently involved in appeals to the High Court. They will now be entitled to have their cases heard. In short, legal entitlements we consider to be a civil right in Australia will still be available to those seeking asylum on Australia's sunny shores.