August 17, 2013
Legal experts have predicted the Coalition’s plan to deny legal rights to asylum seekers would provoke a flood of appeals to the High Court.
With the main parties united on stopping the boats and denying permanent settlement to asylum seekers who come by boat, the Coalition upped the ante on Friday, announcing it would deny the right of asylum seekers to appeal against negative assessments in the courts.
But constitutional law expert Professor George Williams said a move to cut asylum seekers’ rights in lower courts would bring the High Court to a standstill with appeals.
Professor Williams represented an asylum seeker, ”S17”, in a landmark 2003 High Court case that guaranteed the rights of Australians and asylum seekers alike to appeal to that court.
”What the High Court said in that case is that you can’t insulate the decision of government officials from judicial review,” he said. ”That is entrenched in the constitution and could only be taken away by referendum.”
The Coalition also announced it would retrospectively apply its tough temporary protection visa scheme to more than 30,000 people already in Australia awaiting refugee assessment decisions.
Opposition immigration spokesman Scott Morrison conceded asylum seekers would still have the right to appeal to the High Court, but said a Coalition government would move to cut their access to the Refugee Review Tribunal and the Federal Court.
”At the end of the day . . . appeals can always be made to the High Court about pretty much anything,” Mr Morrison said. ”We’re not changing the constitution.”
The plan immediately came under attack from lawyers.
Human Rights Law Centre director Daniel Webb said: ”These measures are designed specifically to inflict suffering on innocent people, so they are very likely to be challenged. Lawyers around the country will be looking for ways to protect their clients from these cruel policies.”
Anglican church leaders also rejected the policy, which Anglican Archbishop of Melbourne Dr Philip Freier called ”retrospective, cruel and unnecessary”.
Immigration Minister Tony Burke said Labor’s resettlement deal with Papua New Guinea – which proposes sending asylum seekers to PNG and Nauru – made the Coalition’s announcement irrelevant. ”The only possible reason to make an announcement like they’ve made today, is for a political desire to look tough and mean just for the hell of it,” he said.
Refugee Council of Australia president Phil Glendenning said legal avenues for appeal existed ”because mistakes are made” that could send asylum seekers to their deaths.