Canberra has been sweating a High Court decision on the right of boat people to access Australian courts. Photo: Paul Harris
Even before wreaths are laid on the cenotaphs of the nation this morning, the High Court may send to the grave Australia's treatment of boat people since the arrival of the Tampa. Sweating on the outcome are two Tamils who took their troubles to the court. Both were refused refugee protection early this year. Both are sitting in Villawood facing forced removal to Sri Lanka.
Canberra is sweating too. 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. The "excision" system that ships them all through Christmas Island would become redundant. The court might put in doubt every negative finding of the so called "non statutory" Refugee Status Assessment system that has decided the fate of every boat person for a decade.
It's big. Few decisions of the court have been so anxiously and eagerly awaited. All will be clear this morning, but when lawyers gathered in August to argue the case in Canberra, judges on the bench indicated they were ready to make a big call: that boat people cannot be detained and processed outside the law.
Had the two Tamils known as M61 and M69 flown to Australia on a tourist visa and then asked for refugee protection, they would have been released into the community and assessed by the Refugee Review Tribunal with the courts keeping an eye on officials to make sure all was properly done.
But because M61 and M69 arrived at Christmas Island, their fate was entirely in the hands of the Minister for Immigration. That's the theory anyway: they landed in territory "excised" from the Immigration Act so no court can have a say in their processing. A "non statutory" Refugee Status Assessment was compiled for each by outside contractors, but ultimately whether the two Tamils stayed or went was at the absolute discretion of the minister.
The claim that these contractors "do not need to be regulated by decisions of this court is," observed the High Court judge William Gummow, "a rather remarkable state of affairs." What's more, M61 and M69 were detained while being assessed. This was the ordinary fate of all boat people processed in Australia but how, asked the judges, can a "non-statutory" process immune from court scrutiny authorise detention? Gummow again: "People are incarcerated under this system and transported around the country."
In late March, M61 and M69 were among 89 asylum seekers flown to Villawood in a blaze of publicity as Christmas Island reached bursting point. The prime minister, Kevin Rudd, told the nation: "They are currently being processed for return back home."
Rudd was jumping the gun. But both men were eventually denied refugee status because the contractors employed to conduct the "non statutory" Refugee Status Assessment considered the account the men gave of their predicament back home did not square with the official "country information" they had about Sri Lanka. But the two men were never quizzed about this fatal discrepancy; never given a chance to explain themselves. Instead they were rejected. Had they arrived in Australia by air, such a failure of natural justice could have been corrected by the courts. M61 and M69 set out to convince the High Court that the same right to turn to the judicial system is available to boat people.
"This is a fundamental challenge to the government's ability to design a system where life and death matters can't be reviewed by an Australian court," says David Manne, executive director of Melbourne's Refugee and Immigration Legal Centre.
For M61, Manne gathered an old team: the barrister Debbie Mortimer, SC, instructed by one of the biggest of the big Sydney law firms, Allens Arthur Robinson. M69 had the Melbourne silk Stephen McLeish instructed by Holding Redlich. All the lawyers worked pro bono.
Mortimer attacked the government's position from two directions, both ending in the conclusion that the system for dealing with boat-people asylum seekers has to be open to supervision by the courts.
She argued first that in reality their fate is decided not by the minister exercising some unfettered discretion but by the contractors who carry out Refugee Status Assessments. Theirs is the only path to a visa. A favourable assessment has an automatically favourable outcome. It is not a preliminary step, Mortimer argues. "It is the actual grant of a visa."
Second, boat people can't be detained by a minister merely exercising his discretion. Detention has to have a lawful purpose: "Interference with the common law right of liberty has to be by force of law."
The justices of the High Court appeared to receive her argument very favourably. But of course it's always possible that they may have second thoughts in the privacy of their chambers as they write their judgments. Manne hopes not: "That might see the court opening up islands of power in this country where life and death decisions can be made unconstrained by law."
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