Thursday, August 15, 2013

asylum policy facing legal turn-back - The Australian

Tony Abbott and Scott Morrison enter their media conference, passing former immigration minister in the Howard government Phillip Ruddock. Picture: Gary Ramage Source: TheAustralian

THE Coalition's plan to deny asylum-seekers access to the courts to review decisions against them has been shot down by one of the nation's pre-eminent constitutional lawyers, who says it "just can't be done".

University of NSW Professor George Williams said the pledge was a recycled Howard government policy that had already been invalidated by the High Court.

He said the Coalition could axe the Refugee Review Tribunal and bar such cases going to the federal Court, but it could not prevent the High Court from hearing them.

"The bottom line is it just can't be done," Professor Williams told The Australian.

"The High Court has a guaranteed jurisdiction to review federal government decisions for what is known as jurisdictional error."

Tony Abbott today vowed to prevent the 32,000 asylum seekers who have already arrived in Australia by boat from ever receiving permanent settlement by keeping them on temporary protection visas.

The Coalition would also "fast-track" asylum-seeker processing by restoring single caseworker determination of refugee claims and dismantling Labor's appeals process.

"This is our country and we determine who comes here," the Opposition Leader said, paraphrasing John Howard's famous 2001 pledge: "We will decide who comes to this country and the circumstances in which they come."

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Mr Abbott said he was confident a Coalition government would be able to limit asylum-seeker boat arrivals to about three a year within its first term.

Opposition immigration spokesman Scott Morrison said the Coalition would "end Labor's tick and flick approach to assessment".

"Over nine out of 10 people who are coming by boat are being recognised under Labor's scheme," he said.

"And it's that hard-wired appeals (process) back through the refugee tribunal back into the courts.

"What this has produced is cases where even where there is a `no' decision being provided by case officers, under this government's appeals process, about 80 per cent of those noes are being turned into yeses."

Mr Morrison admitted it was legally complex to cut off avenues of appeal, but said Australia's courts and appeals system was being "gamed and used and promoted by the people-smugglers to put people on boats".

"It's a complicated area but you've got to give clear direction and leadership as to where you want the process to end up," he said.

The High Court struck out Howard government legislation in 2003 that sought to deny asylum-seekers access to the courts in the case of plaintiff S157.

"This is an old policy that has been tried before. It just ran into a constitutional roadblock," Professor Williams said.

He said denying asylum-seekers appeal rights elsewhere would leave the High Court with an "intolerable workload".

Home Affairs Minister Jason Clare said the Coalition plan was simply a rehash of a discredited Howard government policy.

He said boat numbers had dwindled since Labor announced its PNG offshore resettlement policy on July 19.


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