Australia is in the midst of an election campaign and, as has been the norm over recent years, both major parties have taken an aggressive line on asylum seekers who enter Australia by boat. Both parties have released new, unashamedly harsher policies. They have also drawn distressed responses from those who advocate a more humane approach to dealing with the issue of those who undertake the arduous journey to reach Australia by boat in order to claim refugee status. While smaller parties, such as the Greens, lament the major parties’ policies for their inhumanity, the same policies appear to be welcome to a large number of Australians, particularly in the marginal electorates of Western Sydney.
The policy of the governing Australian Labor Party (ALP) is new, but can nonetheless be seen as an extension of its recent policy of offshore assessment. This policy was damaged by successive High Court judgments in regard to assessment of asylum seekers in the Australian territory of Christmas Island and in Malaysia, the latter provoking a furious response from then-Prime Minister Julia Gillard. The new policy seeks to avoid the scrutiny of the High Court by making it clear that people who arrive in Australia by boat will not be settled in Australia, regardless of whether they are owed obligations as refugees. Instead, they can expect to have their claims for asylum processed in Papua New Guinea and, if it is found that they are in fact refugees, can expect also to be resettled in PNG. The government has controversially advertised the ALP’s new policy throughout the election campaign so far, supposedly for the information of potential asylum seekers.
The coalition of Liberal and National parties (LNP) has made a rather more radical set of proposals, although LNP policy is still largely similar to the policy of the ruling ALP. However, last week the Leader of the Opposition, Tony Abbott, announced changes to the LNP policy on asylum seekers which have drawn immediate, heartfelt opposition. The point over which they have raised the greatest amount of disquiet is the LNP’s stated intention to prevent asylum seekers from obtaining access to courts. Indeed, the LNP has proposed that it will also abolish the Refugee Review Tribunal (RRT), which has existed since amendments to the Migration Act made in 1989 to provide merits review of decisions regarding refugee status made by the Minister for Immigration’s department. Rather, the LNP policy proposes that asylum seekers’ claims will now be assessed “by a single caseworker”. Seemingly, amending legislation will be introduced which states explicitly that the process of assessing refugee status is to be conducted entirely by the executive. It seems that the LNP believes that such an approach would limit the scope of any claim for judicial review to claims that there had been a breach of procedural fairness. The content of procedural fairness in a non-statutory context is unlikely to be great.
A number of commentators have stated categorically that if, as expected, the LNP wins the election on 7 September, the new government can expected to see its asylum seeker policy reduced to dust in short order by the High Court. They may be right, although there are aspects of the LNP proposals which have the potential to confound such expectations. Much has been made of the fact that the High Court, in a landmark 2003 decision of Plaintiff S157, rendered useless the Howard government’s immigration policy by holding that a privative clause could not be used to prevent a party from seeking relief from the High Court for jurisdictional error. This does not automatically mean that the proposed LNP policy will suffer the same fate, particularly if it does not hinge on the application of a privative clause.
Other warnings are more likely to come to pass. In particular, concerns that the High Court will be overwhelmed by asylum seekers whose applications have been rejected by the departmental decision-makers may be well founded. Because the High Court has original jurisdiction to grant certain remedies where a jurisdictional error has been made by an officer of the Commonwealth, it follows that legislation cannot validly prevent people from seeking remedies on that basis. However, the Federal Circuit Court and Federal Court of Australia are creatures of statute and it is within the competence of the legislature to prevent those courts from hearing matters seeking review of decisions made in relation to the refugee status of asylum seekers. It is possible on this basis that the entire weight of hearing judicial review matters challenging refugee status decisions would fall on the seven members of the High Court.
Moreover, there is precedent for this concern. The Howard government’s legislative attempts over the course of a decade to keep asylum seekers out of the court system succeeded only in creating a massive spike in judicial review applications from asylum seekers. The government was not always unsuccessful in these matters, although there are several prominent examples of cases which the government won but felt like it had lost, such as Plaintiff S157. After that case, limitations on the jurisdiction of the Federal Court continued to apply in a way that increased the workload of the High Court.
While not likely, a third possibility presents itself. The High Court is a conservative body by international standards, as I have commented before. However, it can be provoked into disobedience on occasions. A salutary example is that, in Plaintiff S157, the High Court held that the legislature had not intended to prevent access to the High Court in the event of jurisdictional error. A decision affected by jurisdictional error was not a “decision” to which the relevant privative clause applied. Of course, the legislature ‘intended’ no such thing and the government of the day felt that it had a strong argument for its privative clause being read such that it prevented access to the High Court.
More recently, the High Court’s decision in the Malaysian Solution Case provoked such outrage from leading members of the government (and indeed from Heydon J in dissent) because the majority judges were prepared to demonstrate a level of judicial creativity that few outside the court had predicted. There, asylum seekers were able to be sent legally to Malaysia to have their applications for refugee status processed only if the Minister had first made a declaration that Malaysia met four statutory criteria. The first three hinged on whether Malaysia is a country which “provides” certain protections and procedures. The majority of the High Court was prepared to read these legislative criteria as amounting to a requirement that certain jurisdictional facts exist. In other words, it held that the Minister could not validly make the declaration if there was no domestic Malaysian law on point, which the Minister conceded there was not. This issue has now been dealt with by more explicit legislative drafting but it points to the fact that the High Court is prepared, on occasion, to entertain strained approaches to statutory interpretation where important issues are at stake.
Another possibility is that the High Court will start to apply a more probing level of review to matters concerning asylum seekers, if their cases have not (as now) been through two stages of consideration on the merits and either two or three judicial review hearings before reaching the High Court. It may be more explicit about what it expects of decision makers in terms of procedural fairness, or require a certain thoroughness in the decision making process that has in the past been left largely to the discretion of the decision maker.
However, there is one thing which the High Court can never do and that is to grant a substantive remedy based upon a review the merits of a matter. The Court’s remedies are procedural only. For this reason, if for no other, independent scrutiny of the decision making regarding asylum seekers will inevitably be poorer if the RRT is abolished.
Greg Weeks is a Lecturer in Law at the University of New South Wales
Suggested citation: G. Weeks, ‘Proposed changes to Australia’s Migration Act’ UK Const. L. Blog (19th August 2013) (available at http://ukconstitutionallaw.org)