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High Court restores rights to refugees

By Binoy Kampmark - posted Friday, 12 November 2010

The High Court has thrown a spanner in the works of Australia's refugee policy. The members of the bench decided that denying asylum seekers the right to appeal against the refusal of an application for refugee status was effectively an error in law.

The particular case involved Sri Lankan applicants who have been detained on Christmas Island since October 2009 after entering Australian waters. That they should claim refugee status is not surprising, though it is not one that the Australian government takes seriously. (Canberra takes a dim view towards the situation in Sri Lanka).

The refugee regime Australian governments have adopted has always been somewhat perverse. The asylum seeker has been deemed a curious organism, a violator of borders and orders.


In 2001, a zone (euphemistically termed an "offshore place") was created excising Australia's borders for the purpose of processing these curious creatures who dared venture into Australian waters on life threatening boats.

This effectively created a special creature of law - a refugee who was not, in a sense, a refugee so much as an "illegal" who needed to disprove the label. But the High Court would have none of it.

The Migration Act 1958 (Cth) had not been treated with due seriousness (ignored in fact), but more to the point, procedural fairness had not been observed.

With a certain degree of grit, the High Court made it clear that Australia's "protection obligations to the plaintiff was to be made according to law." The court was careful to make sure they were working within a more conservative framework. They were, after all, trying to detect what the legislature meant when it made the various changes to the Migration Act.

The Immigration Minister Chris Bowen is trying to limit the effect of the judgment, exhibiting the driest of styles in explaining why the wise judicial wigs in Canberra have taken an issue with the government on their approach to refugees. "The preliminary advice to me is that there is not a significant implication for regional processing, but of course, I will be seeking further advice." Ditto Attorney-General Robert McClelland.

The government persists in a fundamental delusion - that such detention is essential to Australian immigration policy. The opposition is hoping to make gains from it, even if their policy would be even more reactionary. "The processing system is now in chaos as a result of this High Court ruling and detention centres are being opened up across Australia to cope with the people coming," trumpets Opposition Deputy Leader Julie Bishop. Beware those huddling masses.


Justice, like power, has a habit of creeping up on officials when they least suspect it. Bureaucracy wedded to political populism is the most noxious of creations. The Australian attitude to this at the political level has been obscene.

The suspicion shown by officials to the new, the foreign is something that is not only regrettable (an understated word) but abominable. Fear is a currency that never devalues. Whether they are on the left or right of the political spectrum, they are bound to be wrong on the most fundamental of things - human dignity.

For the first time in years, the High Court has handed down a judgment that mocks that stance, even if the language remains somewhat stale. For that, we can be grateful. Not only has the law proven to be something other than an ass, it has proven to be something of a salvation.

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About the Author

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He currently lectures at RMIT University, Melbourne and blogs at Oz Moses.

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