New Bill will leave refugees unrepresented

There can be only one aim to legislation such as this and that is to dissuade lawyers taking on test cases, particularly in the area of refugee law. Asylum seekers and those affected by adverse migration decisions will find it almost impossible to get someone to assist and act for them. Pro bono services will cease.

This serves not only to deprive the applicant of a basic right in a society ruled by law, but also to deprive the courts of professional legal advice which can streamline and present facts in the correct manner. Once again, this will only serve to clog the courts with unrepresented litigants, increasing the pressures on the court system.

Unrepresented litigants have been found to cause such problems for the courts that the Federal Magistrates Court  called for more pro bono representation or legal aid. In fact the court has found it essential to establish a pro bono scheme to assist applicants under its current workload.

The Federal Court adopted a “Self Represented Litigants Management Plan” to address problems raised in respect of self-represented litigants. This plan includes the provision of more staff to assist litigants.

One further area of concern is the almost indiscriminate scope of the provision that imposes costs. This would apply to any person who may have encouraged someone to commence or continue migration litigation in a court, if the action were deemed (once again) to have no reasonable prospect of success.

Submissions to the Senate Legal and Constitutional Affairs Committee raised concerns that this clause is so ambiguous it may apply to community groups, interpreters employees at legal services, lawyers, migration agents and advocates, making them all potentially personally exposed to paying the costs of the other party, that is, DIMIA.

Overall, the outcome of this seriously flawed legislation will be that the cases that most need representation will not be able to secure anyone to assist them. In practice, it is often these cases that have the most profound effect on common law, changing outcomes for litigants who follow.

Thus, the Bill threatens to not only restrict the rights of those most at need of protection under the law, but also has the potential to hamper the refinement of decision-making and judgement in one of the most troubled fields of public policy in Australia. In view of the litany of errors recently discovered with DIMIA's administration of the migration system, what we need at this time is not legislation that turns the screws on those at risk but laws that help to clarify the messy field of migration law and decision-making. This Bill is not a solution.