In Defence of the 'Pacific solution' - part 2

Last month, I suggested that the Howard government’s 'Pacific solution' could form the basis for a more sustainable, rational and humane approach to dealing with illegally-arrived onshore asylum seekers (aka 'boat people'). I suggested that the primary reason for the failure of the deliberately punitive regime adopted by successive Australian governments throughout the 1990s was that onshore asylum seekers were effectively guaranteed a visa if they succeeded in reaching Australia and establishing refugee status. By comparison, offshore applicants enjoyed no such guarantees and had fairly slim chances of obtaining an Australian visa.

Offshore processing of intercepted 'boat people' under the Pacific solution (or rather the Indian Ocean solution, as it will become when detention facilities on Christmas Island are completed) presents the possibility of a more humane and sustainable regime. Repressive deterrent measures are now superfluous, because applicants no longer gain an automatic legal entitlement to an Australian protection visa, even if they succeed in establishing refugee status. Thus the main incentive for asylum seekers to attempt to reach Australia at all costs no longer exists. Hence the sudden, spectacular reduction in the number of boat arrivals.

I would not for a moment claim that the current mandatory detention regime for 'boat people' is anything less than cruel, especially where children are involved. A more humane regime will only emerge if the opportunity is now taken to strip away unnecessarily punitive practices, and develop much more open and congenial assessment/detention facilities on Christmas Island (and elsewhere, if necessary). Because Christmas Island provides a remote but pleasant environment (especially by comparison with Woomera or Curtin), it should be possible to offer comfortable, relatively open facilities without in any way compromising national security.

Although this would greatly improve the situation, it will not by itself bring about an acceptably humane regime for dealing with 'boat people' asylum seekers. The other part of the picture is the unacceptably long time it takes to process protection visa applications, and for applicants then to exhaust their review and appeal rights under Australian law. At present, onshore asylum seekers have access to no less than 5 successive stages of assessment, review and appeal. There is nothing wrong per se with providing extensive appeal and review rights; indeed one might ordinarily regard such a system as liberal and enlightened. However, the plethora of appeals becomes problematic when combined with mandatory non-reviewable detention imposed on all unlawful arrivals. It takes years to negotiate the appellate maze, and applicants often succumb to despair. The regime is especially repugnant when children are involved. As at late April 2002, more than 500 children were held in detention in onshore facilities or on Nauru or Manus Island.

The current regime for assessment and review of protection visa (asylum seeker) applicants comprises:

• Primary determination by a Department of Immigration Multicultural & Indigenous Affairs ("DIMIA") case officer;
• Independent review by the Refugee Review Tribunal ("RRT");
• Judicial review by a single Judge of the Federal Court;
• Appeal to a Full Bench of the Federal Court;
• Special leave application to the High Court;
• High Court appeal (if special leave granted).

The performance and efficiency of both DIMIA and the RRT compare reasonably favourably with other Western countries. Approximately 80% of protection visa applications reach primary determination stage within 18 weeks. Completion of independent merits review by the RRT takes on average a further 40 weeks. However, exhausting all judicial review rights usually takes at least another year, and in some cases considerably longer. It is by no means unheard of for asylum seekers to spend 4 years or more in detention while awaiting the outcome of judicial review and appeals to higher courts.

A solution sometimes suggested by refugee advocates is to abolish mandatory detention, except for a limited initial period while identity and security checks are completed. That is essentially the regime that has existed in the UK until now. However, Britain is about to adopt a much more draconian system, whereby most unsuccessful asylum seekers will be deported as soon as their applications are rejected, and left to pursue any judicial review rights from offshore. This is partly a reaction to the fact that, as the Home Office has admitted, although only 10-15% of the roughly 70,000 people who apply for asylum in the UK each year are found to be refugees, 2/3 of applicants simply disappear into the illegal workforce. There is no reason to imagine that Australia's experience would be any different if we abolished mandatory detention.

If we cannot sensibly abolish mandatory detention, an obvious question (albeit one calculated to induce apoplexy in many refugee advocates) is: why not make the RRT the final port of call for asylum seekers and completely abolish all judicial review and appeal rights? The simple answer is that this is not constitutionally possible in Australia. However, the High Court long ago developed an approach which accepted that Parliament could, by inserting a 'privative clause' in legislation, drastically restrict the scope of judicial review of specialist administrative tribunals (such as the RRT). That is precisely what the Howard government did late last year, in the wake of the 'Tampa' affair, with the somewhat reluctant support of the ALP Opposition.

Left-leaning journalists like the Sydney Morning Herald's Margo Kingston have condemned this legislative gambit as outrageous, and the Federal Court's Justice Graeme Hill recently said: "the rule of law and freedom are both too hard-won to be taken away by stealth ... Ultimately societies have to maintain human rights and freedoms. And they are at risk." But does a privative clause really put basic values at risk? As former High Court Chief Justice Sir Gerard Brennan once observed:

"…the court needs to remember that the judicature is but one of the three co-ordinate branches of government and that the authority of the judicature is not derived from a superior capacity to balance the interests of the community against the interests of an individual. The repository of administrative power must often balance the interest of the public at large and the interests of minority groups or individuals. The courts are not equipped to evaluate the policy considerations which properly bear on such decisions, nor is the adversary system ideally suited to the doing of administrative justice ..."

Australian governments have been entrusting decisions in politically sensitive areas to specialist tribunals since shortly after Federation, and seeking to inhibit the courts' capacity to review such decisions. Simultaneously, the courts have been adept at "finding ways and means to deal them[selves] back into the review game" (as Minister Ruddock recently put it). Decisions of the Australian Industrial Relations Commission, for instance, are protected by a privative clause almost identical to the one recently inserted into the Migration Act. In the Tramways case in 1914, the High Court ignored a very similar clause protecting the AIRC's predecessor (the Conciliation and Arbitration Court). The Tramways decision provoked a reaction from Labor Prime Minister Billy Hughes that was considerably more immoderate than Minister Ruddock's recent efforts. Hughes described the High Court's actions as "a public scandal", fulminating: