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:

"... There is about the High Court in some of its aspects an air almost sublime. It will not tolerate the suggestion that there can be within the domain of law, under the Constitution, anything it may not only inquire into or review, but that it may not quash or veto.... The idea in our minds at that time was that we were clothing the Arbitration Court with power to make an award which could not be the subject of prohibition. But the High Court regarded this attempt of the national legislature merely as a stimulus to further efforts. Its latest achievement has been truly magnificent. "

The real issue is not whether Parliament can properly restrict judicial review and entrust specialist decision-making functions to a body like the RRT, but whether that body is sufficiently independent and possessed of high enough levels of expertise and credibility to justify restricting judicial review without undermining the rule of law. The RRT is ostensibly independent of government, but its members are typically appointed on short-term (12-18 month) contracts. That clearly gives rise to the possibility that members' re-appointments may be subject to their achieving outcomes politically pleasing to the Minister, irrespective of the merits of individual cases. This lack of tenure will be partially remedied if, as proposed, the RRT is merged with other federal administrative tribunals to form a new super-tribunal called the Administrative Review Tribunal. However, the current ART Bill has itself been criticised as falling well short of providing assured independence comparable to the Industrial Relations Commission, whose members enjoy tenure to age 65. A tribunal with sweeping powers like the RRT should not be protected from normal judicial review accountability by a privative clause, unless its members enjoy appropriate independence and tenure.

Despite lack of tenure, however, the RRT has gradually developed a reasonably good reputation for professionalism and independence. From its establishment in 1993 until 30 April 2002, the RRT finalised 47,347 review applications. On average, it set aside the Department's initial decision in just over 10 per cent of cases. Its apparent independence is even more clearly demonstrated in ‘boat people’ cases. Some 3,882 matters involved applicants in immigration detention (i.e. almost entirely 'boat people'), and 1,594 of them, or just over 41 per cent, were set aside. This suggests that, while some Departmental case officers were willing to accommodate politicians' evident desires to be tough on 'boat people', the RRT mostly maintained a commendably independent stance and reviewed cases strictly on their merits.

The relative infrequency with which RRT decisions are overturned in the courts also suggests that its decisions in most cases are sound. Since 1993, only 11.2 per cent of RRT decisions have been appealed to the Federal Court (by the applicant or the Minister). Of these, 18.8 per cent were set aside (some by consent). However, since 1994 (shortly after its inception) the RRT has been protected by provisions restricting the normal scope of judicial review to some extent. It is therefore impossible to say definitively whether the low set-aside rate demonstrates sound administrative decision-making or just the restricted availability of judicial review. Clearly, some degree of continuing judicial oversight of the RRT is essential to minimise injustice, a critical consideration where the consequence of a wrong decision may be the death or torture of rejected applicants returned to face persecution in their homeland.

The privative clause and other changes introduced in the wake of the 'Tampa' affair came into effect on 1 0ctober 2001. They gave effect to a much narrower judicial review regime than the already restrictive provisions implemented by the Keating Labor government in 1994. However, and contrary to some mainstream media reporting, the new privative clause was not intended to exclude Federal Court judicial review completely. As the Explanatory Memorandum accompanying the Bill stated: "a court can still review matters but the available grounds are confined to exceeding constitutional limits, narrow jurisdictional error or mala fides". Even Minister Ruddock candidly acknowledged that "the precise limits of privative clauses may need examination by the High Court".

Nevertheless, it is already clear that the new privative clause has succeeded in further restricting judicial review of RRT decisions. Between 1 October 2001 and 19 April 2002, some 25 judicial review applications by aggrieved asylum seekers were filed and determined by the Federal Court. Not one rejected asylum seeker was successful in overturning an adverse RRT decision during that time. The set-aside rate will probably increase a little over time, but it is unlikely that asylum seekers will in future achieve anything like the 18 per cent success rate on judicial review they enjoyed under the pre-'Tampa' regime.

The further narrowing of judicial review does not of itself address the problem of asylum seekers remaining in detention for prolonged periods while their review and appeal rights are litigated to exhaustion. It is that phenomenon which has put Australia's refugee determination system under severe strain and damaged our international humanitarian reputation. Not without some hesitation, I suggest that one method of shortening the process would be to abolish appeals from a single judge to a Full Bench of the Federal Court. There are no constitutional constraints on such a step, nor any strong policy reasons against it. Appeal from an adverse decision by a single Federal Court judge would then be possible by special leave only to the High Court. This should allow almost all matters to be finalised in well under 2 years, including DIMIA and RRT stages.

In conjunction with a liberalised, more open detention regime and lower arrival numbers stemming from the Pacific solution's removal of the principal incentive for asylum seekers to sign up with the people smugglers, Australia would, perhaps for the first time, have a sustainable, reasonably humane system for dealing with refugees fleeing persecution.