In Defence of the 'Pacific solution' - part 2

"... 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.