A litmus test for the health of a democracy is what a Government does when it loses cases in the highest court in the land. In Australia, there is a history of both Labor and Coalition governments legislating away a loss by changing the law so they win the legal point in the future.
Sometimes this may be a genuine reform, but the experience of those working with refugees is that Governments do not take kindly to defeats in the courts and want to limit or prevent access to the courts in the first place.
Differences in policy are likely between Governments and advocates, but to ensure justice, the process should be transparent. Governments do not like their decisions being subject to judicial scrutiny, but this is an essential part of our democracy.
For some time there have been attempts to legislate away from the rule of law in refugee processing, by trying to minimise judicial review of decisions on asylum seekers by the executive. The excision provisions introduced in 2001 meant cases would be processed in a legal vacuum, by ministerial discretion, rather than be subject to the law.
The decision in the High Court regarding two Tamils called M61 and M69 challenged that position. The High Court found that the Government made errors of law in these two cases.
The so called 'refugee status assessment' (RSA) process for excised asylum seekers who are in detention around the country mimics parts of the onshore protection visa process. Applicants are provided with representation, they are interviewed, an assessment is made, and a review is possible.
The review is done mainly by former Refugee Review Tribunal members. Curiously these 'reviewers' are subcontracted by a company called Wizard People. Until now, the officers looking at these cases did not feel bound by the more rigorous RRT procedural fairness requirements. So assessments were made which, if done by the RRT, would have been overturned by the Courts for jurisdictional error.
Legally, you can only be detained while your case for asylum is being considered or arrangements are being made to remove you. The High Court found that for the detention of excised people to be lawful, there must have been a process underway