Aussies-in-a-Tizz, III: A new tougher offshore regime?

Chris Merritt and Lauren Wilson, in The Australian, 18 August 2012 with title “New offshore processing regime bars appeal on asylum.”

 Asylum-seekers arriving at Christmas Island this week. Source: Supplied

JULIA Gillard’s new offshore processing regime has effectively locked asylum-seekers out of Australian court appeals, legal experts declared yesterday, as four boats arrived in 24 hours in a rush to beat the new laws. Human rights lawyers said the new offshore processing regime had stripped back the capacity for judicial review of government decisions and eliminated many of the grounds for legal challenges by boatpeople.

The changes involve the removal of section 198A of the Migration Act, which was at the core of the High Court decision to strike down Labor’s Malaysia Solution. As lawyers declared the regime tougher than John Howard’s Pacific Solution, the arrival of the latest four boats took to 458 the number of asylum-seekers intercepted since Monday’s offshore processing deal. People-smugglers are thought to be moving to exploit the lag in sending new arrivals to Nauru and Manus Island, and will test the government’s determination to stop the flow of boats by suggesting the Prime Minister is bluffing. As the government braced for more vessels, Australian officials yesterday began assessing asylum-seeker facilities on Nauru and Manus Island, which will be reopened within weeks after the Coalition agreed to back Labor’s backdown on offshore processing.

Home Affairs Minister Jason Clare conceded that the flotilla of boats making its way to Australia since Labor vowed to implement the expert panel’s recommendations was not unexpected. “We expect people-smugglers to try and squeeze every last dollar out of this,” he said yesterday. “The message to people that are thinking about getting on to a boat is: don’t pay them a cent. Because whilst people-smugglers might be telling you that they’re selling you a ticket to Australia, that’s changed.”

Phil Lynch, of the Human Rights Law Centre, said yesterday the legislation passed this week meant the rules of natural justice would not apply to a range of decisions, thus eliminating a broad range of possible legal challenges. “This legislation is manifestly an attempt to remove judicial oversight of the designation of any country (as a place for offshore processing) or the human rights that are afforded asylum-seekers,” Mr Lynch said. The removal of section 198A “strips out one of the key protections that was actually afforded under the Howard legislation”, he said.

Australian Human Rights Commission president Gillian Triggs said the commission welcomed the expert panel’s efforts to respond to the loss of life at sea. But she said the government’s legislative changes meant “there will be no opportunity for the High Court to review whether regional processing will be conducted in accordance with human rights standards”.

“The repeal of the human rights protections in the Migration Act violates one of the first recommendations of the expert panel,” Professor Triggs said. She said there had been a very serious narrowing of oversight of the offshore processing system because many aspects would now be beyond appeal.

She said section 198A was “by far the strongest basis on which you could require basic human rights to be respected”. “Once that goes, you will be looking for much more technical grounds (of appeal) which in many instances won’t exist,” she said.

Professor Triggs said one of the few possible areas of legal challenge under the new system would be when a minister exercised his discretion in a way that failed to meet basic principles. The tightening of the legal regime emerged as David Manne’s Refugee and Immigration Legal Centre was this week awarded a $2.97 million contract over the next two years for legal services under the Immigration Advice and Application Assistance Scheme.

Mr Manne, the lawyer behind the case that sparked last year’s scuttling of the Malaysia Solution, has been involved, through the RILC, in millions of dollars of legal work on asylum-seeker issues. A contract originally worth $970,000, signed in 2006, was revised to $5.97m and extended to June 30, 2011. The latest contract, published this week, takes to $8.9m the value of legal work the RILC is contracted for until 2014.

Mr Clare confirmed the interception four new boats, carrying a total of 191 people. The latest interceptions take the number of asylum-seeker arrivals to 458 on eight boats since Ms Gillard’s announcement at 4.30pm on Monday that she would move to clinch a deal on offshore processing with the Coalition by reinstating centres on Nauru and Manus Island as demanded by Tony Abbott.

Former defence chief Angus Houston, who led the review that recommended the reopening of Nauru and Manus Island, has estimated 2100 asylum-seekers could be housed in both island centres once they are fully functional. The government had said all boat arrivals now run the risk of offshore processing, but if the current rate continues, both facilitates would fill in three weeks.

A source involved with the re-opening of the offshore processing centres said people-smugglers were telling their clients the Gillard government was bluffing, and citing the stalled arrangement with Malaysia as evidence that the announcement was unlikely to be implemented. “They’re thinking, let’s not be left with any unsold stock, let’s get these boats down there,” the source said.

The Weekend Australian has been told that part of the smugglers’ new sales pitch is to stress that the arrangements will not go ahead. Sources say people-smugglers are twisting the Prime Minister’s announcement about the increased humanitarian intake to 20,000, telling clients the government is actually opening the door to more boat arrivals. “Until the rubber hits the road and the first group, regardless of the size, lands on Nauru or Manus Island, the people-smugglers will not let off,” a source said.

The Opposition Leader said the spate of boat arrivals was a challenge to the government. “What we’re seeing here is obviously a determined effort by the people smugglers to test the resolve and the character of this government,” he said.

ALSO SEE “Oz Migration Policy Rankles Asia”

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