Senator BARTLETT (2:29 PM) —My question is to the Minister representing the Minister for Immigration and Multicultural and Indigenous Affairs. I draw the minister's attention to the recent High Court decision that unanimously found that procedural fairness was not followed by the Refugee Review Tribunal. Given that the government has now dramatically reduced the potential for judicial scrutiny of tribunal decisions and has just successfully passed legislation with the support of the Labor Party ruling out the right of people to appeal against failures of procedural matters, what steps will the government now take to ensure that past tribunal decisions and, more importantly, future tribunal decisions are made in a fair way?

Senator ELLISON (Minister for Justice and Customs) —I am aware of the case recently in the High Court—the Muin and Lie case—which dealt with the procedural aspects of the Refugee Review Tribunal. As the chief justice commented in that case, nothing turns upon the representative nature of the proceedings; argument has been confined to the cases of the applicants concerned. I would remind the Senate of those comments. The decision of the High Court effectively means that the Refugee Review Tribunal decisions affecting Mr Muin and Ms Lie will be set aside and their matters remitted to that tribunal for reconsideration. What application, if any, the High Court decision has in these two cases for associated cases, or indeed any other Refugee Review Tribunal decisions, is a matter that would need to be assessed on a case-by-case basis, hence the comments by the chief justice.

Decisions of the Refugee Review Tribunal, like other administrative decisions, are valid unless and until they are set aside by a court. All the associated cases, and indeed all other decisions by the tribunal, are therefore valid unless and until they are set aside by the court. In this particular case, the court found breaches of procedural fairness because correspondence from the tribunal gave the applicants an inaccurate impression that the tribunal had obtained and considered all of the material that was before the department. The majority of High Court judges saw fit to infer that the material that was before the department was not considered by the Refugee Review Tribunal, despite facts being presented that ordinarily the onus of proof is on the person who seeks to assert that a tribunal did not have regard to particular documents and that the material was not particular to the applicant but in the nature of background country information.

As well, facts were put forward that the tribunal is a specialist tribunal with broad knowledge of country information acquired over the course of dealing with many cases relating to particular countries. As well as that, it was asserted that it makes good administrative sense to have material available to the tribunal in electronic form as it saves unnecessary manual duplication of documents. One can appreciate the volume of work that is dealt with by the Refugee Review Tribunal, and these days electronic information is no stranger to the courts. It was also put forward that, in any case, much of the material put forward before the delegate was outdated by the time that the tribunal dealt with the application afresh. Finally, it was asserted that in each of the decisions the tribunal had made reference to at least some of the material. So I would bring to the Senate's attention those important factors of the case.

The Minister for Immigration and Multicultural and Indigenous Affairs, Mr Ruddock, has expressed his confidence in the tribunal. I have no reason to doubt that whatsoever. He has every confidence that the tribunal has met and will continue to meet its charter to provide a mechanism of review that is fair, just, economical, informal and quick. I am sure that all senators would agree that such a charter is an appropriate one for the Refugee Review Tribunal to have. Since its inception in 1993, the Refugee Review Tribunal has been very successful in handling cases substantively on their merits. (Time expired)

Senator BARTLETT —Mr President, I ask a supplementary question. Minister, how can the government possibly have full confidence in the Refugee Review Tribunal's processes when the High Court has unanimously found that they failed to follow procedural fairness, also known as natural justice? Given, as well, we have had recent Federal Court decisions in separate cases that have found that tribunal members have acted in one case with actual bias and in another case with bad faith, surely the government must acknowledge that there are problems in the way the tribunal makes its crucial, potentially life and death decisions? Will the government undertake a full review of the tribunal's procedures and processes to make sure that fairness and justice are delivered on such crucial matters, or will the government continue to ignore the strong signals sent by repeated court judgments that there are flaws and problems in the process?

Senator ELLISON (Minister for Justice and Customs) —Senator Bartlett says that it was a unanimous decision. Of course, it was, but if you read the judgments you will see that they differed in varying respects in relation to this matter. And often these cases are decided on technical points; there were technical points raised in these particular cases. And, as I have said previously, the chief justice did make those remarks that this decision was not representative and that argument was confined to the particular facts of the two applicants concerned. I think that for Senator Bartlett to say that broadly this was a condemnation of the Refugee Review Tribunal is in fact wrong and misleading.