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High Court's asylum decision allows 'fair' he -

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STEVE CANNANE, PRESENTER: For his take on today's High Court decision, I'm joined by barrister and
human rights advocate Julian Burnside, who's in our Melbourne studio.

Julian Burnside, welcome to Lateline.


STEVE CANNANE: Now you weren't involved in this case, but you've been involved in other cases in
relation to refugee law. What do you think are the major ramifications of this decision?

JULIAN BURNSIDE: Well, the most important point of it is that if Australia is going to deny people
the right to seek protection or to get a protection visa in this country, the process by which
that's decided has to be a fair process.

Now, I'm actually surprised at the Opposition reacting the way they have done because I think most
Australians would say that if someone engaged by the Government is going to make a life-and-death
decision in relation to a person, well then they should at least be fair.

And I was a bit surprised also at Scott Morrison saying, "well, you know, you don't need appeal
rights because bona fide asylum seekers, bona fide refugees," he said, "don't need to appeal
because they get a yes"... well the problem is if the process isn't fair, they may get a no when
they ought to get a yes.

STEVE CANNANE: How often has that been the case when there's been a no at the beginning and a yes
later down the track?

JULIAN BURNSIDE: Oh, quite often. In - I think in about 40 per cent of cases where a departmental
officer has said no, the Refugee Review Tribunal has later said yes, and even though the ability to
appeal from the Refugee Review Tribunal to courts is very limited, I think those appeals succeed in
about 10 per cent of cases or more.

And, don't forget, getting it wrong in relation to a claim for protection may mean a person loses
their life.

STEVE CANNANE: We've just heard Scott Morrison also say that the decision was about changes that
went on when Labor was in power in 2008. He said it's not about changes that the Coalition made to
the Migration Act in 2001. Is he right?

JULIAN BURNSIDE: I don't agree with that assessment. The problem arises under the tail end of the
Pacific Solution legislation which the Coalition brought in in 2001, and part of that was that they
excised bits of Australia from the migration zone and said that if anyone lands in those excised
bits, like Christmas Island, then they're not allowed to apply for a protection visa.

And under the previous government they could be carted against their will to Nauru where they would
languish for years whilst the Government waited for some other country to take them.

Now, what Minister Evans did in 2008 was to say, "well, we'll have this informal non-statutory
procedure to assess whether or not I'll let them apply for protection". And what the High Court has
said is that that informal non-statutory procedure, with all of the consequences that it has, has
to be fair.

And that means that the court is able to intervene if the process isn't fair. And again, I think
most Australians would reckon it's a reasonable thing for a person whose rights are at stake and
whose life may be at stake, that that person should be treated fairly.

STEVE CANNANE: Could the Government legislate its way around this High Court decision?

JULIAN BURNSIDE: Ha ha. I'm not going to offer any opinion about how that might be done.

STEVE CANNANE: But they could?

JULIAN BURNSIDE: Um, I think it would be difficult. I don't think they could circumvent it

They might be able to take some of the force out of it. But I really do hope that they won't try,
because I agree with the point that you made to Scott Morrison: why is it reasonable that a person
who claims asylum having arrived by air should be - should have greater legal protection than a
person who arrives here by boat?

When you look at the recent history of Australia, far more people who arrive here by boat turn out
to be fair dinkum refugees than people who arrive by plane and ask for asylum.

Over the last 15 years, on average, about 90 per cent of boat people turn out to be fair dinkum
refugees, whereas only about 20 per cent of people arriving by plane seeking asylum turn out to be
genuine refugees, and it's not hard to figure out why.

Because it is a very dangerous voyage, as Scott Morrison never tires of pointing out, and you've
got to be desperate if you're going undertake that voyage.

Why are people desperate? Because they're fair dinkum refugees and they'll do anything they have to
escape persecution. And frankly, I think most Australians would do the same thing. If they were in
the same position, what would they do? They would probably jump on a boat and try and get to

STEVE CANNANE: What impact has - will this High Court decision have on the court system itself.
Will it clog up the courts?

JULIAN BURNSIDE: Well, it may cause a bubble as first, but I would hope that in response to this
the Government will make sure that the process it puts in place is demonstrably fair, and if it's
demonstrably fair, well then it's very likely that there will be not too many people who seek to
appeal. I think that's not an unreasonable assumption to make given the level of success that most
people have.

STEVE CANNANE: And how far could these appeals go back? Could we be seeing cases going back as far
as to 2001 when the Migration Act was amended?

JULIAN BURNSIDE: No, I think for practical purposes only people who are still in Australia will
have a practical right to challenge the adverse decisions.

STEVE CANNANE: One of the criticisms of detention under the Howard era was that people were in
detention for too long, sometimes for three or four years.

If you have a system where there's endless appeals going on and the court system is clogged up,
could you be revising a time when people are in for long periods, creating tension, creating mental
illness, leading to a counter-productive situation?

JULIAN BURNSIDE: Well that depends on whether you assume that a person who's waiting for a decision
has to remain in detention all that time. Now, I can't think of any good reason why a person should
remain in detention after they have had the basic health and security checks.

It's purely a matter for the Government to decide whether it wants to keep people in detention
indefinitely until they get an outcome at the end of any appeal that they might have.

STEVE CANNANE: But you'd have to have a major policy shift for that to happen and so the major
likelihood is that they would be stuck in detention for a long period of time?

JULIAN BURNSIDE: Well, you know, Senator Evans' announcements in July, 2008 did suggest that the
Government would have a new philosophy of immigration detention, and I hope that they will actually
start to apply that new philosophy.

You know, earlier today I think I heard one member of the Opposition say, "well, look, you know,
this is going to be terribly expensive because there's going to be all these appeals". Well,
offshore processing is incredibly expensive. The use of Nauru is 10 to 20 times as expensive per
head as processing a person if they are staying in Villawood or in Baxter or in Curtin even.
Holding people on Christmas Island is much more expensive than holding them in detention on the

And of course releasing them into the community on bail-type conditions to make sure that they
stick around for removal if necessary, holding them in the community is much less expensive than
holding them in detention, and it's also more humane and it also avoids the inevitable mental
health consequences when people are held indefinitely in detention.

STEVE CANNANE: Scott Morrison just told us that he's confidence that the High Court decision would
have no impact on the Coalition's policy of offshore processing in Naura. Do you agree with his

JULIAN BURNSIDE: I think there is a fairly interesting argument that even if they are held in Nauru
for processing that the decision-making could be subject to the effect of this High Court ruling.
It's not automatic, but I think he's too confident about that.

STEVE CANNANE: What about the Government's proposed processing centre in East Timor, could that be
subject to this decision?

JULIAN BURNSIDE: Ah, it depends on how it's set up. And, you know, the idea of an East Timor
processing centre has some possible merits, depending on how it's done. The crucial thing is, first
of all, that the processing has to be fair, and I would be very interested to hear some member of
the Opposition say, "we do not think that people ought to be treated fairly when they are applying
for protection".

And the second thing is there has to be a guarantee of re-settlement once people are assessed as
genuine refugees. The problem with the Pacific Solution, apart from the fact that it involved
exploiting Nauru, which is essentially bankrupt and at the moment doesn't even have a functioning
government, the difficulty with that is that it left people in limbo for years even after they had
been assessed as genuine refugees.

You know, there were people who were picked up from the Tampa in 2001 who were held on Nauru until
2006 until they were then eventually brought to Australia.

Now I can't think of any good reason why people who were ultimately found to be refugees should
have been held on a desert island in the middle of the Pacific at enormous public expense rather
than doing the obvious thing and bringing them to Australia since they had already arrived in an
Australian territory at Christmas Island.

STEVE CANNANE: Julian Burnside, we'll have to leave it there, but thanks for talking to us.