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Thursday, 17 June 2010
Page: 5818


Mr McCLELLAND (Attorney-General) (10:09 AM) —In this matter, Justice Hayne in the High Court held a directions hearing on 16 of the 17 matters on 4 June 2010. His Honour made procedural orders putting in place a timetable for the filing of evidence and amended applications. His Honour listed both matters for a further directions hearing on 25 June 2010. His Honour indicated the first available date for a substantive hearing before the full court of the High Court would be in the week of 23 August 2010. However, I am not sure that that date has been allocated by the court. I think there is still some discussion between the parties and the court about that matter.

It seems that the court is likely to identify two cases as essentially representative of the issues in dispute in the number of cases that have been filed. Again, there is some negotiation between the parties. The basis of the claims is a challenge to the validity of the refugee status assessment and the independent merits review process applying to offshore irregular maritime arrivals. I cannot comment on the specifics of the issues raised in the proceedings. Regarding the issue of class actions, the Immigration Act specifically precludes class actions; hence, the filing of the individual matters.

Regarding the issues in dispute, I am advised in accordance with the non-statutory refugee status assessment procedures, which were introduced by the former government in 2001 as part of the excision arrangements, that these applicants’ protection claims were thoroughly examined by an independent decision maker from the Department of Immigration and Citizenship. These claims were considered on a case-by-case basis and each person was found not to be owed Australia’s protection; hence, they have taken court action. These decisions were in turn reviewed by an independent reviewer in accordance with the independent merits review process, introduced by the Rudd government, to ensure greater fairness and integrity in the offshore refugee status assessment.

The government’s position, which we believe is sound but obviously these matters are determined by the court, is that if an offshore entry person is moved from Christmas Island to the mainland it is simply a case of transferring detainees from one place of immigration detention in Australia to another place of immigration detention. The person’s status as an offshore entry person does not change as a result of that transfer. That was based on legislation introduced by the former government.

One of the applicants in the case is, as I understand it, currently on Christmas Island. So in that sense the issue about whether the people are in Australia or on Christmas Island has not been dissected. The challenge is to the process, as opposed to where the people are currently located. Obviously these issues will be discussed in the court case.