Tampa law loses its punch after ruling
By Cynthia Banham Sydney Morning Herald February 5 2003
The Federal Government will consider amending its Tampa legislation after the High Court yesterday upheld the laws, but said they did not stop asylum seekers from appealing against unfair decisions in the courts.
Both sides in the case - the Government and the lawyers for the Bangladeshi asylum seeker mounting the landmark challenge - claimed partial victories in what one legal commentator described as a "very politic" decision by the court.
A separate ruling handed down yesterday rejected the appeal of the Bakhtiari family, who claim to be from Afghanistan, but had their refugee applications rejected after a finding that they were actually from Pakistan.
Justices Mary Gaudron and Michael Kirby dissented.
But in a unanimous decision, the seven judges - including Justice Gaudron in one of her last rulings on the bench - said the "privative clause" set out in the so-called Tampa legislation was not unconstitutional.
That clause, central to the bill passed on the eve of the 2001 federal election in the wake of the Tampa incident, sought to prevent asylum seekers from challenging decisions of the Refugee Review Tribunal.
While not striking the clause down, however, the court said it could not have the effect of removing the constitutionally guaranteed right of any person from appealing against a decision of a public servant when they had made a "jurisdictional error" - for example, an error of law or bias.
That right was "a means of assuring to all people affected that officers of the Commonwealth obey the law and neither exceed, nor neglect, any jurisdiction which the law confers on them".
Solicitor Nigel Dobbie, who acted for the asylum seeker, said the ruling rendered the Tampa legislation "a Clayton's" law.
Human rights lawyers and refugee advocates last night applauded the court's decision.
Simon Rice, the president of Australian Lawyers for Human Rights, said the decision was a "victory for the rule of law and for the principles of democracy".
Reflecting the mixed result, the Government was ordered to pay 75 per cent of the other side's legal fees.
The Immigration Minister, Philip Ruddock, said he was "pleased that the court has affirmed what I always thought was the case, that is, the privative clause would be constitutionally valid".
While he said the decision was "clearly a win" for the Government, he said he would take advice from his department "as to whether or not we need to perhaps aid the courts with some advice as to what might constitute 'jurisdictional error' or not".
While University of NSW law professor George Williams, who appeared as a barrister in the case, conceded "we didn't get everything we wanted", he said the court upheld the "key reason" the challenge was brought.
"We wanted recognition of the rule of law principle, that decisions made by the Federal Government officials can be challenged on certain grounds in the High Court - there are certain things the constitution guarantees and they focus on the proper conduct of Government officials," he said.
Federal Labor MP Duncan Kerr, who also appeared as a barrister, said the decision meant his client and others in like circumstances "will always always have the right to go to the High Court of Australia to test the lawfulness or otherwise of decisions of the Commonwealth".