High Court's Asylum Seeker decision: Government's response

The legal obstacles faced by the government are more than just a "hung parliament and hostile political environment".

In its recent decision on asylum seekers the High Court dealt with the Migration Act provisions relating to asylum seekers arriving in certain offshore parts of Australia (Christmas Island for example) and the scheme that prevents them applying for a visa unless given special permission to do so by the minister. The "Pacific  Solution" as it is known, the idea that people arriving by boat in ''excised offshore places'' should not be entitled to apply for refugee status and have no right to a fair hearing.

In an article published in todays Sydney Morning Herald Professor George Williams (UNSW) says:

"Despite some media reports, the High Court did not strike down any part of this scheme. It found the stripping away of legal rights from certain asylum seekers to be valid under Australia's constitution. The result was that Parliament acted within the law in creating a two-tiered system of processing asylum claims."

What the High Court had done was to apply the "well-known principles of legal interpretation to find that the Migration Act does not have the effect that successive governments have assumed. Their expectations that the act could not give rise to court appeals by disgruntled asylum seekers were false, it said. In fact, the court held, offshore asylum seekers can assert a limited right to natural justice."

The article canvasses three options for the government in responding:

• leave things as they stand

• amend the law and risk further adverse court decisions

• "ditch the whole idea of denying legal rights to asylum seekers who arrive in certain offshore parts of Australia."

The Professor argues option 3 is the most desirable. Do you agree? If not which option would you take? 

Read our previous post on this case.

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