Australia's asylum seeker policy upheld in court
A barrister and human rights advocate considers Australian court ruling on legality of PNG as an offshore processing centre.
Australia's asylum seeker policy has been upheld after a ruling by an Australian court.
The High Court has found Australia's declaration of Papua New Guinea as a regional processing country is constitutional.
The ruling comes following a challenge by an Iranian man who was transferred to PNG's Manus Island detention centre after arriving on Christmas Island in July last year.
A barrister, human rights and refugee advocate, Julian Burnside QC, has been watching the case and spoke to Sally Round about the significance of the decision.
JULIAN BURNSIDE: The significance of the ruling at its foundation is that the use of offshore processing is constitutionally valid in Australia as it has been implemented by the federal parliament. That's the legal consequence of it. It's regrettable but all the court can do is pass on the legal and constutional validity of the system. It's not a matter for the court to decide whether it is sensible or decent and I would say it is neither sensible nor decent.
SALLY ROUND: The judge found that the only statutory requirement for the declaration of a regional processing centre country was that it was in the national interest. Was that a surprise finding at all?
JB: No that's a reflection of the relevant section of the legislation. I think it is interesting to consider what might happen if the minister's declaration that it is in the national interest for a particular place to be used for offshore processing was ever challenged. I have grave difficulty thinking that the system we have in place at the moment could ever be regarded as serving Australia's national interest. Unfortunately the Minister for Immigration in Australia takes an extremely narrow, blinkered view of Australia's national interest. I suspect that what he thinks is it's in Australia's national interest not to receive any refugees. I don't think that is truly Australia's national interest.
SR: Where does this leave future challenges to the whole policy?
JB: There will be further challenges I'm sure. All of these challenges run into a problem that the parliament of Australia is at the moment pretty determined to mistreat boat people. Every now and then the High Court says well you haven't conformed to constitutional constraints. We have a pretty old fashioned constitution in Australia; constitutional constraints have nothing to do with human rights and so the commonwealth government if it wants to can simply abuse human rights as long as it does so in a way that's clear. Like many people in Australia I think it's an appalling thing that governments want to abuse human rights and get away with it but all the High Court can do is say well you succeeded when judged against the constitution or you didn't.
SR: So the hope for future challenges? You're involved in one aren't you?
JB: I don't like to discuss publicly cases that are on foot but I would say that really what needs to happen in Australia is for the country at large to wake up and say it's time for us to stop abusing human rights. It's time for us to stop being misled by false rhetoric which calls asylum seekers illegals and so on. I had a very interesting dinner with a South African judge last year who expressed horror at the way Australia is misconducting itself in matters of human rights. I remember in the 1970s when Australia was very critical of South Africa's abuse of human rights. It's interesting to see the wheel has turned.
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