Two Sri Lankan seeking refuge in Australia were held at Christmas Island, which is classified as an ‘excised offshore place’ under the Migration Act.  As they entered Australia through an excised offshore place, the Act attempts to deny them the opportunity to apply for a visa. The Sri Lankans therefore applied for official refugee status, so that they could get around this offshore processing exemption and apply for a visa, but this application was rejected. They were denied the opportunity to apply for a visa at all.

In November 2010 the  High Court found that the attempt by the legislature to place refugees on Christmas Island outside of the requirements of our legal system failed. An error of law was made when the decision maker did not treat the provisions of the Migration Act and the decisions of Australian courts as binding and, further, they failed to observe the requirements of procedural fairness.  The Court further confirmed that if the legislature is seeking to deny or defeat a right, interest, or legitimate expectation of a person, that the legislature must use plain words of necessary intendment.

In short, Australians cannot legislate away or avoid the reach of our legal system, even by taking their operations off shore, unless there is very specific legislation and even then, it must be both specific and necessary.  The ability to deny a fair trial in Australia is very limited, and in this instance even our immigration department failed to avoid this requirement.

As Coode & Corry are specialists in administrative law we often see rules of independent bodies and even legislation that attempts to do something very similar, to legislate away the requirements for a fair trial, including the right to legal representation.  This case is a good reminder that it is a very difficult, if not impossible, to achieve, and the Court does not take kindly to attempts to exclude its supervisory role.

 

independent bodies and even legislation that attempts to do something very similar, to legislate away the requirements for a fair trial, including the right to legal representation. This case is a good reminder that it is a very difficult, if not impossible, to achieve, and the Court does not take kindly to attempts to exclude its supervisory role.