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Submission to the National
Inquiry into Children in Immigration Detention from
Society of South Australia
25 July 2002 CK;rp
Human Rights and Equal Opportunity Commission
GPO Box 5218
I have been provided with a copy of the submission submitted on behalf
of the South Australian Coalition for Refugee Children. The Law Society
has been concerned for some time with the treatment of refugees and asylum
seekers. I enclose herewith a copy of the resolution of the Law Society
on these matters. I particularly draw your attention to the Society’s
position with respect to the detention of children.
The submission of the SA Coalition for Refugee Children is well researched
and the submissions have obvious force.
I commend the submission to you.
Chris Kourakis QC
That The Law Society agrees with the following policy positions previously
adopted by The Law Council of Australia:
1. The Law Society recognises that Australia has the power to decide who
may or may not enter or reside in Australia. This sovereign right is,
however, not absolute, and is tempered by international legal obligations
assumed by Australia.
2. Decisions in individual cases on entry and residence should be made
according to law.
3. The Executive government must observe in good faith its obligations
under Australian and International law.
4. In discharging the obligations referred to in paragraph 3, the Commonwealth
Government should commit to the following as general principles, which
should be departed from only for clearly articulated and compelling reasons:
(a) that legislation should operate uniformly across all Australian
(b) that legislation should not be retrospective.
5. The Law Society calls on the Commonwealth Government to remove privative
clauses in relation to the judicial review of migration decisions.
6. The Law Society calls on the Commonwealth Government to reintroduce
“class actions” for the judicial review of migration decisions.
7. The Law Society calls on the Commonwealth Government to return judicial
review of migration decisions to the Administration Decisions (Judicial
Review) Act 1977, along with the introduction of the following measures
designed to prevent baseless applications and to “weed out”
those that are made:
(a) undertaking further empirical study of applications for judicial
(b) introducing a requirement in migration matters to demonstrate a
prima facie case, or obtain leave from the court, in order to proceed
with a judicial review application;
(c) improving the quality of decision making in the migration tribunals;
(d) restoring legal aid funding for eligible applicants in migration
8. With respect to legal aid, that the power of the Commonwealth Government
to award contracts for the tendering of legal services be removed from
DIMA (the Department of Immigration and Multicultural and Indigenous Affairs)
and restored to appropriate Legal Services Commissions.
9. The Law Society calls on the Commonwealth Government to adopt a policy
that it should not seek costs against unsuccessful applicants in public
interest litigation where;
(a) the action of application has been brought in the public interest
and not for the financial gain of the applicant;
(b) the court does not criticise the action as having been unreasonably
10. That The Law Society expresses its support for the lawyers providing
pro bono assistance to detained asylum seekers, and, noting that there
are proper avenues for expression of concern about lawyers’ behaviour,
rejected unfounded, general criticism of their professional competence
by the Commonwealth and/or the Minister for Immigration.
11. That The Law Society call on the Government to review the practice
of unlimited mandatory detention of asylum seekers.
12 .That The Law Society calls for the immediate release of all unaccompanied
minors, and parents/spouses and children in family groups where a parent/spouse
has already been released on a temporary visa and to utilise community
options for family groups that include women and children.
Updated 14 July 2003.