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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

NSW 1042

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.

Yours sincerely

Chris Kourakis QC


Migration/Refugee Policy


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

territory; and

(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.