Government slapped down for ‘pointless’ asylum seeker battle

Leading social justice lawyers Maurice Blackburn Lawyers and the National Justice Project have slammed the government for launching frivolous and expensive legal battles against asylum seekers after the Federal Court rejected its claim that it did not have jurisdiction in the area.

Maurice Blackburn Lawyers and the National Justice Project have been involved in a long legal battle about whether over 50 refugees who required life-saving medical treatment could take action in the Federal Court to ensure they received treatment.

Since December 2017 in excess of 50 separate legal proceedings have been commenced in the Federal Court of Australia to facilitate the transfer of refugees and people seeking asylum from Nauru or Manus to Australia for urgent medical care. In every case the applicant has been successful and brought to Australia for medical treatment.

The majority of these cases were commenced as injunctive proceedings and remain before the Federal Court as ongoing legal matters. Countless more families were brought to Australia as a result of legal intervention outside of court processes.

The Minister for Home Affairs and the Commonwealth tried to argue that section 494AB of the Migration Act 1958 (Cth) prevented the Federal Court from having the power or jurisdiction to hear and continue hearing these cases.

The Federal Court rejected the argument, ruling that it did have jurisdiction to hear and determine the injunctions and the substantive matters for refugees and people seeking asylum on Manus and Nauru.

However, the decision also means that there are some limits to the jurisdiction. Lawyers are currently reviewing the decision to determine the best way forward for those matters.

Maurice Blackburn’s Jennifer Kanis said the government’s attitude meant asylum seekers had no choice but to fight for their rights through the courts.

“The legal proceeding at the centre of this decision were only initiated when we felt we had run out of other options. These legal proceedings were costly, time consuming, absorbed large amounts of court resources and required hundreds of hours of pro bono work from our lawyers, paralegals and support staff. Counsel routinely had to be engaged, often after hours, and they too acted on a pro bono basis,” Ms Kanis said.

“Not only is it wrong to use a legal process to determine medical treatment, it is also incredibly inefficient, but that was the only option the Federal Government left for countless asylum seekers when they refused to provide urgent medical assistance for people in Australia’s care.

“The government’s approach to this litigation will see further delay in the delivery of much-needed treatment for those concerned. It will also clog up the courts and places an adversarial process at the centre of what should be a discussion about health and medical need.

“It is hard to imagine that most Australians would proudly own a system where the decisions about who gets medical attention are not made by doctors – but are instead subject to a process governed by lawyers and unelected government officials.

“That is a situation that would be deemed utterly unacceptable by most Australians, and it is equally as unacceptable for those people who have been entrusted to Australia’s care,” she said.

What do you think? Is the Government being unnecessarily cruel in its treatment of asylum seekers?

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The perspective appears to be that we are comparatively a fairly generous country. We give at a comparatively high per capita rate and we take people in likewise.

There is a balance to be achieved, it is a balance that is the Australian people's responsibility and right to find. Given that Australia has only a drop in the world's ocean of people the consequences of not finding that balance could be catastrophic.

In this light and with comparatively huge populations in the vicinity I wonder if we should be, in honesty and integrity, a signatory to the Refuge Convention. Does it make any difference to us? I doubt it. We would still take in those and the variety of those we think we are able to no more or less.

I have attempted to promote the role of the UN in this for many years putting the view to Andrew Downer and previous ministers that security is a world problem and that we need to work to strengthen the UN role in providing it particularly in relation to displaced people.

There are four sides of primary importance here. The plight of the people involving the immediacy of response and the resumption of a type of normality and familiarty in their lives. The capacity of host countries and any providor in providing support. The welfare of the source country, its return to productive and healthy co-existence and the re-intergration of the resoures it has already invested in. Strategic development capable of thrwarting future disruption.

The key that responds to all of these areas of interest is that shelter and protection needs by provide by the UN at the nearest available venue. First the UN would use its good offices to ensure that security is solemnly inviolate. Secondly it would provide de facto state passports enabling displaced people to carry on legitimate social and business movement almost immediately. They can enjoy education and contribute to humanity's quests. Thirdly, development of these facilities (sometimes, perhaps usually small de-facto city states) and their infrastructure could be designed with the future value to the host country in mind. Within these, displaced people could trade and attempt to run business as usual. They also remain close enough to maintain pressure on their home country to change and gain by their inclusion. Finally, they are not greatly separated from their familiar lifestyle, food preference or for that matter remaining families. They can return as soon as it is safe to do so. Finally also, they still bear some responsibity for getting their home country on track not as carping people stuck in the past and from the sides.

This management regime, would not prohibit orderly movement between countries and although it does not completely isolate peoples and the countries that have developed them from hen picking by other countries, it provides an alternative to just accepting that. It would bring the real cost of people movement home to the whole world, ensure some countries are not swamped and people are not lost in the process of finding security. 

Yes pie in the sky comes to mind but we probably thought that when we handed over state power to a federal government, we probably still think it when some of us wontonly and misguidedly dream of amalgamating councils. Humanity must find means of casting off the ugliness that has people becoming and staying displaced. At the same time we need to find means of respecting the local differences among us. (Amalgamating Council's by the way will never do that.)




Yes, there should be border control. Yes, we should stop the boats. But if we have to deport someone this is NOT the way it should be done. I have seen pictures of Jewish children during the holocaust being torn from their mothers. Is this what Australia has been reduced to? This could have been done in a humane way considering these people are not terrorists, they did no harm to anyone and are strongly supported by their community in Australia. Hang your heads in shame. Dutton needs to go.

Banjo...yes, it would have been far more humane for the mother to have walked onto the plane in a calm manner, so as not to distress her two little girls. Instead she chose to scream out and refuse to walk; hence she was carried. It has been shown that these people are not considered genuine refugees. If we are constantly bombarded into allowing people to stay every time they put on a show, then there will be a lot more shows put on. And I wonder how you propose we support the boat loads that will head for our shores each and every day? Will you be okay when your pension or medical supports are cut in half because there's not enough resources to go around?  How about you give up 100% just as a show of support? If we allow this family to stay, what about the other 1500 that have been returned to Sri Lanka because they were not eligible...should we round them up and bring them back? 


Obviously you did not read my post before mouthing off.

To recap, I said I support border control and stoppng the boats. Read and understand please.

Secondly, I am not on a pension of any sort, I work two full days a week and plan to never stop. I also have private health insuance. So you see Meg, I am not very reliant on the government. My taxes pay to support all sorts of people.


Banjo...I read your post very well, thanks. The Holocaust was a terrible thing, and far from what went on with this family. In your urgency to reply, you seem to have missed my point. As it is, there is huge need here in so many areas...homelessness, mental health, aged care etc...Australia simply does not have an endless supply of resources to take in all who want to come here.  

There are more people here now who were born in other countries than there are Australian born people (so I am told by the media). Australia has changed from the days when it was dominated by Anglo Saxons. I went to Sydney recently and loved the mix of ethnicities there. This is the future for many, possibly all countries down the track as we develop a global, rather than “tribal” nationalistic view of our world. Upsetting for white supremacists no doubt, hence the increase in their numbers. Expect much turmoil, already begun (witness Brexit) while these changes take place, possibly over many, many years. 

If compassion leads the way it is our best guide forward. Australia as many knew it last century is already gone. You can’t fight against the ride with it. 

All we need from our government is efficient, fast security checking before issuing visas. Also, deportation laws for law breakers. Once those two things are in place there is no reason to fear anyone who comes here be it by boat or other means. They are all coming in by plane from other countries anyway - go to any capital city and check it out.

I need to add that I think most immigrants are very keen to work and get ahead. Go to Sydney or any capital city and check out the ethnicity of the majority of workers you come across. I guarantee you will come across more Asians, middle Easterners and Europeans than Ozzie borns.

True what you say Ny19. I live in in the Western suburbs of Sydney and it's "Let's spot the Aussies". These shop owners never hire Australians, only their own. Tradesmen are also hired only by their own people. My Vietnamese neighbour tells me to try her carpenter, providing I pay cash. I don't even know if they are licenced. They are all out to fleece you. At Paddy's Market my friend wanted to buy a blouse, the Asian lady said, her eftpos machine wasn't working and to pay cash. We then went to a Chinese restaurant and was told to pay cash only as their eftpos wasn't working either., something sounds a bit fishy. 

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