By Barrie Cassidy

Updated November 11, 2010 15:35:00

The High Court is the Grinch who stole Christmas Island.

The notorious Australian territory in the Indian Ocean, 2,600 kilometres north-west of Perth, is no longer a legal sanctuary for Australian governments trying to limit the rights of asylum seekers.

The excision system that decreed those held on the island would not have access to the same legal rights as everybody else, is now redundant.

The court has found all asylum seekers must be treated the same, whether they arrive by plane or boat, and whether they arrive at Christmas Island or the mainland.

It is no longer open to the Minister for Immigration to refuse to review their cases simply on the basis that they were being held offshore.

The two men who took the case to the High Court - alleged supporters of the paramilitary Tamil Tigers - argued they had been denied natural justice. The Government denied them refugee status because they judged the accounts given to them did not sit well with information they had independently gathered in Sri Lanka. Once that judgement was made, the asylum seekers had no further avenue to review. Not anymore.

The judgement has ramifications for scores of people who are sitting in camps across Australia awaiting deportation. Thousands of others yet to be assessed now know they suddenly have an appeal process open to them that - like the circumstances of the two Tamils - could take them all the way to the High Court.

Former immigration minister in the Howard years, Philip Ruddock, has called it "a diabolical" decision that will present the courts with a case load they will struggle to handle.

Opposition foreign affairs spokeswoman Julie Bishop says the decision signals the total collapse of the Gillard Government's policy. But it does in fact call into question the approach of consecutive governments. The Refugee and Immigration Legal Centre is now calling on the Government to respect the High Court's decision and not be tempted to legislate to make excisions lawful. The Government will carefully examine every aspect of the ruling before it decides what to do about it. But if it decides the new arrangements are untenable, then they might need to go cap in hand to the Coalition for the support they will need in the Parliament.

It could be the first case of the two major parties getting together to provide the numbers against the expressed wishes of The Greens and at least one or two of the independents.

That would be an uncomfortable arrangement for the Government. But the alternative is far worse. Asylum seekers will be able to string out their claims for years. Detention centres are already full. The boats just keep coming. And whenever the Government tries to open up new facilities, hostilities break out in the local communities. Western Australia complains bitterly that the rest of the country is not taking its fair share. Such social disturbances will only worsen. And the Government has shown itself to be extremely sensitive to the concerns of those troubled by the whole issue.

Few politicians in Australia have worked to put the whole question of asylum seekers and how they impact on Australia into a realistic and global context. So now when the courts make their lives so much more difficult, they have nowhere to turn, but further to the right.

The Gillard Government will desperately try and find a way through the legal mess. Presumably, the Opposition will initially sit back and watch them squirm. But perhaps not for long, because who knows how soon the problem will be theirs to manage once again.

Barrie Cassidy hosts Insiders and Offsiders on ABC1.

Tags: community-and-society, immigration, government-and-politics, federal-government, law-crime-and-justice, courts-and-trials, rights, human-rights, refugees, australia

First posted November 11, 2010 15:27:00