Due process and rule of law as human rights: The High Court and the "offshore" processing of asylum seekers

Abstract

A central message delivered by the High Court in Plaintiff M61/2010E v Commonwealth; Plaintiff M69 of 2010 v Commonwealth is that Australia’s Constitution and common law tradition do provide some guarantees against administrative unfairness and the arbitrary use of power, even in the absence of a bill of rights. The case is another example of the Australian courts facing down attempts to restrict judicial oversight of immigration decision-making. This time, the focus was on the system for processing asylum claims outside of Australia’s "migration zone". In a unanimous judgment, the High Court ruled that two Tamil asylum seekers denied refugee protection on Christmas Island did have a right to have their determinations made in accordance with the rules of procedural fairness and general principles of law. The authors examine the implications of the ruling for both the current regime and plans for the establishment of a regional processing centre in East Timor.