The Federal Government's decision to allow offshore asylum seekers access to the appeal courts must be backed up by more funding for legal assistance, says the president of the Refugee Council of Australia.
John Gibson told Lawyers Weekly that while granting access to the appeals courts is "better than nothing", the government needs to go one step further and ensure that appellants have access to expert advice on the merits of their case.
"The crucial thing is the first stage, the advice stage," he said.
"If you don't have ... any legal advice at the crucial time, there is no doubt that people fall through the cracks ... Pressure should be put on the government to actually go that one step further and at least fund advice work through legal aid, or fund an increased level of advice from barristers."
The Minster for Immigration and Citizenship, Chris Bowen, last week announced that changes would be made to the refugee determination process for "irregular maritime arrivals", including giving them the right to appeal adverse decisions in the Federal Magistrates Court, then the Federal Court and, in some cases, the High Court.
The move came in response to a High Court decision, handed down on 11 November 2010, in which it was found that two asylum seekers detained on Christmas Island were wrongly denied the right to have the decision to deport them reviewed.
While it is anticipated that there will be a much greater number of appellants making use of the appeal courts, the government has not yet committed to providing any additional funding for legal assistance for appellants, despite the fact that two additional magistrates for the Federal Magistrates Court will be hired, at a total cost of $1.6 million.
However, Professor John McMillan AO has been asked by Bowen to conduct a review to consider possible options for enhancing efficiency - and minimising the duration - of the judicial review process, including consideration of options for the provision of "guidance" to appellants so as to aid the efficient operation of courts.
According to Gibson, if access to the courts is to be meaningful, the government should be looking to establish a nation-wide scheme under which all appellants can have the merits of their case reviewed.
"If somebody's case has got some merit, the only way of establishing that is by having funding for reputable and established barristers in the field to give that sort of advice," he said.
The changes will take effect from 1 March 2011 and McMillan's report is due to be handed to the government by the end of February 2011.