High Court rules Malaysian swap deal unlawful

THE Federal Government's Malaysian people swap deal has been ruled unlawful by the High Court. Chief Justice Robert French said the court ordered Immigration Minister Chris Bowen and his Department be restrained from sending asylum seekers to Malaysia. "The declaration made ... was made without power and is invalid," Justice French said.

The Government had wanted to send 800 asylum seekers to Malaysia in exchange for 4000 already processed refugees. The decision effectively stymies the Government's so-called Malaysia Solution.

A 5-2 majority of the Full Bench ruled Mr Bowen's declaration that Malaysia was an appropriate country to which to send asylum seekers was invalid. The court found that a country must be bound by international or domestic law to provide protection for asylum seekers to be an appropriate destination.

"The court also held that the Minister has no other power under the Migration Act to remove from Australia asylum seekers whose claims for protection have not been determined," a summary of the court's judgment read.

Australian National University international law expert Donald Rothwell said the fact that Malaysia was not a signatory to the UN Refugee Convention was likely "a key factor" in the court's decision. Professor Rothwell said the decision could not be appealed but that the Government may seek other ways to revive the policy.

Refugee lawyers also argued that sending unaccompanied minors to Malaysia would breach the minister's duty of care as their legal guardian to act in their best interests.

But Commonwealth Solicitor-General Stephen Gageler had argued the Government could lawfully declare Malaysia a safe third country even though it had no domestic or international legal obligations to protect asylum seekers.

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Surge in visa success rates 'luring' boatpeople to Australia

SUCCESS rates for refugee claims have leapt from 30 to 70 per cent in just six months, sparking accusations the government is encouraging boatpeople by virtually guaranteeing them visas.

Senior Immigration Department officials conceded at a recent parliamentary committee hearing that the success rate for asylum claims now stood at 70 per cent, not far below its record high of more than 90 per cent.

With the High Court to hand down its ruling on the Malaysia Solution tomorrow, the figures prompted agencies to warn the Department of Immigration's high success rate was acting as an incentive to asylum-seekers to get on a boat.

Senior department official Garry Fleming told a parliamentary committee earlier this month the primary acceptance rate for asylum-seekers who arrive by boat stood at 70 per cent.

Mr Fleming said the speed at which refugee claims were being processed meant that "a good articulation" of people's refugee claims was not being heard at their initial assessment, resulting in a high rate of overturn at review. "That is now seeing primary recognition rates in the order of about 70 per cent," Mr Fleming told the committee.

The figure does not take into account unsuccessful asylum claims that are overturned on review, suggesting the final success rate could be considerably higher.

The rate at which refugee claims for boatpeople are upheld is seen as a key element in the factors driving refugee movements.

Early last year the Rudd government was warned its refugee success rate was "out of whack" with other countries and was acting as a "major pull factor". The warning was contained in confidential advice sent to government prior to the decision to freeze Afghan asylum claims for six months and Sri Lankan claims for three months. At the time the advice was sent the refugee success rate was more than 90 per cent.

According to department statistics the primary success rate was just 27 per cent for the first six months of 2010-11, meaning it has soared more than 40 per cent since the beginning of the year.

Refugee Council chief executive Paul Power said "clearly there have been issues in the quality of the decision-making". "That's the only conclusion one can reasonably draw," Mr Power said yesterday. "The fluctuations of people from the same countries and in similar circumstance being rejected is baffling to anyone outside the department."

Opposition immigration spokesman Scott Morrison said he found the department's explanation for the wildly fluctuating success rate "unconvincing". "Clearly if your recognition rates are higher than the rest of the world (asylum-seekers) are more likely to say yes to a people-smuggler and get on a boat," Mr Morrison said. "With primary acceptance rates going from the high 90s to the 20s then back up to 70 per cent, it reveals a process that is all over the place."

A spokesman for Immigration Minister Chris Bowen said refugee decisions were made on a "case-by-case" basis. "As we have said before, driving forces will vary from time to time and numbers will rise and fall in different parts of the world at different times," the spokesman said.

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Tony Abbott signals a return to individual work agreements under revamped IR policy

TONY Abbott has given his strongest signal yet that the Coalition is considering a form of individual bargaining under a reworked industrial relations policy.

The Opposition Leader today called for “more freedom” in Australian workplaces, and mounted a case for non-union agreement-making between workers and their employers.

“I think we ought to be able to trust businesses and the workers of Australia to come to arrangements that suit themselves,” he told 3AW's Neil Mitchell.

Mr Abbott, who declared Work Choices “dead and buried” at the last election, said greater workplace flexibility was required to address the productivity slump that was dragging the economy down.

His comments follow those of former prime minister John Howard, who last night lashed the Gillard government's tightening of workplace rules. “It's blindingly obvious that one of the worst mistakes Julia Gillard has made is to re-regulate the labour market,” Mr Howard told ABC TV. “It is affecting our productivity and it will therefore affect our competitiveness.”

Mr Abbott said Mr Howard was “essentially right”, but he baulked at pre-empting the Coalition's election policy, and said he wasn't signalling a return to Work Choices. “We've got a lot of problems and I want to be a pragmatic problem solver,” he said.

Statutory individual contracts, known as Australian Workplace Agreements, were the centrepiece of Work Choices, with Mr Howard previously admitting he went too far by axing the no-disadvantage test that ensured workers could not be left worse off under the agreements.

Labor's industrial relations regime only allows individual agreements, in the form of common law contracts, for workers on higher incomes.

Liberal frontbencher Malcolm Turnbull today said the Coalition should wait for the government's Fair Work laws to fail before unveiling its industrial relations policies. “There's some merit in holding fire for a little while longer,” Mr Turnbull said.

He said the opposition had argued from the outset that the Fair Work changes would make Australian industries less productive and increase costs for business. “I believe our warnings have been borne out by experience. Others may not be so convinced,” he said.

Mr Turnbull said the opposition would be in a much better position to frame arguments about the need to reintroduce a measure of flexibility to workplace laws closer to the election.

A review into Labor's Fair Work Act will begin early next year amid criticisms of the laws from Reserve Bank governor Glenn Stevens and the Productivity Commission.

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Fair Work clauses 'too risky' for small business

SMALL businesses are too afraid to take advantage of confusing "flexible" contracts, a peak body said.

The Individual Flexibility Arrangements were introduced as part of the Fair Work Act – which replaced the controversial WorkChoices legislation. They allow employees to negotiate changes in their base pay rate to alter work conditions.

Workplace Relations Minister Chris Evans said small businesses were not taking advantage of these clauses which encourage productivity. “I’d suggest we look at how we can take advantage of the provisions that are in the Fair Work act, many of which have not been used properly yet,” he told ABC Radio yesterday.

But Council of Small Business Australia workplace relations Grace Collier said there was a lack of information available to employers about flexibility clauses and award wage requirements. “It’s impossible to find out beyond any doubt what the rules are,” she said.

“A small business cannot ring up the Government and find out exactly what award they should be paying their staff on. The Government will give you an indication but it’s nothing more than an indication, it’s not legally binding.”

Ms Collier said it was “impossible” for an employer to check that they were meeting award wage requirements. “There’s no lodgement or checking service by the Government on these [Individual Flexibility Agreements],” she said. “It’s quite confusing and if you get it wrong not one checks it and tells you it’s fine. You might be prosecuted six years later because you ripped the employee off unknowingly.”

A spokesman for the Fair Work Ombudsman said that employers don’t need to be afraid to use flexible work arrangements. “If advice was provided by the Fair Work Infoline to an employer, and it acted in good faith on that advice and subsequently we found ourselves in the circumstance of auditing or investigating the workplace, then obviously we would take that into account,” he said. “If, however, we were to find that information supplied to us at the time was wrong, then clearly our obligation would be to point that out and expect the matter in question to be rectified.”

He also encouraged small business to speak to industry associations and employer organisations for specific advice.

There is no requirement for employers or employees to lodge IFAs with the Fair Work Ombudsman, but a Best Practice Guide on creating and using IFAs is available under the resources tab on the Fair Work Ombudsman’s website at www.fairwork.gov.au.

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New weapon in cane toad fight

SCIENTISTS may have uncovered the 'silver bullet' in the battle against WA's cane toad invasion.

Researchers from the University of Sydney have found that cane toads release a chemical which stunts the growth of competing tadpoles and reduces their chance of survival. Older tadpoles release their poison on new cane toad egg clutches to better their own chance of survival.

Cane toad expert Professor Richard Shine from the University of Sydney said the species ‘speak’ to each other using pheromones which don't appear to affect native animals and this newly discovered toxin could be exploited and used as the latest weapon in the fight to stop the invasion.

“If you wanted to control an invading species the ideal silver bullet might be some major chemical that affects that species but doesn’t have any affect on any others,” Prof Shine said. “It turns out cane toads have spent the last several million years designing such a chemical themselves because competition is such a big deal between cane toads.”

The invaders, which kill native species, are 30km west of Kununurra and moving south after leaving a trail of destruction across Queensland and the Top End.

Prof Shine made the discovery while studying waterborne chemical cues used by tadpoles from the Northern Territory. His team found that tadpoles exposed to the chemical for even a short period of time grew to only half the size of their unexposed counterparts.

"We don't know where they are producing the chemical from, they do have some specialised cells in their skin that produce chemicals... the chemical responsible may be one that we have already been looking at and identified from earlier work we have been doing," Prof Shine said.

Native to Central and South America, cane toads were introduced to Queensland in 1935 to control beetles. While the species was largely unsuccessful at reducing cane beetles, the animals thrived in Australia, evolving into bigger, stronger creatures and wiping out native species as they spread across the country.

Prof Shine said the next step is to work out how the toads make their poison and if it affects native species.

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