Amnesty International has called on the Australian Government to do away with “non-statutory” decision making processes which discriminate against asylum seekers who arrive by boat, following a landmark High Court judgment delivered today.

The decision relates to test cases, brought by two asylum seekers, which sought to challenge the validity of processing asylum seekers outside of Australian law and denying them access to the Australian court system. The decision upholds all asylum seekers’ rights to procedural fairness, judicial review and equal treatment before the law.

“The highest court in Australia has today confirmed that all asylum seekers are entitled to the same legal treatment, and that life-and-death decisions about their fate cannot be made without proper legal scrutiny. This is a fact that refugee advocates and human rights groups have always maintained, but that many politicians have sought to ignore,” said Dr Graham Thom, Refugee Coordinator for Amnesty International.

The international human rights organisation welcomed the court’s finding that procedural fairness must be upheld in all cases, but acknowledged that many questions remain as to what the impact of the decision will be on the current systems of excision and offshore processing.

In 2001 the Australian Government legislated to excise a number of territories from Australia’s migration zone. The effect of this move was to afford boat arrivals fewer rights, including subjecting them to a process that has no legal basis under Australian law and whereby their ongoing detention is not subject to judicial scrutiny.

“Amnesty International calls on the government to seize the opportunity provided by today’s ruling and rid Australia, once and for all, of the non-statutory processing system in place for boat arrivals. Instead, the government should move to treat all asylum seekers equally,” said Graham Thom.

“Amnesty International has consistently condemned the Australian Government’s decision to set up two separate processing systems, one of which blatantly discriminates against boat arrivals. Today’s ruling provides the government with an opportunity to rectify that grave and long-standing error of judgment.”

Amnesty International has campaigned vigorously against the policies of excision and offshore processing since their introduction, arguing for a uniform system of assessment of claims from all asylum seekers, regardless of country of origin or mode of arrival. The organisation maintains that excision, offshore processing, and mandatory and remote detention are inconsistent with Australia’s international human rights obligations and should be abolished.

“The excision policy has done major damage to Australia’s reputation internationally, and has undermined respect in this country for the principles of refugee protection. This ruling provides an opportunity for the government to start the process of rectifying that damage and according all asylum seekers equal access to the legal protection to which they are entitled,” said Graham Thom.

“In light of this finding the Gillard Government cannot continue to discriminate against desperate people who come to Australia by boat seeking our protection. The government must apply this ruling in good faith, and must not seek to absolve itself of responsibility by enacting new legislation that undermines fundamental human rights.”

“Amnesty International offers its congratulations to the individuals who brought this landmark case, and to their legal team. Test cases such as these serve to hold governments to account for their actions.”