Patients benefit from higher staff levels
Julie Robotham, SMH
November 25, 2010
ADEQUATE numbers of well-qualified nurses make a demonstrable difference to the speed of patients' recovery and their likelihood of complications, a growing body of international research clearly shows.
In the latest study, published last month, researchers from the Connecticut Children's Medical Centre found premature babies in neonatal intensive care units achieved higher blood oxygen levels - linked to lower brain-damage risk - when there was a higher number of nurses to infants on the ward.
Earlier this year US doctors found intensive care patients were at higher risk of their ventilator tubes becoming dislodged if they were cared for at a ratio of one nurse to three patients instead of the more widely recommended 1:2.
Advertisement: Story continues below The NSW Nurses' Association's call for a ratio of 1:4 for most ordinary surgical and medical wards is based on a large survey of US hospital patients, by Linda Aiken from the University of Pennsylvania school of nursing.
Professor Aiken examined how patients nursed in a 1:4 ratio fared compared with those who shared one nurse between eight patients. She found people in the latter group were 30 per cent more likely to die.
But Christine Duffield, associate dean of research in nursing faculty of the University of Technology, Sydney, said the 1:4 recommendation, ''should only ever be the floor, not the ceiling,'' and higher numbers of more highly qualified nurses would inevitably benefit patients.
Professor Duffield's 2007 study of the state's nursing workforce found nurse-to-patient ratios were inconsistent between hospitals and across the working day - with as many as 12 patients for each registered nurse during the night shift.
But the situation was likely to have deteriorated since then, she said, because of NSW Health's policy of using a greater number of less-qualified enrolled nurses and assistants in nursing.
Thursday, November 25, 2010
HOSPITALS FACE MORE ACTION
Louise Hall, SMH, 25.11.10
NURSES have pledged to shut down hospital beds next week if the state government does not meet their demands for mandated nurse-to-patient ratios.
More than 4000 nurses walked off the job yesterday and voted unanimously to continue industrial action unless the government agrees to consider introducing nurse staffing ratios in medical, surgical, emergency and palliative care wards, rehabilitation and inpatient mental health units, operating theatres and community health.
The nurses' union says the mandated ratio of one nurse to every four patients introduced into Victorian hospitals 10 years ago resulted in a safer environment for patients, improved staff morale and reduced patient complaints.
Advertisement: Story continues below The assistant secretary of the NSW Nurses Association, Judith Kiejda, said while mandated staffing ratios were expensive to fund, Victorian hospitals ''have not gone broke''.
She accused the government of failing to meaningfully discuss the union's claim despite attempts to negotiate with NSW Health since June.
''If the government won't fund positions to appropriately staff the public health system, then we will reduce the public health system to cope with the staff they will pay for,'' Ms Kiejda.
Intensive care, critical care, paediatrics and oncology wards and emergency departments would be exempted from the industrial action, she said.
Yesterday's strike took place despite a ruling by the Industrial Relations Commission that it be called off and calls from the government for the nurses to return to the negotiating table.
The Health Minister, Carmel Tebbutt, said a wage rise of 3.9 per cent in the first year and 3 per cent in the second year was served on the association last month. The offer was based on continued use of a ''workload tool'' to determine staffing levels based on the number of patients on a ward and how sick they are.
''Ratios can be a very inflexible way of dealing with staffing and workload in a modern hospital,'' Ms Tebbutt said, but the government is ''willing to talk to nurses about all elements of their claim with regards to wages and conditions and workload''.
Yesterday's strike forced hospitals to defer about 500 patients scheduled to undergo elective surgery, NSW Health said. Of these, half have been given a new date before Christmas.
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NURSES have pledged to shut down hospital beds next week if the state government does not meet their demands for mandated nurse-to-patient ratios.
More than 4000 nurses walked off the job yesterday and voted unanimously to continue industrial action unless the government agrees to consider introducing nurse staffing ratios in medical, surgical, emergency and palliative care wards, rehabilitation and inpatient mental health units, operating theatres and community health.
The nurses' union says the mandated ratio of one nurse to every four patients introduced into Victorian hospitals 10 years ago resulted in a safer environment for patients, improved staff morale and reduced patient complaints.
Advertisement: Story continues below The assistant secretary of the NSW Nurses Association, Judith Kiejda, said while mandated staffing ratios were expensive to fund, Victorian hospitals ''have not gone broke''.
She accused the government of failing to meaningfully discuss the union's claim despite attempts to negotiate with NSW Health since June.
''If the government won't fund positions to appropriately staff the public health system, then we will reduce the public health system to cope with the staff they will pay for,'' Ms Kiejda.
Intensive care, critical care, paediatrics and oncology wards and emergency departments would be exempted from the industrial action, she said.
Yesterday's strike took place despite a ruling by the Industrial Relations Commission that it be called off and calls from the government for the nurses to return to the negotiating table.
The Health Minister, Carmel Tebbutt, said a wage rise of 3.9 per cent in the first year and 3 per cent in the second year was served on the association last month. The offer was based on continued use of a ''workload tool'' to determine staffing levels based on the number of patients on a ward and how sick they are.
''Ratios can be a very inflexible way of dealing with staffing and workload in a modern hospital,'' Ms Tebbutt said, but the government is ''willing to talk to nurses about all elements of their claim with regards to wages and conditions and workload''.
Yesterday's strike forced hospitals to defer about 500 patients scheduled to undergo elective surgery, NSW Health said. Of these, half have been given a new date before Christmas.
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NURSES AND PATIENTS NEED RATIOS
Jenny Haines, former General Secretary,NSW Nurses Association 1982 to 1987.
NSW nurses need ratios. Nurses Australia-wide need ratios. Victoria has had ratios for the assessment of their nursing numbers per shift now for 10 years, and they successfully attracted 2650 nurses back to the nursing workforce in the first year of the ratios 2000/1.
The Californian Nurses Association, after a long running, and sometimes vindictive dispute with the Governator of Calfornia, Arne Scwharznegger, has ratios, and they in conjunction with nursing organizations in the other American states are taking their campaign for ratios nationwide. The Governator or Gropinator as the California Nurses call him, for his predeliction for close contact with women, tried at one point to close down the nurses registering body. Mind you, the California Nurses did try to sell Arne on eBay, and when it was pointed out to them that they couldn’t sell the Governator, they responded that he had already been bought and sold!!
Ratios in NSW will mean that medical surgical wards will be staffed according to the following ratios:
Morning shift: One nurse per four patients + RN in charge
Afternoon shift: One nurse per four patients + RN in charge
Night shift: One nurse per seven patients
The skill mix for each ward or unit will include a minimum of 85 per cent Registered Nurses for each shift. In terms of clinical support, the ratio specified above does not include the following positions or classifications: Nursing Unit Manager, Clinical Nurse Educator, Clinical Nurse Consultant, Nurse Practitioner, administrative support staff and wardspersons.
The current Secretary of the NSW Nurses Association Brett Holmes put it this way when launching the campaign for ratios in March 2010
"The extension of ratios into NSW is also a major initiative in terms of national healthcare reform. No real discussion about reform can occur without acknowledging the need to provide sufficient staff and funding for those required staffing levels. The issue goes to the heart of how any so-called national ‘efficient price' for a hospital service or procedure is set."
"Therefore, any work currently being done on costing public hospital services must develop scenarios that take this nurse-to-patient ratio claim into account. “
And patients need ratios. Patients need the reassurance that there is some science to the method of staffing wards and units and that it is not just based on whatever meager budget is left over for nurse staffing.
Those bureaucrats and politicians who go white at the mention of the cost of ratios for nurses - $400 million a year for the next 4 years - should consider this:
“Victoria’s public hospitals have recorded a combined financial surplus for the sixth successive year, Health Minister Daniel Andrews said today. “The hospital
annual reports, tabled in Parliament, confirm the Brumby Labor Government has positioned Victoria’s hospitals to continue delivering high quality services
to the community,” Mr Andrews said. “The hospitals are operating in surplus in the face of record demand.” (Statement by Victorian Health Minister, Daniel Andrews, 16 September 2010.)
Health system bureaucrats and politicians should also take into account the following factors:
1. The amount that has been saved by the downskilling of the nursing workforce over the last 10 -20 years.
2. The amount that has been saved through not providing adequate educational support to that downskilled workforce.
3. The amount that has been saved through the flattening of nursing management structures.
4. The amount that has been saved through the closure of too many beds in NSW.
5. The amount that has been saved through increased productivity and efficiency due to those bed closures and the need to expedite patient care within recommended guidelines.
6. The amount that has been saved through nurses working excessive overtime and never getting a chance to take time in lieu, which is supposed to be available under the award.
7. The amount that has been saved through the contracting out of ancillary services and the need for nurses to supervise the unskilled workers employed by the contractors.
8. The introduction of user pays for all services on hospital campuses and the costs to nurses for those services
The ratios are part of a wages and conditions package currently being negotiated by the NSW Nurses Association with the NSW government. There are to be as yet unspecified offsets in that package. I doubt that any of the above listed factors will be taken into consideration by NSW Health or the NSW Government, but they should stop and take notice of the enormous sacrifices being made by NSW nurses to keep the NSW health system running. It is just as well nurses are the nice people that they are. Wharfies and miners of old would have walked off the job years ago.
NSW nurses need ratios. Nurses Australia-wide need ratios. Victoria has had ratios for the assessment of their nursing numbers per shift now for 10 years, and they successfully attracted 2650 nurses back to the nursing workforce in the first year of the ratios 2000/1.
The Californian Nurses Association, after a long running, and sometimes vindictive dispute with the Governator of Calfornia, Arne Scwharznegger, has ratios, and they in conjunction with nursing organizations in the other American states are taking their campaign for ratios nationwide. The Governator or Gropinator as the California Nurses call him, for his predeliction for close contact with women, tried at one point to close down the nurses registering body. Mind you, the California Nurses did try to sell Arne on eBay, and when it was pointed out to them that they couldn’t sell the Governator, they responded that he had already been bought and sold!!
Ratios in NSW will mean that medical surgical wards will be staffed according to the following ratios:
Morning shift: One nurse per four patients + RN in charge
Afternoon shift: One nurse per four patients + RN in charge
Night shift: One nurse per seven patients
The skill mix for each ward or unit will include a minimum of 85 per cent Registered Nurses for each shift. In terms of clinical support, the ratio specified above does not include the following positions or classifications: Nursing Unit Manager, Clinical Nurse Educator, Clinical Nurse Consultant, Nurse Practitioner, administrative support staff and wardspersons.
The current Secretary of the NSW Nurses Association Brett Holmes put it this way when launching the campaign for ratios in March 2010
"The extension of ratios into NSW is also a major initiative in terms of national healthcare reform. No real discussion about reform can occur without acknowledging the need to provide sufficient staff and funding for those required staffing levels. The issue goes to the heart of how any so-called national ‘efficient price' for a hospital service or procedure is set."
"Therefore, any work currently being done on costing public hospital services must develop scenarios that take this nurse-to-patient ratio claim into account. “
And patients need ratios. Patients need the reassurance that there is some science to the method of staffing wards and units and that it is not just based on whatever meager budget is left over for nurse staffing.
Those bureaucrats and politicians who go white at the mention of the cost of ratios for nurses - $400 million a year for the next 4 years - should consider this:
“Victoria’s public hospitals have recorded a combined financial surplus for the sixth successive year, Health Minister Daniel Andrews said today. “The hospital
annual reports, tabled in Parliament, confirm the Brumby Labor Government has positioned Victoria’s hospitals to continue delivering high quality services
to the community,” Mr Andrews said. “The hospitals are operating in surplus in the face of record demand.” (Statement by Victorian Health Minister, Daniel Andrews, 16 September 2010.)
Health system bureaucrats and politicians should also take into account the following factors:
1. The amount that has been saved by the downskilling of the nursing workforce over the last 10 -20 years.
2. The amount that has been saved through not providing adequate educational support to that downskilled workforce.
3. The amount that has been saved through the flattening of nursing management structures.
4. The amount that has been saved through the closure of too many beds in NSW.
5. The amount that has been saved through increased productivity and efficiency due to those bed closures and the need to expedite patient care within recommended guidelines.
6. The amount that has been saved through nurses working excessive overtime and never getting a chance to take time in lieu, which is supposed to be available under the award.
7. The amount that has been saved through the contracting out of ancillary services and the need for nurses to supervise the unskilled workers employed by the contractors.
8. The introduction of user pays for all services on hospital campuses and the costs to nurses for those services
The ratios are part of a wages and conditions package currently being negotiated by the NSW Nurses Association with the NSW government. There are to be as yet unspecified offsets in that package. I doubt that any of the above listed factors will be taken into consideration by NSW Health or the NSW Government, but they should stop and take notice of the enormous sacrifices being made by NSW nurses to keep the NSW health system running. It is just as well nurses are the nice people that they are. Wharfies and miners of old would have walked off the job years ago.
Friday, November 12, 2010
A GREAT DAY FOR FREEDOM
Richar Ackland, 12.11.10, SMH.
The High Court in Canberra yesterday delivered two decisions that struck at the heart of Australia's most divisive and politically-pedalled fears: refugees and criminal gangs.
It was a big day for justice, freedoms and rights. As a consequence, you can be sure the political mugging will be even more unrestrained and distorted.
In the organised crime case, the court by a six-to-one majority struck down the key component of the South Australian bikies legislation. The reasoning was clear - the legislation sought to dictate what magistrates were required to do in implementing decisions of the state government.
This is an exhilarating warning to governments from the highest court - don't trample on the judicial patch.
The vice in the legislation was that it sought to turn courts into rubber-stamps for decisions of the attorney-general and police commissioner. Magistrates were required to sprinkle holy water over the executive's attempts to restrict people's freedom of association if they were deemed to be engaging in ''serious criminal activity'' (even if they weren't).
It was not so much the attempt to control people's freedom of association that concerned the High Court. After all, numerous bits of law do that. It was the obligation that the legislation imposed on the courts to make control orders at the behest of government that was so upsetting.
It goes to the heart of chapter three of the constitution, the provisions that guarantee the independence of the judiciary and quarantine the government of the day from making ''judicial decisions''.
At the moment, chapter three is all we have by way of a national charter of rights. It is limited and its application is far from consistent but in the past couple of years it has been relied on by the High Court in a number of provocative ways.
In February, the court put a big hole in the NSW Industrial Relations Act by striking down the provisions that removed the right to appeal its occupational health and safety decisions to the Supreme Court. In August last year, it struck down the Australian Military Court because the legislation required it to exercise judicial powers without there being proper constitutional underpinning. A year ago today, the court scuttled elements of the NSW criminal assets recovery legislation because it used the word ''must'' in insisting the Supreme Court make orders to restrain bank accounts and other assets without the affected person being put on notice.
NSW has a bikie case that is awaiting a hearing in the High Court. The South Australian act was supposed to be the ''model'' gangs law, and NSW rushed to draw on its framework after the bikie brawl at Sydney Airport in March last year. Even though the police already had sufficient powers to deal with criminals and criminal organisations, the government of ''Red Hot'' Nathan Rees wheeled out its anti-gangs act and got it through Parliament pretty smartly. It drew heavily on the language of the Howard era's terrorism laws, with control orders and decisions made by judges who were deemed ''eligible''. There's plenty of room for the High Court, if it's in the mood, to find that this law, too, flies in the face of the chapter three protections, but you just never know.
Who was the hold-out in the South Australia case? No surprises there - Justice Dyson Heydon, who is more conservative than the Duke of Wellington. His is the lengthiest and most fascinating judgment, and a variety of authorities are cited, including Lenin.
In the refugee case, the court (unanimously) said that the offshore processing of asylum seekers had to be conducted with procedural fairness and according to law. The fact that the former immigration minister Philip Ruddock had tried to deny legal rights to possible refugees by containing them in black holes like Christmas Island did not excuse the ministerial obligation to observe binding decisions of the Australian courts or the Migration Act itself.
Ruddock's invention, we recently discovered, was the result of some creative discussion around his family dinner table.
Already the court's decision is being flagged by the ''stop the boats'' brigade as an open invitation to asylum seekers and people smugglers to overrun our borders.
Not quite. The broader challenges to the Migration Act and the minister's discretion on granting protection visas were not upheld.
The way in which chapter three and rules of procedural fairness are applied by the High Court are far from consistent. After all, the court has held that it is perfectly legal to lock up a person indefinitely without charge. It has also held that secret evidence can be used by courts to make decisions and that can be done without showing the evidence to the party adversely affected and having it properly tested.
Chief Justice James Spigelman of NSW, who would have been chief justice of the High Court had it not been for Kevin Rudd, said something last month that we all know, but least expect judges to say publicly: ''It is all too easy to dress up a conclusion, reached on other grounds, by selecting from the smorgasbord of maxims and principles of interpretation those which assist the achievement of the predetermined result.''
Yesterday was an emphatic statement by the High Court led by Robert French. Further, ministers ignore the law and the judges at their peril. That both major decisions were scheduled to come thudding down from on high on the same day rubs in the points even more forcefully.
justinian@lawpress.com.au
The High Court in Canberra yesterday delivered two decisions that struck at the heart of Australia's most divisive and politically-pedalled fears: refugees and criminal gangs.
It was a big day for justice, freedoms and rights. As a consequence, you can be sure the political mugging will be even more unrestrained and distorted.
In the organised crime case, the court by a six-to-one majority struck down the key component of the South Australian bikies legislation. The reasoning was clear - the legislation sought to dictate what magistrates were required to do in implementing decisions of the state government.
This is an exhilarating warning to governments from the highest court - don't trample on the judicial patch.
The vice in the legislation was that it sought to turn courts into rubber-stamps for decisions of the attorney-general and police commissioner. Magistrates were required to sprinkle holy water over the executive's attempts to restrict people's freedom of association if they were deemed to be engaging in ''serious criminal activity'' (even if they weren't).
It was not so much the attempt to control people's freedom of association that concerned the High Court. After all, numerous bits of law do that. It was the obligation that the legislation imposed on the courts to make control orders at the behest of government that was so upsetting.
It goes to the heart of chapter three of the constitution, the provisions that guarantee the independence of the judiciary and quarantine the government of the day from making ''judicial decisions''.
At the moment, chapter three is all we have by way of a national charter of rights. It is limited and its application is far from consistent but in the past couple of years it has been relied on by the High Court in a number of provocative ways.
In February, the court put a big hole in the NSW Industrial Relations Act by striking down the provisions that removed the right to appeal its occupational health and safety decisions to the Supreme Court. In August last year, it struck down the Australian Military Court because the legislation required it to exercise judicial powers without there being proper constitutional underpinning. A year ago today, the court scuttled elements of the NSW criminal assets recovery legislation because it used the word ''must'' in insisting the Supreme Court make orders to restrain bank accounts and other assets without the affected person being put on notice.
NSW has a bikie case that is awaiting a hearing in the High Court. The South Australian act was supposed to be the ''model'' gangs law, and NSW rushed to draw on its framework after the bikie brawl at Sydney Airport in March last year. Even though the police already had sufficient powers to deal with criminals and criminal organisations, the government of ''Red Hot'' Nathan Rees wheeled out its anti-gangs act and got it through Parliament pretty smartly. It drew heavily on the language of the Howard era's terrorism laws, with control orders and decisions made by judges who were deemed ''eligible''. There's plenty of room for the High Court, if it's in the mood, to find that this law, too, flies in the face of the chapter three protections, but you just never know.
Who was the hold-out in the South Australia case? No surprises there - Justice Dyson Heydon, who is more conservative than the Duke of Wellington. His is the lengthiest and most fascinating judgment, and a variety of authorities are cited, including Lenin.
In the refugee case, the court (unanimously) said that the offshore processing of asylum seekers had to be conducted with procedural fairness and according to law. The fact that the former immigration minister Philip Ruddock had tried to deny legal rights to possible refugees by containing them in black holes like Christmas Island did not excuse the ministerial obligation to observe binding decisions of the Australian courts or the Migration Act itself.
Ruddock's invention, we recently discovered, was the result of some creative discussion around his family dinner table.
Already the court's decision is being flagged by the ''stop the boats'' brigade as an open invitation to asylum seekers and people smugglers to overrun our borders.
Not quite. The broader challenges to the Migration Act and the minister's discretion on granting protection visas were not upheld.
The way in which chapter three and rules of procedural fairness are applied by the High Court are far from consistent. After all, the court has held that it is perfectly legal to lock up a person indefinitely without charge. It has also held that secret evidence can be used by courts to make decisions and that can be done without showing the evidence to the party adversely affected and having it properly tested.
Chief Justice James Spigelman of NSW, who would have been chief justice of the High Court had it not been for Kevin Rudd, said something last month that we all know, but least expect judges to say publicly: ''It is all too easy to dress up a conclusion, reached on other grounds, by selecting from the smorgasbord of maxims and principles of interpretation those which assist the achievement of the predetermined result.''
Yesterday was an emphatic statement by the High Court led by Robert French. Further, ministers ignore the law and the judges at their peril. That both major decisions were scheduled to come thudding down from on high on the same day rubs in the points even more forcefully.
justinian@lawpress.com.au
JUDGES SAFEGUARD LIBERTY
David Marr
SMH, 12.11.10,
UNANIMOUS decisions of the High Court are never an accident. Only every decade or so do all seven judges speak with a single voice on big issues of principle. It's their way of sending a blunt message to government. Their support for the Tamil asylum seekers M61 and M69 lays down the law about fair dealing for all refugees. But underneath it's about safeguarding liberty.
Everything in the case turned on the fact that they - like all boat people since mandatory detention was introduced by the Keating government in 1992 - were deprived of their liberty while their claims were assessed. One way of boiling down this dramatic decision to its essentials is this: the High Court will ensure the courts are always there to see that liberty is only lost according to law.
The judges appear to be making amends for what is widely regarded as one of the High Court's worst decisions. Five years ago a majority of the judges decided Ahmed Ali Al-Kateb, a Palestinian whose claim for refugee protection had been rejected, could be held in Australia in immigration detention for the rest of his life if no other country would take him off our hands. So shocking was that conclusion, that Al-Kateb was released from detention by the Howard government. They could not live with a rule they themselves had asked the court to make. Al-Kateb has since become an Australian citizen. But his name is in the law books marking an embarrassing low point in the High Court's valuation of liberty.
Advertisement: Story continues below
Asylum Seekers are transported to Christmas Island by barge. Photo: Allison Millcock
The tone and approach of the judges to the predicament of M61 and M69 could not have been more different. This was all about setting limits on governments acting alone to deprive people of their liberty.
A little history is required at this point. Back in 2001, Australia set up a deliberately second-class system for assessing refugee claims by boat people. About 14,000 have gone through that system which has never been fundamentally challenged until now. The architects of the scheme tried to exclude the courts by separating as far as legally possible the assessment of claims from the minister's role in granting visas. Assessments of visa claims were said to be "non statutory" investigations - hence outside the control of the courts - and only once they were complete did the minister enter the picture. Whether he granted a visa at that point was something said to be absolutely at his personal discretion. Once again, the courts were supposed to be excluded.
They might work, said the court, except that while each case was going on - and here the judges used italics to indicate the crucial importance of these few words - "the claimant was detained". And that changes everything. Loss of liberty, said the seven judges, can only be for lawful purposes. No one can be detained in ways beyond the supervision of the courts.
Technically, the High Court collapsed the distance between the assessors and the minister. The court found that despite claims to the contrary, the minister was there at the start directing the assessors to do their work. They are not independent of the law but caught up in the machinery of the Migration Act. The work of the assessors - but not the minister - can therefore be directed by the courts.
The ultimate upshot? Shock, horror: all asylum seekers have to be dealt with fairly and according to law. And governments of all persuasions are on notice that the court now takes far more seriously its traditional role as guardian of liberty.
MAINLAND DETAINEES
Darwin detention: 449
Alternative accommodation in Darwin: 448
Sydney detention: 164
Alternative accommodation: 29
Melbourne detention: 19
Alternative accommodation: 41
Brisbane detention 38
Alternative accommodation: 87
Weipa Qld detention: 291
Perth detention: 33
Alternative accommodation: 23
Leonora, WA, detention 199
Curtin, WA, detention 747
Port Augusta detention 59
Adelaide alternative accommodation: 2
* Alternative accommodation includes community detention and transit housing
SOURCE: IMMIGRATION DEPARTMENT AS AT NOVEMBER 5
Poll: Do you think asylum seekers who approach Australia by boat and are processed offshore should have access to Australian courts?
Poll form
Please select an answer.
Yes
No
View results
Yes69%
No31%
Total votes: 2243.
Would you like to vote? You will need Cookies enabled to use our Voting Feature.
Poll closes in 3 days.
Disclaimer:
These polls are not scientific and reflect the opinion only of visitors who have chosen to participate.
SMH, 12.11.10,
UNANIMOUS decisions of the High Court are never an accident. Only every decade or so do all seven judges speak with a single voice on big issues of principle. It's their way of sending a blunt message to government. Their support for the Tamil asylum seekers M61 and M69 lays down the law about fair dealing for all refugees. But underneath it's about safeguarding liberty.
Everything in the case turned on the fact that they - like all boat people since mandatory detention was introduced by the Keating government in 1992 - were deprived of their liberty while their claims were assessed. One way of boiling down this dramatic decision to its essentials is this: the High Court will ensure the courts are always there to see that liberty is only lost according to law.
The judges appear to be making amends for what is widely regarded as one of the High Court's worst decisions. Five years ago a majority of the judges decided Ahmed Ali Al-Kateb, a Palestinian whose claim for refugee protection had been rejected, could be held in Australia in immigration detention for the rest of his life if no other country would take him off our hands. So shocking was that conclusion, that Al-Kateb was released from detention by the Howard government. They could not live with a rule they themselves had asked the court to make. Al-Kateb has since become an Australian citizen. But his name is in the law books marking an embarrassing low point in the High Court's valuation of liberty.
Advertisement: Story continues below
Asylum Seekers are transported to Christmas Island by barge. Photo: Allison Millcock
The tone and approach of the judges to the predicament of M61 and M69 could not have been more different. This was all about setting limits on governments acting alone to deprive people of their liberty.
A little history is required at this point. Back in 2001, Australia set up a deliberately second-class system for assessing refugee claims by boat people. About 14,000 have gone through that system which has never been fundamentally challenged until now. The architects of the scheme tried to exclude the courts by separating as far as legally possible the assessment of claims from the minister's role in granting visas. Assessments of visa claims were said to be "non statutory" investigations - hence outside the control of the courts - and only once they were complete did the minister enter the picture. Whether he granted a visa at that point was something said to be absolutely at his personal discretion. Once again, the courts were supposed to be excluded.
They might work, said the court, except that while each case was going on - and here the judges used italics to indicate the crucial importance of these few words - "the claimant was detained". And that changes everything. Loss of liberty, said the seven judges, can only be for lawful purposes. No one can be detained in ways beyond the supervision of the courts.
Technically, the High Court collapsed the distance between the assessors and the minister. The court found that despite claims to the contrary, the minister was there at the start directing the assessors to do their work. They are not independent of the law but caught up in the machinery of the Migration Act. The work of the assessors - but not the minister - can therefore be directed by the courts.
The ultimate upshot? Shock, horror: all asylum seekers have to be dealt with fairly and according to law. And governments of all persuasions are on notice that the court now takes far more seriously its traditional role as guardian of liberty.
MAINLAND DETAINEES
Darwin detention: 449
Alternative accommodation in Darwin: 448
Sydney detention: 164
Alternative accommodation: 29
Melbourne detention: 19
Alternative accommodation: 41
Brisbane detention 38
Alternative accommodation: 87
Weipa Qld detention: 291
Perth detention: 33
Alternative accommodation: 23
Leonora, WA, detention 199
Curtin, WA, detention 747
Port Augusta detention 59
Adelaide alternative accommodation: 2
* Alternative accommodation includes community detention and transit housing
SOURCE: IMMIGRATION DEPARTMENT AS AT NOVEMBER 5
Poll: Do you think asylum seekers who approach Australia by boat and are processed offshore should have access to Australian courts?
Poll form
Please select an answer.
Yes
No
View results
Yes69%
No31%
Total votes: 2243.
Would you like to vote? You will need Cookies enabled to use our Voting Feature.
Poll closes in 3 days.
Disclaimer:
These polls are not scientific and reflect the opinion only of visitors who have chosen to participate.
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