Refugee test case collapses

By Thea Williams
The Australian, April 15, 2002

The legal challenge to the federal Government by the states over the jurisdiction for mentally ill asylum-seekers has collapsed after South Australian legal officials advised there was "zero prospect" of winning the test case.

A spokesman for Attorney-General Michael Atkinson said yesterday the state Government would not contest the constitutional test case in the Supreme Court today over the guardianship of a mentally ill Afghan asylum-seeker.

"They took the decision not to because there was little prospect of victory, because there was zero prospect of victory," he said.

The issue was brought by the South Australian Public Advocate, John Harley, when the Supreme Court last week granted him an injunction as guardian to remove the young asylum-seeker from an Adelaide psychiatric hospital into the community.

Qader Fedayee, 18, was transferred from Woomera detention centre to an Adelaide psychiatric hospital in February, diagnosed with depression and psychosis. He was due to be released last week but an application for a bridging visa was delayed.

It has become a constitutional test case for Immigration Minister Philip Ruddock. The Commonwealth Solicitor will argue in court today against Mr Harley's power as guardian and against the state court's jurisdiction to impose an injunction.

Mr Harley said that as one of the "protected persons" he was guardian for, Qader Fedayee was powerless and still in hospital while constitutional issues were debated in court.

"If we are successful, and this is why the Commonwealth is concerned, it could well set a precedent and the department (of Immigration) could be in grave difficulty with all the other people in Woomera and other detention centres," said Mr Harley.

In court last week sporting a black handkerchief in his breast pocket, telling anyone who asked "I'm in mourning for the Queen Mother", Mr Harley seemed an unlikely advocate for the most marginalised in society.

For the past two years, the flamboyant monarchist has been South Australia's Public Advocate and guardian for 160 "protected persons", those born with a mental disability, those with dementia, brain damage or mental illness.

In recent weeks, Mr Harley has shown he is not afraid to take on the powerful confronting the Catholic Church over pedophilia allegations and the federal Government over its detention policy.

On the surface, Mr Harley and Mr Ruddock have much in common both monarchists, Anglican and lawyers in their late 50s. Until last month, Mr Harley was also a Liberal Party member.

But after Liberal senator Bill Heffernan's use of parliamentary privilege to make allegations against Justice Michael Kirby, Mr Harley resigned.