Category Archives: Immigration and refugees

Lock them up and throw away the key?

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There is quite a bit of current public controversy over refugees indefinitely held in immigration detention as a result of adverse ASIO security assessments which they cannot effectively challenge. Secret evidence provisions in ASIO regulations mean they can be denied all knowledge of the reasons and supporting evidence for an adverse assessment. The fad for secret evidence provisions had its genesis in reaction to 9/11, but gained momentum from State government reactions to the activities of criminal bikie gangs.

In Gypsy Jokers Motorcycle Club Inc v Commissioner of Police 1, despite arguments from the bikie gang that provisions of WA “anti-fortification” legislation offended the Kable doctrine, the High Court held that the taking of secret evidence did not offend fundamental notions of judicial power. It is difficult to conceive of a more basic aspect of natural justice than the right to know what is alleged against you and therefore to effectively defend yourself. Secret evidence provisions have been upheld previously (on grounds of unacceptably compromising the integrity of ongoing investigations or sources of criminal intelligence), but they have usually at least allowed the defendant’s counsel to know the evidence and be able to argue against it.

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  1. (2007) 234 CLR 532 ↩

Riding the asylum seeker merry-go-round

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Gillard government – Not a time for political point-scoring but the sinking is all that mongrel Abbott’s fault for refusing to vote for our Malaysia Solution amendments.

Coalition -  Scott Morrison says “the tragedy confirmed the Coalition’s worst fears” but restrains himself from expressly blaming Labor until tomorrow, when he’ll assert for the umpteenth that it would never have happened but for Labor’s abandonment of Saint John Howard’s  Nauru and temporary protection visa policy.  Morrison will embrace the safe bet that a supine media will fail to point out that consistent strong DIAC advice is that the Nauru Solution simply won’t work nor notice that the tiny island nation has had three different prime ministers in the last three weeks, the first of whom resigned after corruption allegations which are unsurprising to anyone who remembers that Nauru survived for some years after the guano ran out by turning itself into a tax haven and laundering billions plundered by the Russian Mafia.

Convulsive conspiracy theorist Tony Kevin  instantly and despite a complete lack of evidence claims conspiracy and “cover-up” by ASIO and Kopassus to sink the boat deliberately to frighten and deter asylum seekers (viz re-run of his SIEV X conspiracy theories for which there was also no evidence).  David Marr can be expected to launch into a prissily sanctimonious version of the same refrain in the next couple of days.

Ian Rintoul of the Refugee Action Coalition and Sarah Hanson-Young of the Greens claim it’s both major parties’ fault for “demonising” people smugglers and failing to realise that the best policy would be to make it easier for them to use safe vessels.  If only those heartless government bastards didn’t confiscate the smugglers’ boats and burn them, they’d be able to charter really big and seaworthy vessels (like old cruise liners for instance) and make even bigger profits transporting the yearning masses to Australia in thousands at a time.

Peter van Onselen makes the most sense on Twitter:

“Bottom line is the arguments of the simplistic left & right on this issue don’t provide answers & moralizing about deaths at sea won’t help.”

I still argue that some version of the Malaysia Solution with adequate assured human rights safeguards + an expanded Australian humanitarian migration target of 20,000 per year (now official Labor policy) would be the least bad ex tempore solution, but the chances of Malaysia agreeing to adequate safeguards (because it fears making itself a magnet for asylum seekers in the guise of waiting room for Oz migration) or Abbott voting to enable such an approach (despite urgings from even the Murdoch press) are remote.  Merry Christmas?

A post-Malaysia asylum seeker policy

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I simply can’t understand the strategic or even tactical thinking (if any) behind the Gillard government’s decision to pursue a legislative revival of the Malaysia Solution.  Neither the Coalition nor the Greens were ever going to support it, nor were many voters going to spend enough time actually thinking about the issue to realise that Tony Abbott’s position is not only cynically destructive but logically absurd and unworkable.  Of course the same is true of his climate change “policy” but no-one seems worried about that either.

What Gillard should have done was reluctantly accept from the outset that the High Court’s decision had effectively doomed the Malaysia Solution at least in the immediate future.  Given that this is what all the experts were saying anyway, persuading people on that proposition shouldn’t have been a big ask.  Then she and Bowen could have (and still should) set about constructing a workable policy framework around onshore processing, perhaps also taking advantage of Abbott’s willingness to wave through a revival of Nauru/Manus Island offshore processing merely to be able to say “nah nah nah , told you so”.  Anyway, here’s my rough stab at a post-Malaysia Solution asylum seeker policy:

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Labor’s asylum seekers stance – die on your feet!

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A comment by Chris Lloyd on my post about last week’s High Court decision brings into sharp relief why it will be a high risk strategy for the Gillard government to adopt a policy of wholly onshore processing of boat-arriving  (and by definition visaless) asylum seekers.  That especially applies if applicants are accommodated in the community after health, identity and security clearances rather than in mandatory universal detention, even though that’s the way most countries in the world treat asylum seekers and the way the Refugee Convention specifies.  Chris comments:

I honestly believe that if we did what Ken suggests we will have 20,000 arrivals in 2012 and 200,000 in 2013. There is simply no limit to the number of refugees – loosely defined – who will come here if PR is guaranteed. Who the hell would wait in a camp?

Of course, no-one can absolutely guarantee that Chris’s scenario won’t occur.  All that can be said is that it’s highly unlikely in the long run (although in the short term people smugglers might offer drastically discounted passage in a bid to break the government’s nerve).  Britain has a much more difficult job in defending its borders against asylum seekers than Australia.  You can swim the Channel at a pinch, trains and boat and planes connect it to Europe every few minutes, and it’s geographically close to the primary asylum seeker-generating countries of Africa and the Middle East.  Moreover, Britain has long allowed asylum seekers (visaless or otherwise and irrespective of mode of arrival) to remain free in the community while their applications are processed, once they have passed initial health, identity and security clearances .  And yet Britain’s total number of asylum seeker applicants has fallen from 33,960 in 2004 to 24,250 in 2009 (I don’t have last year’s figures):

The annual asylum figures for 2009 show that overall applications fell 6% to 24,250 with 27% of decisions resulting in official permission to stay, 17% given full refugee status. During 2009 a total of 64,750 failed asylum seekers were deported or left Britain voluntarily – 5% fewer than the previous year.

A total of 28,000 people were held in UK Border Agency detention centres last year, including 1,065 children.

Britain has toughened up its asylum seeker policies in recent years but still basically adheres to the Refugee Convention expectation that asylum seekers will not be imprisoned during assessment except for a good, specific reason.  Thus it is reasonable to project that UK numbers represent an upper bound to likely Australian asylum seeker numbers if we adopt similar policies to most other western countries (i.e. community-based processing).  Indeed it is unlikely that our numbers will approach these levels on an ongoing basis. WE are a remote island continent far away from the places that generate most refugees.  In the context of an overall Australian migration program involving 200,000-300,000 migrants per year (including 457 work visas), this is a drop in the ocean.  Moreover, it is evident from the British figures that the success rate drops as total numbers of asylum seekers increase. Britain’s success rate is just 27% and has been at about that level for many years, whereas Australia’s has generally been above 70%.  There is nothing in the Refugee Convention,  broader human rights principles or commonsense (or last week’s High Court decision) that prevents any country including Australia from assessing refugee applications rigorously, especially for those who arrive without ID and cannot independently establish their identity.

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Driving the final nails into a political coffin

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On any view yesterday’s High Court decision holding the Malaysia Solution to be unlawful is a smashing blow to the Gillard government and an equally smashing win for asylum seekers and the people smugglers who capitalise on their desperation.  In the slightly longer term it also poses a thorny policy question for the now inevitable Abbott Coalition government.  The decision may well render any renewal of the Howard government’s Pacific Solution effectively pointless.

By a 6:1 majority (Heydon J dissenting) the Court held that the Minister lacked legal power to send the 42 asylum seekers (and by extension any future asylum seekers) to Malaysia for refugee assessment and processing. It was a decision based on administrative law and statutory interpretation grounds rather than constitutional law issues.  Four Justices (Gummow, Hayne, Crennan and Bell JJ) adopted asylum seeker senior counsel Debbie Mortimer’s most audacious position, namely that:

  1. the question of whether Malaysia was a “safe third country” for the purpose of the Migration Act 1958 was a “jurisdictional fact” i.e. a factual situation which must exist prior to any power in the Minister to send asylum seekers there for assessment;
  2. this jurisdictional fact could not exist unless the country concerned was legally bound under its own domestic laws and/or international law to provide protection in a Refugee Convention sense, to provide proper assessment of refugee claims, and to protect basic human rights standards for all returned asylum seekers; and
  3. the existence of the  jurisdictional fact of safety also requires that the actual practices and procedures of the country in question are effective in securing that safety.

Factual preconditions 1 and 2 to Ministerial power at least did not exist in Malaysia, and indeed the Minister did not even claim that they did (nor could he given that the Arrangement with Malaysia expressly stated that it was not legally binding on Malaysia).

French CJ and Kiefel J denied that the factors above could be regarded as jurisdictional facts, but held that nevertheless their absence meant that the Minister had made a “jurisdictional error of law”  in concluding that Malaysia was a safe third country.  He had misconceived the legal question he was required to address, namely whether Malaysia could be regarded in law as a safe third country.  At least as the issues and reasoning were applied in this case, it made no real difference whether the Minister’s error was classified as one  of fundamental fact or of law.

The Court also held for the asylum seekers on the guardianship issue relating to unaccompanied minors, but that was almost irrelevant given the major premise.

The big long term question is whether the Court’s decision renders any plausibly deterrent form of offshore processing effectively impossible in future.  Gummow, Hayne, Crennan and Bell JJ adverted expressly to the Howard government’s Pacific Solution:

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Legal heaven on a stick

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I’ve long been puzzled why Michelle Grattan is seen as an eminence grise of the Parliamentary Press Gallery. Unlike her corpulent male counterpart Laurie Oakes, who still occasionally produces major scoops and penetrating political analyses, I can’t remember the last time Grattan produced anything other than bland, predictable group-think. Her latest piece on yesterday’s High Court interlocutory injunction restraining implementation of the Gillard government’s Malaysia Solution until a full hearing in a couple of weeks is a case in point.

Grattan begins with a perfectly reasonable observation:

The High Court has agreed the case against it should be heard – but it has not pronounced on the issues.

But she then instantly segues without even a semblance of analysis into regurgitating the current Press Gallery spin on anything the Gillard government does:

It’s a shambles. When, with the Commonwealth Solicitor-General floundering over his paperwork yesterday, Justice Hayne said that it was ”unsatisfactory that this matter proceed in this half-baked manner”, he could have been summing up the Gillard asylum seeker policy.

What does Grattan mean by this? That Hayne J was somehow passing judgment on the Gillard government’s competence? In fact his remark is the sort of theatrical “grumpy judge” schtick that judges inflict on counsel on a daily basis in our courts, as any experienced journalist well knows.

That the mere fact that refugee advocates have launched a High Court challenge of itself somehow proves that the government’s Malaysia Solution is a “shambles”? In fact, just about every policy initiative relating to asylum seekers over the last 20 years, under the Hawke, Keating, Howard, Rudd and now Gillard governments has been challenged through the courts. You wouldn’t expect anything else. These are desperate people with little to lose and everything to gain from a successful challenge, and with refugee advocates ever willing to provide free representation. Some challenges succeed but most lose. This latest challenge will probably fail, although it isn’t completely hopeless (as I discuss below).

Is Grattan instead suggesting that the government should be taking some other policy approach? If so, what might it be? Abandoning mandatory detention of asylum seekers and adopting an open door policy, as most refugee advocates seem to assert? That might make sense in an abstract policy sense, but in the real world it would be a recipe for certain political suicide. Reverting to the Howard government’s Pacific Solution, as Tony Abbott mindlessly repeats as the sure-fire solution to “stop the boats”? In fact, as I’ve pointed out previously, the Pacific Solution has had its day. The people smugglers and their clientele now know very well that Australia ultimately had (and will have in the future if the policy is reinstated) no practical choice but to grant protection visas to most of the genuine asylum seekers sent to Nauru.

Moreover, the judicial review grounds now being advanced against Gillard’s Malaysia Solution will, if successful, almost certainly invalidate any attempt at revival of the Nauru Pacific Solution as well. This is a point that doesn’t seem so far to have dawned on any of our Press Gallery luminaries (although a commenter to Grattan’s article pointed it out). Exactly like Howard’s Pacific Solution, the legislative basis for the Malaysia Solution lies in the “safe third country” provisions found in s 198A of the Migration Act 1958 (Cth).
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Asylum seekers – an update

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As ABC 7:30 highlighted last night, it appears that the Gillard government is about to formally sign the deal with Malaysia that will see boat-arriving asylum seekers returned to the back of the queue in that country without processing.  Assuming that UNHCR accepts it (apparently the price of acceptance of the deal by Labor’s Left faction) it will represent a huge step towards resolving one of the major causes of Labor’s plummeting popularity.  It’s also a sound policy response, as I’ve argued previously.  I explore additional arguments in this post.

In fact the so-called Malaysia Solution has already been extremely successful in “stopping the boats”, even before it actually comes into effect.  Asylum seekers are arriving by boat at less than half the rate of last year, and a major reason for that must surely be the Gillard government’s pre-emptive announcement of the Malaysia Solution in late April.

However, as 7:30 observed:

But the deal takes effect from when it’s signed, so that means the 407 asylum seekers who’ve arrived here since May, when it was first flagged, are in legal limbo.

That makes it all the more important to conclude a deal with PNG for a permanent offshore detention facility there.  We haven’t heard much about progress on that front recently, probably because of Sir Michael Somare’s illness and retirement from public life.  Now Kevin07 is crook with heart trouble too.   Maybe Julia should just bite the bullet, swallow her pride and do a deal with Nauru now they’ve signed the Refugee Convention.

On a related front, detained asylum seekers continue to demonstrate both on Christmas Island and in Darwin.  An earlier story about the Darwin situation raises an issue I’ve been meaning to discuss for some time:

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