Legal heaven on a stick

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).

Section 198A empowers a Commonwealth officer to “take an offshore entry person from Australia to a country in respect of which a declaration is in force under subsection (3)”, which provides:

(3) The Minister may:

(a) declare in writing that a specified country:

(i) provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and

(ii) provides protection for persons seeking asylum, pending determination of their refugee status; and

(iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and

(iv) meets relevant human rights standards in providing that protection …

The arguments being deployed in the current challenge (as outlined in yesterday’s injunction application before Hayne J) mostly also apply to the Pacific Solution. The key arguments by Debbie Mortimer SC for the asylum seekers are:

That the Minister’s declaration under s 198A(3) is a legislative instrument within the meaning of the Legislative Instruments Act 2003 (Cth)

If the declaration is a legislative instrument (like regulations, rules, general orders, by-laws, ordinances etc) then it would have to be tabled in Parliament within 6 sitting days and would then be subject to Parliamentary disallowance. With the Greens opposed to Gillard’s policy on principle and Abbott opposing anything at all that Labor proposes, the declaration would almost certainly be disallowed if it had to be tabled in Parliament. This argument was never mounted against the Pacific Solution as far as I know, probably for the pragmatic reason that the Labor Opposition up until 2004 would have voted with the Howard government to support it anyway, while Howard had a majority in both Houses between 2004 and 2007. However, if the High Court were now to rule that a s 198A declaration is a legislative instrument, then any attempt by a future Abbott government to revive the Pacific Solution would almost certainly be blocked “tit for tat” by the combination of Greens and an embittered Labor Opposition in the Senate.

However I don’t think this review ground has much chance of success. The general definition of a “legislative instrument” is found in s 5:

(1) Subject to sections 6, 7 and 9, a legislative instrument is an instrument in writing:

(a) that is of a legislative character; and

(b) that is or was made in the exercise of a power delegated by the Parliament.

(2) Without limiting the generality of subsection (1), an instrument is taken to be of a legislative character if:

(a) it determines the law or alters the content of the law, rather than applying the law in a particular case; and

(b) it has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right. …

A s 198A declaration does not of itself determine or alter the content of the law, it merely effects a factual determination which empowers a discretionary exercise of power which may then affect a privilege or interest etc. I doubt that such an instrument would be held of itself to have the ”indirect effect” of affecting a privilege or interest etc., although it’s an arguable point (and no doubt one reason why Hayne J decided that there was a sufficiently serious question to be tried to justify the grant of an interlocutory injunction).

The listed subjects of the Minister’s s 198A(3) declaration are “jurisdictional facts” (or at least facts of whose existence the Minister must be “satisfied”)

As the High Court explained in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135:

The term ” jurisdictional fact ” (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion.

Judicial review is usually concerned only with errors of law committed by the executive government. Factual determinations are generally matters to be determined solely by the administrator in whom a discretionary power is reposed. However, the “jurisdictional fact” doctrine is an exception to that general principle, justified by the proposition that Parliament has conferred the power only if the factual preconditions for its exercise exist, and Parliament is unlikely to have intended that the administrator have an unreviewable ability to determine the existence or otherwise of his own power. There is a plausible but by no means compelling argument that the factors listed in s 198A(3) are jurisdictional facts. The practical significance of the “jurisdictional fact” doctrine is that a court on judicial review is not obliged to accept the Minister’s factual determination as to the existence or otherwise of a jurisdictional fact. The court is free to determine the question for itself and might well disagree with aspects of the Minister’s conclusion that Malaysia (or Nauru) is a safe third country, in which case the statutory pre-condition for exercise of the power of removal to Malaysia (or Nauru) would not exist. Even if the facts are expressed as ones of which the Minister must merely be subjectively satisfied, the court may still reject the Minister’s determination if it holds that “satisfaction” as to the required state of affairs was not reasonably open on the evidence.

However, French J (as he then was – he’s now the Chief Justice of the High Court) rejected the argument that the s 198A(3) factors could be regarded as jurisdictional facts in a 2007 challenge to the Pacific Solution:

So far as the ministerial declaration under s 198A(3) is concerned, the form of that subsection does not in terms condition the power to make a declaration upon satisfaction of the standards which are its subject matter. The form of the section suggests a legislative intention that the subject matter of the declaration is for ministerial judgment. It does not appear to provide a basis upon which a court could determine whether the standards to which it refers are met. Their very character is evaluative and polycentric and not readily amenable to judicial review. That is not to say that such a declaration might not be invalid if a case of bad faith or jurisdictional error could be made out. In my opinion, however, the argument against the validity of the declaration faces a significant threshold difficulty. It does not support the view that there is a seriously arguable case.

Hayne J appears to be slightly less dismissive of Mortimer’s jurisdictional fact argument, and even appeared to flirt with her most audacious version of it, namely that on a proper construction s 198A(3) should only be regarded as satisfied where the “safe” third country was legally rather than just politically and practically obliged to provide protection to returned asylum seekers. If that argument were accepted it would be fatal to the Malaysia Solution, because clause 16 of the agreement/arrangement expressly states:

This Arrangement represents a record of the Participants’ intentions and political commitments but is not legally binding on the Participants.

The following is the key exchange betweeen Hayne J and Solicitor-General Stephen Gageler SC:

HIS HONOUR: Is that, to adopt a reading of 198A(3), that would leave the Minister at large in determining the questions apparently presented by paragraphs (i) to(iv)?

MR GAGELER: No, not at all. The only jurisdictional addition that is read into the provision is that the Minister act bona fide or in good faith but the Minister – – –

HIS HONOUR: Not even reasonably? That, I think, was Liversidge v Anderson, is it not?

MR GAGELER: The Minister would be required, your Honour to understand and correctly apply the criteria, error of law, clearly would vitiate a decision of the Minister but there is no element of a jurisdictional fact in the sense of reasonable satisfaction that is required of the Minister under that provision, contrast, for example, the language used elsewhere in the Act of which your Honour is familiar. Where the Act requires satisfaction, it says satisfaction. That construction that struck his Honour the Chief Justice as clear, your Honour, really flows from the nature of the power being vested in the Minister.

The object of the power, that is, the specified country the Minister is required to evaluate, to some extent, circumstances in another country, and it is consistent with the purpose of the provision as identified in the second reading speech which your Honour will no doubt have seen in the past, it was said in that second reading speech by the then Minister for Immigration, this Bill, dealing specifically with section 198A, provides strength and powers to deal with people who arrive unlawfully at one of the territories beyond the migration zone. These include powers to move the person to another country where their claims, if any, for refugee status may be dealt with.

Your Honour, in relation to the point of construction we say this, that to read the criteria in section 198A(3)(a) as confined to what is provided or required by international law or by domestic law is a construction not required by the language. It is a construction which, in our submission, is indeed inconsistent with the language. The language naturally is read as looking to what the country does or perhaps is likely to do during the life of the declaration, not what is required as a matter of law within the country or as a matter of international law and the reality is, your Honour, that they may be two quite different things.

It would not be consistent – and this is our third point – it would not be consistent with the purpose of section 198A which is really to allow the Minister to designate a safe third country, for the Minister to be confined to looking only to the legal regime applicable in and to that country. There are many countries that have pristine laws that are not necessarily applied in practice.

HIS HONOUR: But is it necessary to look at all to the legal regime, be it international obligation or domestic obligation? I understand why you say that looking at the letter of the law may not suffice, but is it necessary to look at whether, when this Act speaks of “provides protection”, it is referring to protection that is obliged to be provided as distinct from protection which either in the past has been or by some exercise in prognostication is assumed may be, will be, probably will be, possibly will be in the future.

MR GAGELER: It is looking at what occurs in practice and it is not a matter of prognostication, it is a matter of the taking into account the available information, which will include the applicable international and domestic legal standards. That is not ruled out, your Honour. The point is simply that it is not only not required by the language but inconsistent with the purpose of section 198A(3) to confine those criteria to questions of international and domestic law. That is the point.

HIS HONOUR: The question is provoked because the arrangement which has been struck with Malaysia is expressly said not to be legally binding but to be a record of the participants’ intentions and political commitments, is that right? See clause 16 of the arrangement between the Government of Australia and the Government of Malaysia on transfer and resettlement.

MR GAGELER: That is correct.

HIS HONOUR: What inference, if any, may be drawn from the fact that this intergovernmental arrangement contains that clause?

MR GAGELER: No inference adverse to the judgment made by the Minister that the political assurances contained in that arrangement read against the background of the assessment made by the UNHCR and the Department of Foreign Affairs and Trade was sufficient to give a level of satisfaction that the criteria set out in section 198A(3)(a) would be likely to be met in practice. There is simply no doubt, your Honour, simply no doubt.

HIS HONOUR: So you say sufficient that it would be likely to be provided in practice? Do I understand the proposition right or have I misheard it or misunderstood it?

MR GAGELER: No, your Honour heard it correctly.

HIS HONOUR: So when the Act speaks of “provides protection”, “provides access”, that is speaking of something that is likely to occur, is it?

MR GAGELER: Your Honour, clearly enough a declaration under section 198A(3) is a declaration that will remain in force until revoked. It is not a one-off moment in time.

HIS HONOUR: I understand that.

MR GAGELER: In speaking in the present tense, it is clearly speaking continuously in the present tense during the life of the declaration. So when the Minister makes the declaration, the Minister is necessarily looking prospectively, not just at a moment in time and not simply historically. I am being repetitive, your Honour, but to confine the criteria to legal constraints is really to undermine its purpose.

My best guess is that French CJ’s view of the nature of s 198A(3) will probably prevail and therefore the Gillard government will win, but the asylum seekers at least have a reasonably arguable point. Moreover, as I noted above, it’s an argument which if successful would probably prove equally fatal to any attempt at reviving the Pacific Solution. It’s a nerve-racking time for both the Gillard government and the affected asylum seekers, but heaven on a stick for academic public lawyers like me.

PS I should note for completeness that Mortimer also advances a natural justice argument. However it’s impossible to evaluate its chances of success without access to the affidavit material detailing exactly what opportunities the asylum seekers were afforded to advance submissions on why they should not be deported to Malaysia for refugee assessment.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
This entry was posted in Immigration and refugees, Law, Politics - national. Bookmark the permalink.

25 Responses to Legal heaven on a stick

  1. Catching up says:

    It is laughable that the government is chastise for not having extensive paper work available in answer to a case that is lodged late Sunday night in Melbourne.

    It is near impossible to form an answer until you know what the question is. The government had from late Sunday until 2.30 pm Monday their answers to the claims being made by the refugees and their legal team. They had to file the response in Melbourne.

    I am not too sure where head office is but I am sure the major parties will not be located in Melbourne.

    I was unaware that all the information would have been expected at this time in the procedures. I know I would be unlikely or willing to give a reply until I was sure of what I was being accused of.

    In most courts I have been involved in, a statement of facts is the most that would have been expected, to be extended in later appearances.

    The most that I would have expected at this time would be for the matter to be mentioned and a date set for further hearings. I am sure this is what the media would have expected.

    I do have concerns for the impartiality of the judge hearing the case.

  2. derrida derider says:

    I agree with the Grattan versus Oakes comparison. The deference to Ms Grattan by other journalists in the gallery is amazing – and disturbing – to see firsthand and it is hard to understand where it stems from. Were I a young journo in that gallery I’d not be able to resist taking her down a peg or two with some inspired irreverence.

    And of course it is ridiculous to think that any new asylum-seeker policy would not be legally challenged at the first opportunity; I’m sure the government would have expected and prepared for it. As for Catching Up’s concerns, perhaps the judge is simply mindful of the harm to real people a long interval before further hearings would cause. I see no ground for impugning his impartiality here, and you really ought to be very slow to make such a grave accusation even on a blog.

  3. Catching up says:

    Why not. Are you saying that saying some judges are not impartial.

    I am not saying he is.

    I am just querying his comment and why he made it at this early stage.

    If the judge felt that delay would harm some people, why is not the next hearing sooner?

  4. Nicholas Gruen says:

    The thing I can’t stand is those interviews with Fran in the morning. Mired in utter banality. Fran says “And what will the Opposition be wanting out of the debate Michelle”, and Michelle says “The Opposition’s main goal will be to make the government look bad” Seriously, this goes on for about four or five minutes and then Fran says “We’ll have to leave it there Michelle”. “Thanks Fran” and that’s it. Five minutes. Five minutes that we will never get back in our lives. Five minutes and exactly zilcho has transpired.

    Have a listen to this little beauty.

  5. Pedro says:

    NG, that could be partly Fran’s fault. She doesn’t strike me as world champ of the quality question.

  6. Sinclair Davidson says:

    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).

    I had been wondering about that – is it uniquely Malaysia that is an issue, or the entire offshoring policy? Is there an argument for Australian oversight in Nauru that makes it different? I doubt it.

  7. Ken Parish says:

    “Is there an argument for Australian oversight in Nauru that makes it different? I doubt it.”

    Debbie Mortimer’s most audacious argument (that a Ministerial safe third country declaration would only be valid if based on legally enforceable protection obligations in that third country) could not now succeed in relation to Nauru, because it has formally committed to the Refugee Convention as I understand it. Nauru also does not have a record of beating and harassing asylum seekers or refouling them. Thus most of the same arguments would be mounted against a revived Nauru Solution but they would be somewhat less likely to succeed (not that I really expect them to succeed against Malaysia either, but the possibility can’t be discounted).

  8. Patrick says:

    Catching up, criticising Justice Hayne’s neutrality is just stupid.

    The next hearing is pretty soon. Believe it or not, the High Court actually has a calendar with quite a lot in it, set months in advance. Each sitting is prepared for at a cost of often millions by the litigants and involves a team of often a dozen people on each side (solicitors barristers and clients) and represents the end-point of often a couple years’ worth of dispute.

    So they don’t generally just say ‘rock around next week and we’ll tell the rest to reschedule’.

  9. Catching up says:

    Patrick, you are correct, unless the case is urgent. How come a matter can be lodged on a Sunday night and heard the next day, if there is no process for urgent matters.

    What I would like the press to tell me if this judge is prone to making similar remarks. The judge should be aware that his remarks could have political repercussions.

    I am not suggesting the judge is corrupt. I am suggesting the remarks could be given a meaning that is taken out of context.

  10. Antonios says:

    Michelle Grattan and, also I think, Shaun Carney are both fine examples of journalists sticking their fingers in their air and thinking they know the “mood of the nation” or “how things will play out” or why “voters deserted such and such policy”.

    I tend to think journalism forces journalists to come up with crap like that because they have to publish so often. Without time to properly research anything, they have to stick their fingers in the air and just guess.

  11. Nicholas Gruen says:

    Antonios and Pedro, agreed. When I’m interviewed as an economist, I’m frequently asked for some piece of half arsed political punditry. I’ll be talking about interest rates or something or other and the interviewer will pull some strange political question out of their hat – “How damaging is this latest interest rise for the government?” I usually cavil inwardly at this, but on the few occasions where I’ve given expression to that, simply refusing to answer or saying something like “I’m not a political pundit” it sounds either pompous or churlish or both. In fact it’s not lack of expertise that I should claim, its that it’s a half arsed question and if you ask a silly question . . . . and I don’t want to give a silly answer.

    It’s like answering a question like “well what DO you think the weather will be on Christmas Day?” But these days I just go along with the nonsense and try to steer it into more enlightening waters. To that extent I agree with Pedro about Fran’s questioning. But one of the big problems is the amount of stuff these people have to churn out. Like those financial analysts intoning each hour, there’s bound to be nothing of significance they can say other than ‘the market went up, because (insert current rumour of who were the buyers) were more plentiful than sellers’. Even when something big HAS happened, that doesn’t mean a Fran or a Michelle or anyone else has any great insights into it. But mired in the narrative fallacy, we must have our stories, and if they don’t exist, we make them up.

  12. Patrick says:

    Catching up, I’m sorry, I didn’t realise that you were commenting ‘out of the blue’ as it were. Next time, hopefully, you will heed the point of this post and ignore Michelle Grattan.

    Justice Hayne’s comment was in the context of the Crown’s counsel commencing his argument without a crucial affadavit (essentially a statement of facts) which he intended to rely on. I have no doubt that Hayne (who after all had to get in front of these guys at 7pm Sunday night) was conscious of the time constraints and in fact he alludes to them frequently in the Sunday night hearing. That notwithstanding, he was expressing his reluctance at proceeding to digest arguments absent the facts being argued about. His next question might highlight that:

    If you are going to address argument on the footing of material that has not been heard or dealt with, what am I to do?

    On timing, again I assumed that you were more expert in this. These hearings were both heard by Justice Hayne, sitting alone, in order to resolve the urgent issue of whether the people should be removed from Australia or whether there was a serious legal question relevant to their removal which should be heard first.

    Resolution of the legal question would require a full bench of the Court (or possibly, although I understand that not in this case, a trial before the Federal Court and an appeal from that!). It would also require substantially more time than that required to simply decide if there need be a hearing at all. So, yes, this is urgent, but no, it simply cannot be expedited much more than it has.

  13. ennui says:

    Next time, hopefully, you will heed the point of this post and ignore Michelle Grattan.

    In defence of Grattan, to be criticised for being occasionally ‘banal’ or being
    ‘deferred’to by peers are hardly serious journalistic offences. Grattan is probably one the least biased political journos operating in the Canberra press gallery at the present time.

    I can understand that her sort of “view from nowhere” reporting may dismay the partisans amongst us. But impartiality is clearly in the eye of the beholder with political journos being whacked from the right for being too liberal/progressive in interpreting events or whacked from the left for being insufficiently sceptical of the conservative agenda. These are simply ritualised complaints.

    I think Nick is right in pointing to the insatiable need for a story – any story – being central to the lack of insightful reporting. The narrative fallacy knows no bounds!

  14. Doug says:

    The assumption in the media that the appeal to the High Court is somehow nothing more than a terrible inconvenience needs to be challenged.It is important that the power of the Executive can be brought under question. The matter is important, the issues are contested and it is reasonable that the matter should be brought before the High Court to rule on the exercise of Executive power.

  15. Marilyn says:

    Of course there is the small issue of the stupidity of the Australian government of any colour deciding they can arbitrarily decide they own the people and the other country.

    What is the point? If every other signatory to the refugee convention decided to sell away the rights of asylum seekers to apply for asylum then no refugee would be protected they would simply be commodities like bales of wool.

    The simply fact is that under Australian law everyone has the right to come anyway they can and ask for protection without being pushed away, punished or anything else and the slave trade was halted years ago.

    With Judi Moylan stating clearly in February that we have a legal and moral obligation to assess those who arrive and only 0.0001% of the world’s refugees do why do we bother with all this nonsense.

    What I find so appalling is that the media and pollies forget that the human beings they think they can trade away or stash like bales of wool have the exact same human rights as they do.

    That’s why it is called the universal declaration of human rights, that is why Article 14 “everyone has the right to seek and enjoy asylum from persecution in other countries” became an entire legally binding humanitarian treaty co-authored by Australia to protect refugees.

    Chris Bowen knew that on exactly this day 5 years ago, how come he has forgotten or refuses to admit.


    Coalition attempts to excise Australian mainland from migration zone

    Posted August 10, 2006

    Mr BOWEN (Prospect) (10.17 a.m.)?In 1951 the United Nations convention for the protection of refugees came into force. The world realised the mistakes of the 1930s, when many Western nations turned their backs on Jews fleeing persecution in Germany. Collectively, we said, ?Never again.? I am sure that all of us involved in public life would like to think that we would have done the right thing in those circumstances and stood up for those facing the worst of circumstances, regardless of whether it was popular or unpopular. If the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 passes the parliament today, it will be the day that Australia turned its back on the refugee convention and on refugees escaping circumstances that most of us can only imagine. This is a bad bill with no redeeming features. It is a hypocritical and illogical bill. If it is passed today, it will be a stain on our national character. The people who will be disadvantaged by this bill are in fear of their lives, and we should never turn our back on them. They are people who could make a real contribution to Australia.

    So it would seem that the very bill Bowen is now relying on was condemned by him and it was to do with the 43 West Papuans and attempts to cut the mainland out of the migration zone. It was defeated in the senate by Barnaby Joyce and Steve Fielding in one of his rare acts of commonsense.

    The bottom line is – we don’t get to trade human rights obligations for a voluntary scheme or any other reason at all and we don’t get to bribe other nations to do our job – it’s even more grotesque because there are millions of people dying of starvation while we whine endlessly about shoving away just a few hundred people.

  16. Marilyn says:

    What is interesting is the at the whole urgency of the motion for the injunction only became possible because of the disgust of a DIAC senior staff member.

    Annabelle O’Brien was the person responsible for caring for Roqia Bahhtiyari and had been told to let them think they would be staying only to be betrayed as they were brutally deported.

    If you want to know what it looks like to use brute force against young kids remember that film footage.

    It certainly affected Annabelle it seems because she personally got lawyers for the people because DIAC were going to pull a dirty deal.

  17. Black Mage says:

    Brilliant analysis, Ken, and exactly the sort of thing that should have widely reported in the press DAYS ago – not ridiculous, one-line summaries of Mortimer SC’s points followed by seven paragraphs of half-arsed political prognostication.

    It’ll be interesting to see where Bell J goes – as I understand it, she’s personally progressive but, on the Court, very rarely dissents (not that she’s been given many opportunities to, what with the Court’s innovative approach to the separation of power as a guarantee of due process leading to fairly progressive judgments anyway). Shall her public orthodoxy win over private convictions?

  18. Nicholas Gruen says:

    And of course Doug is right – it should be pointed out how race-calling political commentary implicitly lauds efficient political management and manipulation, and so sees a high court case as a PR mess and so one that is to be generally deplored from the Government’s perspective. And of course ‘messes’ are not something that the community wants of its leaders is it?

  19. Marilyn says:

    And now the fools think they can use Manus Island. Why we don’t just shut the hell up, do the assessments in the community and grow up instead of squandering hundreds of millions to maintain a dumb lie is beyond me.

    The Australian is at it again today, raise the refugee intake. Well that’s nice and we should but it has zero to do with granting legal protection to those who apply.

    the courts have never ever said there is anything illegal about coming here and seeking asylum, they have held for decades that it is a legal right enshrined in the migration act at Article 36.

    The media are behaving like an audience at the ancient gladiators ring cheering their side onto greater and greater cruelty.

  20. sprocket_ says:

    as I have commented elsewhere, we are seeing Ruddock’s obsession manifest. he just sat in his office and dwelt on the Migration Act 1958 and the regulations in his fiat to tinker with. Tampa was a godsend to the amnesty-lapel-badge-wearer.

    Ruddock, JWH and a compliant drafter-ess in the outer office (now dispensing justice at the ACT Supreme Court) wrote the farce which is excision and safe third country and (almost) the rule that in Australia, the rule of law does not exist – if you are a particular class of person.

    Get the Parliament to disgracefully rubber stamp. Shame.

  21. Chris Lloyd says:

    “That’s why it is called the universal declaration of human rights, that is why Article 14 “everyone has the right to seek and enjoy asylum from persecution in other countries” became an entire legally binding humanitarian treaty co-authored by Australia to protect refugees.”

    This whole problem is UN conventions which are profoundly non-democratic. We need to formally withdraw from the 51 refugee convention. Then we can really start treating refugees fairly, including the ones who wait in Pakistan rather than flying to KL, burn their passports and pay for boat passage to Oz, thus taking up the 13,600 quota. For all the grand standing of Julian Burnside, he has not succeeded in getting a single extra refugee into Australia – NOT ONE!

  22. Marilyn says:

    Chris, the law does not work that way and withdrawing from the convention we helped to write when on 0.0001% of the world’s refugees come here is pretty pointless.

    Just found this article again by Professor Hathaway where he explains the duplicity of governments over “people smuggling”.

  23. Chris Lloyd says:

    Marilyn. I followed your link to find:

    “Perhaps most notoriously, the United States in the early 1990s not only interdicted thousands of Haitians fleeing the murderous Cedrás dictatorship on the high seas, but forced the asylum-seekers to board its Coast Guard vessels, destroyed their boats, and delivered them directly into the arms of their persecutors”

    I suspect that the US behaved in this manner because they were mindful of the consequences of allowing refugees to reach UNC51 territory. I think this quote actually proves my point. If voters felt they were in control of how/who they accept as refugees, they would be a whole lot more generous.

    Not sure what you mean by “the law does not work that way”. As for it being “pointless withdrawing”, see the above argument. It is utterly amazing to me that the option of withdrawing has never been mentioned on the MSM. It would save 100s of lives of m$100s of dollars (in Oz alone).

  24. Marilyn says:

    The Haittians were not saved Chris, they were sent back to be slaughtered.

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