Driving the final nails into a political coffin

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:

Second, even assuming them to be in some way relevant, the arrangements made with Nauru were very different from those that are now in issue. Not least is that so because Australia, not Nauru as the receiving country, was to provide or secure the provision of the assessment and other steps that had to be taken, as well as the maintenance in the meantime of those who claimed to be seeking protection. Thus it was Australia, not the receiving country, that was to provide the access and protections in question. Further, although the arrangement between Australia and Nauru was recorded in a very short document, the better view of that document may be that it created obligations between the signatory states. But whether or not the arrangements with Nauru had the various features that have been identified, the question of statutory construction should be resolved in the manner indicated.

No doubt Tony Abbott will point to that passage as a vindication of the Pacific Solution and (by contrast) a judicial condemnation of Gillard government incompetence.  In a short term political sense he’s right.  But that begs the question of whether any version of the Pacific Solution that would be likely to deter asylum seekers could be re-instituted following yesterday’s Court decision.  The practical reason why the Pacific Solution successfully deterred asylum seekers for a number of years was that it created the illusion that reaching Australia by boat would provide no assurance of a visa even if found to be a refugee.  That illusion was underpinned by keeping even successful asylum seekers “garaged” on Nauru for a number of years after they’d been found to be refugees, before eventually quietly granting them visas and allowing them into Australia.  In view of yesterday’s finding that both the domestic laws and actual practices of any “safe third country” must broadly honour Convention obligations and basic human rights standards, it is highly unlikely that any regime on Nauru or elsewhere that permitted persons found to be refugees to be nevertheless kept in detention for years thereafter would be held to comply with either Convention obligations or general human rights standards.  Without that deterrent effect it is highly unlikely that offshore processing on Nauru or anywhere else will have any measurable effect on the number of asylum seekers arriving by boat.  Who cares whether you’re detained on Christmas Island, Nauru, Manus Island or Darwin if the end result is the same in all cases?  If found to be a refugee you will get an Australian protection visa.

The Gillard government should now accept the inevitability of its forthcoming election defeat and concentrate on putting in place asylum seeker processes that are as sound as possible from a policy (rather than short term populist) perspective.  As I’ve argued previously, a policy based on community accommodation, rather than mandatory detention, of asylum seekers once initial health and security clearances have been passed, is clearly preferable from a policy viewpoint.  It will almost certainly result in a measurable upsurge in arrival numbers, but that is unlikely to result in total numbers that Australia will be unable effectively to absorb. It will however ensure that Abbott and shills like Alan Jones will have a lovely time driving the last few nails into the coffin containing the twitching political corpse of Julia Gillard.  Alternatively it might provide the trigger for a decisive move to restore Kevin Rudd to the leadership as I suggested in a comment posted early yesterday:

I should also note that if the High Court rules against the Malaysia Solution to any significant extent later today (as is possible), that would provide added impetus for a transition to Rudd. Rudd has made it as clear as he could from the moment of his demise that he demurred on moral grounds from Gillard’s re-embrace of punitive Howardism on asylum seekers. The closing off even partially by the High Court of the Malaysia Solution (which would simultaneously render the Pacific Solution either unconstitutional or demonstrably ineffective) would provide a plausible reason of principle and policy for Labor re-embracing Rudd, just as (in a rather more cynical, negative sense) rejection of carbon tax was the policy/”principle” aspect of Abbott’s replacement of Turnbull.


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.

78 Responses to Driving the final nails into a political coffin

  1. Patrick says:

    Or, wouldn’t Abbott just ignore s198A(3) since, as the majority adverts to, the Pacific Solution involves Australia at all times and thus excludes any need to apply s198A(3) decisions…

    I don’t see how the Court would overcome that, nor that they would have any desire to!!

    I also don’t see how that would fail practically as you seem to suggest. I’m not sure people smugglers could so effectively sell tickets to Nauru as you seem to be, even if they are really tickets to, eventually, Australia.

  2. conrad says:

    “On any view yesterday’s High Court decision holding the Malaysia Solution to be unlawful is a smashing blow to the Gillard government”

    They could turn it into a smashing win by crossing Australia’s name off the refugee convention and saying some nasty things about the UN.

  3. observa says:

    All the more reason for Oz to to stand up and ditch the UN gaggle of gangsters, with an international offer to join a decent liberal democratic union. US electors may well bite given their UN contribution and economic woes and that’s all it would take to end the UN farce. It would also put the cat among the EU pigeons no doubt. Failing that who would really give a rats tossbag except sycophantic Rudd types coveting international sinecures on the taxpayer?

  4. Ken Parish says:


    The Court held that s 198A was the sole source of the Minster’s power to send asylum seekers to another country for refugee assessment. Thus it is equally the source of the Minister’s power in relation to the Nauru Pacific Solution. Indeed it was enacted by the Howard government precisely for that purpose. What the joint judgment is saying in the extracted passage is that the Nauru deal might conceivably meet the jurisdictional fact prerequisites to power under s 198A the Court has now identified, because (a) the processing and detention arrangements remained directly under Australian control; and (b) the formal agreement arguably created binding obligations in international law between Australia and Nauru where the Gillard government’s arrangement with Malaysia did not.

    As for your second point, I just don’t see why spending 6-12 months in Australian-supervised detention on Nauru before being granted an Australian visa would be seen by asylum seekers as more of a deterrent than exactly the same situation but with the sojourn on Xmas Island instead.

  5. Ken, what about the complicating issue of concern that policies which do nothing to discourage arrivals by boat have the unintended consequence of ensuring scores of people will drown each year trying to get here that way.

    I think that it is not a question that the government would be morally responsible for such deaths (the dangers of such crossing should be clear to anyone, and it is scumbag profiteers who promote the contrary belief,) but people can still be uncomfortable with the result.

  6. Ken Parish says:

    Yes I’m certainly uncomfortable about that Steve. But I simply don’t know what can lawfully be done that would be effective as a deterrent in the wake of yesterday’s decision (at least short of withdrawing from the Refugee Convention which some other commentators have canvassed above).

  7. Ken, what does it take to withdraw from a convention?

  8. Ken Parish says:

    This article discusses a range ofm issues regarding treaties including withdrawal/denunciation:

    14.55 Some witnesses before the Committee expressed concern that Australia was entering into treaties from which it was not able to withdraw. Mr Bruce Hannaford stated in evidence before the Committee:

    Perhaps the worst aspect of the signing of these treaties, covenants et cetera, is that almost all of them have no provision for cancellation. They are intended to exist in perpetuity. How dare recent or present federal governments of a given political ideology assume the almighty power of committing our great-great-grandchildren to what they see as desirable for today. Surely future generations have a right to decide for themselves.[62]

    14.56 Senator Abetz asked the Department of Foreign Affairs and Trade at the public hearing on 1 May 1995, which of the 920 head treaties to which Australia is a party, do not allow denunciation. The Department took the question on notice, and provided the following answer to the Committee:

    It has not been possible to examine each of the 920 treaties. However, according to published information on 270 of the approximately 340 multilateral treaties currently in force for Australia, 240, i.e. about 90%, have specific provisions for the denunciation of, or withdrawal from, the treaty by the parties.

    A sampling of bilateral treaties concluded in the past twenty years shows that any treaty which is not of limited duration will usually contain a provision for termination by either party. However, one class of bilateral treaties, those concerning boundary delimitation, rarely provide for unilateral termination.

    14.57 Even when withdrawal is permitted by the treaty, it may be politically difficult to withdraw from the treaty.

    However at last in strictly legal terms it isn’t difficult for a country to withdraw from the Refugee Convention. Article 44 reads as follows:

    1. Any Contracting State may denounce this Convention at any time by a notification addressed to the Secretary-General of the United Nations.

    2. Such denunciation shall take effect for the Contracting State concerned one year from the date upon which it is received by the Secretary-General of the United Nations.

    3. Any State which has made a declaration or notification under Article 40 may, at any time thereafter, by a notification to the Secretary-General of the United Nations, declare that the Convention shall cease to extend to such territory one year after the date of receipt of the notification by the Secretary-General.

  9. Alphonse says:

    Ken, Since Nauru never signed on to the Convention before detention there was discontinued, was that “solution” also always unlawful?

  10. john walker says:

    Do you have a feeling that the ‘whatever it takes’ Mr Abbot , might go that far?

  11. john walker says:

    sorry should have been

    Do you have a feeling that the ‘whatever it takes’ Mr Abbot , might go that far?
    I.E denounce the convention ?

  12. Alan says:

    The people smuggler meme needs to be dropped. It’s used as a one size fits all excuse for avoiding our refugee obligations. The number of deaths at sea does not justify a system of indefinite and ineffective detention that itself gravely harms those within it. In any case it is by no means obvious that prospective boat arrivals have any knowledge of Australia’s repressive measure du jour, let alone being deterred by it.

    The endless blather about breaking the business model of the people smugglers is a way of avoiding debate.

    The simple fact is that Australia has vanishingly small numbers of boat arrivals by international standards. The various boat solutions have been hugely expensive and have done very little to solve anything, except the urgent need to be seen to doing something.

  13. Alan: how many people died in one incident (Siev X)? 353.

    If a Qantas 747 crashes into the sea with that number of people on board, we count it as pretty big freaking deal.

  14. Alan says:

    353, steve. The majority of them family members excluded from family reunion. Those deaths were a direct result of the restrictions in temporary protection visas, an earlier attempt to break the business model of the people smugglers. Morality is complex and just repeating the BBMPS rubric does not make it any simpler.

    Many more than 353 people die in traffic accidents each year, but I am not aware of any effort to break the business model of the people traffickers.

  15. john walker says:

    Whatever … If denouncing treaties was needed, I think Mr Abbot would provably do it (and sadly get a lot of votes)

  16. Ken Parish says:


    See the extracted passage from Gummow, Hayne, Crennan and Bell JJ. They appear to be suggesting that the Howard government Pacific Solution might have been lawful despite the fact that Nauru was not a signatory to the Convention at the time. That doesn’t seem to square with some of their other reasoning, nevertheless it seems to be what they’re saying.

  17. Ken Parish says:

    A few observations on withdrawing from/denouncing the Refugee Convention. As the linked Senate paper observed:

    Even when withdrawal is permitted by the treaty, it may be politically difficult to withdraw from the treaty.

    For the Gillard government it would be in practice impossible. Renunciation would instantly cause the Greens to vote against the government on a motion of no confidence leading to an immediate election. Even in the unlikely event that this did not occur, renunciation of itself would change nothing because Australia’s obligations under the Convention are enshrined in and given mandatory legal force by the Migration Act 1958. Hence inter alia yesterday’s High Court decision holding the Minister’s decision unlawful. There is no way in the world that Gillard would get a majority in both Houses for legislation aimed at removing the Refugee Convention obligations from the Migration Act.

    It’s conceivable that an incumbent Abbott government might have the numbers in both Houses. But not even Abbott has ever promised to renounce the Refugee Convention, and he probably won’t. Apart from anything else, even renunciation + amending the Act would not solve the practical problem. What do you actually do with asylum seekers who arrive on our shores? If they’re not refugees it isn’t all that problematic because you can send them back to their country of nationality. But if they ARE refugees what do you do? Send them home to face torture or death? It’s unlikely that most Australians would support any such thing, and any such actions would make Australia an international pariah. The only thing I can think of is that it would be possible to re-institute a Malaysia Solution-type deal if the Act did not ensrhine the substantive Convention obligations. But Abbott hasn’t really left himself political room to do that (not that consistency has ever seemed to concern him much).

  18. observa says:

    Is non-signatory Malaysia an international pariah Ken and if so what on earth was Gillard thinking of? OTOH if any outrgaed non-pariah wants to have a hissy fit about a non-UN pariah like us deciding who comes here or not we can simply make them an offer too good for their compassion to refuse. The gangsters can of course get stuffed.

  19. Ken Parish says:

    “Is non-signatory Malaysia an international pariah Ken …?”

    No, but I’m quite happy to assert that there’s a racist/xenophobic double standard applied to matters like this. A wealthy, Caucasian-dominated first world country will be judged by different standards than a poor third world one like Malaysia.

  20. Alan says:

    Malaysia is not judged very kindly by the various human rights NGOs or its own opposition. The Najib government has been spinning the deal with Australia as proof that opposition charges of human rights abuses cannot be true otherwise Australia would never be making this arrangement.

    Malaysia’s exPM, Mahathir, originated the Asian values thesis by which human rights meant whatever he wanted them to mean. In effect, if not design, Mahathir’s version of rights is identical with observa’s, except that observa aligns with a different cultural group.

    I am still completely amazed that Gillard thought Malaysia was an appropriate choice. I would hope it was bog ignorance in foreign affairs rather than an act of supreme cynicism.

  21. wizofaus says:

    “smashing win for”…”people smugglers who capitalise on their desperation”

    How so? As a certain human rights lawyer pointed out, the fact that refugees returned to Malaysia were to be guaranteed a right to work would if anything act as a pull factor for anyone currently stuck in Malaysia with no other prospects – i.e. they’d be seeking out people smugglers in full knowledge they’d get returned to Malaysia, but at least with some hope of making some sort life for themselves.
    Though personally I rather doubt there’s very much Australia could ever hope to do to make risking a journey here less palatable than the alternatives these people typically face. If we’re serious about putting the people-smugglers out of business, I can’t see any viable solution other than making it easier for refugees to get here by legal means. Now that the ALP is electorally doomed, one might even dare to hope they’ll give up trying to appease the Hansonites and implement such a policy (would that even require passing legislation?). Well I can dream at least…

  22. john walker says:

    Malaysia is not quite a “poor third world” country.
    However its politically dominant group is Suni Muslim ethnically Malay and possibly? threatened by Shia immigrants. Malays are also famously pretty politically recalcitrant, all of which might explain the delicate treatment.

    I was only thinking about possible problems (for Abbot) with reinstating the Pacific solution. And the fact that, if you believe the independents, Mr abbot will do anything it takes. And that the government will itself provably want to reinstate the pacific solution – hence green votes matter little, but still law does.

    As for refuges most of the current crop are the result of foreign/military policy mistakes like Iraq that we took part in, They are the price paid .

  23. Bill says:

    Abbot can amend the Migration Act if he wants to, to exclude the Convention (assuming your comments are right, and that Nauru is a no-no, which isnt clear).

    If the Senate wont pass it, he can point the double dissolution gun at them. Following a DD there is a joint sitting of both houses. (But Labor might well support changing the legislation anyway, especially if what Abbot proposed to actually do to the unorthodox migrants, was similar in effect to the Malaysia or Pacific Solutions.)

  24. Alan says:

    In Malaysia the law declares that you cannot be a Malay unless youa re Muslim and the law also defines being Muslim quite narrowly. It does not include shi’is or any other non-Sunni groups. That is a serious discrimination when being Malay carries privileged access to public office, education, employment and contracts. Shi’a practices and beliefs are the subject of police action. That is somewhat of a problem when the vast majority of Afghan refugees are from the Hazara ethnic group which is Shi’ite.

    I would link to the condemnation of this situation by the UN human rights system but I do not want to be the inadvertent cause of anyone’s head exploding.

  25. john walker says:

    The limited assess to public education places for ethnic Chinese Malays has definitely helped enrollments in Australian Unis.

  26. observa says:

    “Can I say, looking at yesterday’s High Court decision, I believe that it represents a missed opportunity in preventing us from transferring asylum-seekers to Malaysia at this time,” Julia said in Brisbane…

    “The current Chief Justice of the High Court, his Honour Justice French, considered comparable legal questions when he was a judge of the Federal Court and made different decisions to the one the High Court made yesterday”

    You’re an old Slater and Gordon girl Julia and you know how it is with the lefty political lawyering classes dearie. And speaking of Slater and Gordon it would appear they’re becoming a whole lot more cooperative with any investigations that might impugn their professional reputation. The rats are deserting the ship of State and there aint no rats like Labor rats dearie.

  27. Patrick says:

    Alan, I think Gillard went with Malaysia because
    a) there are a lot of refugees there;
    b) it is close to Australia; and
    c) it isn’t Indonesia.

    I think that basically covers all the bases, I don’t think anything else came into it.

    Sure, Malaysia is practically speaking a shithole. But it is a fairly well-off one (at the risk of being racist in every direction, you can discriminate against Chinese, but you can’t stop them making money) with a vaguely functional democracy, too, and despite your horror of it, actually not all that far down the global tree when it comes to human rights.

    Ken, I could see Abbott ceremoniously burning the Convention and the Migration Act as political theatre in order to provide cover for a more functional scheme, like a faux-Nauru solution which looks and smells a lot like banishment to Nauru with no rights but is actually a reasonably decent way to deal with people coming in. Not by any means saying that will happen but it seems to me plausible – I don’t think, for example, that he would really care that much about the bunch of clowns in the UN, something he and the 45th President are very very likely to see eye-to-eye on, fortuitously for him.

  28. Alan says:

    With apologies to those who ‘know’ that NGOs like Amnesty International only criticise countries in the First World:

    “Caning in Malaysia has hit epidemic proportions,” said Sam Zarifi, Amnesty International’s Asia-Pacific Director. “In every case that we examined, the punishment amounted to torture, which is absolutely prohibited under any circumstances.”

    In recent years, Malaysia has increased the number of penal offenses subject to caning to more than 60. Since 2002, when Parliament made immigration violations such as illegal entry subject to caning, tens of thousands of refugees and migrant workers have been caned.

    In Malaysian prisons specially trained caning officers tear into victims’ bodies with a metre-long cane swung with both hands at high speed. The cane rips into the victim’s naked skin, pulps the fatty tissue below, and leaves scars that extend to muscle fibre. The pain is so severe that victims often lose consciousness.

    The Malaysian government does not punish officers for their actions. Instead, it trains officers how to conduct caning and pays them a bonus for each stroke. Many double their income through their caning work. Others take bribes to intentionally miss, sparing their victims.

    State-employed doctors also play an integral role in caning. They examine victims and certify their fitness to be caned. When victims lose consciousness during caning, they revive them so the punishment can continue. After caning, some victims suffer long-term physical disabilities.

    “The role that Malaysian doctors play in facilitating deliberate pain and injury through caning is absolutely contrary to international medical ethics,” said Sam Zarifi. “Instead of treating the victims, doctors are assisting in their torture and ill-treatment.”

    Malaysian officials and state employees who are complicit in torture are liable to prosecution worldwide under universal jurisdiction for grave human rights crimes such as these, Amnesty International said.

    Malaysia also criminalises Shi’ism, adultery, homosexuality, religious conversion away from Islam as defined by Malaysian law, proselytisation, oh, and unauthorised arrival.

    Malaysia is more than ‘an ordinary shithole’ and if Gillard’s assessment of Malaysia was as flippant as you suggest then she is unfit to be prime minister.

  29. hc says:

    I favor withdrawing from the Refugee Convention – Australians via their democratically elected government should control the process by which newcomers become Australians. High Court judges should not be involved in such decision making processes. This decision is probably lawful but it is a disgrace.

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  31. Ken Parish said:

    The Gillard government should now accept the inevitability of its forthcoming election defeat and concentrate on putting in place asylum seeker processes that are as sound as possible from a policy (rather than short term populist) perspective. As I’ve argued previously, a policy based on community accommodation, rather than mandatory detention, of asylum seekers once initial health and security clearances have been passed, is clearly preferable from a policy viewpoint. It will almost certainly result in a measurable upsurge in arrival numbers, but that is unlikely to result in total numbers that Australia will be unable effectively to absorb.

    Right, forget the pernicketty details like carbon tax and the probable re-introduction of Work Choices by subterfuge. Just lets focus on the main game, which is making the world safe for unauthorised maritime arrivals.

    A liberalised asylum seeker regime would undoubtedly encourage more people to make the risky journey by sea. And more would drown in massive numbers, as they did at Christmas Island earlier this year. As I predicted they would.

    And why is a concern for border protection always maligned as “short-term populism”? In fact the public preference for controlled borders has been a permanent feature of Australian political culture. And one man’s “populist” is another man’s consistent democrat.

    Australia should take its fair share of genuine refugees. But we are under no obligation to accept every foreigner in the world who is currently at odds with their fellow-citizens or government.

    At last count there were 43.7 million such unfortunates in the world, mostly from African and Arabian countries. Hard-core refugee activists imply that we should be prepared to take them all, elsewise we will be welching on our obligations under international law. That is certainly ideo-logically consistent, although quite mad, of course.

  32. Corin says:

    Ken, I agree with most your comments. What I wonder is whether Gillard is now in danger of abrogating her duty of defending the independence of the Court from the Executive even though that is not politically useful to her. It may be all very ‘high and mighty’ to expect politicians to accept the separation of powers, but that is the over-arching duty of all who should be PM. What do you think? I do agree that Nauru would be unlikely to meet the tests of the Court as well.

    I also find it amazing that most asylum seekers processed offshore end up being classified as refugees, why the cost of offshore processing isn’t factored into whether it gives value for money.

    BTW – I am very pleased with the High Ct today, almost as great as Mabo. Some days are good days for being a lawyer.

  33. Corin says:

    There is a cap on numbers and Australia takes very small numbers in reality compared to the overall migration take.

  34. Peter Patton says:

    For the Gillard government it would be in practice impossible. Renunciation would instantly cause the Greens to vote against the government on a motion of no confidence leading to an immediate election.

    Don’t worry, Abbott would vote against it too. He could become a real’ ‘Liberal’ like Gladstone. Campaign furiously on the evil Labor government, and it’s ‘Little Australia’ xenephobia, and then a year or so after being elected, find some ruse to blow the UN off, using the slogan “Sovereignty With Honour”.

  35. Peter Patton says:

    What I wonder is whether Gillard is now in danger of abrogating her duty of defending the independence of the Court from the Executive even though that is not politically useful to her.

    Excuse me, we have a separation of powers here. It is most certainly NOT Gillard’s job to “defend” the HC.

  36. Corin says:

    Peter Patton, she doesn’t have a duty to defend the Court but she ‘should’ have a duty to defend its’ independence. That is that the Govt may lose some cases and be disappointed but they shouldn’t criticise the judiciary so blatantly and without basis.

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  40. Tim Macknay says:

    “Is non-signatory Malaysia an international pariah …?”

    There’s a significant difference between not being a signatory to the treaty and unilaterally denouncing it after having upheld it for many decades. It also sets a rather poor international precedent for a western democracy to denounce a major humanitarian treaty simply because it’s politically inconvenient.

    It’s also worth noting that the hard line on asylum seekers is not uncontroversial within the Liberal Party. Abbott would be likely to experience resistance from his own party room for something as radical as denouncing the treaty. He may also get floor-crossers in Parliament. Personally I doubt he’d go that far. He’d look for something a bit milder – maybe by amending the section that got Gillard into trouble by setting standards that Nauru could comfortably meet, then reviving the Nauru option.

  41. Patrick says:

    I think Abbott would be pretty confident of no-one crossing the floor. If he gets in then every bastard behind him knows that he alone got them there.

  42. Tim Macknay says:

    I’m not sure how you figure that. I think most of them will be well aware that if he gets in it will be largely the Labor party’s doing.

  43. john walker says:

    Patric I agree .. though the drovers legless dog could get them in .

  44. Ken Parish says:

    I agree with Tim. It is highly unlikely that an Abbott government would denounce the treaty. Nor would they need to do so. The reason Gillard is currently stuck is that neither the Greens nor Labor’s left would countenance amendments to the Migration Act that would make either the Malaysia Solution or Nauru or PNG legally bomb-proof. However on current opinion polls Abbott would probably have a clear Senate majority. It should be possible to define “safe third country” in such a way that at least PNG and Nauru would become legally viable offshore processing centres. However, as I argued earlier, that of itself would not be enough to recreate a plausible deterrent. Howard achieved a plausible deterrent by keeping asylum seekers “garaged” on Nauru for years after being found to be refugees. It might well be difficult to redefine “safe third country” in such a way as to bring such treatment within any even vaguely rational definition.

  45. How to break the people smuggler’s business model

    The way Chris Bowen has attempted to position the Malaysian Solution is to frame it as a policy that will solve two problems. Firstly to break the people smuggler’s business model, and secondly to stop people taking to the sea in dangerous vessels.

    If those two things were truly the governments aim, then a far simpler and cheaper alternative, would be to lease an ocean-going ferry, and establish a free shuttle service between a nominated Indonesian port and an Australian port facility located near to large holding pen/detention centre.

    It would soon become known that to claim asylum, all asylum seekers in S.E. Asia only need to make their way to the Indonesian Port, board the next ferry to Australian waters, and join the queue in the Australian detention centres.

    Asylum seekers lives would no longer be at risk, the people smugglers business model would be undercut by the free service and would collapse, and millions would be saved in Naval and Coast Guard interceptions.

    Problem Solved.

    Of course when we look at it like this we realise that the “problem” as Chris Bowen has framed it, is not the real problem at all. Labor needs to face up to what the real problem is if it is going to have a hope of getting out of this political mess, and of getting its policy position straight.

  46. Alan says:

    Ken, Antony Green has a post on the likelihood of the Coalition of gaining a Senate majority. He thinks it extremely unlikely.

    I am also not certain the idea of an early double dissolution would necessarily fly. An Abbot government would not enjoy the same political options as an Abbot opposition and would not necessarily maintain its electoral standing. If Gillard is the main issue weakening Labor then Abbot in government would need an entirely new strategy.

  47. john walker says:

    If they can whip up mass panic about a modest tax on the consumption of fossil carbon a pretty abstract reality(and successfully wedge their own party) just imagine what they can do with pictures of thousands of a very concrete reality ; shirt loads and loads of ‘illegal arrivals’

    I gather that the boat travel agents in Indonesia are offering a ‘pay a deposit and pay the rest once you have landed a job in Australia’ deal… this is going to really boil.

  48. Alan says:

    They need to find, according to Joe Hockey, 70 billion in cuts. That is without admitting that the Direct Action Plan will cost a whole lot more than the carbon tax. And prime ministers don’t get the same liberty to claim they did not mean to say whatever it was they may have said when they were stating various degrees of absolute crap.

  49. Patrick says:

    wtf Alan? worked for Gillard…

  50. Ken Parish says:

    “worked for Gillard…”

    Really? Isn’t that one of the big reasons why she’s leading a government with a 28% primary vote (and falling)?

  51. Pedro says:

    I find it strange that people criticize the court for doing It’s job and interpreting the law. The law is not policy, it is the law. Competent govts can turn policy into law. It does not much bother me that the govt is complaining. I’m sure the high ct judges couldnt give a rats.

  52. Chris Lloyd says:

    Alan says: “The simple fact is that Australia has vanishingly small numbers of boat arrivals by international standards”. Corin says: “There is a cap on numbers and Australia takes very small numbers in reality compared to the overall migration”. Only because we have been playing hard ball.

    Ken says: “It will almost certainly result in a measurable upsurge in arrival numbers… but that is unlikely to result in total numbers that Australia will be unable effectively to absorb”. 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?

    The only solution is a clear policy that anybody who comes here for assessment automatically fails (with the possible exception of Papuans for whom we are the first safe haven). We then take 13,600 per year, or whatever number seems appropriate, from camps. The pre-requisite is withdrawal from the convention. Talk of international reputation and pariah status is hollow. Many countries will probably follow.

  53. Alan says:

    Pedro what is the evidence for your belief? Malaysia has deterrent measures that no-one in Australia would ever advocate. The UNHCR notes:

    By law, refugees are not differentiated from undocumented migrants. They are therefore vulnerable to arrest for immigration offences and may be subject to detention, prosecution, whipping and deportation. In the absence of a national administrative framework, UNHCR conducts all activities related to the reception, registration, documentation and status determination of asylum-seekers and refugees. Since refugees and asylum-seekers have no access to sustainable livelihoods or formal education, UNHCR runs a limited number of humanitarian support programmes for them, in cooperation with NGO partners.

    Malaysia has 90 000 refugees. Iran and Pakistan each have over a million. Australia’s numbers do not match.

    Australia is not a priority destination for international refugee movements.

    The UNHCR also provides statistics both on asylum applications in developed countries per population and GDP per capita as an indicator of the capacity of destination countries to host asylum seekers. In terms of individual share in the total number of asylum applications received per 1000 inhabitants, of the 44 countries that are currently included in the UNHCR report Asylum levels and trends in industrialized countries 2009, Australia was ranked number 21 in 2009 (0.3 per 1000 inhabitants), and number 17 per 1 USD/GDP per capita for 2009. The less prosperous countries of Cyprus and Malta received the second and third highest number of applications compared to their national populations in 2009 (following the tiny nation of Liechtenstein). France and the USA received the highest number of applications per capita compared to their national economies.[22] While the total number of asylum applications in Australia increased by about 29 per cent in 2009, compared to 2008, numbers still remained relatively low (6170 compared to, for example, 49 020 in the USA, 41 980 in France and 33 250 in Canada).[23]

    Boat arrivals are a minority of our refugee intake. For some reason no-one argues that refugees arriving by plane merit mandatory detention and other deterrent measures.

  54. Pedro says:

    Alan, I think you meant someone else.

  55. Alan says:

    Indeed I did, sorry)

  56. john walker says:

    I am looking forward to the Macquarie Island solution ; Australian territory , a long way out of public view and miserable cold.

  57. Alan says:

    Far too conservative. You will never break the business model of the people smugglers by half-measures like Macquarie Island. What we need is camps in the Australian Antarctic Territory. We could rename it New Siberia.

  58. john walker says:

    :) Mind You can ski in Antarctica , they might get to like it.

  59. observa says:

    Abbott ups the ante on Gillard with an offer she can’t refuse but one that leaves open the door to ditching the gaggle of gangsters oversight of our immigration policy, should any changes to the Migration Act or past Howard Govt policy on boat arrivals fail the High Court tick of approval. Abbott knows Australians are fed up with the whole lot of the graduazzi and their UN moral superiority crap.

  60. Chris Lloyd says:

    Alan says: “Malaysia has 90,000 refugees. Iran and Pakistan each have over a million. Australia’s numbers do not match.”

    This is just false in the case of Malaysia. Australia accepts over 13,000 per year so we will have more than 100,000 since Tampa. The difference is that WE GIVE THEM PERMANENT RESIDENCE whereas Malaysia lets them back up in camps.

    Alan also says: “For some reason no-one argues that refugees arriving by plane merit mandatory detention and other deterrent measures.”

    Some people do indeed argue it. Those who focus only on boat arrivals are perhaps influenced by their almost universal lack of documents.

  61. Geoff Honnor says:

    “Boat arrivals are a minority of our refugee intake. For some reason no-one argues that refugees arriving by plane merit mandatory detention and other deterrent measures.”

    Asylum applications by plane or boat arrival source are around 50/50. The much greater igures often cited for ‘plane arrivals’ relate to all entry visa ‘irregularities,’ including people entering under visitor visas and subsequently claiming asylum and visitor visa overstays (most of the cases – and most people so placed do leave).

    People arriving by plane need to have passports and entry documentation in order to embark on the flights that bring them here. If documentation is not in order on arrival, the airlines of carriage are responsible for returning the people involved to the port of embarkation and also cop a hefty fine. If it is in order, and the folk involved don’t claim asylum at the port of entry airport (overwhelmingly, they don’t) what would be the basis for ‘detaining’ them?

    Boat arrivals have invariably destroyed any identifying documentation in order to make the ID process harder and hence maximise the chances of applicant case believability.

  62. wizofaus says:

    Geoff, what does it matter whether they’re asylum applicants? The point is that out of all the non-citizens who are in Australia without a valid visa, refugees arriving by boat make up a relatively small percentage. In other words the fact that they might be ‘illegal immigrants’ or ‘queue jumpers’ obviously isn’t the real issue.

  63. Yobbo says:

    In other words the fact that they might be ‘illegal immigrants’ or ‘queue jumpers’ obviously isn’t the real issue.

    It is the real issue actually. I have explained why in a previous thread. But basically these people arriving in boats are taking the places allocated to refugees we could be accepting from existing refugee camps around the world. They are jumping the queue, ahead of other refugees.

    In 2010 when 6000+ boat refugees arrived, we took 4000 less refugees from UN refugee resettlement programs than we did the year before. There is a quota.

  64. wizofaus says:

    Then Yobbo the fact that we took in 4000 less refugees from UN camps is what we should be protesting about. Australia could have easily accommodated 6000 extra refugees in any one year.

  65. Yobbo says:

    Rather than redirect Wiz, just admit you are wrong and that there is a queue and it is being jumped, then once we know everyone is telling the truth we can talk about solutions.

  66. Alan says:

    There is a queue only because we say there is a queue. There is no orderly queue of legitimate refugees.

    If you ring the Australian embassy in Kabul and ask about refugee status they tell you to ring Canberra. Australia is unique in reducing its refugee intake by the number of boat arrivals granted refugee status. That is not a queue but a spin doctor’s effort to create the illusion of a queue.

    I seriously doubt they are proclaiming from the rooftops of Afghanistan, Iraq or Sri Lanka that Australia reduces its intake under the Special Humanitarian Program on a one-for-one basis for unauthorised arrivals by sea.

  67. Peter Patton says:

    Abbott knows Australians are fed up with the whole lot of the graduazzi and their UN moral superiority crap.

    Me thinks this whole issue is a sleeper that has been censored by the luvvie culture war border gestapo, in the same way all that multiculti/Aboriginal Industry stuff was. All it needs is a talisperson, even as hapless as Pauline was, to give voice to a waiting-to-scream Australian public about this scandalous con of ‘international law’ and to finally purge that discursive mother’s apron – “our international obligations”.

    Should the Hanson-like figure be blessed with locutions of received pronunciation, rather than QLD fishmonger hillbilly, public debate could become very interesting indeed. It would be great if they could time it to coincide with the election.

  68. Yobbo says:

    I seriously doubt they are proclaiming from the rooftops of Afghanistan, Iraq or Sri Lanka that Australia reduces its intake under the Special Humanitarian Program on a one-for-one basis for unauthorised arrivals by sea.

    What does this have to do with anything? The fact is that they do reduce it.

  69. Alan says:

    The SHP reduction was not imposed because there is an orderly queue but to create the illusion of an orderly queue.It is allegedly a deterrent measure but if they do not know about it in the source countries then it cannot be effective deterrence.

  70. Yobbo says:

    How do you know it’s supposed to be a deterrent Alan? The fact is we take about the same number of refugees every year, regardless of source. That looks like a quota to me, not an attempted deterrent.

  71. wizofaus says:

    Yobbo, I never said there was “no queue to jump”, just that clearly it’s not what the real issue is, given that clearly plenty of arrivals in Australia do jump queues by overstaying their visas etc., and nobody worries about them.
    If you want to call boat arrivals queue-jumpers, fine, but if I were in their situation, where ‘waiting in a queue’ was sufficiently dangerous and/or unlikely to eventuate in success within a reasonable time-frame, I would do exactly the same thing. What’s more, I’m pretty damn sure you would do.

  72. wizofaus says:

    (One other case of visa queue-jumping that nobody worries about, but I know of several such examples personally – people who get married so they don’t have to wait up to 12 months for a de-facto spouse visa. I’d be pretty surprised if there weren’t 100s of such cases each year.)

  73. Patrick says:

    You would be surprised, wiz, and I’m not surprised that you would be surprised, but ffs!

    Do you know anyone who has applied for a spouse visa? Guessing that the answer is no, let me assure you that it is a hell of a lot harder than producing a marriage certificate. I know South Africans, French, Poms, Canadians, Malaysians, at least one Singaporean, a German and probably a few Lebanese who have done this.

    In general, if you are both white with certified copies of a large file containing affidavits from a few well-established community members (school principals, lawyers, etc), a whole bunch of holiday snaps and a nicely written story, you will be ok. If you are anything short of that (and I think the affidavits are the key personally) then you are up for a long application process managed by someone whose base case is that you are rorting the system.

  74. wizofaus says:

    Patrick, I expressly said I knew of several such examples personally. One of them was my ex-wife (we seriously considered getting married just for the sake of a visa, but in the end she was able to ‘jump the queue’ by getting herself a job through contacts of mine that supposedly required some specialist skill that turned out not to be particularly relevant).

  75. wizofaus says:

    To clarify, I’m specifically talking about people who want to be in Australia because of a relationship they are in, but would not have considered marriage if it weren’t the sake of getting a visa quickly. Maybe it’s just the circles I move in but in the last 10 years I’d estimate I’ve come across at least a few couples each year in this or similar situations.

  76. Patrick says:

    Maybe those examples were last century?

  77. Patrick says:

    ah ok. In which case I think that we are probably both right and not necessarily in disagreement.

    Critically such people would have the narrative and supporting photographs as well as, most likely, the affadavits. Even then it is often very hard, particularly if you are South African.

  78. wizofaus says:

    Well we didn’t personally find getting a spouse visa difficult once we were married, even though she was technically a South American citizen. Other couples I know made use of multiple-reentry tourist visas to stay in the country until they were ready to be married or had proof they’d been living together for 12 months. I have other friends who are able to live here largely due to fortunate circumstances (having the right relative, etc. etc.). Out of everybody I know who is here as a recent immigrant (including my partner), I don’t think I could say of any of them “this person waited in the queue and deserves to be here more than somebody who has risked their live on a boat fleeing from a war-torn country”.

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