September 17th 2011

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Articles from this issue:

COVER STORY: Remembering the day that shook the world

EDITORIAL: A decade after 9/11: bin Laden's failure

CANBERRA OBSERVED: Can Labor learn from the Rudd and Gillard fiascos?

IMMIGRATION: Labor in denial after High Court sinks "Malaysia solution"

OPINION: Party of the last, the least and the lost

ECONOMIC AFFAIRS: Australian manufacturing at the crossroads

SOVEREIGN WEALTH FUND: Consensus builds for new national approach

FINANCIAL AFFAIRS: Ruby anniversary of demise of gold-backed currency

MARRIAGE: Same-sex marriage will damage family and society

OPINION: Julia Gillard's gift for Father's Day

SOCIETY: Fatherlessness linked to violence

ABORTION: Women deprived of independent counselling

BOOK REVIEW A sequel that surpasses the original

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Labor in denial after High Court sinks "Malaysia solution"

by Peter Westmore

News Weekly, September 17, 2011

Despite the High Court’s 6:1 judgment against the Federal Government’s plan to relocate asylum-seekers from Christmas Island to Malaysia, senior Government ministers intend to stick with the bungled plan.

The judgment clearly shocked the Gillard Government to its foundations, prompting the Prime Minister herself to launch an unprecedented attack on the Chief Justice of the High Court, Mr Justice French.

As Julia Gillard is by profession a lawyer, she cannot have been unaware that her attack on the Chief Justice was both vindictive and partisan, because she received full media coverage for her attack; but the Chief Justice, who does not involve himself or the court in political controversy, was constrained from responding.

If the former Prime Minister, John Howard, had made such an attack on the Chief Justice, we would never have heard the end of it. Apparently different rules apply if you are a Labor Prime Minister … and a woman.

In any case, the Chief Justice was just one of the seven High Court justices who heard the case, and his reasons are only one of four which are to be found in the judgment.

The essence of the matter involved whether sending asylum-seekers to Malaysia met Australia’s international refugee obligations, as set down in the 1967 Refugee Convention, and embodied in Australia’s Migration Act.

One point which should be made is that the High Court did not challenge, in any way, Australia’s right to remove from this country people who are not citizens of Australia, even if they are claiming refugee status.

It made clear that the Australian Government has a responsibility to ensure that in the case of asylum-seekers, they are to be taken to a country where their claims for refugee status can be determined according to law.

The High Court found that sending people to Malaysia did not meet Australia’s obligations under the convention, which Malaysia has refused to sign. In fact, Malaysia does not recognise refugees under its law and routinely breaches human rights.

Further, the court noted that the agreement which the Gillard Government signed with Malaysia, which purported to protect the rights of those sent there, was not binding.

It therefore found that the Minister for Immigration exceeded his powers in ordering the removal of asylum-seekers from Christmas Island to Malaysia.

Within days of the decision, the Immigration Minister, Chris Bowen, released advice from the Solicitor-General, claiming that sending asylum-seekers to either Nauru or Papua New Guinea would also be unlawful.

This was clearly designed to discredit the leader of the Opposition, Tony Abbott, who for years has called for the re-opening of the Nauru and Manus Island Detention Centres, which were closed after Kevin Rudd came to power in 2007.

In light of the fact that the Solicitor-General was so clearly mistaken in his previous enthusiastic endorsement of the Gillard Government’s plan to send asylum-seekers to Malaysia — he was the one who presented the Government’s case in the High Court — we are entitled to express doubt about his latest opinion.

In light of the Gillard Government’s blind faith in his advice over the High Court challenge, its continued blind faith in his legal advice shows an extraordinary lack of both legal and political judgement.

In any case, the matter before the High Court referred explicitly to the removal of people to Malaysia, not to Nauru or Manus Island.

Interestingly, this very point was made by the majority opinion, which said that “the arrangements made with Nauru were very different from those that are now in issue. Not least is that so because Australia, not Nauru … was to provide the access and protections in question.”

What emerges from the High Court judgement is that it is unlawful to remove asylum-seekers from Christmas Island to Malaysia, and it is inconceivable that Malaysia will remedy the defects in its laws which make Malaysia an unsuitable place to send asylum-seekers.

Recent statements by the Prime Minister and Immigration Minister Chris Bowen that they intend to proceed with sending asylum-seekers to Malaysia is therefore an exercise in futility.

Immigration Minister Bowen’s statement after the High Court judgement, in which he said, “We believe in the Malaysian arrangement … we believe in the regional agreement”, show a government which is out of touch with reality.

If this arrangement were pursued, it would inevitably be challenged successfully in court by the asylum-seekers, leaving the Federal Government even deeper in a quagmire of its own making, without any policy for processing the increasing number of boat people coming to Australia from Indonesia.

The same cannot be said for Papua New Guinea, which signed the Refugee Convention many years ago, or Nauru, which signed it recently. In both these countries, detention centres have been run by Australia, in a way which complies with both Australian and local law. 

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