High Court “disaster”
The lawyers will be cracking open the Moet champagne but the country has suffered a disaster with this High Court ruling.
THE High Court has unanimously rejected the federal government’s attempt to keep asylum-seekers on Christmas Island outside the protection of Australian law.
In a landmark ruling handed down by the full bench of the High Court this morning, the court determined that two Sri Lankan Tamil asylum-seekers, M61 and M69, had been denied procedural fairness.
David Manne, executive director of the Refugee and Immigration Legal Centre, who co-ordinated the High Court challenge, said: “This is a great decision for the rule of law in this country. “The court has unanimously ruled that these decisions on our clients’ cases were unfair and unlawful because the government was not applying ordinary Australian laws on decisions on these life or death matters.”Well, that’s David Manne’s opinion but to classify this as ‘life and death matters’ lends false gravitas and, I for one, don’t think refugees should have the rights of citizens until they are citizens. In my mind, the only winners are the lawyers in the Human Rights industry, the two Tamil Tigers plus, of course, every other future ‘life style shopping’ boaty. What now for East Timor? Forget it – the government will be too busy processing claims once the news hits the People Smuggler Network News to try and come up with any solution to their self-inflicted wound.
The Australian government and the immigration minister have been ordered to pay the pair’s legal costs.Which translates as a mob of legal practitioners are going to be handed a lot of money as payment for their efforts in making it harder to run the country’s borders in any sort of organized manner. So, not only have we exhorted the people smugglers and ‘life style shoppers’ to greater efforts, but if we don’t want them to live here for any legitimate reason we will totally fund their appeal to the High Court to force us to give them what they want – permanent residency. Something wrong there!
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Yes the law is an ass
“I for one, don’t think refugees should have the rights of citizens until they are citizens.”
AMEN!
we have 1000’s here on the Govt. housing list, we have a shortage of water and other utilities, they all crowd into already over populated suburbs and they refuse to assimilate and very few of them find a job. Do we really need them to expand our culture.
Cristal champagne Kev – only criminal and corporate lawyers drink Moet.
From the notes: Serve chilled. Expensively perfumed, Cristal is an exquisite celebratory champagne. The unique and exquisite taste of Cristal make it a proper accompaniment to favourable decisions from Australian Courts dealing with applications for refugee status from people who:
1. Thought Australia was a country in Europe.
2. Lost all their documentation after boarding the boat.
3. Did not lose any of their money after boarding the boat.
4. Can’t believe Australia is so stupidly generous with family reunion visas.
5. Believe “go for it” is the security code for welfare.
$260/bottle. Cheaper in dozen lots. Fully funded by the taxpayer.
Kev
A few FACTS about this case –
1. This debacle was instigated in 2001 with the passing of the Border Protection (Validation and Enforcement Powers) Act 2001.
2. Amongst other things, this legislation excised Christmas Island and some other territories.
3. The legislation was introduced by the Howard government to validate actions taken around the Tampa incident. See extract from the High Court judgement – “The actions in question were actions taken by the Commonwealth, by any Commonwealth officer, or by any other person acting on behalf of the Commonwealth, in relation to the MV Tampa and certain other vessels.”
4. With this judgement the High Court is reacting to our international obligations. Again, an extract from the judgement –
“Australia’s primary obligation under the Refugees Convention is not to refoule (return) a refugee, either directly or indirectly, to a country where they have a well-founded fear of persecution for a Convention ground. Australia’s protection obligations extend to refugees who have entered Australia’s territorial seas. The Pacific strategy in no way detracts from these obligations.”
5. The lawyers acting on behalf of the two Sri Lankans were working pro bono. From the SMH – 11.11.10 –
“For M61, Manne gathered an old team: the barrister Debbie Mortimer, SC, instructed by one of the biggest of the big Sydney law firms, Allens Arthur Robinson. M69 had the Melbourne silk Stephen McLeish instructed by Holding Redlich. All the lawyers worked pro bono.”
Moet’s not free.
A few opinions –
1. The most bizarre aspect of this legislation (Border Protection (Validation and Enforcement Powers) Act 2001) is the excising of Australian territory. Given the problems across the Pacific with refuges and the fact that California, Arizona, New Mexico and Texas all border on Mexico, from which country emanate about 515,000 unauthorised entries per annum into the USA, I wonder why this excising process wasn’t used there. The answer, of course is obvious, but it throws into stark relief the mean and tricky nature of the “Pacific Solution”. If there was any justice at all, the High Court would throw the whole act out the window.
2. Both the Coalition and Labor have exploited paranoia about boat arrivals for political gain. It’s about time each party got their comeuppance, although in this case of course, the ALP have reaped the whirlwind sown by the Coalition in 2001.
3. These are indeed “life and death matters”. Afghanistan. As SIPRI* points out –
“Afghanistan is an example of an armed conflict that resists neat classification as inter or intra-state. The country has been in a state of effective war for some 25 years. Although the Taliban regime was removed in late 2001 with the help of the US-led coalition forces, security and stability has still not been achieved in Afghanistan. Warlords still control parts of the country, while the central government remains weak, which makes it difficult for the millions of displaced Afghans to return home. At the end of 2003, some 2.5 million Afghans were living as refugees in other countries, while over 612,600 refugees returned to the country (whether voluntarily or through deportation) (USCRI, 2004). In addition, some 14,500 Afghans applied for asylum in Europe, North America, and Oceania, and following the return of some 82,000 internally displaced persons, an estimated 200,000-300,000 Afghans remained internally displaced by the end of the year (USCRI!, 2004).”
I wonder what a queue of 300,000 people looks like. I wonder why only 14,500 out of 300,000 have been successful in applying for asylum in Europe. Queue-jumping is a clichéd myth.
*Stockholm International Peace Research Institute
!U.S. Committee for Refugees and Immigrants
Your case presupposes all boaties are refugees and that Australian law is subordinate to that of the UN.
Neither is the case.
Australia’s Humanitarian Program for 2010–11 is set at 13 750. This is set by the government in response to the UN and is reasonable but if they are suggesting that we take whatever flotsam that washes up on our beaches then they are out of line.
What you really need to accept is that most conservatives like myself are not racist or paranoid – we simply believe that a system exists to handle refugees in a humanitarian manner and the boaties are outside that system.
We don’t know who amongst them are are genuine refugees but we do know that some of them aren’t.
I don’t care if the US is overwhelmed by Mexicans jumping over the border. That is their problem and most probably doesn’t have an easy solution. Our problem does. I don’t care that there are millions of refugees fleeing from whatever, wherever. We can’t fix all of the worlds problems so I just tend to worry about our own neck of the woods.
In our neck of the woods a problem existed, Howard et al fixed it with the Pacific Solution. We are discussing the problem again because the ALP feel they need to feed their left wing voters and considering the parlous position they find themselves in then who can blame them.
The ALP have deleted the Pacific Solution and tried to insert the Timor Solution mainly because the Libs thought up the Pacific one first and they can’t be seen to agreeing with anything generated from the enemy camp. Nauru have volunteered to sign up to the UN Charter so the ALP’s only stated objection is crap.
So what we have is that both the Libs and the ALP think we should have an off-shore facility as a means of controlling our borders. That most probably covers 80% of the voting public. Of the other 20% maybe half want to blow them out of the water and the other half want them received with open arms. That 20% only impacts on the country when voters stop reading or lose sight of the overall picture and vote in the Hansons and Bandts of the world – otherwise the 80% have the say and they are saying – FIX IT!
Your Coalition and Labor have exploited paranoia statement is a half-empty-glass type of view. Me, I believe that the politicians really believe it is a problem and like any leak, it needs fixing.
I wonder why only 14,500 out of 300,000 have been successful in applying for asylum in Europe. Queue-jumping is a clichéd myth.
Here’s another cliché – your logic fails as your stats suggests a queue still in existence numbering some 285,500 lost souls.
If it was all pro bono what were the costs awarded against?
Kev
“Your case presupposes all boaties are refugees and that Australian law is subordinate to that of the UN.”
Definition of a refugee – A refugee is a person who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country…”
Source – Article 1, The 1951 Convention Relating to the Status of Refugees
When people arrive on boats, they are vetted to establish this. This vetting is comprehensive – “The department may suggest that applicants undertake DNA testing as a means to prove a claimed biological relationship when available evidence of a claimed relationship is not satisfactory.”
Source – Australian Immigration factsheet.
My case doesn’t presuppose anything – it argues that these people have a right to be vetted. Under the convention (to which this country is a signatory) – they do.
“Australia’s Humanitarian Program for 2010–11 is set at 13 750. This is set by the government in response to the UN and is reasonable but if they are suggesting that we take whatever flotsam that washes up on our beaches then they are out of line.”
Why call them “flotsam”? Where the Vietnamese who turned up flotsam? Are those who overstay visas flotsam? The resettlement program is an ideal – it’s never been met. The numbers involved in this country are insignificant –
“Australia hosts 1 refugees per 1000 inhabitants of our country, compared to the United Kingdom (4.7 refugees per 1000 inhabitants), Canada (5.2), Switzerland (6.1), Germany (7.0), Norway (7.5) Sweden (8.3), Chad (29.5), Montenegro (39.6), Syria (50.5) and Jordan (79.2). Australia ranks 77th in the world when countries are ranked according to the number of refugees they resettle relative to their GDP per capita. Australia ranks 69th in the world when countries are ranked on the number of refugee they resettle on a purely per capita basis. Australia hosts just 0.2% of the global refugee population.Australia can typically expect to receive a few thousand asylum seekers coming to our country each year, by boat and plane. Yet in 2008, the United States received 49,000 asylum seekers, Canada 36,900, France 35,200 and the United Kingdom (30,500)About 48,500 people overstay their visa in Australia each year, many of whom are from wealthy countries.”
Source – A Just Australia
“What you really need to accept is that most conservatives like myself are not racist or paranoid – we simply believe that a system exists to handle refugees in a humanitarian manner and the boaties are outside that system.”
I accept that, but I also accept that there is a component of our population that can be used by unscrupulous pollies (of all persuasions) because they are racist and/or paranoid.
“In our neck of the woods a problem existed, Howard et al fixed it with the Pacific Solution.”
Lots of problems exist – the road toll, for example. It could be easily fixed by passing legislation that bans private use of motor vehicles. This would be a fine example of a disproportionate response to a problem, just as the Pacific Solution was.
“The ALP have deleted the Pacific Solution and tried to insert the Timor Solution mainly because the Libs thought up the Pacific one first and they can’t be seen to agreeing with anything generated from the enemy camp. Nauru have volunteered to sign up to the UN Charter so the ALP’s only stated objection is crap.”
Absolutely. This simply demonstrates the absurd lengths both parties will go to in the interests of setting up a good wedge.
“So what we have is that both the Libs and the ALP think we should have an off-shore facility as a means of controlling our borders. That most probably covers 80% of the voting public. Of the other 20% maybe half want to blow them out of the water and the other half want them received with open arms. That 20% only impacts on the country when voters stop reading or lose sight of the overall picture and vote in the Hansons and Bandts of the world – otherwise the 80% have the say and they are saying – FIX IT!”
I’m not sure that your estimates approximate the truth. The most in-depth survey on this topic (done by Essential Report on 2nd November 2009) showed that on answer to the question – Do you think a Liberal Government would do a better, worse or much the same job in dealing with the issue of asylum seekers and refugees in Australia? The results came out – Better – 21%, Worse – 26%, Much the same – 40%, Don’t know – 13%. Hardly conclusive, or majorly divisive for that matter. Seems as if “Stop the boats” may have fallen largely on deaf ears. Labor are mugs for joining the chorus.
Source – Essential Report – 02.11.09
“Here’s another cliché – your logic fails as your stats suggests a queue still in existence numbering some 285,500 lost souls.”
Not a queue, a group of living and breathing human beings. When your life is at risk, there’s no such thing as an orderly queue. Rules don’t apply. Would you risk your kids’ lives while you waited for a document? Seeking asylum without a visa is not illegal. Would you travel around the badlands of Afghanistan with your family looking for a UNHCR official?
“If it was all pro bono what were the costs awarded against?”
The adversarial legal system doesn’t handle pro bono cases well. It wasn’t set up to. What happens currently is –
“There is some uncertainty regarding the circumstances in which a court may make a costs order in favour of a successful party represented on a pro bono basis.
To overcome this uncertainty it has now become common practice among law firms to enter into a form of conditional costs agreement with their pro bono clients. Under this arrangement, generally the parties agree that the legal practitioner will be paid only where the pro bono client obtains a costs order and those costs are paid by the other party.”
Source – National Pro Bono Resource Centre
So costs can still be awarded where the lawyers work is pro bono.
Pro bono….I guess if a client believes he is party to a pro bono agreement then he thinks he is party to a “benevolent” agreement with a lawyer. (Unheard of in today’s world)
In actual fact if there is a win with costs awarded the client will be surprised to learn that nowadays pro bono actually means the lawyer will be paid if he wins. There is no benevolence involved unless the lawyer proves to be foolish in the way he chooses his client and loses the case.
Just send them to East Timor – problem solved. Just ask Jooliar.
By the way 17 bobby red-herring I award you a CY for your demonstrated competence at copy and paste.