A very important decision has been handed down by the High Court today, affecting the offshore processing of asylum seekers.
It restores fairness (at least in terms of natural justice and judicial review rights) to offshore boat arrival asylum seekers, but simultaneously increases pressure on the Gillard government to find a workable political solution.
There’s more at Crikey.
*/Tony Abbott’s head explodes/*
For the second time in 24 hours.
Not only Tony Abbott.
“Coalition backbencher Philip Ruddock, who was immigration minister in the Howard Government, has called it a “diabolical” decision.”
Indeed, a ‘diabolical’ unanimous decision from a Court packed with Howard appointees. Don’t they realise on whose side they’re supposed to be.
Speaking seriously, it will be interesting to get to legally informed opinions on what this decision will mean more broadly for government strategies to exempt procedures from legal and judicial scrutiny by actual or de facto privatisation and/or outsourcing of elements of those procedures to private actors.
I know he’s talking about criminal sentencing rather than the High Court here, but this is an interesting coincidence.
Gordon below Franklin … Mabo … Tamil Asylum Seekers …
Yet again, I give thanks to our Federation’s Founders for creating a High Court able to scrutinise our Parliamentary legislators within the limit of our Constitution and hand down their decisions without fear or favour.
And the thought of Howard’s Ruddock’s, Andrews’ etc as well as RWDB spleen at this decision is as a sun shining through this dark day.
Philip Ruddock, who was immigration minister in the Howard Government, has called it a “diabolical” decision.
The devil made them do it.
It’s brought out the wingnuts in droves on the NewsCorp blogs.
Well said DeeCee.
True to form the ABC runs with this headline:
“Immigration facing ‘chaos’ after High Court decision”
The word in scare quotes comes from none other than the opposition spokesperson, Scott Morrison.
They really have no shame.
I wouldn’t mind being a judge. It certainly gives one more say than ordinary voters in national decision making, and certainly has more clout than being the government.
SATP: it also comes with a hefty salary and your own driver, plus gratuitous public character-assassination by Bill Heffernan. What’s not to like about a job like that?
Judges role is a bit more limited than it looks at first glance. Judges only get to have an influence on matters that come before them. The other restriction is that they are basically excluded from making any other contribution to public debate or the political process.
Nonetheless great day for the High Court – reminding us that the rule of law does mean something and there are some limits on what the executive can get away with.
Paul @ 8, reading the News Ltd blogs after a decision like this is one of life’s little pleasures. The best part is that there’s nothing the wingnuts can do about it, and they know it.
As Adrian noted, Scott Morrison is whipping up fear and loathing already. Stand by for George Brandis to ponder whether the High Court’s decision might be unconstitutional.
Stand by for George Brandis to ponder whether the High Court’s decision might be unconstitutional.
The High Court’s decisions are constitutional by definition, so Gorgeous George will need a different line of attack.
Botched the link. Help, please, mods.
Abolish their ABC or make the Liberals pay for it.
Quite so. That’s because, to quote one of Tony Abbott’s favourite lines: “Be you ever so high, the Law is above you.”
Now he can choke on that line, and so can you, SATP.
I don’t see what I will be choking on Mercurius. I am neither above the law, nor bigger than the system.
Unlike judges.
The Phil Ruddock thing is just political. He knows full well that these laws strike at the bases of law and justice and their establishment as a precedent creates the conditions by which Australian law can then be turned on the citizenry here, also. Eg Dr Haneef and NT Intervention type situations that come from the rescinding of basic principles and practice of law and justice.
In Adelaide, a case brought by Bikies against the state governments laws by fiat, has also been called out by the courts, today.
We must get back to “innocent till proven guilty”, in an open court, and under circumstances where evidence can be then be tested on its merits.
But Ruddock and his mates know that the refugee issue is the one issue they still have guaranteed to arouse the fearful and ignorant behind them and they will destroy the communities faith in its institutions, rather allow the legitimacy of their wedge policies to be questioned.
Dear Steve,
Judges keep mugging me in the street. When I protest, they say that they are above the law. What can I do?
Yours in powerless despair,
James.
Oh no James T,
Judges mug you in the Courtroom.
The street is unlike the courtroom in that when mugged in the street you may have some recourse. There could be an outside chance that on the street you will be able to fight back.
Well, of course, SATP.
What would someone with an IQ of a hundred and forty and two generations studying the philosophy, theory, and practice of law know, against someone sitting on a barstool, holding forth with pint in hand, against “foreigners”?
Unless you are thinking of Phil Ruddock, when it comes to a good example of what you imagine a “judge” to be ( eg, as someone megalomaniacally setting themselves above the law and justice, out of political expediency dressed up as greivance).
Paul Walter, if judges have an IQ of only 142 then I am indisputably their superior.
The rest of your comment is unrelated to anything I have said, & probably relates more to your prejudices or failures in life. (After all, the sun is over the yardarm at your place, isn’t it?)
You’ve got to feel sorry for SATP – the world’s just a bit too complicated for him. You know, things like an independent judiciary, it’s just too hard for some people to get their empty heads around.
Your empty head may have problems getting around many things Adrian, including my being a better man than you.
There is however, nothing about me for anyone to feel sorry for.
Naturally the “man of steel” will disagree with the High Court decision. No need for kryptonite, a feather will do as he rusts away into oblivion.
I am pleased the High Court showed its liberal heart.
Note the small “L” folks.
The way the Immigration Department has distanced itself from the running of detention centres through the use of cut outs (overseas corporations) with limited accountability to the Australia citizenry we could be running concentraton camps for all we know. We know that prisoners guarded by corporations regularly die through breaches of their human rights.
Does SATP have an IQ of 143?
Bullshit. The highest law of the land is the Constitution. Parliament does not have the power to make laws which breach the Constitution. The High Court exists to ensure that Parliament doesn’t.
Referenda can change the Constitution, so ultimate power still lies with the people. So quit yer whinging, pub boy.
Your commitment to Constitutional democracy runs brave and true, provided it doesn’t conflict with any of your prejudices.
Billie, when last tested, I was considerably higher than that. No big deal, all that is measured is one’s ability to see the answer to questions in an IQ test. It isn’t anything to skite about.
I have worked for men who wouldn’t have a hope with an IQ test, but whose mental agility has left me for dead.
Mercurius, I think you’re picking a fight with someone who isn’t interested in your ramblings.
I am at least consistent, having been on this site a continual of the judiciary.
If pub boy is meant to be an epithet you are missing something, as I am not interested in criticism from my inferiors.
It was a majority decision which means that the plaintiff’s legal reasoning convinced the four Howard government nominees.
I am a strong supporter of tight border control. But I don’t much like the sound of ministerial decisions being out-sourced to private agencies – in general and especially in this case.
“… my inferiors”.
We are glad you are not a megalomaniac, despite your manifest and exceptional talents, as modestly presented by none other than yourself.
SATP, we know your suspicionofpolitics andpoliticians and we largely share the scepticism.
All the better, as Adrian suggests, to uphold seperation of powers and an independent judiciary, judging cases on merit rather than out of political expediency, by fiat.
As history has shown us, having the judiciary in lockstep with the Government always works so well. The Soviets knew a thing or two. Get the doctors onside and your opponents are either criminals or mental but certainly safely behind bars.
So, SATP, can you show us how Mercurius’ ‘ramblings’ are incorrect? I await, fascinated.
I am increasingly of the opinion that SATP is Ed Dolan the Great’s long lost Queensland cousin.
I’m sure SATP would admire the way the people’s representative Mahatir Mohammad put judges in their place.
I don’t think either picking on Steve or responding to his jibes is a really productive use of the comments facility on LP. It’s not really about a dialogue.
@patrickg: Well said.
Getting back to the matter at hand, what took refugee advocates until now to take this to the High Court? The overturned law dates to 2001…
Looks like SATP should climb up on the stool and reach to the uppermost shelf, where the really strong stuff is.
Stop Press:
Publican grows another brain. Donates original to Mensa.
An appeal can’t just go straight to the High Court. It has to work its way through the schedule of several lower courts first. The law grinds slow and fine, remember?
P.S. an appeal also has to be made in the name of somebody directly affected by the law in question, and who is willing to make the challenge. The two asylum seekers involved in this case only arrived in 2009.
when I read that the High Court found the current law denies asylum seekers procedural fairness, my first thought was, like, duh. Wasn’t that Howard’s point?
I’m glad this has finally made it to judgement – maybe we will start treating our asylum seekers like they were human beings?
The real irony is this decision looks much worse for the coalition policy, as their offshore program would be AUstralian-run. The ALPs UNHCR run plan might be affected, but it much less likely.
Billie I think it’s an Intake Quotient for Schooners At The Pub, (per week one assumes for patrons who hate the judiciary?)
That’s fair enough, Patrickg — I defer to Steve as a world authority on the subject of The Superiority of Steve. It is his favourite topic, he has a lifetime’s experience of studying it, and so I’m sure he is entitled to expound upon it at every opportunity on every thread, as he does. However, his egregious and proud ignorance about the way in which Parliament and the High Court interact needed correcting.
And although FMark’s question @40 was undoubtedly made in good faith, it also reveals quite a low level of understanding of procedure and indeed the details of the case.
Decent civics education at schools might lead to some improvement in understanding of how courts and parliaments interact. But the success of such programs would still depend in part on whether or not the Steves of this world could hear the teacher over the sound of how awesome they are.
‘The penchant of both the ALP and the Liberal Party for creating legal fiction so as to deny asylum seekers their human rights has come unstuck this morning.’ Greg Barns The Drum
Kim, the score so far; rule of law .75, others…
big picture and big dick nil;
the lying rodent nil;
slightly tampa aka the washington windbag nil;
(ps ”This country and this Parliament do not need a carping opposition, what they actually need is an opposition that understands the difficult circumstance in which the government finds itself.” per Daniel Flitton Age)
the blonde rodent aka Kevin Kaldwell nil;
And last but not least the red rodent’s ‘joke’ moment arrives…heh heh…
Scorers & focus groups scrambling. Leadership 12 o’clock high. Citizen’s assemblies on your marks.
Pigs and wings.
Apparently the Timor solution is outside the confines of the decision.
In any case, its a good decision. And it shows to what extent the Howard Government and Abbott Opposition were/are prepared to act unconstitutionally to maintain a dog whistle scare campaign on the alleged hordes supposedly descending upon us from the ever-threatening north.
One in the eye for the Rodentochracy and their ignorant cheerleaders, a light on the hill for the Constitution, separation of powers and our democracy.
However, I’m sure the Smuggles Set will continue to run through the streets with flaming torches, proclaiming their inalienable right to put themselves above the Constitution and the law, until the next dog-whistle.
We must never go down the path of elected officials of the legal system; you just have to look at the US to know that’s a path that should remain well and truly untrodden, in fact strewn with boulders and impenetrable vegetation.
Actually this case was brought in the High Court’s original jurisdiction. It has not been grinding away in any lower courts.
The question remains why did it take so long for someone to bring this argument up?
Matt D, your anachronistic question was answered @ 43. Did you actually read the answer, or are you just trolling?
The question remains have you stopped beating your wife?
Some questions are not worth answering. This is one of them. You might as well ask why it took so long for Mabo to challenge Terra Nullius, after all, it had been legal precedent for two hundred years.
Tendentious questions get testy replies. Get used to it.
@19
But are you a moron?
Very testy replies, Mercurius.
It’s a genuine question on my part. Call it a sense of idle curiosity really – I don’t expect an answer. I just wonder why no-one thought of it before.
I understand that these applicants only arrived in 2009, but surely there have been others in similar circumstances between 2001 and now.
Interesting that even Howard appointee Dyson Heydon voted down the law. Heydon is so far to the right he has slipped into a black hole and emerged in a parallel universe, yet he joined the other six judges.
Explained by First Dog on the Moon at Crikey here
Explained by First Dog on the Moon at Crikey here is the correct link
The necessary combination of applicants willing to take it to the High Court and applicants with an absolutely clear-cut case of being denied natural justice under the separate regimes may not previously have arisen.
Why is this “interesting” Sam? Do you expect High Court Judges to make decisions based on their personal politics? That is the very antithesis of juridical thinking. Heaven knows Michael Kirby came down on the “conservative” side of any number of judgements while he was on the bench.
Why is the concept of an independent judiciary so alien to so many people? And since when did we become so awash with hyper-partisanship that it’s “interesting” for a judge to approach an issue based solely on legal, not partisan political, considerations?
Mercurius, maybe it comes from the reasonable observation that Howard and co would use any opportunity or institution to trash and rig the system their way.
What an appalling bunch of stooges he appointed to the ABC Board, for instance; who, true to form, destroyed any chance of balanced media opinion in this country.
But I see what you say. Dyson Heydon is a rule of law kind of guy that Abbott would have replaced with an elected parrot. He, being not of an “ideal class” as we are all painfully aware.
http://www.onlineopinion.com.au/view.asp?article=269&page=1
Dyson Heydon, by way of explanation of “ideal class”, says at the end of his article.
Well, of course!
Judges have never been there to make laws, merely interpret the ones brought into being by politicians, against the constitution, in a functioning (?) society like ours.
There needs to remain a fair sense of natural justice which may require a certain objectivity, away from the politics, so that a particular law can be seen in isolation and its affects, fair or unfair, on individuals or groups, can be determined.