In news just in, the High Court has granted an injunction against deportation of the asylum seekers who have recently arrived on Christmas Island until tomorrow, to enable argument in a case brought to assert that their deportation is illegal to continue.
[Via Julian Burnside on Twitter]
Update: [by Mark] Jessie Taylor explains:
At 8pm tonight, Justice Kenneth Hayne of the High Court granted limited interlocutory (interim) relief (an injunction) to 41 plaintiffs who are people who risk being removed to Malaysia under the Malaysia solution. They are citizens of Afghanistan and Pakistan. A number of them (around 6) are children.
At the outset, Hayne J suggested that he should consider granting interlocutory relief to 4.15 tomorrow so the matter come back before him for further argument at 2.15 tomorrow.
Debbie Mortimer SC for the Plaintiffs stated that there were 16 plaintiffs scheduled for removal tomorrow at 11.30am. There has been no decision made in respect of other plaintiffs.
In order to get interlocutory relief (in this case an injunction), the applicant must prove that there is “a serious question to be tried” and that it is favourable “on the balance of convenience” that the relief sought be granted.
Counsel for the defendants (the Minister for Immigration and the Commonwealth of Australia) stated that they did not wish to put any arguments on balance of convenience, other than the fact that it costs a lot of money to delay the transport of asylum seekers to Malaysia.
So the issue was really “is there a serious question to be tried”?^ (see below for the serious questions as put by the plaintiffs and outline of argument and questioning from the bench)
There was a period of argument about that, during which Hayne J put both counsel through their paces.
In the end, the Plaintiffs were seeking two strands of interlocutory relief:
1. an injunction stopping removal to Malaysia
2. an injunction requiring the Commonwealth to afford the asylum seekers a reasonable chance to get legal advice
Hayne J did not believe it necessary to grant the second stem of the relief, because s 265 obliges the Minister to do so.
But he did grant the first strand of relief, saying that “[the asylum seekers'] claims should not be defeated by their removal from Australia if I cannot say those claims are hopeless”
His Honour expressed no view on the merit of the arguments put before him tonight, but could not say that they are without merit. His Honour stated that the plaintiffs should have the limited relief they seek.
So there is now an injunction in place stopping removal to Malaysia until 4.15 tomorrow (or further order), and the matter will return before Hayne J at 2.15 tomorrow for further argument.
See the continuation of the Facebook note for the outline of legal argument.
The plaintiffs have an uphill battle ahead of them but this is an important first step!
Update: As noted in comments, the injunction has been extended until the High Court can hear the case, probably in the week beginning 22 August.
Is Hayne a judicial progressive or a judicial conservative?
I’ve never really trusted the High Court since Howard stacked it.
Definitely conservative.
This is a really interesting development though…
http://www.theage.com.au/national/judge-puts-heat-on-gillard-20110624-1gjnx.html
Hayne J is definitely no bleeding heart but doesn’t seem to be keen on the idea of Australia breaching the bejayzus out of its international obligations, either.
Will be interesting to see what happens!
Why was Ratty’s “Pacific Solution” not challenged on the same bases?
Hmmm.
I wonder what the ultimate consequences of this line of argument end up being.
A majority of Australians, since 2001, have supported positions that imply that they do not really agree with the obligations that the UN Refugee Convention places on Australia.
If the High Court finds that the Malaysian Solution is incompatible with our convention obligations, would the Australian government seek to explicitly withdraw from the convention?
What would the Labor left do in such circumstances?
What would the effect on Australian public debate be?
I’m sure Julia is out there doing the Lindsay test as we speak.
The HC may enjoy poking a stick into Labor’s spokes on this one just for the hell of it.
This essay, “Lest we Forget” by Julian Burnside is very timely.
As they say – read the whole thing.
This whole matter seems utterly incredible — or it should be. The ALP took an issue on which they could have taken the high moral ground, with political advantage and turned it into an issue in which their failure to take the high moral ground actually costs them votes even from people who want to abandon that ground.
If your project is a political own goal, it’s brilliant in its conception and execution. Ensuring that almost everyone thinks your policy is rubbish is actually a lot harder than it sounds.
“If the High Court finds that the Malaysian Solution is incompatible with our convention obligations, would the Australian government seek to explicitly withdraw from the convention?”
That would be one of those reforms that only the Labor Party could do and would make them the leaders on ‘who’s toughest on refugees’. They’d be dumb not be seriously considering it. I think they/we would ‘only’ have to withdraw from the 1967 protocol which we acceded to in 1973, so the main treaty could stay intact and we can continue to promise to be nice to people effected by events in Europe prior to 1/1/1951.
d
The ALP has wedged themselves on this issue.
The Coalition supporters might be up for the harshness of it but they’d rather it was done by a party that actually believed 100% in what they are doing.
And really, can any of us excuse this government which amazingly has found something worse than the Howard solution? Why aren’t we protesting this as hard? Are we willfully blind on this issue?
So the ALP will bleed votes on this either to the Coaltion or to The Greens.
I know I won’t be voting ALP again. It’s heartening to see members of the Coalition suddenly discover refugee rights in amongst all this.
Sadly, the mandatory detention regime opened a Pandora’s box of opportunities for low rent political agendas, which politicians like Howard and Abbott have exploited ruthlessly. Labor is scurrying to find a regional approach that stops boats but doesn’t breach the UN convention on treatment of refugees. It will not adopt the full Pacific Solution, but in the eyes of human rights advocates it is failing to meet its progressive charter in this area by deporting AS to Malaysia.
Abbott knows he is on a winner with large slices of the electorate, accustomed to his brand of political correctness – its ok to be afraid of refugees and to treat them like social pariahs, but ‘don’t worry about that while I’m around!’. This was the Howard credo, honed so well after Tampa. Get the troops out to bash Labor on every issue that panders to our darkest fears. Set up the straw dog to fear, find someone or some group to blame & punish and then put yourself forward as the saviour of the day. The security man who sells you razor wire to keep out pygmy possums, and if they still get in, rounds them up and trains them to do your every bidding. Its always easy when the group you are hounding are defenseless, vulnerable and scared of being kicked back over the fence.
Labor is continually playing catch up, rather than biting the bullet by re-examining the rationale for long-term mandatory detention and changing the tenor of the whole debate. Leadership requires courage to take the steps to change opinion through education and cogent debate – something easier said than done. Labor is wedged between the fear of the ‘yellow peril’ bogey that conservative parties have trotted out successfully throughout our short history and the progressive left’s advocacy for the universality of human rights. Given the reality of our body politic Labor finds the ‘middle ground’ approach a difficult sell.
what Fran @ 8 said.
In any case, withdrawal is not that simple.
IANAL, but Wikipedia claims that “non-refoulment” is part of customary international law – that is, you can’t just withdraw from the treaty and have that particular part not apply.
The relevant statement from the convention is:
If that’s the case, the Australian government might still be in international legal pooh with the Malaysian Solution even if they withdrew from the refugee convention.
Even if the Malaysian Solutionis allowed to proceed by the High Court we should still withdraw form the UN Convention on Refugees.
This doesn’t mean I don’t think we should accept refugees, just acknowledgemtn that the current convention does not reflect current circimstances of refugees bypassing multiple potential safe haven countries to travel halfway around the globe to their preferrred destination.
And, even if we do not comply with the UN convention – who is going to do what to us? Hold their breathe until they turn blue?
Something of a propaganda victory for Labor, though, using asylum seekers against each other.
The Taithoul family don’t know they’re being used as pawns in a political stoush. They’re just grateful for a place and the “queue jumper” narrative that has an attractive internal logic if you don’t question it.
OBR:
And which “safe haven” countries has your average Afghan or Sri Lankan refugee passed through on her route to Australia? Only a troll would pretend to be oblivious of the fact that this furphy has been exploded innumerable times.
Katz, that has been explained again, and again, and again. Anyone still pushing that talking point is just relying on the ignorance of the general public (which is carefully left undisturbed by the government of the day) and is presumably immune to further explanations.
Robert, if I recall correctly to denounce (ie withdraw from) the Convention only requires a decision of the Federal Executive Council and written notice to the Secretary-General. It would be a really big deal internationally, and the only ‘benefit’ would be as a domestic political statement, there wouldn’t be any legal effects directly as a result of denouncement.
IANAL either but the Government’s problem in Court right now is because they are trying to make some significant changes to how we deal with asylum seekers without going through Parliament and amending the Migration Act. The Convention and Protocol (and all treaties) have no legal force in Australia, except as embodied in legislation and there are no international processes that can compel Australia to comply with its obligations in the treaty. (well, maybe a resolution of the Security Council with a threat of force could, but that’s even more unlikely then us denouncing the convention :^)
From the letters in todays Sydney Morning Herald
Read more: http://www.smh.com.au/national/letters/greed-and-ineptitude-when-will-we-ever-learn-20110807-1ihk2.html#ixzz1UP45sGqY
This really is shitty politics, and a green light to those who say withdraw from the Convention, which would be a disaster.
The ALP should have taken the wiser course of simply orienting our offshore quota toward the SE Asian camps – where we’ve rarely taken anyone. This would have seen the boats slow considerably – if there was some point in waiting, some hope (ie an actual queue) which has never existed until now – all the evidence suggests boat numbers would drop enormously.
Not as much as they will now, true, but by more than enough to solve the political headache.
Stupid, stupid politics from the ALP.
Withdrawing from the convention would be many things, but it is hyperbole to call it a “disaster”
Why aren’t the children being returned to their Parents or Guardians?
@17 – Katz – the old “not a signatory of the UN Convention” meme is dead. The Goverment shot that one down with the Malaysian solution.
Most Australians are of the opinion that once refugees have decamped from where they are under direct threat and are in a country where they are no longer under direct threat then the option of travelling under there own steam all the way to Australia should be off the table.
Razor, you seem to have missed the entire OP. The injunction is upholding the UN convention, so far.
The High Court may beg to differ. A treaty has the same status as legislation under the Australian Constitution.
I thought every schoolboy knew that. I was wrong, apparently.
Helen and Katz:
Dr Adam Carr said some months back on Poll Bludger that the Convention does not oblige Australia to admit everyone who claims to be a refugee – he said no government would have signed it if it had – and that processing them in the Australian communitiy would mean that they could claim in Australian courts that they had “acquired roots in the community” and should be allowed to stay even though they were not genuine refuguees and that is why mandatory detention was introduced.
And how is that different to any asylum seeker arriving by plane, or overstayer ditto?
adeleadlslv, your comment simply reinforces the fact that Australian governments recognise the determinative power of the High Court in relation to the interpretation and execution of Australia’s treaty commitments. In others words, governments have run scared ever since Ratty excised bite-sized chunks of judicial oversight.
An article in the OO which quotes Professor Mary Crock:
Via New Matilda.
Robert, the power of the government over matters of immigration is only indirectly related to matters under consideration.
Of course the government may use due process to attempt to deport any non-citizen.
The matter at issue here is the question what does constitute due process? This is an issue much broader than immigration. It strikes at the heart of the precise separation of powers under the Constitution.
I thought the injunction would be a fair chance to get up, Robert M fleshes out its real location within the wider unfolding picture of events unfolding. Gillard is enthusiastically attacking “left” positions on other political issues just now; knocked back an abstention proposal, to support Israel and the Tasmanian enviro deal smacks of smoke and mirrors.
Labor seems happy enough to see the likes (overwhelmingly) of we LPer types remaining in the Greens camp, while they chase after the Hansonist votes of the centre right.
The issues don’t count, accept in relation to how they may impact of the election cycle.
PS, wonder what Harto said to Julia Gillard the other night, when he summoned her the other night?
adeleadlslv@26
Adam is a member of Senator David Seeney’s staff and also believes the Convention should be scrapped because it fails to deal with the ‘modern reality’ that there are tens of millions of people trying to move from poor countries to rich countries, all claiming to be victims of persecution, and that the objective of refugee policy should be repatriation not resettlement. That is, refugees should be allowed to stay in a host country only temporarily, until their country of origin is safe for them to return to, and then they should be returned.
That being said, I think it’s correct that the intent of mandatory detention is at least partly to limit the legal options available to asylum seekers.
d
I agree with Helen “they are exercising the right which every person has in international law to seek asylum in any country they can reach”. They have sure reached through a lot of countries to get here though. When do they stop being refugees, when they are out of danger or when they find somewhere they like?
Breaking news: the injunction has been extended and the matter has been set down for a hearing by the full bench.
We may be about to witness an interesting moment in the constitutional history of the nation.
I think governments have been afraid that asylum seekers making roots in the community not just from a legal point of view, but a more practical one. Look at what happened with the Kosovo refugees who lived in the community and formed real relationships with the Australians. They then had a lot of community support to stay. Mandatory detention has had the effect of turning many Australians against refugees through fear of the unknown.
As a general comment I think its a pretty sad situation where the ALP has gone so extreme on the treatment of asylum seekers that the liberal party really does have a more compassionate policy towards asylum seekers now.
A hearing by the Full Bench. About time too.
It’ll be good to see the coalition cheerleaders in the media become overnight converts to an ‘activist’ High Court.
Annabel Crabb said on Insiders yesterday that when the Labor Left got together to vote on the immigration policy in the 2004 National ALP convention the vote was around 160-1, the one was Julia Gillard.
So, Nauru is OK but Malaysia is not; is that right or will the HC finding effectively scrap Nauru if it scraps Malaysia ?
JdM, why on earth would you believe anything that Annabel Crabb has to say about Julia Gillard, particularly when she’s on that propaganda arm of the Liberal Party, The Insiders?
Wantok @ 38 – isn’t the difference that with Naura the Australian government remained ultimately responsible for the welfare of the refugees, whereas with the Malaysian solution they are transferring responsibility to Malaysia?
She’s kinda right and kinda wrong. The vote wasn’t 160-1, but Julia Gillard was one of only a few left delegates at the 2004 National Conference to support a policy which continued the mandatory detention regime.
adrian @ 39 – from the green left weekly that few would claim is a propaganda arm of the liberal party:
http://www.greenleft.org.au/node/30584
Update: As noted in comments, the injunction has been extended until the High Court can hear the case, probably in the week beginning 22 August.
Thanks, Mark and Chris – Crabb was wrong after all ; )
that propaganda arm of the Liberal Party, The Insiders?
Bwahahahaha
adrian @ 46 – well was probably just a bit of hyperbole on Crabb’s part – the main point stands – even though Gillard is from a left faction she voted for mandatory detention in opposition to most of her colleagues. I don’t know how true it is, but I was told she is from the “Ferguson left” which is not really that left-wing in its views – and that seems to match with the policies she’s actually implementing. After all who’d of thought the ALP would implement or more extreme immigration policy than the libs are willing to! And her education and welfare policies are not exactly what you’d normally expect from a left-wing faction.
Yeah, keeping it real: there’s very little chance the HCA will halt the Malaysian solution. The issues will be very much more about the extent of the Minister’s powers to make decisions within their statutory discretions under the Migration Act; rather than whether our treaty committments are being breached.
Its effectively a “safe third counries list” type issue, and I wouldnt hold out too much hope of the HCA making an ultra vires stand on that. There’ll have to be a political response.
This is what Rudd meant on the night of the long knives by “lurch to the Right”.
It’s precisely what he meant, Lefty E.
One thing straight. The Malaysia solution is definitely better than what Howard and Ruddock had in place. Temporary Protection Visas and Nauru were both draconian policies. TPV’s destroyed lives. Nauru destroyed lives.
Malaysia increases our refugee intake. Some refugees are treated harshly; some are treated better. The Australian public over 15 years of debate has demanded of our politicians that we treat refugees harshly. The ALP has bowed to this reality while putting in place a policy slightly better than the conservatives who have both followed and inflamed public opinion.
ALP policy today makes the best of a very bad job. Australians, in common with the people of other rich countries, wants to have nothing to do with refugees. If there was a referendum on the 1958 Treaty tomorrow this terrible political problem would go away once and for all. Sadly.
Stop scapegoating individual politicians. The problem is us the voters.
@50:
I agree that the argument based on s198A (that the Minister’s power to declare certain countries to respect human rights) is probably a long shot; I just can’t see any precedent for the High Court declaring, contrary to the fairly unequivocal language of the section, that the power can’t be exercised purely to the Minister’s own satisfaction. The argument is that s198A requires the existence of jurisdictional facts – that is, that Malaysia DOES respect human rights, not merely that the Minister can declare it to be such. I just think it’s a bridge too far to expect the High Court to declare that those facts aren’t satisfied on the evidence presented – it blurs the fact/law division too far. If it was North Korea and it was a manifestly absurd claim, perhaps.
The M61/M69 aspect of the claim is interesting – that removal of refugees without any due process violates the obligation to exercise removal powers in accordance with procedural fairness – but I suspect the facts are too far removed from those under M61 if such removal is merely considered as part of the broader ‘processing’ (with removal to Malaysia being one step on their long road to acceptance or rejection). (This is all just a layman’s analysis, though.)
I hope they get up. I really, really do. But it’ll be tough.
And the Malaysian solution is going to even more effectively destroy lives than the TPVs or the Nauru solution. Clearly the increase in refugee immigration could have been done at anytime without sending asylum seekers to Malaysia, especially unaccompanied minors. Linking the two is politically convenient for the government, but disingenuous by them.
I am probably the only person who thinks this policy is actually reasonable. I would like immigration to be done through due process where-ever possible. I like national boundaries to be respected and for people to arrive in appropriate terminals such as airports and go through customs inspections. I don’t understand why it is so hard for some people to realise the immense differences between overstaying a visa or asking for asylum when you arrive in the airports to risking life in dangerous waters and just walking in to the country. I reluctantly accept that Howard’s famous line is actually rather reasonable. We should increase our humanitarian quota of refugees and encourage other wealthy nations to do the same. Those seeking asylum and arrive on Australian shores, should actually be processed in a queue like way. If there isn’t a queue, as many say there isn’t, then we should very well create one! If through this immigration swap we end up giving asylum to more people and it also stops people from seeking asylum by boat arrival (yes it is boat arrivals that are the problem, not other means) then I support it.
We should do more to help the running of UN refugee camps around the world, and settle as many people as we can reasonably afford to, but we should do this without encouraging people to risk their lives, or to short track the bureaucratic immigration progress. Please note that I totally understand why people do take this risk to arrive here, and I would most likely do the same in their circumstances.
James, it is drivel. Anyone has the right to seek asylum and it is nothing at all to do with immigration.
The ignorance in this country is absolutely astounding.