22 Jan 2013

Manus Legal Challenge Is Bad News For Canberra

By Ben Eltham
The legality of an Australian detention centre is on trial - in the court of another nation. It is another obstacle faced by a government on a quest to deprive innocent people of their human rights, writes Ben Eltham
The difficult art of government has many challenges, and its practitioners know many failures. But there is something about asylum seeker policy that seems especially corrosive to Australian democracy.

If you need a recent example, look no further than the legal challenge being brought by Papua New Guinea opposition leader Belden Namah to Australia's immigration detention centre on Manus Island.

Namah plans to challenge the legality of the centre in PNG's Supreme Court. He argues that the PNG Constitution protects individuals against detention without charge, and that asylum seekers being held there have not been charged with any crime.

The Gillard Government has already lined up to attack Namah, describing his challenge as political. Labor Cabinet Secretary Mark Dreyfus told Sky News today that "I think when you've got the Opposition Leader in Papua New Guinea bringing a proceeding in the Supreme Court in Papua New Guinea, it does smack of politics to me," he told Sky News

Behind the ironic bluster of an Australian politician labelling a PNG politician "political", the Gillard Government must be worried. Higher courts have not been kind to this government's persistent attempts to remove rights from asylum seekers guaranteed them under international and Australian law. One of the reasons for the convoluted current state of Australian migration policy is because the Australian High Court struck down a previous agreement with Malaysian government.

Indeed, two lawyers contacted by Fairfax this morning argue that the Manus challenge has a good chance of succeeding. Papua New Guinea, you see, has a bill of rights. Unlike Australia, certain liberties are guaranteed to all those falling under the purview of PNG law. "The real strength of the case is in the PNG constitution, because that constitution has a guarantee of liberty," prominent barrister Julian Burnside told Fairfax

The very fact that Australia's migration policies could come under challenge by the Supreme Court of another country should be a wake-up call. The Government's desire to appear tough on border protection while simultaneously complying with the letter of the Refugee Convention has pushed asylum seeker policy in all sorts of morally indefensible directions.

Let's remind ourselves that the current situation sees innocent people locked up, without charge, and in violation of the spirit of a six-decade old international treaty which to Australia was a founding signatory. Under the current "no advantage" policy, proposed by a so-called "Expert Panel" and endorsed by both major parties, people travelling to Australia outside of the regular protocols will now be forced to wait five long years before their claims will even be assessed. It's a ludicrous principle based on a false premise. As the Australian National University's Kerry Murphy points out, the idea that seaborne asylum seekers should have to wait a period of time so as not to enjoy an "advantage" in their visa processing is simply a variation of that hoary cliché of the refugee "queue".

"The problem is there is no processing time for refugee cases anywhere on the planet," Murphy writes. "The case takes the time it takes. The reason why some wait years for resettlement is not due to any 'queue' or 'no advantage test' but simply about quotas." In other words, if Australia had higher quotas, there wouldn't be an "advantage". Despite the circular logic, the punitive intention of the "no advantage" test is now enshrined as a key plank in the way that Australia deals with those seeking refuge on our shores.

The places where asylum seekers wait can only be described as jails. As Wendy Bacon reports here today, the Manus Island facility is a grim places whose purpose is incarceration, not resettlement. The infrastructure is clearly not up to scratch. Children, in particular, are being held in manifestly inappropriate conditions. Little in the way of modern health and human services appear to have been provided. And Manus is of course far away from the Australian cities that are the logical places to house and support those seeking a better life in our society.

From the point of view of an independent observer — for instance, the Al Jazeera journalist who recently asked Immigration Minister Chris Bowen about Australia's growing reputation for cruelty in this area — the policy justification for all of this must seem slim indeed. After all, we know that these asylum seekers have done nothing wrong. We know that they are locked up against their will, without charge. We shouldn't be surprised if the PNG Supreme Court rules against such a policy, on the grounds that it violates the human rights enshrined in that nation's constitution.

An important sidebar to the asylum seeker conundrum is the way it has slowly disfigured the institutions and conventions of Australian public policy. For instance, Australia's national territory, for the purposes of our migration law, now bears essentially no resemblance to our internally recognised borders. In the name of "border protection", vast swathes of Australian territory were "excised" from our Migration Act. We've been shrinking our borders to protect them.

Asylum seeker policy is also starting to bleed into areas of real national interest, as our push to punish asylum seekers begins to embroil Australia in the domestic politics of key regional partners like Malaysia, Indonesia and Papua New Guinea.

The Manus challenge is another example of how the Government keeps running into barriers in its quest to deprive innocent people of their basic human rights. It was John Howard who famously said that "we will decide who comes to this country and the circumstances in which they come". Now a Labor government will be forced to wait nervously while Papua New Guinea's highest court decides exactly the same thing.

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Posted Tuesday, January 22, 2013 - 15:37

Australia has already decided that indefinitely imprisoning refugees (including refugee mothers and children) without charge or trial is most economically done via private companies within Australia - but to contract this out to and in a Dengue Fever-, Malaria- and Multidrug Resistant TB- afflicted foreign country is getting to the bottom of the barrel of gross maltreatment of desperate people deserving of charity not abuse and one hopes is illegal under International and Papua-New Guinea Law. It certainly violates the Rights of the Child Convention (see: http://www.unicef.org/crc/ ) and makes the Federal Labor Government the worst child abuser in Australian history.

One supposes (hopes?) that the various Australian governments which have privatized the running of Australian prisons would not have the power to do the same to convicted Australian citizens. Yet non-charged, non-convicted national and world hero Julian Assange has been sentenced to indefinite imprisonment in the London Ecuadorean Embassy while - regardless of the Law - it would only take a vigorous phone call from the Australian PM to ensure his immediate repatriation to Australia "in the national interest" of both the UK and Australia.

How much closer to the bottom of the barrel will Labor descend? Decent people will vote 1 Green and put Labor last until returns to basic decent Labor values (the Coalition are just as bad but unlike Labor have not actually betrayed decent, humane Labor values and voters).

Peace is the only way but Silence kills and Silence is complicity.

peter hindrup
Posted Tuesday, January 22, 2013 - 15:38

Ben: you do not appear to have thought this through. The PNG Supreme Court rules against Australia? Australia, following the example of the US and Israel ignores the International Court!

These rules do not apply to white fellas, you know. If PNG doesn’t like it, well Australia can just bomb them, put them their place!

Australia supports the US in its aggression along with supporting Israel’s murderous policies. It is only a small step from supporting this behaviour to actually engaging in it.

Posted Tuesday, January 22, 2013 - 16:35

Peter, the PNG Supreme Court will rule on Papuan NG Law, and if it says that the Manus Island gulag is illegal under PNG Law, under their Constitution, then it will be up to Prime Minister O'Neil to tell Gillard and Co. that they have to evacuate the refugees, immediately. PNG will have to close the gulag, better yet, raze it to the ground. Unless we get another stand-off between the politicians and the PNG Supreme court, which was very unedifying. You can imagine that the PNG PMs face is already very red, with embarrassment and anger. If the Supreme Court rules against him, his face will get redder still. Maybe another of Gillard's little 'deals' that blow up in her face. I see that Gillard has just upset the whole NT Labor Party with another 'decision'.
She is getting more Fascist every day.
This has nothing to do with the International Court, which indeed, Australia ignores.
The rest of your submission is spot on.
Maybe Gillard and Co.will have to renegotiate the agreement they made with Private Gaolers and the Salvation Army to provide the thugs to keep the refugees in line, subdued and beaten. If the contract is anything like all the other contracts that Gillard has worked out, it will cost Australian Taxpayers a lot of Big Bikkies. She just never learns.
It would seem to me that Australia is already indulging in many practices that shame us before the World. We follow America and Obama at our peril.
We need a total clean-out of our governing Labor and the opposition LNP parties. An all replacements to be subject to a compulsory Moral and Ethical Code of Conduct.


Posted Tuesday, January 22, 2013 - 21:18

"An important sidebar to the asylum seeker conundrum is the way it has slowly disfigured the institutions and conventions of Australian public policy."

Exactly the same way racist policies did in Rhodesia and South Africa. Good point Ben and the racism implicit in this policy is corroding our institutions and international reputation.

peter hindrup
Posted Tuesday, January 22, 2013 - 21:26

Thanks. I understood that, but was attempting to foster the concept that if International Law was ignored, PNG had little hope.

I was also attempting to indicate that supporting those who ignore international law and commit atrocities is a paper thin distance from behaving in that matter.

Gillard’s NT pronouncement. Were I a member of the NT Labor party I would be working to have Gillard manning the booths, if she wanted them manned.

Early 90's I was invited to a National meet at Kempsey. The whole of the NP nobs there, a hall full of people, mostly over fifty I would guess, telling them that if they did not get their act together, they would put up and support independents against them.

Bob Katter, whom city folk assume is mad, but who resonates with rural folk, speaks with knowledge and understanding of their problems could really alter the landscape up their, and don’t underestimate the pull he will have even on those where have been voting Labor.

Posted Wednesday, January 23, 2013 - 09:18

Many thanks Ben for continuing to shine a light on PM Gillard's dirty dealings with refugees, with Chris-Darth Vader-Bowen as her willing accomplice.

This government in fact has (since 30/10/2012) excised the whole of the Australian mainland from the migration zone. When Howard and his cronies successfully excised Australian islands from the zone years before, Chris Bowen, now Minister, then just a new-chum Opposition MP, was outraged. He could have written very well exposing both the illegality on the international stage and the cruelty of his present policies. Here are excerpts from what he had to say when he had a conscience:

"This [Bill to excise islands from migration zone] is a bad bill with no redeeming features. It is a hypocritical and illogical bill. If it is passed today, it will be a stain on our national character. The people who will be disadvantaged by this bill are in fear of their lives, and we should never turn our back on them. They are people who could make a real contribution to Australia...

"Of course, several asylums [sic] on Manus Island and Nauru have had their applications rejected three, four or five times, only to have the government eventually accept their claims. Unlike people processed onshore, people processed offshore have no access to professional assistance. It is hard enough for a well-versed Australian native to understand Australia's immigration system, let alone somebody with obvious language difficulties who is attempting to come to grips with the massive change in their circumstances. Of course, asylum seekers offshore have no right of appeal to higher authorities...

"Asylum seekers have been encouraged/pressured to return to the nation they are fleeing when their applications are rejected. ...[T]hey would be involuntarily returned to the country they were fleeing.. The results of this are outlined in a report by the Brotherhood of Saint Laurence ... and in a report by the Edmund Rice Centre... .I cannot vouch for those examples. I am not qualified to say whether they are true or not - but if just one of them is true it damages Australia as a nation...

"We say that asylum seekers should be treated the same regardless of how they land. We say they should be dealt with fairly, swiftly and on Australian soil..."

(There's a lot more.)


The article is still on Bowen's website. I am surprised that his lack of shame allows him to keep it there, exposing the selling of his soul in secular terms - to the Labor Party Machine.

words of wisdom
Posted Wednesday, January 23, 2013 - 14:34

The border arrivals clause in the refugee convention, under which onshore refugees claim asylum, was designed in the '50s in the context of WWII. It was intended, quite rightfully, to prevent another situation arising similar to where Jews and other persecuted peoples were turned away at the border of 'friendly' nations and wound up in concentration camps. In short, it was to ensure people had immediate access to protection from imminent danger.

It was not designed to allow people to asylum-shop the way most Australian boat arrivals do, where they travel halfway around the world and through/past many countries where they would nominally be 'safe' from imminent danger in order to make their 'border arrival' on the doorstep of a wealthy western nation who is thereby forced to accept them.

The loophole allows wealthier refugees (relatively speaking) to exploit the process to acquire quota places that would have otherwise been allocated to people in even more dire circumstances.

Now, I view that as an unfortunate and unavoidable part of the system that exists for the greater good. By no means to I advocate changing or repealing that clause of the convention, nor do I blame the individual asylum seekers for trying to obtain the best outcome for themselves. But in that context of exploitation it is hard to claim in that the system is particularly equitable to refugee applicants.

Posted Wednesday, January 23, 2013 - 14:45

I am at a loss. I am all at sea (pun intended). I am ashamed. Deeply. My 'socialist-leaning, atheist-leaning, feminist-leaning' PM has shamed me.
Personally. As a Socialist, atheist, feminist ( over 50) voter I know not where to go nor what to do to stop this.
I have written , signed petitions, and read and read and read to make sure I am not imagining this.
For Gillard et al to say; the opposition leader of the PNG is being 'political' , is embarrassing in itself.
THIS IS politics. This is why it matters. It affects people and their lives.
Thank you for the article and the links.

I hang my head in frustration.

Posted Wednesday, January 23, 2013 - 14:45

I am at a loss. I am all at sea (pun intended). I am ashamed. Deeply. My 'socialist-leaning, atheist-leaning, feminist-leaning' PM has shamed me.
Personally. As a Socialist, atheist, feminist ( over 50) voter I know not where to go nor what to do to stop this.
I have written , signed petitions, and read and read and read to make sure I am not imagining this.
For Gillard et al to say; the opposition leader of the PNG is being 'political' , is embarrassing in itself.
THIS IS politics. This is why it matters. It affects people and their lives.
Thank you for the article and the links.

I hang my head in frustration.

Posted Thursday, January 24, 2013 - 12:29

Correction - the excision of the whole of the Australian mainland from the migration zone has only passed the House of Reps, not the Senate yet. (But it will). See my comment above. (Thanks to my informant).

Posted Thursday, January 24, 2013 - 15:01

Allie thank you so much. You have said exactly what I was going to say.