Embarrassingly, once again, our federal fovernment’s extremist knee-jerk-wand-waving-under-the-rug policy pushing of asylum seekers finds itself set for challenge before the highest court in the land. The hearing is set down for next week.
So what’s on the menu? The so called PNG “Solution”. The rhetoric run out by Tony Howard, I mean Phillip Burke…I mean John Rudd spins like a broken record. It’s skipping beats about queues and jumping on every brow-beaten-media-bigot-band-wagon disfiguring the reasons why a country full of people invaded, settled and built by boat people is so inexplicably afraid of them. So much so that Amnesty and the UNHCR have again criticised us for becoming human rights criminals.
While even a first year law student could surmise how our reintroduction of offshore processing in August 2012 contravenes numerous legally binding international human rights conventions including the most basic human rights standards of civilisation, the question will be live before the law lords of the land next week.
At this point it is again important to distinguish that our terrorising hysteria is only reserved for asylum seekers arriving by boat, the majority of whom are ultimately found to be owed protection obligations by Australia. Plane arrivals, mostly economic migrants, are treated as you’d expect and allowed to live in the community.
So why do we find ourselves once again, as a country, back in a conscience crunch before the High Court defending our inability to treat asylum seekers fleeing persecution with generosity, respect and according to law? That is the multi-billion dollar question – and it’s all tax deductible.
While we’re discussing dollars and sense, let’s digress to a quick mathematical marvel in relation to this morally corrupt conundrum. Leaving aside the question of how much of our money has been burned defending these horrendous inhumane policies, how do the costs of offshore processing translated to in relative terms — given that community detention costs a tiny fraction of what offshore processing costs?
Offshore detention costs about $339 per person per day. A quick search of Wotif and that works out equivalent a room at the Hilton with spending money, for years. Compared to $7-$39 per day for community detention.
The Government is now investing our hard earned into propping up an international-law-breaking-trauma-machine by subjecting already traumatised people to “cruel, in humane and degrading” treatment. And this will certainly place long-lasting billion-dollar burdens on the public mental health system. On that note, it will cost $1.9 billion to set up and run Nauru detention centre for four years — all to detain 750 traumatised people who have done no wrongdoing but legitimately exercise a legal right. This is more money than the Australian government will invest in mental health reform for the next five years.
Australia was once at the forefront of promoting and developing international human rights law. This includes drafting and often being an early signatory to: the Universal Declaration of Human Rights 1948 , the 1951 Convention relating to the Status of Refugees and its 1967 Optional Protocol (the Refugee Convention), the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture (CAT), and the Convention on the Rights of the Child (CRC).
Despite this long tradition of strutting our stuff on the international catwalk as human rights heroes, the use of boat people as political footballs has emerged as an irrational and hysterical pre-election phenomenon at least since the MV Tampa arrived in Australia’s waters in 2001.
In the last few years the Government has spectacularly and embarrassingly lost some very important (and very expensive cases) before the Federal Courts and the High Court including:
- Plaintiff M61 (11 November 2010) – “The offshore processing case” where the High Court allowed offshored detainees access to the Australian courts
- Plaintiff M70 (31 August 2011) “The Malaysia solution case”
- Minister v Plaintiff SZQRB (20 March 2013) – where the Full Court of the Federal Court found the Minister once again shamefully in breach of his own laws in his treatment of asylum seekers arriving by boat.
So here we are, back before the High Court, once again about to bear witness to millions more tax payers’ dollars being blown out in an attempt to bank roll another ill-conceived and probably unlawful “solution” to what is, in effect, not a relatively big problem.
The “PNG solution”, like the "Pacific Solution Mark II”, the "Malaysia Solution” and the "Pacific Solution”, before it, is another irrational, ill-conceived and probably illegal response to the relative non-problem of boat arrivals in Australia.
The lawyers acting for an Iranian man transferred to Manus Island under the PNG Solution and identified only as S156 of 2013, will argue that the Minister’s declaration of PNG as a regional processing country under section 198AB of the Migration Act is unconstitutional, invalid and in breach of Australia’s international legal obligations.
Australia’s international obligations regarding the Refugee Convention are brought within the domain of domestic law via the Migration Act. It is the Migration Act that obliges the government in power to adhere faithfully to Australia’s Refugee Convention obligations to the international community.
While refugee advocates have a proven track record before the High Court in proving the illegitimate lengths the Government will go to break its own laws on this issue, it is not necessarily going to be an easy run this time.
Since the High Court slapped the minister across the head in November 2011, striking down the Malaysia Solution, the Government has gone back to the change rooms to regroup and use parliament to shift the goal posts by amending the relevant sections. Of course, whether they can kick any goals remains to be seen.
When Malaysia was declared a regional processing country, the minister had to provide specific declarations that a designated offshore processing country had adequate procedures for protecting and processing asylum seekers including that it complied with relevant standards of international law. One problem for Malaysia was that it is not a signatory to the Refugee Convention.
Now all that is required is that the minister thinks that it is in the national interest to designate the country to be a regional processing country. In considering the national interest, the minister must only “have regard” to whether or not the country has given Australia any (non-legally binding) assurances “to the effect that”:
- it will not return or expel asylum seekers to a country where they might face persecution; and,
- will process them according to the standard expected in the Refugee Convention.
The plaintiff will likely seek to demonstrate the minister made errors in obtaining the “assurances” purportedly obtained, while deciding it was in the national interest to declare PNG a regional processing country. This would probably be achieved by arguing that the minister failed to take into account considerations which he should have, that he had considered things which he should not have. Alternatively it might be argued that the minister’s decisions were so unreasonable that no reasonable minister would have made them at the time.
The other crucial distinction to the Malaysia Solution case, incidentally the fastest High Court case in history, is that the asylum seekers were still in Australia awaiting transfer and yet to be removed overseas whereas the applicant before the High Court next week is already in Manus.
Even though the applicant’s legal representatives are seeking that their client be returned to Australia to be processed in the normal course, it might be that the High Court will be reticent to make such an order where the applicant is essentially outside their jurisdiction and issues of obstacles of nation-state-sovereignty intervene.
Just when you thought things could not get any worse, the Coalition announced their policy response to the PNG solution: Operation Sovereign Borders. Prima facie it looks like an absurd military interventionist Uncle Sam-style effort to try and out chest-beat the Rudd Government’s cruelty.
If the Coalition prevails on 7 September they will promptly deny asylum seekers access to the Federal Courts and dismantle the Refugee Review Tribunal.
Legal experts have argued that such a proposition is plainly illegal and is probably doomed to detonate more millions of our hard-earned defending another depraved and deplorable policy before a High Court that’s most likely going to back the other horse (the one called humanity, dignity and decency). The legal team instituting the High Court challenge have now amended their pleadings to bring the Coalition’s policy into the firing line.
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