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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Thursday, September 01, 2011

Remind me again, why is it so important to "Stop the boats"?

See the High Court judgment in Plaintiff M70/2011 v Minister for Immigration and Citizenship
here if you want to read the whole thing or sample its reasoning.

So, good people, why is it so important, exactly, to "Stop the boats"? Are a few hundred escapees from various hellholes going to take over our country unless we deter them with threats of harsh treatment? Seriously? And is the paranoia about all this really based (solely) on paternalistic concerns about the exploitative and dangerous practices of people smugglers? Really? Or is it, well, largely just xenophobic paranoia?

The ALP government now has itself in a terrible mess. I get that we want some sort of process to determine which of these people who arrive here from time to time are genuine refugees, but there's no good reason why they can't be processed on-shore with ordinary appeal/judicial review rights in the nation's system of tribunals and courts. This idea of sending them off to another country to undermine their rights, and generally make things harder for them, is unprincipled. Likewise for any attempt to deter genuine refugees by making things harsher for them when they arrive here.

As for the judgment itself, it turns on a question of the construction of sub-section (3) of section 198A of the Migration Act 1958. This basically allows the Minister for Immigration and Citizenship to declare that a country meets certain standards of protection for people to be sent there to have their claims for refugee status processed. See the four matters listed in para (a) of the subsection:

(3) The Minister may:
(a) declare in writing that a specified country:
(i) provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and
(ii) provides protection for persons seeking asylum, pending determination of their refugee status; and
(iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and
(iv) meets relevant human rights standards in providing that protection; and
(b) in writing, revoke a declaration made under paragraph (a).

Such a declaration under s.198A(3)(a) was made in relation to Malaysia, so the question was about how much discretion the Minister had to make such a declaration irrespective of the actual facts. The judgments of the majority judges took different stands on this. At a minimum - see Chief Justice French, who agreed in the disposition of the case - if the Minister had some subjective leeway he could still not fail to take into account such facts as Malaysia's actual laws, the international obligations it accepts (or does not), and so on. That placed a limit as to how much the Minister can simply ignore such things or make a decision that flies in the face of the legal reality in Malaysia.

However, five [Edit - it was actually four] of the seven High Court judge appear to take a tougher stance: that the matters in (3)(a) one must be met objectively before the Minister has jurisdiction to make a declaration. Only one judge dissented, supporting the government's position.

The government came unstuck over this issue, and rightly so. We can't assume that the same thing would happen with a different country (let's say New Zealand ... or perhaps even Nauru), but it looks like the "Malaysian solution" is now dead.

Given the way successive governments (and large parties in opposition) have whipped up, rather than trying to calm, the paranoid xenophobia in the electorate, no good can come of this for the ALP. There is probably no real prospect of handling the issue by moving to some more humane and sensible regime, since it would be electoral suicide. Labor can largely blame itself for getting into that situation, as well as contributing to the callousness of the electorate and general coarsening of debate on immigration issues.

OTOH, the reality is that we will almost certainly see a change of government in the next two years, probably with some harsher regime introduced. Please tell me if I'm wrong, because I'd like to be.

The High Court judgment is the right one ... but from here the overall political situation looks like a disaster.

Edit: See here re update/correction.


Russell Blackford said...

^Needless to say, this does not cover every aspect - e.g. the situation of one of the two plaintiffs as a minor. I can't claim that I've been able to study the courts judgment exhaustively since it was handed down yesterday.

James Sweet said...

Heh, the title of this post made me think you were referencing this:


James Sweet said...

On a side note, now that He Whose Name Shall Not Be Spoken is getting some professional mental health assistance, have you considered turning the comment moderation off? Or did you have it on for reasons beyond that?

skepticlawyer said...

Legal Eagle has written a pretty comprehensive analysis here:


She's also in the process of preparing a casenote with some exploration of wider institutional issues as well. I should add that one of her colleagues was counsel for the plaintiffs in this matter.

Russell Blackford said...

Even without Mabus commenting, I get a helluva lot of spam. But maybe I'll experiment a little bit down the track with taking moderation off. It would make the place more friendly to commenters.

Robert Simpson said...

More and more, the Labour party of the 21st century looks like one of the weakest, most dysfunctional major political parties in the English-speaking world. Everything they do now -- at state and federal level -- seems to be a cynical attempt to pander to the electorate and 'claim the centre', and yet they are so hopelessly, embarrassingly inept at both of those things. I can't believe that Tony Abbott is going to our next prime minister...

skepticlawyer said...

Legal Eagle's casenote is now up:


Alex said...

I've had several rounds on this with my brother-in-law to the point of mental fisticuffs, but looking through his emails (and he's a really smart and semi-liberal guy) seems to be (paraphrased) ;

"Stop the boats, because the boats are sinking and we want to save people from drowning"

Apart from that I can find very little detail of significance. Everything comes back to stopping the boats because people can drown using them, as if this perceived risk is beyond the refugees themselves to imagine and process. He even agrees that overseas processing is not optimal, that human rights are important, that genuine refugees should be offered a safe haven or even a permanent home, it's all the riff-raff of cheaters we need to discourage, and the dreaded smugglers and the market for it, blah, blah.

He often points to the Howard policy (2001-2007) working by showing me the official statistics of boats arriving to Australia, refusing to see them in lieu of the military and coast-guard using force to stop the boats. So, the policy as a whole is working (which is to include deterrents for smuggling, for coming, for jumping the line, etc.), ie. the psychological and logical parts works *because* the physical part work. The boats stop because we are stopping them. Next; headsplode.

It drives me up the wall at the shortsightedness of this, how there seems to be a refusal to measure the real data, like the *reason* boats are crappy is because Australia wrecks all boats that lands, and so people don't want to have their good boats wrecked (and some times simply that they're running out). Or looking at boat statistics coming against world conflicts (and notice the pattern between that and the numbers of Howard's regime). Or how about the *cost* of the Howard policy (which is ridiculously high) against, say, a completely humane solution like sponsoring a safe shuttle across the sea to onshore processing (I think a lot of people would be surprised looking at these figures), the complete opposite (which will never happen here; socialism and being nice to people have never been popular here).

It seems to me that it's all just a political game to pander to the uninformed middle and trying to look "tough on crime" to our neighbors. Isn't it a funny that *coming* to Australia in a boat is deemed illegal, but *arriving* onshore is legal? The pedantic policies completely overlook why people are refugees to being with, why they are willing to take such big risks. Ugh.

Good news from the High Court, though. I just wished that the ALP could *prove* they were nicer people than the Liberals (who, for foreign readers, are *not* very liberal at all). And Abbott as prime minister must be stopped at all cost, I can't think of any politician I despise more or respect less (and there's a lot of horrible politicians to choose from ...).