Lawyer David Manne and his team have succeeded in obtaining a temporary High Court injunction preventing the transportation of asylum seekers to Malaysia, planned for this morning. They will return to court later today seeking to extend the injunction, and to argue against the legality of the Gillard government’s Malaysia solution.
Manne’s team will argue that Australian law permits asylum seekers to request refugee assessment in this country, and that as the guardian of unaccompanied children, Immigration Minister Chris Bowen will be putting his charges in harm’s way and abandoning them if he sends them to Malaysia.
It’s been revealed that on July 25th, Chris Bowen made a Ministerial Declaration on the suitability of Malaysia to receive asylum seekers Australia refuses to process. In his Declaration Bowen claims that Malaysia is a safe destination, and that the country offers adequate human rights and protections, despite the fact that it is not a signatory to the UN Convention, and is globally renowned for its harsh attitude to refugees.
The government’s agreement with Malaysia was accompanied by considerable hype, however the Minister’s Declaration was nowhere mentioned, and was revealed only in the court action taken by Manne yesterday.
Ministerial Declarations are powerful instruments. The government believes Bowen’s Declaration is protected from being contested in the High Court, alleging that the Court has no jurisdiction to review these Declarations. Manne’s team will challenge the government’s position, and argue that the Court can and should review Bowen’s Declaration.
The danger with allowing this Declaration to stand is that in the future any minister can make any such Declaration about any country with impunity. Clearly there is plenty of evidence to contradict Bowen’s assertions about Malaysia. The Minister has ignored this evidence, and has made his declaration for purely political concerns. This is an abuse of power, and the raw exercise of political power for political gain is not the purpose of Ministerial Declarations.
What is most disturbing is that Malaysia is not a signatory to the UN Conventions that set the standard for the treatment of refugees and also of children, refugee and otherwise. The Gillard government refused to use Nauru as a dumping ground for asylum seekers, because that country is not a signatory either. Gillard took an ethical and moral stand on this. That stand is now revealed as a concern held for a nanosecond by the fake Julia – the real Julia doesn’t give a fig about non signatory countries if they’ll take asylum seekers off her hands.
Political expediency, and utter desperation at hideous polls, have corrupted Gillard and Bowen’s moral and ethical perspectives to the degree that not only are they now willing to use a non signatory country, they are also willing to abuse their power and to lie in a Ministerial Declaration, in the hope that they’ll shore up electoral support for their “solution.”
It’s a very dangerous situation when an individual minister can exercise this amount of power. That power can be, and some argue is currently being, exploited for the advancement of political and self-interest, with little regard for the human beings involved. No matter what your position on asylum seekers, this ministerial instrument of power should give you pause for thought.
If Bowen’s Declaration stands unchallenged it will mean that in theory, any minister can order the refoulement of refugees, despite our agreement with the UN to not engage in such practices. The present government can be grateful to John Howard for making this situation possible. In amendments to the Migration Act brought in by the Howard government, the Immigration Minister may unilaterally decide if another sovereign state is considered suitable to receive asylum seekers. The law says the minister may declare that a specified country “provides protection for persons seeking asylum” and “meets relevant human rights standards in providing that protection”. The fact that the UNHCR has failed to support the Malaysian solution and has expressed concerns over the Malaysian government’s treatment of refugees is in conflict with Bowen’s assessment. The Howard amendment does not appear to require that ministers substantiate their declarations with evidence.
Some of the most recent boat arrivals have claimed fear of persecution in Malaysia on religious grounds however, Bowen’s Declaration pays no heed to these considerations, as he has declared that country safe. If his Declaration is allowed to stand by the High Court, we will know we are living in a country in which a government minister has absolute power that cannot be challenged, no matter if it is unjust, dishonest, self-seeking and corrupt.
These cynical moves by the Gillard government are beyond despicable. They are an insult to our democratic process, and to the trust we place in politicians to use the powerful legislative processes available to them wisely and compassionately. Instead, they have employed this instrument solely to advantage themselves, and as a consequence are putting the lives and well being of asylum seekers, including children, at risk.
One would hope that a minister would inform him or herself on all aspects of a situation before issuing a Declaration that is apparently uncontestable in law. This is the trust that we place in those to whom we award high office. Once that trust is betrayed, the fabric of our society is torn. Once that trust is abused, and political expediency and personal ambition are placed above the rule of law, our democracy is in deep trouble.
We can only hope the High Court is able to challenge Bowen’s Declaration, for the sake of asylum seekers, unaccompanied children, and all Australian citizens.
Bowen claims he believes it is safe for asylum seekers in Malaysia. Well, Tony Blair and John Howard believed there were WMD’s in Iraq. We know and knew at the time, that they based those beliefs on insufficient evidence because they didn’t want to hear the UN weapons inspectors’ reports that contradicted their beliefs.
The selective beliefs of politicians should not be allowed to take us into war, or to expel vulnerable people to countries where they are at further risk. In both cases, evidence was ignored in the pursuit of political gains. This story is becoming way too familiar in our political system. We cannot trust politicians with the powers we give them, and those powers urgently need to be curbed.
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No Place For Sheep 
Er… everyone, including Saddam Hussein, believed that Saddam Hussein had weapons of mass destruction. I’d have to question the methodology of anyone who “knew” there weren’t any.
This list of people who believed Saddam to have such weapons included Richard Butler & Andrew Wilkie. But this is an aside.
The Ministerial Declaration is the main issue. The process rather than the outcome. This government cannot do anything right. They’ve made a complete hash of everything they’ve touched. A reverse Midas touch if you like.
It didn’t take long for some fifth columnist to think up a way to make it difficult for the government to handle (or should that be “mishandle”?) their refugee/asylum seeker policy. Happens every time. Some people we’d just be better off without.
All that aside, I’ve no objection to the principle of some middle-class country shoppers being swapped for genuine refugees, & more of them.
Though you are right, we should get out of the UN convention, and as it is, we don’t HAVE to take any.
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The UN weapons inspectors were in Iraq, were interviewed on television saying that their inspections were not concluded and thus far they had not found evidence of any WMDs. Blair, Bush and Howard invaded Iraq before the inspection was concluded, without hard evidence that the weapons existed, and in full knowledge that there was considerable doubt.
This was deliberate – had they waited for Hans Blix and his team to confirm the absence of WMDs, they would have had no justification for the war. All anybody asked of them was that they wait for the weapons’ inspectors reports before before taking us into war. If you don’t know by now that everybody was manipulated by these three war criminals, you’re dreamin’.
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Yeah we should just blow everyone up. Does it ever occur to you Steve in the pub too drunk to think that those refugees in other countries at some point got there using smugglers and country shopping.
There is no such thing of course, just ignorant prattle that we would not apply to the tens of thousands of other refugees who apply here.
Because resettlement is not legally based, it is a changeable handbag, protection is not
And Gillard has never had a principal.
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The only thing that occurs to me (in my “too drunk to think” state) is that you are not a particularly nice person Marilyn.
It may interest you that I do not drink. Nor can you spell.
If you wish a response from me, play civilised.
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The weapons inspectors certainly hadn’t found anything. How could they? The Iraqis refused to allow them access to the places they wished to inspect.
I’m often accused of dreaming, hehe. That aside, getting stuck into Iraq was long overdue. Saddam had pushed his luck aplenty.
Claims of impending conflagration due to WMD was for domestic political consumption in the attacking countries.
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Hans Blix had access to the whole of Irag but some buildings sa The Royal Palace and places of religion were excluded. Hundreds of inspectors, after months of looking with highly technical equipment found zilch.
They believed there were none and there were none, ever.
Still, some poetic justice for all those terrible and useless wars. The US is now in an economic free fall. The Chinese are calling in their IOW’s and queues at soup kitchen are getting longer. Still, even the freedom in wandering around at will queueing at soup-kitchens is not a luxury we extend to those boatpeople kept in isolation.
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Apart from saying Bowen and Gillard’s “cynicism” derives directly from
Abbott’s preceding cynicism, there is nothing I can find that I’d change in the summary.
As Gerard’s comment reminds us, there is a real cost eventually for the sort of politics that have been played here and elsewhere over the last decade. When it’s been merely a human cost; “collateral damage” involving war casualties, from famines etc, that suffering was not included.
Nor has the harm done to western economies by the profound profligacy and delinquencies involved in war and economic decision making, involving $trillions of dollars- the money that could have solved problems elsewhere was instead repeatedly diverted to the ultra rich and not least it seems from there, to anti democratic and anti humanitarian purposes.
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I’m not readily accept Paul, that Bowen & Gillard are taking their marching orders from Abbott. (If that is what you meant).
The financial strain of the western economies, whilst not helped by the USA paying for some expensive overseas military campaigns, is more due to bad management, (very bad) including an inability to live within their means.
Unless I am mistaken, the current tax take of the USA is not, & never has been, sufficient to run the bare government, (forget any extra spending). I don’t see how they can get out of it without increasing taxes.
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Steve, I couldn’t agree more- another recession likely, glad I’m not a kid arriving into it. As to Abbott, he is another nasty piece of work at the centre of some thing that has festered away for a decade and really goes back generations. Had the opposition been less prepared to exploit the asylum seekers issue the government might have done better in handling it earlier, but Gillard does have me puzzled. She is either very clever or very stupid. Wonder what Harto said to her the other night?
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She is very stupid. She hasn’t made a smart move yet. For someone who is a lifelong political junkie she is amazingly clueless about waaay too many aspects of public policy.
I struggle every day to accept that the elected Federal Members of the ALP believed she was up to the job. She so very clearly is not.
The asylum seeker issue is not driven by the opposition, so much as by the public. The Australian people have just a touch of input at times into public policy. The mood of the wider public is very much at odds with the green/left viewpoint. The opposition need say very little, & the public mood would not change.
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