While we’ll probably never know just what the legal advice to the Gillard government on the Malaysian solution was, it’s apparent from the Prime Minister’s shock and displeasure that some of it at least was based on the presumption that Chief Justice Robert French would maintain consistency with judgements he handed down when a judge in the Federal Court, and find in favour of Immigration Minister Chris Bowen’s declaration of Malaysia as a suitable country to which we could safely expel asylum seekers who arrive here by boat.
This advice apparently didn’t take into account the fact that there are seven judges sitting in the High Court, not just French. The result was 6-1, an overwhelming majority, and even if French had remained consistent and predictable, he would still have been outnumbered.
Julia Gillard also asserted that the High Court decision has now turned migration law on its head by virtually rewriting it. In reality, the decision has done nothing more than give substance to the protection requirement that already exists in the Migration Act, by concluding that Bowen’s declaration did not fulfil those requirements.
The legislation in question, Section 198A of the Migration Act, was written and passed during the Coalition government’s incumbency. The Court’s decision is nothing more or less than an interpretation of the language used by the Howard government. It is the task of the High Court to interpret legislation written by Parliament. It’s the job of politicians to see to it that the legislation they’re introducing is written appropriately in the first place. The High Court used Parliament’s own language. It did not write any new language. It did not rewrite the Migration Act.
Gillard’s attack on the High Court, and Chief Justice French in particular, does her no favours. Her claim that the High Court missed a golden opportunity to end “the people smuggling evil” is fanciful. It is yet another example of the weasel language used by government and opposition to wrongfully criminalize everyone involved in boat arrivals.
For example. A case is currently underway in Victoria that challenges the definition of “people smuggler” currently used by the Gillard government and the Abbott opposition. Lawyers defending an Indonesian man charged with aggravated people smuggling (a new criminal offense created last year) will argue that in order for their client to be found guilty of this offense, prosecutors must prove that there were five or more people on board his vessel who were not seeking asylum in Australia. As well, prosecutors must prove that asylum seekers brought here by boat have no lawful right to come to Australia.
Under domestic and international law, those fleeing persecution and danger have every right to come to Australia by boat without papers, and request asylum. Therefore, the argument goes, there is no “smuggling” of such people, and the boat crew cannot be charged with people smuggling. They are legitimately transporting legitimate asylum seekers.
Gillard has only herself and her advisors to blame for the situation in which she now finds herself. Casting about for scapegoats isn’t going to help.
It’s not unusual for anyone to lash out when they’re displeased and cornered. But this is the last thing Gillard can afford to do. She’s got a fight with News Limited on her mind, and has already incurred allegations of being thin-skinned in her reaction to stories they’ve published about her. She’s complained about the anti carbon tax demonstrators and their offensive placards describing her as a witch and a bitch. Anthony Albanese didn’t help by describing some of the electorate as of “no consequence” because they don’t agree with him. And now Gillard’s attacking the High Court and the Chief Justice in particular for thwarting her Malaysian solution, a solution she really ought to be grateful somebody prevented her implementing, given its immoral nature. Yes, we do need regional processing of asylum seeker claims. No, we don’t need to introduce that by trafficking in human misery.
This is not the time for the PM to go to the mattresses. There’s not one battle here she can win, or even fight with dignity. She’s coming from a position of extreme political weakness with very little public support, never a good place from which to take on institutions such as the media and the legal system. The PM is bleeding out, and she needs to staunch her wounds before willfully incurring any more.
Julia Gillard takes great pride in her tenacity and determination. I recall her mother telling the media in the early days of her daughter’s new job, that never backing down is one of her characteristics. Strength of will and steadfastness are admirable and necessary traits for someone who aspires to high political office. However, it’s equally necessary to know when to yield to circumstances with dignity and grace. Flogging dead horses because you don’t back down never did anyone any good.
Gillard could take this opportunity to accept the High Court’s decision without further castigation and accusation, and get on with organizing on-shore processing of asylum seeker claims. She could get on with the job of establishing a regional processing centre. She could choose to ignore News Limited’s sorry little campaign against her. After all we can see it for what it is, and News Limited have even less credibility with the public than the Labor government. She could choose to ignore the rude signage and crude insults aimed at her by Allan Jones and his band of ageing climate change deniers. She could, in other words, rise above the slings and arrows and be a real Prime Minister. This could be her moment. It may not save her and it may not save the government, but it would certainly go some way towards salvaging a little bit of personal dignity, and in so doing, set an example for the rest of the party.
We live in a democracy. High court judges can change their minds. People can take to the streets with placards. Newspapers can write inaccurate stories about politicians and be required to remove them. Tony Abbott says you don’t ask permission, you just say you’re sorry later. Julia Gillard herself plays fast and loose with the truth when she feels like it. What the High Court did yesterday was to enact democracy, and the Prime Minister of this country is the very last person who should be complaining about that.
- Infighting turns heat up on PM (theage.com.au)
- High Court ruling leaves doubts of legality of offshore processing: PM (theage.com.au)
- Gillard hits out at asylum ruling (bbc.co.uk)
- No solution: Labor in disarray (theage.com.au)
- Should Gillard go? (thepunch.com.au)