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.
Related articles
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- 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)
No Place For Sheep 
Don’t disagree with a single word if this Jen, well summarised.
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Yes, totally agree. It’s not as if dealing appropriately with refugees has just cropped up this morning.
It is surprising that the Government thought they could get away with the Malaysian deal. The Affidavid that they provided seemed not even to follow the advice anyone can get through the Court web-sites in ‘do it yourself’ home-kits.
As I understand it, their ( The Australian Government) Affidavid was not based on supporting ‘facts’ but merely relied on nothing much more than ‘intentions and soothing statements with words of comfort’ by The Malaysian government.
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It’s going to be very interesting to see what happens next – another High Court episode as they try for Manus Island?
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Did the judge change his mind or is it just a case of the High Court was asked a diiferent question? thus came up with a different answer. Manus Is will elicit the same answer from the High Court because it will again be asked the same question resulting in the same answer that has so upset Julia. One in six inhabitants on Manus Is have been diagnosed with malaria…it is endemic on the island…thus making it unsafe for detaining asylum seekers. And Nauru is out because the last effort resulted in high risk of self-harm and suicide amongst the detainees.
It will be interesting to see the result of the case challenging the “people smuggler” label.
Wake up Julia. If the ALP wants my vote back, you’ll have to do a whole lot better.
Better on a load of issues. Treating refugees humanely is just a good start.
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From what I understand, not being a lawyer, the High Court approaches issues from a different perspective to the Federal Court,but I don’t know the details. It does sound as if the government’s expectations that Justice French would find in their favour based on previous decisions were far from solid, contrary to Bowen’s claims that they were on legally secure grounds. That has proved to be the case!
“The Pacific solution did not break the people smugglers’ business model; it broke the will and spirit of asylum seekers.” These are Immigration Minister Chris Bowen’s own words to Parliament on June 15. Like, Malaysia wouldn’t break anybody’s will and spirit?
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http://www.eurekastreet.com.au/article.aspx?aeid=27962
In fairness of French CJ, I should point out that Heydon J in quoting him in the 2003 case omitted the next sentence: “That is not to say that such a declaration might not be invalid if a case of bad faith or jurisdictional error could be made out.” In this week’s High Court case a jurisdictional error was made out. This makes it even more unfortunate that the Prime Minister has questioned the Chief Justice’s judicial consistency.”
There are a couple of things I said from the beginning:
1, expulsion is illegal, not and if or a but allowed.
2. our media are so racist and ignorant they automatically believed Gillard had the right to trade and traffic humans.
3. it is not people smuggling and we have never sent a single person to jail for people smuggling.
One only has to read the transcripts to discover that they jail the Indonesians because we are “forced’ to obey our law and jail refugees for processing.
The courts all make the point that the fishermen were not the ones with the position of power and that they were only doing a job.
Honest to god, this is the dumbest frigging country on the planet bar America and we are still only whining endlessly about 25,000 people in 16 years.
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Yeah but by claiming refugees would never be allowed to come here once we pushed them away this was supposed to break this non-existent people smuggling model.
What is truly amazing is that the refugees we want to import all paid fucking people smugglers.
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I think they all will be tossing and turning in their beds tonight. All at their wits end, running all sorts of scenarios over and over; this island that island, the Antarctic,The Falklands?
Snide grumpy remarks to partners, kids getting smacked.
Saturday morning; another horror on world markets, billions lost in super. Abbott on his bike, sneering., rabbiting on about Nauru and stopping boats.
In that single night, How many leaving their country and homes from war or drought? Ten thousand, twenty, thirty thousand, how many children with nowhere to go?
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Well 30,000 kids will die of starvation in the next 24 hours.
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Offshore processing cancelled. Well it was always illegal to it’s about time.
Even Ban Ki Moon thinks we are ridiculous.
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And that stupid Morrison is arguing that the legal advice is wrong and Nauru is OK.
The Coalition will try for Nauru when they win the next election and it will go to the High Court again.
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Of course the opposition will keep pushing Nauru. They want the government to fail again and this will put another feather in their cap. Oh, the nightmare of Abbott in power. When will it stop?
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Mate, it hasn’t even started. Our only hope is that there’ll be a new opposition leader before they win the next election.
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Article 32 of the refugee convention says we cannot expel any refugee from our territory without determination or for any reason.
The high court ruled just that.
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They’ll try to amend the Migration Act – and if they succeed domestic law will be incompatible with the convention. One of the requirements of signatories to the convention is that a country must bring its domestic law into line with the convention it’s signed- round and round and round we go
Does Article 32 include asylum seekers without refugee status?
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Yes Jennifer because contrary to the belief of the morons in the parliament people are refugees when they have to leave home, not when they arrive here.
So they are prima facie all refugees on arrival.
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yep…remember too we are talking about such a small group of these poor folk too…not enough to warrant “processing” offshore…we deserve the bad reviews if we can’t deal with this sanely as a civilised country
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Actually the convention is already in the migration act.
The media are so fucking dumb they don’t see the lie of it all and what that sleazy bitch Gillard thinks she can do.
She is trying to claim that the SHP is our only legal obligation to refugees when it is nothing at all to do with the refugee convention and is a voluntary program.
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