Tag Archives: High Court injunction

Ministerial Declaration process corrupted by Gillard’s political and personal ambition

8 Aug

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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