Tag Archives: High Court of Australia

Voting Yes

11 Aug

 

 

Friends of this blog know I’m not particularly enamoured of marriage as we know it. It’s an institution, as one wit noted, and who wants to live in an institution? Flippancy aside, my main objection to marriage is the entirely unwarranted privilege it is accorded in our society, a discriminatory privilege currently available only to heterosexuals.

Some of the most heinous behaviour of which the human species is capable is acted out in heterosexual marriage. Treachery and betrayal. Domestic violence. Physical, emotional and sexual abuse of children. Murder. The dark side of marriage ought to cause us to question its privileged position, but as a herd, we have a capacity for cognitive dissonance that is nothing short of astounding.

So voting Yes in Prime Minister Malcolm Turnbull’s disgraceful $122 million postal survey on marriage equality is a complicated decision, given that I think marriage as we know it is a bit of a nonsense in the first place. However, the reality I must accept is that marriage is an institution, and as such must be available to anyone who wishes to live in it. Excluding people on the basis of their sexuality is appallingly discriminatory, and makes second class citizens of anyone who isn’t heterosexual.

Add to this the allegedly illegitimate nature of Turnbull’s postal survey, about to be argued out in the High Court, and it becomes tempting to boycott the whole despicable process, rather than validate the PM’s sordid machinations with my participation.

However. You can be absolutely certain the No vote is, as we speak, marshalling all its forces to fight what the Australian Christian Lobby’s Lyle Shelton describes as “the fight of our lives” against marriage equality. Lyle, you might recall, some months ago issued a paranoid tweet to the effect that nobody will know he’s straight if gays are allowed to marry. Unfortunately most of his public commentary on marriage equality is far darker than that idiocy, and you can be absolutely certain he and his supporters will be cranking up their homophobic rhetoric over the next few weeks. If we don’t vote Yes we risk a No victory, and I do not want to think about the myriad ways in which that will licence Shelton and his ilk, possibly for years.

The No contingent will not care that a reduced Yes vote comes about as a consequence of principled boycott. They will rejoice in their victory. Nothing good can come of this, so please vote Yes.

Turnbull has wedged the electorate. He has presented us with a singularly depraved process, one he admits will go nowhere as a Yes vote is non-binding. He has co-opted us into his internal strife. He has made the Liberal party’s turmoil ours. He has forced us either to join him in his corrupt process, or risk an ongoing abuse of and discrimination against LGBTQI people that will be validated by a No vote. For this he should never, ever be forgiven.

We all know the right-wing of his party stands ready to nail his testicles to the despatch box. In another desperate attempt to avoid this fate, Turnbull has outsourced his responsibilities to the electorate.

I loathe the situation in which the PM has placed us. I loathe that he has made us a part of his cowardice and depravity. I would like nothing more than to boycott his stinking survey. But I believe the only way of fighting back is to vote Yes to marriage equality, an overwhelming, resounding Yes. If nothing else, this will place Turnbull in an absolutely untenable position if he then refuses to accept this Yes, and will forever make a mockery of his claims to listen to the will of the people.

A Yes vote is a demand that everyone in this country be accorded equal access to what is recognised as a human right to marriage and family. It is a demand for an end to the perception of LGBTQI people as somehow inferior to heterosexuals. It is a demand for an end to heterosexual privilege and power.

Turnbull has co-opted us into his vile process. Turn it back on him. Don’t play into his hands with a boycott. Vote Yes.

Oh, and you can also will the High Court to chuck the postal survey as an option out on its carbuncled arse.

 

 

 

On-shore processing rules so suck it up and play nice

14 Oct

It was a grim-faced PM who held a press conference yesterday evening to announce her decision to withdraw proposed amendments to the Migration Act that would enable the government to send asylum seekers to Malaysia.

Since the High Court re- interpreted our understanding of the Migration Act, a surly and humiliated PM declared, and until Opposition Leader Tony Abbott comes to his senses (if he’s got any) and throws his support behind the bill, the government is forced to continue with on-shore processing and there’ll be boats. There will be boats! And every boat will be on Tony Abbott’s sense-less head!

Though of course, Abbott insists it’s all Gillard’s fault and any increase in boat arrivals is entirely down to her.

That a good result comes from such prolonged bitching, moaning, carping and politicking with the lives of human beings by both major parties is something to give us all hope. No matter how hard they’ve tried, neither party has been able to reintroduce off-shore processing, and to add icing to the cake, they’ve nobody to blame but themselves.

Not that I’m complaining. It’s been a circuitous journey, expensive, cruel, duplicitous and xenophobic and it’s ended in a much more decent outcome than either leader ever wanted. The dark side lost the battle all by itself.

This ought to be another valuable lesson to both Abbott and Gillard on the futility of allowing politics and personal animosity to dominate policy. There’s no explanation for Gillard persisting with the bill, given it had no hope of passing the Senate, unless she saw it as a tactical victory over Abbott if the bill was passed in the Lower House. Another thwarted miscalculation inspired by personal feeling?

In the event that more asylum seekers arrive than we have room for in detention centres, the overflow will be given community detention with work privileges. Surely now it is only a matter of time before mandatory detention of practical necessity is restricted, and we join other countries in humanely allowing asylum seekers to live in the community while their claims are assessed. The cost benefit is enormous: it costs us 90 per cent less to have refugees in the community than it does to keep them in detention.

Gillard’s attempt to snatch right-wing asylum seeker policies away from the Coalition is a spectacular failure. It’s given the Opposition the opportunity to paint themselves humane, and Gillard as lacking in compassion and heart. It’s incensed many Labor supporters who’ve had to watch as the party’s moved further and further away from their platform on refugees. Gillard made a fool of herself from the outset with the very silly and alarmingly premature East Timor proposition, and it’s gone down hill from there.

The PM is now faced with enacting a policy that is more lenient and humane than it was before she negotiated the doomed Malaysia “solution.” The 4,000 refugees we agreed to accept from Malaysia in return for the 800 we planned to send there, will be absorbed into our usual humanitarian intake. If the Gillard government wants to give more people a better chance of a good life in Australia, they could start by increasing that intake.

A regional processing centre is still a realistic goal, not hurriedly cobbled together in a politically-driven “Malaysian solution” that was at best short term, but a centre created in conjunction with others in the region and the UN.

Gillard and Abbott have been dragged kicking and screaming into maintaining on-shore processing. No doubt if we ever see an Abbott-led government the whole thing will start again and he’ll bring back Nauru, but for one brief shining moment we have something of a respite in this running, ulcerated sore that is Australia’s asylum seeker policy. The sustained collision of dark with dark resulted in a large crack, and the light got in. For this relief, much thanks.

Woman up, Ms Gillard!

20 Sep

 

We shall not be moved

As soon as she took office, Julia Gillard signalled that she intended to take a hard line on the off shore processing of asylum seekers who arrive here by boat. The new Prime Minister announced a processing centre (sounds a bit like a fish canning enterprise) in East Timor without, it subsequently emerged, first having properly consulted with that country as to its willingness to partner with Australia in the venture.

As we know, the East Timor proposition came to nought, and served to position the new Prime Minister as a woman who perhaps spoke too soon, and incautiously. This cast early doubt on her capacity for tough. She’s had to work hard to dispel this initial doubt because everyone knows a woman who seeks high political office has to be twice as tough, twice as hard and twice as mean as any man. Unless she wants stay on the backbench for her entire career and be of no interest to anyone other than her electorate.

The Malaysian “solution” has also thus far come to nought, not because that country declined to co-operate with Gillard’s tough plans to expel boat arrivals including unaccompanied children, a new benchmark in tough that left me gob smacked and tearful, how female of me, but because the High Court of Australia found the current Migration Act incompatible with the government’s tough policy. In a

After having petulantly (unwise choice, petulance erodes tough) attacked the full bench as activist judges who were missing an opportunity to stop the boats (an ignorant response from a lawyer: as if it is the High Court’s job to stop the boats) Gillard has now proposed amendments to the Act that will grant an immigration minister unfettered control over the expulsion of asylum seekers to any country he or she decides is suitable, should he or she deem that to be in the national interest. The amendment will ensure there can be no further legal challenges to such a ministerial declaration.

Never underestimate the power of a woman.

Theoretically, this amendment could lead to asylum seekers being refouled, that is sent back to the countries from which they have fled. The UN Refugee Convention proscribes this course of action. The Convention does allow us to relocate asylum seekers to a third country for assessment, however that third country ideally would also be a signatory, and certainly would offer protection of asylum seekers’ human rights, including non refoulement.

We have now strayed so far from the Convention that the only reasons for us to continue as signatories are that we would look like very bad (if tough) international citizens if we withdrew, and withdrawal would undoubtedly put the kybosh on our aspirations to a seat on the UN Security Council. So we will maintain our status as signatories, whilst abandoning pretence to anything other than minimal observance of the Convention. Amending the Migration Act will legitimise our hypocrisy. Not only has a woman proved she is better at tough than the men, she’s also surpassed them in the hypocrisy stakes.

Qué viva liberación de la mujer!

I just love how that sounds in Spanish.

I am woman hear me roar

The fact that Gillard chose to announce her East Timor “solution” hours after taking office indicates that she was determined to position herself from the start as a woman who is capable of great tough, especially on asylum seekers, that hapless and motley collection of human vulnerability who, one could be forgiven for concluding, exist primarily for Australian politicians to use as a yardstick for their implacability capability. Tough implacability apparently being the sole measure of strength in this brutalized country’s brutalized politics, formerly epitomized by Liberals John Howard, Philip Ruddock, Peter Reith, Alexander Downer, et al.

In a bold and successful tilt at gender equality, Gillard has now proved beyond question that a woman can be much better at tough than a man. We have the extraordinary vision of Abbott refusing to co-operate with Gillard’s proposed amendment on the grounds that it strips asylum seekers of all human rights protections, including those written into the Act by his predecessor John Howard who we thought was tough at the time, but who now looks like a little bitty pussycat.

In other words, Abbott has voluntarily relinquished his inherited title of sovereign head of the continent of Tough to Gillard, because worrying about asylum seekers’ human rights is so not tough that he might find he’s stranded himself off shore in the very leaky boat of mercurial public opinion. It could viciously turn, public opinion could, and drive Tony, soon to be despised as a bleeding heart if he’s not careful, past the shores of need to the reefs of greed, through the squalls of hate.* Who knows where he might make landfall? Maybe Malaysia.

Who would ever have thought it?

Gillard’s off shore processing stance was adopted in response to focus groups who want rid of boat arrivals like a good householder wants rid of rats and cockroaches, having learned from Pauline Hanson and John Howard that asylum seekers are a threat to the very fabric of the Australian way of life, and quite likely terrorists to boot. Focus groups aren’t going to put their weight behind any politician who can’t show them some tough, and kick the bastard refugees out as soon as they disembark from their bastard cobbled-together boats. If they sink and die it serves the importunate bastards right, is pretty much the attitude of focus groups the government consults.

The people of the focus groups found their natural leader in Gillard. She, like Pauline Hanson, validated them and gave them a voice. You aren’t racists, she told them. If you worry about border security and our nation’s sovereignty you are not racists, and their hearts swelled with gratitude at this Prime Ministerial liberation from the burdensome slur of bogan racism laid upon them by middle class tosser academics, soy milk latte sipping left wing inner city über cool arty farty wankers, and maybe that nerdy egg head Kevin Rudd as well, even if he did try to hide it. Julia speaks their language, she has the right accent; she makes it OK to hate boat arrivals and call it border protection, and she’s tough. What more could a focus group want?

 A victory for women

Julia Gillard is unquestionably the mistress of the politics of tough, and the blokes she’s bulldozed in her single-minded pursuit of the title can only lie trashed and spent in the gutter, marvelling at her prodigious talent.  In the patriarchal culture of hegemonic masculinity Gillard has proved herself to be more skilled and adept than any bloke. Suck it up, chaps. You should have tried harder to keep us pregnant and barefoot.

Julia is a role model for our female young, demonstrating how a woman can indeed be harder, more mean, and infinitely more tough than a man by honing her skills on powerless asylum seekers. There’s no issue in Australian politics that comes anywhere near providing the same opportunities for the performance of tough. Climate change you might protest, but that doesn’t yet have the human element essential to modelling first class tough. Derogatory remarks about the legitimacy of a photograph of one polar bear looking desperate on a melting ice floe can’t compare with the opportunity to send unaccompanied minors to a country where they might get caned, just for being in it.

Here’s the rub

However. Here’s the rub. If it was your desire to see a change in the monotonous political culture of “how thoroughly can I trash somebody to show how tough hard and mean I am,” if it was your hope that women might introduce an alternative to the tough, hard and mean meme that can only ever be maintained at the expense of others because it is founded on being tough hard and mean to somebody, you’re likely to be feeling a bit disillusioned.

If women in high political office are going to be the same as men and worse, why do we want them there, you might be asking? Why do we need anymore mean tough and hard politicians, and especially why do we need women politicians who think they have to up the stakes and be even meaner, tougher and harder than the men?

Why do we value and reward the mean, the tough and the hard in politics above all other characteristics in the first place, whether they manifest in a man or a woman?

Julia Gillard is living proof that the qualities required for political office in Australia are un-gendered. She is the living proof that women can do anything a man can do and more, in that world. She’s living proof that women are capable of the same oppressive and repressive patriarchal attitudes and behaviours that in other contexts feminists have vigorously protested and fought to liberate us from for decades, only to have our first female leader head right back into the brutal bloodied heart of the patriarchy’s savaging body, and prove that not only can we equal them in their dark arts, we can outdo them.

Woman up, Ms Gillard, and stop copying the blokes. It’s not yet too late. Things can’t get much worse for you, so if you’re going down, do it in a blaze of female glory by being tough enough to change your mind, because very soon Tony Abbott’s going to start looking better at pretending to be humane than you are, and that’s just going to mess with everybody’s heads, possibly terminally. Then you’ll find yourself and your party cast into the wilderness for a good few decades, while the rest of us have to find ways of staying alive under a coalition government led by a failed seminarian who likes going round mostly naked, and has a bad and unreconstructed attitude to women.

From one woman to another this heartfelt plea: have mercy, Julia. Have mercy.

*Leonard Cohen, Democracy.

Note to Julia: don’t go to the mattresses

2 Sep

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.

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