Today we wake up with something that refugee advocates have been aiming for ever since one John Winston Howard sort to utilize the issue of asylum seekers who arrive by boat as a method of political point scoring – to prove that he was “tough on terrorism”.
Howard and cronies held these people as examples of the inherent dangers of these sorts of people, after all they did throw their children overboard didn’t they. Where was the outrage from the mainstream media who sat there blandly and did nothing more than their smiling noddies while Phillip Ruddock pronounced that although such practices as lip-sewing were alien to our culture that these could be likened to body-piercing.
Thus demonised, it was deemed that “these people” these irregular boat arrivals should be placed as far away from public view as conceivably possible, and if desert camps in Australia weren’t invisible enough then clearly way way out of sight such as Nauru would do the trick.
The cracks in the Migration Act and the application of it as per the Howard years commenced with the High Court ruling that asylum seekers should have recourse to the Australian justice system, this being precisely what Howard tried to avoid by the excising of the islands and offshore processing.
This brings us to where we now are and I refer again to the opinion of Frank Brennan, Professor of Law at the Australian Catholic University and Visiting Professorial Fellow at the University of New South Wales.
No government can engage with legal certainty in offshore processing without first having Parliament amend s.198A. If there be no amendment of the Act, government must expect a legal challenge to any proposal for offshore processing wherever the announced destination. The legal challenge would commence in the High Court but probably be referred back to the Federal Court for a trial on the factual issues of protection and adequate processing. There would then be an appeal to the Full Court of the Federal Court followed by an application for special leave to the High Court.
The amendment as presented to parliament yesterday was always destined to not proceed because even if Tony Crook had chosen to support it, it would then have been defeated in the Senate, given that neither the Greens nor the LNP would have supported it. And then as per Frank Brennan, even if at some later date any amendment was passed by both Houses of Parliament it would have been challenged by refugee advocates via another High Court challenge. Whether the High Court would have gone against “the spirit of” their August ruling is highly unlikely in my opinion.
Unless the legislation is changed there can no longer be any offshore processing and in spite of whatever Tony Abbott might say, this includes Nauru.
Yesterday saw the decision by the government to present amendments to the Act rather than withdrawing them in spite of the fact that they knew that one way or the other that these amendments were bound to fail. The strategy here is obvious, if the government had not presented the amendments Tony Abbott would have pronounced it as “a failure of” the government to try to “tackle the difficult issues”.
I think that we are all aware of the rhetoric which would have naturally followed.
And so where are we now? We now have onshore processing and because of the reasons stated by Frank Brennan.
The bill will now sit idle in the House.
Prime Minister Gillard says the Government’s proposed amendments will remain on the parliamentary notice paper until the Opposition is prepared to back them.
“The Leader of the Opposition is fond of saying that I should make various phone calls [to Nauru],” she said.
“If the Leader of the Opposition wants offshore processing for Australia… He needs to ring this Prime Minister and vote for the amendments.
“We are at real risk as a result of Mr Abbott’s conduct of seeing more boats and that will put pressure on the detention network.”
In what will be considered by advocates to be an improvement of some substance to government policy, bridging visas which have always been used as a matter of course for irregular air arrivals, will be used for those who arrive by boat. The Gillard government has also announced that it will honor its commitment to take the 4,000 already processed refugees which is part of its now ‘idle’ Malaysia deal.