The Government, the Opposition and the media punditocracy are out in force analysing and dissecting the High Court decision made on 31st August in the case of
In summary the principles established in the High Court’s judgement are:
1. Malaysia cannot be used as a country where asylum seekers arriving in Australia can be processed. Nor is it the case that Malaysia is legally bound to provide the access and protections the Migration Act requires for a valid declaration. Malaysia is not a party to the Refugees Convention or its Protocol. The Arrangement which the Minister signed with the Malaysian Minister for Home Affairs on 25 July 2011 said expressly that it was not legally binding.
2. An unaccompanied asylum seeker under the age of 18 cannot be removed from Australia without the written consent of the Minister for Immigration.
3. Under s 198A of the Migration Act 1958 (Cth), the Minister cannot validly declare a country as a country to which asylum seekers can be taken for processing unless the country is bound either by domestic or international law to provide proper assessment of claims, proper protection while awaiting assessment and provide protection for persons given refugee status pending their voluntary return to their country of origin or their resettlement in another country.
4. The Court also held that the Minister has no other power under the Migration Act to remove from Australia asylum seekers whose claims for protection have not been determined unless the country fulfils the requirements outlined in (3).
In effect, the decision has also thrown the whole of the contentious Section 198 of the Migration Act into doubt. This section among other things enabled both the notion of off-shore processing of asylum seekers and specifically the so-called “Pacific Solution” used by the Howard Government.
Further, s198C (7)already states that decisions of the Refugee Review Tribunal are subject to potential challenges under Section 75 under the Constitution.
Ron Merkel, QC, in an opinion sought by the advocacy organisation GetUp! said there would be ”reasonably good prospects”of a successful legal challenge to any new attempt to use Nauru and Manus Island as third country processors
That such a fundamentally flawed section of an Act should have withstood challenge for so long has its origins in the elections of 1996, 1998 and 2001.
Howard set out to appeal to the millions of poor Australians whose futures had been
thrown into turmoil by the economic restructuring of the Hawke and Keating Governments… He and other conservatives supported that restructuring, but sought to mobilise the anger and resentment into racist nationalism and hostility towards welfare. Liberal Party pollster, Mark Textor, assiduously studied the racial outlook of Australian voters. His polling formed the basis for Howard’s notorious 2001 election campaign. In this way, some working class people were turned against their own interests. In 2000, when Labor politician Anthony Albanese, campaigned against the GST in northern NSW amongst some of the poorest people in Australia—those living in caravan parks—he found far more concern about the supposed threat of boat people, than about a tax that would make them even poorer.
However Labor was not free of responsibility either. Labor long had the White Australia Policy as a centrepiece of its own platform.
Since the Vietnam war, Labor has been identified with anti-racism. But Labor’s ability to fight the racism of Coalition governments has been compromised by its own history and ideology.
In a response to what at the time were changing and more enlightened community attitudes, by 1973 Labor had been confident enough to declare the end of the White Australia Policy.
The Liberals, firstly under Fraser then under Peacock and Hewson, had also moved away from the party’s former rabid bigotry and for a while there was effectively a bi-partisan approach to dealing with asylum seekers arriving in boats from conflicts in South-East Asia and later, East Timor. But then
It was an ALP government that began the cruel business of locking up asylum seekers in the late 1980s. Finally, Labor’s electoralism makes it hesitant about confronting racist hysteria. This cowardice saw the ALP back the Tampa kidnapping, the ‘Pacific solution’ of dumping refugees in Nauru and Papua New Guinea, the detention centres and then the draconian ‘security’ laws passed as part of the ‘war on terror’. Labor’s leader from late 2003, Mark Latham, shared most of the Coalition’s economic liberalism and much of John Howard’s hostility to welfare and refugees.
Hard on the heels of the mandatory detention decision came the Pauline Hanson “phenomenon”. The main driver of the Hanson campaign was the channelling of the focusless xenophobia of sections of the Australian electorate, never far from the surface when economic woes hit. The main pre-occupation of a resurgent Liberal Party was to maximise the damage to its own brand caused by the overwhelming popularity of Bob Hawke and the adoption by Paul Keating of what were effectively neo-liberal financial reforms. Howard’s strategy was to woo the “battlers”, often traditionally Labor voters, by parading a convenient scapegoat for the economic hardships brought about by both the transition to economic reform in this country and by the state of the world economy at the time.
So it seems that if either the Government or the Opposition want to revisit dumping asylum seekers in any third country in the name of chasing the votes of a noisy minority of Australians, that option is now blocked.
There is an opportunity here for both parties, along with the Greens and independents, to take the resettlement and processing of refugees out of the political sphere completely. At various times the idea of having an independent commission looking after the needs of refugees and asylum seekers has been proposed. This would effectively defuse the issue as an opportunistic occasion for the promotion of xenophobia. At the moment, extremist groups are using the race to the bottom of the two major parties as a signal that racism and bigotry are now “respectable” components of political discourse, while the leadership of major parties, whatever their personal views, have not hesitated to amplify these groundless fears in the name of clinging to marginal seats.
There is an opportunity too for major parties to take back the disillusioned voters who used to be the backbone of their organisations, but who will not involve themselves in parties which remain silent in the face of resurgent xenophobia – a resurgence which not only demonises new arrivals, but also older immigrant groups, Indigenous Australians and religious minorities.
Prime Minister Gillard needs to tough things out and to use the asylum seeker decision to revisit Labor policy on the issue, thus taking it out of the political arena. Trying to pander to the lowest of the low does not work in either Labor or the Coalition’s best interests.
IS YOUR MIND MADE UP? 