"This effectively created a special creature of law - a refugee who was not, in a sense, a refugee so much as an "illegal" who needed to disprove the label. But the High Court would have none of it."

And good on them.

The root of all the shenanigans is that the UN Refugees Convention, which Australia ha signed, says that if someone applies within a signatory state for recognition as a refugee, the signatory cannot return him to his home state if he has been determined to be a refugee, or while the determination is being made.

This sets up two classes: people applying for refugee status outside Australia, who can legally be rejected even if they satisfy the definition of refugee, and people applying for refugee status inside Australia, who cannot. It creates an incentive for people seeking refugee status to get into Australia first, and then apply.

Entering Australia without a visa is illegal and anyone doing so is liable to deportation. But refugees are excepted, because making a claim sets off Australia's obligations under the Convention.

Thus the government is hoist with its own petard. On the one hand it wants 'border control' - to keep out anyone without a visa. On the other hand, it wants the kudos of strutting the world stage signing human rights instruments at the UN.

So they try to have a bet each way, declaring the fiction that parts of Australia are not really parts of Australia after all.

Since governments of both parties obviously don’t want and don’t intend to be bound by the Convention, and will do anything not matter how dishonest or inhumane to to try to squirm out of it, the solution is to withdraw from the UN Convention.

This would still enable us to take in whatever size and composition of refugee intake from time to time that we want.

But it would require honesty of politicians, which seems to be the sticking point.

Peter Hume writes a very good response to this article.

From my point of view and, judging by polls and the constancy of objection to "illegals", the thing which is loathed is that they force their way into our Country.

The fact that I say this does not in any way mean I am racists or inhumane - it simply means I think the policy and politics of border control are wrong. And yes, we should withdraw from the UN Refugee Convention.

It seems to me it would be far better to greatly increase the number of refugees we taken annually so the message got out that we would take refugees who apply to come through "the front door" and return those who did not.

I have no answers to the problem, only the above suggestion. But I am heartily tired of refugee groups screaming - and indeed other countries - at the majority Australian for being racists.This majority also comprises many who have been resettled here and also object to the "illegals."

This screaming or near gloating at times such as the High Court judgement is no way to convert people to their point of view, after all, Australia and Australians have a long history of successful resentlment which gives the lie to the screaming minorities.

There is a decision that needs to be made before the problem of the status of refugees reaching Australia can be addressed.
During the Tampa debacle the Howard Government used retrospective legislation to over-rule a decision of the High Court and thus placed itself above the law. By moving the immigration boundaries refugees who did not reach the Australian mainland had not legally reached Australia and therefore did not have the protection of Australian law.
The question is how far can we go and still claim to be a democratic society? There are many people who want to stop refugees arriving by boat. Are these same people prepared to tolerate a government (of any colour) that places itself above the law, and removing the protection of the law from any sector of our society, even if they have arrived by boat without a passport or visa?
It is easy to get caught up in specific issues without seeing the greater issue.
Totalitarian forms of government could use all sorts of measures to stop refugees arriving by boat, but democracy is slow and painful. Often it leaves many people dissatisfied. But for now it is the best we have.
Central to democracy is that nobody, not even the government, is above the law. The high court has ruled on this issue. Like it or not that is the way it is. Now that is settled it is time to get on with looking for solutions based on the limitations of democracy.

Yes Peter, these people could be taken from Indonesia, doing away with the need to sail on unsafe boats. A very straight forwarded and cheap alternative.

Central to democracy is the people should be allowed to vote on what laws they want the country to follow in place themselves and THEN followed.

As for refugee intake- we should be allowed to discriminate on security risks, compatibility and integration chances, and a exceeding a certain number of friendly/neutral/countries known for taking refugees from the region, had passed through to get here.

I believe this is a fair expectation.

Very sane comments.

May I add to the suggested list of exclusions - anybody who does not turn up with adequate personal ID. That would at least give us a better chance of knowing with whom we are dealing.