"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.

the excising and offshoring and warehousing of these unauthorised arrivals has now been dealt with by the High Court.

that sort of thing was Australia's Guantanamo. so even without a Bill of Rights, the High Court put the government in its place and came down on the side of humanity and common sense.

but what about all those folks who got in the front door - the nazi war criminals and torturers from various odious regimes - all living quite comfortably, when will their bona fides ever be questioned?

I have one problem with this whole issue. We pay our immigration officials a lot of money and I am sure they are well educated. They reach a decision on whether the person in question is a legitimate refugee or not. If the person seeking refugee status is refused by the immigration department they then lodge a court claim. I suspect it is the taxpayer that foots the biil for this action and probably their legal representation. One of the reasons we had so many refugees in detention at one stage was the backlog of court claims. Iam not sure of the outcomes of these many cases but it seems to me that we should be taking the advice of our Immigration department in the first place. The amounts of taxpayers money expended in these court cases is rediculous. The immigration departments assesment should be binding and final. I am sure each case is researched extensivly before a decision is made. Stop the rot and the squandering of taxpayers money.

Agree wholeheartedly KenH.

No ID or bogus ID = no credibility.

Ditto Ibbit with this comment.

"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."

It is for the Courts to 'interpret' the Law as passed by Parliment. If the Law is insufficiently clear or is blatantly contrary to the wishes of the democratic majority then pressure needs to be applied to our elected representatives to make changes or amendments.

I am one of the majority who does not want people in boats turning up willy-nilly and no apology for my attitude!

..and NOW you know why Oklahoma just voted NOT to allow either International law OR Sharia law to be considered in it's courts.

We need to make such issues votable at each election.

My list.

1/ Remove our signatory status from the UN refugee convention.
2/ Remove our SS from any convention which ties us to 'international obligations' which involve changing our law or constitution.

3/ Obliterate ALL so called "Human Rights" commissions and publically humliate them with confessions for their anti Australian culture crimes.

Todays 'rights' for refugees are tomorrows 'RAPE IS OK'for Muslims toward their wives... as activist judges try to re-shape society in Marx's image.

FIX AUSTRALIA.

1/ Stack the High court with conservative Judges.
2/ follow the list above.

In this case, while the High Court is correct in it's judgement. The Law is an ass as no account seems to have been taken as to our right to protect our borders or our right to determine who enters Australia or how.

Would this current High Court have approved of our dealings with the Japanese illegal immigrants in Papua New Guinea in the early 1940's, if in fact they'd all claimed they were asylum seekers?

Oh that's right we hadn't signed the UN convention then. But what if the Indonesian or Burmese or Chinese military decide to invade by claiming refugee status rather than fighting their way here?

We'd look bloody silly, ... invasion by UN Convention!

No one wants people arriving willy nilly in unseaworthy boats claiming refugee status, but i hardly see it as a victory if we discourage the behaviour by moving our laws more and more toward those of totalitarian states. A lasting answer may require some compromise and cooperation with our neighbours.
Certainly even the Howard governments laws never equalled those of countries like China but where are the limits and how long will it take before we get there. I have already see people post comments supporting such hateful methods so is this really where we want to go.
This was a free country, we have eroded our rights enough over the past twenty years all in the name of the common good. Mostly the laws seem sensible enough but still every time a judge makes a decision that dosen't suit us we want the law changed. Soon we will have Toni Abbott's vote for a judge policy along with the regulate the banks idea.
The high court doesn't just reflect public opinion, it also helps temper rash decisions by applying common sense to law and remembers the core values that really matter in our society. OH! they also use the constitution.

The boat people issue is a deliberate distraction to keep insecure morons anxious and the Govt push agenda's like stealing our freedoms under the guise of false flag terrorism.

Far more people stay here illegally via plane than by boats.

Notice how our Govts don't want to keep criminals in gaol.The laws are to keep order but there is no deterent.So we all cry for more restrictions on our own freedoms to be free from crime to no avail.

It's disapointing to see some people have so little grasp on policy-by-policy logic in favor of sticking it to a generalized stereotype;

Our freedoms are not being impaired one single bit. Only the freedoms of non-citizens who attempted to enter the country in a manner our law considers illegal, are being impaired (at the demand of enhanced personal liberty of a large portion of voters). Not a single lurch towards totalitarianism comes out of this policy, and much freer countries, with no terrorist police laws and no participation in the War on Terror AT ALL, have even stricter entry requirements.

Please do, next time try to see the world as more complicated than being either a neocon crusade to take everyone's freedoms or a liberalist crusade to grant more to everyone- the more you try to make that definition true, the more you focus power into the hands of real neocons who actually do fit your description; when there are plenty of socially moderate viewpoints that would also demand strict refugee policies too.

Be a little more open minded and percieve that refugee policies, the war on terror, and fascist local laws can be completely separate.

Does anyone know how the number of asylum seekers who fly in compares with those who come by boat?

I'm going to limit myself to the judgement--this time.

The judgement is based on Chapter 3 of the the Australian Constitution. That requires that any administrative judgement is able to be reviewed by the courts as to its legality, and inter alia, as to whether the proper procedures were followed. (There is no implied power to review the judgements made by officials as to the merits of the cases.)

The judgement held in effect that both the Howard Government and the Gillard one were wrong--one cannot evade this overview by means of excising offshore islands, and it also follows, by doing the procedures on Nauru.

In the two cases in question, the court held that the asylum seekers had not been treated with procedural fairness--that is, the treatment was contrary to law. Specifically, the original processing and the reviewer relied upon what purported to be facts without giving the asylum seekers a proper opportunity to demonstrate that those factual assumptions were false.

That is all

No, Candide, but I know it's a much greater number who come in by plane, usually with a valid visa whether or not the passport is valid, than the number who come by boat. It's many times more.

This is a quote from a Background Note prepared by researchers in the Parliamentary Library in Canberra.

"In Australia, the vast majority of asylum seekers applying for protection arrive originally by air with a valid visa and then apply for asylum at a later date while living in the community. Boat arrivals only make up a small proportion of applicants. Estimates vary, but it is likely that between 96 and 99 percent of asylum applicants arrived by air originally. However, those who have arrived by boat are more likely to be recognised as refugees.

The complete document is here: http://www.aph.gov.au/library/pubs/bn/sp/AsylumFacts.pdf

Thank you candide, i had heard this before but was unable to locate the information. It would appear the great upset is that some of the boat people arrive without papers. Now whether this is by circumstance, misfortune or very poor advice i am unsure but to automatically assume that they are intentionally attempting to deceive the authorities for reasons of compromising national security is bias and paranoid. I wonder how these people would feel if they were to be arrested and imprisoned without recourse to appeal on the decision of a bureaucrat because they left their wallet at home and were stopped by the police. sure some might be trying to deceive but for most it would be a mistake and rough justice for such.
I am not against some form of detention for these people on arrival, if nothing else there is the quarantine issue but after three months surely we can make arrangements for them to join the community. Without question we should not compromise the principles of our legal system to quieten a political problem and apease a scare electorate that have been mislead for political gain.
Oh and King Hazza, it is disappointing that some people don't understand what they read and automatically asume worst case. The law changes to do with terrorism since 9/11 have been appallingly unnecessary and a direct erosion of civil rights. They may make paranoid people feel safe but do little except allow holes to exist in our legal framework for the police and security services to abuse peoples civil rights to satisfy their own agenda's. We saw this once already with the case of the indian doctor. As well almost all cases to do with security have been handled within the existing frame work rendering the new laws mostly unnecessary.

Nairbe I'm not playing down anti-terror laws at all; I'm merely pointing out that they are not part in parcel to strict immigration and refugee policy, as some people seem to imply by bringing them up as points to somehow substantiate a case against our refugee policy..

King Hazza,
My initial comment was to high light that we have become happy to use our judicial system as a political tool to apease the paranoid attitudes that are griping our communities. How they have grown to such a point is debatable. I believe them to be a hangover from the Howard government that used the fear tactic to control public opinion, and for this we still suffer. Howard drew very strong connections between the boats and national security which at the time was all based on terrorism, so why the surprise that people make the connection it was well drummed into the community for 10 years. Fear, suspicion and paranoia about boat people was driven to levels of stupidity and xenophobia ran wild. The fact that the fly in's are a much bigger problem and of a much higher security risk seems to evade most peoples conscience minds.
My point is that the abuse and knee jerk reactions that go on in the judiciary from political influence are dangerous and lead to very poor and risky law. This is why we have a high court and an independent judiciary. To think that the government would now try and form some kind of new law to get around a constitutional decision is appalling and lowers the current government to the gutter tactics of the howard years on this subject. Accept what your high court has said, and we need to find some real compassion for desperate people. If our system is good and the current law applied we will weed out the undesirables far easier than you can with fly in's.

except that changing laws to suit modern demands is a perfectly normal function, and the high court simply polices a different legal stance;
Also, John Howard didn't "create" the paranoia- he capitalized on the vote of people who wanted to tighten our stance towards refugees and won the election, while Labor, consistently opposing it during that time and for years after, continued to lose.

The weed-out requirements would indeed be good if they corresponded precisely to what I listed (and that means if a person really IS a refugee, and really IS fleeing a pogrom- but is a complete religious fanatic who is unwilling to embrace secular, gay and differently-religious people, he still gets sent back. And of course, any boat where there is a mutiny automatically gets disqualified.

But ultimately, if people overwhelmingly reject letting refugees in for any reason at all- well, that's where the refugees would have been heading, so forcing the issue would not achieve anything either.
It is after all up to them to be compassionate- not some distant stranger telling THEM they have to be.

This stupidity is a very good reason for us to start electing our judges. We could do with a lot less activism from these lawyers, now judges, protecting their turf.

We get far too much of legal cr4p, & not enough justice from these peanuts.

Was pretending in 2001 that 4 000 islands to our north were not part of Australia for "immigration puroposes" not a case of moving the goal posts? Thank goodness for a unanimous decsion from the High Court that says Australia's boundaries are as they are, not to be mucked around with, and if an asylum seekers crossess the border AND asks for protection from persecution, Australia must protect and assess their claims. Hooray! Now for the biggest elephant in the auditorium: mandatory immigration detention legislated in 1992. WHY? with what justification?

The Burmese Generals said Aung San Suu Kyi was detained for 21 long years - denied her freedom- because she had "committed acts designed to put the country in a perilous state". Any idea why our Government deprives over 400 children seeking asylum alone of their freedom and childhood when they have broken no law and pose no political threat?

Hasbeen, you might like to read the decision. It is far from stupid, and by no means activist. It is a straightforward (and minimal) application of Part 3 of the Constitution.

In terms of what the Constitution might be changed to say, are you wanting to deny to asylum seekers the procedures of natural justice in the assessment of their cases?

Ffred, our own laws state it is illegal to enter our country unpermitted regardless of reason.
And you keep confusing an immigration case with a civil justice case- most countries around the world- and most definitely those that exercise rule of law, may allow barring a foreigner from entry on grounds of either them being a risk or a likelyhood to follow or incite radical doctrine or action, without the need for a legal charge to be made (eg Geert Wilders in the UK)- normally in that case we immediately send them back to wherever they came from.

Also Ozbib, what exactly is "natural justice" when justice is relative to the country's contemporary viewpoints and laws?

King Hazza, I regret the delay in replying. A Senate Committee inquiry into journalist shield laws has been announced, with a very short time frame, and that delayed me.

You ask ‘what exactly is "natural justice" when justice is relative to the country's contemporary viewpoints and laws?’

The principles of natural justice are principles of procedural fairness. They are part of the law of the common law countries. They are not the whole of legal justice, which in turn is not the whole of justice. (There can be unjust laws, for example.)

‘Put simply, natural justice involves decision-makers informing people of the case against them or their interests, giving them a right to be heard (the ‘hearing’ rule), not having a personal interest in the outcome (the rule against ‘bias’), and acting only on of logically probative evidence (the ‘no evidence’ rule). ‘

You can read more in a useful account given by the NSW Ombudsman, at http://www.ombo.nsw.gov.au/publication/PDF/factsheets/FS_PublicSector_14_Natural_Justice.pdf, from which the above formulation is taken.

The third of these is the most obvious—that a person should not be the judge in his/her own case. It would be hard to argue against this general principle.

The High Court in effect relies on the first two. The two asylum seekers were not told that the reviewer was relying on information about Sri Lanka supplied by the Department of Foreign Affairs and Trade. So they had no opportunity to either prove that the Department is wrong, or to prove that their own circumstances make a relevant difference. The case will have to go back for a fresh review.

I promised in my earlier post to confine myself to the High Court Judgement, so I won’t take up your offer to debate the objectivity and universality of judgements about justice—this time. I note merely that it makes good sense, it is not gobbledegook, to criticise the laws of one’s own country or those of another one as unjust.

A fair case ozbib- the question is treaty or no, should nations have the liberty to bar non-citizens from their country (in a general case) based on precautionary suspicion alone? (eg barring of hate preachers normally, or barring of Geert Wilders in the UK)?

KH,

At present, the Minister for Immigration can deny or cancel a visa on character grounds (Section 501, I think, of the Immigration Act). I have argued that it should be repealed.

A recent case of misuse was part of the Haneef affair.

There are two questions I'd want to address: should there be the power to ban, and how should that power be used.

I'm opposed to banning people on the basis of their opinions, just as I am opposed to preventing people from expressing them unless the expression causes or advocates harm.
The way to deal with bad speech is good speech. That is how holocaust deniers should be dealt with, unless they go on to advocate violence, of course.

My only knowledge of Geert Wilders is what has been in the press and what a quick google brings up. I'm assuming he hasn't argued for banning Islam or denying Moslems citizenship. On that assumption, if he were a refugee--genuinely at risk of being murdered for example--we probably should admit him. He'd be subject to our hate speech laws, like any other resident. If he applied to emigrate on other grounds and met our criteria, he could take his place in what is a genuine queue.

On banning people suspected of terrorism:

I'm unhappy about the criterion for sending asylum seekers back being suspicion. Reasonable suspicion is better; except that the legal definition of what is unreasonable appears to be very narrow.

I favour keeping asylum seekers detained for a period of time while checks are made; and if there are reasonable suspicions of terrorism, of keeping them detained while efforts are made to resolve those suspicions. There needs to be a better check on ASIO to ensure their suspicions are reasonable. To the extent that is consistent with security, asylum seekers should be presented with the evidence against them. And someone other than ASIO should make the decisions about consistency with security. It should get harder to keep people detained as time goes on--there needs to be pressure on ASIO to resolve cases.

Quite some fair points ozbib, though I still disagree.