View from the Hill: Shorten’s victory will bring dangerous counter strikes from a desperate government


Michelle Grattan, University of Canberra

An extraordinary amount of hype and some confected hysteria preceded Tuesday’s vote on the medical transfer legislation.

The government threw everything at trying to avoid a defeat. In a last stand, it fell back on a constitutional argument – backed by
Solicitor-General advice – that carried no practical weight and was simply circumvented by the majority that passed the bill in the House of Representatives.




Read more:
Crossbenchers must decide between something or nothing on medical transfers bill


While the government frantically attempted to thwart Labor and the crossbench, Scott Morrison also ran the line that he wasn’t that fussed. Afterwards he told a news conference: “Votes will come and votes will go, they do not trouble me.” That claim wouldn’t pass a fact check.

This was a big vote, and everyone knew it. Morrison operates a
minority government and Tuesday’s loss underscored that he can’t
automatically get his way. (Ironically, in the last days of Turnbull’s majority government, the threat of losing a House vote came from internal dissidents.)




Read more:
The government was defeated on the ‘medevac’ bill, but that does not mean the end of the government


The next test for Morrison will be on whether the House agrees to
extra sitting days to discuss the measures from the banking royal
commission. For procedural reasons, this needs 76 votes, one more than the 75 required on the medical transfer bill. The government has been leaning heavily on Bob Katter, the crossbencher who will be the key.

While the government looked rattled as the votes on the medical
transfer bill proceeded, Labor was calm and steely.

For all the talk about Labor’s misjudgement on the issue, this week it has moved cautiously and methodically.

Originally pushed by the crossbench into taking a stand on
humanitarian grounds – the bill is based on a proposal from
independent Kerryn Phelps – Labor has sought to display compassion but contain the political risk.

Bill Shorten, knowing the danger, decided the version of the bill
coming from the Senate (which Labor had supported there) left the ALP too exposed. He flagged last week he’d like a “middle” course.

So the opposition came up with amendments to give the minister wider discretion and more time in making decisions, and to limit the application of the legislation to those on Nauru and Manus now. The latter change was to minimise the “pull” factor – the extent to which the new arrangement would encourage the people smugglers.

Then it was a matter of persuading the required six crossbenchers.
They accepted in the negotiations that a modified bill was better than nothing (though there was some Greens cavilling).

In the House, the ALP troops were kept carefully in check; the emotion was turned down; the speeches from the bill’s supporters were few and brief. Labor just wanted one thing in the chamber – a win. This wasn’t the time to grandstand.

The government, wounded and worried, is seeing this as one (albeit
major) battle in the long war to the election. Its spruikers will say that in defeat it has had a victory – that Labor has given the
Coalition ammunition for the campaign.

It’s true the bill has breathed new life into the border security
debate, but whether this will be enough to do Labor serious harm is an open question. `

The ALP is always vulnerable on boats. On the other hand, boats are lower in voters’ minds than they used to be.

The government will turn up the dial by announcing “contingency plans” against fresh arrivals. Morrison, having accused Shorten of
undermining offshore processing, is already moving on to the claim that he couldn’t be trusted to be strong on turnbacks.

Goodness knows how the politics would play out if a boat appeared on the horizon in the next few weeks. You can be sure, however, that the government would be quick to tell us about it, and point the finger at Shorten.

In all this, the bill itself (which has to go back to the Senate for a tick off on the amendments) should be kept in perspective.

The minister has a veto on “security” grounds, including being able to exclude anyone who has committed a major crime. The composition of the medical panel which would have the final say on other transfers is broad and balanced.

Probably, over a period, there would be a lot of transfers out of the 1000 people offshore. But there have already been nearly 900 (some after legal action). These transfers have amounted to a backdoor route into Australia.

If the legislation in the longer term opens that door a little wider, it will also be a way of “settling” people in Australia without acknowledging that is being done.

More of the same? Or a radical change? It depends how you look at it.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Labor leads 53-47% in Newspoll as Shorten struggles with medical transfer bill


Michelle Grattan, University of Canberra

The government goes into the resumption of parliament this week
trailing Labor 47-53% on the two-party vote in Newspoll, unchanged
from a fortnight ago.

The poll comes as Labor’s stand on the legislation to facilitate
medical evacuations hangs in the balance, with Bill Shorten having
indicated he would like to find a compromise and speculation about a Labor retreat from its earlier support.

Shorten receives a briefing on the implications of the bill from the secretary of the Home Affairs Department, Mike Pezzullo on Monday. Shadow cabinet and caucus will discuss Labor’s position.

The opposition has been under concerted attack from the government
over its backing for the legislation, which passed the Senate last
year with ALP support.

Shorten is worried about Labor being wedged, because border protection is always a politically vulnerable area for the ALP.

Scott Morrison says the government will not shift from outright
opposition to the bill, which is based on a proposal originally coming from independent Kerryn Phelps but subsequently refined.

Newspoll, published in The Australian, has Labor’s primary vote up a point to 39%; the Coalition’s vote remains on 37%. The Greens are on 9%; One Nation is polling 5%, down a point.

Morrison has increased his lead over Shorten as better prime minister by 2 points to 44-35%.

Morrison’s satisfaction rating is up 3 points to 43%; his
dissatisfaction rating has fallen 2 points to 45%. Shorten has a net approval rating of minus 15, a worsening by 2 points.

The tactical battle over the medical transfer amendments will dominate the run up to Tuesday’s first day of the sitting. On another front, the opposition is trying to muster the numbers for extra sitting days to consider measures from the banking royal commission.

In comments on the medical transfer bill Opposition spokesman Shayne Neumann said on Sunday: “Labor has always had two clear objectives – making sure sick people can get medical care, and making sure the minister has final discretion over medical transfers.”

The bill provides that where there a dispute between the two doctors recommending a transfer and the minister, the final say on medical grounds would be in the hands of a medical panel.

The minister could override medical decisions only on security grounds (“security” is as defined in the ASIO act).

Passage of the legislation, which would require support from Labor and all but one of the crossbench, would be a big rebuff for the
Coalition.

But the government has managed to turn the heat onto Labor, claiming the legislation would undermine Australia’s border protection.

The briefing Shorten will receive will put more pressure on the
opposition, because Home Affairs will presumably reinforce the
argument it advanced in advice to the government.

The government has now declassified this advice – which last week it provided more informally to The Australian.

The advice, which has some sections blacked out, says: “The
effect of the Bill will undermine the Australian Government’s regional processing arrangements.

“Conduct which would come within the security exception to transfer
based on the minister’s reasonable belief that the transfer would be prejudicial to security, does not include all criminal conduct”.

“Ultimately, the amendments provide that the approximate 1000
transferees currently located in Papua New Guinea (PNG) and Nauru
could have access to a transfer to Australia within weeks of any Royal Assent,” the advice says.

“It is not expected that the Minister’s ability to refuse transfer on security grounds will significantly reduce the number of potential transfers”.

Neumann said on Sunday: “Labor has great respect for our national
security agencies and we’ve always worked cooperatively with them.”The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

McGowan remains tight-lipped about refugee legislation despite removal of children


Michelle Grattan, University of Canberra

The government has finalised the removal of the last children from
Nauru, as it battles to head off a parliamentary defeat on legislation
to facilitate medical transfers from offshore.

Scott Morrison and Immigration Minister David Coleman said on Sunday:
“There are now only four asylum seeker children on Nauru and they have
all been approved for departure to the United States of America with
their families”.

When parliament rose for its summer break a government filibuster had
prevented amendments reaching the House of Representatives that would
put medical transfers into the hands of doctors, though with the
minister having some oversight on security grounds. The amendments –
based on a proposal originally coming from independent Kerryn Phelps
and supported by Labor – had been passed by the Senate.

At that time the legislation potentially had enough crossbench backing
in the House to pass, but it is not clear whether that will hold when
it is put to the test this month. The government is pulling out all
stops to peel away crossbench support.

Passage of the measure would be a major blow to the Coalition,
although it would not amount to a vote of no confidence. Asked about major defeats in the past, House of Representatives clerks last year had to go as far back as 1929 (which led to an election) and on the 1941 budget
(which brought down the Fadden government).

The government has been hopeful that it can persuade independent Cathy
McGowan to break ranks with other crossbench supporters of the bill.

McGowan said on Sunday it was good news about the children but she
would reserve her position on the legislation until it came before the
House, after parliament resumes on Tuesday of next week.

“Indefinite detention needs to be addressed,” she said.

Phelps said the news about the remaining children was “absolutely
fantastic” but it was “nowhere near enough”.

Hundreds of people were still languishing on Manus and Nauru and there
were “dire reports” about mental health issues, Phelps said.

The proposed change, which would see medical transfers on the basis of
the advice of two doctors, would “take medical decisions out of the
hands of bureaucrats and politicians – with appropriate ministerial
oversight on national security grounds”.

Phelps said she hadn’t seen any evidence of a weakening of crossbench
support while parliament has been in recess.

The government on Sunday declined to explain how it has been able
arrange for the removal of all the children from Nauru when Home
Affairs Minister Peter Dutton last year suggested security issues were a
barrier to removing some of them.

Dutton told parliament in October there were 13 children at that time
in family groups where there were adults, mostly males “that are the
subject of adverse security assessments from the United States.”

At his news conference on Sunday Coleman refused to clarify how these
security concerns had been resolved or where the people in question
were.

“I can’t go into specific cases but I will say that in each case issues have been worked through to the satisfaction of the Department,” he said.

Asked whether some of the children who had been brought to Australia
still had parents on Nauru because of a negative security assessment,
Coleman said: “There have been a number of issues that have been
worked through – but, no, the family groups are together”.

UPDATE

In a fresh effort to persuade the crossbenchers not to inflict a
damaging parliamentary defeat on the government, Scott Morrison has
said the government will set up a medical panel to review transfers
from Manus and Nauru.

The Medical Transfer Clinical Assurance Panel would be chaired by a
nominee of the Commonwealth Chief Medical Officer, and include
representatives from Foundation House (which provides services to
refugees) and the Australian Medical Association, and two nominees
from the Home Affairs department’s Chief Medical Officer.

If a transfer was rejected, the panel would look at the case, and make
a recommendation to the minister.

The structure would still leave the ultimate authority at ministerial level.

Phelps told the ABC on Monday the new panel would not solve the
problem because bureaucrats would still be making the decisions on
transfers, with the review coming later. The process needed to be
fast-tracked, she said, maintaining support for the bill that will
come to the House.

Coleman said if the bill were passed this would “effectively lead to
the end of offshore processing”.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

As children are airlifted from Nauru, a cruel and inhumane policy may finally be ending



File 20181023 169831 chyly1.jpg?ixlib=rb 1.1
If refugee and asylum seekers are not resettled in Australia, the humanitarian crisis will only worsen.
AAP/Jeremy Ng

Alex Reilly, University of Adelaide

Australia’s off-shore detention policy is unravelling. Predictably, after five years of detention, the mental health of adults and children who have been left in indefinite detention on Nauru is collapsing. On Monday, 11 children and their families were flown to Australia for urgent medical attention.

The New Zealand deal, under which some asylum seekers could be resettled in New Zealand as long as they are banned from ever coming to Australia, is now being seriously considered.

Good politics, bad policy

From the middle of 2013, when off-shore processing was re-started on Nauru and Manus Island, the Rudd government, and later the Abbott government, made bold and irresponsible claims that no asylum seeker attempting to enter Australia by boat would ever be resettled here.

This played well to an Australian public spooked by a dramatic rise in boat arrivals under the Rudd government between 2009 and 2013, and set the foundation for a policy that has systematically brutalised hundreds of innocent people.




Read more:
Same old rhetoric cannot justify banning refugees from Australia


The claim, in the name of deterrence, relied on hopes Australian governments would find places to resettle the asylum seekers and refugees on Nauru and Manus Island in other countries. But there was no plan as to where they might go and, predictably, resettlement proved very difficult.

An agreement with the Cambodian government failed because Cambodia lacks the capacity to resettle people of such different ethnic and cultural backgrounds.

Malcolm Turnbull seemed to have stumbled upon a resolution when the Obama administration agreed to take sone refugees from Nauru and Manus.

The current US administration has resettled 276 people from Nauru and rejected a further 148. There may be more resettlements to come, but there is no clear timetable, and it will be a resolution for only some of the 652 people remaining on Nauru.

Inexplicably, the Australian Government has repeatedly rejected an offer from New Zealand to resettle 150 refugees there, fearing that people will take advantage of open migration between Australia and New Zealand and will end up resettling here.

Under renewed pressure from opposition parties, the government is reconsidering the New Zealand offer, but only if there is a travel ban preventing refugees ever coming to Australia. Prime Minister Scott Morrison has drawn, once again, on the tired justification that to allow asylum seekers any right of entry to Australia may encourage people smuggling.

Why the people smuggling argument does not stack up

The people smuggling narrative does not withstand reasonable scrutiny. How much cruelty to innocent people on Manus and Nauru is really needed to stop the boats?

A comparison with the Howard years is instructive. From 2001 to 2008, of the 1,153 refugees and asylum seekers resettled on Nauru and Manus Island, 705 went to Australia, 401 to New Zealand and 47 to other Western countries. Most were resettled between 2002 and 2004.




Read more:
Resettling refugees in Australia would not resume the people-smuggling trade


These resettlements were not followed by a resumption of the people smuggling trade. From 2002 to 2007, 18 boats arrived with 288 asylum seekers. In addition, one boat was turned back with 14 passengers.

What remained important for deterrence was the possibility of being detained offshore with no guarantee of being settled in Australia and New Zealand. Only when this possibility was removed (when the new Rudd government dismantled the Howard government’s offshore processing and turn-back policies) was there a dramatic spike in asylum seekers arriving by boat.

The message of deterrence is clear

The systemic cruelty of detaining refugees in offshore detention centres indefinitely has sent an unequivocal message to any asylum seekers who might contemplate seeking asylum in Australia by boat. No person would countenance subjecting themselves to the mental and physical trauma suffered by detainees on Nauru and Manus Island for the chance of receiving protection in Australia. And no parent would risk subjecting their child to a lifetime of mental illness.

The Australian government has proved its mettle. It is prepared to subject innocent people to the cruellest of punishments, to disregard basic principles of human dignity, and to ignore its obligations under international law. This is deterrent enough for any prospective boat rider.

Time to end an inhumane policy

It is well past time to resettle every refugee and asylum seeker on Manus and Nauru in Australia. If this is done while the policies of boat turn backs and offshore detention remain in place, this will not lead to a resumption of people smuggling operations. And if I am wrong in this, we can be confident of stopping the boats again, as the government did with startling effectiveness in 2001 and 2013.

It seems that the government may finally be softening its untenable hard line. With no other resolutions on the table, most of the refugees on Nauru and Manus must end up in Australia or New Zealand.

Until this happens, the mental health of refugees stuck on Nauru and Manus will continue to deteriorate, and courageous whistleblowers will continue to risk their employment revealing the brutality and trauma of conditions in detention.

All this pain and suffering, and economic cost, for a deterrent that is not needed.The Conversation

Alex Reilly, Director of the Public Law and Policy Research Unit, Adelaide Law School, University of Adelaide

This article is republished from The Conversation under a Creative Commons license. Read the original article.

UN slams Australia’s human rights record



File 20171109 13299 1ve63r1.jpg?ixlib=rb 1.1
The UN committee urged Australia to end offshore processing and bring the men on Manus to Australia or another safe country.
AAP

Anna Cody, UNSW and Maria Nawaz, UNSW

Last night, the United Nations Human Rights Committee released its recommendations from its review of Australia’s compliance with a key human rights treaty, the International Covenant on Civil and Political Rights.

The committee harshly criticised Australia for failures in key areas. These included the treatment of refugees, Indigenous rights and inadequate protection of human rights, including the lack of a national human rights act.

What is the UN Human Rights Committee?

This is the treaty body for the International Covenant on Civil and Political Rights. The committee is made up of 18 independent human rights experts. Its key functions are to:

  • monitor and review state parties’ compliance with the treaty; and

  • decide complaints made by individuals against state parties.

What did the committee say about Australia’s human rights record?

The committee noted areas in which Australia’s record had improved. These included the establishment of the Parliamentary Joint Committee on Human Rights and the introduction of protections against discrimination on the grounds of sexual orientation, gender identity and intersex status.


Read more: With a seat on the UN Human Rights Council, Australia must fix its record on Indigenous rights


The committee also commended Australia for its commitment to ratifying the Optional Protocol on the Convention against Torture.

However, concerns far outweighed improvements in human rights.

The rights of refugees

The committee widely criticised Australia’s refugee policy for breaching Australia’s human rights obligations under the convention.

It raised concerns about refoulement (the forcible return of refugees to their home countries), mandatory detention, Operation Sovereign Borders and offshore detention. This includes the recent closure of the Manus Island Regional Processing Centre.

The committee urged Australia to end offshore processing and bring the men on Manus to Australia or another safe country. It emphasised the need for detention to be used to assess individual risk, not as a general deterrent. It also found that Australia has “effective control” over the detention centres on Nauru and Manus Island.

The rights of Indigenous people

The committee expressed concern about disproportionately high (27%) Indigenous incarceration rates. It recommended that measures such as mandatory sentencing and imprisonment for not paying fines be repealed.

The committee further recommended that Australia provide adequate funding to the National Congress of Australia’s First Peoples, and consider constitutional change to reflect the special status and fully protect the equal rights of Aboriginal and Torres Strait Islander peoples.

As it has done before, the committee urged Australia to establish a national reparations scheme for members of the Stolen Generation.

The rights of lesbian, gay, bisexual, transgender and intersex people

The committee roundly criticised unnecessary medical interventions on intersex people, particularly intersex infants and children. It recommended that the requirement for Family Court authorisation for second-stage hormone treatment for young people diagnosed with gender dysphoria be removed.

Barriers to gender and sex recognition on documents were also criticised.

The committee took a strong stance on the same-sex marriage postal survey. It stated that:

resort[ing] to public opinion polls to facilitate upholding rights under the Covenant in general, and equality and non-discrimination of minority groups in particular, is not an acceptable decision-making method.

The committee recommended that the Marriage Act be amended, regardless of the outcome of the postal survey.

The rights of women

The committee noted the endemic nature of violence against women, and the disproportionate impact this has on Indigenous women and women with a disability. It recommended that Australia increase its efforts to prevent all forms of violence against women.


Read more: New Home Affairs department should prompt review of Australia’s human rights performance


The committee again raised concerns about the involuntary sterilisation of women and girls with intellectual and cognitive disability, and recommended that Australia abolish this practice.

The human rights framework

As in previous reviews, the committee recommended that Australia introduce a comprehensive national human rights act to give effect to the human rights protections in the covenant.

It also recommended that federal anti-discrimination laws be strengthened to ensure effective protection against all forms of discrimination. It specifically noted the lack of federal protection against discrimination on the basis of religion.

The committee criticised previous attacks by politicians on the Australian Human Rights Commission and recommended that Australia respect the independence of that body.

Where to from here?

The release of these recommendations comes at a crucial time for Australia, which last month won a seat on the UN Human Rights Council.

The council is responsible for strengthening the promotion and protection of human rights, and for addressing human rights violations around the world.

Council members must demonstrate their willingness to improve their domestic human rights situation. To claim legitimacy in human rights on the world stage, Australia needs to demonstrate a genuine commitment to human rights at home.

Under the committee’s follow-up procedure, Australia must explain how it will implement selected recommendations within 12 months. The committee’s selected recommendations focus on Australia’s treatment of refugees.

Australia was criticised at the review for a history of “chronic non-compliance” with committee recommendations. The challenge for Australia will be to engage positively with the recommendations and urgently implement substantive change to promote and protect human rights.

The ConversationA good starting point would be a national human rights act, to fully incorporate Australia’s international human rights obligations into law. Furthermore, Australia should reconsider its response to the Referendum Council’s recommendation of an Indigenous voice to parliament.

Anna Cody, Associate Professor and Director, Kingsford Legal Centre, UNSW and Maria Nawaz, Law Reform Solicitor/Clinical Legal Supervisor, Kingsford Legal Centre, UNSW

This article was originally published on The Conversation. Read the original article.

First refugees to leave for the United States


Michelle Grattan, University of Canberra

About 50 refugees from Nauru and Manus Island will leave in the next week to ten days for resettlement in the US.

This is the first batch under the deal the Turnbull government struck with the Obama administration, which US President Donald Trump has reluctantly agreed to honour – although the number that will be taken is unclear.

Immigration Minister Peter Dutton said the processing of other people was continuing, and further decisions by US authorities were “expected in due course”.

The government is providing minimal detail of those who have so far passed the Americans’ “extreme vetting” and been approved to go, saying it is up to the US to do that.

It has been reported that the Manus group includes refugees from Sudan, Somalia, Pakistan, Bangladesh and Myanmar. They were told to be ready to leave on Sunday for Port Moresby.

Malcolm Turnbull said this batch of departures came half and half from Nauru and Manus.

Turnbull said: “there are many that are being vetted, but it is entirely up to the United States as to how many are taken”.

The refugee deal was the subject of the now-infamous telephone conversation between Trump and Turnbull early in the year, in which Trump railed against the arrangement but Turnbull prevailed on him to take people, although the number was left vague.

Turnbull said Trump had reservations about the deal “to say the least. But nonetheless, he is honouring that commitment made by his predecessor.”

“It’s a sign of the strong relationship between the United States and Australia, and I want to thank the United States and President Trump for honouring that commitment,” he said on Wednesday.

The ConversationThe initial deal was for the US to take up to 1,250 refugees. There are 868 people in Papua New Guinea of whom 679 have been found to be refugees; Nauru has 1,124 people, with 994 of them having been found to be refugees.

https://www.podbean.com/media/player/gfk6g-73d100?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

Nothing seems able to make Nauru asylum seekers an issue


Michelle Grattan, University of Canberra

It is hard to credit that two asylum seekers in Nauru could set themselves alight on Australia’s watch and the stories receive, compared to much else, so little attention in our hyper media cycle.

One would think the death of an Iranian man last week and the self-immolation of a Somali woman would be huge news, putting a great deal of pressure on the government as we move towards the election to outline an exit plan for Nauru.

But in the campaign the future of those on Nauru will be something neither side will be anxious to talk about.

Manus Island hit the headlines recently when the Papua New Guinea government announced, following a judgment of its Supreme Court, that the centre there will close.

Australian and PNG officials are now in negotiations that Australia hopes will find a way to keep the centre going. In a Tuesday statement the two governments said they’d continue “to work together on a road map”, meeting “regularly in the coming weeks”, which suggests the matter is being pushed safely beyond the election.

The government and the opposition are bipartisan on offshore processing. When it arises, the issue plays in favour of the Coalition, but it is not one Malcolm Turnbull seems naturally comfortably with. For political reasons Labor obviously tries to avoid it. That means the government isn’t being held to serious account – despite efforts by the Greens – in the way it is on much more minor matters.

In her valedictory speech on Wednesday, Labor MP Melissa Parke described the present system as “a festering wound that is killing off people and eroding our national character and respect”. Some in Labor are deeply unhappy and a few have been recently vocal about the ALP’s approach, but most don’t want the boat rocked.

As for the Liberals, those who used to speak up for asylum seekers have either left the parliament or gone quiet.

Amid his Wednesday media round of budget questions Turnbull was asked whether he ever thought he’d be defending keeping people in a position where they were so desperate they were killing themselves.

Turnbull sympathised with “the mental anguish that many of them are in … we grieve for them”, before swinging into the mantra that to keep our borders secure, people who sought to come to Australia by boat couldn’t be allowed to settle here.

Pressed on their future, Turnbull said the people on Nauru could move around there (it is an open centre); those on Manus judged to be refugees could settle there. There were also third-country options, while non-refugees were being encouraged to go home.

There was a hint of blame, when he suggested many had been led to believe they could end up being admitted to Australia.

Immigration Minister Peter Dutton has taken up a shovel to lay blame, bluntly heaping it on the activity of advocates. In a Tuesday statement on the Somali woman, Dutton said it was “of grave concern” she would “resort to such an extreme act of self-harm”.

“I have previously expressed my frustration and anger at advocates and others who are in contact with those in regional processing centres and who are encouraging them to engage in behaviours they believe will pressure the government to bring them to Australia. These behaviours have intensified in recent times, and as we see, have now turned to extreme acts with terrible consequences.

“Advocates and others who proclaim to represent and support the interests of refugees and asylum seekers must hear a clear message that their activities and these behaviours must end.”

In parliament on Wednesday, the Greens’ Adam Bandt challenged Dutton with a highly provocative question. “Aren’t you just showing pure cowardice by blaming the advocates helping the vulnerable, instead of accepting responsibility for your actions?” Bandt asked, then added: “Can’t we do better than this Labor-Liberal policy of not drowning, but burning?”

It was Manager of Opposition Business Tony Burke who jumped up to declare this was deeply offensive to all MPs. Bandt had to withdraw his “burning” line.

Dutton’s allegation must be deeply offensive to many advocates. More to the point, it is a cop-out – responsibility for what has become, in academic jargon, one of those “wicked problems” has to lie with the government.

Desperation and apparently extensive mental health problems mean the situation on Nauru is only likely to get worse. Having people there indefinitely is not a viable proposition. A workable strategy is needed, which also keeps the Australian border secure.

One of the debates of the coming campaign should be the search for practical answers. But it is a debate the government and opposition are not prepared to have, and nor are the media willing or able to give them a hard enough time to force them into it.

It’s a case study in how interests and circumstances conspire to push some issues off-stage in an election.

https://www.podbean.com/media/player/2u8ew-5f02a3?from=yiiadmin

https://www.podbean.com/media/player/h5uvv-5efb23?from=yiiadmin

The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

Did ‘ending’ detention on Nauru also end the constitutional challenge to offshore processing?


Joyce Chia, Monash University and Asher Hirsch, Monash University

The Nauruan government announced earlier this week that it will remove the remaining restrictions on the liberty of the asylum seekers detained there, and process all pending claims for asylum. It initially said it would process the claims in a week, but has since backtracked from that commitment.

Many have claimed that the announcement is a strategic move to undermine a constitutional challenge to Australia’s offshore detention regime, heard by the High Court this week – although the Australian government has denied this. So does the policy change spell the end of the challenge?

While that question can only be answered after the High Court’s decision, the hearings give a hint. The short answer is that the Nauruan government’s announcements have already had a much greater effect in the High Court than on Nauru itself.

So what is this case about anyway?

The plaintiff in this case is a Bangladeshi woman who was detained on Nauru before being brought to Australia during her pregnancy. If the case fails, she, her ten-month-old baby and more than 200 people now in Australia will be sent back to Nauru or Manus Island.

The case, together with a similar one relating to Manus Island, began as a challenge to the Commonwealth’s power to spend money on offshore processing centres. This was on the basis of recent High Court cases that found that legislation was generally required to authorise the Commonwealth entering into contracts and spending money, subject to certain exceptions.

Not unusually, parliament intervened. In late June, the major parties combined to pass “emergency” authorising legislation, which applied retrospectively.

This meant the plaintiff was forced instead to argue that the emergency legislation was invalid because it did not fall within the Commonwealth’s powers to make laws set out under the Constitution. As the High Court’s questions made clear, this is a difficult argument to run. The authorising legislation appears clearly related to at least two of the broadest legislative powers of the Commonwealth – the power to regulate aliens and the power to engage in external affairs.

The plaintiff’s main argument now was that the Commonwealth, by in effect detaining asylum seekers on Nauru, went beyond its constitutional power to detain. The argument rested on two main steps.

  • First, previous cases had established certain constitutional limits on the executive’s power to detain asylum seekers in Australia. These limits included that such detention must be limited to permissible purposes and limited in time to what was reasonably practicable to effect that purpose, and that the courts must be capable of supervising the legality of that detention.

  • Second, these constitutional limits did not apply to detention on Nauru. The effect of this was that the offshore processing regime enabled Australia to do outside its borders what it could not do inside. This would in effect subvert the High Court’s role in supervising the constitutionality of executive power.

At the heart of this was an argument that the Commonwealth was to be treated as, in substance, detaining the asylum seekers. That argument rested on the evidence that the Commonwealth funded, authorised and controlled the offshore processing regime.

This is a difficult argument to run. Similar arguments failed last year before the High Court. As High Court justices pointed out this week, there is nothing in either the Migration Act or the Memorandum of Understanding that requires Nauru to detain asylum seekers.

How did Nauru’s announcement change the case?

Nauru’s announcements over the past week significantly undermined the plaintiff’s main argument. This argument rests on there being unconstitutional detention, and now there is no detention.

As a consequence, the Commonwealth argued that all of the questions (and associated remedies) in the case relating to the Commonwealth’s future conduct were no longer relevant.

The Commonwealth is also now arguing that it is not useful for the High Court to consider the legality of past detention. This is because deciding that question will not produce any real consequence for the plaintiff.

That might surprise lay observers, but Australian courts have long held that the courts should not decide cases where it can serve no useful result. While a claim for compensation could have been such a result, the case was never argued in this way – as the Commonwealth duly pointed out.

Circumventing the courts

From this week’s hearings, it certainly seems that these sudden changes to policy in Nauru have dramatically weakened this constitutional challenge – if not yet the companion challenge to the constitutionality of offshore processing on Manus Island.

Yet again, it seems, the government may have successfully outmanoeuvred legal challenges by changing the law and the facts on the ground.

For the asylum seekers on Nauru, other facts on the ground remain much the same. They are still unsafe, separated from their families and unable to leave Nauru for a real life.

The Conversation

Joyce Chia, Lecturer (Sessional), Monash University and Asher Hirsch, Tutor, Monash University

This article was originally published on The Conversation. Read the original article.