High Court reprieve for Malaysia-bound asylum seekers

Last night David Manne, from the Refugee and Immigration Legal Centre, went to the High Court. He represented 42 asylum seekers, including six unaccompanied minors. Of that group, sixteen faced imminent deportation to Malaysia as part of the government’s ‘one-for-five’ swap deal.

Arguing that the asylum seekers were reasonably afraid for their safety and welfare, and had a right to have their claims assessed in Australia, Manne’s legal team secured an emergency injunction to prevent their being removed until after a further hearing this afternoon.

It’s just been announced that the High Court has upheld that initial injunction, extending it until August 22. This means that any asylum seekers slated for deportation now have quite a bit more breathing space to organise their legal responses. And when they do go back to court, it will be before the Full Bench – the highest court in Australia.

Given that the decision noted that there were ‘serious questions’ to answer regarding Australia’s legal obligations under international treaties, and concern for human rights, it also means that the government now finds itself effectively stymied.

It’s not giving up, by any means. Even before this afternoon’s hearing, Immigration Minister Chris Bowen was out talking tough. The government has no intention of changing its policy. Malaysia doesn’t need to be a signatory to the UN Conventions, it’s told us that human rights will be looked after, that’s good enough. After all, what’s important is that we send the right signal to the people smugglers.

Once in the court, the government didn’t get its papers in order, causing a delay in the proceedings. When the Justice indicated he wanted to extend the order pending a full hearing, the government argued that it should be as short an extension as possible, because otherwise it would – you guessed it – send a signal. Presumably, the wrong kind of signal.

Thankfully, the Court rejected that argument and delivered a slap to the government for being unprepared and then trying to rush things.

But take a look at how the government acted here. This is the same kind of contempt for the Courts that Howard’s government displayed during the days of the Tampa and the Pacific Solution. Worse, it’s an absolute contradiction. The most commonly repeated justification for not re-opening the Nauru detention centre is that Nauru is not a signatory to the UN Conventions. That, apparently, was a deal-breaker. Now it seems that it’s only a deal-breaker when it can be used to bolster a shaky argument. Not only is the government apparently happy for Malaysia not be a signatory to these Conventions – it doesn’t even feel it should try to press the issue. We can take Malaysia’s word for it.

I’m sure there are more blatant definitions of hypocrisy around – but that’s got to rank up near the top of the list.

Then there’s the government’s attempt to exonerate itself from blame for any future boat arrivals by implying that the High Court’s decision might encourage people smugglers. This is just the latest variation on the Coalition’s usual argument – that asylum seekers make their decisions based on obscure questions of policy rather than fear for their safety. Only this time the scapegoat is the High Court.

So there is finally no daylight between the Howard and Gillard governments on the matter of asylum seekers. Both readily ignore their legal obligations. Both are willing to jump through verbal hoops to justify themselves. Both appeal to ‘decency’ and ‘fairness’ even as they enact policies that can be described as at best punitive.

While Howard’s government was caught up in legal wrangling in the Federal Court over the Tampa Affair, it enacted the Pacific Solution, excising Australian territory from Australia’s migration zone and doing deals with Nauru to spend even more millions on propping up that country in return for dumping our asylum seekers there. It’s arguable that this contributed to that government’s eventual win.

What are the chances we’ll see something similar tried by Gillard’s government? Well, it’s not quite the same situation. We’re in a minority government, with the balance of power out of the hands of the major parties in both Houses. We also have a hostile Opposition that is unlikely to want to help the government find a way out of its dilemma.

And unlike the Federal Court back in 2001, the current High Court has already shown that it’s not afraid to balk the government.

It will all come down to August 22. In the meantime, let’s keep an eye out for under-the-table legislation or sudden changes to regulations, shall we?

Afterword: ‘People smuggler’. It’s an ugly phrase, isn’t it? We hear it and we think of criminals who deal in human lives for profit – why, it’s tantamount to slavery. But think about this: once we gave out medals to people smugglers, as Julian Burnside points out on ABC Unleashed today.