ACT’s marriage bill is only the beginning

October 22, 2013

The ACT passed its same-sex marriage bill today. Congratulations, and it’s about time.

Picture via Sky News Australia

Picture via Sky News Australia

It’s not the bill they wanted. It isn’t comprehensive. It won’t allow trans or intersex, or non-binary gender identifying people to marry. The ACT’s Chief Minister, Katy Gallagher, had the bill re-drafted after receiving legal advice that its original language would leave it vulnerable to a High Court challenge (already threatened by the Liberal government). The result was a much smaller victory than was hoped for, and no doubt there will be many, many people who feel both let down and excluded. There’s certainly a fair amount of bitterness flying around social media today.

The idea that this bill needed to be amended in such a way to even have a hope of standing up to a legal challenge is, at the very least, disappointing. At worst, it’s infuriating.

But it doesn’t take away the fact that the ACT passed a bill to allow same-sex marriage. It doesn’t take away the fact that this is a landmark reform. And it doesn’t take away the fact that a Territory government was prepared to stand up to a conservative government and pass a law that will redress so much of the damage done by the Marriage Act and its narrow definitions.

The ACT managed it through some clever legal manoeuvring, taking advantage of a loophole in the Marriage Act which, ironically, was created by the Howard government’s insistence on defining marriage as taking place between ‘a man and a woman’. Rather than attempting to change that, the new law stands alone in applying solely to same-sex couples. It operates side-by-side with the Commonwealth’s law, and the Territory is confident that this will be the defining characteristic that allows it to remain on the books.

The Chief Minister has already said that, as far as she’s concerned, there is more work to be done. She signalled that if the law withstood the expected challenge, the Territory would seek to pass further laws extending marriage to those couples excluded by the one passed today. This first law is the test.

That it should even have to be a test is utterly repugnant – but that has been the history of the bill all along.

Attorney-General George Brandis wrote to Gallagher, ‘urging’ her not to go ahead with the bill. His reasoning? Marriage should be uniform across all States and Territories. Of course, what he really meant was, ‘uniform according to one limited definition’.

Prime Minister Tony Abbott said that the government would challenge the law. His reasoning? Marriage has a ‘traditional’ definition. Traditional, of course, meaning, ‘enshrined in law since 1984 on the basis of special pleading’.

This law hurts nobody. No one will be required to ‘get gay married’, nor will they be required to give up their heterosexual marriage. Yes, I’m being absurd, but the notion that same-sex marriage somehow hurts or undermines heterosexual unions warrants this level of scorn.

What this law will do is redress a great wrong. It will celebrates love. It acknowledges that nearly 70% of Australians support doing away with the artificial distinction between marriage based entirely on gender. To be pseudo-economic about it, having this law in place increases the Gross National Happiness – which always bodes well for governments, even if all they want to talk about is the Budget deficit or unemployment rate.

And yet.

We have a government that – even before the debate really got off the ground in the ACT Parliament – decided that this law could not be allowed to stand.

If the Abbott government carries out its threat to challenge the ACT’s same-sex marriage law, it will not be about tradition, or uniformity, or any other of its usual excuses.

It will be pandering to a vocal minority of religious lobby groups who feel they have the right to dictate that we should all live by their doctrines.

It will be vicious discrimination from a government that feels its job is to control how people live their lives, and punish them for who they love.

It will be narrow-minded pettiness from a government so obsessed with image, to the point that it cannot bear to be seen to lose even one of its self-imposed battles.

It will be the action of a government that acts like a spoiled child, refusing to let anyone else be happy unless they play by rules that only it can define – rules which it can change on little more than a whim.

And if – heaven forfend – such a challenge were upheld by the High Court, it would not be a victory. It would be a day of shame.

It’s not often I urge readers to take to the streets, to sign petitions, to campaign unceasingly and take the fight to the politicians and the media. But there are some things that should be defended, passionately and unceasingly. Marriage equality is one of those. What the ACT did today was take the first, huge step towards true equality, by locking into law the right for same-sex couples to marry. It’s not good enough for us to sit back and watch while the Federal Government acts – again – like a bully determined to get its own way, no matter who gets hurt. It’s not good enough for us to simply complain, or lash out at those who would do this to us, or the ones we love, or even the stranger in the street who deserves the same rights as everyone else.

We are better than that. And this is only the beginning.

lesbian couple

Let’s have a real conversation about asylum seekers

September 13, 2011

There was an opportunity. The government was given a real chance by the High Court to regain some of its lost ground against the Coalition. More to the point, it had the chance to regain some shred of humanity and compassion. It could have used the High Court decision to jettison the whole idea of offshore processing once and for all. Certainly, that’s what the Left of the ALP – and increasing numbers of the Australian public – wanted.

The government isn’t interested. It’s wedded to the idea that sending 800 asylum seekers to Malaysia – a country with a terrible human rights record, who won’t sign any agreement that forces them to comply with human rights considerations – is the only possible way to ‘break the people smuggler’s business model’. Accordingly, it’s decided that the best thing it can do is change the Migration Act so that no pesky High Court can get in its way next time.

Ah, the convenience of legislation. Want to do something reprehensible that’s condemned by international organisations and banned by the judiciary? Just change the law. Then you can do what you want. Never mind that it’s ultimately a useless gesture, since it’s capped at 800. Never mind that it contravenes long-standing Labor policy. Never mind that in doing so, Australia will undermine its position as a signatory of the Refugee Conventions. Never mind that this is a gross abuse of power. If it means the government can get those 800 people packed onto planes and out of sight, they’ll do it.

And that’s exactly what they took to Caucus yesterday. Despite an attempt by Left faction leader Senator Doug Cameron to win a vote calling for onshore processing, ‘over half’ of the Caucus voted to change the Migration Act instead. The government plans to make sure that there cannot be any legal impediment to sending asylum seekers offshore. Additionally, it wants to change the Immigration (Guardianship of Children) Act, so it can shirk its responsibilities under the Refugee Conventions by doing the same to unaccompanied minors.

This is the equivalent of a child throwing a tantrum when the rules say he’s out of the game. Anyone with kids has probably seen it – first there’s an attempt to bluster, then negotiate, then bully, and finally the child is left with two options. He can take his bat and ball and go home, or he can decide that the game has new rules.

‘Bang bang! I shot you, you’re dead!’
‘Did not, missed me!’
‘Did too, you’re dead!’
‘It’s my game and I say I’m not dead, so ner!’

Et cetera.

Behold … your elected representatives in their full glory.

The Greens won’t support any change to the Migration Act. They were out in front of the media so quickly that the initial stories on the government’s plan had barely been filed. Senator Sarah Hanson-Young was particularly scathing; as far as the Greens are concerned, the government would be breaching its UN obligations.

To get the amendments passed, then, the government needs the support of the Coalition. To that end, they offered Opposition Leader Tony Abbott a briefing on the legal implications of the High Court judgment – a briefing advising him that both Nauru and Manus Island as alternative offshore destinations were also ruled out by the High Court decision. The idea was to convince him to support the amendments when they come before the Parliament, on the grounds that if Abbott ever became Prime Minister, it would benefit him just as much as the current governments.

But there’s a sticking point for Abbott, apparently. The government has no intention of using an amended Act for anything but the resurrection of its Malaysian deal. And Abbott has no intention of letting the government off the hook on the subject of re-opening the Nauru processing centre. The consistent message coming out of the Opposition is that Nauru is the only possible solution.

Gillard’s having none of that, though. When asked this morning, she said, ‘Going to Nauru is the equivalent of getting a ticket to Australia’, and quoted figures showing how many Nauru detainees ended up settling in Australia when their refugee claims were approved.

And there you have it. Despite constant avowals of how ‘humanitarian’ the government is, despite claims of being ‘compassionate’, the Prime Minister let the truth slip out. The government’s declared intent is to keep refugees away from Australia at all costs. (Oh, unless someone else has already done the hard work of processing asylum seeker claims, of course.) And why? Because if they’re here in Australia, they’re entitled to the protection of law – again, thanks to the High Court.

You’d think the Coalition would be on board with that, given the kind of responses given by Abbott and his front-benchers in interviews on the subject. Judging by the speeches they made in the House today, however, Abbott wants no part of any bipartisan effort to entrench executive power in this particular area. It’s a curious stance – surely it would benefit them?

Perhaps Abbott’s holding out in the hope that Gillard will finally cave in and re-open Nauru. Perhaps he’s trying to wring as many concessions as possible out of the government, including an admission that the government needs the Coalition to get them out of a gigantic mess. Or perhaps Abbott’s decided that he can always change the Act later, and he can get a far better result by watching the government fail to get amendments through the Parliament.

With any luck, pride will undo both major parties. The longer each refuses to budge on exactly which country it wants to use as a ‘dump and forget’ centre for our asylum seekers, the harder it will be to reach any kind of deal.

In the meantime, the Coalition is merrily pushing the line that with the Malaysia deal scuttled, Australia has ‘no border protection policy’. Yes, that’s right, folks – any moment now the boats will pull up on St Kilda Beach or surf into Bondi, and we’ll be invaded by thousands of asylum seekers who will force us to eat halal meat and wear burqas. Quick, circle the wagons, hide the women and the silver!

It’s ludicrous. Of course Australia has an asylum seeker policy (and no, I won’t play into the scare-mongering by calling it ‘border protection’). We have a policy of intercepting boats. We have a policy of mandatory detention. We have a processing centre on Christmas Island – which, let’s not forget, is excised from our Migration Zone anyway. We have processing centres onshore. We have an entire bureaucracy that works with the UN to process refugees then re-settle or deport them according to the outcome of their cases.

But it’s much better for the Coalition if it can create the impression that there is a complete policy void in this area. It plays right into the hands of the panic-mongers who seem to think that people in boats somehow threaten our very way of life. And it allows the Coalition to continue pushing Nauru as the tried-and-true ‘solution’ which is the only way to save us from a terrible fate.

And the media is utterly complicit in this.

Think about it. How often, lately, have you heard a commentator or reporter say that there’s ‘no border protection policy’?

And while we’re at it – when was the last time you heard someone in the media flat-out ask a politician exactly why we can’t have onshore processing? Given that it’s been in place for decades and – political rhetoric notwithstanding – has never been shown to encourage either people smuggling or people seeking asylum, why isn’t anyone nailing politicians in place and forcing them to answer this? Not often, I’ll bet.

Here are a few questions they could ask:

What evidence do you have that Australia’s long history of onshore refugee processing directly increased the number of asylum seeker boats?

Why are you prepared to spend millions of dollars in a third country, and risk Australia’s international reputation, rather than convert a few abandoned military bases onshore?

Exactly what is so frightening about asylum seekers that they must be kept away from Australia at all costs?

Why do you persist in referring to asylum seekers as a ‘product’ peddled by people smugglers, instead of calling them what they are – human beings?

Why do you persist in employing punitive measures against desperate people, and calling it ‘compassionate’?

If you really want to ‘break the people smugglers’ business model’, why don’t you simply fly asylum seekers to processing centres? You could save millions currently spent on keeping up the Coast Guard and Navy presence and detaining and prosecuting people smugglers – and the people smugglers wouldn’t be able to make any profit from the misery of others.

You see, it doesn’t matter what you believe on this issue – these questions should be asked. Politicians should be held to account for what they say, and required to show evidence to justify their policy decisions. This is what news media are for – asking uncomfortable questions and demanding real answers, investigating all sides of a question and providing that information to the public.

At the moment, this just isn’t happening. As long as media continue to unquestioningly accept politicians’ talking points, it never will.

We can see it happening right in front of us with the asylum seeker issue. So how about it, media – think you might want to stop letting politicians control the message and start subjecting them all to unwavering close scrutiny? There’s still time. The opportunity’s been missed, but not lost. If we’re going to have this conversation, then let’s talk about all the options.

If you do, then maybe – just maybe – the people who risk their lives to flee to a country where they can be safe and free, might actually find that country.

I’m sure it’s buried here somewhere under all the politics …

Malaysia deal dead in the water – for now

August 31, 2011

The Full Bench of the High Court has ruled 5-2 in favour of the asylum seekers slated for Malaysia as part of Gillard’s deal.

The injunction prohibiting their removal from Australia is now permanent.

The High Court, expediting their decision, ruled that asylum seekers cannot be processed offshore unless the Minister for Immigration can demonstrate that human rights will be protected in accordance with section 198A of the Immigration Act. The Minister cannot simply declare a country has adequate human rights protections – he must demonstrate it.

By implication, this could rule out any country which is not a signatory to UN Conventions on Refugees – including Nauru and Manus Island. The Court did not specifically rule on this, however.

Unaccompanied minors cannot be sent offshore for processing unless an additional written consent is issued by the Minister.

No appeal is possible to this decision.

The Malaysia ‘one for five’ deal is, at this point, dead in the water.

A summary of the judgment can be found here and the full transcript here.

It’s a huge win for opponents of offshore detention, and a massive blow to the government. At every turn, it has been thwarted in efforts to ship the asylum seeker’ problem’ out of sight and (presumably) out of mind. Right now, the government is in a bind – but they have a couple of options open to them.

They can attempt to amend the Migration Act in order to water down s. 198A – effectively removing clause 3(iv), which currently requires that any proposed offshore destination ‘meets relevant human rights standards in providing that protection‘. (my emphasis)

In the current political climate, this would be an uphill battle at best. The Greens will vehemently oppose any attempt to remove human rights from the legislation, and it’s a fair bet that Independents Andrew Wilkie and Rob Oakeshott would do likewise. The government’s only hope, then, would be to enlist the Coalition’s support.

It’s a possibility. This ruling hurts the Coalition as much as it does the government, since the Opposition’s own asylum seeker policy hinges entirely on re-opening the Nauru detention centre built with Australian money under the Howard administration. It might well serve their interests to throw in with the government – although it would significantly weaken them, given their frequent declarations that no good policy or legislation has ever come out of the Gillard government. With enough spin, they might succeed in convincing the public that they’ve had to step in to ‘rescue’ bad policy, but it would be a very risky move.

The government’s other option is to return to the policies espoused under the Rudd government, processing asylum seekers either onshore or on Christmas Island. The Opposition consistently attacked these ideas, blaming them for a surge in boat arrivals. The night before he was forced to resign, Prime Minister Kevin Rudd cautioned against any ‘surge to the Right’ in this area. Julia Gillard’s actions since assuming the officer of Prime Minister, however, have taken Labor closer and closer to the Coalition’s hardline stance.

There is an opportunity now for the Gillard government to abandon the offshore system altogether, using the High Court ruling as a shelter against criticisms of ‘backflip’. Minister Chris Bowen could claim that his hand was forced by the judiciary. That, however, assumes that the government does not, in fact, wholeheartedly support offshore detention and similar harsh measures.

We’ve yet to hear from the government, and have no idea when it will make an announcement. At this point, it’s all speculation as to what they might do next. If you have a recommendation for them, I urge you to email your local MP, Minister Bowen and/or Prime Minister Gillard. You can be sure that certain groups on both sides of the issue are already doing so. Don’t let them give the government the impression they speak for you.

In the meantime, this is a decision worthy of celebration. The dreadful plan to send asylum seekers to a country where they would be completely unprotected by even lip service to human rights conventions is absolutely blocked. For now, at least, Australia has regained a little compassion.

It’s shameful that we needed the Full Bench of the High Court to force us to do that.

High Court reprieve for Malaysia-bound asylum seekers

August 8, 2011

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.

High Court win for asylum seekers

November 11, 2010

The Full Bench of the High Court handed down a unanimous decision today that has the potential to completely change how boat-borne asylum seekers have their claims processed. In this landmark ruling, the Court found that two Sri Lankan asylum seekers were denied ‘procedural fairness’, because – being incarcerated on Christmas Island – they had no access to the Australian court system.

See, that’s something not many people know, and no one talks about. If you walk off a plane and claim asylum, you are released into the community, assessed by the Refugee Review Tribunal, and have access to Australian courts to appeal an unfavourable ruling. If you come via boat, you get a ‘review’ process. That process looks like a court, but is not bound by Australian law. If the bureaucrats in charge of that deny your claim, your only hope is to pray that the Immigration Minister considers your case personally. Otherwise, you’ll be deported.

This is the ‘compassionate’ system put in place by the Howard government on Christmas Island and Nauru, and continued by the Rudd and Gillard governments even after the closure of the Nauru centre. In one of the most shameless and inhumane pieces of legislation passed by the Howard Government, Christmas Island, Ashmore Reef and other destinations commonly sought by asylum seekers were ‘excised’ from Australian jurisdiction under the Immigration Act. This made it possible to deny full access to Australian law, in much the same way the US prevented suspected ‘terrorists’ from seeking legal redress in the courts. Although the Rudd government introduced an Independent Merits Review Process in 2008 so that those whose claims were denied once could appeal, the reality is that outside contractors hold the fate of asylum seekers in their hands – contractors who are not required to have any experience in immigration law, and who are accountable only to the Minister.

The High Court found today that this system is completely unfair, that it denies the rights of boat-borne asylum seekers the right to a fair hearing under Australian law. It ruled that all asylum seekers were bound by the Migration Act and other Australian laws, regardless of their mode of travel. This means that the government now derives no benefit from funnelling asylum seekers through offshore processing – they can no longer do an end run around the law. As law firm Allens Arthur Robinson, the legal firm who handled the case on behalf of the Refugee and Immigration Legal Centre noted, the decision ‘has important legal ramifications’.

Scott Morrison, the Coalition’s Shadow Immigration spokesperson, seems not to understand this. Shaking his head in disbelief, he fronted the media to tell them that this was a ‘terrible’ decision, ‘the best day for people smugglers since the reappointment of the Gillard government’. This was ‘proof’ of Labor’s ‘policy failure of cack-handedness’, he said, and added that the government should now embrace the Nauru solution. The High Court’s ruling did not apply to Nauru, he said. I’d like to think this was some kind of political strategy, but in reality, I think he just doesn’t get it. Whether asylum seekers come to Tullamarine Airport, Christmas Island, or Nauru, if they claim asylum from Australia they must now have access to the Australian court system.

Immigration Minister Chris Bowen said he was getting legal advice from the Solicitor-General, and would make recommendations to Cabinet within a few weeks. He seemed keen to create the impression that the ruling did not affect the policy of offshore detention, or the excision of Australian territories from the Migration Act. To say he looked like he didn’t believe that himself is an understatement. He was extremely nervous, and not just because David Marr was standing behind his shoulder looking like the Ghost of Righteous Fury Vindicated. (Read the excellent Dark Victory, which he co-wrote with Marian Wilkinson, if you haven’t yet heard his views on Australia’s refugee policy.) At this time, 145 people have been denied refugee status. That’s a potential 145 appeals.

Unless the government moves to introduce some particularly dodgy legislation, the implications of this High Court decision are far-reaching. It may not end offshore detention – there are certain political benefits, disgusting as that may be, to having refugees ‘out of sight and out of mind’. The recent xenophobic rabble-rousing over the proposed new centres at Northam and Inverbrackie prove that unpleasant point. At the very least, however, boat-borne asylum seekers should now have access to the court system, and would no longer be subject to the whims of the bureaucracy.

The Refugee and Immigration Legal Centre, who were the main drivers of this High Court case, have not said whether they plan further legal action. It would be interesting to see whether the High Court would rule that incarcerating those who come on boats, while letting those who arrive by plane walk around freely, was an illegal two-tier system. Certainly, there are no good reasons for assuming that a sea-borne refugee is a greater threat to the community.

In the meantime, no matter what parliamentarians might be saying to the media, there is no getting away from the fact that this decision could change how Australia handles refugee claims – and change it for the better.

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