Home » Australian Politics » Why they say “if it ain’t broke don’t fix it”

Why they say “if it ain’t broke don’t fix it”

The case decided in the high court yesterday may well be a pyrrhic victory for the idiots who want open borders for this country and it may well mean that Gillard will have to do a deal with the opposition to fix the mess that has been made by Brother Number One’s decision to fix something that was very far from broken, in fact the result of Labor party meddling is a perfect example of just why they say “if it ain’t broke don’t fix it”

The decision creates a political headache for the Gillard government, which will be beholden to the Coalition should fresh legislation be required as a result of the ruling.

The Greens have long opposed offshore processing and independent Andrew Wilkie yesterday hinted strongly he was unlikely to support moves by the government to use legislation to get around the court decision and restrict asylum-seekers’ access to courts.

“I have been an outspoken critic of offshore processing for some time. I oppose offshore processing and the excision of islands,” Mr Wilkie said.

The Coalition’s immigration spokesman, Scott Morrison, refused to say if the opposition would support new legislation, describing yesterday’s decision as a “policy failure”.

“This government has been caught out changing the rules, doing it badly and now the taxpayers and the Australian people are paying the consequences of that,” Mr Morrison said.

Mr Bowen said the government was still digesting the decision, but he would recommend a course of action to cabinet in coming weeks.

“It’s important that we recognise that this is a significant judgment; it has significant ramifications,” Mr Bowen said.

With one in two asylum-seekers failing, Mr Bowen said the court’s ruling could “elongate” the refugee-determination process. “It certainly has the potential implication that people would be in detention for longer as those appeals are worked through,” he said.

[...]

Sub-dean of migration law at the Australian National University Marianne Dickie said the judgment was aimed at the system set up by the Rudd government for deciding refugee cases in 2008. “The procedures and policies they put in place left them open to this judgment,” she told The Australian. “They deliberately put a process in that was outside the law.

However, the Howard government’s decision to excise areas of Australian territory from the Migration Act formed the basis of the Rudd government’s administrative architecture.

Ms Dickie said every failed asylum-seeker could now potentially contest their case in court. “All those cases decided in this way should be reconsidered to avoid them all going to court,” she said.

David Manne, the executive director of the Refugee and Immigration Legal Centre, the organisation that co-ordinated the challenge, hailed the decision as a win for his client, and for Australia.

“The government’s attempts to keep these people outside Australian law and outside the Australian courts have failed,” he told The Australian.

 

Of course the minions of the open door left would have been cheering this decision yesterday it means more fat cheques for the latte sipping lawyers who have been bemoaning the fact that they have been excluded from the game.It may not be currently fashionable for those latte-sipping lawyers to buy an Enzo these days but you can bet that there will be more than a few who will be checking out brochures for the Tesla or thinking that the extra work that this decision will bring may just pay for their brats to got the very best private schools where they can learn to be good lefties..

None the less the fundamental question remains and that is if half of the claimants are being found not to have a legitimate claim for asylum then why are they not being taken form the tribunals that find against them straight to the airport and deported at the earliest opportunity?
Labor are reaping what they have sown here and I can only hope that they see sense and enter into discussions with the opposition to “fix” this problem with changes to the legislation at the earliest opportunity. Because there is one thing that they can be sure of and that is the Australian people will not stand for the kind of open door policy that the loopy Greens dream of. and a Labor government who sit on their hands and let the Greens dictate policy on this issue will be slaughtered at any subsequent election.

Cheers Comrades

 

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19 Comments

  1. Indi Warrior says:

    you really are delusional.

    what are you afraid of?

  2. Iain Hall says:

    I’m not “afraid” of anything IW but I do think that as a matter of principle that if we decide not once but twice that someone does not meet the criteria to be considered a “refugee” then we are under no obligation to let them stay and we should then promptly send those failed claimants home.
    Just for the record, how many times do you think that claimants should be able to appeal a negative decision?

  3. ileum says:

    Iain,

    I asked in your other post if you could back up your claim that:
    – half of the claimants are found not to have a legitimate claim for asylum.

    So can you?

    Also the judgment was aimed at legislation put in place under Howard in 2001. There’s a hint of this in the article from The Australian where it says “however”.

  4. Iain Hall says:

    Ileum

    I asked in your other post if you could back up your claim that:

    Did you see where I emboldened the statement in the quote from today’s Oz that says precisely that?

    Also the judgment was aimed at legislation put in place under Howard in 2001. There’s a hint of this in the article from The Australian where it says “however”.

    That is not how I read the story, as far as I can see the problem is an artefact of poor law making by Rudd when he changed teh law in 2008

  5. ileum says:

    Just because The Australian says it doesn’t make it so. That statement doesn’t appear to Chris Bowen’s. You’re aware that 90+ % of asylum seekers who arrive by boat are found to be genuine? So any other source that supports it?

    I’d read the actual decision rather than a journalist’s interpretation, Iain.

  6. Iain Hall says:

    Ileum

    Just because The Australian says it doesn’t make it so. That statement doesn’t appear to Chris Bowen’s.

    The citation in the OZ is not the first time that I have heard of a much higher rejection rate amongst recent claimants for asylum I don’t know why you think the Oz would be untruthful about something like that.

    You’re aware that 90+ % of asylum seekers who arrive by boat are found to be genuine? So any other source that supports it?

    Why don’t you do some checking and find out for yourself? Because I think that the “90%+” rate for “genuineness” has always been rather spurious and now is definitely not the case.

  7. ileum says:

    It has been between 70-97% for boat arrivals, Iain. I’d already provided it for Sax’s benefit (which he ignored) on the previous post. Here it is again:

    http://www.aph.gov.au/library/pubs/BN/sp/AsylumFacts.htm#_Toc260732952

    There seems to be no basis for you or The Australian to claim otherwise.

  8. Iain Hall says:

    Sorry Ileum but your citation goes back to early may and that is hardly contemporary enough to counter the claim by the OZ which I have seen elsewhere (like Fairfax and here as well)

  9. Sax says:

    I ignored it ileum simply because our argument was nothing to do with the direct final totals. Rather, that the problem of arrivals not being genuine, is a legitimate concern, period ?

    You both are concerning yourselves with the wrong end of the stick. The problem is not with what we do with the 70 odd percent that do qualify for entry, rather, what do we do about the thirty odd percent that don’t !

  10. ileum says:

    Ok, Sax.

    Do you think your links support your claim with the same authority as the one I provided, Iain?

  11. Iain Hall says:

    Yes Ileum I think that they do.

  12. ileum says:

    So a paper supported by substantial references has the same authority as a news article? If that’s your understanding there is no point engaging further then, Iain

  13. fyfee says:

    Wow, I’m coming to be something of a regular commenter!

    “latte sipping lawyers who have been bemoaning the fact that they have been excluded from the game.”

    Iain, with respect to your opinion, I think this thought process is exactly the issue. Asylum seeker processing shouldn’t BE a game- shouldn’t be a political agenda, shouldn’t be subject to change for vote grabbing, shouldn’t be the victim of political rhetoric.
    As was succesfully argued in the high court (to a jury that was rightfully NOT considering the political implications, because these are totally irrelevent to the unbiased and accurate application of law), asylum seekers, including those processed on islands ONLY excised for the purpose of migration, should be processed through the legal system which is concerned with the correct application of the constitution, rather than through a political system subject to political implications.
    That this is so, is proved in the latest indications that asylum claims from Afghanistan will drop to 30-50%.
    Now, this is where my issue lies. I agree with you that it is right and proper that people who do not qualify as refugees under the convention should indeed be denied refugee status and removed (if their life or liberty is not at risk, in accordance with the convention). However, the document that has produced this ‘quota’, is a highly disputed report from DFAT that states, against overwhelming evidence from UNHCR ( of whom Australia flirted with the idea of asking to manage the offshore centres) and Amnesty International that the situation in Afghanistan is markedly worse for Hazaras this year than any of the last nine. Remember that UNHCR processes refugees all over the world and has no political gain or loss by their determinations for processing.
    Both organisations have questioned the validity and basis for the DFAT document, and both outright condemn its implications.
    Frankly, I feel that neither you nor I have any basis for saying “these people are/aren’t refugees”, because we do not know. We could not know- refugees are decided on an individual basis, and to make an argument with authority, we would have to have the information and basis for each individual claim. Clearly, I am of the view that the evidence, to me, seems to show that a great deal of Hazaras would fit the definition. I’m not sure if you agree or disagree, but it is irrelevent.
    I stated that I support the (safe) removal of those found not to be refugees. This is true. However, I support this on the basis that the evidence used is unbiased, with no political motivation. Otherwise, it cannot be valid.
    Seeking asylum is a human right under the DHR. Providing asylum for those who are persecuted is, for the convention signatories, a legal obligation. Therefore, to deny people asylum on the authority of a politically motivated document, is a transgression of human rights.

    Also- your description of the lawyers has little reflection on the actual lawyers who work so hard to ensure the right of legal representation for asylum seekers. The vast majority are legal aids, who receive a much lower wage than their commercially-practicing compatriots. When you consider the time, effort and finance of gaining a degree in law, even if you disagree with their position, you should respect their dedication to their convictions.
    I look forward to your reply, Iain!

  14. fyfee says:

    Oh- When I said jury, I meant bench. The High Court is presided by a Chief Justice and six other judges. Apologies for the terminology mix-up.

  15. Iain Hall says:

    Fyfee

    Wow, I’m coming to be something of a regular commenter!

    and you are most welcome ;)

    “latte sipping lawyers who have been bemoaning the fact that they have been excluded from the game.”

    Iain, with respect to your opinion, I think this thought process is exactly the issue. Asylum seeker processing shouldn’t BE a game- shouldn’t be a political agenda, shouldn’t be subject to change for vote grabbing, shouldn’t be the victim of political rhetoric.

    Look I do understand where you are coming from here but the reality is that this issue is political and you can’t ever get away form that fact.

    As was succesfully argued in the high court (to a jury that was rightfully NOT considering the political implications, because these are totally irrelevent to the unbiased and accurate application of law), asylum seekers, including those processed on islands ONLY excised for the purpose of migration, should be processed through the legal system which is concerned with the correct application of the constitution, rather than through a political system subject to political implications.

    The greater issue at stake here is just how may bites of the cherry should those who want to claim asylum get? either their claim has merit or its just a line of bullshit intended to circumvent our immigration restrictions.The problem is that activist lawyers want to play a game of attrition with the courts. Personally I think that a simple determination process an one chance to appeal should be adequate for any claimant.

    That this is so, is proved in the latest indications that asylum claims from Afghanistan will drop to 30-50%.

    I’m not quite sure what you mean here.

    Now, this is where my issue lies. I agree with you that it is right and proper that people who do not qualify as refugees under the convention should indeed be denied refugee status and removed (if their life or liberty is not at risk, in accordance with the convention).

    How safe do you think it has to be?

    However, the document that has produced this ‘quota’, is a highly disputed report from DFAT that states, against overwhelming evidence from UNHCR ( of whom Australia flirted with the idea of asking to manage the offshore centres) and Amnesty International that the situation in Afghanistan is markedly worse for Hazaras this year than any of the last nine. Remember that UNHCR processes refugees all over the world and has no political gain or loss by their determinations for processing.

    The thing is life being tough in any particular country is not a valid reason upon which to base a claim for asylum

    Both organisations have questioned the validity and basis for the DFAT document, and both outright condemn its implications.
    Frankly, I feel that neither you nor I have any basis for saying “these people are/aren’t refugees”, because we do not know. We could not know- refugees are decided on an individual basis, and to make an argument with authority, we would have to have the information and basis for each individual claim. Clearly, I am of the view that the evidence, to me, seems to show that a great deal of Hazaras would fit the definition. I’m not sure if you agree or disagree, but it is irrelevent.

    No you are wrong the people of this country have a right to be convinced that any individual who wants to make a claim against our generosity has a valid claim

    I stated that I support the (safe) removal of those found not to be refugees. This is true. However, I support this on the basis that the evidence used is unbiased, with no political motivation. Otherwise, it cannot be valid.

    There is no such thing as “unbiased evidence” and it is impossible to remove the politics from an issue with many competing imperatives like this one.

    Seeking asylum is a human right under the DHR. Providing asylum for those who are persecuted is, for the convention signatories, a legal obligation. Therefore, to deny people asylum on the authority of a politically motivated document, is a transgression of human rights.

    Hmm I think that the UN convention is not perfect and neither is it immutable or beyond criticism

    Also- your description of the lawyers has little reflection on the actual lawyers who work so hard to ensure the right of legal representation for asylum seekers. The vast majority are legal aids, who receive a much lower wage than their commercially-practicing compatriots. When you consider the time, effort and finance of gaining a degree in law, even if you disagree with their position, you should respect their dedication to their convictions.

    I can respect those who devote themselves to altruistic causes but I am also rather sarcastic and cynical about professional do-gooders hence my suggestions that for some of these lawyers there may be ulterior motives.

    I look forward to your reply, Iain!

    Well I hope that you are not disappointed :)

  16. Iain Hall says:

    Ileum
    The page you link to is not as recent as the news reports that I linked to so given that and the simple fact that the bone of contention is a rather simple one (the rate of rejection ) I don’t see why you are objecting. In any case I was citing the AGE rather than the OZ

  17. fyfee says:

    Iain,
    Not disappointed at all!

    “No you are wrong the people of this country have a right to be convinced that any individual who wants to make a claim against our generosity has a valid claim”

    Generosity is, in my view, the wrong word. Generosity aptly describes the offshore component of processing- which as you pointed out earlier, functions very well. In fact, through the offshore program, Australia is every year either first or second (alternating with Canada) with humanitarian visas granted (though because we have so few on-shore applicants, overall we accept a proportionately low percentage of refugees).
    The on-shore component is an international obligation.
    We are sort of debating in two seperate arenas with this, I think. I am talking in terms of legality- the definitions, the international regulations by which countries are expected to apply. But you are talking in terms of morality- the shoulds and the shouldn’t. The reason I don’t venture into this ground is because it is incredibly subjective. Do humans, when faced with humans who have escaped persecution, have an obligation to provide them with protection? Or is this a generous gesture? This is far too a philosophical and subjective argument, and so I suppose we can only- in this area- agree to disagree.

    “That this is so, is proved in the latest indications that asylum claims from Afghanistan will drop to 30-50%.

    I’m not quite sure what you mean here.”

    Sorry, that was really badly phrased. The point I was trying to make was that- does the Australian government really feel that the situation has improved so drastically that in a single year 40-60% less asylum seekers from Afghanistan are no loonger being persecuted? If so, has the media entirely missed this vast improvement? If so, why has no other government agreed with Australia thus far? If so, why do UNHCR and Amnesty International both disagree? Instead, I (and Julian Burnside QC, and Amnesty, and UNHCR) think that the DFAT document has selectively used information and evidence so as to falsely substantiate a reactive policy. That DFAT refuses, under pressure, to revise or explain the document says a lot.

    How safe do you think it has to be?”

    Safe enough that they will not face persecution, as defined in the refugee convention.

    “The thing is life being tough in any particular country is not a valid reason upon which to base a claim for asylum”

    But the threat of persecution (race, religion, ethnicity, social group, political group) that your government cannot prevent is, and that is what the overwhelming amount of evidence points to, regarding the Hazaras in Afghanistan.

    “Hmm I think that the UN convention is not perfect and neither is it immutable or beyond criticism”

    Totally agree, it would be a dangerous and terrifying set of regulations that would be beyond criticism!
    However, I believe the convention is the best we have. I believe that following the convention and abiding to it not only creates international order and, with refugees, at least the slightest element of regulation to something that can only be utterly chaotic (the “queue” argument is hopelessly and dangerously over-simplistic), but is also the most humane tool we have at this moment.

  18. Iain Hall says:

    Fyfee

    Generosity is, in my view, the wrong word. Generosity aptly describes the offshore component of processing- which as you pointed out earlier, functions very well. In fact, through the offshore program, Australia is every year either first or second (alternating with Canada) with humanitarian visas granted (though because we have so few on-shore applicants, overall we accept a proportionately low percentage of refugees).

    Agreed ;)

    The on-shore component is an international obligation.

    Hmm this is where I think that we digress because you seem to be suggesting that the obligation is both open ended and that we are obliged to offer a permanent place for those who successfully claim asylum.and here in lays the problem and just what the UN convention is such a flawed instrument. The convention was conceived just after the end of the second world war and it was primarily envisioned as a legal device to protect the occasional defector but now it serves as an instrument to allow mass migration into the successful countries of the developed world for individuals who would other wise not qualify or be accepted as immigrants. I think that the citizens of a country have a clear and inalienable right to decide who they will let settle permanently in their own countries and no “international obligation” can change that.

    We are sort of debating in two separate arenas with this, I think. I am talking in terms of legality- the definitions, the international regulations by which countries are expected to apply. But you are talking in terms of morality- the shoulds and the shouldn’t. The reason I don’t venture into this ground is because it is incredibly subjective. Do humans, when faced with humans who have escaped persecution, have an obligation to provide them with protection? Or is this a generous gesture? This is far too a philosophical and subjective argument, and so I suppose we can only- in this area- agree to disagree.

    You can’t just separate the philosophical and moral arguments from this topic and ignore them in favour a mechanistic and legalistic argument just because the former make the later problematic. All “law” and “international regulations” can only work with the consent of the people and you won’t get that consent unless those laws are consistent with what the people think is right and proper. and to do that you have to pay attention to the moral and philosophical issues

    you pose the hypothetical question that certainly matters but then you retreat from even considering it:

    Do humans, when faced with humans who have escaped persecution, have an obligation to provide them with protection? Or is this a generous gesture?

    It may seem terribly selfish to you but I don’t think that we as a nation are obliged to permanently resettle anyone and when the and to offer any one a permanent place in our country certainly requires an act of generosity that is above and beyond any obligations that we have incurred by agreeing to the UN convention.

    The point I was trying to make was that- does the Australian government really feel that the situation has improved so drastically that in a single year 40-60% less asylum seekers from Afghanistan are no loonger being persecuted? If so, has the media entirely missed this vast improvement? If so, why has no other government agreed with Australia thus far? If so, why do UNHCR and Amnesty International both disagree? Instead, I (and Julian Burnside QC, and Amnesty, and UNHCR) think that the DFAT document has selectively used information and evidence so as to falsely substantiate a reactive policy. That DFAT refuses, under pressure, to revise or explain the document says a lot.

    Sorry but I think that the whole “fear of Persecution’ justification is rather over played and that we are not morally obliged to accept everyone from a failed society who wants to come here.

    Safe enough that they will not face persecution, as defined in the refugee convention.

    But the threat of persecution (race, religion, ethnicity, social group, political group) that your government cannot prevent is, and that is what the overwhelming amount of evidence points to, regarding the Hazaras in Afghanistan.

    Well I would argue that if all Afghanis are under threat from the anarchy in that country then none of them are in fact especially “persecuted”. They just have the misfortune of living in a failed society.

    Totally agree, it would be a dangerous and terrifying set of regulations that would be beyond criticism!
    However, I believe the convention is the best we have. I believe that following the convention and abiding to it not only creates international order and, with refugees, at least the slightest element of regulation to something that can only be utterly chaotic (the “queue” argument is hopelessly and dangerously over-simplistic), but is also the most humane tool we have at this moment.

    Being “humane ” is not the only consideration in play here because the UN convention has become subverted as a tool for migration and despite what the do-gooders think that is not a sustainable situation a world that ever more full of people.

  19. Fyfee says:

    “You can’t just separate the philosophical and moral arguments from this topic and ignore them in favour a mechanistic and legalistic argument just because the former make the later problematic. All “law” and “international regulations” can only work with the consent of the people and you won’t get that consent unless those laws are consistent with what the people think is right and proper. and to do that you have to pay attention to the moral and philosophical issues

    you pose the hypothetical question that certainly matters but then you retreat from even considering it:”

    You are right Iain, that is perhaps a weakness of mine.
    My reasoning is perhaps a little cynical. I feel that the moral aspect of the argument is so subjective that it is very unlikely to lead to anything of worth. Also, the danger lies that where (theoretically) the theory of this issue can be argued dispassionately and thus with both respect and open mindedness, the moralistic element is generally deeply personal.
    I do not like to insult people’s morals. The inherent argument of both you and I is: “you are wrong and I am right.” To disprove the information of either of us- or to attempt to, which we both have done, is not particularly a loaded or provocative thing to do. However, to argue in the basis of morals- to say “my morals are better than your morals” (and again, that must be inherently what we both believe) is a lot more provocative.
    Also, at the end of the day, I guess I don’t go into such a sticky and delicate area because the cynic in me thinks- what’s the point? Even if I change your mind (a possibility that I’m guessing has about maybe 1% probability? Haha), you’re not writing the policies. You’re not editing the Telegraph. It feels like a big and hard argument for very little gain.
    I accept that this argument is not very strong, apologies.

    “if all Afghanis are under threat”

    Actually, that was not what I said, I talked about the Hazara minority (roughly 10-15%) in Afghanistan. Unlike the Pashtun majority, the Hazaras- descendents of the Mongols- practise Shia Islam, not Sunni, and have traditionally been subject to persecution and subordination. However, the Taliban attempted genocide on the Hazaras, murdering and raping every Hazara they saw in places like Gahzni and Mazar-e-Sharif. The persecution suffered by the Hazaras is owing to the fact that neither the government nor NATO forces have any control over the Taliban in a number of provinces, or else have pushed the Taliban into the very regions in the Pakistan border- such as Quetta, Peshawar- to where the Hazaras had fled to escape them.
    The threat is real for a lot of Hazaras. The Taliban, if they can, WILL and very often DO torture, murder and rape Hazaras. This is a fact. I have Hazara friends with family who have suffered this fate, for no greater crime than their ancestry and (non-aggressive) religion. The disputation arises over whether the government of Afghanistan or Pakistan respectively can adequately protect the Hazaras from this threat. Everyone other government in the world says no, UNHCR says no, but DFAT? DFAT says yes.

    Also, I am really grateful and enjoying being able to debate with someone on this issue in a manner that is respectful and rational-thank you Iain!

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