High Court decision on Malaysian solution explained

Having read most of the judgment of the Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32, I have prepared a short summary which I hope does enough justice to the complexity of the High Court’s lengthy judgment.

The announcement of the Malaysian Solution was according to the government made under s198A(3) of the Migration Act, which provides that:

The Minister may:
(a) declare in writing that a specified country:
(i) provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and
(ii) provides protection for persons seeking asylum, pending determination of their refugee status; and
(iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and
(iv) meets relevant human rights standards in providing that protection; and
(b) in writing, revoke a declaration made under paragraph (a).

The legal issue was whether in the circumstances, Immigration Minister Chris Bowen was authorised by s198A(3) to make such a declaration in respect of Malaysia.

Chief Justice French, in considering what was required for a declaration under s198A(3), observed that:

The declaration must be a declaration about continuing circumstances in the specified country. It cannot therefore be a declaration based upon, and therefore a declaration of, a hope or belief or expectation that the specified country will meet the criteria at some time in the future even if that time be imminent. It is a misconstruction of the criteria to make a declaration of their subsistence based upon an understanding that the executive government of the specified country is “keen to improve its treatment of refugees and asylum seekers”. Nor could a declaration rest upon a belief that the government of the specified country has “made a significant conceptual shift in its thinking about how it wanted to treat refugees and asylum seekers” or that it had “begun the process of improving the protection offered to such persons”. Yet the Minister’s affidavit suggested that, at least in part, this is how he approached the questions he had to ask himself before making the declaration.

Noting facts such as that Malaysia is not a signatory to the Refugee Convention, illegal migrants are liable of up to six strokes of caning, and that credible allegations of inadequate standards in immigration centres, Chief Justice French found that Minister Bowen has acted beyond his jurisdiction.

The fact that Bowen had filed an affidavit stating that Malaysia he had reasonable grounds to believe that Malaysia would improve its treatment of asylum seekers was held to be insufficient. French CJ found that Minister Bowen had to look at the laws in existence at the time in Malaysia rather than the “practical reality”.

As a result, Minister Bowen had committed a “jurisdictional error”, and the declaration he made was therefore invalid. The 5 of the 6 other judges of  the court concurred with similar reasons.

The second issue for determination concerned the second plaintiff, a “non-citizen child” and his rights pursuant to section 6A of the Immigration (Guardianship of Children) Act 1946, which states that:

(1) A non-citizen child shall not leave Australia except with the consent in writing of the Minister.
(2) The Minister shall not refuse to grant any such consent unless he or she is satisfied that the granting of the consent would be prejudicial to the interests of the non-citizen child.
(3) A person shall not aid, abet, counsel or procure a non-citizen child to leave Australia contrary to the provisions of this section.
Penalty: Two hundred dollars or imprisonment for six months.
(4) This section shall not affect the operation of any other law regulating the departure of persons from Australia.

The majority judgment of Justices Gummow, Hayne, Crennan and Bell held that since plaintiff M106 was unaccompanied by any adult and no written consent had been provided by the Minister, the plaintiff M106 could not be removed from Australia. French CJ and Kiefel J concurred. The dissenting judgment was written by Justice Heydon, who argued that each of the plaintiff’s applications should be dismissed with costs.

 That’s the legal position. I’m sure commenters below will discuss the many possible political implications.

Those were the days my friends…

Cheers Comrades

 

Andrew Bolt; reports of his demise once again vastly over rated

Yesterday was a big one when it comes to blogging, Andrew Bolt clearly had something of a disagreement with the editors of the Herald Sun and announced that he would not be discussing politics until further notice this post has attracted nearly 700 comemnts and still going strong. Now a number of Bolt’s most strident critics have been calling it all over Red Rover for Andrew, for example this form our own regular far left random shouter Richard Ryan:

AH yes! As the old saying goes,a lawyer with a briefcase, is more dangerous then a 1000 men with guns—–amazing how all the wordsmiths with principles go to water——puddles of water everywhere at the Australian today. Bolt is finished, his non stop bile on Gillard on his blog-site, is also finished, as it should be, as is his stint on CH.10. Iain! I told you Bolt would more or less not last the distance He would have done well at News of the World. He goes on about free speech, will someone tell the media clown——–free speech with truth——-Shalom Richard Ryan.

Of course the likes of Richard is going to be rather disappointed that Andrew is back on the attack this morning  and this piece, is front and centre;

Andrew’s Column:

click for Andrew's latest column

Further in his blog he is back on the on the attack with this piece about the Craig Thomson affair:

click for source

Conflict of interest and corruption within the Labor party and the unions that it represents?
Hmm I don’t know why anyone would think so or that such a left leaning rag bag like the Fairfax press would tell us lies about the rather Machiavellian machinations within the HSU . Frankly if  I  were a member of this or any other union I would want to know why my dues have been so ill used to build an empire of capitalistic nepotism rather than to further the interests of humble workers such as myself… Thanks to the likes of Andrew Bolt and other conservative writers pointing out the faults of this very bad  government it  is in serious trouble which is precisely what a free press is all about, even when a Prime minister tries to heavy elements of the  media that is not towing her  line.
Shalom Comrades

 

Marriage rights for GAY dogs NOW!!! WOOF!!!!!

Click for source

Now I’ve been writing about the reasons that I object to the notion of gay marriage for quite a long time, and I have been rather struck by the way that the minions on the other side of the argument are very keen to characterise those who want to see marriage remain, as it always has been, a heterosexual institution as in some sense haters of homosexuals and homosexuality.Read any of the rants from our learned friend on the subject for a good example of the typical “those who oppose gay marriage are bigots” line of argument.Its patently false in the case of thsi country where we are generally rather sanguine about people being openly Gay, where there was bi-partisan agreement to reforms of our laws to acknowledge homosexual pairings in law as being essentially equal, for matters financial or administrative to heterosexual partnerships. There really is no material need to change the nature of marriage to suit the homosexual agenda:

While warm, fuzzy writers such as Valentine can imagine no possible harm to society from Gay marriage, the serious minds behind the movement occasionally let us glimpse their wider purpose. US activist Michelangelo Signorile urges gays to fight for same-sex marriage and its benefits and then, once granted, redefine the institution of marriage completely. He sees same-sex marriage as the final tool with which to get education about homosexuality and AIDS into public schools.

Sure enough, we now have empirical evidence that normalising gay marriage means normalising homosexual behaviour for public school children.

Following the November 2003 court decision in Massachusetts to legalise gay marriage, school libraries were required to stock same-sex literature; primary school children were given homosexual fairy stories such as King & King; some high school students were even given an explicit manual of homosexual advocacy entitled The Little Black Book: Queer in the 21st Century, which the Massachusetts Department of Health helped develop. Education had to comply with the new normal.

Beyond the confusion and corruption of schoolchildren, the cultural consequences of legalising same-sex marriage include the stifling of conscientious freedom. Again in Massachusetts, when adoption agency Catholic Charities was told it would have to place children equally with married homosexuals, it had to close. As Canadian QC and lesbian activist Barbara Findlay said, “The legal struggle for queer rights will one day be a showdown between freedom of religion versus sexual orientation”. Blankenhorn warned, “Once this proposed reform became law, even to say the words out loud in public — every child needs a father and a mother — would probably be viewed as explicitly divisive and discriminatory, possibly even as hate speech.”

Our parliament must say these words out loud, because they are bedrock sanity, and must accept that the deep things of human nature are beyond the authority of any political party to tamper with.

Marriage is not a fad to be cut to shape according to social whim. The father of modern anthropology, Claude Levi-Strauss, called marriage a social institution with a biological foundation. Marriage throughout history is society’s effort to reinforce this biological reality: male, female, offspring. All our ceremonies and laws exist to buttress nature helping bind a man to his mate for the sake of the child they might create.

Not all marriages do create children but typically they do, and the institution exists for the typical case of marriage. Homosexual relations cannot create children or provide a child with natural role models; such relations are important to the individuals involved, and demand neighbourly civility, but they do not meet nature’s job description for marriage.

As van Onselen notes, homosexual couples now enjoy equality with male-female couples in every way short of marriage. It must stop short of marriage, because the demands of adults must end where the birthright of a child begins. Marriage and family formation are about about something much deeper than civil equality; they are about a natural reality which society did not create and which only a decadent party such as the Greens, so out of touch with nature, would seek to destroy.

Now while it may be the case that most of those who are advocating for Gay marriage believe that achieving the changes that they desire to the marriage act will not lead to even more extreme changes to the foundational institution of our society but the real world rather destroys that notion when we have already seen Canada’s   Gay marriage cited as a reason to remove the prohibitions against polygamy, and as Ted Lapkin suggests how long would it be before there is a push to allow other previously forbidden pairings to be acknowledged and endorsed as legitimate forms of marriage?

There is no impediment in our law for anyone to enter into any sort of  personal or sexual  relationship with any other consenting adult, which is a very good thing in my opinion and it is this pertinent  fact that the Gay marriage crowd ignore. No one really cares any more who they chose to sleep with but we do care about changes to the definition of marriage and the subsequent effect that it may have for children and society as a whole.

Cheers Comrades

“Heavyweights have power to stray with impunity” by Grace Collier

Grace Collier

Without this prospect, the disgrace would not attract the same attention, because the misappropriation and theft of union members funds are sadly routine occurrences in parts of the union movement. Even Fair Work Australia seems to find it hard to get energised on the matter. Although it has been investigating the Thomson allegations, which he vehemently denies, for two years, no outcome has been achieved. This failure to provide timely answers to union members about what happened to such large sums of money suggests they should not be the body responsible for policing the financial conduct of unions.

Annually, well over $1.3 billion of members’ money is given to Australian unions. The spending of that money is left entirely to the discretion of a small group of union secretaries who operate in a largely unregulated financial setting. Of course, not every union boss is a thief, but the system is just too open to abuse and it’s far too easy to stray without fear of discovery.
When a union official jumps the fence to work for the bosses, they are spoken about by their ex-comrades as having gone to work for the dark side. It is an ironic saying, for if there is a dark side, it is surely the world of the union movement. While I have no knowledge of the Health Services Union, I can speak from many years of experience with unions and as a union official.

Union secretaries inhabit a business environment that is mostly without scrutiny. Morally they sit above reproach, untouchable, having all say but no responsibility. Have you noticed how union officials seem to be able to say anything they like and get away with it?

Generally speaking, an elected union secretary is a privileged person who spends their days surfing a wave of cash, flexing their muscles in the Labor Party factional arena and occasionally saying something on television, which in some cases is wildly inaccurate and outrageous and for which they are never brought to account. The actual running of the union and looking after the members’ interests is delegated to staffers.

Unions are just community organisations made up of groups of workers; financial members, who pool funds for the purpose of advancing their industrial interests. As well as putting money into the union, members vote to elect people to run their union. These elected people are the secretary and an assistant secretary.

In addition, an executive of a few people is elected or appointed by the secretary. The executive is the group charged with checking and overseeing the spending of the members’ funds. Once a quarter they attend meetings at the union office on a voluntary basis, after hours, to approve the spending of the union money.

Some union secretaries seek out the most uninterested and compliant people to sit on the executive. These union secretaries do not want an executive that will challenge spending decisions and scrutinise credit card statements. They want an executive that will munch their biscuits and slurp their tea while signing papers they have not read.

Thieving the money of union members is unfortunately a routine occurrence in some quarters of the labour movement. Money is habitually spent on meals, travel, alcohol, strip clubs and other forms of entertainment that most members would consider inappropriate.

Some union office gatherings have even been held in strip clubs, but mostly it is after conferences that the secretary gets a bunch of his favourite officials together and heads off for a big night financed by union funds. Anyone who wants to see union officials behaving badly and misappropriating funds simply needs to hang around the close of the ALP annual conference and follow the hard-core drinkers to the after party.

Sometimes the after party will occur in a location such as a flash inner-city apartment owned by a property developer who has donated it for the private use of union officials. Such donations are made as part of the package deal with which industrial peace is bought on a construction or other project. Never underestimate the lengths that business owners will go to for the smooth and uninterrupted supply of labour.

I have seen a union official driven around in the limousine of a boss, plied with privilege and gifts just to keep a workforce of only 15 people on the job. Imagine what it is like to have the absolute power to click your fingers and pull 5000 people off a job and cost a company $20 million a day. Imagine what that power could bring you.

Sadly, for union members, scandals hardly ever come to light. Most often union secretaries who have got just a little bit too greedy and obvious with their spending are ousted by a group of officials within the union office, who decide that they want to take over and be the secretary. A bit of digging around in the accounts usually proves enough to convince the incumbent to fall on their sword and move on. The new secretary takes over, and the cycle of spending abuse continues. What starts as a few meals, haircuts or trips away, unchecked, with the passage of time, lack of accountability and the sense they deserve perks for doing an unappealing job, often ends up as outright robbery.

Grace Collier is an ex-union official, an industrial relations consultant and author

This piece is reproduced with the kind permission of the author

Who’s telling the truth – Tony or Tony?

“I would do anything for this job. The only thing I wouldn’t do is sell my arse — but I’d have to give serious thought to it.”

There are four reasons why I believe independent MP Tony Windsor was telling the truth about what Tony Abbott hinted at offering in return for Windsor supporting him as PM last year:

1.  Abbott’s denial doesn’t sound very convincing: 

“People who know me know that I don’t speak like that.

Sure, after the election I wanted to secure government because I wanted to save our country from what was already a bad government and I think that what we’ve seen since then vindicated my judgment.

I engaged in a negotiation . . . but I think that some of the people that I was negotiating with had already made up their minds.”

Hmm, that’s not actually a denial, Tony. ”People who know you” weren’t there.

2. He’s a cyclist:

Tony Abbott offers the whole 'package'.

3. The people he hangs out with:

"I'm next."

4. He’s sold his arse before:

Pyne - "Best fifty bucks I ever spent" .. Abbott - "He's so short I don't even have to bend over."

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Julia’s Demtel polling

How low can she go????

click for source

It just does not get better for the Gillard government, as Poll after poll shows government support in free-fall, and rather desperate lefty commentators trying to find any glimmer of hope…
Cheers Comrades

Human remains found at Berwah identified as belonging to Daniel Morcombe

Progress Comrades

 

Throwing out the money lenders never goes out of style, or Usury is still a sin

Its sometimes  hard for those of us who live within our means and  always pay our bills on time to appreciate just how pressured some people are by money worries  and how willing they may be to enter into very bad deals with money lenders. So I’m going to confound some regular readers here by endorsing this bit of reform suggested by the Labor party:

Click for source

There is a place for well thought out government regulation in areas such as this and I hope that if this reform has not become law before the fall of the Gillard government that an incoming Coalition government does not drop the ball on this most valuable effort  to protect the most vulnerable from what is rather despicable exploitation and misery.

Cheers Comrades

Cell phone sends two evil scrubbers to jail for a false rape accusation

I have previously suggested that the fancy mobile phones that are so all pervasive these days have an important value as a self protection device; their ability to make a record of the events in your life could actaully prevent your life taking a very bad turn for the worse as this case from the UK demonstrates:

Weston and France were arrested in January on suspicion of perverting the course of justice.

In two interviews Weston maintained that she had been raped, but in a third interview she broke down when she was shown the photographs.

Miss Branford-Wood added: ‘She said she had gone to Mr Gozalan’s house and had consensual sexual activity with both him and Miss France.

‘In police interview Miss France said she had made up the account to cover up the fact she had had sex with someone who was not her boyfriend.’

In a statement read to the court Mr Gozalan said the incident had ‘ruined’ his life.

He said: ‘I was shocked when I was arrested for rape. My first thought was that I was pleased I kept the photographs, which showed the girls were having a good time.

‘I do not understand why the girls would make up something which is nasty.

‘I have faced threats of attack following the allegations and have had sleepless nights. I hope I never see them again because they have ruined my life.’

France, of Southampton, Hants, and Weston, of Eastleigh, Hants, each admitted one count of perverting justice. They were jailed for 20 months each.

The court heard mother-of-two Weston accepted she had done wrong and feared going to jail because she wanted to look after her children.

Natalie Wood, defending France, said she had felt guilty about having sex with Mr Gozalan because she too had a boyfriend.

Judge Peter Ralls QC described their false rape claims as ‘wicked.’

He added: ‘The allegations you have made are of the most serious kind and were entirely false.

‘Although there had been sexual activity between you and Mr Gozalan and between you together, there was no force and it was consensual.

‘By supporting one another with these wicked allegations, you have aggravated matters.

‘If carried through, this man was at serious risk of being imprisoned for a long period of time, perhaps 10 years, perhaps indeterminately.

‘The consequences would have been catastrophic.

‘Perhaps you embarked on this because you felt ashamed. You undermine public confidence in rape cases and do society a misjustice.

‘Fortuitously Mr Gozalan was able to provide photographs. I dread to think what might have happened if he hadn’t.’

After the case Detective Sergeant Martin Myers said: ‘Hours of officers’ time were wasted which could have been used to investigate genuine reports of crime.

Some commentators laughed at my suggesting that when you manage to organise a casual leg-over that you should film explicit consent from your potential partner. I suspect that they may feel differently after hearing this example of how doing something rather close to my suggestion has both saved a man from a long and thoroughly undeserved ten stretch and sent his accusers to a well deserved sojourn in jail. Then again I wonder how much that reticence is down to the victory of the  short term desperation to get laid over the  long term desire for self preservation?

Cheers Comrades

Bringing light to “The dark side of the moon”

Today I thought that I would give the mad whirlwind of Australian politics a bit of a rest and share a bit of Prog Rock with our readers;

It was summer 1974, and he would take afternoons off work (a massive sacrifice for him because he was a workaholic) and come into my bedroom and listen to the Floyd with me. There were two beds in my room. I lay on mine, he lay on the other, and we shut our eyes and concentrated. I didn’t know what was going through his head, but I knew what was going through mine – how could any prog-rock group understand me so well? Every bit of my fucked-up personality was reflected in that record – Money was about all the greedy bastards out there, Us and Them was about me against the world, Time was about dying (“Hanging on in quiet desperation is the English way” is one of the great lyrics), as was The Great Gig in the Sky.

Meanwhile, Brain Damage might as well have been called Simon Hattenstone: My Story: “You lock the door/ And throw away the key/ There’s someone in my head but it’s not me.”

Put on the headphones and /or turn up the volume and enjoy what I think is one of the best albums ever made…

Or explain in the comments what you think is better

Cheers Comrades

Well this is an opinion poll that the Gay Marriage crowd won’t be citing in the name of their cause

Life must be a barrel of laughs if you are a Green Gay activist because it looks to me that the  Gay marriage push has just  crashed into the reality that the people do not actaully support any change to the marriage act as so may proponents of Gay marriage have been insisting . If nothing else the greens parliamentary stunt of a making the members seek the mood of their electorates on the issue seems to have gone really bad for the Greens with nearly two thirds of the members reporting that the people do not support any change to the act:

Click for source

I do note that there is a fair bit more support for civil unions for homosexual  couples according to the Age piece that I cite above so It looks to me that As the Labor party makes a move to give its members a conscience vote the efforts to bring about Gay Marriage in this country will amount to nothing. Is anyone really surprised by this? I for one am not especially when you take into account that a homosexual couple are treated the same way as a heterosexual couple by Centerlink, the tax office and for the purposes of inheritance (a good reform from Labor on that*   )

I must say that I thought that this quote from Graham Perrett is particularly stupid

But Queensland Labor MP Graham Perrett, a Catholic, pointing to bullying and suicides, said it was ”time for everybody, every adult in Australia to be given the same opportunity … to wake up with their own loved one”.

Its stupid because there is absolutely no legal  reason that would prevent a gay person doing what Graham Perrett thinks is a problem for homosexual couples who don’t need to be married to sleep together as often as they please.

Cheers Comrades

* I am praising Labor for something here

What’s tat?

Gold mine found … in the Herald Sun:

It's actually a good likeness but ... WTF?

Okay, so you love your kids. So much that you want to memorialise them on your own body for the rest of your life. But here are a few tips:

1. Get a good photo of him or her for the tattooist to copy.
2. Get a good tattooist – that might help.
3. Don’t make it so bloody big and …
4. FFS, have a good-looking kid in the first place.

Believe me, your kids will hate you in later life for doing this. Check out the rest over ‘the fold’.

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Julia faces the march to the scaffold thanks to Craig Thomson

Yesterday when I got home form doing the shopping I was rather distressed to find that our Internet was down as it apparently was for many users of ADSL  so I could not even check to see what delights have been left here by the Sandpit’s players, anyway all is well again and today I have the delight of discovering that the HSU has decided to hand over all of the records of Craig Thomson’s time leading their union to the Police.

click for source

It now seems like only a matter of time before this scandal brings down the government, so the question for Labor supporters starts to become what is the best way for the party to salvage enough credibility to have a reasonable foundation upon which they can rebuild the party? There may well be some merit for the party to actually go to the polls before they are pushed, they will almost certainly still lose but there is a chance that they may retain some some respect with the voting public for facing the people willingly rather than being dragged kicking and screaming to the gibbet.
Cheers Comrades

Andy Blume succeeds in career suicide via twitter

The new uniform for Yarra Trams that Andy Blume will never wear

I have coped a bit of flak (yeah like that is a new thing   ) recently because I have taken a certain amount of delight about the self inflicted woes of one Andy Blume . Heck I have even been cited as the author of the complaint that has now seen him dismissed:

click for source

At the risk of repeating myself I think that it could not have happened to a more deserving guy, now while a few of Andy’s electric friends have been trying to champion his cause it has very obviously failed to convince his former employer who is probably quite happy to be rid of this troublesome spot on its reputation with the travelling public. It is an  irony is that the news of Blume’s dismissal should appear as a rather strange footnote to a piece about the new uniforms for Yarra Trams  that Andy Blume will never get a chance to wear or  complain about on twitter.

But in the more extensive piece at the Herald Sun I just love this quote from one of the people that Blume has so viciously mocked on the Net:

Mr Blume had posted offensive rants via his blog on subjects ranging from blind school boy Tyler Fishlock to former child star Sarah Monahan.

Monahan, who was allegedly sexually assaulted by her on-screen dad during her years on ’80s sitcom Hey Dad, blogged last week that she “just had to laugh” at Mr Blume’s plight.

“Oh Andy, I guess now you’ll know what it’s like to be on the internet and have people judging you,” she wrote.

What I find really smile inducing is this:

Others had rallied to save him, with 91 of his more than 1100 Twitter followers joining a Save Andy Blume campaign. Many argued Mr Blume’s rants via social networking should not have impacted on his employment.

That is less than one in ten of his followers on twitter who care enough to join a campaign to “save” him that might well be because most people, including his followers, think that he is just an objectionable idiot who deserves his fate. Now of the 91 who want him saved (praise the lord!!!) I know that at least one deserves to share in Andy’s career outcome, but that is a story for another day.

Cheers Comrades