The Labor Party appears to be stringing out debate on a number of relatively non-consequential bills in the House of Representatives this morning to avoid a vote on its controversial Malaysia refugee swap legislation.
Overnight, a report in the West Australian by crack parliamentary reporter Andrew Probyn – missed by all the other dailies — revealed WA Nationals crossbencher Tony Crook would slap down the government’s so-called “Malaysia Solution”, due to his concern that refugees would suffer at the hands of Malaysian authorities.
Malaysia is not a signatory to the UN refugee convention.
The yarn prompted an emergency meeting of Cabinet just after 8:30am that’s believed to have closely discussed the political fallout if a sitting government lost its first lower house vote in 80 years. Its final defeat was certain anyway with the bill to be nixed in the Senate with the help of the Greens.
On the House of Representatives Daily Program, the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill is listed at number 4 in the running order behind the Work Health and Safety Bill and the Social Security Amendment Bill.
This morning’s debate, mostly before a near empty chamber, featured riveting discussions on a safety bill for firefighters, a national standard for fertiliser products, Coptic Christians in Egypt and the AQIS export service rebate. Assistant Treasurer Bill Shorten droned on for a number of precious minutes on proposed PAYG non-compliance withholding laws.
At one point Labor backbencher Amanda Rishworth’s speech on the OH&S bill detoured into an (admittedly horrific) anecdote about a hot oil incident at Hungry Jacks.
Earlier, Tony Crook outlined the reasons for his rejection of the people swap solution – struck down by the High Court — in which 800 asylum seekers who arrived via boat would be exchanged for 4,000 refugees from camps in Malaysia.
“I’m disappointed that it’s come to this and the government and opposition have not been able to sort out a position on this.”
“Both sides are so close yet so far and it’s a shame that politics has got in front of compromise.”
He detailed the exchange when he informed Julia Gillard of his decision to back Tony Abbott’s amendments.
“The Prime Minister was disappointed but the Prime Minister is a pretty cool customer, she will move on from this. Obviously Scott Morrison and Tony Abbott were pleased with my decision, where we go to here from this is up to the Government and Opposition,’’ he said.
The House next meets on Monday October 31.
He still doesn’t get that it is not some political decision or choice. The treaty is legally binding and we cannot send people anywhere on a whim.
There is no such creature as “offshore” processing, refugee applicants can only apply here.
If we shoved them off to another signatory country or even tried it on they would piss on us for our lunacy.
Crooks is right.
Malaysian lawyers and Human Rights workers from Malaysia at two conferences in Australia recently have informed us of the conditions in which these transportees will live.
While the Australian government has made promises of extraordinary care, health, education and work rights to the Austrealian public and Parliament , they have an agreement with the Malaysian Government which will see an early end to these promises.
The proposed 800 people for transfer will have their claims processed by UNHCR in Malaysia and once this occurs and they are either accepted or rejected as refugees, all Australia’s obligations cease.
Guarantees as to schooling for the children and health care will then cease as these people will have the same conditions as the over 90,000 refugees who are beaten and imprisoned whether they have UNHCR cards or not.
Their access to health care at 50% of the cost of private, overseas citizens places medical care out of reach.
Children will have no right to go to local schools. Refugees do not have the right to work in Malaysia and are currently exploited in the most dangerous conditions in order to eat.
The fact is both countries are breaching the most fundamental human rights obligations- Australia by its policy of mandatory imprisoning and punishing of asylum seekers and refugees and Malaysia by denying them the means to survive and by randomly imprisoning and beating people whether they hold UNHCR cards or not.
Probyn’s Canberra coverage is always one to watch. I’m not sure if his report was ‘completely’ missed by the dailies… The Aussie’s capital circle briefly mentioned it this morning.
Whi is Filabustering now!
“60 In any event, while it is literally correct to describe the applicant as an “unlawful” entrant and an “unlawful non-citizen” that is not a complete description of his position. The nomenclature adopted under the Act provides for the description of persons as “uhttp://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2002/1009.html?query=al%20masrinlawful non-citizens” because they arrived in Australia without a visa. This does not fully explain their status in Australian law as such persons are on-shore applicants for protection visas on the basis that they are refugees under the Refugees Convention.
61 The Refugees Convention is a part of conventional international law that has been given legislative effect in Australia: see ss 36 and 65 of the Act. It has always been fundamental to the operation of the Refugees Convention that many applicants for refugee status will, of necessity, have left their countries of nationality unlawfully and therefore, of necessity, will have entered the country in which they seek asylum unlawfully. Jews seeking refuge from war-torn Europe, Tutsis seeking refuge from Rwanda, Kurds seeking refuge from Iraq, Hazaras seeking refuge from the Taliban in Afghanistan and many others, may also be called “unlawful non-citizens” in the countries in which they seek asylum. Such a description, however, conceals, rather than reveals, their lawful entitlement under conventional international law since the early 1950’s (which has been enacted into Australian law) to claim refugee status as persons who are “unlawfully” in the country in which the asylum application is made.
62 The Refugees Convention implicitly requires that, generally, the signatory countries process applications for refugee status of on-shore applicants irrespective of the legality of their arrival, or continued presence, in that country: see Art 31. That right is not only conferred upon them under international law but is also recognised by the Act (see s 36) and the Migration Regulations 1994 (Cth) which do not require lawful arrival or presence as a criterion for a protection visa. If the position were otherwise many of the protection obligations undertaken by signatories to the Refugees Convention, including Australia, would be undermined and ultimately rendered nugatory.
63 Notwithstanding that the applicant is an “unlawful non-citizen” under the Act who entered Australia unlawfully and has had his application for a protection visa refused, in making that application he was exercising a “right” conferred upon him under Australian law.”
Now those four paragraphs make the law pretty clear and that was upheld by three more judges in the Full Court of the Federal court in April 2003 after Akram had been deported.
So far so good on the “unlawful” = “illegal” story.
So let’s wander off to the High Court appeal which became Behrooz, Al Kateb and Al Khafaji and have a look at the meaning of “unlawful”.
http://www.austlii.edu.au/cgi-bin/sinodisp/au/other/HCATrans/2003/456.html?query=behrooz
GUMMOW J: What is the baggage of the word “unlawful”?
MR BENNETT: Your Honour, none. It is a word used in a definition provision, it is simply a defined phrase. It is not a phrase which necessarily involves the commission of a criminal offence.
http://www.austlii.edu.au/cgi-bin/sinodisp/au/other/HCATrans/2003/458.html?query=behrooz
“GUMMOW J: What is the force of the word “unlawful”?
MR BENNETT: It is merely a word which is used in a definition section, your Honour.
GLEESON CJ: Does it mean without lawful permission?
MR BENNETT: Yes, that is perhaps the best way of paraphrasing – – –
GUMMOW J: But in the Austinian sense that is meaningless, is it not?
MR BENNETT: Yes, your Honour. The draftsperson of the Act is not necessarily taken to be familiar with the – – –
GUMMOW J: Well, perhaps they ought to be.”
Wow, so the word unlawful is legally meaningless.