A case will be filed in the High Court today challenging the constitutionality of the Rudd government’s Papua New Guinea asylum seeker resettlement plan. The case could have massive ramifications; if successful, it could completely invalidate Australia’s offshore processing of refugees.
Lawyers acting on behalf of an Iranian asylum seeker who is challenging the government’s PNG asylum seeker deal have revealed to Crikey they are expanding and refiling the case today. The man, identified as S156 of 2013 (the High Court number given to him when proceedings commenced last week), claimed refugee status when he arrived in Australia by boat. He was soon sent to PNG against his will. His lawyers want him returned to Australia so his refugee application can proceed “in the normal course”.
The High Court challenge was announced on Tuesday last week, but now lawyers say they are expanding the case to claim the government did not have the power under the constitution to make the decision to send refugees to PNG.
The challenge hinges upon the constitutionality of a declaration signed by then-immigration minister Chris Bowen in 2012 to send asylum seekers to Manus Island in Papua New Guinea. Bowen signed the declaration in the wake of a United Nations High Commissioner report condemning the conditions at Manus, and it is this declaration that formed the basis of the government’s plan to send all asylum seekers arriving by boat to PNG.
Sydney-based immigration solicitor Adrian Joel, acting on behalf of the asylum seeker, told Crikey last night “we’re just going through the motions of refiling and expanding the case”. The expanded case will include a “constitutional issue”, Joel said.
“What that means in plain English is … that there wasn’t power to send the people offshore because the minister didn’t have the power to go through the processes with regards to [the notice] to send people overseas. Because we’re saying the power doesn’t evolve from the constitution. We’re going to assert that,” he said.
Brisbane barrister Stephen Keim SC, who is not working on the case, says this argument “suggests that the power [in the constitution] to make laws with regards to aliens doesn’t extend to making laws like this”. “It’s an argument that says to make laws with regards to a regional processing country in this way is not something the Commonwealth government has power to do under the constitution,” he said.
If successful, the High Court challenge could completely invalidate Australia’s offshore processing of refugees. “If that argument were successful, and I can’t guess at the details of the argument, then it would have very strong implications for offshore processing,” Keim said.
On Monday last week, the Attorney-General’s office issued a statement defending the legality of the PNG plan:
“The government is very confident in the legal basis for its transfers to Papua New Guinea. It will vigorously defend any challenge to the regional processing arrangements with Papua New Guinea.”
In a second extension of the High Court case, Joel says lawyers will look at “whether the correct procedures were adopted in the decision-making, regarding the notice — which is the source of everything — the notice to have New Guinea as the country that people could be sent to”.
In the case lawyers will question “whether the procedures adopted for the identification of countries for refugees to be sent to indicated the correct and appropriate considerations, given the fact that the United Nations indicated that there wasn’t any real way that such assessment could be undertaken in New Guinea”.
Mark Robinson QC, the barrister acting for the asylum seeker, previously told the ABC’s PM program there were factors Bowen had failed to take into account in October last year.
“The minister expressly said that he’s not going to take into account issues relating to the domestic law of PNG or the international obligations of PNG,” he said. “Now, those things are plainly relevant, and it’s incredible to believe that he can make a lawful decision without regards to those factors … Given the fact that the United Nations indicated that there wasn’t any real way that such assessment could be undertaken in New Guinea.”
The United Nations refugee agency detailed five major concerns about the federal government’s plan to send asylum seekers to PNG’s Manus Island in a letter to Bowen, tabled in federal Parliament in October last year. The scathing letter lists PNG’s failure to sign international treaties against torture and for the protection of stateless people, as well as the absence of any national legal or regulatory framework to address refugee issues as reasons it “would not have any operational or active role to play in their implementation”, referring to the offshore processing.
The highest law is the good of the people.
Do asylum seekers count…as people?
Does anyone know if there is a good reason why asylum seekers are referred to in the press by a number, not a name? Surely it’s not really a deliberate restriction on the part of the government to dehumanise these desperate people, is it? Surely not! Whatever the answer I call on the press to at least refer to these people by pseudonyms rather than numbers. Surely no government can outlaw that? Can they?
The scabby cowards are under trafficking laws trafficking humans to other countries to gain racist votes.
Anyone who doubts me needs to read this definition of trafficking.
“Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. ”
Gillard is going to force refugee applicants out of our country without permission, transport them to another country and pay that country and a foreign group to jail them in a grotesque abuse of power only to maintain the racist votes in the western suburbs and marginal seats.
it is time the media started stating the facts instead of claiming it is some unknown thing called “offshore processing”. Offshore processig of visa applications happens mainly over the net and in our foreign embassies, trafficking people out of the country to avoid all process is simply illegally trading humans.
The Indonesians only supply vessels, food, housing, and mostly safe sea travel to safety but have been called the scum of the earth while Gillard is happy to trade and traffic widows, babies, children and young men, grand parents, aunts and uncles, nieces and nephews who have suffered unspeakable terrors off to malaria and rabies infested hell holes and call it humane.”
And all of this brute force is simply to maintain refugee visas at 20,000 a year during a time of the greatest refugee crisis in 20 years and it appears that there is nothing too cruel or illegal that they won’t do.
Elvis our media are collectively too lazy to do anything differently.
Assuming that the polls are right-which is one hell of an assumption-how will this affect the Liberal Party’s plans to tow back the boats? (impossible) Will it affect the LNP? If not, why not?
The Greens set up the worst of all possible outcomes last year, when they destroyed the one chance of getting a humane and just outcome: the Malaysian Solution.
Now this court hearing will lead to Australia walking away from the UN refugee convention.
No government can tolerate the current situation with such a large death rate and generalised community anger at the flow of irregular migrants. If the High Court follows through with the Greens agenda, then we, Australia, will cause the failure of the UN Refugee convention.
There are many Western countries that have a much higher rate of border permability than we do and when the first Western country walks away from the convention, you can bet that they will all follow. Just look at the numbers in the UK, Germany, France, Italy and Spain.
Well done Greens, you deserve the credit for this