Judges usurp the powers of government.

Reflections from a once workers’ paradise.

By Gary Scarrabelotti*

The striking down by the High Court on August 31 of the Gillard government’s “Malaysian Solution” to our illegal immigration problems is a remarkable coup by the legal fraternity against the legitimacy of elected government in Australia.

Leaving aside the weighty contribution made by Prime Minister Gillard and her fellow Ministers to their own destruction, the judges of the High Court have delivered the death blow to the leadership of Julia Gillard and have destroyed her government.  Australia now has a federal government in name only.

The judges, moreover, have compromised severely the ability of Federal Governments to exercise their migration and foreign affairs powers.

Australia has not only become notorious among our near neighbours for policy incompetence – the exquisite weirdness of Gillard’s “Timor  Solution”; the bungled process and craven over-generosity of her  “Malaysian Solution” – but also now for being unable to deliver on international agreements because of a veto exercised on policy grounds by an institution without legitimate powers of government.

Consider the ludicrous situation we are now in: we will “keep our word” and take refugees presently encamped in Malaysia, but send none of our illegals to Malaysia because this part of the deal has merited the non placet of a panel of judges.  The High Court now constitutes a super-ministry for Foreign Affairs and Migration. What is to prevent such a court from further expanding its reach?

Quite apart from constituting a usurpation of power  – a challenge, if it is to be met, that will demand of a future political leader such wisdom and determination as have been exhibited rarely in Australian history – the decision of the High Court contains a warning for  the Coalition.  Given the opportunity, the High Court will veto a reinstitution of the Howard Government’s “Pacific  Solution” to illegal immigration and will claim to do so in name of international agreements on refugees to which Australia is signatory.

Beach faraway

At the same time as I received news of these events, I happened to be in a dilapidated Soviet-era resort town and, sitting on a black pebbled beach with the sullen milky-blue waters lapping at my feet, I held in my hands — by a remarkable providence — a copy of The Greens: Politics, Reality and Consequences edited by Andrew McIntyre and published recently by Connor Court.

What is more, surrounded by the strange sea-like sounds of an impenetrable foreign tongue, and with a pod of over-large ladies and gentlemen beached around me like stranded whales upon the hot pebbles, I happened to be absorbed in reading a chapter entitled “Refugees: a cruel, discriminatory, and unjust policy” penned by Mirko Bagaric and Peter Faris QC.

Well, I had been remarking to myself about the aptness of reading a book on the implications of Green policies in a country over which the shadow of the old Soviet centralised command economy still hangs heavily even though the USSR came to a mysteriously sudden end 20 years ago. The damage runs deep and is everywhere monumentalised in concrete, cancer-encrusted apartment blocks of dirty grey.  If I look back over my shoulder, there they are, in all their ugliness.

What, however, really fascinated me was that, at this precise moment, as the pebbles rattled in response to a listless sea, I happened to be absorbed by a solution to the problem posed by the High Court’s invasion of the political theatre and its abolition of Australia’s policies against illegal immigration.

Get radical …

Bagaric and Faris argue that the 1951 UN Convention on refugees to which Australia is signatory (including its 1967 Protocol which updated the Convention) is an out dated, narrowly drafted political document which reflects only what the victorious Western nations were prepared to do about the specific European refugee problem created by World War II.  The document does not – so the authors argue – provide an “ethically sound” approach to dealing with refugees in other parts of the world based upon actual “human need and suffering”.

Oddly in a book intended to analyse and critique Green policies, the Bagaric-Faris article does not examine the deeply interesting question of why the Greens pose as the salvation of refugees while upholding, at the same time, what the authors claim to be a thoroughly rotten Convention.

But what Bagaric and Faris succeed in doing is to indicate the direction we might take were we determined to outflank the Greens on refugee policy and to bring the debate and political blood-letting over the issue to a morally developed and happy resolution.  With important caveats, I think they succeed.

Bagaric and Faris argue that Australia should withdraw from the 1951 refugee Convention, and adopt a much broader definition of refugee which accommodates to the real forces generating refugee movements.  These cannot be reduced, they claim, to a “well-founded fear of being persecuted”, as the 1951 Convention defines it.  What drives refugee movements are war, famine, and natural disasters.  Moreover, a new universalist humanitarian definition of refugee would need to take into account that many are refugees within their own countries. Under the UN Convention one has to be outside one’s own country to qualify for refugee status.  Having thus defined the term refugee much more broadly, Australia needs to go one step further: to double our annual refugee in-take to 25,000.

Doubling our refugee intake might lead to gasps all round.  But the authors cast their proposal as both morally responsible and politically prudent.  On both grounds they proceed to argue that Australia should choose the refugees it takes in and refuse to allow refugees to choose us; that we should import our entire refugee intake from overseas destinations; and that we should “disentitle asylum seekers who come by boat [and by air] from refugee eligibility.”

… with caveats

I think I can say, Yes to all that, but with two important qualifications.

First, refugees have no claim in justice to be taken in by Australia except in those cases where persons become refugees on account of service to Australia or because of actions taken by Australia that might have contributed to their becoming refugees.  Otherwise the rescue of refugees is an act of grace, pure and unmerited.  A national policy of assisting refugees may well speak to the virtue of nation which pursues such a policy; but an obligation to be generous and merciful — the virtues engaged in assisting refugees — are not obligations owed in justice to them.

” … the rescue of refugees is an act of grace, pure and unmerited.”

Secondly, our refugee policy should be coupled with an immigration policy that is founded upon building social and cultural cohesion within Australian society at large. This means that our immigration policy should be so shaped as to draw immigrants from the “anglosphere” and from Europe and from among non-westerners who aspire to a high degree to live in a country like ours and who have a marked capacity to contribute to the development of our national community.

Meanwhile, back on the beach, I fell into conversation through an interpreter with some kindly and curious neighbours.  They were visitors from a large mining city and were themselves connected with the mining industry. Could they and their colleagues come to Australia to practise their professions?   Could they bring their families? Could they stay?  What might mining engineers earn in Australia?

As I tried to answer these questions, and my interpreter took to the work with animation, heads turned on the crowded beach and necks craned.  Gold and silver crosses twinkled in the sun as people shifted to train their ears on the conversation.  It was an intensely interesting subject to more than my nearest neighbours in this land of mines and miners.

“You’ll soon become the most popular man on the beach,” my interpreter joked.

^* This is an edited version of article originally published on HenryThornton.com 6 September 2011.