High Court’s Decision Triumph of Legal Activism at the Cost of Australia

By Con George-Kotzabasis

Lawyers spend a great deal of their time shovelling smoke. Justice Oliver Wendell Holmes

The High Court’s decision that the Gillard Government’s deportation of asylum seekers to Malaysia is unlawful is a devastating blow to Labour’s immigration policy and a lethal hit on Australian border protection. It’s ostensibly clear that a majority of the honourable justices of the court are not immune to the deadly pestilential virus of legal activism whose source has been a number of admirable but impractical human rights enactments by the United Nations which can only be implemented by the abrogation of the national sovereignty of nations. But in the context of this judicial activism the immigration policy of Labour would stand its trial before judges who already had the sentence of death in their pockets. The majority of the justices argued that Malaysia not being a signatory of the UN Convention to the Status of Refugees and the 1967 Protocol is not legally obliged to protect refugees and therefore is not a suitable country to deport refugees. Moreover, according to refugee advocate Julian Burnside, QC, the justices reminded the government that “Australia is signatory to a number of human rights conventions” and is legally bound to abide by them. However, “Commonwealth Solicitor–General Stephen Gageler argued that the government could lawfully declare Malaysia a safe third country even though it had no domestic nor international legal obligations to protect asylum seekers.” But while lawyers may ‘shovel smoke’ at each other on this issue, the repercussions of the High Court’s decision on immigration policy and border protection are of a serious nature and may cause great harm to Australia.

Zabiullah Ahmadi, an Afghan who lives in Kuala Lumpur, predicts than “within weeks there will be lots of boats…many people have been waiting to see this decision.” Hence, the High Court’s decision will encourage asylum seekers to risk their lives in unseaworthy boats with the hope of reaching the shores of Australia of which to many of them, in the context of this decision, has become the refugees nirvana. Another refugee observer, Abdul Rahma, a leader of the Rohingga Community in Malaysia, said, the “Australia-Malaysia deal has been a useful bulwark to stop the tide of asylum seekers risking their lives travelling to Australia. Now they would return to the boats.” With the great probability therefore of an increase in boat smuggling and the attached physical and psychological risks that asylum seekers will have to take, the judges of the High Court have unwittingly, and must I add, foolishly, become accessories before the fact of this great danger to the lives of refugees on board of unseaworthy vessels. Furthermore, the honourable justices by ‘signing on’ the UN Convention on refugees, they have written off the long term interests of Australia in regard to its immigration policy that is of such paramount importance to its future balanced demographic mix. A mix that will not threaten its Western based values and the harmony of its democratic society  as it has on many European countries due to an unwise and completely flawed immigration policy that so acrimoniously and precariously has divided the indigenous population and immigrants, as exemplified by the massacre in Norway and the riots in the cities of Britain.

But one must be reminded that the decision of the High Court is a direct outcome of the foolish dismantling by the former Prime Minister Kevin Rudd of the successful “Pacific Solution” of Howard’s government that in fact had stopped the refugee boats coming to the shores of Australia. And the serially incompetent and politically effete Julia Gillard who succeeded him to the Lodge had to pick up this can of worms, i.e., this confused new Labour policy that was kicked by Rudd to his successor with his ousting from the Lodge.

In the context of the decision of the High Court the Gillard government has no alternative other than to change by legislation the immigration laws. And it is good to see that in this task to protect the borders of Australia, the Opposition Leader Tony Abbott has stated that the Liberal/National Coalition would support such legislation if the Government would consider Nauru as an offshore refugee centre. It is imperative that this offshore solution must not be replaced by the cretinous stupid proposal of the Greens and their sundry ‘paramours’ of human rights lawyers and refugee advocates that asylum seekers should be held in onshore centres such as on Christmas Island. Such a short sighted harebrained proposal would lead to a stampede of smuggler’s boats hitting the shores of Australia and would be an incentive for ruffians of all kinds to continue entering in greater numbers such a lucrative business.

Finally, the High Court’s decision is a portentous illustration of what is in store for nations who injudiciously and facilely sign international conventions without considering the serious and injurious repercussions such covenants could have on national sovereignty. No wise political leadership would be ‘outsourcing’ the sovereignty of one’s nation. 

I rest on my oars:your turn now…