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Lazarus Dying. Lest we forget


The High Court ruling places all asylum seekers on equal footing before the law, regardless of their mode of travel.

This neutralises any legal benefit for the government to send all boat arrivals to Christmas Island first.

Australia’s offshore detention regime was set up to deny boat arrivals the right to apply for protection unless the immigration minister made an exception, or “lifted the bar”.

In effect, it created a two-tier system of asylum whereby those who flew into mainland airports were given the right to appeal their rejections in court but those who sailed were funnelled through a separate review process that mimicked the courts but were not bound by Australian law.

The Commonwealth and the minister were ordered to pay the plaintiffs’ costs.


In 2001, Australia did something that shames me to this day. We took a boat load of people who were crying for our help and we pushed them back out to sea. It was and remains today the greatest act of bastardy in our history.

I hung my head in shame.

John Howard, the prime minister of the day, used the rising fear and racism to win an election. He claimed that some of the people on the boat were prepared to throw their own children overboard. He had pictures that backed his words.

That of course was a lie. People were trying to give their children to the navy rafts as their ship was sinking. They were not trying to kill their children. They were trying to save them.

When Naval officials tried to speak out about it they were silenced. Howard won his election.  Howard and his coalition created what David Marr calls a two-tier system. It was unjust and unfair. And has now by a unanimous ruling of seven high court judges deemed illegal.

What Howard did was create a system whereby those who arrived by boat and those who arrived by plane were treated differently. In fact Howard instigated his under the rug policy sending boat arrivals to Nauru. As it was revealed also after the election, the Nauru processing system cost far more than they claimed. And now it has cost the country yet again.

Today started as a weird day in the news waves.

Elected judges almost inevitable: Abbott

By Alexandra Kirk

Updated 11 hours 48 minutes ago

Federal Opposition Leader Tony Abbott says if the courts keep on handing down lenient sentences then Australia will probably move to a system of elected judges.

Mr Abbott made the comments after being confronted with concerns about crime and sentencing during a community forum in Brisbane last night.

He says he would rather not change the system, but too many judges are handing down sentences that do not reflect community anger at crime.

“I never want lightly to change our existing systems but I’ve got to say if we don’t get a better sense of the punishment fitting the crime, this is almost inevitable,” he said.

“If judges don’t treat this kind of thing appropriately, sooner or later we’ll do something that we’ve never done in this country: we will elect judges and we will elect judges that will better reflect our sense of anger at this kind of thing.”

Prominent law professor George Williams says a system of electing judges is the worst thing that could be done to Australia’s judicial system.

He says there are a number of things wrong with Mr Abbott’s suggestion.

“It mistakes the role of judges currently doing sentencing,” he said.

“There are cases where people are concerned about lenient sentencing, but in the main I think it’s very clear that judges are doing a good job in this regard.

“And people do need to remember if there are sentences that people are unhappy with then there are avenues for an appeal and looking at these matters again.

“But secondly even if people did want to move to a new system for appointing judges, electing judges is clearly not the right way to go.

“We need to maintain an independent judiciary in this country, judges who are free of politics and partisanship and the worst thing we could do is to mire judges in politics and to undermine the important role they play in our society.”

Professor Williams says if Australia elected judges it would be following in the path of some states in the United States.

“With judges with campaigns just like politicians, where judges would make promises along the lines of how you could expect that they would act,” he said.

“These are the sorts of things that would fetter their ability to act independently and we’d lose the independent umpires we currently have to decide these disputes and end up with politicians who would decide cases not just according to the justice that was required but according to their desire for re-election and the political promises that they had made.”

A backward step

Senator George Brandis, a lawyer and the shadow attorney-general, supports the existing system.

But he would like to see a system of more severe sentencing.

“Well I think rather than putting words in his mouth, we should accept what Mr Abbott did say and that is that he had serious concerns at the possible consequences of a judiciary that gets too far away from public sentiment in relation to the leniency of sentencing,” he said.

Federal Attorney-General Robert McClelland says moving to a system of elected judges would be a regressive step.

“Judges should be appointed and we’ve tried to ensure that judges at the federal level at least are appointed on merit by having a panel that recommends suitable candidates to be appointed,” he said.

“There is a real risk that if we appointed judges who have some allegiance to a political outcome, that we may see political decisions on the bench, and that would be entirely undesirable and quite inconsistent with the system of justice that we have inherited.”

Tags: government-and-politicsfederal-governmentlaw-crime-and-justicejudges-and-legal-professionalslaws,australia

First posted Thu Nov 11, 2010 1:22am AEDT

Now when I heard this and read the reports, I had to say I was a little surprised. Tony Abbott had been doing something smart. Had been working on the Wild Rivers bill of his and he had avoided sticking his head in front of a camera or a microphone, unlike Joe Hockey who has basically been a media whore. While Joe did his national tour of bank hate, Tony was quietly doing what he was doing. In fact, before I heard the above, I gave him credit for doing so.

Then seemingly out of no where came Abbott”s call for elected judges. I took no real notice of it as it just seemed like a spike in what had been a good week for Tony in my eyes.

Then came the High Court judgement. And I suddenly understood what Tony was alluding to.

Immigration facing ‘chaos’ after High Court decision

By Alexandra Kirk and staff

Updated 6 hours 8 minutes ago

A High Court decision on asylum seekers is threatening to undermine the Federal Government’s offshore processing system.

In a judgment handed down today, the court upheld a challenge mounted by two Sri Lankan Tamil asylum seekers who had their refugee claims rejected.

The men wanted to challenge that decision in the courts but were prevented from doing so because they were being held in an offshore detention centre on Christmas Island.

However, in a unanimous decision, the High Court has ruled that was an error of law and that the two men were denied procedural fairness when Government contractors reviewed their case.

The decision calls the entire Commonwealth system of offshore processing for asylum seekers into question, with Opposition immigration spokesman Scott Morrison saying the process has been “thrown into chaos”.

The court found the Federal Government cannot deny access to the nation’s court system to those asylum seekers who arrive by boat onto an area excised from Australia’s migration zone.

Not only is this a win for the two Sri Lankans, but it could apply to any asylum seekers denied access to the courts all the way back to when the Migration Act was changed by the Howard Government almost a decade ago.

The Howard government introduced legislation, supported by Labor, to excise thousands of islands from Australia’s migration zone.


And there we have it. The ruling maybe on a case from 2009, but the real culprits were those that created this flawed law in 2001. Even then Howard and his advisers knew the law was flawed. That is why the quickly shipped the asylum seekers to a non Australian country where they were detained under Australian law.

Scott Morrison is still claiming that Nauru is the solution. Yet the seven judges of the High Court of Australia beg to differ.  Now I understand what Tony Abbott was heralding in his call to elect judges.

The stupid part in Tony’s call for elected Judges is it is not only constitutionally unsound; a claim he made over one of the parliamentary reforms he had already signed off on, but his call is totally unconstitutional period. Not only that, it makes his claim for trying to keep and protect the process of the Westminster system seem like a farce.

It was and remains a call to prop up a prior Prime Minister. The truth though has been made clear.

The truth is Howard and his government have been well aware that their law is illegal. It is why they herded the asylum seekers as quickly away from access to Australian legal systems as they can. And were better to throw them away and lock them up and throw away the key then in Nauru.

But history was made today. Many will continue spout hate under the guise of nationalism. They obviously have a one-eyed view of justice.

As I write this, I see a piece on Australia’s most recent Victoria Cross winner as he is presented to the Queen. He won the award because he protected other troopers with his life. But not only that, he risked his life for a non Australian interpreter as well. If he followed Howard policy, he would have turned his back on the interpreter as the interpreter is not one of our own. He did not. He could not. When people cry out for help in war, you do not stop and decide to turn them back or send them off shore for processing. You help.

Today is November 11th, 2010. Remembrance day.

Today we remember those that gave their lives to make this country great. And today we were reminded by seven high court judges that we have to treat people who ask for our help equally and with compassion. Because if we do not, we spit on the graves and in the faces of those who risked and continue to risk their lives to create a better compassionate world. And we risk not only our compassion, but our very souls.

Lest we forget.

A. Ghebranious       2010                 All Rights Reserved

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