#LetThemStay: optimism without faith?

'There can be no keener revelation of a 
society's soul than the way in which it 
treats its children' - Mandela

State won’t #LetThemStay
The modern state of Australia includes parliament, executive (including the governor-general), public service, judiciary, and police/defence forces.

It is the interaction between these institutions that gives the state absolute power to warehouse refugees on Nauru or elsewhere.


The prevailing view in Australia (not the Left’s view) is that refugees who arrive by boat should not be given sanctuary in Australia. How that view is put into practice is a rather complex question.

Let’s make a big assumption for the moment that the Australian parliament is democratically elected and the constitution is valid (there are plenty who dispute both including most aboriginal people who never ceded the land that was stolen from them … 90 years of rulings by the high court based on legal fictions like Terra Nullius was a constitutional con foisted on both black and white Australians).

The parliament passed immigration laws to prevent refugees coming to Australia by boat but the parliament alone lacks the power to enforce these laws.

More than this, these laws are and remain a fiction throughout the process of warehousing refugees.

Under the current law, baby Asha currently held in the Lady Cilento Children’s hospital is deemed by the High Court to be an “unlawful non-citizen”. But baby Asha will not be deported because police cannot storm into a hospital and take a baby away. The prevailing norms of society prevent this from happening, at least in the current situation where doctors and nurses remain opposed to it. This said, the baby can’t stay there forever either. Her treating doctors refuse to discharge the infant until a “suitable home environment is identified”. Her father is in detention at Pinkenba and her mother is allowed visit her.

Recently the High Court interpreted laws enacted in the parliament resulting in the mistreatment and abuse of refugees on equatorial Nauru, a tiny spec in the Pacific Ocean far from privileged suburbs of Canberra. The response to that judgement from ordinary people has forced church and state leaders to offer sanctuary to the 267 refugees including their children who may be deported.

Reformist government overthrown
In 1973 the Whitlam government passed laws to ensure that race would be disregarded as a component for immigration. This followed widespread street marches and protests against apartheid (supported by the Queensland government) in 1971 during the Springbok Rugby tour of Australia.

In November 1975, there was a large rally in King George Square which was addressed by Gough Whitlam. For the second time in Australian history a governor, under the pretext of representing the monarchy and the interests of Australian people, dismissed an Australian government.

In Queensland Bjelke-Peterson had been making strong attacks on democratic rights. At the time Petersen ruled Queensland with 18% of the popular vote. Added to this, acting on information from corrupt special branch officer, Don Lane, Bjelke-Peterson refused to appoint Justice Douglas as Chief Justice of the Supreme Court of Queensland merely because Douglas voted Labor in the 1977 elections. Bjelke-Peterson later appointed Don Lane Transport Minister.

darwin baby for nauru
Mother and baby deported from Darwin to Nauru

High Court ruling on refugees
Recently the High Court ruled that the detention on Nauru of a Bangladeshi refugee (M68) and her baby daughter were lawful. The judges held on the basis of ‘agreed facts’ which were the basis for the case that the detention by Australia until the detention by Nauru commenced was lawful.

The refugee’s lawyers did not contend otherwise. Mr Justice Keane held that the plaintiff was detained on Nauru by Nauru. Some of the other judges disagreed.

Keane ruled that the Nauruan government has control over what happens to the Bangladeshi refugee, not the Australian government. The judges held that the High Court of Australia does not rule on the legality of laws of other sovereign nations.

The Bribe
The Australian government gave the President of Nauru $27,893,633 to detain refugees on regional processing visas. However, according to Justice Keane, if the matter is not resolved administratively within a reasonable period that detention will become unlawful.

The reason is that ‘unauthorised maritime arrivals’ being detained on Nauru is a temporary arrangement only. If M68 is deemed to be ‘a refugee’ and arrangements are not made to move her from the regional processing centre in Nauru within a reasonable time frame, her detention and funds given in exchange for her Nauruan visa will become unlawful.

Unfortunately former judge, Ron Merkel, acting for the Bangladeshi woman, did not ask the High Court to rule on whether her detention since she arrived on Christmas Island in 2014 was unreasonable.

For the purposes of immigration, Christmas Island is not part of Australia.

The Bangladeshi woman was then warehoused on Nauru with the aid of Transfield Services and Wilson Security. She became ill at 20 weeks into her pregnancy and was brought to Brisbane for treatment after which she was detained by the Australian government at the Pinkenba detention centre.

The High Court ruled that, although M68 was brought to Australia, she was still an “unlawful non-citizen” and that Australian authorities had the right to detain her.

The High Court ruled that “unauthorised maritime arrivals are aliens within the meaning of s 51(xix) of the Constitution”.  Neither the plaintiff’s lawyers nor any other person has suggested that this is not a correct statement of the law.

As we know the regional processing of refugees on Nauru is punitive and racist.

However the High Court ruled that the immediate purpose of regional processing is the removal of ‘unauthorised maritime arrivals’ from Australia.

The plaintiff’s lawyers submitted that regional processing is punitive because it is designed to have a deterrent effect on the movement of asylum seekers as part of a submission that the power to punish can only be exercised by the Courts and cannot be exercised administratively and that legislation purporting to grant that power is therefore unconstitutional and invalid.

Based on ‘agreed facts’ put forward by M68’s lawyers, Mr Justice Keane held that the immediate purpose of the legislation is the facilitation of the removal of ‘unauthorised maritime’ arrivals from Australia.

Mandatory Detention
Australian governments since Keating was Prime Minister have accepted restrictions placed on the liberty of refugees. This is called mandatory detention.

The High Court ruled that the Commonwealth may cause a restriction on the liberty of an ‘alien’ in the country to which M68 was removed only if that restriction is reasonably capable of being seen as a necessary condition of the willingness and ability of Nauru to receive refugees for regional processing.
In other words, the commonwealth has power to do what it has done.
This does not mean that the judges or the court consider that it is right to do so, only that it is lawful.

The High Court also ruled that the plaintiff refugee must pay costs of her action to the defendants which include the Australian government, Transfield and to Wilson Security. The matter would not have gone to the High Court without a guarantee (by someone) that these monies would be paid should the case be lost.

The role of the High Court is not to usurp the function of the parliament and substitute its views on policy, contrary to the constitution; otherwise Australia would be governed, not by representatives elected every 3 or 6 years, but by appointees with tenure until they are 70.

However not all the Judges agreed in the case of the cruel detention of M68 . Gordon J. supported the case of the plaintiff so far as the plaintiff’s case as presented permitted, and held that the case should be remitted to the Federal Court for further findings of facts to enable the court to consider the orders sought.

Has the state done the right thing by refugees?
Many think not.

Current appeals to Malcolm Turnbull by #Let Them Stay and others should take into account the power of state institutions denying refugees asylum in Australia. As opposition to the 2003 war in Iraq demonstrated, to win asylum for refugees requires more than convincing enough people, we need also to overcome rigid institutions such as parliament and courts.

The state will not allow asylum seekers land and stay in Australia without radical change to institutions that make it up. Conservative churches have offered the 267 refugees sanctuary. Do these churches have the ability to house 267 people that the state is attempting to deport? Peter Catt from St John’s in Brisbane says he can provide sanctuary and he has the backing of 10 members of his church council. Presently most of the refugees are in detention under the control of the state, so how are they to make it to the church for sanctuary should deportations to Nauru commence? And, even if they do, won’t that make it easier for police to round them up?

Personally I have optimism but no faith.

Ian Curr
20 Feb 2016

See also http://www.sbs.com.au/news/article/2016/02/16/baby-asha-given-72-hour-deportation-notice-assurance-lawyers

16 thoughts on “#LetThemStay: optimism without faith?

  1. Unions Support campaign says:

    Unions rally outside Lady Cilento Children’s Hospital with community groups on 12 Feb 2016

    From GetUP … “The last five days at Lady Cilento Children’s Hospital have been incredible. Last Friday, doctors at the hospital refused to discharge baby Asha into the hands of the Australian Border Force. Since then hundreds of people from all over Brisbane have joined a peaceful vigil at the hospital in support of doctors, nurses, and Asha’s family.

    After camping here on the very first night, I’ve been here with the supporters maintaining a vigil every day since. The sense of hope and determination for a peaceful future for baby Asha is overwhelming.

    This Friday marks one week since the hospital first took its stand – and the solidarity vigil began. In that time we’ve built up enormous pressure together, but we need to keep it up. Nearly 300 people gathered at the hospital last Monday, and we need even bigger numbers this Friday to continue grabbing people’s attention.

    Are you able to join us at Lady Cilento Children’s Hospital this Friday 19 February for our biggest moment yet?

    What: Let Them Stay – stand for solidarity for baby Asha and people at risk of deportation to offshore detention camps (organised by Queensland’s Refugee Action Collective)
    Where: Lady Cilento Children’s Hospital – 501 Stanley Street, Brisbane
    When: 5.30pm – 7pm, Friday 19 February
    Click here to let us know you’ll be there!

    People from all walks of life have come to the hospital to join the vigil. 12-year-old Susie came here straight after school to join us with her mum. GetUp member Julie who has never been to a community vigil, but knew in this moment that she ‘wanted to do more’. Page from the Cupcake Parlour dropped off gourmet cakes for all the people gathered here, and the supportive honking from cars driving by has been endless.

    The vigil at Lady Cilento has landed the Let Them Stay campaign in the international spotlight for the first time. And today, new polling shows there’s been a massive shift in public opinion on this issue. But we must maintain our presence here to secure a positive and permanent outcome for baby Asha, and her family.

    Can you make it down to the hospital this Friday for our biggest moment yet?

    With courage,
    Ellen, and the GetUp team

    PS. Our continued presence at the vigil is driving the shift in public opinion across Brisbane. If you’re able, please, sign up for a watch shift at the Lady Cilento Children’s Hospital for baby Asha.

    PPS. Can’t make it down to Lady Cilento, but want to do something? Here’s what you can do – literally anything you want (within reason).

    We’ve pulled together a calendar on our community platform CommunityRun – and everyone in the country can add to it. So whether it’s taking a big group photo with mates in the park, a sit-in outside your MP’s office, or a #LetThemStay themed sports match or music gig. Whatever you want to do, now’s the time to do it. Click here to register your own Let Them Stay event, stunt or action.”

  2. More Doctors ... says:

    Open Letter from the Asylum Seekers Health Advisory Group to the Prime Minister, Leader of the Opposition and Ministers/Shadow Ministers of Immigration and Health

    The Asylum Seekers Health Advisory Group (ASHAG) is an alliance of health professionals, lawyers and advocates for asylum seekers with representatives from professional and human rights organisations, which aims to contribute to the debate around a humane response to the needs of asylum seekers and to support policy reform and health service development. ASHAG members are involved in clinical, academic and policy work with asylum seekers.

    ASHAG welcomes and supports the actions of doctors and clinicians to protect asylum seekers and raise concerns about the conditions of immigration detention even in the face of the threat of prosecution under the Border Force Act.

    ASHAG notes that all clinicians have an ethical responsibility to speak out about Government policy which is damaging to health and mental health and to resist practices which compromise clinical care and render doctors powerless in a politicised and punitive system.

    Clinicians have a primary responsibility to the people they serve: health is a basic human right, as is freedom from abuse.

    The current system of immigration detention including detention of infants and children is sub-standard.

    Off shore locations are not able to provide humane care and actively cause harm: long term psychological damage will be the consequence of these enduring, unmodified policies.

    ASHAG calls for:
    1. Closure of Nauru and Manus Island and processing of asylum claims on the mainland
    2. Management of asylum seeker health services by Health Departments with clinicians able to report to Health and follow normal professional and ethical standards
    3. No detention of children, survivors of torture and trauma or the mentally ill
    4. Independent expert review of health services in detention and quality of care
    5. Amendment of the Border Force Act to allow issues of clinical concern to be raised by clinicians

    Louise Newman and Michael Dudley, co-convenors
    Signed by:
    Allan Asher
    Peter Bazzana
    Stephen Blanks
    Bijou Blick
    Corinne Dobson
    Fran Gale
    Michael Gliksman
    Dorothy Hoddinott
    Rosemary Howard
    Jon Jureidini
    Nick Kowalenko
    Sarah Mares
    George Newhouse
    Barri Phatarfod
    Ngareta Rossell
    Kim Ryan
    John-Paul Sanggaran
    Anne Sheehan
    Choong-Siew Yong
    Peter Young

    [Media Comment: Louise Newman 0418 453447
    Michael Dudley 0450669477
    Peter Young 0418258624]

    Pamela Curr
    Refugee and Detention Rights Advocate
    Asylum Seeker Resource Centre
    214 – 218 Nicholson St
    Footscray Vic 3011
    T: 03 9326 6066
    M: 0417 517 075
    F: 03 9689 1063
    E: pamela.c@asrc.org.au
    W: http://www.asrc.org.au/
    ASRC is on the land of the Wurundjeri people of the Kulin nation

  3. Australian Medical Association ... says:

    Today’s Australian Medical Association (AMA) seems to be better politically than when I studied medicine … back in the early 70s only a few doctors and medical students supported opposition to apartheid during the 1971 Springbok Rugby Union Tour and few marched during the 1970 Anti-Vietnam war moratorium campaign … but some of those privileged troglodytes are still around in the medical profession, so pediatricians at the Brisbane Children’s hospital supporting ‪#‎BabyAsha‬ will have to be careful.


  4. The Goodwill Action says:

    Two Brisbane women unfurl a banner from the Goodwill Bridge, to #LetThemStay. This action comes after a week of ongoing action at the Lady Cilento Hospital where doctors have refused to discharge a baby due to deported to an offshore detention camp at Nauru.


    The charges that arise from this action were introduced by the Beattie Labor Government and carry a maximum penalty of 1 year in jail.

    The relevant sections of the law are:

    (1) A person must not unlawfully do any of the following—

    (c) climb up or down the outside of a building or a structure;
    (d) abseil from a building or structure.

    Maximum penalty—20 penalty units or 1 year’s imprisonment.

    (3) In addition to any penalty that may be imposed on a person who is found guilty of, or has pleaded guilty to, a charge of an offence against subsection (1), a court hearing the charge of the offence may order the person to pay to a stated person the costs the court decides are the other person’s costs of rescuing or attempting to rescue the person.

    From the video the activity did not look high-risk, the women seemed quite capable and in control of the situation. There appeared no need for “any rescue or attempt to rescue”.

    Where is the real crime?

    It should not be a crime to oppose warehousing of refugees on Nauru. This and other attempts to penalise civil disobedience actions (e.g. Aurizon seeking $32K for attempts to stop a coal train at the Port of Brisbane) demonstrates threats to democratic rights in Australia.
    Drop the charges!

    Ian Curr
    22 Feb 2016

    PS The #LetThemStay banner needed a couple of air holes so it didn’t billow so much in the wind. Dutton and his cronies are so full of hot air 😉

    See SUMMARY OFFENCES ACT 2005 – SECT 14 Unregulated high-risk activities

  5. Lawyers ... says:

    Legal profession to launch open letter to Prime Minister to end offshore detention

    The Law Institute of Victoria will tomorrow, Wednesday 24 February, host a launch of a letter from members of the Australian legal profession calling on the government to end offshore processing.

    Barrister Julian Burnside AO QC, Director of Legal Advocacy at the Human Rights Law Centre Daniel Webb and the Chair of LIV’s Refugee Law Reform Committee Melinda Jackson will speak at the forum.

    In an open letter to Prime Minister Malcolm Turnbull, more than 40 law firms, representative bodies, legal associations and jurists strongly advocate for the end of offshore detention and call on the government to bring all asylum seekers in regional processing facilities to mainland Australia to have their claims properly processed.

    Mr Burnside, the Human Rights Law Centre and the LIV are among the signatories to the letter.

    The letter calls for the 267 asylum seekers at the centre of a recent unsuccessful High Court bid, who are now at risk of being sent to offshore processing centres, to remain in Australia. It also raises the legal profession’s concern that the current offshore detention regime undermines a fundamental legal right – access to justice

    The letter was initiated by a social justice lawyer at Maurice Blackburn Lawyers, who is representing several asylum seekers involved in the case.

    The LIV is a strong advocate on refugee and asylum seeker issues, and convenes a Legacy Caseload Working Group with 90-plus professionals to address the unmet legal needs of asylum seekers in Victoria.

    Where: LIV Lecture Theatre, ground floor 470 Bourke St Melbourne

    When: 2pm Wednesday 24 February 2016

    Who: Barrister Julian Burnside QC, Human Rights Law Centre’s Director of Advocacy Daniel Webb, Chair of Refugee Law Reform Committee Melinda Jackson and representatives from 45 legal organisations and individuals who signed the letter.

    Note: Members of the legal profession and media welcome to attend.
    Public Affairs Manager
    Ph: (03) 9607 9373
    Email: media@liv.asn.au

    Media contact:
    Kerry O’Shea
    Public Affairs Manager
    (03) 9607 9373 or 0401 107103

  6. 'Optimism without faith' ... says:

    Students banner drop at Southbank bus station on Wed 24 Feb 2016…

  7. RAC: Almost 300 more asylum seekers join Papua New Guinea constitutional challenge to Manus detention says:

    PNG lawyer, Ben Lomai, will today (Friday, 2 February) file another 287 submissions from Manus Island asylum seekers to join them to a PNG Supreme Court constitutional challenge to the Manus Island detention centre and the denial of their human rights.
    This second tranche of submissions takes the total number of asylum seekers joined to the case to around 600.
    A third tranche is expected to be filed in March and will effectively mean all of the asylum seekers will be a party to the action to enforce their rights under the PNG constitution.
    Besides the constitutionality of the agreement to establish the detention centre, asylum seekers are seeking orders regarding their imprisonment without charge; being denied access to lawyers; denied due legal process; subjected to abuse and torture, etc.
    A ‘status conference’ on Monday 29 February in Port Moresby is expected to set a date for the Supreme Court hearing of the challenge.
    The constitutionality of the Memorandum of Understanding between PNG and Australia, that initially established the detention centre, is also being considered by the Supreme Court in a matter brought by the Opposition leader Beldan Nemah.
    A decision in that matter is expected to be handed down very soon.
    The PNG Constitutional Challenge has drawn a lot of attention in light of the recent Australian High Court decision finding that offshore detention on Nauru was legal under Australian law. That decision also affected 34 asylum seekers from Manus Island who were attached to the case.
    In the aftermath of the Australian High Court finding, a “Let Them Stay” campaign is demanding that the Turnbull government allow all 267 asylum seekers attached to that court case be allowed to remain in Australia.
    For more information contact Ian Rintoul 0417 275 713

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