Government slapped down for ‘pointless’ asylum seeker battle
Leading social justice lawyers Maurice Blackburn Lawyers and the National Justice Project have slammed the government for launching frivolous and expensive legal battles against asylum seekers after the Federal Court rejected its claim that it did not have jurisdiction in the area.
Maurice Blackburn Lawyers and the National Justice Project have been involved in a long legal battle about whether over 50 refugees who required life-saving medical treatment could take action in the Federal Court to ensure they received treatment.
Since December 2017 in excess of 50 separate legal proceedings have been commenced in the Federal Court of Australia to facilitate the transfer of refugees and people seeking asylum from Nauru or Manus to Australia for urgent medical care. In every case the applicant has been successful and brought to Australia for medical treatment.
The majority of these cases were commenced as injunctive proceedings and remain before the Federal Court as ongoing legal matters. Countless more families were brought to Australia as a result of legal intervention outside of court processes.
The Minister for Home Affairs and the Commonwealth tried to argue that section 494AB of the Migration Act 1958 (Cth) prevented the Federal Court from having the power or jurisdiction to hear and continue hearing these cases.
The Federal Court rejected the argument, ruling that it did have jurisdiction to hear and determine the injunctions and the substantive matters for refugees and people seeking asylum on Manus and Nauru.
However, the decision also means that there are some limits to the jurisdiction. Lawyers are currently reviewing the decision to determine the best way forward for those matters.
Maurice Blackburn’s Jennifer Kanis said the government’s attitude meant asylum seekers had no choice but to fight for their rights through the courts.
“The legal proceeding at the centre of this decision were only initiated when we felt we had run out of other options. These legal proceedings were costly, time consuming, absorbed large amounts of court resources and required hundreds of hours of pro bono work from our lawyers, paralegals and support staff. Counsel routinely had to be engaged, often after hours, and they too acted on a pro bono basis,” Ms Kanis said.
“Not only is it wrong to use a legal process to determine medical treatment, it is also incredibly inefficient, but that was the only option the Federal Government left for countless asylum seekers when they refused to provide urgent medical assistance for people in Australia’s care.
“The government’s approach to this litigation will see further delay in the delivery of much-needed treatment for those concerned. It will also clog up the courts and places an adversarial process at the centre of what should be a discussion about health and medical need.
“It is hard to imagine that most Australians would proudly own a system where the decisions about who gets medical attention are not made by doctors – but are instead subject to a process governed by lawyers and unelected government officials.
“That is a situation that would be deemed utterly unacceptable by most Australians, and it is equally as unacceptable for those people who have been entrusted to Australia’s care,” she said.
What do you think? Is the Government being unnecessarily cruel in its treatment of asylum seekers?
The perspective appears to be that we are comparatively a fairly generous country. We give at a comparatively high per capita rate and we take people in likewise.
There is a balance to be achieved, it is a balance that is the Australian people's responsibility and right to find. Given that Australia has only a drop in the world's ocean of people the consequences of not finding that balance could be catastrophic.
In this light and with comparatively huge populations in the vicinity I wonder if we should be, in honesty and integrity, a signatory to the Refuge Convention. Does it make any difference to us? I doubt it. We would still take in those and the variety of those we think we are able to no more or less.
I have attempted to promote the role of the UN in this for many years putting the view to Andrew Downer and previous ministers that security is a world problem and that we need to work to strengthen the UN role in providing it particularly in relation to displaced people.
There are four sides of primary importance here. The plight of the people involving the immediacy of response and the resumption of a type of normality and familiarty in their lives. The capacity of host countries and any providor in providing support. The welfare of the source country, its return to productive and healthy co-existence and the re-intergration of the resoures it has already invested in. Strategic development capable of thrwarting future disruption.
The key that responds to all of these areas of interest is that shelter and protection needs by provide by the UN at the nearest available venue. First the UN would use its good offices to ensure that security is solemnly inviolate. Secondly it would provide de facto state passports enabling displaced people to carry on legitimate social and business movement almost immediately. They can enjoy education and contribute to humanity's quests. Thirdly, development of these facilities (sometimes, perhaps usually small de-facto city states) and their infrastructure could be designed with the future value to the host country in mind. Within these, displaced people could trade and attempt to run business as usual. They also remain close enough to maintain pressure on their home country to change and gain by their inclusion. Finally, they are not greatly separated from their familiar lifestyle, food preference or for that matter remaining families. They can return as soon as it is safe to do so. Finally also, they still bear some responsibity for getting their home country on track not as carping people stuck in the past and from the sides.
This management regime, would not prohibit orderly movement between countries and although it does not completely isolate peoples and the countries that have developed them from hen picking by other countries, it provides an alternative to just accepting that. It would bring the real cost of people movement home to the whole world, ensure some countries are not swamped and people are not lost in the process of finding security.
Yes pie in the sky comes to mind but we probably thought that when we handed over state power to a federal government, we probably still think it when some of us wontonly and misguidedly dream of amalgamating councils. Humanity must find means of casting off the ugliness that has people becoming and staying displaced. At the same time we need to find means of respecting the local differences among us. (Amalgamating Council's by the way will never do that.)