People smuggling:
Neil James, Executive Director, Australia Defence Association, writes: Like many Australians, David Gothard (yesterday, comments) misses quite a few points with his draconian proposals to curb illegal entry into Australia. His suggestions also appear to reflect one extreme of the debate — as, on the opposite extreme, do those who advocate granting permanent Australian residency and eventually citizenship without question to every foreigner who turns up and wants it.
Moreover, the laws suggested already mostly exist, especially in regard to the people doing the smuggling for commercial reasons — if not always those being smuggled or those smuggling them due to non-commercial motivations.
Most importantly such proposals ignore that our international law responsibilities (such as the 1951 Refugee Convention and its 1967 Protocol) mean we cannot just make all unauthorised entry to Australia illegal. Australian law must be able to differentiate between genuine asylum seekers arriving in an unauthorised manner by boat or jetliner, which is not in itself necessarily illegal, and anyone else who arrives by such means (including bogus asylum seekers and unauthorised immigrants of all varieties).
Our national dilemma strategically, and our public debate domestically, are also much affected by factors which Australia shares with very few countries (whether they are signatories to the Convention or not). This is why public debate on refugee policy in Australia tends to emotionally dwell on the symptoms of the dilemma so much rather than its actual strategic, legal and moral causes.
Niall Clugston writes: David Gothard seems to think he has the answer to “people smuggling”: “Legislate to make it a Criminal Offence to enter or attempt to enter Australia other than at an approved Port of Entry and with appropriate documents. Penalty five years incarceration.”
But illegal immigration is already a crime, and the boatpeople who attract all the attention are not trying to infiltrate Australia through the north-west frontier. They are, by and large, presenting themselves at a port with documentation supporting asylum claims under Australian law.
Kevin Rudd:
Michael Frame writes: Re. “Mungo: Rudd slowly shedding Dr Jekyll image in favour of Hyde” (yesterday, item 14). Mungo MacCallum, you ask the question as to whether the Rudd we see now is the real one? Hey, hello, yes it is! This is the Rudd many of us have suspected right from the start, hidden under the “nice guy” veneer.
A very good reason for our not voting for him in the first place – that, and the fact that all he really wants is to be the head honcho at the UN! As for a Bill of Rights – we don’t need one AT ALL. We do need a Bill of Obligations to make sure that everyone who claims to be Australian and to be working for the lucky country first declares what they can/will do FOR it, before receiving any more legal excuses for bludging, indolence and reasons why we must allow in refugees who get paid more than our own battler pensioners.
OK time for some facts.
1. It is not an offence to enter or stay in Australia without a visa as Al Kateb’s case noted in this para.
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2004/37.html?query=al%20kateb
Here is the actual judgement. Paragraph 86 is there for all the world to see.
“From 1901 to 1994, federal law contained offence provisions respecting unlawful entry and presence in Australia, which was punishable by imprisonment as well as by liability to deportation. The legislation gave rise to various questions of construction which reached this Court[90]. The first of these provisions was made by the Immigration Restriction Act 1901 (Cth) (“the 1901 Act”)[91]. Section 7 thereof stated:
“Every prohibited immigrant entering or found within the Commonwealth in contravention or evasion of this Act shall be guilty of an offence against this Act, and shall be liable upon summary conviction to imprisonment for not more than six months, and in addition to or substitution for such imprisonment shall be liable pursuant to any order of the Minister to be deported from the Commonwealth.
Provided that the imprisonment shall cease for the purpose of deportation, or if the offender finds two approved sureties each in the sum of Fifty pounds for his leaving the Commonwealth within one month.”
As enacted in 1958, s 27 of the Act continued this pattern. That provision eventually became s 77 of the Act, but this was repealed by s 17 of the Migration Reform Act 1992 (Cth) (“the 1992 Act”). It has not been replaced[92].”
And here in Hamdan v DIC’s
. As Gummow J indicated in Al-Kateb at [86] ff, the current Migration Act, unlike its precursors, does not make it an offence for an unlawful non-citizen to enter or to be within Australia in contravention of, or in evasion of, the Act.
31 Further, as Hayne J observed in Al-Kateb at [207]-[208] the description of a person’s immigration status as “unlawful” serves as no more than a reference to a non-citizen not having a “valid permission to enter and remain in Australia”. The use of the term “unlawful” does not as such refer to a breach of a law.” (see, no breach of the law and all done by the ALP who then invented the ludicrous detention for asylum seekers without papers that they don’t actually have to have under the law)
And here we see that Al Masri’s case threw up the fact that the convention is in the Migration Act and has not been removed.
“61 The Refugees Convention is a part of conventional international law that has been given legislative effect in Australia: see ss 36 and 65 of the Act. It has always been fundamental to the operation of the Refugees Convention that many applicants for refugee status will, of necessity, have left their countries of nationality unlawfully and therefore, of necessity, will have entered the country in which they seek asylum unlawfully. Jews seeking refuge from war-torn Europe, Tutsis seeking refuge from Rwanda, Kurds seeking refuge from Iraq, Hazaras seeking refuge from the Taliban in Afghanistan and many others, may also be called “unlawful non-citizens” in the countries in which they seek asylum. Such a description, however, conceals, rather than reveals, their lawful entitlement under conventional international law since the early 1950’s (which has been enacted into Australian law) to claim refugee status as persons who are “unlawfully” in the country in which the asylum application is made.
62 The Refugees Convention implicitly requires that, generally, the signatory countries process applications for refugee status of on-shore applicants irrespective of the legality of their arrival, or continued presence, in that country: see Art 31. That right is not only conferred upon them under international law but is also recognised by the Act (see s 36) and the Migration Regulations 1994 (Cth) which do not require lawful arrival or presence as a criterion for a protection visa. If the position were otherwise many of the protection obligations undertaken by signatories to the Refugees Convention, including Australia, would be undermined and ultimately rendered nugatory”
See, simple.
No smuggling, a legal right to enter and all of it Australian law, never mind international law.
Michael Frame says “and reasons why we must allow in refugees who get paid more than our own battler pensioners.”
Here we go again- the old chestnut resussited over and over by the thick, the stupid, the mislead and the aggrieved and SOME WHO SHOULD KNOW BETTER.
This chestnut originated in Canada and has been recycled through the Australian media high and low often even with Canadian dollar figures. Dont let any sign of intelligence interrupt a grand lie which goes that refugees are paid enormous amounts of money while our struggling pensioners miss out.
Michael are you stupid or just malevolent?
This story got so out of hand that even the sworn enemies of refugees in Australia- the Immigration Department put out a denial. Michael i suggest you read it – http://www.immi.gov.au/media/letters/letters08/le08002.htm for 2008 then again for 2009 http://www.immi.gov.au/media/letters/letters09/le090507.htm
Two Neils and a Michael.
Nothing from Tamas today.
Thanks, editor. We don’t need the aggravation.
Michael Frame – what planet do you live on – a ‘bill of obligations’?? You seem to have just discovered that K Rudd is a politician! quelle horreur!! A politician who manipulates events to favour his own party, no less, shocking! Rudd was a ruthless public servant in Qld who put the sword to all the National Party cronies in the public service there after Labor won in 1989. Now that he is PM, Rudd is showing that ruthlessness again.
Well gee Bakerboy, as many of the National cronies ended up in jail for fraud why is it a bad thing that Rudd got rid of them?