The High Court found the government swap deal of 800 boat people for 4000 refugees from Malaysia illegal. The majority decision was taken by a vote of 6 to 1. Paul Kelly described in The Australian the reaction of Julia Gillard to it as unwise but sound. Unwise it sure was, former prime minister Howard described it as silly and I would not hesitate to say, it was foolish.
To criticize the Chief Justice of the High Court looks like blaming the referee for a lost football game, it makes you look a bad loser and changes absolutely nothing in the result. It is worse because, by tradition, the politicians are supposed to accept the decision without criticism, any dispute may undermine the authority of the High Court and our democratic system depends on a fragile balance of power between the Executive and the Judiciary. So by criticizing the president of the Court the prime minister looks weak and irresponsible.
As to the soundness, I cannot see any. By my layman opinion, I felt that the refugee advocate had a very good chance in succeeding at least in preventing children being sent to Malaysia. The Prime Minister said the President of the Court was inconsistent, in fact, the Government was inconsistent. It signed the United Nations Convention on Refugees and then intended to send refugees to a country, where they can be caned. The assurance that Malaysia would not cane them was naturally not sufficiently legally bounding and the Government should not have been surprised.
The majority 6:1 is also an indication that from the legal point of view the decision was right. The Government proved beyond any doubt that it is incompetent and unable to provide reasonable protection of our borders.
There was no need to change the policy in the first place, at the time when Rudd changed the Howard successful policy there were only six or so refugees in detention. Now there are thousands!
Even if the government felt that Howard policy was inhumane (and it was not) there was no need for an urgent action. There was plenty of time to carefully think about the change. The Government, blinkered by ideology and hatred of the Howard policy, rushed into a disaster. When they realized that they must do something they tried the East Timor solution.
It was unwise, it was clear that the East Timorese did not want a refugee detention camp on their soil but our Government insisted with it. It should have realized the gravity of the situation, preferred national interest to its silly pride and went quickly back to the Nauru solution. Now even this is uncertain because of the mess the Government created.
The Opposition was ready to cooperate, Chris Bowen said Abbott insisted on having also the temporary protection visa reintroduced and this is not cooperation but lecturing. The silly pride again after all these failures. Abbott does not insist any more. However, there is a serious doubt that without temporary protection visas the offshore processing will stop the avalanche of boat people.
The Government seems to be a hell bent on failing.
Moreover somebody of genuine refugee status is not necessarily a good migrant. There was a case of a Kurd from Sadam’s Iraq who was admitted to the United Kingdom. Ten years spent there did not do much for his intolerance and understanding of western way of life. He murdered his own daughter for dishonoring his family! There are indications that a lot of recent arrivals by boat to Australia will not be good migrants either. Starting a fire on their boat and endangering Australian sailors, violent riots in detention centres for unjustifiable reason like not being able to attend a mosque on an occasion are two recent examples.
Australians are generous and welcoming migrants but the silent assumption is that they will blend in our culture, respect our values and not bring customs incompatible with our way of life.
The only way to limit bad migrants coming as genuine refugees is to drastically limit immigration of the boat people. Temporary protection visas have a dampening effect on bad behavior. It is also an incentive to seek refuge in a country other than Australia.
There are thousands of genuine refugees around the world, Australia can take with all good will only a small proportion of these unfortunate people and therefore we have the right to give preference to those who will be a positive addition to our population.
Rudolf Vyborny is Professor Emeritus, University of Queensland, Mathematics