Australia's High Court Rules The "Malaysian Solution" Unconstitutional

August 31, 2011 12:12 AM

Australia's High Court has handed down a 6-1 judgement against (PDF) the Commonwealth Government's deal with the Malaysian Government, to replace the so-called Pacific Solution, under which the two countries would have "swapped" asylum seekers.
posted by Fiasco da Gama (56 comments total)

The use of the term "* Solution" has always deeply worried me. So, what's the call; softer, gentler policy now, or sink the boats?
posted by Jimbob at 12:37 AM on August 31, 2011

Jimbob: Depends on the net shift in votes in Craig Thomson's riding that Gillard's internal polling says would occur in the event of the HMAS Toowoomba blasting a ship full of asylum seekers to hell.
posted by Grimgrin at 12:43 AM on August 31, 2011 [3 favorites]

No Solution is the solution.
posted by taff at 1:00 AM on August 31, 2011 [1 favorite]

I'm glad for this. As much as I rag on it, Australia is usually a very humane country. Its treatment of 'asylum seekers' (refugees) is pretty disgusting, though. The Sydney Morning Herald has been running articles about returned Afghan refugees being hunted down and killed, and there's a new book by an immigration worker appalled by the conditions in detention centres. Every day there's a new account of detainees hurting or killing themselves. Its horrifying.

Its a huge country. They should accept everything.
posted by Lovecraft In Brooklyn at 1:02 AM on August 31, 2011 [4 favorites]

So, what's the call; softer, gentler policy now, or sink the boats?

That's going to be really interesting, with Labor's National Conference coming up in December.* The best 6- 12 month short-term policy change IMO would be to the status quo ante 2001 (mandatory detention, but all processing of boat arrivals on-shore). In the long term it's opened up asylum seeker policy to change in a way we haven't seen in a decade.

*I'll be there.
posted by Fiasco da Gama at 1:12 AM on August 31, 2011 [1 favorite]

Its a huge country. They should accept everything.

It's in the national anthem, in fact.

For those who've come across the seas,
We've boundless plains to share.
posted by Jimbob at 1:23 AM on August 31, 2011 [3 favorites]

*I'll be there.

I'm so sorry.
posted by Jimbob at 1:42 AM on August 31, 2011

STOP THE BOATS!™

But seriously. Stop the boats.
posted by uncanny hengeman at 1:44 AM on August 31, 2011

We've boundless plains to share.

Yeah. Like the Simpson farking Desert. And all the other deserts.

And when was that song written again?
posted by uncanny hengeman at 1:46 AM on August 31, 2011 [1 favorite]

Back in 1878, when men were men, and coloured folk weren't welcome!
posted by Jimbob at 1:55 AM on August 31, 2011 [2 favorites]

Wake me when the High Court recognizes the plight of Native Australians.
posted by Samuel Farrow at 2:23 AM on August 31, 2011 [1 favorite]

Pretty sure they have. Takes politicians to put things into action.
posted by Jimbob at 2:37 AM on August 31, 2011 [1 favorite]

I have to admit that it is sometimes a source of perverse pride for me, being citizen of the country with the most objectively useless and clueless government on earth. Carn Straya!
posted by tumid dahlia at 2:38 AM on August 31, 2011

Why is the West so against refugees? It's like a Watts novel these days. Let them in, they won't bite.
posted by Meatbomb at 2:55 AM on August 31, 2011 [6 favorites]

But seriously. Stop the boats.

What does this even mean?
posted by smoke at 3:09 AM on August 31, 2011 [1 favorite]

...Stop the boats.
What does this even mean?

I'll have a go. It's a very dangerous act to try to cross the strait south of Indonesia in the fishing boats people use. It's not like swimming the Rio Grande, it's a great way to get yourself drowned a long way from shore. From any humanitarian point of view, stopping people making dangerous sea voyages in crowded vessels is a deservedly high policy priority.

That's very different to the views I heard when I was handing out in the seat of Parramatta in 2001, though ie. "machine gun the cahnts".
posted by Fiasco da Gama at 3:22 AM on August 31, 2011 [2 favorites]

But Fiasco, framing the debate like this is:

a) Giving Australia and Australians an agency we don't actually have. War in Sri Lanka is not really something the Aus govt can effect.

b) At the same time is denies agency to the people making these journeys. I think it's pretty paternalistic and culturally a bit so-so, as if WE can or have the right to tell people in other countries how and what to do, or can even *really* understand what motivates them etc. (not that this precludes trying).

I'm not saying this invalidates the humanitarian point of view you outline; this issue surely contains multitudes. But I feel that accepting the premise of "stop the boats" buys into the discourse we've had on this issue for so many years now.
posted by smoke at 3:33 AM on August 31, 2011 [2 favorites]

Why is the West so against refugees? It's like a Watts novel these days. Let them in, they won't bite.

Over the past few weeks I've been reading a brilliant, but highly disturbing book - Bloodlands - Europe between Hitler and Stalin by Timothy Snyder. Pretty much makes me very, very happy for any displaced, persecuted person to come right on over.
posted by Jimbob at 3:40 AM on August 31, 2011 [2 favorites]

Background request (because we probably have a few experts on this subject):

Where are Australia's asylum seekers mostly coming from and why? Asylum from what or who? And how many are arriving each year compared to, for example, the number of people born each year in Australia to Australian citizens? How much of an actual financial (or otherwise?) burden are asylum seekers on Australia, or is this burden more an issue manufactured for political purposes?
posted by pracowity at 3:45 AM on August 31, 2011

Asylum seekers and refugees: what are the facts?
posted by Pinback at 4:05 AM on August 31, 2011 [3 favorites]

I'm not exactly an expert on this matter, but it certainly seems like a manufactured and xenophobic non-issue. But that would never happen in Australia!
posted by mek at 4:22 AM on August 31, 2011 [2 favorites]

Wake me when the High Court recognizes the plight of Native Australians.

You've been asleep for fifteen years. Wakey wakey!
posted by wilful at 4:29 AM on August 31, 2011

For those who've come across the seas,
We've boundless plains¹ to share.

¹Full of snakes, toxic spiders, poisonous goddamned monotremes of all things, and one species of jellyfish that's somehow managed to cobble together a landwalker suit out of discarded fishbowls and Lego Mindstorms robotic legs so it can roam around and sting people because it is just that much of an asshole. But yeah, plains. Boundless.
posted by Mr. Bad Example at 4:53 AM on August 31, 2011 [7 favorites]

Just read the decision and, man, someone must have peed in Heydon J's coffee this morning.
posted by A Thousand Baited Hooks at 5:02 AM on August 31, 2011 [1 favorite]

Gillard can't win a trick

and we don't say goddamned in Australia, we say fucken'

as in poisonous fucken' monotremes - taken from the national anthem
posted by the noob at 5:29 AM on August 31, 2011

If I were in charge of Australia, immigration priorities would go like this:

1. Refugees.

2. Family reunions.

3. Other migrants, with yearly numbers set according to population policy.

Asylum seekers, regardless of whether they arrived by air or sea, would be treated as genuine refugees until proven not to be.

I would also create Government-subsidised people-smuggling outfits in neighboring countries, widely known to be capable of getting whole families safe transport to Australia on a Navy ship for half the money the fishing-boat crowds would charge.

I would work with Australia's existing refugee support networks to sort out community-based temporary housing for asylum seekers.

And anybody who bitched about these arrangements would qualify for a one-way trip to a Serco-staffed immigration detention centre. Fuck 'em.
posted by flabdablet at 6:54 AM on August 31, 2011 [6 favorites]

as in poisonous fucken' monotremes - taken from the national anthem

That's in the old fourth verse, I think -

Should foreign foe e'er sight our coast,
Or dare a foot to land,
poisonous fucken' monotremes,
will guard our native strand;
Britannia then shall surely know
the seas that roll between,
keep them safe from Australia's land
full of snakes and spiders mean,
In joyful strains then let us sing
Advance Australia fair.

posted by zamboni at 7:34 AM on August 31, 2011 [11 favorites]

Australia is the Texas of the English commonwealth. They have all that empty space yet somehow remain xenophobic. Bonus points: Their history also includes nearly wiping out the original inhabitants.
posted by Renoroc at 7:36 AM on August 31, 2011 [3 favorites]

I'm not exactly an expert on this matter, but it certainly seems like a manufactured and xenophobic non-issue. But that would never happen in Australia!

Never happen? Governments win elections using manufactured and xenophoic non-issues in Australia!

That was the first election I ever voted in. Sadly it was the last election where I could vote the Democrats and Greens as 1 and 2 respectively.
posted by Talez at 7:59 AM on August 31, 2011 [2 favorites]

Australia blasts latest WikiLeaks release
posted by clavdivs at 9:15 AM on August 31, 2011

Should foreign foe e'er sight our coast,
Or dare a foot to land,
poisonous fucken' monotremes,
will guard our native strand;

Okay, new flag for Australia. Two platypi, rampant and displaying their venomous spurs, surrounding a rondel containing a beer, proper, on a field. The rondel is encircled by the motto MONOTREMES VENENATIS FORNICARI.
posted by Mr. Bad Example at 11:16 AM on August 31, 2011 [1 favorite]

If I were in charge of Australia, immigration priorities would go like this:

1. Refugees.

2. Family reunions.

3. Other migrants, with yearly numbers set according to population policy.

(4) Asylum seekers, regardless of whether they arrived by air or sea, would be treated as genuine refugees until proven not to be.

I envy your faith in humanity, but do you really think there would be anyone in category 3 given (4)?
posted by pseudonick at 11:40 AM on August 31, 2011

That's what depresses me about immigration issues, it seems to me:

1. Many people would very much like to move to the developed world. More than the infrastructure in the developed world could support without a dramatic reduction in the standard of living there. It is necessary stop a large number of people from going where they would like to go (this last statement could be debated on moral grounds, but certainly the bulk of current inhabitants would not support such a reduction in their lifestyles).

2. There is relationship between how unpleasant the experience of illegal immigration is with the extent of illegal immigration.

It follows that it is necessary to make the experience of being an illegal immigrant unpleasant to a greater or lesser extent. The decision is just what is an unacceptable level of unpleasant, which is a rotten thing to have to choose.
posted by pseudonick at 11:57 AM on August 31, 2011

Its a huge country. They should accept everything.

That's just silly talk. I don't know ANYTHING about Australia's economy, but NO country can really support an unlimited influx of new population on an ongoing basis. Just a few reasons off the top of my head:

1) Where are the jobs for these immigrants?
2) Where is the housing for these immigrants?
3) Where is the infrastructure (transportation, among other things) to support these immigrants?

You can't just let everybody in willy nilly. Yes, Australia is huge, but you can't just dump all these refugees into the middle of the Outback.

Having said that, as I said I have no idea about the Australian situation right now. So I'm sure there *IS* some number of refugees/asylum seekers that Australia COULD assimilate on an ongoing basis. Whether or not that number is currently being reached/exceeded, I have no idea. I have a feeling (based on other comments in this thread) that it's not being reached at the moment.
posted by antifuse at 12:07 PM on August 31, 2011

flabdablet: 3. Other migrants, with yearly numbers set according to population policy.

(4) Asylum seekers, regardless of whether they arrived by air or sea, would be treated as genuine refugees until proven not to be.

pseudonick: I envy your faith in humanity, but do you really think there would be anyone in category 3 given (4)?

Skilled migrants? Believe it or not, there are people in developing countries who are not asylum seekers.
posted by vidur at 1:20 PM on August 31, 2011 [1 favorite]

I'm pretty sure that in the last few weeks I saw a news report about some opinion polling that showed that a slight majority of Australians now prefer that refugees arriving by boat would be processed on-shore, presumably because the Gillard government had proposed increasing the amount of off-shore processing.

I haven't got the exact numbers at hand, but refugees arriving by boat make up a tiny tiny fraction of Australia's overall immigration intake, and even as a proportion of the annual refugee intake only account for a few percent of the total, most of who arrive by plane with a valid visa and then claim asylum. The whole thing is a non-issue that has been cynically exploited by the torries for political advantage, leveraging an apparent residual version of the early 20th century fear of the 'yellow peril' present amongst a depressing number of my fellow country-persons
posted by Hello, I'm David McGahan at 3:37 PM on August 31, 2011 [2 favorites]

Re: Vidur

There are definitely skilled migrants, that's my whole point. In the scheme described skilled migrants are third priority for admission (group 3). But they could jump to first priority (group 1) by claiming to be refugees.

I'm just saying many people will take advantage of the situation if that path was open to them. I'm not arguing for the merits of that system of priorities, just saying I think people will game the system if possible so you have to have checks in the system to make it more difficult to game.

I exaggerated by saying no one would still apply in the "other migrant" category. But if all they have to do to jump the queue is claim to be refugees many people will do that. Which will only hurt the people who honestly apply as "other migrants" or skilled refugees.
posted by pseudonick at 4:11 PM on August 31, 2011

pseudonick, I guess some people might try to game the system regardless of what system is put in place. I know, for example, that many Indian men claim to be gay and persecuted, even when they are neither, in order to seek asylum in certain countries. I also know of cases wherein men from India have gone to a country where it is possible to marry a local and get citizenship quickly, so that they may then apply for migration to their real destination country and beat that country's country-specific quota system of migration under certain categories. Well, that's life.

But perfection is not an appropriate standard for measuring policies. Given the small number of people involved in those priority categories of flabdablet, I can't imagine qualified engineers with a much bigger quota category (that's up to flabdablet) jumping into shady Indonesian boats to get into a higher priority category. I am not saying that nobody will do it, just that even if somebody does, that's probably not a major concern.
posted by vidur at 4:42 PM on August 31, 2011

Right, we're not going to reach perfection. But you've got to try to make it difficult to game the system and patch holes when you see them. Some people will always beat it, and that's not necessarily a bad thing, if you want it bad enough to work that hard, maybe you've earned it.

I was mostly refering to flabdablet's "Asylum seekers, regardless of whether they arrived by air or sea, would be treated as genuine refugees until proven not to be." I'm totally with you on Indian engineers being unlikely to join boats of Indonesian refugees. But if they can buy a Quantas ticket, fly in, and be considered refugees by a simple affirmation, that's a hole that needs patching.

It's deeply unpleasant to have to establish a process to determine the validity of someone's asylum claims. Such a process will inevitably make some terrible errors that are easy to turn into outrage posts on metafilter. But I think they are a regrettable necessity given the state of the world and human nature.
posted by pseudonick at 5:03 PM on August 31, 2011 [1 favorite]

But you've got to try to make it difficult to game the system and patch holes when you see them.

Why? what's this obsession with 'gaming the system' and 'que jumping' (which is apparently a huge sin in British-based countries) and people of 'low character'? Asylum seekers usually have MORE character than normal Australians if they've either a. done something that's got them into trouble back home or b. have the wherewithal and drive to get over here.
posted by Lovecraft In Brooklyn at 5:19 PM on August 31, 2011 [1 favorite]

The whole thing is a non-issue that has been cynically exploited by the torries for political advantage

said Tories being gutlessly and absolutely shamelessly aped by a Labor Party that left behind its last remaining shred of principle when Beazley chose not to take on Howard over the Tampa, and egged on by fuckwits like this one and arseholes like this one.

It should also never be forgotten that it was in fact the Labor Party that both set up the first immigration detention centre and changed the rules to allow indefinite detention.

But if they can buy a Quantas ticket, fly in, and be considered refugees by a simple affirmation, that's a hole that needs patching.

I'm not suggesting for a minute that my Immigration Department would fail to inquire into the circumstances of every asylum seeker, and deal appropriately punitively with those who could be shown to have gamed the system. I'm just saying that until it had done so then asylum seekers should be treated as refugees by default.

As things stand at present, well over 90% of asylum seekers arriving by boat do in fact end up being assessed as genuine refugees. It ought to be a source of absolute national shame that the overwhelming majority of the people we imprison in "immigration detention" have done nothing to justify our having done so.

It's deeply unpleasant to have to establish a process to determine the validity of someone's asylum claims. Such a process will inevitably make some terrible errors that are easy to turn into outrage posts on metafilter. But I think they are a regrettable necessity given the state of the world and human nature.

I have no objection to establishing the validity of asylum claims.

I have no objection to having and funding a formal process for doing so.

What I object to, specifically, is that we currently apply different formal processes to asylum seekers who arrive by air and those who arrive by boat. It is only the latter who are held behind the razor wire for indefinite periods, denied access to supporters and media, and turned into political footballs by unprincipled arseholes from both sides of politics.

All the rhetoric about "stopping the boats" is predicated on the completely spurious notion that boat arrivals are a serious problem. In fact the number of asylum seekers arriving by boat is less than a tenth of the number arriving by air. If the Department can process the claims of air arrivals without indefinite detention or administrative excision of bits of Australia from Australia or any of the rest of the obscene fucking circus that surrounds boat arrivals, it can handle boat arrivals without special provisions as well.

Some on the Right have been known to cry crocodile tears about the terrible conditions that these poor people have to endure on their dangerous leaky overcrowded unseaworthy little boats, and to attempt to defend the notion that we must stop the boats on humanitarian grounds. The likelihood that this, as opposed to pure political pandering to the likes of the Cronulla rioters, is what drives Tory policy is very very low indeed. Were this not so, we would not be bombarded with completely spurious bullshit about "border protection" and "illegal immigrants" and "queue jumpers".

On preview: very, very rarely do I find myself sympathetic to Lovecraft in Brooklyn's worldview. But on this issue, we are as one. Australia's sheer distance - both physically and culturally - from the countries most of our refugees have fled is all the "border protection" we need. There can be no justification for our further brutalizing people who have already suffered so much.
posted by flabdablet at 5:34 PM on August 31, 2011 [6 favorites]

We shouldn't name-drop Alan Jones in comments. He needs an FPP all to himself.
posted by vidur at 6:03 PM on August 31, 2011

You and me both, flabdablet, you and me both…

The opprobrium reserved for 'queue jumpers' particularly is one that has always annoyed me, and LiB's correct in that queue jumping is a particularly heinous crime in British-based (Commonwealth?) cultures. The Very Average Australian, however, is generally fucking terrible at queueing unless it's rigidly enforced - in the Very Average Australian's mind, queues are for other people, because the Very Average Australian lives in absolute certainty that he's got a justifiable reason for being at the front*.

Put simply: while we retain the ingrained disdain for queue-jumpers from our vestigial British-ness, it can only be applied to others. Politicians and other manipulators of public opinion were quick to learn this, which is why the term "queue-jumpers" has been in non-stop use in recent years.

On preview: vidur, only if "FPP" can be taken to mean "Flaming Poo Pit".

(* e.g. he's important and so simple respect means he should go first; he's been there long enough that he can reckons most people would rather convince themselves he was in fact there first rather than confront him; everybody else is wearing less tatts and flannelette than him; the other people are chinks and so don't really know how to queue properly, etc.)
posted by Pinback at 6:15 PM on August 31, 2011 [1 favorite]

The hatred for queue jumping can be a thing of beauty in the right context.
posted by vidur at 6:46 PM on August 31, 2011

Is the queue jumping thing why a. nobody moves in when they're on the bus & train, so you end up with empty inside seats and people standing in the aisles and b. why I'm the only one one to move up front at gigs? Or is that something else?

One of the most messed up immigration policies was the plan to send unaccompanied boatchildren back. I can't even imagine that.
posted by Lovecraft In Brooklyn at 6:50 PM on August 31, 2011

Oh, agreed. My theory is we've inherited the British disdain for queue jumpers, but not the social structures that permit us to politely deal with them, or even the ability to actually, y'know, queue without the chrome-guardrails-and-red-ribbon of the average bank or nightclub.

Or maybe it's just because I'm in Brisbane, where people's idea of 'queueing' for public transport involves a loose mob that steps forward and crowds around the door as soon as the bus/train arrives, without waiting for people to get off, and regardless of whether this is even their bus/train or not…

LiB: no, (a) is something I call "hillbillity" i.e. the ability to act like a hillbilly while remaining totally oblivious to everyone else's disapproval.
posted by Pinback at 7:00 PM on August 31, 2011 [1 favorite]

wilful I wouldn't call recognition of customary title for a culture which is tens of thousands of years old recognising the plight.

I don't think I'm the one that needs to wake up.
posted by Samuel Farrow at 7:02 PM on August 31, 2011

Don't troll Sam, it's unbecoming.
posted by the fish at 12:45 AM on September 1, 2011

I'm going to sit down on this bus, if you think pointing out our Australian cousins hurtful history with the original inhabitants is trolling.

It's fucking shameful.
posted by Samuel Farrow at 1:57 AM on September 1, 2011

But the High Court can't do anything about life expectancy. They've done what they can on the issues within their remit, it's up to other institutions, e.g. government as wilful pointed out, to pull their weight now.
posted by harriet vane at 4:28 AM on September 1, 2011

Flabdablet for PM!
posted by harriet vane at 4:29 AM on September 1, 2011

I don't think I'm the one that needs to wake up.

you do if you think that's anything to do with the High Court.
posted by wilful at 5:15 AM on September 1, 2011 [1 favorite]

I'm still sitting.
posted by Samuel Farrow at 6:15 AM on September 1, 2011

Well I'm sure that sitting in Wellington will make the point.

More seriously though, what exactly are you aiming for here? You've been here for a bit, surely you know by now that your friends across the Tasman aren't exactly committed Daily Telegraph readers.
posted by Hello, I'm David McGahan at 8:30 AM on September 1, 2011

I did a bit of drinkng last night and my comments here are dickish - I apologise for this. I shat in the thread and sat down in the middle of my own mess.

I love our Australian cousins; and really think we should be looking to unify our two great countries, maybe one day.

Thanks for pulling me up, I deserve to be.
posted by Samuel Farrow at 5:50 PM on September 1, 2011

and really think we should be looking to unify our two great countries, maybe one day.

Hey, we offered... can't do any more than that.
posted by Jimbob at 7:36 PM on September 1, 2011