Let’s drop the absurd legal fiction that Christmas Island is not really part of Australia and get on with it…
Perhaps the silliest single thing said in response to the High Court’s decision last week was Julia Gillard’s comment that the judges had missed an opportunity to enhance the region’s response to people smugglers.
As numerous lawyers have pointed out it is not the court’s job to take political opportunities but to interpret the law – that’s law, L-A-W. And this the court did, by a margin of 6 to 1. If it had been a game of football it would have been called a bath, a shellacking, a mismatch.
It wasn’t just the chief justice, who years earlier in another case in a lower court had taken a taken a different view – a monumental irrelevance apparently relied on by the government while it ignored warnings from the experts at the Department of Foreign Affairs, who were a lot closer to the action. It was an overwhelming verdict from judges appointed by governments from both sides.
And in spite of the pomposities of some commentators (yes, you, Paul Kelly) it did not turn the law on its head. Sure, the verdict went against the wishes and intentions of the legislators, but that’s tough; they should have been more careful in framing it and more persuasive in arguing their case. They now find themselves up the well-known creek in a barbed wire canoe without a paddle and no obvious hope of rescue.
They could, of course, simply change the law to allow them to send anyone anywhere they liked. But the Greens would not let such a bill through the senate and Tony Abbott would demand total capitulation and a return to the Pacific solution as the price of his support. It is unlikely that Gillard and her colleagues could stomach that shit sandwich. So, where to from here?
Ironically, while the verdict may have missed the opportunity to send the message Gillard wanted, it does give her another opportunity: get back to your roots. While ministers ranted and fulminated last week, it took a humble backbencher to point out the most salient fact.
The member for Page, Janelle Saffin, noted that the ALP’s own platform as determined by the national conference, the party’s supreme policy-making body and supposedly binding on all members, states the following:
“Protection claims made in Australia will be assessed by Australians on Australian territory. Those found to be owed Australian protection under the Refugee Convention and other international instruments will be given permanent protection under the Migration Act and will be provided with appropriate settlement support and services. Those not found to be owed Australia’s protection under the Refugee Convention and other international instruments will be promptly returned.”
That seems fairly clear, so let’s drop the absurd legal fiction that Christmas Island is not really part of Australia and get on with it. Certainly there would be problems; we could expect a lot more boats and asylum seekers, possibly enough to fill the MCG in ten years instead of twenty.
It would take a massive education program by the government and others to persuade the electorate, severely brain-damaged by the shock jocks and other bigoted opportunists that there was, in fact, no threat to our safety or our way of life, that these desperate victims were not about to take our jobs, rape our children and turn the country into a Moslem (or Jewish, or atheist, or extraterrestrial) hell hole, and we could expect no help from the opposition.
But if we adopted the course that most other countries use in dealing with far greater numbers of asylum seekers – doing a quick, basic health and security check and then releasing them into the community while their cases are heard instead of locking them in isolated camps behind razor wire. – attitudes could change quite quickly.
While they are out of sight, faceless, treated like dangerous criminals, they are easy to demonise. It is hard to hate and fear people who are living next door, who share the shops and transport with you and whose kids play happily with yours at the local school.
Too good to be true? Probably; all the signs are that Gillard and Co are bent on finding yet another quick, nasty and hideously expensive political fix rather than doing the straightforward and decent thing. And when, yet again, it falls to bits, as all political fixes sooner or later must, they will go back to blaming the courts and the media and the public service and the opposition and the weather for their own failures.
But there is an alternative. Come on Julia, surprise us: read your own platform, think it through and act on it. Instead of listening to the pollsters, the focus groups, the spin doctors, the psephologists, the astrologers and their fellow necromancers, trust your own better instincts. Cut out the crap. As you put it in another context, it can’t be that hard.
And speaking of improbable happenings, last week Tony Windsor spelled out what many have long suspected: he, and by implication the other independents, will never cross the floor of parliament to make Tony Abbott Prime Minister – to inflict him on the country, as Windsor put it. But things might be very different if Malcolm Turnbull, rather than Abbott, was in charge.
So Abbott’s duty is now clear. He declares that his crusade, his God-given mission, his sole purpose in life is to save Australia from the horrors of the Gillard government. Obviously he must immediately resign the leadership and throw his support behind Turnbull; only then can he fulfill his sacred quest.
At least, that’s what he’ll do if he’s fair dinkum. And squadrons of pigs will wing their way through the heavens in celebration.