Cheque book solution on asylum is unconstitutional

The cheque book has worked in the majority of Abbott's realignments why would this be any different. http://www.theage.com.au/comment/tony-abbott-is-a-bully-over-un-convention-against-torture-20150309-13zk4s.html

The decision of the PNG Supreme Court and the provisions of the PNG Constitution are another reminder of the inadequacy of our own Constitution. An important function of a constitution, the basic law enacted by the people, should be to protect the people, citizen or otherwise, against abuse of the 'soverentyof Parliament'. Our constitution, unlike that of PNG, lacks that protection and without it, citizens, as well as asylum-seekers are at risk of legislation which allows them to 'legally' deprived of their freedoms, including derention without trial, as we have seen on many occasions in the past decade.

Frank, Kevin Rudd did not revive the illegal human trade in 2013, Gillard and Roxon did that in 2012 as you very well know. All Rudd did was waste millions on an ad campaign.

And what sort of racism thinks it is OK for us alone in the world to stop refugees seeking asylum or thinks that stopping boats is somehow moral or legal. It's not our ocean, everyone in the world is entitled by the law of the sea to sail under innocent passage to anywhere they want to. I am so sick of this whinging about boats and leaving refugees to rot or die in Indonesia.

Major party politicians have for years been demonising asylum seekers and calling them 'illegal immigrants'. It is not illegal to seek asylum. Our major political parties have been acting illegally by bribing our near neighbours to detain these desperate people. So what are we to do about it? Vote for minor parties...

I’ve heard a lot of fatuous things from both major political parties over the years about offshore processing. But last night’s statement by Labor’s Richard Marles takes the cake. Marles told ABC Lateline: ‘The agreement that we signed with the Government of PNG was for 12 months and that's because we fully expected that the vast bulk of those people on Manus Island would be processed and resettled within that period of time. We never saw Manus Island as a place of indefinite detention where people would be languishing three years later as they are now. And the predicament that we find ourselves as a country in now is to do with this - with the failure of the Turnbull Government in finding resettlement options for people both in PNG and in other countries.’ The Rudd Government of which Marles was a member had no commitment whatever to finding resettlement options outside PNG for proven refugees held on Manus Island. Neither did the Abbott government; and neither does the Turnbull government. Having written the cheque, our governments of both persuasions have seen the ultimate resettlement of these people as a problem for PNG. When the House of Representatives voted to approve the designation of PNG as an offshore processing country on 9 October 2012, Adam Bandt for the Greens proposed an amendment calling ‘on the government to put in place a 12 month time limit on immigration detention in Papua New Guinea’. That amendment attracted two solitary votes – that of Mr Bandt and Andrew Wilkie. (Hansard, p. 11657) Give me a break. Both major political parties knew in their bones that the arrangement on PNG would last much longer than a year, and the last thing they wanted was any sort of one year time limit. After all they wanted to keep sending a message to people smugglers. It's a bit hard to send a message to people smugglers if all your offshore facilities are empty! Both sides were committed to bankrolling detention on Manus Island for as long as it might take for detainees proved to be refugees to decide to try and settle in PNG or try their luck elsewhere, including back home where they faced persecution. And now the protracted detention has proved to be unlawful. It’s time to get the cheque book out again but this time to pay the damages to the asylum seekers, or more sensibly to bring those asylum seekers to Australia and start again.

Frank: Again you have been ahead of the game and no one listened. Well they didn't listen closely enough. Nice side step by Minister Ruddock earlier and he should have known the law of PNG - he was around when the Constitution was drafted by DFAT and AG's in Canberra and adopted by the people of PNG in 1975! Your suggestion of the detained refugees having a claim in damages for wrongful imprisonment is stretching it as I can not remember any case in PNG where a citizen or resident sued under their constitutional rights and received an award of damages. But I look forward to making the precedent. In my last appearance before the Supreme COurt of PNG, Sir Buri Kidu gave very short sahrift to the appellants's argument of his right to remain in government owned property after he had lost his position as a Minister of the Crown. Keep advocating Father!

Totally agree with you. Can the international court at the Hague do something to fix this?.

I agree with Frank Brennan 100%

The Australian government has been kicking own goals. The 'cavalier disregard of human rights' is not detention per se but deficient care within detention. Detention is not synonymous with mistreatment, as our prison system can attest, most prisoners not being mistreated. And custodial accommodation is not synonymous with detention. The fact of being free to wander about a small Pacific island by day is not detention because the island is small and there is nowhere to go. Nauruans have accommodated their 'detention' for centuries. It's in part a matter of the quality of your time outside the walls and, in this respect, both the Australian government and the Nauruan community could do more to provide opportunities that make the 'free' time educational and recreational. The concept of detention flows from the principle of deterrence. Does anyone have the godlike foresight to know that the abatement of boats is a permanent, not a temporary, phenomenon, or are all our policies short-run? What is shameful is the country's seeming incapability to do anything significant on its own. Other nationals have to make our submarines and detain our detainees. We live on takeaways because we don't know how to cook?

With regard to the situation on both Manus and Nauru, how can Australia stand proud in the international community.We have just stopped short of capital punishment for these poor detainees. "Advance Australia Fair"??? More like "Advance Australia Inhumane and Irresponsible". ( It doesn't rhyme, does it!)

There is only one solution to this issue : let the asylum seekers land. Eureka Street readers in Melbourne should come to the demo being organised by the Refugee Action Collective at the State Library next Saturday at 1pm .

Great article Frank, thank you. I have been shocked and ashamed over and over at the unAustralian attitude of this and previous Australian governments over the past decade regarding refugee asylum seekers. We Australians have been very fair for the Indo-Chinese refugees after the war, yet not for the current refugees. This is simply a racist attitude and we Australians must rectify the situation right now . Refugees must be treated in a humane way according to UNHCR systems and those waiting to become members of the Australian community must be interviewed and those who fit the criteria (which must be fair) must be sent to Australia immediately. As usual Australians will respond positively and assist with re-settlement.

My position is clear: I think the asylum seekers on Manus Island should be brought to Australia and processed. Those who are refugees should be permitted to stay in Australia.

Neither the Liberal Party nor the Labor Party agree. The race to the bottom and the race against time is now on as the country prepares to go into election mode on or about 12 May 2016. The Labor Party is adamant that the Rudd government’s MOU with PNG was posited on the firm understanding that the processing and resettlement of the asylum seekers would be done and dusted within 12 months.

So here is my proposal for consideration by the major political parties.

Before the Turnbull government goes into caretaker mode, it should move the asylum seekers to Christmas Island for processing. To move more than 850 single men to Nauru would be highly irresponsible behaviour, no matter how much money we were prepared to offer Nauru.

The government should guarantee that all refugee claims for this cohort would then be determined within 12 months, ie by 12 May 2017. The government should also guarantee that all those proved to be refugees will be resettled within 18 months, ie 12 November 2017. For many of these people, that will have meant a five year delay between initial detention and resettlement.

The Labor Party should then endorse the plan so that there is bipartisan commitment to the plan before the election commences. Both parties need to accept that they were in government when their ministers knew or ought to have known that the initial MOU was posited on illegal, unconstitutional activity by the Government of PNG. If resettlement places cannot be provided for any proven refugees in this cohort by 12 November 2017, there will be no option but to resettle them in Australia.

Thank you for explaining the finer detail in this horror story Frank.

Thank you for your humane and judicial remarks. I even agree with the last paragraph where you state the boats will stay stopped if defence and intelligence services do their job in cooperation with Indonesian authorities. You could have added that they will further stay stopped if we direct the money we spend on incarcerating asylum-seekers in tropical concentration camps on a proper regional resettlement plan with the UNHCR in conjunction with our regional neighbours, in good faith. Though I think that is the blindingly obvious thing to do, it's unfortunately apparent that we do not choose to do it. Why isn't diplomacy at work on that one?

So who broke the law? The PNG government who agreed to take the asylum seekers for a fee, contrary to the law of PNG it seems, or the Australian government which I presume was not breaking any Australian law.

Thankyou Frank for this trenchant contribution. Along with Sean Dorney's "The Embarrassed Colonialist", and what he has penned today in relation to the PNG judicial affirmation of its own constitution - http://www.lowyinterpreter.org/post/2016/04/27/A-constitution-Papua-New-Guinea-can-be-proud-of.aspx - reminds us of our unavoidable regionally. Since 1992 and the Mabo judgment Australia has not just been adjacent to Melanesia; the Torres Strait Islander flag is an official Australian flag and it can be seen flying from Town Halls across the country. This "flags" (sorry) a profound development in our emerging "identity" in our part of the world, if only we would face it. Thinking about this involvement in Melanesia puts the silly nonsense of our "check book solution for asylum seekers" from both "sides" of politics in a somewhat different light. Are we politically serious about our own state-crafting, let along in the promotion of effective governance in our neighbours? Thanks again. Keep up the good work.

Roy Chen Yee, you forget that in our tradition of law, detention of any kind is something that only a court of law should be able to command and that only after a trial in which the accused has been found guilty or where bail is denied. The only exception is where someone is arrested, in which case s/he must be brought before a court promptly. This people detained on Manus Island and Nauru have never been charges, never been brought before a court, never been convicted of any offence, but have been forcibly detained and moved around the world without their consent as a result of executive fiat, not by any judicial process. If those people can be detained in that way it's a short step to you and I being liable to being detained in a similar way.

It seems unfair that the refugees/asylum seekers should lay aside their legitimate pursuit of compensation in order to remain in Australia. They have been treated so unfairly for so long. The most important issue, though, is their physical and mental health. Having been tortured for years, they must have free access to experts to help them adjust from the hell holes they have been forced to live in to the conditions of life in Australia. May their future and that of their children be brighter and fruitful. They have suffered more than enough.

482 of the people on Manus are already deemed to be refugees, the rest have been jailed for 3 years already. Frank why on earth do you think they deserve another year in jail on Christmas Island for no process.

Loud applause once again for Frank Brennan. And think how proudly at the Games we will sing, "we've boundless plains to share". Shame

We should never let hard hearts get the better of us. Thanks for your even-handed approach, Frank.

Thanks for making it all so clear Fr Frank. Australia needs quick (max 3 months), fair processing. During that time we need good accommodation and health care, treating desperate people with respect. No children should ever be in detention. Also a transparent system of turning back boats and detention. And finally, we need to take our fair share of refugees. I know many families who would take them in temporarily.

Every action has its consequences At the same time as we are wondering why we have young people in our society who are vulnerable to being radicalized by certain unrepresentative and fundamentalist religious elements, we are excluding and marginalizing and treating inhumanely fellow humans who have asked for our help. I believe that such exclusion and marginalization of people ultimately brings potential consequences that need to be considered as a matter of hard reality even if not out of humanitarian concern. As Pope Francis said in Evangelii Gaudium: 'When a society – whether local, national or global – is willing to leave a part of itself on the fringes, no political programmes or resources spent on law enforcement or surveillance systems can indefinitely guarantee tranquility…. Just as goodness tends to spread, the toleration of evil, which is injustice, tends to expand its baneful influence and quietly to undermine any political and social system.. If every action has its consequences, an evil embedded in the structures of a society has constant potential for disintegration and death.' These words are as applicable in relation to the treatment of those fleeing humanitarian disasters, including persecution, as to anything else.

I agree 100% with you Father Frank. Many of the refugees , as was the case with the Indo Chinese refugees in the 1970's, were/are the victims of idiotic Western policies which resulted in conflicts in their home countries. For a person to leave their homeland must be a horrific decision. I have no doubt should the cause of their leaving their society be removed, that they would wish to return home. When I was overseas in the UK myself, I keenly missed home even though I was in a society similar to my own - yet I knew that ultimately I was coming home. These people have no home! Australia's policies on immigration has been quite selfish throughout its history. We are more than happy to bring people here when it suits us and is to our advantage, but very rarely have humanitarian reasons been the motive. I suspect that the late Malcom Frazer's brave decision with the victims of the Vietnam War which we were part of, is the outstanding exception. We should prosecute the powerful people behind and financing the people smugglers, not punish the desperate asylum seekers who have suffered so much for nought!

"And have no fear, the boats will stay stopped provided only that our defence and intelligence services do their job in cooperation with Indonesian authorities.", says the author. I don't think this is right; the boats will start again unless we engage seriously with our neighbours and unless we behave with generosity on the part of the Australian people and with courage and integrity of the part of our politicians. Lost cause?

The decision confirms that the asylum seekers and refugees on Manus Island the subject of Extraordinary rendition by Australia for the purposes of deterring others from seeking refuge in Australia

Well, a vigorously informative article for which I am grateful. I wonder at the 'grandfather of the House of Representatives' metaphor and would point out the necessity of maintaining vigilant pro-activity on the illegality of ageist Reference. ‘ … warehousing asylum seekers offshore.’ is as scoriating and piquant as need be. ‘Needless to say’ betrays what? Perhaps a thoroughgoing disrespect for the ‘grandfather’s’ opinings per se? Perhaps presumption of the Reader’s knowledge of Constitutional Law; even the Australian Constitution? The clarification in the next paragraph denies the latter. So, the learned writer in haste scripted-out a stammer? Australia would not be ‘allow[ing]’ PNG to return to the rule of law – needless to say. Its judiciary unanimously compels legislative restriction. A sensible Australian taxpayer ought to object to the necessity of an ‘inevitable’ royal commission; and most certainly have Australia proceed with administering such an agreement as suggested in the article with 1113 human beings, enumerated. No loop holes? The writer would have no fear of un-stopped boats. And what of the huddled masses yearning for liberty? Fleeing untimely death? How are they yet to be yielded erudition thus option, so freedom … housed down, employed, protected and righteously dignified?

I do not understand for a nano-second why so many middle aged white men think stopping boats of refugees is good, desirable and doable when under the law every person has the right to innocent passage on any water way in the world. It's a ridiculous statement to claim they are stopped, is Australia in some demented bubble that they didn't notice that 50,000 Rohingya fled on boats and 1 million got to the EU on boats? It's not illegal or immoral or wrong, it's plain commonsense that people can't swim that far and if airports are closed to refugees they have to leave somehow. Then we have the dementia about so-called smugglers when under the smuggling and trafficking protocols we ratified there are no people being smuggled to Australia but Australia is trafficking humans to PNG and Manus by force as the PNG Supreme court noted. It's time we grew up, stopped whining and accepted that people are allowed to come and seek asylum - the alternative is we are committing multiple genocides through racist attacks on victims of war and persecution. Heaven help us if we are ever invaded, Aussie men are cowards.

FR.FRANK, for Prime Minister, or Gov. General, or maybe Pope. Yeah, Yeah!!!!!!!

In February when Visiting New Zealand, Malcolm Turnbull rejected New Zealand’s offer to take up to 150 refugees a year from the Australian caseload (whether onshore or offshore). Again last week when the PNG Supreme Court struck down the Manus Island arrangement, Turnbull rejected the offer saying, ‘Settlement in a country like New Zealand would be used by the people smugglers as a marketing opportunity.’ Yesterday, Mr Dutton told the Parliament: ‘We will work with the Nauruan authorities and with the PNG authorities to provide opportunities for people there who have been found to be refugees—in the case of PNG, to integrate into Papua New Guinea society, or, on Nauru, to either stay on Nauru or move to Cambodia. We are working on third-country settlement options, but we need to structure any arrangement in such a way that it will not create a pull factor or an opportunity for people smugglers to get back into business.’ This just shows how irrational and callous is the present Australian policy (which enjoys bipartisan support in the Parliament). When John Howard instituted the first Pacific Solution he was only too happy to accept New Zealand’s offer with 131 asylum seekers from the Tampa being dispatched immediately to New Zealand. Now we’re being told that proven refugees who headed to Australia by boat could never be offered resettlement in a country like New Zealand. The only options left are not options at all, and the government knows that. This probably explains the exasperation of UNHCR which has now said: ‘There is no doubt that the current policy of offshore processing and prolonged detention is immensely harmful. There are approximately 2000 very vulnerable refugees and asylum-seekers on Manus Island and Nauru. These people have already been through a great deal, many have fled war and persecution, some have already suffered trauma. Despite efforts by the Governments of Papua New Guinea and Nauru, arrangements in both countries have proved completely untenable.’ So we are to set into an election with the government in caretaker mode having no policy solution whatever for the 850 men being detained illegally in Papua New Guinea, and with the Labor Opposition offering no alternative to this ‘completely untenable’ arrangement. It’s a disgrace. Mr Turnbull thinks refugee advocates are being misty-eyed. That’s better than being willfully blind. See http://unhcr.org.au/news/unhcr-calls-immediate-movement-refugees-asylum-seekers-humane-conditions/

Since 2013, New Zealand has been offering to take 150 refugees per annum from the caseload of Australia's offshore component. That would clear the backlog of proven refugees presently being held on Manus Island.