Vivian Solon

Transcription

Well, good afternoon, everybody. It's a great pleasure to see so many of you here today to, to to meet George Newhouse. We're very privileged indeed to have such a fine litigation lawyer with so much experience coming in to talk to us about his recent case with the Australian High Court. The CPCF case, or the one that I always know as, or describe to myself as the, as the 157 Tamil asylum seeker case. May I, before I begin acknowledge the traditional owners of the land, on which we meet, the Gattical people of the Aoryn Nation. It's always a great pleasure for me to recognize those traditional owners in this rather fantastic building that we have in which to do our work here at the Australian Human Rights Commission. Now, before I introduce, George, I, I might just make a, a point that he's made himself in, in, in, in a recent op-ed that was published. And that is that commentators often look at court cases like a football game, with winners and losers. But this decision, the CPCF case is much more nuanced than it appears on the surface. And that really is the point of today's rights talk. Just to get a clearer view of exactly what did emerge from this case because the lawyers amongst you will know very well that when you actually sit down to read a decision there's much more behind what the court is actually saying than simply a numerical counting up of how the final result emerged. But I thought that I might give just a little bit of context to, to what it is that George is going to be talking about. And I really would like to begin as I have done a number of times so far this year, and that is that you'll know that this year is the 800th anniversary of the Magna Carta. And buried in the middle of that Magna Carta, that John King, King John was was really forced to sign by his rebellious barons in 1215. Is the provision that no free man is to be taken or imprisoned or deceased of his liberties, saved by the lawful judgment of his peers or by the law of the land. And that is an ancient core principle that underlies pretty well every legal system, but one of course that we're very familiar with. Well, some time ago before the case that George is about to discuss, the high court considered the fundamental right not to be detained arbitrarily. In a case described as plaintiff S4 against the minister of immigration and border protection. And the story was, was pretty typical. The plaintiff has arrived by boat in Christmas Island. He was stateless and had no visa. He was detained for more than two years under the Migration Act. And as an unlawful non-citizen, was barred from making an application for protection visa. He appeared then to be stuck in detention indefinitely. And in a unanimous judgment of the High Court of Australia, that's been surprisingly little discussed. A unanimous, rare unanimous discussion, decision of the Court. The court said that the migration act does not authorize the detention of an asylum seeker at the unconstrained discretion of the government. Rather an alien whether in Australia lawfully or not, is not an outlaw and can not be detained other than in court in accordance with the law, be what the court did. And I won't go through the analysis, but it's certainly important to read. Was that the minister had an obligation under the act to either deport him, which he wasn't going to do, because he was a refugee or make a decision to grant him a visa. But critically that decision, as to whether or not he could be allowed to apply for a visa, said the court. Must be carried into effect as soon as is reasonably practical. In other words, there's some kind of a time limit to the amount of time for which a person can be detained and that decision will depend on what the court of the day happens to think is a reasonable time or a practicable time. But one of the aspects of the decision that was particularly encouraging was that the court said that if the minister does not make the decision within a reasonable period of time,. Then the court will be quite prepared to use the writs of Mandamus. The constitutional writs to require that a decision is made. Now that decision got very, very little publicity, but it's actually one which moves the law. In a very interesting direction that there cannot be arbitrary detention at the discretion of the minister, but that the minister may act only within the terms of the legislation, in this case the migration act, and a decision must be made within as soon as is practicable. Now, the next case, and the one that George is going to talk about the, the 157 tunnel asylum case is a case where at least one of those issues was to de, to determine what would be a reasonable or a safe period of time in which to hold a those Tamil asylum seekers. Well, I can't think of a better person in Australia to be discussing this issue with us than an extraordinary litigation lawyer that George has proved to be. He got his law degree in New South Wales, and he practiced as a, as a, as a backing finance corporate lawyer, an executive whirl with JP Morgan's New York office. He works within capital markets with Clifford Chance and then returned to Sydney where he became an accredited mediator a mediator. He is currently corporate counsel for Surry Partners Lawyers where he specializes in defamation, negligence, property, finance, and planning law. But he's also special counsel at Shine Lawyers, where he heads up their spacial justice practice. He's also the editor of the laws of Australia aborigines and tourist and tourist trade islanders civil justice issues, and the, George was also invited in 2008. You'll remember those heady days of Captain Rod's summits he was invited to be part of that summit. As somebody with a recognized background in indigenous rights. George has had an extraordinary career in litigation. He's represented Vivian Solon who was deported from Australia to the Philippines, Cornelia Rau, who was detained in an Australian detention center for ten months, and the Sudanese Darfurian community. And many others acting for just about every group of asylum seekers coming into Australia to insure that they are treated fairly, according to law. He's represented the survivors and relatives of those who died in the Christmas Island boat tragedy. And represented the next of kin of one of three suicides in Villawood before the New South Wales coroner. He has a, a, a record of work that deals not only with asylum seekers, but with homosexuality, the general abuse of powers, and he's, he dealt with a marvelous case, that'll be interesting to hear a bit more about, but perhaps we haven't got time. The act of the Endon family in their efforts to have their claim that the painting Lady With a Fan by Gerard Tabousch was stolen from their grandfather, Max Endon, by Nazi officials, and this was then recognized with George's work by the National Gallery of Victoria. So he's had a very, very wide ranging experience in the law, and it's really a privilege to have him here today. To talk about his particular experience in the litigation in of the CPCF case against the minister for Immigration and Border protection. Please welcome him, thank you. [APPLAUSE]. >> Thank you professor. I'd like to also acknowledge the traditional owners and thank Professor Treaks for inviting me here today. I've also brought with me Emma Stevens from my office. Emma was the, the backbone of the case and I've gotta hear the support just in case I get asked any hairy questions, I'll refer you directly to Emma. That's not true, Emma, but I'm, I want to acknowledge her hard work. I couldn't have done the case without Emma. And Emma and I are very fortunate to be backed by Shy Lawyers. They they were very quick to come forward, and allow us to act in this, in this very important case. When I was a boy I went to see this movie at the theater, at the cinema. It was a movie called The Voyage of the Damned. And it lasted 30 days and you'll remember it as long as we live. And I did it's a story about 900 who lived Europe on the S.S, and those refugees were transported from Europe to America. And when they were not allowed to disembark in America they went to Cuba. And they rotted on that vessel at, in Cuba for some time until ultimately they took them back to Europe. And as a result around 250 of the 900 on board are said to have perished in death camps. So well it's quite interesting I mean having looked this up, this video up, for the purposes of, of my sites. But I must say, the subheading really did resonate with me. And if you take the voyage of our 157 it gets. It lasted about 30 days too. And I'll probably remember that as long as I live too. So what were, what was the message that came from these poor people on the on the S.S St. Louis. After the war, after World War II, the world got together and said, this should never happen again. And they passed a series of human rights conventions and treaties, one of which was the refugee convention. And that convention was to ensure that the situation didn't happen again. But what, the situation in Australia is that and this is a finding of Justice Gidlea, and I think he summarizes the courts view quite well. Nothing in the scheme of the act, and this is the Maritime Powers Act, which I'll tell you a little bit more about, supports an implication which would make the validity of the exercise of the powers conditional on the observance of all applicable international law norms. So, the judges are saying you don't have to worry about international law norms at all. The exercise of the maritime power is not conditioned on observance of Australia's obligations under the Refugee Convention. The covenant on civil and political rights or the Torture Convention. Pretty clean. So let me just run you through a quick timeline on what happened before I get into the, the law. And the decision and what might come from the decision. In about, on about the 13th of June last year, a boat leaves India with 157 Tamil asylum seekers on board. And about two weeks later, they end up off Christmas Island, and they're asking the Australian Maritime Safety Authority. For assistance, because they're taking on water and they're in trouble and border protection goes to meet them, that's the ocean protector. They, they intercept the vessel and they take people on board, because the boat is sinking, or it's certainly in trouble. The National Security Committee of the Cabinet then meets on the first of July, a couple of days after they're intercepted. And a decision is made by the cabinet committee to send the detainees to Sri Lanka sorry, well actually to India. But we were uncertain where they were going when we found out, but apparently they decided to send them to India. The Ocean prot, pro, Protector then set sail for India for a ten day voyage. They'd been on a boat for two weeks, getting to Australia. Then they're taken for another two weeks back. Scott Morrison, during this time, refuses to be drawn on the issue, says it's an on water operation won't tell anyone anything about what's going on. Then we find on the 6th of July that there's a boat, a, a, the day before we find out about 157 Tamil asylum-seekers, we find out that 41 Sri Lankans, allegedly single ladies have been returned to Sri Lanka. Now, I've heard of a lot of things, and a lot of bad things that go on in our migration policy. You've got the hell holes in the Pacific that the president has told us a little bit about, in particular in relation to children. But I've never heard of a government actually returning asylum seekers back to their persecutors or certainly their alleged persecutors. This is the first time. I don't know if you know of any, but when I was approached by an advocate, a refugee advocate who had actually been speaking to people on board. The the vessel that we ended up acting for I was horrified, because I'd seen the day before a group of Sinhalese allegedly, or certainly Sri Lankans return back, hand it over to the Sri Lankan military. And then arrested and charged on arrival. Now, you can't say it's safe to send these people back to Sri Lanka, if they're actually, immediately all rounded up by the police and charged on arrival. And God knows what happened to them after that, we don't know. But we were instructed, and we put together an urgent, an application for an urgent injunction. And Justice Crennan granted us an injunction to stop the 157 asylum seekers from being returned to the Sri Lankans. And, instead of litigating the point, the Government came back the next day and said to us all right we won't send them to Sri Lanka. We didn't know where they were sending them, we didn't know how many were on board, we didn't know anything. They were being held incommunicado, and they had been for over two, or probably three weeks by that stage. Coincidentally, Scott Morrison turns up in Sri Lanka the next day, handing over boats to the Sri Lankan Military so that they can intercept Sri Lankan asylum seekers, instead of us having to dirty our own hands. So there he is shaking hands with former president and handing over some Australian Naval vessels. While the, while all this is going on the clients are, well sorry gonna say it again, start again. A number of the leaders or family heads have been taken aside from the rest of the group, and they are being trained on how to drive, or navigate, one of these little boats. Now, they're being trained by naval officers on a boat without the English language skills. And I presume none of the from what we know that none of the officers had Tamil-skills, Tamil-speaking skills. So they're being instructed on how to navigate back to India. In these little boats. Also while they're being held there, the men and women are separated into cabins like this. There's no windows in these cabins. And they're being held in those conditions for 23 hours a day. They get two hours outside of the, their cabins okay. Finally on about the 23rd of July, this is more than month after they set out from India. The government gives up on trying to negotiate with the Indians. And brings them to the Cocos Island from where they are transported to Austra, the Australian mainland. Now this is the first vessel that has arrived in Australian waters and first group of asylum seekers that arrived on Australian soil since Abbott government and the ministry goes on a rampage. It's blemished his record. They tried to keep him away as long as possible so that their own blemished record would remain unscathed. But the minister then goes on the offensive, claims that they're economic refugees. How he knows that, I don't know, there is no processing of them at sea. From what we can tell so how he makes that statement I don't know and it's certainly not what we're being told and we are in the process, while this is going on behind the scenes. Trying to talk to the client, which is very difficult because we're getting limited access, and also trying to negotiate with the Indian High Commission because. We think that it might be a good idea for our clients to speak to the Indian High Commission, because when they realize the choices, India or Nauru, never to set foot in Australia. They might want to exercise that option, but we didn't get the chance. The minister in the middle of the night, removed our clients to Nauru on the ostensible ground the the lawyers had told the clients not to talk to the Indian high commissioner. This is not true. Quite the opposite we would not have told the clients to do that. We were exploring all options and I'm not telling you any takes out of school but. It, it became public knowledge at the time that we had not told the clients not to speak to the Indian authorities, but the minister wanted to-. Disappear them anyway. So they, they then, they were disappeared to Nehru and they remain there to this day. And soon after the high court sent the matter down for hearing. Now, in order to understand the legis, sorry, in order to understand the case, you need to know a little bit about the legislation. The Maritime Powers Act, is es, establishes a flexible regime to allow maritime officers who are normally naval, customs, or police officers, or others, to prevent contraventions of Australian Law. And it allows them to intercept vessels, board them, search them, detain people on vessels, to take them to another place and leave them in a safe place. And, you can see from that, that the powers are very forceful, they're compulsive, and they adversely affect individual rights and they restrict liberty. These our clients were kept on a boat, in detention, for a month. So by the time the case got to the high court. I'm not going to do a text rich session, but I will just run you through these, because these are critical, they're your questions. By the time the case got to the high court the essence of the case had been distilled into two questions. The first was, whether holding them in on the boat in prison virtually, in detention and taking them to India was authorized by law under the Maritime Powers Act or if the Maritime Powers Act didn't apply. Whether the ancient powers of the king which are vested in, the Queen, which are vested the, which invested in the executive, still applied and whether they could order the expulsion of our clients from Australia. And whether they either the act or the executive power allowed you to do these things, if the decision maker hadn't considered reform obligations. In other words, whether they were going to go back to a place where they could be persecuted directly or indirectly. And whether there were even arrangements in place for them to be disembarked in India. So those were the ques, that was the first question. And then, the second question was whether it was unlawful to do all that, when you didn't accord any procedural standards to the plaintiff or the other 156 people on board. Clearly you were lacking the mark, clearly you were taking them to a place where they may be in danger of harm or persecution, so surely, you know, we argued, you're entitled to put the case. Well, the court found in a split decision that a maritime officer could lock you up and take you to India. Three judges said they wouldn't have, they felt that it was unlawful to take clients to India when there was no certainty that they could be unloaded there. So, we nearly got up on that point but pretty much all the court felt that you could do it without considering issues of reforment, even the ma, even the three judges who felt it was unlawful did not find that the Australian government had to take into account its treaty obligations. And also, this was a specialized point, but simply following a chain of command. In other words, the National Security Council made the decision to take them to India, and the officers on the boat just did what they were told, and they found that, that was legal in the circumstances too. So the only issue on which the judges really differed, was whether you could actually set out for a two week joint and hold people to a month, trying to get them into India when there was no chance of, virtually no chance of getting them there unloaded in India. And in fact, they couldn't, they had to bring them back. So the court also on objection number three, the court also found that there was no obligation to provide procedural fairness. They said these are powers that are exercised on the high seas in kind of emergency situations, there's no time to set up a tribunal or our people to have a voice. Although, I will talk about the nuances a bit later and if, and point four is if it was never unlawful, you know, damages flow that's, that's a very minor point. I think point number two, I've made up on the screen is quite interesting this ancient power of the executive to expel aliens. It's a power that has been exercised by kings and, in the past. I'm not sure whether any queens have done it but certainly it's a very ancient power, hasn't been in, used in hundreds of years. Two judges discuss this issue and they were both opposed to each other. Justice Kiefel said that, that power had disappeared and it was now vested in parliament, only parliament could make laws to expel individuals, not Tony Abbot in the National Security Council. However, the contrary view was expressed by Justice Keene. He felt that, you know, it's a, it's a very important power for every sovereign nation, and the executives should be able to exercise that power. What's interesting, is it, the ghost of Roddick and sort of looms large over this decision because in that case, which was a federal court case that never got to the high court. Just as Fran Chesy then was, he, he's now the chief judge, said that the power existed, that was how the Howard government got to deal with the tamper boat passengers under executive power, because in those days, there was no Maritime Powers Act. Now, this court was very silent on that point. So five out of the seven judges chose to keep their mouths shut. And it's still a very live issue, and of course, we had the embarrassing situation of putting to the court that. Justice French was wrong, so wh, that, that's a point that, a constitutional law point that's yet to be determined. So all that as, as the President said, I think the decision isn't as simple as four three. I think there are some silver linings in the decision and there are some nuances that are worth discussing, so we start with this negative principle, as expressed so eloquently by Justice Kane. If we, if ever I want to find a point that's against international law, I go to Justice Kane because he expresses it exceptionally well. He says, Australian courts are bound to apply Australian statute law, even if that law should violate a rule of international law. International does not, international law does not form part of Australian law until it's been enacted in legislation. It's very clear. Very clear. So what it was, so where's the silver lining? All right. The Maritime Powers Act that the government spent a lot of time manicuring and amending, if you recall last year, late least year they got Ricky Muir in the senate. Senator Ricky Muir to pass this legislation, this omnivious bill which actually amended this piece of legislation as well, in the, in the, in the chance that we had won. But, the legislation says that you take, you've got the power to take someone and put them in a place that's safe. So, what the court did was they ramped up the meaning of safe. Well, I mean, safe's a pretty clear word. they said a person cannot be safe in a place if the person cannot be safe in a place, if the person is exposed there to a real risk of harm for any reason, any reason, including but not limited to a reason which would give that harm the character or persecution within the meaning of the refugees convention. Yes so, they're still prepared to look at the refugees convention, but only in the context of safety. So I think the court kind of I think we have a very timid court. They're not prepared to impose international law, unless it's enacted into Australian law. But, they are prepared to say, well, you wrote this law. If it says you gonna keep people safe, it includes concepts of persecution, within the meaning of the refugee convention. So, I think that's a nuance that's quite positive. So, the question you have to ask yourself is, we got an injunction to stop the government from sending these asylum seekers back to Sri Lanka. Would the government be empowered under the Maritime Powers Act to send people back to Sri Lanka? Now, it's a question of fact. But I argue, that they would not be empowered to do that. It would be unlawful, because the power is to take them somewhere safe. And even in this decision, the courts, a couple of judges, a, a number of judges refer to Sri Lanka. Justice Cronin, doesn't refer to it by name but says the limitations in the act make it plain. That the commonwealth is not empowered to take someone in the plain disposition to any place on the Earth's surface. And Justice Kiefel says, the fact that plaintiffs, is a Tamil would in itself be sufficient to alert maritime officers to the likelihood that he, thought that our client was a he. They claim to fear persecution in Sri Lanka. So, the judges are, I think, sending a very clear warning to the government that yes you have the power to send them to India because India was, safe relatively but it, you know, your power is, isn't unlimited, it is circumscribed. And I think what's much more controversial, is whether the governments policy, a turn back policy of putting people in these red boats, and that's a little exaggeration is safe? And if it's not safe, I mean, and it, it, it's patently unsafe. To put men, women, and children in a vessel, navigated by someone who's untrained and told, just drive that way, and you'll get to Indonesia, or India, as the case may be. So I think that this case does open up a challenge. To the turnback policy. I've got a couple of quotes but I, I've essentially evalu I've essentially summarized them, but really, the, the top point, is that, sending someone that, somewhere that's safe for the person to be in that place is evaluative. It involves a risk assessment on the part of the maritime officer or those directing them. And, I think you could easily make a case to the court that putting someone in a red boat, a child in a red boat navigated by someone, who has no navigational training, doesn't know what they're doing, is not safe. So that's another silver lining, perhaps. The ability the courts said there was no procedural fairness to be allowed on board the vessel under the Maritime Powers Act, but, they did say in order to determine, whether a place is safe, you have to know something about a person, you have to know something, you know, if they're, if they're an Iraqi or an Iranian. You might not be able to send them back to Iran. If they're Sri Lankan, you might not be able to send them to Sri Lanka. You need to as, in order to do the evaluation of the risk, you need to know something about them. So the court was not prepared to give you not you the individual who is detained, a full right of procedural fairness, but they said, you can not make a decision about someones safety without knowing something about them. But and, and, Justice Grey who summarizes, what I think work, summarizes the discussion, he says that to be able to be satisfied that a place is safe. An officer might need to consider the individual circumstances of the person. But that will not necessarily be so in every case. The opinion or assurance that, that worries me. The assurance of other persons, with apparent knowledge and authority might be sufficient. So you know the officer might say, well Tony never told me. Therefore, he's, he's in authority. He's got apparent knowledge and therefore that might be sufficient but it's arguable. The other point, which is the same point that the president raised earlier in this is, once again they raised this point, about the term of detention and the purpose of it, and how long you can keep people in detention. So it's a thing that keeps coming back. And it's not patently obvious from the decision. That here's Justice Geiger, he says, I've come up with a statute which au, which authorizes executive detention, must limit the duration to what is reasonably, reasonably capable of being seen, to be necessary to effectuate and identified statuary purpose which is reasonably capable of being achieved. It's the same theme as this forum, and I think the government, sorry the court is hidden at some stage for clash with the government, hopefully. Over indefinite detention. You can see it in S4, you can see it, they, they keep saying it again and again. Now of course this was a four week detention and it was found to be reasonable in the circumstances. So even with these comments, the court are prepared to allow detention, although three judges felt this detention wasn't lawful. Three judges out of seven, said that it wasn't lawful to take them to India and detain them and lock them up during that time. So, we're getting close and even justice the chief justices. At the, and this is based on the same principal. A decision to take a person to another country, would not be valid, would not be lawful if it were known, when the decision was made, that the country was not one that which the person could be discharged. And, that there was no reasonable prospect that, that, that would change. So, arguably Iran does not accept people back asylum-seekers back into its borders. It would be a pointless voyage to take people via the Caspian Sea and try and leave them in Iran. And I would argue Justice French's position, that, that would be in invalid exercise of power. The government may still argue. Well, we're allowed to negotiate, let us try to negotiate and, and three judges didn't accept that in this case. It would be a question of fact whether they would accept it in any other case. And that's really it as far as my review of the case goes but I'm very happy to answer questions. >> [INAUDIBLE] My question of basic human rights if, if we consider, all the European-dominated governments outside Europe as aggressors, all of you, and all of your law are invalid, not applicable. >> Well, that's one view, but I don't think the High Court would agree with you. >> Who cares about High Court? High Court itself is invalid. >> [LAUGH]. Why you looking out I'll tell you look. >> No, no. I don't disagree with you, but I'm a lawyer so buy into the system so. There is a case by the way, just for your information, a group of aboriginal people did run a similar argument that white man's law didn't apply, and I think was in the 80s and the court wasn't very receptive to it. That be any question? It's either a very boring case or I explained it very well. [LAUGH]. >> I have a question about the amendments that were made, through that legacy case looked at the end of last year. >> Yes. >> And what I suppose they mean now for the future of a case like this. So, I'm thinking specifically of the amendments which allow people to be returned even if it is in violation of our law reform. Through my publications, and how that might affect people in this kind of situation. >> Thank you, and that's a good question. And, you've reminded me of a point that I forgot to make earlier, so thank you. I think that the act actually helps my argument, I'll come back to the negatives in a minute, about that sort of boat being unlawful, because the act actually change the definition of the place to extend to a bissel. So, putting a person in a place which includes a bissel has to be safe. You have to make an assessment about whether its' safe. So, they kind of shot themselves a bit more in the foot with that and look, I, I don't think that taking. Our international obligations out of the act would make any difference, cuz if you looked at what the court was saying, they didn't consider them, either. It really comes down to safety, so until the government removes, you can tell them, send them anywhere in the world, even a place that's not safe. I think you've got those arguments. And I think that this case might have been decided differently, if they had tried to send the asylum seekers back to Sri Lanka. And the government was arguing that before the high court. I found it quite interesting. High court judges don't normally, they're not normally expansive. They try and limit their decisions to the points in question, but a number of them did say that Sri Lanka might not, this yeah India was safe in the circumstances, well certainly there wasn't enough evidence to show that it wasn't safe, but Sri Lanka might be different. So they actually express that concern in a number of judgments, and I think that there is a shot across the bow, excuse the maritime pun, but there is a, there is a shot across the bow of the government. That, that you can do things to people that because of this legislation you can't put them in their own safe place. >> Thank you Mr. Newhouse I'm not a lawyer so I just don't understand how a government can actually at the moment if someone's trying to seek asylum turn the boats back and not take responsibility with regards to looking after those people, and also. Does it also mean talking about the Tampa case? >> Yeah. >> Can, can a government of the day just change the act to suit, they, their needs or what they are trying to achieve? >> The answer to your question is sadly that in Australia we have no Bill of Rights, we have no Constitutional protections for human rights, maybe a couple like freedom of religion but. We really don't have human rights in our constitution, and therefore, the government legislation is all powerful. And, and, that's what the judges are saying in this case. That's the very sad thing about this case. I've tried to make the best of it today and, and show you the silver lining. But, it is madly depressing that our high court says. The, the law of the land, is the law of the land and if you. We actually have a racist constitution if we, if our government wanted to make a law that said people of certain color aren't allow to the work in this country, it would be legal under our constitution. And, and the reason for that I'm, I'm diverting from the from the original topic, but the reason for that is because when our, in our federation, when the states federated all these sorts of right that. A person is created equally, one has equal rights existed in the U.S. Constitution. But the Australians had seen that in operation and at the time, the Western Australian Government was trying to exclude Asian people or Chinese people in particular from the gold fields. They wanted the power, to not issue gold license, mining license to, mining licenses to Asian people. And so, that carried into our constitution in the race power. They've got the power to do anything. Not only do they not have to abide by international laws unless it's incorporated into our legislation. They can actually make laws that are racist, so. Sorry about that. [LAUGH] Oh. >> Thank you very much for that that, that description. The, it, it does help to simplify and to explain the, the some of the nuances and some of the judgments. But what it seems to me that you are basically describing is that the majority of the court felt that they were constrained by the precise language of the migration the maritime powers act and they concentrated all of their. Efforts to be humane if you like on the, the right to transfer to a safe place. >> Correct. >> So, they focused on this very, very simple idea but were still there to protect basic human interests. I guess my question is. Why do you think the high court is so reluctant to say, Parliament is not above the core principles of the common law? That, that they are principles of legality, which our Chief Justice has been in part responsible for developing. Why have they not really grasped that nettle, and said that there are core common law principles of legality detention of people that would at least moderate as a matter of statutory interpretation? What the phrase, a safe place, might be? >> Well, I, I think the court said that international norms are not part of the common law. If they were, they would have imposed them on the government. So, that's the first point you, you raise well, why isn't that, why wouldn't they impose the common law? Well, they do impose the common law. But, they couldn't find anything in the common law. To to hold the government accountable. Nor could they hold anything, nor could they, well, three judges did. Nor could four judges find anything in our administrative law, that would hold the government accountable, and nor could they find anything in the statute. Law that would hold our government accountable apart from the word safe. So your, your I think your observation is right and, and I do believe that the high court was trying to be humane. Well when you ask me why they behave in that way? I'm not in, I'm not in, I can't put myself in their heads but it's a political process. And you can see President, what happens. When you stick your neck out. Do it in a gov, with a government that doesn't like what you've got to say. So I think that, I'm not suggesting that the hard core are intimidated in any way, but it a dangerous political process that they're navigating and they are trying to. You know, make decisions as best they can. I'm not gonna speak for them. I think that there are international norms that could have been incorporated into Australian common law. There are courts that have been prepared to-. Go that far but I think in this country we have a high court that really sees their role as, as holding the government accountable but only within very limited constraints.n In Europe, countries sign up to the Convention on Human Rights. And even the English law is developed more than Australian law. We, we, we, we came from the same source but English was much more advanced in terns of us, of human rights law because they actually have human rights now, we don't. And I don't think it will change until Australians demand human rights but the problem that we have in this country is that it's not in the majority's self interest to, you know, give away rights and grant rights to minorities. And until people are prepared to fight for those sorts of rights and demand them in our constitution, I don't, or even in a bill of rights, I don't see it happening. And in fact, what we've seen is an erosion of rights. You know, you saw my image of when I was a boy what happened after the war and that's, that's, you know, scarred in my, etched in my memory. But that's far away now for a lot of people and a lot of young people don't it, it doesn't resonate and it doesn't mean anything. And it doesn't mean much to our leaders. After the war nations got together of all types. You know, communists, non-communist, everyone got together and said, these are basic human rights. And here are we in, in 2015, with legislation that says we specifically remove those rights. You are not entitled to those rights. What's happened to us? What's happened, to our humanity now I'm lecturing? >> [INAUDIBLE] >> Did that answer your question? >> Yes. >> [LAUGH]. >> It's very good thank you. >> Thank you for your talk I was wondering if you could expand on what the definition of safety is. It might be a bit of a tricky question but, I was wondering with Amnesty International Report and now the Australian Human Rights Commission Report, could narrowly be considered unsafe for some people. >> Okay this was a special case and one of the things about that is, I'm just thinking of your time, is that you don't get to argue the facts like in a normal court. Everyone agrees facts, and then it goes up the way, the only way we got this on so quickly was to a great affect with the government. And so because we were, we were arguing with them about whether India was really safe. We felt it wasn't, but the, but the government lawyers were not prepared to let us go to the high court on a special case, unless we sort of fudged that issue. And if you actually read the decision Justice Hayne and, bill, they wrote a joint judgment. They would be critical of us, both us and the government, because they said that that issue should have been resolved they saw through what had happened. But to do that, we would have had to go into a court and really argue the facts over whether India is safe or not. We would've been stuck in court for years, so the issue of what was safe or not was really determined on the basis of the stated facts, and there wasn't much there about whether India was safe. We made representations during the hearings, and the commonwealth said you can't do that because it's not an agreed fact, and we got the message through to the judges, but they, some of them used that to a little bit slipping out of, of the argument, because I said, there's not enough facts in here to show that India is unsafe. But, then there weren't, you know, there weren't enough facts to show it was safe, either. But, we didn't meet the threshold of finding it was safe. But, the words are fairly clear, the content of the word safe for the person to be in that place is evaluative you've got to evaluate it and involves a risk assessment. Now, I don't know [LAUGH] It really will depend on what those seven judges say but I, you know, I reckon if I explain to them, "look, this is what they do. They, they try and teach Tamils in English how to navigate. And then they put 50 or 20 or I don't know how many people in the hull of this little boat, and they point them in that direction they go, they're that way, or I don't know. So the, the court, the court didn't give us that much help, but that's useful because we always argue the point later on, if it happens again. >> Instruction on this, I'm just wondering what would you be thinking about next steps? Where would you be taking this? >> I think the next step is well, these two, these two images if they ever try taking asylum seekers back to their persecutors. I'll run that case and we won the injunction. So the court was, you know Justice Cronin said whoa. She didn't say whoa. But-. >> [LAUGH] >> [LAUGH] She did give us an injunction. So I think that there's enough there and also I'm waiting for one of these. It's very hard to run one of these cases, because there's only a matter of hours between people being intercepted, turned around, put on a boat, and driven back. But this is going on all the time out of Indonesia, although I don't know how much it's going on lately but I think that's the next step. Now it'd be very interesting to see whether the government tried to mend the act. Cuz they went through, if you recall they went through blood, they spilled blood trying to get that amendment. But the high court latched onto the one thing, as the president says that, that really did protect people. The only thing that the government could now is try and get an amendment through. And I'd love to see them convince the senate, that we need to be able to send people to unsafe places. Be interesting to see what, what happens. So I think that those are the next steps, I also think the next step is also this S4, and the people that are rotting, in immigration detention indefinitely because they're Asia affected, because they're Iranians, and the, they cant be returned, stateless people. I, I do think at some point this court's gonna address it and possibly overturn the decision. That's probably the next step, but that, that's, that's really the only protection that we have in our constitution. And it does, that's the Magna Carta Point in the S4 point. So I think when, when I talk about there is silver lining those are the silver lining points. In, in definite detention there might be some hope for people unsafe practices, and sending people back to their persecutors [INAUDIBLE] Is there an identified statuary purpose in putting people in mollusk and keeping them up river? Say, say that again? >> Is there-. >> An identified statute that was for which point? >> For putting people on the mollusk and keeping them there. >> Wow, that's a different question. I'll answer it in two ways, first of all I'll pose a different question whether it's legal to keep people indefinite, what's the statutory purpose for keeping them in immigration detention? Here and then I'll deal with Manna separately. Keeping them here, ostensibly, one of the points is to process them that's a legitimate statutory purpose. You can hold them while you're processing, or you can hold them to deport them. And I think the government's also saying they're holding some on national security grounds I'm not. Quite sure about that, but, so those are legitimate purposes. But how long, can you try and deport someone when they're, you know, at a certain point, I think Gaeger was really clear on this, it has to be an identified statuary purpose which is reasonably capable of being achieved. So at some point you've got to give up. Also stateless people, if you take Al-Kateb's case Al-Kateb was a stateless Palestinian. Israel does, he was born in Kuwait I think, and Israel doesn't accept back Palestinians born outside. I don't think they accept anyone back, but they certainly didn't accept Mr. Al-Kateb back so he had nowhere to go. So how could the government, have been a holding for a purpose, that was capable of being achieved? Israel was never gonna give him back, let him back in. Ultimately he was released and is now an estranged citizen. He's a lovely man Mr. Al-Kateb. But the gove, because the government realized that they were going to have to hold him forever. So I, I do think. Is for Al-Kateb, you know sorry. I think CPCF and Al Aq-, NS4 may lead some day to a challenge to indefinite detention. Nanos is a different story. Nanos, you're being held under the law, not the Australian law. So those principles don't apply in. However, as everyone will tell you here, is one of the few lawyers in this country who have fought a constitutional case on their own. There is a real constitution. This is the kind of sort of depressing thing about being a a social justice lawyer, we went to a rule where they actually do, have a constitution that has real rights. It says that you, I don't know who, who put it together. Someone, I think some hippie in the 70s-. >> [LAUGH] >> When, when there were real riots. But you wouldn't get anyone doing it now. But there are real riots and, and in the New Guinea constitution, too. And Emma went over there to fight it and say that these people aren't, there, there, there are rights in the constitution to a lawyer, there are rights to a fair trial. There are limits on how you can hold people, you have to be held, pending deportation isn't that right Em? Yep. And Justice a former president of this of, of this body found that our world it might you might have a case but we haven't reached that point yet. It might be that if the detention was indefinite. Than it would be unlawful under the New London constitution, and he left that open. But he, how long had they been there when you went there? Eight months. Eight months wasn't enough. It's just as fun to say that they weren't being held over the proper purpose. And very well done, Emma, going to Nuru. I would never do that. [LAUGH] Or menace. Thank you, anyway. If there's no more questions. Thank you. >> Well if there's not another burning question. Thank you very much, George. Thank you. >> [APPLAUSE] >> I, I, really think that, that although these are just silver linings and slow incremental moves forward, I think we are slowly. >> reaching a position at which the high court will at some stage say that's enough, you can't do this anymore. But it's a profound question that doesn't only affect asylum seeking refugees. It affects the mentally ill, those that are unfit to plead. All of those, and there are surprisingly large numbers of them, all of those who are in one form or another of executive. Detention at the discretion of the executive. And I think it's a very important, work, that that Emma and George have been doing. Now, we're very dubious of bottles of wine and pens, but we do have a very small gift. To thank George [LAUGH] very much for his for his work with us. Thank you then. >> [APPLAUSE] >> Thank you all for coming today.