Loose Language

Frank never wears a collar

This is an article by Father Frank Brennan SJ. It's posted here because it provides a clear and precise explanation of the legal status of boat people. It also clearly illustrates the careless use of language as it is applied to these people.


I have a lot of ime for this bloke. Apart from the fact that he went to the same Catholic boarding school that I did, he is an eminent jurist and a tireless advocate for the law as it applies to the most vulnerable.


The lawful presence of 'illegal arrivals' on 'illegal boats'  - Frank Brennan

Australia is a long time signatory of the 1951 Refugee Convention and the 1967 protocol. It is one of the few countries in the region to have ratified the Convention.
Neighbours like Indonesia and Malaysia are not parties to the Convention. Since the Vietnam War, there have been periodic waves of boat people heading for Australia seeking asylum.

These boat people often pass through Malaysia and/or Indonesia. Under the Convention, parties undertake three key obligations:

1. Not to impose for illegal entry or unauthorised presence in their country any penalty on refugees coming directly from a territory where they are threatened, provided only that the refugees present themselves without delay and show good cause for their illegal entry or presence.
2. Not to expel refugees lawfully in their territory, save on grounds of national security or public order.
3. Not to expel or return ("refoule") refugees to the frontiers of any territory where their lives or freedom would be threatened.

Given the precarious situation in many countries adjacent to conflict, it is not surprising that some people fleeing persecution will look further afield for more secure protection together with more hopeful economic and educational opportunities. Having the status of a refugee has never been accepted as a passport to the migration country of one's choice. Then again, the international community has never been so callous or-short-sighted as to say that during a mass exodus one has access only to the country next door in seeking protection even if you have family, friends or community members living in a more distant country.

The responsible nation state that is pulling its weight will not only open its borders to the refugees from the adjoining countries but will expect some flow over from major conflicts wherever they might occur. It is like throwing a stone into a pond; the ripples go everywhere. It is no surprise that Afghan and Iraqi refugees have turned up on the doorstep of all first world countries in recent years. Nor is it surprising that Sri Lankans fleeing the effects of protracted civil war have arrived in countries like Australia.

With the ease of international travel and the services of people smugglers, it has become very difficult to draw the distinction between refugees who are coming directly from a territory where their life or freedom has been threatened and those refugees who, having fled, have already been accorded protection, but have now taken an onward journey seeking a more durable solution or attractive migration outcome. First-world governments say they cannot tolerate the latter because they would then be jeopardising their own migration programs and weakening their borders every time there was a refugee-producing situation in the world no matter how close or how far it occurred from their own shores. This problem is not solved by drawing careful legal distinctions, because one person's preferred migration outcome is simply another person's first port of call where they thought there was a realistic prospect of getting protection for themselves and their families. The problem cannot be solved by refugee advocates pretending that it does not exist or hoping that it will simply go away. Neither can it be solved by governments pretending that all persons who arrive on their shores without a visa are secondary movers. When mass movements occur during a conflict, it is necessary for governments to cooperate, ensuring that adequate protection can be given to persons closer to their home country before then closing off the secondary movement route except by means of legal migration. When countries of first asylum are stretched and unstable, other countries must be prepared to receive those who travel further seeking protection. That is why we need a regional approach to a regional problem - attending to the legitimate asylum claims of those who end up in our region.

Under Australian migration law, all persons are classed as citizens or non-citizens. And noncitizens are classed as lawful or unlawful. An unlawful non-citizen is one who does not hold a visa. An unlawful non-citizen seeking asylum is not committing any criminal offence by virtue of their presence in Australia. If she arrived by plane, an asylum seeker will usually be issued with a bridging visa while the asylum claim is determined, permitting lawful residence in the community. If she arrived by boat, an asylum seeker will usually be held in immigration detention. She is not guilty of any criminal offence by virtue of her presence or claim. She is not" an illegal". She would commit an offence only if she were to break out of immigration detention. In a 2002 Federal Court decision, Justice Merkel had the opportunity to observe the unhelpfulness of some of the public political language used in these situations. He said:

" The Refugees Convention is a part of conventional international law that has been given legislative effect in Australia. It has always been fundamental to the operation of the Refugees Convention that many applicants for refugee status will, of necessity, have left their countries of nationality unlawfully and therefore, of necessity, will have entered the country in which they seek asylum unlawfully. Jews seeking refuge from war-torn Europe, Tutsis seeking refuge from Rwanda, Kurds seeking refuge from Iraq, Hazaras seeking refuge from the Taliban in Afghanistan and many others may also be called 'unlawful non-citizens' in the countries in which they seek asylum. Such a description, however, conceals, rather than reveals, their lawful entitlement under conventional international law since the early 1950s (which has been enacted into Australian law) to claim refugee status as persons who are 'unlawfully' in the country in which the asylum application is made."

Politicians' loose talk of "illegal arrivals" and "illegal boats" disguises the fact that most, if not all, of those arriving are entitled to make an asylum claim and while that claim is being determined there is nothing illegal about their presence in Australia. And neither should there be.

Father Frank Brennan SJ is professor of law at the Public Policy Institute, Australian Catholic University. He is the author of Tampering with Asylum, University of Queensland Press, 2003 and 2007 editions.

Why? Revisited

A phone booth - not a phone box

You may remember this post.

This is what Telstra built to replace it.

It's probably more vandal-proof, but a lot less comfortable in Winter. Calls made from this between June and August will be brief.

Graphs

Blot is fond of graphs.

I doubt we'll see this one on his blog.

(Courtesy - Pure Poison).

Butterfly

I went to the funeral of a seven year-old girl yesterday. She was a deeply loved child, with doting parents, siblings and a very large extended family.

I encountered her at school, as a child with complex impairments enrolled in a bush primary setting.

My job was to help the teachers manage her support so that she was included as much as possible in the daily life and activities in her class.

I didn’t have much to do – the class teachers and the teacher aides involved were amazing. The kids used to compete to sit next to her and to push her wheelchair. She enjoyed everything that she was involved in, and won “student of the week” on one occasion. I’m not sure who was more proud – herself or her parents.

Her health was often poor, and she succumbed last week to bronchial complications.

When a child dies, some struggle to find meaning.

In the case of this little girl, it isn’t difficult.  

The love demonstrated by her parents, her siblings and extended family, and teachers, aides and other children provided meaning for her short life.

This daily effort of love so strongly enhanced the quality of her life.

She lived like a butterfly, brief and brilliant.

One Myth Debunked

You've probably heard the phrase "they don't make them like they used to" as applied to motor vehicles.

It's probably just as well when you look at the results of a staged collision between two Chevs, one a 2009 Malibu and the other a 1959 Bel Air.

It was set up by the US Insurance Institute for Highway Safety.

The accompanying blurb explains -
In the 50 years since US insurers organized the Insurance Institute for Highway Safety, car crashworthiness has improved. Demonstrating this was a crash test conducted on Sept. 9 between a 1959 Chevrolet Bel Air and a 2009 Chevrolet Malibu. In a real-world collision similar to this test, occupants of the new model would fare much better than in the vintage Chevy.

"It was night and day, the difference in occupant protection," says Institute president Adrian Lund. What this test shows is that automakers don't build cars like they used to. They build them better."

The crash test was conducted at an event to celebrate the contributions of auto insurers to highway safety progress over 50 years. Beginning with the Institute's 1959 founding, insurers have maintained the resolve, articulated in the 1950s, to "conduct, sponsor, and encourage programs designed to aid in the conservation and preservation of life and property from the hazards of highway accidents."

A decade after the Institute was founded, insurers directed this organization to begin collecting data on crashes and the cost of repairing vehicles damaged in crashes. To lead this work and the Institute's expanded research program, insurers named a new president, William Haddon Jr., who already was a pioneer in the field of highway safety. In welcoming Dr. Haddon, Thomas Morrill of State Farm said "the ability to bring unbiased scientific data to the table is extremely valuable." This scientific approach, ushered in by Dr. Haddon, is a hallmark of Institute work. It's why the Institute launched the Highway Loss Data Institute in 1972 — to collect and analyze insurance loss results to provide consumers with model-by-model comparisons.

Another Institute milestone was the 1992 opening of the Vehicle Research Center. Since then, the Institute has conducted much of the research that has contributed to safer vehicles on US roads. At the anniversary event, current Institute chairman Gregory Ostergren of American National Property and Casualty summed up a commitment to continue what fellow insurers began in 1959: "On this golden anniversary of the Insurance Institute for Highway Safety, we celebrate this organization's accomplishments toward safer drivers, vehicles, and roadways. We salute the vision of the Institute's founders and proudly continue their commitment to highway safety."


Nothing more to say really.

Rational?

Most agencies these days have succumbed to the dead hand of corporate managerialism.

Toowoomba Regional  Council is no exception.

I went in to pay the dog's rego over the counter - something unusual, as I pay most bills on line these days. The queue was eleven deep. Four workstations were idle.

Obviously someone has made the decision that the Council's time is worth more than that of their ratepayers.

Sloppy

Andrew Bolt's spelling is about as accurate as his commentary.

I posted a correction (which was censored of course) but he did fix the error.

Not only does his brain disconnect from basic rationality, it also decouples from his keyboard from time to time.