The Gillard government has failed in deterring the people smuggling trade. Photo: Reuters
A disconnect has grown between the will of the people and the legal activists who successfully circumvent democracy by waging ''lawfare'' - the practice of using the courts to achieve policies rejected at the ballot box.
Ideological lawfare is now clogging the entire legal system in the name of refugee rights. The people enmeshed in this campaign against Parliament range from the Chief Justice of the High Court, Robert French, to the ideologues toiling in the lower courts and refugee tribunals.
The Australian public has made it clear it regards the people smuggling trade as an affront to Australian morality, security and sovereignty. If the federal government cannot curb this traffic, it is a failure significant enough to turn an election.
The public understands that only punitive measures can deter the trade. That the Gillard government has failed in this duty is clear. What has not yet sunk into the public consciousness is the full extent and cost of this failure as the courts are swamped by litigious refugee applicants and their legal advocates.
The entire process is an immensely cynical exercise dressed up as high morality. How pervasive this problem has become can be seen by these statistical indicators:
Of 148 decisions handed down by the Federal Court this year, 43 of them, almost one in three, were immigration cases.
The Federal Court has so far heard 157 cases involving the Minister for Immigration this year, by far the largest category.
The Refugee Review Tribunal has heard 737 cases this year, and counting.
Most immigration litigation is being funded by the taxpayer, either directly via legal aid or circuitously via other subsidies.
The High Court ruled last week, in effect, that Australian law must conform to the United Nations Convention Relating to the Status of Refugees, as incorporated in the Migration Act.
The convention imposes a virtually unlimited right of access to any country by anyone who deems themselves, in good faith, to be in flight from persecution.
The ruling opened the door to possible legal actions by asylum seekers sent to Nauru by the Howard government. Until last month Nauru was not a signatory to the UN Convention.
Most asylum assessments are taking more than six months, adding to incarceration costs.
Australia has accepted a higher percentage of asylum seekers than the UN High Commissioner of Refugees process - another incentive to bypass the UN system.
History is repeating itself. A veteran of ideological lawfare, the Melbourne barrister and former judge Ron Merkel, QC, has become involved in preparing possibly wider legal challenges to the government's immigration policies.
Merkel is the activist who sowed the seed, back in 1990, that eventually became the Bringing Them Home or ''stolen generations'' report. It included the false claim that Australia had practised genocide toward the Aborigines. The costly litigation that ensued was largely a disaster and neither report nor litigation improved the material welfare of indigenous Australians, while creating enormous division in the name of reconciliation.
In short, the stolen generations report was a nullity for reconciliation and a paradise for lawyers. Ditto the lawfare now being waged on behalf of refugees.
As a result of the High Court's decision last week in M70 v Minister for Immigration, 4000 refugees in Malaysia will miss out on entering Australia. It will also reap a political blowback when the public understand the magnitude of how the intent of the Parliament has been subverted in the courts.
The legal quagmire in which the federal government and the courts are stuck could be escaped at a single stroke. The root cause is the United Nations, the majority of whose members are not democracies, and specifically Australia's signature on the United Nations Convention Relating to the Status of Refugees.
Australia should withdraw from the convention, citing its increasing unworkability, impossibly loose language and unlimited impositions. An entire theatre of ideological lawfare would be laid to waste, and after changes to the Migration Act to pre-empt such lawfare, Australian democracy, security and sovereignty would be strengthened.
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