Australian Politics
Hundreds more immigration detainees could be released in sequel to NZYQ high court ruling
The Albanese government has asked the high court to rule on a major case that could extend the NZYQ ruling on indefinite detention to release hundreds more long-term detainees, including refugees and asylum seekers.
At stake is whether people in immigration detention must be released if their refusal to cooperate has prevented them being deported.
The attorney general, Mark Dreyfus, has applied to remove a federal court appeal and have it heard by the high court to settle the legal uncertainty. The commonwealth will argue for the right to continue detaining those who refuse to cooperate.
In November, the high court unanimously ruled that immigration detention is unlawful where there is “no real prospect” of it becoming practical to deport the person “in the reasonably foreseeable future”.
In that case the solicitor general, Stephen Donaghue, had warned that up to 340 people in long-term detention may have to be released as a result. So far 149 people have been released.
Many of the remainder have been kept in detention because the government’s legal advice states the NZYQ decision does not require their release if deportation is being frustrated by a lack of cooperation, such as refusing to meet government officials from their country of origin or obtaining a travel document.
The federal court has issued contradictory judgments on that point, ordering the release of Ned Kelly Emeralds on 30 November but refusing release in the case of a plaintiff known by the pseudonym ASF17.
In both cases the government argued deportation had been frustrated – in ASF17’s case because he refused to meet with Iranian authorities to get travel documents.
According to the judgment of Justice Craig Colvin on 11 January, ASF17 submitted that he had “no obligation to cooperate and that he has good reasons for not” doing so.
ASF17 had said he “fears for his life if he is removed to Iran” because he is bisexual, Christian, a Faili Kurd and because he had opposed “the mistreatment of women by the government in Iran”.
Colvin ruled that ASF17’s continued detention was lawful, refusing his application to be released.
“Where ongoing detention is to arrange removal from Australia as soon as practicable, that lawful purpose is served for so long as there is a practicable way that the person may be removed, even if it requires cooperation from the detainee for it to be achieved,” he said.
ASF17’s lawyers signalled an intention to appeal to the full federal court, prompting Dreyfus to apply on Thursday to have the matter removed to the high court for final determination.
On Thursday the Coalition targeted the immigration minister, Andrew Giles, for a fourth straight day in question time over the handling of the NZYQ court case and subsequent releases from immigration detention.
The Coalition’s attacks have been fuelled by documents tabled in Senate estimates detailing the criminal offending of those released, and the fact that seven have been charged with breach of visa conditions and 18 with breach of state or territory offences since release.
In an unsuccessful motion to suspend standing orders on Wednesday, the opposition leader Peter Dutton accused Giles of “failing to know where released detainee criminals are”.
In question time on Wednesday and Thursday, Giles said that “the location of every individual in this cohort is known” because they are “continuously monitored” through conditions including ankle bracelets or a requirement to report their address to authorities.
He cited evidence from the Australian federal police at Senate estimates that there wasn’t “any difficulty knowing where they are”.
Dutton’s motion called on “the prime minister to dismiss this incompetent minister who has proven entirely inadequate to the task of keeping Australians safe” – reiterating a demand he made in November. The motion was defeated 87 to 53.
Earlier on Wednesday the leader of the house, Tony Burke, said the Coalition’s question time tactics were designed to avoid talking about the fact the “the government is making sure that people earn more and keep more of what they earn in tax reform”.
Burke said “of course” Giles retains his and the prime minister’s confidence, describing Giles “a serious immigration lawyer looking after these issues”.
In response to the motion, the home affairs minister, Clare O’Neil, noted Dutton had lifted a bar to allow NZYQ, the original high court plaintiff, to apply for a visa and had failed to deport him.
On Thursday Dutton continued to call for Giles’ resignation over his handling of the NZYQ case.
“You need somebody who can make tough decisions and can act in our national interest and keep Australians safe,” Dutton told 2GB Radio.
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The lost presunption of innocence
In a sweltering, steamy Queensland summer, strange things happen when it gets too hot to handle. Violent crime was the front page of the Brisbane Courier Mail as the city was rocked by the senseless murder of a grandmother, allegedly by a 16-year-old on bail for a number of alleged offences. Several members of the Queensland Police were calling for tougher measures:
‘Legislation must be introduced to remove the offenders from society in the interests of community safety. It can’t go on…’
Yet the main headline could not have been more revealing in terms of the corollary to the Queensland Police position.
In one example, a woman was held in detention for 6 years without trial or conviction, while the Crown alleged she had overdosed her child with drugs in a smoothie. The Judge took the unusual step to instruct the jury that the prosecution case relied on the evidence of another child who was ‘mentally compromised’, allegedly had a motivation to lie about her mother, and had given inconsistent testimony.
When your only tool is a hammer, everything starts looks like a nail. According to the Australian Bureau of Statistics, 15,182 prisoners are held in Australian jails were on remand, held without trial or a conviction. That’s an annual increase of 16 per cent and represents 37 per cent of the entire prison population. In this respect Australia is following a trend in the USA where in some counties up to 90 per cent of prisoners are pretrial detainees, often unable to afford their bail.
Australia has imported and implemented American-style tribunals, where the normal rules of evidence don’t apply and power is ultimately left in the hands of the judge or magistrate to make a determination, based on the ‘balance of probabilities’. Often this leads to a reversal in the onus of proof, where the accused has to prove his or her innocence, rather than the prosecution proving guilt.
According to the Australian Attorney-General’s Department:
‘Some laws, commonly called reverse onus provisions, shift the burden of proof to the accused or apply a presumption of fact or law operating against the accused. Under international human rights law, a reverse onus provision will not necessarily violate the presumption of innocence provided that the law is not unreasonable in the circumstances and maintains the rights of the accused. The purpose of the reverse onus provision would be important in determining its justification. Such a provision may be justified if the nature of the offence makes it very difficult for the prosecution to prove each element, or if it is clearly more practical for the accused to prove a fact than for the prosecution to disprove it.’
In 2023 there were 193 homicides in Australia, meaning 79 individuals were held in detention without trial or conviction for every 1 murder. According to the Australian Institute of Criminology, 50 per cent of suicide victims were on remand at the time of their suicide. Suicide is the leading cause of death in Australia under the age of 45 and in 2023 there were 798 deaths from suicide according to the Australian Institute of Health and Welfare.
This means of the 15,000 or more individuals held in Australian jails without trial or conviction, 400 are likely to die from suicide. Twice as many individuals held in remand will die from suicide as a result of their experience as there are murders in the entirety of Australia. A person is 41 times more likely to die from his or her own hand than from an intimate partner. Sometimes we have to ask whether the cure is worse than the disease? Sometimes a bigger hammer is not the answer.
In Australia, over 90 per cent of prisoners are male and evidence shows that children with absentee fathers are 3 times more likely to commit crime and to spend time in jail themselves. In Queensland every year there are twice as many Domestic Violence Orders (DVO) issued than there are male births. There are also more than twice as many DVOs issued than there are marriages. Since the introduction of the new legislation in 2012 the number of DVO violations has increased from around 65 per cent to over 95 per cent. A DVO violation potentially constitutes a criminal act and often fathers desperate to see their children unwittingly end up with a criminal conviction through such a violation. Even an innocuous inquiry about whether a rates bill has been paid may constitute a criminal act under the legislation. Normal behaviour is becoming increasingly criminalised.
Queensland has one of the highest rates of incarceration in the country, with many prisoners being held in private jails owned by large multinational corporations from the UK and the USA returning multi-billion dollar returns. Young men are voting with their feet with almost a third choosing to remain single. Indeed, it is becoming increasingly difficult to see how the institution of marriage, our cultural bedrock for more than 2,000 years, can survive such weight of legislative scrutiny. The exercise of coercive control is ubiquitous in our increasingly bureaucratised society, yet it is in only in coupled relationships that it is deemed to be a criminal offence requiring extensive jail time.
Whilst the principle of the presumption has been sacrificed on the altar of ‘absolute safetyism’, there has been no reduction in intimate partner homicide in Queensland, no change in the incidence domestic violence, but a surge in prisoners held on remand without conviction and an unprecedented surge in youth crime throughout the state. There is a sense that the current system is exacerbating crime, if not entrenching the problem. Furthermore, there is strong evidence that individuals held in remand become increasingly likely to commit crimes, particularly sexual offences.
The corrosive abrogation of the principle of the presumption of innocence has been relentless so that today it effectively only applies at criminal trial. The consequence for society is the erosion of our democratic rights and freedoms. Where we once believed we elected government to serve its people, it is clear that government regards its entire people as potential criminals. Just as the onus of guilt has reversed, so too has the position of government to its people.
The vast majority of detainees accept criminal charges simply to get out of the system. Most buckle despite their innocence and accept a charge in return for ‘leniency’. In the current system it serves no purpose to expedite or resolve matters until the 11th hour because there are no pressures on the police to do so. Quite the contrary, exoneration poses a media hazard. Recently in New South Wales an innocent individual was awarded $150,000 costs by a judge after he had been held in pretrial detention for 18 months without bail.
In a rapidly changing world, it is becoming increasingly difficult to understand what actually constitutes a crime. As in medicine the number of diagnosis in the DSM catalogue of disease has increased inexorably over the years, so too the legislative burden expands relentlessly so that the space that remains in which to retain a normal life is becoming increasingly confined. To quote Martin Luther King:
‘Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.’
https://www.spectator.com.au/2024/02/the-presumption-of-guilt/
******************************************************University chiefs lecture schools on maths and science teaching
University chiefs have caned schools for failing to prepare “Zoomers” for tertiary education, with domestic enrolments diving 10 per cent as Gen Z teenagers shun study for gap years, jobs and travel.
As the Albanese government prepares to launch its landmark Universities Accord reforms, cash-strapped universities are demanding more financial assistance for students struggling to pay the rent during a cost of living crisis that is pushing poorer teenagers straight from school into the workforce.
University of Sydney vice-chancellor Mark Scott – a former teacher and director-general of the NSW Education Department – said schools were struggling with a shortage of maths and science teachers to prepare teenagers for university.
“Students at some schools are being discouraged from attempting that more demanding maths, perhaps not linked to the ability of the student, but more the availability of staff,’’ he said.
“There’s a chronic, entrenched shortage of mathematics teachers around the country now. I think the true shortage is often concealed because … there are plenty of PE (physical education) teachers who are being retrained in maths to just try and get a qualified teacher in front of the class.’’
Professor Scott said universities might need to offer more summer schools and intensive tutoring to get school leavers “up to speed’’ for university degrees.
“We are increasingly concerned, as we target students from low SES (socio-economic) backgrounds, that they are not getting the opportunity to study maths at a level that has been an important prerequisite for entry to some of our courses,’’ he said.
“There are a range of courses, from economics and business to science and engineering, that have required maths prerequisites, that we can see fewer and fewer students reaching because fewer students are doing maths at that advanced level.’’
Australian National University deputy vice-chancellor Grady Venville, a former high school teacher, said schools must ensure more students were taught maths and science at the highest level.
“We’ve got kids coming right through from primary school and falling behind, and when they get to high school … they’re often not encouraged or supported to do the higher level mathematics,’’ Professor Venville said.
“We don’t have enough highly qualified maths teaching staff (in schools), so that means it’s easier for the school to encourage the students to do an easier maths. What that does is narrow down the pipeline of students who can go into things like physics or engineering, pure mathematics and even our science subjects.’’
Professor Scott said his sandstone university – renowned for its medicine and engineering faculties – was considering removing the prerequisite for advanced high school mathematics for some degrees. “We wouldn’t be decreasing the standards for our programs, but providing more help for students … without watering down our courses,’’ he said.
“Perhaps more summer programs, more introductory programs, where the university takes on a greater responsibility to get students up to speed.’’
Professor Scott said the high cost of living was discouraging students from enrolling at university, or studying full-time.
He said the University of Sydney was lobbying the NSW government to grant it social housing development concessions to build more student accommodation.
“When I was a student here in the 1980s, some of the cheapest accommodation anywhere in the Greater Sydney area was surrounding the university,’’ he said.
“You could live cheaply in Glebe and Redfern and Newtown in a way that is often not possible now at all. We’re talking to our alumni about making more scholarships available that provide accommodation support.’’
Professor Venville said university students were taking longer to finish degrees as they juggle study with part-time work or travel. She said Gen-Zs, known as “Zoomers’’, seemed less mature than previous generations of university students and were keen to take a “gap year’’ after school.
In Brisbane, Griffith University vice-chancellor Carolyn Evans said schools were encouraging too many students to take vocational subjects, rather than the more difficult academic subjects.
“(This) means perhaps not as many people are as well prepared for university as they used to be,’’ Professor Evans said. “We’re quite concerned about the decline in the number of students taking high-level maths and some of the harder science subjects. There are a lot of applied subjects being done at school level, which are appropriate for some students. But they don’t necessarily get a really strong foundation to go on and do some of the things that we critically need in this country … like engineering, medicine and some of the health disciplines.”
Professor Scott noted that teenagers were dropping out of high school at the highest rate in 30 years. In public schools, 26.4 per cent of high school students had left before finishing Year 12 last year – up from 17 per cent in 2018, the Australian Bureau of Statistics revealed this week.
The latest federal Education Department data shows the number of students starting a degree fell 10.4 per cent last year to a nine-year low. First-year enrolments by domestic students fell 5.5 per cent between 2018 and 2022 – a trend that is sabotaging the federal government’s ambition to increase student numbers by one-third, to 1.2 million, over the next decade.
Federal Education Minister Jason Clare said skilling school-leavers for work was “not just the job of universities’’. “We need more people to finish school,’’ he said. “We need to fully fund all schools and tie that money to the reforms that will help kids who fall behind to catch up, keep up and finish school and then be able to go to TAFE or university.’’
Mr Clare said that “going to university opened up opportunities and makes you money’’.
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Nickel isn’t worth a brass razoo without fossil fuel
There is an under-reported and avoidable economic tragedy occurring in our nation’s west.
Already 1000 nickel miners have lost their jobs and another 3000 face the same sad fate after BHP announced this week it may mothball its entire Nickel West operations. Many more small businesses and workers in the town of Kambalda (600km east of Perth) face economic ruin too.
These hardworking Australians should not be losing their jobs or businesses. But thanks to the ineptitude, naivety and cowardice of our mining and political leaders we risk losing an entire Australian industry to Indonesia.
Nickel West is one of the crowning achievements of our nation’s pioneers. In the 1960s, an Estonian migrant to Australia, Sir Arvi Parbo, achieved a superhuman feat. In just 18 months he and his team at the Western Mining Corporation built a mine, a refinery, a rail line and a town, and delivered nickel concentrate to Japan. Parbo’s team had to work fast because the ’60s boom in nickel prices was short-lived as nickel supplies from around the world competed to meet booming demand for stainless steel.
Under our Byzantine mining regulations we would not have finished counting the trees for the compulsory environmental survey in 18 months. Indeed, in later life Parbo said he would never have built his nickel mine under today’s regulatory conditions.
As in the ’60s, there has been a boom in nickel prices in the past few years, this time driven by electric vehicles (nickel is used in the batteries). BHP chief executive Mike Henry told the Financial Times in 2021 he wanted to weight “the portfolio towards future-facing commodities like potash, copper and nickel”.
Australia and Indonesia have the largest nickel reserves. BHP backed Australian nickel because Indonesia’s laterite reserves have lower nickel content and hence take more energy to extract. In BHP’s imagined brave new green world, climate-conscious customers were going to prefer to drive an EV – filled with Australian clean, green nickel – to their next Extinction Rebellion protest. BHP’s assessment looked safe when Indonesia signed up to net-zero emissions at the Glasgow climate conference in late 2021.
Indonesia then increased its use of coal by an astounding 32 per cent the year after Glasgow, enough coal to power five large coal-fired power stations. The International Energy Agency recently noted Indonesian “nickel production has become an important driver of coal demand”. Indonesia increased nickel production at an annual rate of more than 50 per cent last year. Prabowo Subianto, who claimed victory in Indonesia’s presidential election this week, has promised to continue the nickel policies of Joko Widodo’s government, and even expand them to bauxite and copper.
It is embarrassing that our corporate leaders could be so hoodwinked by the cheap talk at a climate conference. Thousands of Australians will lose their jobs because Indonesia builds coal-fired power stations and we do not.
That makes our political leaders complicit in this shambles too. Our state and federal governments sit back and let other countries take us for mugs. Other countries go nowhere near meeting their climate commitments while we honour them to the letter. We are losing our manufacturing industry thanks to the net-zero mind virus that deludes people into acting as if Australia alone can change the globe’s temperature.
To rub salt into this wound, the Labor government imposed a carbon tax on Australian nickel in July last year (the so-called safeguard mechanism). It may be too late to save Australian nickel jobs but the least Labor could do would be to belatedly exempt the Australian nickel industry from its carbon tax. I, and some of my Liberal and Nationals colleagues, have written to the Resources Minister asking her to do this immediately.
On coming to government, the Labor Party focused its mining policy on so-called critical (or strategic) minerals, which includes nickel. Labor has done nothing to attract new coal, oil or gas investment (even though these make up more than half of our mining exports). The (now broken) Labor promise to workers in fossil fuel industries was that it was OK if you lost your jobs because there would be lots of other jobs in nickel and other critical mineral industries.
As resources minister in 2019, I developed the nation’s first critical minerals strategy and signed the first agreement with the US on critical minerals. We should develop these industries, but we should not develop them at the expense of our coal, oil and gas sectors. And we won’t develop critical minerals, in any case, if we do not have affordable and reliable energy supplies. Mining (especially critical minerals mining) requires a lot of energy.
There is a reason BHP is not proposing to keep Nickel West open by converting all of its power needs to wind, solar and batteries. That is because renewable energy is not cheaper than coal-fired power. All the spin that “renewable energy is the cheapest form of power” just had a real-world test and it failed miserably.
The Labor government’s “all eggs in one basket” mining policy has been an abject failure. Even the Biden administration ignores its climate promises. Last year the US hit a record level of oil production and it is doubling its liquefied natural gas capacity across the next five years. Last year the US overtook Australia as the largest LNG exporter. The US was smart enough to take advantage of high oil and gas prices post the Ukraine war to attract investment. This Labor government has pushed away gas investors by imposing draconian price controls and red tape.
If the Australian government instead had rolled out the red carpet for gas, at least the retrenched nickel miners might have some other jobs to go to in Western Australia. Unfortunately, as gas prices fall we have missed the (LNG) boat. Lithium, the other great critical minerals hope, is also facing a slump in prices.
The worst sin that has caused this mess is cowardice. Many of our corporate and political elite know how mad our net-zero goal is. But few will say so publicly. They are worried they will lose their jobs, even though their cowardice will cost the jobs of many others.
The least the bosses could do would be to go at the same time as they lay off thousands of their workers. That would be the honourable thing to do rather than making their own workers pay the price for their errors. That would also deliver some accountability to ensure that our next leaders are more Arvi Parbo than Anthony Albanese.
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Also see my other blogs. Main ones below:
http://dissectleft.blogspot.com (DISSECTING LEFTISM -- daily)
http://antigreen.blogspot.com (GREENIE WATCH)
http://pcwatch.blogspot.com (POLITICAL CORRECTNESS WATCH)
http://edwatch.blogspot.com (EDUCATION WATCH)
http://snorphty.blogspot.com/ (TONGUE-TIED)
http://jonjayray.com/blogall.html More blogs
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Evelyn Rae, a conservative Australian political commentator
Margo Robbie -- a beautiful australian
My son Joe at ANU
One of the happiest pictures ever -- Cleo Smith, aged 4
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