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Refugees and the use of the word "illegal" and the meaning of "unlawful"
by Marilyn Shepherd

Adelaide busybody Marilyn Shepherd's hysterical emails to editors also point the finger at The Australian. Her brand of reasoning claims that "people are dead, people are injured, more might die because the Australian Government and media would not stop whining". Forget the tragic fire on the boat off Ashmore Reef. The deaths are "on our heads", she shrills, for ignoring her "increasing alarm about illegals and so on". She asks: "Are you journalists hard of reading and hearing?" No, we value mature, reasoned debate over reems of drivel.

This editorial was in response to Media Watch, the Press Council, myself and several others whom the Australian's editor chose to attack because his paper refused to stop using the word “illegal” in response to refugees arriving to seek asylum. The court citations are of course the genuine interpretations of our own parliament’s laws and are not “reems [sic] of drivel”, as they would have known if they bothered to accede to my request to read the truth. I don’t think their editorial or their rants against anyone who disagrees with them add “mature, reasoned debate”.

They have even gone so far as to cite the Macquarie Dictionary that says “unlawful” = “illegal”.

The following citations I actually sent to the Australian show that in this case the word “unlawful” does not mean “illegal”, with the highest authority being our very own Parliament and High Court.

I know I have laboured this point many times in the past but I believe the facts of Australian law are important enough to repeat until they are absorbed. Clearly the Australian couldn’t be bothered and the result of their incorrect reporting has been disaster for a group of Afghans. I sent the same information to the Age, by the way, and they did correct much of the inaccurate reportage about “illegals” through David Marr and others.

Let’s have a start with Al Masri’s case (Federal Court of Australia):

“60 In any event, while it is literally correct to describe the applicant as an "unlawful" entrant and an "unlawful non-citizen" that is not a complete description of his position. The nomenclature adopted under the Act provides for the description of persons as "unlawful non-citizens" because they arrived in Australia without a visa. This does not fully explain their status in Australian law as such persons are on-shore applicants for protection visas on the basis that they are refugees under the Refugees Convention.

61 The Refugees Convention is a part of conventional international law that has been given legislative effect in Australia: see ss 36 and 65 of the Act. 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 1950's (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.

62 The Refugees Convention implicitly requires that, generally, the signatory countries process applications for refugee status of on-shore applicants irrespective of the legality of their arrival, or continued presence, in that country: see Art 31. That right is not only conferred upon them under international law but is also recognised by the Act (see s 36) and the Migration Regulations 1994 (Cth) which do not require lawful arrival or presence as a criterion for a protection visa. If the position were otherwise many of the protection obligations undertaken by signatories to the Refugees Convention, including Australia, would be undermined and ultimately rendered nugatory.

63 Notwithstanding that the applicant is an "unlawful non-citizen" under the Act who entered Australia unlawfully and has had his application for a protection visa refused, in making that application he was exercising a "right" conferred upon him under Australian law.”

Those four paragraphs make the law pretty clear, and the judgment was upheld by three more judges in the Full Court of the Federal Court in April 2003 – after Akram had been deported.

So far so good on the “unlawful” = “illegal” story.

Now to the High Court appeal which became Behrooz, Al Kateb and Al Khafaji and have a look at the meaning of “unlawful”:

GUMMOW J: What is the baggage of the word “unlawful”?

MR BENNETT: Your Honour, none. It is a word used in a definition provision, it is simply a defined phrase. It is not a phrase which necessarily involves the commission of a criminal offence.

And another exchange between Gummow J. and Mr Bennett:

GUMMOW J: What is the force of the word “unlawful”?

MR BENNETT: It is merely a word which is used in a definition section, your Honour.

GLEESON CJ: Does it mean without lawful permission?

MR BENNETT: Yes, that is perhaps the best way of paraphrasing - - -

GUMMOW J: But in the Austinian sense that is meaningless, is it not?

MR BENNETT: Yes, your Honour. The draftsperson of the Act is not necessarily taken to be familiar with the - - -

GUMMOW J: Well, perhaps they ought to be.

Wow, so the word unlawful is legally meaningless.

Who would have thought? But wait – it gets better. Here is the actual judgement in Kateb’s case. Paragraph 86 is there for all the world to see:

From 1901 to 1994, federal law contained offence provisions respecting unlawful entry and presence in Australia, which was punishable by imprisonment as well as by liability to deportation. The legislation gave rise to various questions of construction which reached this Court[90]. The first of these provisions was made by the Immigration Restriction Act 1901 (Cth) ("the 1901 Act")[91]. Section 7 thereof stated:

"Every prohibited immigrant entering or found within the Commonwealth in contravention or evasion of this Act shall be guilty of an offence against this Act, and shall be liable upon summary conviction to imprisonment for not more than six months, and in addition to or substitution for such imprisonment shall be liable pursuant to any order of the Minister to be deported from the Commonwealth.

Provided that the imprisonment shall cease for the purpose of deportation, or if the offender finds two approved sureties each in the sum of Fifty pounds for his leaving the Commonwealth within one month."

As enacted in 1958, s 27 of the Act continued this pattern. That provision eventually became s 77 of the Act, but this was repealed by s 17 of the Migration Reform Act 1992 (Cth) ("the 1992 Act"). It has not been replaced[92].”

Want a bit of icing on the cake (all of which I sent to the editors of the Australian, the Press Council and Media Watch)? Have a look at Hamdan’s case:

30 It is important to emphasise that the client did not escape from custody. It would have been an offence for him to have done so: see 197A of the Act. He was released from detention pursuant to a court order. Neither was he committing or proposing to commit an offence simply because he was taking steps to avoid being detained. As Gummow J indicated in Al-Kateb at [86] ff, the current Migration Act, unlike its precursors, does not make it an offence for an unlawful non-citizen to enter or to be within Australia in contravention of, or in evasion of, the Act.

31 Further, as Hayne J observed in Al-Kateb at [207]-[208] the description of a person’s immigration status as "unlawful" serves as no more than a reference to a non-citizen not having a "valid permission to enter and remain in Australia". The use of the term "unlawful" does not as such refer to a breach of a law.”

One would think the Australian could bother to read the material exposing the big lie of “unlawful” and “illegal” instead of simply shooting the messengers.

I helped to expose illegal detentions of over 250 people legally in this country, I helped to expose illegal deportations using false documents, and have helped to keep many people in the community up to date with the Immigration Department’s behaviour, which led the Palmer and Comrie investigations.

And while I am here let’s have a crack again at the so-called people smuggling – a silly lie told by silly politicians and shamefully supported by delusional courts.

If you read these cases you will note:

“As has been observed in relation to other cases of this kind, the prisoners were not involved in a 'people-smuggling' exercise. There was nothing covert about either operation. They were transporting the non-citizens to Australia for presentation to Australian authorities. There was no attempt to hide from the authorities or to disguise what they had done”.

This is why we really locked up a few hundred poor schmuck Indonesian fishermen. If it was challenged in the High Court I reckon all the cases would have been dismissed because we locked people up for things they could not have known.

“These are serious offences because the Australian Parliament has said the Australian Government has the right to control immigration into Australia in any way it chooses to do so. Australia has agreed to take a large number of refugees from other countries each year. This has to be done in an orderly way. The bringing to Australia of illegal immigrants avoids having these people go through the proper channels. This costs the Australian Government a lot of money and may well have the effect of causing other refugees to have to wait longer for them to get permission to come to Australia.”

(I bet refugees wish they could have such a nice, orderly existence while countries like ours blast their countries to bits or trade with them in spite of brutal human rights records.)

“To give you some idea of the cost, the Department of Immigration and Multicultural Affairs believes that it costs $50,000 to process each illegal immigrant coming into Australia. This cost covers the costs associated with apprehension, transfer, detention, refugee processing, court costs, and removal where necessary.

Together you have brought in 449 illegal immigrants. At $50,000 per person, the total cost to Australia is almost $22.5m, or about Rp112 billion. This money could be better spent on refugee aid where it would help many thousands of refugees, not just a few hundred. The Parliament of Australia have said that this is a very serious offence and that the courts must impose significant sentences in order to deter others, as well as you, from committing this kind of offence in the future.”

(Yet, having said there is no smuggling, what is the offence?)

So this is my rebuttal to the Australian’s editorial of 29 April 2009.

However, as David Corlett exposed in his landmark book Following them Home, Australia has a long history of sending people out of the country without correct documents and dumping them in countries where they have no rights or citizenship.

And as we all found out in the case of Vivian Alvarez Solon, the DIAC people are not averse to deporting Australian citizens without documents and dumping them to die, then covering up for four years.