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Refugees and the use of the word "illegal" and the meaning of "unlawful"

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.


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Our big, brave AFP

The AFP stated with straight faces in estimates that we have been saved.

878 refugees were illegally detained and arbitrarily arrested on our brave men’s say so in the non-signatory country Indonesia.

We saw on our TV screens that Indonesia drags men, women and children out of their legally obtained accommodation and throws them behind bars. We are complicit and cause this crime.

All to stop 0.00009% of the world’s 10 million refugees from our golden, pristine shores.

We should give these brave soldiers a medal for stupidity and ignorance.

And for further information – I have been informed that Ruddock’s revolting former chief of staff Ms Anne Duffield is now working for Sharman Stone as her media adviser, filling her head with the same poisonous drivel that Ruddock spouted.

For the record, there are no “tactics” by “people smugglers” in Indonesia or any other part of the world. There are refugees and their need for transport and nothing else, as it is their absolute right to arrive and seek our protection they are not being smuggled. So there are no smugglers.


The word unlawful is used elsewhere and is common. It is settled law that "unlawful sexual intercourse" with females under 16 is an offence in many jurisdictions. In a UK case, the fact that there was a lawful marriage between the parties meant that in law, the intercourse was not an offence. The marriage was contracted in Nigeria. It was therefore recognized for purposes of that part of the criminal law.

Illegal is common parlance but lawyers detest it as it is hardly ever relevant to legal determination. Punctilio often dictates a retort that it is merely a sick bird.

The Australian only just qualifies as a newspaper, given US judgements in relation to other Rupert tainted organizations. It is dreadfully biased, but it has a right to be unbalanced. It is not unlawful nor illegal. As it is foreign owned it must be considered suspect in its views. Perhaps it could be banned? I hate censorship, but a debate on it's worth might be useful.

Given our involvement in foreign, unjustified, military action, we are inviting retaliation, the persons engaged in that might claim to be refugees, but the point that they often bypass other countries for Australia wrongly seems to be irrelevant, but seems to me to cast doubt on their desire to flee persecution. Rather they wish to enter Australia specifically. A desire for betterment should be acceptable, but there may be other intentions.

This problem was solved in Ireland, and probably other EU jurisdictions, by having treaties with the relevant countries of origin. Rumania and Nigeria were two such. False claims were then refused and they were returned. This is difficult when there is a failed state. It should be part of Australian strategy to acquire native speakers to penetrate cultures which are not the same as our own. Allowing some refugees is a good way of obtaining these people. It is also handy to have such a small divisive issue upon which to spin political prowess and play upon fear and prejudice. It is sensible to consider that we increase the likelihood of refugees when we invade.....But then there is Sri Lanka. If we really want to stop boat people arriving, then send out no more patrols. I anticipate an 80% casualty rate. But employment would suffer.....

Basic respect for human rights dictates that they are not mistreated once they are here. Unless we wish to torture them into becoming MK Ultra killers and the like.  That seems the best explanation of Gitmo. Probably not our cup of tea?

Christians are often the most dreadful hypocrites, Marilyn. I suggest you reconsider the respect in which you appear to hold them. Most are just sheeple.

I have no respect for Christians

Gosh, Pat, I am an avowed atheist and I have the same amount of disdain for all religions and find they are nothing but the opiate of the brainless.

But you are wrong that people just want to come to Australia as only 1% of the world's refugees ever seek asylum in the first world, only 1% of that 1% ever get to Australia and only 4% of them arrive on boats.

That is of 32 million known refugees about 320,000 sought asylum in the west last year, 4,750 of them in Australia and 179 on boats.

See how dopey our stance is yet we waste hundreds of millions in this madness.


Atheist, eh, Marilyn? So whom do you pray to? Reason, it may have come to your attention, is defective.

Most of these poor folks are running from conflict. Where do the weapons come from? They are costly so who pays? And how do they get repaid?

Would you strike against those who profit from this misery? What motivates you? A desire for justice? War is a big business. It usually revolves around non-labour resources, but enslavement by weapon also occurs. That is when the investors require labour. Have you forgotten them? Where is your superannuation invested? Are you funding these conflicts? Are you their enemy?

What does this prattle mean?

I don't wage war, nor do I supply weapons or approve of war and I don't pray to anyone.

Unless you think I should bow down to the good Christian Brothers and Sisters of Mercy.

And of course they are running from conflict - that is the point of being a refugee.

It is our government who have it wrong.

The real problem

Perhaps the real problem, apart first and foremost from irresponsible foreign wars in poor countries creating refuge streams in the first place, is that many Australians just don't know, can't conceive relating to their own limited experiences, what it might be like to be in situations like the ones described by a number of refugees, now settled here, as related on Insight last night.

I could stomach Evans, who has been forced to backpedal because of the Alan Jones / tabloid-type politics involved, because I sense he understands the tragic implications of the human event forming at the human level, but Sharman Stone and "Christian" Kevin Andrews appalled and chilled me for their utter lack of comprehension coupled with irresponsibility and dishonesty, let alone consequent absence of even a skerrick of compassion even many a hard hearted adversary could feel.

And as long as tabloid politicians and media continue to exploit these issues by reinforcing, inflaming and massaging the fears of the scared and uneducated, for what are transparently the worst of reasons, progress will remain slow - which is just what certain species of people active in public life want.

For with the barrel-scraping politics of race, in this case pursued by an opposition still saddled with a Hansonist siege mentality and desperate to find traction on any issue, because it is so far behind in the polls, there will be little beyond cautious movement forward from an ALP government hesitant and new in office after a long time in the wilderness, seared by the experiences of the racist wedge politics of the early part of the century.


Watching Evans and Stone obfuscate on Insight last night it became clear that neither of them understands or wants to understand Australian law either.

Yet both political parties in the Parliament in 1992 voted to enshrine the Refugee Convention into Australian law, something they now conveniently ignore.

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