Activist lawyers make trouble – so what else is new?

IT comes with the territory, and they should get used to it.

Refugee advocate George Newhouse has earned the Prime Minister’s ire. Picture: Adam Taylor

IF you listen to Tony Abbott, the latest brouhaha over asylum-seekers is the fault of the Labor Party, the Greens and those pesky lawyers.

“The Labor Party and its activists and the Greens and their activists will try to disrupt the government’s policies,” the Prime Minister said as news emerged of a High Court challenge over the fate of 153 Sri Lankans intercepted near Christmas Island.

“They will try to do things that will start the boats up again, that’s in Labor’s DNA.”

Pressed by the media to explain, Abbott offered that “the person who brought this injunction is a former Labor candidate”. The person would be George Newhouse, who took on Malcolm Turnbull in the NSW seat of Wentworth at the 2007 federal election. (The experience was so bruising that Newhouse says he has sworn off politics.)

Newhouse may be an activist, but he’s also a lawyer. Worse still in Abbott’s eyes, he is a lawyer specialising in refugee cases — and not of the Liberal Party. The Liberal Party doesn’t have activist lawyers. God forbid, they might turn out to be activist judges.

Abbott has moved into the territory recently occupied by Queensland Premier Campbell Newman in the debate over bikie laws.

As lawyers representing bikies argued that the laws placed too much power at the hands of the executive and announced a constitutional challenge, Newman branded them “guns for hire … who will see, say and do anything to defend their clients”.

Subject to the higher duty owed to the court, that’s what being a lawyer entails.

But in the world of Abbott and Newman, you are merely another political opponent.

In about three weeks, the High Court will be hearing the Sri Lankan case. Newhouse has engaged another of those “activist” lawyers — former Federal Court judge Ron Merkel QC — to argue the case.

On Monday, Justice Susan Crennan granted an interim injunction to stop the government returning 153 people to Sri Lanka, but an undertaking by the government a day later to give the court 72 hours’ notice of any action meant the injunction was no longer necessary.

Merkel and Newhouse claim that returning them to Sri Lanka would amount to refoulement — the forcing back of people to their place of origin where they are expected to face persecution — and be in breach of Australia’s obligations under international law.

The arguments on that front are divided.

A former Labor foreign minister, Bob Carr, is backing the government’s claim that Sri Lanka is no longer such a place, while a former Liberal prime minister, Malcolm Fraser, says it would be akin to returning Jews to the Nazis.

In any case, Abbott took that problem off the table by declaring they would not be returned to Sri Lanka.

That is what happened to 41 boatpeople who were handed over to the Sri Lankan navy in the past week and who were then charged with leaving the country without authority.

The expectation now is that if the 153 are sent back to a “place of origin”, it will be India. The boat had left an Indian port and many on board were living in Tamil refugee camps.

It leaves the Sri Lankans to argue the government had not properly assessed their claims of persecution at home when they were transferred to the Customs vessel.

Much has been made of the “enhanced screening” process used. Merkel said it involved “four questions asked at sea by video conference from Australia by someone who we do not know in a language we are not sure of and to persons who have had no assistance or advice but could not reasonably be expected to be able to communicate at the level that one would say is a fair hearing”.

Solicitor-General Justin Gleeson SC countered that since the 153 hadn’t entered the migration zone, 12km from Christmas Island, they had none of the rights under the Migration Act for which Merkel advocated.

The government had already legislated for such a situation last year, with amendments to the Maritime Powers Act. Gleeson told Crennan it would be “the end point of the argument”. He explained that section 72(4) of the act permits maritime officers detaining relevant persons to take them places in or out of Australia’s migration zone, and that section 75 says “the restraint on liberty for the person resulting from the division is not arrest and is not unlawful”.

Unfair, unfair, unfair, is the mantra of refugee advocates. However, they also know the rule of law is not about fairness. If it passes constitutional muster, it’s legal — and that is all that counts.

That’s where “activists” such as Newhouse and Merkel come in. There are also blue-chip firms such as Allens Linklaters putting a lot of effort — and money — into helping those who seek asylum. Yet in the context of the refugee debate, they are to be regarded as doing the bidding of Labor and the Greens.

These lawyers are driven by their belief in the right to a fair hearing, even for murderers, suspected terrorists (such as David Hicks) and boatpeople.

There even may be a few Liberals in their ranks.