Under the Migration Act 1958 (as amended) it has been confirmed that a womb is not an aircraft and ergo is an illegal maritime vessel that is to say a boat.

The Australian legal system reached a new low this week when a Federal Circuit Court judge refused to grant 11-month-old Ferouz Myuddin, born in Brisbane Mater Hospital, the right to apply for a protection visa. For the record, Brisbane Mater Hospital is in Brisbane, the capital city of Queensland, a large north-eastern state of the mainland of the continent of Australia.

ABC radio current affairs flagship PM provides a transcript of a dialogue between the host and a reporter outside the Federal Court in Brisbane.

According to the reporter Stephanie Smail:

“The judge accepted the Federal Government’s argument that the law states if asylum seekers enter Australia by any means other than an aircraft, they effectively arrive by boat. So even though he was born in Brisbane’s Mater Hospital, he wasn’t on the boat that his parents arrived on Christmas Island on, they were then transferred to Nauru, his mother was flown to Brisbane to give birth to Ferouz. Technically because they didn’t arrive by a plane, they’ve arrived by a boat.”

This was followed by apparent clarification of the “non-aircraft equals boat” business, which non-lawyers refer to as legal technicalities. We can assume that counsel used standard techniques of legal argument, and the judge used standard techniques of statutory interpretation. These are referred to as legal technicalities by non-lawyers. It is in fact how all common law becomes part of the common law.

The reporter then recounted some “interesting” judicial remarks. She was absolutely on the money to highlight these statements. The judgement is not yet online, but the remarks appeared to contain one of the most astonishing pieces of so-called legal reasoning that I have heard in a while. And that is from someone who works with the peculiarities of legalese – pronouncements passed off as legal reasoning – every day of the week.

“Interestingly the judge also told the court if he had granted Ferouz approval to apply for a protection visa or his lawyers, his family obviously – he’s a baby – that it might encourage other pregnant asylum seekers to enlist people smugglers and make the dangerous journey to Australia.”

This extraordinary manipulation of facts is not a new trick by the law. I fondly remember the High Court decision in Thomas v Mowbray [2007] HCA 33, where Jack Thomas (not the actor) was the first Australian to be subject to a control order under the 2004 LNP-induced terror hysteria. You might recall his nickname, Jihad Jack. It is an unwritten rule of Australian culture that brown people can not be in the headlines for too long without acquiring a casually racist and otherwise misleading nick name.

In Thomas v Mowbray, the High Court ruled that the expansion of the Commonwealth defence power under s. 51(vi) was constitutional on the basis of “notorious facts”. Notorious facts are not scientific facts, or empirical facts, or legal facts or legal fictions or, in fact, facts. Notorious facts are baseless claims. In this case, the baseless claims were accepted as notorious facts by a majority of the High Court bench – because terrorism. To not accept these baseless claims for which there was no evidence would be ‘September 10 thinking’. Gawd. The great Michael Kirby, of course, disagreed.

Some background:

The Migration Act 1958 (Cth) was drafted in the context of meeting our obligations under the Refugee Convention, which in turn was drafted in the aftermath of World War Two. Its articles reflect the collective conscious-stricken remorse of a world which had turned its back on the plight of Jews from Germany and eastern Europe.

The West had collectively refused entry to boatloads of Jews seeking refuge from persecution, including the British colonial governance in Palestine. The West then also collectively witnessed the liberation of the death camps, whether first-hand by members of the allied forces, or via newsreel. As such, there was an unprecedented impetus to assert our collective humanity and make a concerted effort to safeguard against genocide -and against blowing ourselves up.

The global response to the second world war forms the foundation of modern human rights law: the Nuremberg Trials and the Universal Declaration of Human Rights. The Declaration is formally codified in the International Covenant of Civil and Political Rights (ICCPR) and the International Covenant of Economic and Cultural Rights (ICECR). Among the many other Conventions that followed the Universal Declaration, the Refugee Convention was one of the first. It facilitated the great post-war migration waves that saw the birth of modern multicultural Australia. Waves of migration to Australia are not new.

People have arrived here by boat from earliest times, now estimated at over 60,000 years ago. The next wave included British colonial invasion and occupation, Afghans with their camels allowed in to traverse the central desert, and the attractions of the gold rushes to people from all over the world, often remembered for the number of Chinese migrants.

Nevertheless, the contemporary era of migration to Australia and our modern multicultural state is traced to European migrants escaping post-war Europe. This was the beginning of the end of the White Australia policy, and political leadership makes a difference. Escape from war and persecution characterises subsequent waves of people arriving from Korea, Vietnam, Lebanon, Afghanistan and Iraq.

This is not to ignore the gradually increasing numbers of refugees escaping war and famine in Africa, particularly then-Sudan (now mainly South Sudanese refugees). African migrants typically arrive in Australia via the United Nations High Commission for Refugees. Africans boarding boats are much more likely to head for Italy. This is the rub. Up until very recently, every wave of migrants to Australia, over tens of thousands of years, has arrived by boat.

There is an undeniably obvious reason for this. Australia is a very large island dotted around by lots of smaller islands. Until the invention and commercialisation and mass movement of people by aircraft, there was no other way to get here. There are no land bridges to Australia from any other country.

Our borders are clearly delineated, more so than the map markings across any other continent, even more so than islands such as the United Kingdom with its internal struggles, or archipelagos like Indonesia with its outlier cultures which retain independent identities. Even Japan has border disputes with Russia to this day. Possibly only New Zealand is comparable in terms of its borders, though its size and political decision-making (such as not to march lock-step with the USA on foreign policy and military adventurism) renders it far lower in profile in global terms.

So for millennia, by necessity, every person in Australia has reached the place by boat. Our current national political leadership has decided to reverse this reality. It is now unlawful to seek a protection visa, to seek refuge from persecution, even from countries where the Australian armed forces have participated in the destruction of your home and the killing of your family, unless your mode of arrival is by aircraft. The relevant definitions are found in section 5AA of the Migration Act 1958 (as amended).

Capital letter(s) after a section are usually a signifier of multiple amendments, which in turn signifies that the section governs a policy area that is contested and amended by successive governments. A political hot potato of the highest order, in other words, is what we find in these sections with capital letter amendments. This signifier puts paid to any notion that the law is objective or neutral, because it has been re-written and voted into law by politicians who can not agree on which ways to mobilise and exercise executive power over other people’s lives – nor cease to meddle therein.

This is what produced the absurd injustice that saw a federal circuit court judge deem a baby born in Brisbane to have arrived in Australia by sea:

MIGRATION ACT 1958 – SECT 5AA
Meaning of unauthorised maritime arrival
(1) For the purposes of this Act, a person is an unauthorised maritime arrival if:
(a) the person entered Australia by sea:
(i) at an excised offshore place at any time after the excision time for that place; or
(ii) at any other place at any time on or after the commencement of this section; and
(b) the person became an unlawful non-citizen because of that entry; and
(c) the person is not an excluded maritime arrival.
Entered Australia by sea
(2) A person entered Australia by sea if:
(a) the person entered the migration zone except on an aircraft that landed in the migration zone
[s. 245A]: “aircraft” includes aeroplanes, seaplanes, airships, balloons or any other means of aerial locomotion.

This particular piece of weirdness means that a baby born in a major maternity hospital in a state capital is deemed at law to have arrived by boat. Had Farouz Myuddin thought to arrive in Australia by air balloon rather than by the traditional method of exiting his mother’s womb, his legal status would be altogether different.

There are common law rules around these kinds of case law interpretations, because otherwise the justice system produces injustices. The problem with the rules is that they are only as good as those who make common law decisions. Those people are called “judges”. The judge presiding over the case of Farouz Myuddin felt bound by law to produce an unjust absurdity, which is what the common law rules exist to prevent.

Such decisions are made by members of the judiciary all the time, of course. Many are accepted as necessary application of the legal reasoning process. When the rules produce historic justice or corrections of injustice, such as in the Mabo case, the right-wing commentariat call this ‘judicial activism’. The implication is that judges are usually neutral and impartial, but when manifest injustices such as terra nullius are recognised, a rogue judge has randomly lost their neutrality hat.

These assumptions and implications are not true. Judges are not objective, no-one is. The law is not impartial, it is partisan. We know this, because legislation is introduced and voted on by politicians who belong to political parties. Particularly when we see a law with multiple capital letters after the section number, we can absolutely certain that the piece of law at which we are looking has been subject to multiple partisan meddling. And so it is with section 5AA of the Commonwealth Migration Act 1958.

It is the judicial remarks that throw most light on the political sensibility of the judge presiding over this case. As reported by ABC radio, the judge expressed concern that a finding in favour of baby Farouz “might encourage other pregnant asylum seekers to enlist people smugglers and make the dangerous journey to Australia”.

There are roughly seventeen separate ways wrong with this statement. Even if it is not a verbatim or accurate account of what the judge in fact said, it is what a trained journalist heard and thus what the audience heard. So if the judge has been misinterpreted, the statement should have been expressed more carefully in the first place. On the face of it, this sentiment is absolutely abhorrent.

First, the phrase ‘other pregnant asylum seekers’: this obscurantist nonsense is steeped in sexism. The most obvious point is that Farouz has been denied the right to exercise the rights of asylum seekers under the United Nations regime, the Universal Declaration and the Refugee Convention. So to call anyone in this context an “other pregnant asylum seeker” is grossly inaccurate and internally inconsistent. Farouz was in the same breath legally defined out of asylum seeker status. There is no other because there is no-one in the case at hand being granted the rights of asylum seekers under international law.

This is probably sloppy and inadvertent – it is always sloppy and inadvertent. White man elites do not get called out or have any imperative to recognise their own obscurantism and the inherent denialism that the English legal language generously provides – to them. Happily, critical discourse analysis of the English language also provides us with the tools to see this kind of phraseology as a misrepresentation of fact and of law.

The phrase ‘other pregnant asylum seekers’ is busy obscuring another truth, the simple truth that all peoples, all cultures, all of the history of the human species knows to be a very special status: that of women carrying a member of the next generation of humans. To say “other pregnant asylum seekers” is to ignore a basic biological fact. Men do not get pregnant. Men do not do the hard labour of producing the next generation of humans. There is no such category of human as ‘pregnant people’. There are only pregnant women.

This ugly usage obscures the ugly inhumanity of denying human rights to women fleeing persecution, women who may be pregnant, women who are doing everything in their power to escape the atrocities and destruction and abuses that are exacerbated during wars, and wars are waged by men. To obscure these basic facts of humanity by implying that women are sneakily getting pregnant to reach Australia and simultaneously denying the most basic of human rights to a baby is a hideous thing to do.

And it gets worse.

The suggestion is that a finding in favour of baby Farouz “might encourage other pregnant asylum seekers to enlist people smugglers and make the dangerous journey to Australia”.
By drawing a very long bow, and looking at this remark in isolation, we can concede that it might contain a small degree of possibility. It may be that unknown women in unknown locations might become pregnant at some unknown time in the future and subsequently seek to reach Australia while fleeing persecution in her home country. Certainly the expansion of military aggression by US and Australian governments increases the likelihood that women in Iraq and Syria will seek to escape the death and destruction wrought by our decisions.

This kind of judicial reasoning contains a policy component. That is, the judge looks beyond the facts at hand, and also takes into account wider public policy considerations. It is not especially unusual, and Justice Deane and Justice Kirby, compassionate and passionate advocates for justice both, were well recognised for their agile policy-based reasoning. Such reasoning requires careful connecting of legal dots from an international human rights law instrument (for example) to the case before the court. Again, if this type of reasoning displeases particular people with particular agendas, it is labelled ‘judicial activism’.

Policy-based judicial decision-making is not some kind of free-for-all for rogue judges, however the overturning of terra nullius or acceptance of cruel Migration Act amendments may be perceived by the audience or portrayed to the public. The actual concern around policy-based judicial reasoning is to do with temporality. Here is the basic legal thinking around such approaches. The “introduction to law” version. Note to lawyers: I am talking to non-lawyers.

Legislation is prospective law-making. The political party in power, or parties in the case of our current federal government, drafts legislation which will operationalise its political objectives, such as changes to the Migration Act. Once the law is drafted and passed by both Houses and signed off by the Governor-General, it swings into action. Now people who breach that law can be legally dealt with by authorities whose job it is to detain them or charge them or bring them before a judge or whatever. The crucial thing here is the direction in which law-time is travelling.

In our system, a law is passed, and unless it is retrospective, it can not govern over people until it meets each of the relevant criteria for coming into force. Yes, force. That is the language used at law, and for good reason. Once the law is in force, the state can forcibly detain people, or do all sorts of other things to interfere in the lives of the people under its jurisdiction.

Case law is different. When a case comes before a court, it looks back in time. It is not prospective, as legislation is supposed to be, in most circumstances. Someone does something, their actions come to the attention of the authorities, and if the authorities act, the person is brought before a court of law and their past actions (and intentions and evidence and so on) are scrutinised in an open court. These are basic tenets of our system of law.

When the government departs from its usual model of enacting legislation which operates prospectively, there is usually some concern about those who will be caught by retrospective legislation. Lawyers tend not to like retrospective legislation (except administrative formalities that streamline inconsistencies and errors as they are discovered) because it is extremely difficult to build a defence for a client who has been charged with an offence which was not an offence at the time your client was allegedly involved.

Similarly, judicial decisions that put the facts to hand to one side and instead are based on what an unknown number of women in an unknown place at an unknown future point in time may or may not do whether or not they are pregnant, is highly problematic. This kind of reasoning is unlikely to be sound reasoning. It is even more troubling when such judicial reasoning is closely streamlined with the political rhetoric of the government of the day. We have the doctrine of the separation of powers in this country, at least in theory. For a judge to base a decision on prospective policy grounds is to see the ancient power-sharing arrangements of democracy crumbling before our eyes. And that’s not even skimming the surface of the sheer inhumanity of the treatment of this baby, at least one hundred other babies in the same position, their families, and all the people seeking to escape persecution by reaching our wealthy wealthy island in the sun.