Originally published on ABC’s The Drum on 16 September 2011
It’s a sad reality that after one of the biggest victories in decades for progressive activists regarding asylum seekers, most of the talk in reaction to the Malaysia Deal High Court case has been about how we can find ways to continue the rightward push towards refugees.
Whilst a few lone voices have called for a complete end to offshore processing, most policy makers have begun the search on how to get around the court’s decision. This has resulted in the Labor Party adopting a new policy to override the high court’s decision, which includes measures that will weaken human rights requirements in some places to levels that are worse than we ever saw under the Howard government.
For these politicians, onshore processing is simply not politically palatable enough to be considered a genuine solution.
This shows that while refugee advocates must celebrate this massive victory, they also need to be careful that they do not give up the fight under the hope that this court case will lead to a significant long-term change in asylum seeker policy in Australia.
A tactic seldom used by Australian social movements, political court cases have gained prominence over the past year. While there have been some important court cases in Australian history, such as the Tasmanian Dams case of 1983 (upholding the right for the Federal Government to intervene in the Franklin Dam case), the Wik and Mabo cases in relationship to Aboriginal land rights and the WorkChoices case of 2006 (upholding the constitutionality of WorkChoices), a number of important cases over the past year have brought the Australian courts into focus.
In the weeks leading up to the 2010 Federal Election, activist group GetUp! challenged two pieces of electoral legislation, overturning laws that closed the electoral act earlier than has previously occurred and barred people from enrolling online. Then of course, recently the High Court overturned the Government’s so-called Malaysia solution, as well as potentially all offshore asylum seeker processing.
This relatively small amount of court activity is in sharp contrast to some other countries. In the United States for example, court challenges have been the basis behind some of the greatest social movement victories in the country. The Brown vs Board of Education (1954) case effectively brought an end to racial segregation, Roe v Wade (1973) determined that banning abortion was against the constitution and more recently court cases in California, Massachusetts, Connecticut, Iowa and Maine have declared bans on same-sex marriage unconstitutional.
These cases in the United States have shown that court challenges have the ability to create real change quickly. In each of these cases a relatively short court case (in relation to the actions of a grass roots campaign) has resulted in immediate changes to significant Government policy. Without Roe v Wade for example it is clear that a number of US states would have bans on abortion today.
These results, open up the question, why aren’t court cases used more by Australian activists?
In fact, this was a question asked by GetUp! in a questionnaire to its supporters last year. Asking people for their opinion of what their future campaigns should be, one option GetUp! canvassed was using court cases more regularly. And who could blame them? Their court cases regarding the electoral act brought them great publicity and quick results. Why not continue to do it again?
There are two problems with this strategy.
The first is the obvious – not all bad legislation/practices are against the constitution or the law. Court cases can therefore only be used against particular laws/practices, meaning that they cannot form the sole basis of any social movement. In the case of asylum seekers, we can also see that even if the court strikes down policy, it can also simply be re-legislated by a government, removing all of the court’s power.
The second more substantive problem though, is that court cases are often elitist and extremely expensive activities that whilst they bring legislative change, don’t build social movements. Court cases can cost a lot of money, involve only a small number of people and do so in a way that does not engage with the greater populous but rather solely with the legal system. This can cause problems if court cases become the only form of political engagement an organisation engages in.
For example, the US queer movement have seen significant legislative change over the past decade due to court challenges, but these cases have not necessarily been coupled with significant changes in society. While of course these court cases have not been the only activities from the queer movement in the US, they have seen a huge amount of money pumped into them, followed by masses of publicity. However, public opinion around issues such as marriage equality has been difficult to change; the reason why two of these challenges (California and Maine) have eventually be overturned at the ballot box. Serious questions therefore have to be asked as to whether putting this money into building a stronger grass-roots movement would have lead to more sustainable change, even if it took a little longer to achieve.
The same problem can potentially be seen for the refugee court case. Whilst the case brought swift changes to current policy, it is likely to do little to change public sentiment about asylum seekers in the long run. This means that a change in the Migration Act is unlikely receive very little backlash from the broader community.
Court cases have their positives and their negatives. Although they can bring quick change and build momentum for activists, they can do so at the expense of the ability to build a strong social movement. It is therefore essential that proper thought is given to the use of court cases as a mode of change and that when they are used they are not done so in a way that excludes other social movement activities.
Refugee and asylum seeker policy still has a long way to go for progressive activists in Australia. Recent changes have moved some policies away from the dark years of the Howard era, but the simple fact that Labor Government would even propose a Malaysia solution shows that there is still a long way to go.
Whilst this court case was a huge victory for refugee activists, they must make sure they don’t fall into a trap of thinking that this case is the be all and end all. If they do, they could face the same problems as many progressive court cases around the world, as backlashes against court cases result in a hardening of public opinion, in turn making it more difficult for progressives to make further changes.
Changes to legislation require corresponding change in society.