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Hicks Lawyer set to Challenge Gillard’s Nauru Detention Policy

April 28, 2013

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The former US military lawyer for David Hicks, and hero of “the left” Dan Mori, is about to take it up to the Gillard Government over the detention of asylum seekers on  Nauru, in much the same way as he did the Howard Government over its handling of Hicks’ incarceration at Guantanamo Bay.

Mr Mori, who now works for a law firm in Melbourne, will mount a legal challenge against the Gillard Government’s policy of mandatory detention of asylum seekers arguing that detention of asylum seekers is unlawful because the asylum seekers have not been found guilty of committing a crime.

Senior Australian social justice lawyer Julian Burnside QC will lead the case in the Supreme Court of Nauru, which is set to be heard in June.

Mr Mori moved to Australia last year, and says he has nearly finished his Australian legal training so he can practise law here.

He says that this has not stopped him forming a team to challenge the legality of keeping asylum-seekers at the Nauru processing centre.

“Jay Williams, a barrister from Sydney approached us. He’d approached Julian Burnside, who’s going to be the QC for the case and so getting an opportunity to support both of them, especially to work with Julian and George Newhouse is going to be the instructing solicitor,” he said.

“So just being able to help research and put together the case is an opportunity you can’t pass up.”

The legal team says the Nauruan constitution provides protection to everyone in the country, including detainees.

Mr Mori says if the case if successful, it could have ramifications for Australia’s regional processing policy on Nauru.

“The one similarity which struck me is that you have this group of people that are being held somewhere, and they have no legal access to help,” he said.

“They can’t get on the phone and call people. They probably wouldn’t know who to call even if they had a phone.”

“It’s extremely difficult to get there, so no matter what you think about the offshore processing – put the politics aside – regardless of who they are, if someone is detained they deserve to get legal representation and have a change to fight for their freedom.”

“Under the Nauruan constitution, everyone has a right to their personal liberty. They also have a right to counsel and to meet with counsel where they’re being detained and those are two areas that need to be challenged because it’s not being respected in Nauru right now.”

Disagreements between the legal team and Australia’s Department of Immigration have already flared up.

Lawyer George Newhouse SC says gathering evidence and statements for the case has not been easy.

“We were denied access to the detainees. We were denied access to the camp,” he said.

“It’s as though they’re trying to hide as much as they can from the world in general, but certainly from the lawyers involved and that is also a breach of the Nauruan constitution which says that a detainee is entitled to legal representation and access to a lawyer.”

A spokesman for the Department of Immigration says the legal team were provided access to detainees, and the constitutional challenge is a matter for the Nauruan Government.

 

 

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32 Comments leave one →
  1. April 28, 2013 3:08 pm

    So can we expect the Gillard Cheer Squads to back Mr Mori’s latest legal challenge……?

  2. Tom of Melbourne permalink
    April 28, 2013 4:00 pm

    You have to admire genuinely progressive people like Mori, who stand by their convictions.

    I’m no admirer of Hicks, but his advocacy was genuine and effective. Incredibly, it provided some sense of justice, even in the US military system.

    But no doubt ALP barrackers will regard him as particularly inconvenient.

  3. egg permalink
    April 28, 2013 4:23 pm

    ‘Mr Mori says if the case is successful, it could have ramifications for Australia’s regional processing policy on Nauru.’

    The rusted ons at the kaf will be in a quandary.

  4. April 28, 2013 4:57 pm

    “The rusted ons at the kaf will be in a quandary.”

    No they won’t.

    They’ll just add him to the list of people they once adored but now hate with a vengeance, you know, like….

    Andrew Wilkie
    Bob Brown
    Bernard Keane
    Kevin Rudd
    Simon Crean
    Anthony Albanese
    Christine Milne

    etc etc….

  5. Tom of Melbourne permalink
    April 28, 2013 5:23 pm

    Lindsay Tanner
    Bill Kelty
    David Marr
    Chris BOwen

  6. egg permalink
    April 28, 2013 5:27 pm

    Leigh Sales

  7. Neil of Sydney permalink
    April 28, 2013 5:30 pm

    I think Gillard is finding Opposition is easier than Government. In Opposition you can just lie back and criticize.

  8. TB Queensland permalink
    April 28, 2013 6:25 pm

    For Christ sake, ToM, where are the fkn dot points? Just lazy …

    +++++++++++++++++++++++++++++++++

    LOL! I think, Kneel, is getting ahead of himself! But the truuf is in the puddin’ … 😆

    I think Gillard is finding Opposition is easier than Government. In Opposition you can just lie back and criticize.

  9. TB Queensland permalink
    April 28, 2013 6:47 pm

    I find it amusing that MR Mori has been “highlighted” in the case within months of landing here … talk about advertising … LOL!

    Who’s bankrolling the case again?

    It needs to be done … but the cynic in me has to be released … 🙂

    What is also amusing is the belief that (particularly Gen Y for some reason) Tony Abbott & The Acolytes will do better and more than Julia Gillard & The Gormless

    (* Disclaimer – I have always advocated onshore processing – preferably at the state of origin)

  10. Neil of Sydney permalink
    April 28, 2013 6:55 pm

    What is also amusing is the belief that (particularly Gen Y for some reason) Tony Abbott & The Acolytes will do better and more than Julia Gillard & The Gormless

    Well you have just admitted that Gillard is a failure.

    What I find amusing is that you continue to vote for a failure.

  11. TB Queensland permalink
    April 28, 2013 7:22 pm

    Well you have just admitted that Gillard is a failure.

    What I find amusing is that you continue to vote for a failure.

    Are you a programmed computer? Do you ever COMPREHEND my fkn posts!

    What I find frightening is your singlemindedness … with no ability to see an alternative viewpoint … or more particularly —————————– in fact, sreb … you’ve been havin’ a lend … bugger me …

  12. Ol' Sancty permalink
    April 28, 2013 9:21 pm

    in fact, sreb … … bugger me …

    😯

  13. armchair opinionator permalink
    April 29, 2013 12:19 pm

    The former US military lawyer for David Hicks, and hero of “the left” Dan Mori, is about to take it up to the Gillard Government over the detention of asylum seekers on Nauru, in much the same way as he did the Howard Government over its handling of Hicks’ incarceration at Guantanamo Bay.

    Good.

    There weren’t many other ‘heroes’ putting up their hands around at the time of hicks incarceration and torture. Aussies are well trained to look the other way and hate when told.

    I find it amusing that MR Mori has been “highlighted” in the case within months of landing here … talk about advertising … LOL!

    We need people like him in this country [as well as a bill of rights].

    [wiki] …On November 10, 2006, Mori attended the signing of the Fremantle Declaration by the attorneys-general of the states and territories of Australia. The federal attorney general, Philip Ruddock, refused to attend. The declaration urges judicial fairness be applied in Hicks’ case to protect the legal rights of Australians at home and abroad. Mori said “It’s disheartening that federal ministers won’t fight for an Australian citizen to have the same rights as an American.”[4]…

    Don’t expect your gutless toadying government to support you if you land in trouble in a foreign country, you’re on your own mate!

  14. May 1, 2013 3:22 am

    armchair
    bill of rights.? _ why.? (good to see you again)

  15. TB Queensland permalink
    May 1, 2013 9:54 am

    in fact, sreb … … bugger me …

    Mmmm … well spotted, James … is it too late for a retraction? 😯

    As for, Kneel, no one could be like that for real?

  16. armchair opinionator permalink
    May 2, 2013 1:30 pm

    bill of rights.? _ why.?

    To limit the power of politicians 730,our democracy ha been so corrupted by politicians that they do not represent the people anymore.

    They ignore our best interests or wishes and govern for the corporations and powerful lobby groups, .

    and

    Human rights [human dignity] and fundamental freedoms are universal rights which should not be determined by politicians who discriminate and collude [our asylum seeker fiasco]. We should all have intrinsic human rights that powerful politicians and their puppeteers cannot abuse, control or remove depending on whichever brand of government is in power at the time.

  17. Ol' Sancty permalink
    May 2, 2013 2:06 pm

    I’d be interested to know which countries have Bills of Rights and are better for it.

  18. TB Queensland permalink
    May 2, 2013 4:22 pm

    I’m beginning to agree re a BoR, KL … I’ve been ambivelent until recently … the politicisation of just about everything that goes before Parliament is a concern and most pollies and more particularly the Puppet Masters dont seem to have any basic decency standards …

    But … how does it become law if the sods in Parliament don’t agree … maybe a member’s Bill …?

    ++++++++++++++++++++++++++++++

    James, as I understand it this is in your field of study/work experience (correct me if I’m wrong) … what are the problems with a BoR?

  19. Ol' Sancty permalink
    May 2, 2013 4:32 pm

    Well, TB, imagine for a moment what a Bill of Rights written in the 1960s might have looked like.

  20. Splatterbottom permalink
    May 2, 2013 4:35 pm

    For a Bill of Rights to be fully effective it needs to be an amendment to the constitution. That way it automatically overrides legislation which is inconsistent with the Bill of Rights and it can’t be amended by parliament. A Bill of Rights which is passed by parliament can be worded to override all other legislation, but it can be changed by later legislation without a referendum.

    A Bill of Rights as envisaged by modern lefties would be an abomination. I have no interest in any Bill of Rights unless it enshrines a fairly absolute right to free speech.

  21. Ol' Sancty permalink
    May 2, 2013 4:38 pm

    And that’s the other problem, Splatter. Peoples’ views of “rights” vary across the political spectrum.

  22. TB Queensland permalink
    May 2, 2013 6:13 pm

    imagine for a moment what a Bill of Rights written in the 1960s

    Not quite sure what you mean, James?

    (As a guess – your saying it would be different to 2013?)

    Not sure that that would be the case, the Magna Carta has relevance today …

    +++++++++++++++++++++++++++++++

    sb, A Bill of Rights as envisaged by modern lefties would be an abomination

    In what way?

    I’ve never really seen the need for a BoR but I do believe our Constitution could be revised!

  23. May 2, 2013 6:37 pm

    “A Bill of Rights as envisaged by modern lefties would be an abomination. I have no interest in any Bill of Rights unless it enshrines a fairly absolute right to free speech.”

    I agree, in principle.

    I think what, Splatter, means, TB, is that a lot of what is advanced by ‘the left’ (an unuseful term, in this context) would merely characterise laws which support their particular pet fetishes & slant on life; not so much ‘universal’ rights.
    I may be being a bit too cynical, but a lot of what I’d call ‘The Contemporary Left’ do seem to be rather intolerant of ideological divergence & individualism.

    I’ve never been ‘typical’…my views on Nationalism & Ockertardation should make that obvious to most of those familiar with my opinions…so I am very wary of Motherhood statements and ‘We Know What’s Best For You & Yours’ types of rhetoric, these days.

  24. TB Queensland permalink
    May 2, 2013 6:58 pm

    Ok, toilette … this might sound like a “dumb” analogy but I recall the legislation in OH&S shifting from prescriptive … eg thou shalt make sure thy windows are cleaned each week … to proscriptive based “simply” upon duty of care … established primarily in the Common law courts …

    Safe workplace and access to it …
    Safe system of work
    Safe plant and equipment
    Adequate training and supervision

    The broader approach is much better … and a mixed bag for employers … BUT far more effective in preventing accidents …

    Its just that samples of BoRs have seemed too prescriptive for me … rather than the broad responsibility (as per my example above) …

  25. May 2, 2013 7:06 pm

    Not dumb at all, TB.

    I am in two minds about it myself.

    I think a Bill of Rights, if done properly & in a humanitarian, but non-partisan, fashion, is a fkn great idea.

    Unfortunately, humans, as a majority, seem largely incapable of nonpartisanship; particularly the humans we elect into our parliament.

    Like all ‘good ideas’, the human condition is liable to take it & fuck it up.

    I realise that such a thing as altruism exists, but true strains of it, the uncompromised ones, are rare indeed.

  26. Splatterbottom permalink
    May 2, 2013 7:12 pm

    TB “In what way?”

    Some suggestions (like enshrining rights to adequate housing, food, healthcare and education) would in effect take those matter away from parliament and hand them to judges. At least politicians are answerable to voters. How is a court going to enforce a right to adequate housing?

    The role of a Bill of Rights is to protect people from politicians. It limits the laws that can be made and strikes down laws that infringe rights. That makes sense in the case of, say, a right to the free exercise of religion. It doesn’t even make sense in the case of a right to adequate food. What law do you strike down if someone is hungry?

    This is from a discussion around the Victorian Bill of rights. It gives me the creeps:

    The statement of intent makes clear the government’s reticence about incorporating broader social and cultural rights like those found in the International Covenant on Economic, Social and Cultural Rights (ICESCR). The ICESCR commits Australia to ‘take steps to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognised in the present Covenant by all appropriate means’. The rights recognised in the ICESCR include rights to just and favourable conditions of work; adequate food, clothing and housing; education; the highest attainable standard of physical and mental health; the formation of trade unions; the participation in cultural life; and the enjoyment of the benefits of scientific progress. The statement of intent indicates that these rights ‘raise difficult issues of resource allocation’ and often ‘deal with responsibilities that are shared between the State and Commonwealth governments’. These rights, whose content is more likely to attract more controversy than political rights already ‘taken for granted’, are regarded by the government as more appropriately dealt with by the parliament, where ‘social and fiscal policy are scrutinised and debated’, than in the courts. Whether a bill of rights which only addresses ‘issues of inequality and disadvantage’ in the context of the justice system and which only advances cultural and economic rights indirectly can be seen as an effective and meaningful measure for protecting human rights in Victoria is a key question the committee will need to address.

  27. Neil of Sydney permalink
    May 2, 2013 7:13 pm

    We have a Bill of Rights. The English Parliament in 1689 produced one. By the way it was called a Bill of Rights because it was passed through Parliament and was a parliamentary bill. The Americans copied it 100 years latter.

    http://avalon.law.yale.edu/17th_century/england.asp

    That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;

    That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal;

    That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious;

    That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal;

    That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal;

    That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;

    That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;

    That election of members of Parliament ought to be free;

    That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament;

    That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;

    That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders;

    That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void;

    And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently.

  28. May 2, 2013 7:49 pm

    An addendum, Boltophiles loathe the very notion of a Bill of Rights, he’s laid down the mental foreplay to predispose them towards reviling a BoR for many a long year.

    Can’t be fucked, going back & dredging all of his reflexively dismissive conservative crap in regard to a BoR, but it is there on the interwebz for any who may care to test the veracity of my claim.

  29. Neil of Sydney permalink
    May 2, 2013 8:20 pm

    Yes for some reason Conservatives are against a Bill of Rights. They are quite happy for Parliament to legislate for things.

    It is strange that the natural totalitarians want a Bill of Rights. I think because they would use a Bill of Rights to throw people in jail.

  30. May 2, 2013 10:02 pm

    You are a Grade Atypical test tube proof of the rule, Neil.

    Thankyou for your cooperation. 🙂

    At least you are brutally honest.

    I am starting to see the ‘natural totalitarian’ angle, but y’all make the stupid mistake of assuming (or seeming that you assume it to be so) that all ‘leftists’ are essentially ‘Stalinists’.

    It’s like mistaking all rightards for being Fred Nile.

  31. May 3, 2013 5:45 am

    armchair l don`t really see a `bill of rights` will change our parliament puppets into leadership lions or the milk of human kindness. The yanks have `guns` in their bill of rights and obama can`t get even the weakest of change passed.

    On the `humanitarian` side, cuba/camp-delta/gitmo off-shore torture prisons are operated by the yanks, while we have nauru/malaysia/where-ever to torture boat-people. Both the yanks and Aust, have signed-up to human-rights/un and break them. l don`t think the `type` of system matters, but the quality of the puppets.

  32. May 3, 2013 6:25 am

    And the `quality` of the puppets is very low.

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