Wednesday, July 2, 2014

Euthanasia




                               

           

Farid Farhangfar 
May 25.2014



Euthanasia 

Euthanasia  and assisted suicide is controversial topics that continue to be the subject of ethical discourse. Euthanasia is the performing of an intentional act to end someone’s life who is suffering from an incurable or intolerable illness. Assisted suicide is to provide assistance to the person who is willing to end their life.

David Mathers euthanised/ suffocated his partner, who was suffering from a chronic illness, by placing a pillow then a towel and finally a plastic bag to end her suffering as an act of love. Mathers was charged with murder but pleaded manslaughter on the grounds of substantial mental impairment. This essay will evaluate the David Mathers’ case from the ethical theory framework of ‘Non- consequentialist’ and ‘Virtue ethics’.

The non-consequentialist theory when considering Euthanasia would look to the actions or the means of the action that led to the final consequence of death, rather than the consequence of death. This theory allows us to consider Mathers’ reasons for assisting his partner in ending her life. Virtue ethics as a theory looks to the values individuals have within themselves, and acknowledges that an individual’s values can override the rule of law. Virtue ethics would look to the values and duty that Mathers’ would have felt towards his partner.
Ethical frameworks do recognise that there are moral grounds for Euthanasia and assisted suicide, while legally both are considered as a criminal act in Australia. Even the justice system provides leniency for assisted suicide as can be seen in the case of Mathers where he was given a suspended sentence. Consideration will be given towards ways in which the law could apply to provide individuals democratic rights and autonomy of being able to legally choose the path of Euthanasia and assisted suicide.


Ms Eva Griffith of 78 who had suffered years of chronic pain due to degenerative spine condition has attempted to commit suicide by overdoes of antidepressant medication twice, but she survived ending her life. The next morning retiree David Mathers of 66 euthanised/suffocated his wife by placing a pillow then a towel and finally a plastic bag and ended her life. The supreme court of NSW charged Mr. Mathers with murder but later on he pleaded guilty to manslaughter on the basis of substantial mental impairment.

In looking at Mathers’ case from a non-consequentialist angle, his actions could be deemed as morally correct. The reason for this is that the theory does not consider the final consequence of death, but rather it looks at the actions that are taken to reach the end point (Thiroux & Krasemann 2012) and does not judge the rightness or wrongness of an action based on the consequence (Hughes 2000). Mathers could not tolerate watching his 78 year old partner Eve Griffith of 22 years suffer from chronic pain.

Griffith had been suffering long term from a degenerative spine condition and had witnessed her mother go through the same condition where her mother ended up in a nursing home. Griffith had made the decision to end her life and had requested that Mathers assist her in this course. The non-consequentialist view perceives that assisted suicide is morally acceptable where the patient has made the decision autonomously and has requested the help (Hughes 2000).

The non-consequentialist theory considers assisted suicide and Euthanasia as morally acceptable. However, critics against the non-consequentialist theory are of the thought that even if Euthanasia is not wrong, it should not be accepted widely as the consequence of this will lead to other morally unacceptable situations of killing. For example, elderly or terminally ill patients may feel the pressure to proceed with Euthanasia, so they do not become a burden to their family and also the health care system (Hughes 2000).

The non-consequentialist Kant duty ethics view generally holds that suicide is forbidden unless in certain circumstances, particularly where an individual is unable to hold on to the essential features of worthy preservation as a human being (Cooley 2013). Arguably when a person is unable to maintain control over things such as bowel movements or the ability to care for oneself, according to the Kant theory it is a duty to take one’s own life as a duty to the self but also to others (Cooley 2013). It can be argued from this ethical view point that Griffith was not at the stage that she was unable to care for herself, and in fact no medical evidence was provided to show that there was no medical treatment available for her condition.

According to the Kant theory Griffith taking her life and Mathers assisting her purely on the basis of pain only would contradict the premise of Kant theory on human dignity and that by killing themselves as a result of pain would be in fact robbing the self of human dignity (Cooley 2013). This raises an argument of whether what Mathers and Griffith did was in fact morally right.
Looking at the case study from the ethical lens of Virtue ethics however, allows us to take a wider view in assessing the morality of Euthanasia and assisted suicide. Virtue ethics looks to the individuals own morals and values for a more compassionate approach to the issues rose around active Euthanasia (Begley 2008). Virtue ethics places great emphasis on the Aristotelian and Thomistic belief that “morality and self are inseparable and intertwined” (Begley, 2008, p434). Therefore supporting Mathers’ decision being born from a selfless love where his compassion drove him to assist his partner in committing suicide.


Virtue ethics looks to the circumstances of the individuals involved in a position of assisted suicide and would encourage us to look to the relationship of those involved, the life experiences that they may have experienced and also the community that they come from to understand the reasons for making such a decision (Begley 2008). Griffiths and Mathers had been in a long term relationship and had witnessed the effects of a chronic illness which led Griffiths to make the decision to end her life, which from the virtue ethics perspective would support the reasons for making this choice.

There is the further argument of a right to die well as Griffiths has selected to do. The theory of ‘Euthanatos’ of which the word Euthanasia has been derived refers to the right or ability to ‘die well’ and also to the theory of living a good or well life, until the end of life ‘Eudaimonia’ (Begley 2008). It is argued that dying well is part and parcel of living well and that the process of dying will affect our ability to live well. Dying is an expected fact of life and is something that each individual will do in their lifetime and the argument arises that the two cannot be separated and should be seen as being intertwined; therefore, the right to die in peace is intrinsic to living well (Begley 2008).

In further support of Euthanasia, virtue ethics does not consider individuals in discrete episodes of their life, but rather looks to where the individual is at that certain juncture of their life. It looks to the experiences in life thus far and considers that death forms part of the individual’s journey of life (Begley 2008). Griffiths knew where her life journey would end up based on her mother’s experience and did not wish to end up in a nursing home like her mother.

In respect of Mathers respecting her decision, Virtue ethics provides support as it focuses on the interdependence of people and the importance of helping one another in the quest of moral standing of a decision. By assisting one another, individuals will be able to help each other flourish (Begley 2008). Mathers admitted to the court that if he was not facing the court as a result of a criminal charge he would have had to face the suffering of Griffith while she was confined to a nursing home and asking him why he did not help her when he could.

Virtue ethics also places great importance on the person who is assisting with suicide to ensure that they have sufficiently considered the point of view and perspective of the person wishing to end their life. It is vital to understand the factors of the other’s life rather than from their own experiences (Begley 2008). It appears that Mathers had considered his decision seriously and this was conveyed through his full and frank admission to the police and the courts on the circumstances and reasons behind the assisted suicide. Mathers stood strong in his argument for his reasons and seemed to display compassion and courage in reaching the decision which was clearly against the law, indicating his resolution in the decision (Begley 2008).

Euthanasia and assisted suicide is illegal in Australia, and generally any person who is involved in assisted suicide would be found guilty of murder or manslaughter in accordance with the Criminal law of Australia (White, Willmott 2012). In Mathers’ case he was found guilty of Manslaughter however was awarded a suspended sentence on the grounds of substantial mental impairment and in consideration of the reasons for assisting Griffith. This has been acknowledged in Euthanasia and Assisted Suicide cases generally where the sentences handed out are less than expected due to the circumstances around the suicide (Begley 2008).

Whilst we can see that there has been some form of moral acceptance towards Euthanasia and assisted suicide, the legislators seems to be slower in formalising laws in respect of this. The fear seems to stem from the consequentialist ethical framework that the consequences of allowing Euthanasia would give rise to the possibility of abuse and coercion for people who may be vulnerable and end up being forced into a decision that they do not wish to make, it seems to me that there needs to be clearly defined circumstances that will allow for Euthanasia but the difficulty lies in ensuring that these would be applied correctly and fairly (Begley 2008).
There is a need for reform around the laws in respect to Euthanasia as can be seen from both the non-consequential ethical framework and the virtue ethics framework. Elements of freedom and compassion should be considered for people when considering Euthanasia and this would support not only the people suffering but the people who would like to assist them such as families and medical professionals. The people who do assist should have protection from the law and also frameworks and guidelines for providing the assistance (Begley 2008).

Ethically Euthanasia has been viewed as being a decision that should be based on an individual’s right of autonomy and that others including the government and medical industry should respect this autonomous choice (Quaghebaur, Bernadette, Gastmans 2009). In order to be able to bring about any change to the laws surrounding Euthanasia we need to consider the majority views shared by the society as this will allow a conciliation and consensus around the ethical values of Euthanasia (White, Willmott 2012). There would still be arguments in respect of the Euthanasia debate; however, there is a need for a set of rules that would support the greater good when considering the right to terminate one’s own life.


Mathers’ and Griffith’s circumstances have been reviewed from both the non-consequentialist and virtue ethics ethical frameworks. Both of these theories support the view that Euthanasia and assisted suicide can be morally right where an individual is empowered to make an informed and independent decision to end their life as a result of suffering or terminal illness. Assisted Suicide can also be viewed as a morally correct supporting role for the person who is suffering. However, there is a need for the decision to be considered and well thought out before it can be viewed as morally acceptable. The law appears to recognise that this is a fine line by continuing to view Euthanasia and assisted suicide as a criminal act, but still handing down more lenient sentences in these cases. Law reform is encouraged, but within strict guidelines and processes to ensure that the decision is made autonomously and with full knowledge of the reasons and consequences. In democratic societies, especially in Australia, the right to die is a difficult ethical question. It’s upon the legislatures to legally support and observe the ethical frameworks surrounding controversial topics such as Euthanasia.  





References:

Begley, A.M. (2008) ‘Guilty but Good: Defending voluntary active Euthanasia from a virtue perspective’, Nursing Ethics, vol 15 (4)
Cooley, D.R. (2013) ‘A Kantian care ethics suicide duty’, International Journal of Law and Psychiatry, vol 36, Issues 5–6
Hughes, J. (2000) ‘Consquentialism and the slippery slope: a response to Clarke’, Journal of Applied Psychology, Vol. 17 No. 2
Quaghebeur, T. Dierckx de CasterlĂ©, B. Gastmans, C. (2009) ‘Nursing and Euthanasia: A review of argument-based ethics literature’, Nursing Ethics, vol 16, no 4.
hiroux, J. P. and Krasemann, K.W. (2012) Ethics Theory and Practice 11th Ed London, England: Pearson International Edition
White, B. and Willmott, L. (2012) ‘How should Australia regulate voluntary Euthanasia and assisted suicide?’, Journal of Law and Medicine, 20JLM, 410


Friday, May 23, 2014









The Earth people dreaming of Elysium

Farid Farhangfar
25.04.2014 - Sydney 

Social inequality in terms of class and ethnicity has been constructed in the film Elysium as a hierarchical layer of two categories of people set apart based on their social status of the rich upper class and the poor lower class. This division is line with the theory of social stratification. Social inequality is challenged in the film Elysium through the uprising of the lower class against the upper class in order to, break the chain of unequal distribution of power and wealth as well as class status. The movie Elysium due to its entertaining and positive storyline may motivate lower class audiences to overcome social inequality as it encourages the theory of social mobility for individuals to be able to step up in the status hierarchy. The recent measures taken by the Australian government towards asylum seekers, particularly in respect of border control polices, is reflective of the social inequality and division that is shown in Elysium.

The storyline in the movie Elysium portrays Karl Marx theory of two classes of people that have been divided based on their class status and wealth.  The ‘Bourgeoisies Capitalist’, who control the means of production and the other ‘Proletariat Workers’ whose value is only their labour power that is also controlled by Bourgeoisies (Henslin et al 2014, p223). The upper class lives in a space station above Earth called Elysium, where the citizen’s are provided with high quality health care and standard of living. While, the lower class ‘‘Proletariat’ live on an over populated and polluted Earth and provide labour that benefits the upper class ‘Bourgeoisies’ who also control the lower class. There is also an ethnic division shown in the movie Elysium where the lower class people on Earth are manly from a Latino background.

Elysium also highlights the theory of social stratification. Social stratification is a specific kind of social inequality where the people of a nation live under different societal layers according to their social status (Henslin et al 2014). Social stratification is prominent in Elysium as you are either born as a citizen of Elysium or a citizen of Earth and you cannot change your citizenship, therefore your social status is predetermined and permanent.  

Social inequality is challenged in Elysium by the people of Earth, ‘Proletariats’ who are desperate to escape Earth as a result of negative factors like crime and poverty and are frustrated with the monopolising of both political power and laws by the upper class. The main character of Elysium ‘Max’ is from the lower class who is in desperate need of healthcare as well as carrying frustration towards the conditions on Earth in comparison to Elysium.  Max makes his way to the space station Elysium, with the support of other lower class Earth citizens, and reprograms the Elysium citizenship system by scarifying himself and paves the way of equality for the people on Earth by creating a classless society where everyone is now a citizen of Elysium. The rebellious nature of the lower class in Elysium who in the end overturns the upper class is representative of the Marxist theory that the oppressed will eventually turn against the upper class in a rebellion and ensure that the social status becomes equal between the classes (Henslin et al 2014, p223). 

The movement of individuals in social status, whether that be to climb or drop in the social class ladder is referred to as social mobility (Henslin et al 2014). It is a generally accepted notion that social inequality exists in every society at varying levels and this notion of inequality is also portrayed in different Hollywood movies over time (Sutherland et al 2013, p45). However, storylines in movies will also more than likely have an ambitious main character that challenges social inequality and will be successful in improving the social mobility of the lower class (Dowd JJ 2013, p37). Therefore movies play an important role in giving people hope that they would be able to improve their life by stepping up the social ladder. 

 Movies are a symbolic motivational vehicle for cultural learning in viewers which in turn encourages the theory of social mobility (Sutherland et al 2013, p37). The importance of critically engaging with popular culture such as movies has been expressed by Sean Carlton (Science Fiction as Social Criticism)  as being an important part of our strategy to encourage social mobility and in fact to change the view of the world towards equality.

Australia does not have a recognised class system nor does it have a social stratification as is described in the movie Elysium. However, the historical and contemporary treatment of Australian indigenous population indicates that there is some form of class system, but that this is not socially acknowledged (Henslin et al 2014, p234).

Looking to the current Australian landscape, we can see that the recent measures taken by the Australian government towards Asylum Seekers, particularly in respect of Border Control Polices, is reflective of the social inequality and division that is shown in Elysium. As it shown in the movie, great measures are taken by the government of Elysium to ensure that illegal aircrafts do not reach the space station. Andrew Smith of ‘The Drum’ ABC Opinion site refers to the action taken in Elysium and provides the opinion that:
“As the security services of the Elysium space station shoot down unauthorised ships flying toward the prosperous nation, Australian minds wander to the inevitable militarisation of our own borders: the three-star general in charge of towing, buying or perhaps even one day shooting boats trudging towards Christmas Island.

 There is no doubt that Asylum seekers or so called ‘Boat people’ is a controversial issue in today’s Australian political landscape, where on the one hand the Australian government stops the entrance of illegal immigrants by justifying that they might be linked to terrorist networks or they might bring diseases from third world countries to Australia, on the other hand the so called ‘Boat people’ entering Australia’s shore are seeking asylum due to the imminent threat of persecution or death related to religious-political problems and so on. The only hope of ‘Boat people’ is the United Nation Higher Commissioner for Refugees (UNHCR) and 1951 Refugee Convention to protect them.
The current Australian political landscape with asylum seekers is similar to Elysium, where the citizens of the Earth trying to escape polluted Earth and poverty to seek asylum in space station Elysium. We can also see that the government of Elysium have a strict border protection policy which is similar to Australia.  


The storyline of the movie Elysium addressed many sociological theories in respect of social inequality arising from class and ethnicity. Elysium mirrored the social theory of social stratification with the two distinct class layers, the lower class Earth citizen and the upper class Elysium citizens. The Karl Marx theory of lower class becoming frustrated with the inequality and fighting against the upper class for equal rights is played out in Elysium where social equality is achieved through rebelling against the upper class. Movies with their entertaining factor, interesting storyline and strong characters create a symbolic ambition and motivation for individuals who want to improve their social status by stepping up the social ladder to embrace social mobility. The movie Elysium reflects the current Australian policy towards asylum seekers and border protection, though not to the extent that is portrayed in Elysium, however some similarities can be drawn between Australian policy and the storyline of Elysium.


References:
Carlton, S 2013, ‘Science Fiction as Social Criticism: Evaluating Elysium’, Canadian Dimension, vol 46, no. 6, p42.
Dowd, J.J. (2010) ‘Understanding Social mobility through the movies’ in Sutherland, J. And Feltey, K. (eds.) (2012) Cinematic Sociology: Social Life in Film. Pine Forge Press, Thousand Oaks.
Eschholz, S., Bufkin, J., and J.Long (2002) ‘Symbolic Reality Bites: Women and Racial/Ethnic Minorities in Modern Film’ in Sociological Spectrum, Vol 22 (3): Pp 299­334.
Henslin, J., Possamai, A and A. Possamai­Inesedy (2013) Sociology: A Down to Earth Approach, Pearson Australia, Frenchs Forest, NSW.
Smith, A 2013, ‘Can Matt Damon solve our refugee policy dilemma?’ ABC The Drum, 30 August 2013, viewed 5 April 2014, <http://www.abc.net.au/news/2013-08-30/smith-elysium-and-asylum-policy/4922020>
Sutherland, J. A., & Feltey, K. (Eds.). (2012). Cinematic Sociology: Social Life in Film. Pine Forge Press, Thousand Oaks.








                                                                    


                                                                           
 Malaysian Solution

10.06.2012 - Sydney
Farid Farhangfar 



   Introduction



In the extracts presented, Leaders of the Labor and Liberal parties present different arguments as to the effect of the Malaysian solution. The Labor government argues that the effect of Malaysian solution is to stop people smuggling and help genuine refugees.  The Liberal party argues that the Malaysian solution would lead to human rights abuses. This essay will do five things. First, it will provide a summary of key arguments. Second, it will provide an analysis of the key factual claims. Third, it will consider the political, economic and social claims made by each party. Fourth, it will analyse the legal claims and assumptions. Finally, this essay will outline my own views about the extracts and possible alternative solution will be presented. 


Summary of Key Arguments and Identification of Fallacies



The Labor government argues that the “Malaysian solution is a ground breaking arrangement to combat people smuggling and provide protection to an additional 4,000 genuine refugees.”  They further state that the arrangement between Australian and Malaysia will stop the people smuggling business and protect people who risk their life at sea.
The Labor argument does not provide any evidence in support of their claim to say that the Malaysian solution can stop people smugglers. Labor also relies on a formal fallacy. In Labor’s argument the premise is that “The Australian and Malaysian government today signed a groundbreaking arrangement.”  Here the premises might provide some weak support for the conclusion that the arrangement will “combat people smuggling.” However, the conclusion is not particularly true as there is no evidence.
Moreover, the Labor government in order to justify their arguments use emotive language such as “human misery.” This can be identified as an appeal to pity. The Labor government is appealing to the people of Australia to feel pity for genuine refugees hence supporting the conclusion that signing the Malaysian solution will end people smuggling.


The argument put forward by the Liberal party is that “the Malaysian solution is another betrayal by the Prime Minister.”They make this argument because that the Labor government had previously denounced similar polices put in place by the Howard government and this solution is more brutal then that and is a broken promise.  Furthermore, the Liberal argument is that Malaysia is not a signatory country to the Refugee Convention; therefore sending asylum – seekers to Malaysia may lead to human rights violation.

The Liberal Party argument is also formal fallacy. In the extract given by Liberal party the argument is that Malaysia hasn't signed the Refugee Convention and, as a result refugee may face human rights abuses. The Liberal extract seems to be presenting their argument as a valid deductive argument, the conclusion that the refugees will face caning, follows necessarily from the premises that this will happen because Malaysia has not signed the Convention. One can claim that this argument is not supported by evidence to make it a valid deductive argument; therefore this is a formal fallacy.

Additionally, the Liberal Party uses Ad hominem argument. In the extract the Liberal Party states that “Malaysian solution is another betrayal by the Prime Minister and it’s a broken promise.”  The Liberal extract gives the impression that by attacking the bad character of the Prime Minister they are able to attack the substance of the Labor party position in relation to the Malaysian solution. It demonstrates that the Liberal party is using a political trick to distract the people from the real issue and by making them emotional, gain their support. 

Analysis of Factual Claims and Assumptions


On 25 July 2011, the Australian and Malaysian governments signed an arrangement on the transfer and resettlement of certain persons seeking international protection for refugee status determination. This Arrangement was first introduced by the Prime Ministers of Australia and Malaysia in a joint statement presented on 7 May 2011.
It was acknowledged that the aim of the Arrangement could not be reached by countries alone and this required countries forming cooperative arrangements under the guide of regional and international frameworks. However, there are criticisms of this arrangement not being entered into in the spirit of international or regional cooperation, but rather as a deterrent to asylum seekers who are exercising their legitimate rights under International Law to the freedom of movement in order to seek asylum.
The Liberal extract is critical of this arrangement on the basis that Malaysia has not signed the Refugee Convention and that they have no intention of signing the Refugee Convention. The Liberal extract also makes an assumption that as Malaysia has not signed the Refugee Convention that this may lead to human rights abuses.

In my opinion there is some basis for the Liberal argument that there may be issues of concern if Malaysia is not a signatory country to the refugee convention. The Monash University Castan Centre for Human Rights Law made submissions to an Inquiry into the arrangement and they found that there are a significant number of persons of concerns to UNHCR who remain unregistered. According to refugee communities’ estimation the number of unregistered refugee and asylum seekers amount to about 10,000 persons. If this is the situation then there is a risk that if more asylum seekers are sent to Malaysia, they will not be processed correctly in line with UNHCR requirements and fall into the large pool of unregistered asylum seekers.

Consideration of Ethical, Political or Economic Ideas


The Labor government can be seen to be utilising the utilitarianism idea. Labor’s intention in introducing the arrangement has the effect of maximising the wellbeing of all those affected by the arrangement. First of all by combating people smugglers, secondly deterring asylum seekers from risking the journey of travelling by sea and finally by allowing Australia to have a formal process of managing Asylum seeker claims. However, this can be seen to be at the expense of genuine refugees who are desperate to seek asylum from their country of origin. The arrangement would be more ideal under the utilitarianism model, if Australia elected a country that will protect asylum seeker rights. However, as Malaysia is not a signatory to the Refugee Convention this creates concerns.
Despite this, the Labor government is spending quite a lot of money, time and resources to implement the Malaysia solution to respond to the concerns of the public and the opposition parties. But by looking at the empirical facts, and the reality of the Malaysia solution, one can see that Labor has not really considered the moral judgment of their decision.



Furthermore, it would be more effective if Labor considers the moral aptitude of any country that they send asylum seekers to. If Labor applies the principles of universalisability then they should consider agreements with countries that have the same moral ground as Australia.
In considering the political situation, it appears that recent governments, including Labor are focusing more on blocking access to asylum seekers. This situation can be observed throughout the history of Australia through such policies as the White Australia Policy and more recently the Tampa affair of August 2001 where Australia militarily barred entry of refugees into Australia. It is clear that Labor is seeking to restrict access due to the increase of the business of people smuggling and unwanted arrivals. But by taking this approach they have forgotten their ethical and legal obligations at the national and international level.

Although Australia is blocking access to asylum seekers they are supporting the globalization of the economical life by seeking to bring in wealthy international investors. This can be seen as a form of discrimination where wealthy people are granted easier access; however people who are poor face more challenges and restrictions to movement. This is an injustice to those who truly require asylum but are denied in the face of wealth.


Analysis of Legal Claims or Assumptions


On 31 August 2011 the High Court of Australia ruled the Labor government Malaysian solution invalid, restraining the government authority to send refugees to Malaysia. The legislation considered by the High Court was the Migration Act, Particularly Section 198.
Section 198 of the Migration Act was enacted shortly after what is known as the “Pacific Solution”.  On 26 August 2001 the Australian government deployed SAS troop to remove asylum seekers from a container ship to HMAS Manoora for transportation to Nauru. The intention of the government was to remove asylum seekers from Australia’s shores and to have them processed in another country. The government of Australia thereafter formally agreed with the Nauru government that for payment of $10 Million from Canberra, Nauru will detain up to 1200 people at a time. In order to bring legal support to the “Pacific Solution” section 198 of Migration Act came in to force on 27 September 2001.


On the second of October 2001, Nauru was declared as a specified country under section 198 of the Migration Act. It is relevant to consider that at the time Nauru was not a party to the refugee convention and nor did its domestic law make any reference to refugees or asylum seeker under International Law. This is also the situation with Malaysia as a country. Chief Justice French of the High Court made a judgement that “The invocation, in 2001 of s 198A to support a declaration in relation to the Republic of Nauru shortly after an agreement had been entered into between Australia and Nauru, cannot determine the construction of the section.” This is a positive step by legal justice system in learning and growing forward from previous experiences. 

The High Court of Australia has now determined the proper construction of section 198 of the Migration Act. The court has found that a specified country must be one that provides access to certain procedures and also provides protection in line with the kind of access and protection that Australia undertook when it signed the Refugee Convention and Refugee Protocol.These procedures and protection should either be found in the domestic law of the specified country or the specified country should be bound by international obligations to ensure certain procedures and provide protection.


In respect of the position of Malaysia being a specified country under section 198, the High Court has found that Malaysia does not provide the access or protection required by the section and as such it was not open to the Minister of Migration to declare Malaysia as a specified country. The High Court found that the following issues with Malaysia’s ability to provide effective procedures and protection:
1.      Malaysia does not recognise the status of refugees or have a process for determination of the asylum seekers;
2.      They have not signed the Refugee Convention or the Refugee protocol;
3.      There is no legally binding arrangement with Australia obliging Malaysia to provide protection.

With respect to the High Court decision the Court ordered that it was not open to the Minister to declare Malaysia as specified country for the propose of the section 198, hence making the arrangement Australia and Malaysia invalid.  This is a positive step for Australia in managing and meeting the international obligations in relation to asylum seekers. Even if in the future the Australian government want to send asylum seekers to another country this decision at least ensures that such country will have proper access and protection of rights for asylum seekers.


 Considered Thoughts and Proposals


It seems that the Labor party is trying to find any possible way to stop asylum seekers entering Australia’s shore, by introducing such measures as the Malaysian solution. However, they have faced opposition from all angles. Political pressure from the Liberal party, legal pressure through the recent High Court Decision and ethical pressures arising from Australia’s international obligations.
Labor and Liberal parties have been debating over the controversial issue of asylum seekers for many years, yet neither party has been able to present a workable solution to the issue of asylum seekers. Prior to Labor introducing the Malaysia Solution, the Liberal government also had introduced ineffective arrangements, such as the “Pacific Solution”. If the political parties are truly concerned about the national interest, territorial integrity of Australia and the plight of asylum seekers, they need to work together to bring a positive reform for a permanent solution.

There is a need for a new perspective and a renewed approach to dealing with asylum seeker issue. By learning from history, appreciating the principles of the Refugee Convention and considering the social sphere that we live in, we need to move beyond borders which create discriminations between the rich and the poor. By removing borders we create a global backyard where we are all global citizen who have the right to move where we wish around the world. It has been said that “Without the right to live securely with full political and social rights, democracy itself is meaningless.”In order to reach a permanent solution for asylum seekers issue, following suggestions are made: 

Labor and Liberal party to show tolerance and togetherness to bring about positive reform through sharing ideas and not negatively criticising each other for political gain. By learning from the experiences of other countries that have successful processes in place for processing of asylum seeker claims and have effective protection measures for asylum seekers.


Conclusion

Both Labor and Liberal rely on fallacies in the extracts and use a play on words to progress their key arguments. The parties make a number of factual and legal claims and assumptions in the extracts. However, these are not supported by any solid evidence in support of their argument. This essay has looked beyond the extract to provide a critical analysis of the factual and legal claims and has referred to the history of asylum seeker policies, and recent High Court decision. Ethical, political and economic issues have been considered. The essay end with proposals for the future of asylum seeker claims in Australia and globally.



References:


 Chris Bowen MP Minister for Immigration and Citizenship, Arrangement between the Government of Australia and the Government of Malaysia on transfer and resettlement (25 July 2011)

Michael Head and Scott Mann, Law in Perspective: Ethics, Society and Critical Thinking (UNSW Press, 2nd ed, 2009)

Monash University Castan Centre for Human Rights Law, Submission to Inquiry into the agreement between Australia and Malaysia on the transfer of asylum seekers to Malaysia, Monash University (15 September 2011)

Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32 (31 August 2011)

Prime Minister of Australia the Hon Julia Gillard MP, Australia and Malaysia sign transfer deal (25 July 2011)


Tony Abbot Federal Member for Warringah Leader of the Opposition, Joint Doorstop Interview, Shute Harbour, QLD (25 July 2011)