Why no bail?

If you are accused of illegally immigrating to Australia you don’t get access to bail. If you are accused of pack rape you do.

http://m.theage.com.au/victoria/teenagers-bailed-on-rape-charges-20100525-w9zv.html

It seems to me that on a moral scale illegally immigrating to Australia isn’t as bad as pack rape.

Apparently 90% of boat people arriving in Australia and detained are later found to be innocent, having a lawful claim to come here because they are refugees. I don’t know how many people charged with rape are found to be innocent of the charge but I would wager it is much lower than 90%.

Detaining innocent people of their liberty isn’t a good thing. How do we get the balance right?

35 thoughts on “Why no bail?

  1. Australia is a civilised country in that it affords civil rights in the form of due process, right to life, liberty and pursuit of happiness (somewhat) amongst other rights.
    When these rights are declared it is unfortunate that the limiter “for Australians or their invited guests” is seldom used, even though , from logical analysis, it is all that it could be.
    A Somali living in Somalia does not and could not claim protection from the Australian government against violations of her liberty. It is not the moral responsibility, and certainly not the practical capability, of Australia to protect all those hundreds of millions of oppressed people throughout the world.
    If that same Somali wrote a letter to Australia to apply for permanent residence and was subsequently rebuffed , she would –not- have the right of administrative review of that bureaucrat’s decision to deny her residence. One could imagine the quagmire of the appeals of ten million denied applications by poor or oppressed peoples throughout the world.
    Australia does afford the rights of procedural fairness, habeas corpus, speedy trial, bail where appropriate, pubic defence, appeals, etc to all of its citizens and invited guests but obviously there is a limit.
    What TerjeP is implying is that someone who has no Australian rights can still acquire them by breaking our laws in the form of illegally entering our country. What’s next? Captured POWs who attempted to invade Australia all get afforded their air conditioned cells with cable TV and internet access? For those who don’t make bail that is.

    If we are not responsible for the welfare of some hobo living on the street, why should we suddenly become responsible if he should decide to break into our house and sit himself at our dinner table?

  2. What TerjeP is implying is that someone who has no Australian rights can still acquire them by breaking our laws in the form of illegally entering our country.

    90% of those detained have not done anything unlawful. They are not detained for breaking the law but rather they are detained to help find those that have. Someone in Somalia is not being detained by the Australian government so the notion that I’m implying they are owed a comparable level of due process is a nonsence.

  3. I totally agree with Philip. Governments protect the rights of citizens within their particular jurisdiction.

    My comment is quite general and I can’t get into the details of the legal treatment of refugees and illegal immigrants. But there are some broader ideas on immigration that I think are important that judging by the comments I read in the paper, most people don’t agree with.

    I think immigration quotas should be lifted and requirements for entry lowered. This would hopefully help with the illegal immigration problem by allowing people to immigrate legally more easily.

    I actually think it is a human right to live in the country of your choosing (as long as you enter legally), even though this situation sounds like a fairy story in our current world and I doubt to see this in my lifetime. It would also help if there were more, freer countries around the world of course and less hell holes like some of the African countries for example. But Australia should lead by example providing a positive influence for other countries to lift their game.

    In addition there are the problems of state welfare, state ownership or heavy regulation of infrastructure, building regulation and business regulations. These need to be abolished (perhaps gradually I don’t know) so that immigrants cannot become a forced burden on current citizens and so that immigrants can become productive people as quickly as possible. All libertarians should know wealth is created and is not a zero sum game.

    Generally I have a favourable view of immigrants. The type of person willing to take the bold step of leaving their country of origin, having the confidence they can make it in a new land and seeking a freer society that they recognise will benefit them. These kind of people are quite likely to value freedom and be productive. I prefer this kind of person to some lazy Australian bogan sitting at home watching midday TV, complaining he’s getting screwed by the man and demanding welfare, public housing and industrial relations regulations.

  4. Terje,

    You’re presuming two things.

    1. Because most criminal trials end in a guilty result, then the presumption of innocence is flawed.

    2. Those who request bail do not need to posit any evidence.

    Clearly 1. and 2. contradict each other, but I think there is merit in your concerns.

  5. TerjeP, I think we have to differentiate between what is morally correct from objective analysis and what is correct due to it currently being legal.
    Yes you may be correct in saying that the wetbacks (excuse the term but being often literally correct and a universal term, it may well be appropriate; especially since ‘illegals’ is subject to dispute and ‘asylum seekers’ is misleading as it includes others in different situations ) have committed no crime because they are declared legal after the fact. However I am still not sure; if I was returning to Australia and decided to sneak in on a small boat rather than going through customs and immigration, I’m sure there would be a law against it even though I had a passport. Furthermore, if one resists arrest from a police officer who acts in good faith, then subsequent acquittal of the crime charged does not the secondary crime of resisting arrest.
    However those intercepted “innocent” are only such because of that inane Australian law that says technical refugees who surreptitiously make it here can stay but those who apply through correct channels from overseas can sit in a refugee camp and wait, hope and grow old. You could just as well say that convicting and jailing homosexuals in Tasmania in the 80’s was quite OK because, after all, it was the law.
    It is almost the definition of improper behaviour to do something through deceit, evasion or darkness because the opposite method will lead to you being denied that activity by legitimate authorities.
    Societies survive only when their laws are respected and laws that are clearly irrational, such as being rewarded for evasive behaviour, are not conducive to respect.

  6. Illegal immigrants have not infringed on anyone’s liberty. illegal immigration is a victimless crime. The law in this case, is much like being required to get a government permit to live in a particular house. Most libertarians are sceptical of such laws so I don’t why we’d be sceptical of bureaucratic immigration laws.

    I think civil disobedience is a great way to move towards liberty and I have little respect for people that follow unjust laws. Society relies on laws, but the only laws that are worth a damn are laws that speak to infringements upon liberty.

    To speak to Terje’s point, though, I think that since most refugees end up being legitimate we should presume a little more innocence on their part- especially when there are children involved.

    I think the teens that gang raped the girl were granted leniency because of their age. Families with children that arrive in unorthodox should especially be shown leniency. Until the law changes to a more open-border policy, anyway.

  7. Apparently 90% of boat people arriving in Australia and detained are later found to be innocent

    That’s not accurate. Arriving in Australia with the intention of staying, in the absence of prior permission, is prima facie an offence. The fact that 90% of such people are subsequently granted an asylum visa does not make them “innocent”.

  8. “If you are accused of illegally immigrating to Australia you don’t get access to bail. If you are accused of pack rape you do.”

    Terje
    I think you will find that bail can be achieved by those accused of illegal entry…all they have to do is ask and they will be returned home, unlike those charged with pack rape. They would have to put up some dollars and pay their own taxi fare.

    But seriously, there are two things that could be done easily to help the “illegal arrivals” problem. Firstly, complete medical and security checks in a more timely fashion. Let’s face it, there really aren’t that many arrivals to process, I really can not see that it can take months or even years to determine that somebody does not carry any exotic disease, has reasonable fear for their safety if returned to their country of origin, and is no more likely than the rest of us to blow up Parliament House.
    Secondly, border protection laws could be eased somewhat, in that the “reasonable fear for one’s own safety” bit be backed off. I think that if you are prepared to spend a decent chunk of you life roughing it though south east Asia and then being loaded onto a rusting hulk, that may or may not stay afloat, on the off chance you may come somewhere near Australia before hitting Antarctica and being charged an extortionate price by a people smuggler for the privilege sort of covers that bit. Don’t you?
    As for the rapists, crimes such a this are inexcusable. Bail should not be an option for more serious offenses against the person (murder,rape etc.) on the proviso that the trial be held in a timely manner and not dragged out through the courts for years.

  9. Illegal immigrants are arguably a greater flight risk for one, so it makes sense they’d be refused bail on those grounds… but DavidL is right:

    Arriving in Australia with the intention of staying, in the absence of prior permission, is prima facie an offence. The fact that 90% of such people are subsequently granted an asylum visa does not make them “innocent”.

    So, the (alleged) rapists are innocent until proven guilty, whereas illegal immigrants are not. Seems obvious.

  10. Fleeced – in granting bail the flight risk is always a consideration. A judge weighs this concern against the concern for liberty. Being free to apply for bail does not mean you automatically get it. And generally you are required to put up something of value (ie a bond) to ensure you have a motive to turn up to court as required.

    In terms of your claim that illegal immigrant are a bigger flight risk than rapists I don’t think there is much evidence for that. However I’m open to any evidence or reasoning you may wish to offer.

    I’m making an analogy in this article and I’m not claiming it is perfect. However I do think it is a useful way to frame the issue.

  11. I think there is a fundamental difference between the two scenarios in your analogy Terje as identified by Philip.

    I think we should quite possibly be kind to refugees and quite possibly accept many of them but I think it is important to realise there shouldn’t be any moral or legal rights obligation to do this. ie: a charitable gesture, not an obligation. The Australian government is not entrusted to protect the rights of foreigners therefore they don’t have a right to bail. Do you agree with this principle and simply think bail could be a workable option or an act of good will, or do you disagree with the point entirely?

    I also think the first part of Larkin’s comment is correct – I can’t see why detention needs to go on for so long. Can’t medical checks and paperwork be done quicker?

  12. Tim – I’m not pretending the analogy is without problems.

    Whilst I would agree that it is not the role of the government to defend the rights of foreigners there is still a problem if the government systematically denies foreigners of their natural rights. For example if a French man is being tortured by a Spanish man in Germany it isn’t the job of the Australian government to protect or rescue the French man. However that does not mean it is permissable for the Australian government to torture French men.

  13. >> However that does not mean it is permissable for the Australian government to torture French men.

    That’s just a silly analogy.
    These people can leave my country whenever they want to.

    I’m sure the genuine sufferers of torture throughout history would have been very happy to have that option.

    These people have no inherent right to come and live in my country just because they want to.

    I get really sick of people trying to make be responsible for every bad decision that people around me make.
    Apparently I am responsible for people who make bad life decisions about alcohol, drugs, overeating, education, borrowing .. the list goes on. I get continually blamed for bringing alcohol, drugs and disease to the Aborigines – which is odd because because I wasn’t even born when those things happened.

    Oh, that’s right .. I have the same skin color as the people who did it. For some reason that logic is no longer considered ‘racist’.

    Now, apparently I am responsible for things that happen in countries I have never even been to, and occasionally have never even heard of.

    Please stop promoting Australia as a human garbage dump.
    I’m not responsible to house, feed or care for these people.

    If you feel so strongly about it, why don’t you use your own money to set up a safe haven in another country? There are many safe, cheap places where safe havens could be set up, and funded by voluntary contributions from affluent middle-class luvvies in hardworking developed countries. Why not do that?

    Oh, that’s right .. you want me to pay for it.

  14. “These people can leave my country whenever they want to.”

    No they can’t! We have the equivalent of a “leaving town tax”!

    “Oh, that’s right .. you want me to pay for it.”

    No I don’t. The costs of mandatory detention were brought to you by Paul J Keating.

  15. >> >> “These people can leave my country whenever they want to.”

    >> No they can’t! We have the equivalent of a “leaving town tax”!

    Really? The Australian government prevents asylum seekers leaving
    the country until they pay money? First I’ve heard of this.

    >> >> “Oh, that’s right .. you want me to pay for it.”

    >> No I don’t. The costs of mandatory detention were brought to you by Paul J Keating.

    Ahh .. if only they took their hand out of my pocket as they left the detention
    center ..

  16. That’s just a silly analogy.

    It wasn’t an analogy. I’m not equating mandatory detention with torture. It was a hypothetical example intended to illustrate a general point about how a government isn’t duty bound to protect foreign peoples rights, but isn’t by implication automatically free to violate those peoples rights. “Protecting” and “not harming” are different things.

    These people have no inherent right to come and live in my country just because they want to.

    They may have no inherent right but 90% of them have a legal right which is why they get to stay. By all means argue for a change to the law.

    I’m not responsible to house, feed or care for these people.

    Nobody said you were. Strawman is an apt name on this occasion.

  17. Strawman, I take it you’re a non-interventionist and were opposed to the war in Iraq?

    Because I’ve heard the opposite argument to the one you’re using used in favour of freeing the oppressed in other countries.

    Does a nation have a responsibility to free non-citizens from violence and oppression that runs counter to liberty? It is not an easy question for libertarians to answer.

    I think, though, that it’d be almost the height of hypocrisy for a libertarian to be pro-intervention and anti-refugee, though. Were anyone to take such a position I think the term would be “conservative” rather than “libertarian”.

  18. The best counter argument to my article was the one made by Cameron Larkin in that those detained for illegal entry are free to go so long as they go back to where they came. The analogy would be somebody inside a warehouse they broke into. They may be releases on bail but they are not released back into the warehouse. So if you break into warehouse Australia they will let you free, but outside the perimeter fence, not inside.

    However Australian law permits people to come here and claim refuge. DavidL has challenged this assertion but I’m not convinced. In any case the practical reality is that we do allow about 90% to stay. As long as we are doing this why do we incur the expense of locking people up? Why not grant them bail and process them in the mean time. Was the situation prior to mandatory detention really so dire?

  19. >> Strawman, I take it you’re a non-interventionist and were opposed to the war
    >> in Iraq?

    >> Because I’ve heard the opposite argument to the one you’re using used in
    >> favour of freeing the oppressed in other countries.

    Right .. someone somewhere used a different argument to me, so therefore I am
    wrong ..

    Is this a forum for feminist logic? Did the person who made the other argument
    have the same color skin as me? Oh .. well that’s different then.

    >> Does a nation have a responsibility to free non-citizens from violence and
    >> oppression that runs counter to liberty?

    Nations do not have responsibility Terje, individuals do.

    >> It is not an easy question for libertarians to answer.

    It’s especially hard for ‘libertarians’ to concentrate on the difficult problems
    with all those hands in their pockets.

    >> I think, though, that it’d be almost the height of hypocrisy for a
    >> libertarian to be pro-intervention and anti-refugee, though. Were anyone to
    >> take such a position I think the term would be ‘conservative‘ rather than
    >> ΄libertarian‘.

    So you are threatening to label me as ‘conservative’ instead of ‘libertarian’?
    As someone who has never even described themselves as ‘libertarian’ you have no
    idea how much that hurts me.

    Some of us would think that it would almost be the height of hypocrisy for
    a libertarian to believe that the right of an asylum seeker to put their hands
    in someone else’s pocket is greater than the right of a corporate body to
    prevent people coming onto their property.

    For anyone who hasn’t spotted the pattern, I don’t argue from libertarian
    principles (‘this VERY IMPORTANT PERSON said X, therefore I have to argue that
    it’s true’). Any ‘libertarian’ arguing from that position is just substituting
    libertarianism for another religion, and conversion to Islam is just a mosque
    visit away.

    Genuine belief sets stem from basic principles (eg ‘theft is wrong’), and all
    the writings by VERY IMPORTANT PEOPLE are merely opinions, which can be used to
    refine your views. That’s all.

    Consider:

    It would be hypocritical for a libertarian to simultaneously ague X and Y.

    This is a stupid sentence. If X and Y are contradictory they are contradictory
    for anyone – not just a ‘libertarian’.

    This thread has gotten silly. All we need now is for someone to mention Nazis,
    and we can call the thread dead. Oops, I just did.

  20. Strawman – other than the bit about NAZIs I pretty much agree with everything in your latest comment.

  21. >> Strawman – other than the bit about NAZIs I pretty much
    >> agree with everything in your latest comment.

    Hopefully you don’t agree with me writing this bit:

    >> Nations do not have responsibility Terje, individuals do.

    The name should have been Shem, not Terje. I actually spotted this before I submitted, but had finger trouble with the editor.

    🙂

  22. The name should have been Shem but on reflection are you saying that the Labor party isn’t responsible for all that debt?

  23. Strawman, I don’t know your politics so my response wasn’t aimed at you. You did, however, best articulate one argument against asylum seekers so it your argument that I was using as fuel for my own. My point was to those commenting on the forum here that are pro-intervention and anti-refugee.

    Personally I think open borders with no government support for refugees is the most “free” option. That means if boats come, they come. If the people on them can’t get a job when they get here? Well they’ll need to find a private charitable organisation to sponsor them.

  24. >> The name should have been Shem but on reflection are you
    >> saying that the Labor party isn’t responsible for all that
    >> debt?

    The Labour Party is not a nation – it is a voluntary organization which I, for one, choose not to join.

    No, the Labour Party is not responsible for the debt – the people who choose to belong to the Labour Party are responsible, and if I ever got the chance to make them repay it, then I would do so. I would start with the Rudds’ millions.

    At the risk of changing the topic, the Greek people are not responsible for paying the debt – the people who borrowed the money are responsible. That is why I hope that the Greek Government will default – it will help many realize that people are not responsible for the actions of corrupt governments – theirs or anyone else’s. But politicians and senior public servants are – because they voluntarily participate in (and usually profit from) it.

    I have no responsibility to pay back the 94 billion dollars that Rudd has squandered on vote buying. Anyone who bought aussie bonds might like to bear this in mind**.

    **Yes this probably includes my superannuation fund – unfortunately. Doh!

  25. >> Strawman, I don’t know your politics so my response wasn’t
    >> aimed at you.

    Really? That’s why you wrote:

    >> Strawman, I take it you’re a non-interventionist and were
    >> opposed to the war in Iraq?

    Geez, I wonder what you write when you _ARE_ aiming a response at someone. ‘To Whom It May Concern’?

    .. this is like being at a feminist logic forum for WIMMIN!.

  26. I agree regarding Greece and default. I’m also of the view that if they were left to default it would make the long term survival of the Euro more likely rather than less. In reality the proposed bailouts are not for Greece but for the lenders. I’m sure the proposed bailouts are the product of a lot of late night meetings between concerned bankers and politicians rather than altruism towards the people of Greece.

    I also agree with your answer regarding the Labor party. However I do reserve the right for the purposes of brevity to say things along the lines of “the Labor government is responsible for running up a massive debt”.

  27. It was 4am when I wrote my original reply. I should stick to posting during sane ours.

    Not sure what is wrong with feminism, however. While not an adherent to feminist logic it is a consistent philosophy, although it is more explanatory than directional.

  28. >> I do reserve the right for the purposes of brevity to say >> things along the lines of “the Labor government is
    >> responsible for running up a massive debt”.

    Agreed. The same applies for any voluntary organization – including companies.

    However the shorthand does not apply to non-voluntary organizations because it is meaningless.

  29. >> While not an adherent to feminist logic it is a consistent philosophy.

    Ha ha ha ha.

    Feminist philosophy is not even coherent. How could it possibly be consistent?

    Ha ha.

  30. Strawman – so I can’t say Japan was responsible for the attack on Pearl Harbour?

  31. >> Strawman – so I can’t say Japan was responsible for the
    >> attack on Pearl Harbour?

    I would interpret this as the more correct: ‘Tokyo was responsible for the attack on Pearl Harbour’.

    English is not a perfect language, and it evolves along with the muddiness of the thinking of the users, and also the entropic pressure for shortcuts in the language.

    No rational person would blame the young generation of Japanese for the atrocities committed by their ancestors – just as no rational person would blame young Australians for ‘the stolen generation’ et al.

    Hence ‘Japan WAS responsible for attacking Pearl Harbour’ is well understood. However ‘America IS responsible for third world poverty’ confuses the issue.

    The imperfections of natural language are not an excuse for fuzziness of thought.

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