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Stefan Nystrom and 'The Kafka Principle'

By Paul Bamford - posted Friday, 15 December 2006


In the same week that the High Court endorsed Nystrom’s deportation, it also handed down its findings on whether the Government’s WorkChoices legislation is constitutional.

This naturally captured the attention of Australian bloggers and journalists, so the difficult case of one unpleasant person who has nothing to offer this country but the sight of his back escaped undeserved public attention.

Amanda Vanstone wrote a letter to The Age, pointing out that the High Court had done no more than resolve a minor legal technicality which had created an unnecessary hold-up in an otherwise smooth administrative process, and Peter Craven wrote an opinion piece calling on the minister to show some traditional Australian compassion. And one crazy blogger posted another outraged rant on his blog.

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Although I agree with Craven that Nystrom should not be deported, I wish he had come up with a better argument. There’s little historical evidence for an Australian tradition of compassion - there’s much stronger evidence for a tradition of closing the borders to people we don’t want here.

People like the Czech political activist Egon Kisch (On Line Opinion), who arrived in Australia in 1934 after being exiled from Germany for opposing Nazism, only to be declared an illegal immigrant because he couldn’t take dictation in Gaelic.

It’s that tradition that John Howard appealed to with his post-Tampa declaration that “We will decide who comes into this country and the circumstances in which they do so”. Second, in calling on the Minister to show compassion - to use her discretion to set aside the order for Nystrom’s removal as a non-citizen criminal - Craven is looking to the particular case, rather than the legal principle that the High Court enunciated in deciding it.

Call it The Kafka Principle: as long as Parliament legislates with a clearly recorded intent to arrogate arbitrary power over individuals then the exercise of such an arbitrary power - whether it be to punish or pardon - is legitimate.

The only impediments to such legislation in Australian law are the Constitution and, maybe, the Common Law tradition. The first is hardly an impediment at all since, with the exception of Section 116, which prohibits the Commonwealth from creating an established church, the restrictions on Commonwealth power in the Constitution are all restrictions on its power over the states.

Individual citizens didn’t do very well in the framing of the Australian Constitution. As for the Common Law tradition - clearly it doesn’t stand in the way of Australia exporting its problems elsewhere. Nor does it stand in the way of DIMIA, through detention and deportation, visiting its own punishment on criminals, above and beyond the sentences passed in the courts.

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While The Kafka Principle may look unobjectionable in this case, now that it’s on the books, there’s nothing standing in the way of its application in other areas of the law. The principle has been stated: where Parliament acts with the clear intention of conferring power on a minister, the power exists. Nothing in the High Court judgment says that this applies only to the Migration Act.

What happens to Nystrom next probably depends on the Swedish Government. Will they accept Nystrom back as a Swede? If not, Nystrom’s future looks bleak. Amanda Vanstone has very publicly done everything possible to move along his deportation, but his successful removal depends on Swedish acquiescence. The Swedish view of the matter might not suit that purpose. As one Swedish commenter said in reply to a post on my blog:

I find it hard to believe that Australia would thrust upon us a criminal only because they haven't the proper means to handle him. That's a democratic government making use of a loophole. No serious government would ever consider such a discrediting manoeuvre.

What are we supposed to do with him and or how would we stop him from trying to get back to his true motherland once he's here?

The whole thing is ridiculous and one cannot but doubt the intelligence of such a decision.

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About the Author

Paul Bamford is a Melbourne writer and blogger. He is a permanent resident of Australia - for now.

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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