Meet the Manne who sank the Malaysia plan

By Tom Hyland, Sydney Morning Herald

IF YOU ask David Manne how he helped derail Julia Gillard’s plan to send asylum seekers to Malaysia, why he became a lawyer and what he believes in, he will say these are complicated questions. But part of the answer is simple. It lies in the lives of his recent ancestors, some who fled persecution and others who were consumed by it.

The way Manne tells it, he helped bring the government undone because he used the law. He became a lawyer to help vulnerable people. And he wants to do that because of lessons absorbed from his family.

Manne’s grandparents fled the Nazis and were among the lucky few European Jews whose lives were saved by Australia. His great-grandparents and other relatives were lost in the Holocaust.

The solicitor was a central player in the High Court case that last week sank the federal government’s Malaysia plan, which the government hoped would stop refugee boats sailing to Australia.

The immediate impact was to prevent the deportation of 42 Afghan and Pakistani asylum seekers. The 42 were the vanguard of 800 the government wanted to expel, in return for accepting 4000 refugees whose asylum claims had already been assessed in Malaysia.

The court found the scheme was illegal and the ruling left Ms Gillard’s asylum seeker policies in disarray.

There are now doubts over whether the government can even send asylum seekers to Papua New Guinea or Nauru to have their status assessed. The case may also have established an international precedent by spelling out the level of protection governments are required to provide under the Refugee Convention.

Manne, 40, is executive director of the Refugee and Immigration Legal Centre, based in Melbourne. His family came from Austria and Germany. His mother’s parents fled to Australia in the late 1930s. ”The rest of the family left in Europe were caught up in the Holocaust.”

His formative influences were his mother and his uncle, the academic and writer Robert Manne. ”I’ve been very close to Robert and he’s one of the people who has been a very profound influence on my life.”

He was not lectured or given formal instruction on what he should believe in or do with his life. ”It’s about a way of living, a way of conversing and a way of treating others. It means coming to the world with an open mind, and trying to make a contribution that at its heart tries to promote …a decent and humane approach in society.”

Manne’s role in the High Court drama began with a phone call on August 6. It was the last in a chain of calls from an Afghan asylum seeker in detention on Christmas Island, Syed-Navad Shah, the spokesman for 36 people. The solicitor had 24 hours to stop the plane that would fly the man and his companions to an uncertain fate.

”They were petrified,” Manne says. Shah was concerned for the fate of six unaccompanied minors, also to be deported, who wanted legal advice.

Manne spoke to an official on Christmas Island who refused his request to talk to the unaccompanied minors, on the grounds they had not made a specific request for legal aid.

By Sunday morning Manne and his colleagues had gathered a formidable legal team, veterans of earlier cases. Melbourne barrister Debbie Mortimer was a leading player, as was barrister Richard Niall. Mortimer marshalled junior barristers, while the legal firm Allens Arthur Robinson added weight and resources. All worked pro bono.

It was a race against time when the team gathered in Melbourne on the Sunday. They sought an urgent sitting of the High Court. They were told to have documents ready by 4pm and Justice Kenneth Hayne would hear their application at 6pm.

The flight to Malaysia was scheduled for 11.30am the following day.

On Sunday Justice Hayne ordered the asylum seekers not depart, pending a hearing on Monday. That hearing blocked any transfers while the court considered the challenge.

Lawyers for the asylum seekers argued their rights could not be protected in Malaysia, given its failure to sign key human rights treaties. ”There is a sufficiently serious question to be tried,” Justice Hayne said.

Manne says he was not confident of success but by a six to one majority, the High Court judges ruled the expulsions were illegal. They found that, before asylum seekers could be sent to a third country, that country needed to be bound by international and domestic law to protect them and assess their claims.

Manne and his colleagues were in Mortimer’s Melbourne chambers. First they got a phone call saying: ”We’ve won”. Then the judgment was emailed from the law firm.

”It was one of the great moments,” Manne says of hearing the judgment. ”It all comes down to this, this is why we do it.” The news was then phoned through to Christmas Island, first to the six children, then to the 36 adults, kept in separate parts of the detention centre.

Manne describes their reaction: ”There was an immense feeling of relief, and gratitude. They couldn’t stop saying it, their gratitude. It was like speaking to people whose lives had been saved.”