The Guardian has revealed that two men holding dual Australian citizenship were sent to Christmas Island under section 501 of the Migration Act.
The law enables the minister to detain or deport non-citizens who fail the 'character test'. The detention of these citizens was without question unlawful. The error was identified and they were released.
It looks like a happy ending, but you'd have to squint hard. Citizenship in Australia has only ever been paper-thin, swept in the billows of political culture.
In recent decades, citizenship requirements may have opened up for people not born into it. But the certificate that they receive offers little protection, either in culture wars fomented by the white Christian right or in the more prosaic administration of rules.
The immigration department has a history of unlawfully deporting and detaining citizens or permanent residents, and conducting unauthorised searches at airports and houses. In 2015 the Australian Border Force announced a street-level visa-check in central Melbourne, which provoked heated public reaction and was scuttled by an irate Victoria Police.
More recently, the Coalition government moved to raise English language barriers to citizenship. It also sought to expand the power of Immigration Minister Peter Dutton, enabling him to overrule citizenship decisions from the Administrative Appeals Tribunal. It has alarmed lawyers and legal councils.
Dutton argued that his department is 'best placed' to make citizenship decisions because it has access to all relevant facts. The recent illegal detention of New Zealand-born Australian citizens belies that assertion. More than 200 such cases over the past decade have been investigated by the commonwealth ombudsman.
It raises questions about the level of competence that could be expected at the immigration department. Decisions in this area — as in all areas of governance that bear direct impact on human lives — rest on the skills and integrity of the individuals who make them. The size of the impact relates to the level of restraint. The bigger the shoes, the lighter the tread. That is the responsibility that comes with immense power.
"The problem, however, is that such solutions offer no dividends in a political climate that weaponises citizenship. There is nothing in it for the minister, nor the Coalition."
The solutions are in part structural: better training on due process, proper documentation and the limits of authority; cultural and legal education regarding use of force; more stringent recruitment; improvements in review procedures and chain of command; de-politicising decisions through judicial oversight. The problem, however, is that such solutions offer no dividends in a political climate that weaponises citizenship. There is nothing in it for the minister, nor the Coalition.
But there is everything in it for us. It should disturb us that the immigration ministry has become the locus for responses to crime and national security, via so-called 'character tests' or ministerial determinations over whether someone has 'integrated'. It is not its primary remit to enforce law and order; these are a matter for police and courts.
The immense power vested in the department also magnifies error and mischief. The pattern of recent years has in fact been about eroding impediments and remedies.
In keeping with the diminution of meaning in our time, an elected official accruing even more power is also being framed as better for accountability than an independent review tribunal.
A draconian mindset can be contagious, and when it emanates from the top, it can permeate thoroughly. If citizenship is no insulation from vagaries of the state, then no one is safe.
Fatima Measham is a Eureka Street consulting editor. She co-hosts the ChatterSquare podcast, tweets as @foomeister and blogs on Medium.
Comments should be short, respectful and on topic. Email is requested for identification purposes only.
Roy Chen Yee
06 July 2017
Perhaps they need training. Perhaps they are not very efficient. But, they are not Kafka. When they find out you are a citizen, you are safe. And it doesn't take very long to find out. Accident is not malice. www dot border dot gov dot au /about/corporate/information/fact-sheets/79character and www dot border dot gov dot au /visas/Documents/ministerial-direction-65.pdf show that administrative tyranny Australian public administration is not.
07 July 2017
When the police cannot detain for more than a few hours even a suspected murderer without bringing him/her before a magistrate, why is it that that a border force officer can detain someone without the consent of a magistrate and a minister can deport someone without bringing him or her before a judge?
07 July 2017
I agree Fatima, I like your comments 'The bigger the shoes, the lighter the tread'. It may be that those in Government feel very small and so they are trying to have a heavier stamp on things. The implications of increased power, narrowly spread and less accountable, are wide for all Australians. Pragmatism can end up overtaking human value and rights. ..as already seems to be the case with the refugees who arrived by sea.
07 July 2017
In response to Roy Chen Yee - I doubt that Cornelia Rau and her family would agree with your comment.
I completely agree with the thrust of this article. We already have strong legal systems in place, with checks & balances. The Minister & his department are becoming too powerful. Variations on this have happened before. Can't you hear the jackboots coming?
07 July 2017
My thoughts exactly, Roy. Well put.
07 July 2017
The people in question would not have had visas cancelled if they were not involved in SERIOUS CRIME warranting their deportation.
Roy Chen Yee
08 July 2017
Jen Coughran, there is injustice caused by a system that is meant to be unjust, injustice caused by imperfections in the system and injustice caused by officials who don't follow the system. The DIBP website also contains official documents on the Rau and Vivian Solon cases.
Dr Michael Furtado
08 July 2017
Very clearly and succintly argued as per usual, Fatima. My beef with it is in the following comment, which sticks out like a sore thumb: "The problem, however, is that such solutions offer no dividends in a political climate that weaponises citizenship. There is nothing in it for the minister, nor the Coalition." There are indeed big dividends for the Minister and the Coalition Parties in a political climate in which the electorate is on constant alert to the dangers of 'unrestricted' immigration, even though citizenship ought not to be confused with migration and asylum-seeking. Somewhere in all of this the Right has already won the debate on immigration restriction and seeks to augment its advantage by coupling citizenship discourse with covert racism as well as fear of terrorism. After all it wasn't so long ago that an Indian doctor was illegally detained for using a suspect sim card and a mentally ill Australian citizen of foreign birth illegally deported to The Philippines.
10 July 2017
They were Australian citizens, Nancy, and they were placed in detention without trial ! Cornelia Rau was actually exiled by executive fiat - no offence, no charge, no trial, no testing of the evidence before a court, no need to prove that she was not a citizen. If it can happen to her it can happen to you.
10 July 2017
Nancy I'm afraid that you have been misled by Peter Duttons propaganda - Would you consider a number of driving without a licence convictions a reason to deport someone? You don't even have to spend time in Gaol to be detained and deported a 12 month Good Behaviour Bond is good enough. How about people who have made a mistake during their early life and been gaoled for 12 months returned to the Community and raised a family and become regular citizens then 16 years later been detained by Border Force at their place of work and taken to Villawood with their family not knowing why they haven't returned from work. The section 501 is mandatory and retrospective - extending back for the whole of your life long after the legal extinguishing of a criminal record at 10 years - I know of a 79yr old in Villawood with his wife in a nursing home and a handicapped son trying to fend for himself his mistake was 42 years ago. The public need to stop listening to the propaganda put out by Immigration and look at the facts