For anyone preoccupied with lawmaking over recent weeks, Easter has not been a happy time. It has been more like watching the doings of Herod and Pilate than finding the tomb empty and death overcome. Last week, I considered the savage responses to criminal actions by young people. This week, the Federal Government has trumped its State peers with a hastily conceived response to the perceived problem caused by the relatively few people whom it wants to remove from Australia and is prevented by the High Court decision from detaining indefinitely. This legislation complements legislation drawn up with equal haste last November to safeguard the community from the possible wrongdoing of people released from detention after the High Court decision. Both pieces of legislation followed political attacks and media campaigns designed to increase public anxiety.
This legislation, which was defeated in the Senate and sent for review, needs to be seen in the light of the Government’s legislation last November to respond to the High Court decision that the indefinite detention of people whom the Government had decided to remove from Australia was illegal. Many were consequently immediately freed. The first phase of legislation made compulsory the wearing of ankle bracelets, observance of strict curfews, detailed reporting of association, financial affairs and other things, and — for those accused of abuse — avoidance of exclusion zones around school and family houses. Those who violated these conditions would face trial and mandatory jail sentences for each breach. This legislation was immediately appealed on the grounds that it imposed punitive measures outside of the courts. A little later, the Government passed further legislation enabling the Minister to apply to a court to re-detain people who had been found guilty or who posed a risk of committing a violent or sexual crime.
The latest legislation, now the subject of a Senate enquiry, focused on the relatively few people who refused to cooperate with their removal by applying for documents and signing forms for return to nations, among them Iran, which would not accept them back without their agreement. The legislation would give the Minister powers to order persons who are liable to removal from Australia to obey all directions to facilitate their removal. It would also apply to their children who are minors. The law would apply even if they people have a reasonable fear of persecution. If they refuse they will liable to a mandatory sentence of at least two years in prison. The Minister may also refuse to consider appeals against this refusal, and reverse protection orders if he believes they are no longer applicable.
The legislation also gives the Minister power to nominate nations that refused to accept returnees as ‘removal concern countries’. With relatively few exceptions, applications for visas from these nations would be refused.
What are we to make of these hurried Bills? As with the lawmaking about youth misbehaviour, we need to look at them from the point of view of all the persons affected. Legislation made must respect the human dignity of each person. These include the people who have been found guilty of serious offences and who put the community at risk, others who have been freed from detention as a result of the High Court decision, those vulnerable as a result of the overreach of the legislation, any citizens found guilty of similar crimes and freed from jails in Australia, those in the community put at risk from people who have been freed, the relatives and fellow nationals of their nations of origin of those pressured to agree to removal, the Government responsible for an orderly and legal response, and its officials who administer these laws.
Both the initial legislation and that now under review fail these tests. In each case respect demands that those who are disadvantaged by the legislation are as fairly treated as other members of the community. This is clearly lacking in the case of persons whose claims for protection have been denied under the fast track system. The process was arbitrary, non-transparent and subject only to limited review. Under the proposed legislation, too, the Minister has the right personally to cancel protection orders, acting as prosecutor, jury and judge.
The legislation also fails to respect the humanity of those subject to removal under it by making their life of less importance than their removal. Moreover, they will be pressured to submit to that perceived death sentence by the threat that, if they don’t, their relatives and friends will be denied a visa to come to Australia. In other situations, this would be called blackmail.
'This hasty and disrespectful lawmaking is no way to serve the common good. It involves a dodgy process to make dodgy changes to a dodgy refugee system already governed by a dodgy ethical framework.'
The second failure to respect the human dignity of persons affected by the legislation arises from its lack of discrimination. It disadvantages both those who pose a risk to the community and others who do not. The arbitrariness of the fast track system magnifies this disadvantaging of the innocent. The imposition of punitive measures such as ankle bracelets, curfews and forced provision of personal information further disadvantage persons who have not been found guilty of any crime or who have already been punished for it.
Third, the legislation fails in respect for the Australian community and the officers responsible for its well being. The extraordinary non-reviewable powers of the Minister of Immigration to consider or not consider appeals have now been expanded further to allow the Minister to appeal to a magistrate to re-detain people, to command them to agree to their own removal and to suspend visas from nations that refuse to accept their citizens that Australia wishes to deport. These powers will be defended on the grounds that they will be used only in emergencies. This may be the case with the present Minister, but no Minister should have such power. It lacks the checks and balances essential in a democratic community and is a weapon waiting to be used by a populist government.
In a ministry concerned with migration issues that are the subject of frequent public anxiety and controversy, giving sole and unrestricted right to Ministers to make decisions does not free them from pressure. They will surely be under pressure from their governments and political parties to hear or refuse particular appeals, to declare or not declare particular nations non-compliant, and to force people targeted by of media campaigns to leave Australia. That is not fair to them.
These laws are lacking in respect for the people whom they will affect. They are also of doubtful legality and will tempt the Government in bad conscience to abandon its duty to be a model litigant and to withdraw from court challenges to the legality of its legislation which it judges it is likely to lose. This hasty and disrespectful lawmaking is no way to serve the common good. It involves a dodgy process to make dodgy changes to a dodgy refugee system already governed by a dodgy ethical framework.
Andrew Hamilton is consulting editor of Eureka Street, and writer at Jesuit Social Services.
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