No justification for migration law changes

Posted September 19, 2011 07:14:14

When Immigration Minister Chris Bowen released, late last Friday, his legislation to resolve the High Court's recent torpedoing of third-country processing of asylum seekers, he put it this way:

"The Government has released draft exposure legislation that would give effect to its commitment to restore power to the executive enabling the removal of irregular maritime arrivals for third country processing."

Note that phrase: "restore power to the executive". This a not-too-subtle way of saying that persons seeking asylum will have no recourse to a court of law which acts in a democracy as a necessary check on the executive.

The Gillard Government's draft law invests enormous power in one person - the Minister responsible for the administration of the Migration Act. It enables the Minister to decide, purely on the inherently nebulous and therefore dangerous ground of the 'national interest' that another country will be a destination to which asylum seekers can be sent.

Furthermore, the fact that the designated country has a record of ill-treatment of refugees, no effective court system and a repressive government is not relevant. The "designation of a country to be an offshore processing country need not be determined by reference to the international obligations or domestic law of that country," the draft law says. This means not only Malaysia is back on the table, but so could be Thailand, Papua New Guinea, Nauru, and Indonesia - all countries with very chequered track records when it comes to protection for vulnerable citizens, let alone non-citizens.

The law makes it clear that in making that decision the Minister is not bound by the rules of natural justice and nor can the Parliament revoke the declaration. This is legislation which allows a minister in a democracy to play God with the lives of fellow human beings desperate enough to pay a people smuggler to ensure they are safe from threats of harm or death.

But not only does this proposed law invest such immense power in the hands of the Minister, those responsible for removal of persons to a declared country - presumably military, customs and federal police personnel - can use such force as is reasonably necessary to do so. In other words, Taser guns, handcuffs, physical violence and capsicum spray would all be available for use on frightened men, women and children. Given that the use of force will take place in locations like Christmas Island where there is little capacity for there to be independent witnesses, the chances of officials removing asylum seekers being sanctioned for excessive use of force is virtually zero. The proposed law then provides an invitation by the Gillard Government for rough treatment of asylum seekers.

While the draft law does not contain a specific clause - much loved by Opposition Leader Tony Abbott's colleague Philip Ruddock when the latter filled Mr Bowen's shoes - that explicitly prevents a person who will be forced to go to a declared country from seeking a court hearing, the nature of the discretion given to the Immigration Minister is so broad that it will be difficult to challenge in the courts.

And you could not rule out, in the negotiations between the Coalition and the ALP over the coming days, the insertion of what is called a privative clause being inserted into this proposed law. Both the major parties in Australia sadly loathe the courts intervening to protect asylum seekers. Both parties want for there to be effectively a dictatorship of the executive in this area of public policy.

The proposed changes to the migration law unveiled by the Gillard Government should frighten Australians in the same way that the Howard government's anti-terror laws should have almost a decade ago. Both represent an extreme reaction to an event or series of events and both amounts to a suspension of what is most fundamental in a democratic society, adherence to the rule of law.

Tom Bingham, a now sadly departed leading English judge, observed in 2010 that if there is to be any departure by a government from the rule of law which is that all people in a state should be bound by laws that a publicly administered by the courts, then there needs to be a clear justification.

In the case of these migration laws, as it was it the case of the anti-terror laws which provide for controls on the movement of people despite their not having been convicted of any offence, there is no such justification.

The problem of people smuggling for Australia remains minute on a global scale and the harm done by sending asylum seekers to countries where they will be persecuted or perhaps be killed does not justify the making of laws which allow for a rampant executive to avoid judicial or even parliamentary scrutiny.


Greg Barns is a Barrister and National President of the Australian Lawyers Alliance.

Topics: laws, federal-government, refugees, immigration