Fighting Freedoms

By Senthorun Raj
The Border Force Act entrenches secrecy around Australia's immigration detention system

The Rule of Law is a precarious and elusive creature. Last month, Australian parliamentarians gathered to celebrate the 800th anniversary of the Magna Carta, a documented heralded as a foundation of modern liberal democracy. Yet, while the rhetoric of freedom echoes around political and media circles, the recent passage of anti-terrorism and migration laws paint a grimly different picture.

With all the talk of “small government,” Australia’s proposed citizenship laws continue to expand executive powers. Under the proposal, the Minister would need to determine whether or not a person’s conduct was “inconsistent with allegiance to Australia”, and if it was inconsistent the conduct becomes deemed as renunciation of citizenship. The Minister must notify the person that their citizenship has ceased. This can occur irrespective of whether the person has been convicted of such an offence under judicial warrant.

More insidiously, the amendments make clear (not once, but three times!) that “natural justice” (more commonly referred to as due process rights) do not apply to such notifications.

Meanwhile, the erosion of natural justice manifests in laws governing the treatment of asylum seekers. As “stopping the boats” rhetoric intensifies and the borders become increasingly policed, asylum seekers become objects to be deterred, detained, and denounced. The government has refused to deny allegations that it paid boat crews to return to Indonesia. At a time when the language of “compassion” is invoked to “save lives at sea,” it has becoming increasingly clear that safety concerns are anything but a priority.

Instead, governments seem more interested in moving asylum seekers outside our jurisdictional horizon (quite literally), even if it means they die as a consequence of being returned to their country of origin or if they languish indefinitely in offshore detention camps.

Political silencing even extends to those who support asylum seekers. The Border Force Act 2015, which came into effect this month, has an entire section on “secrecy” which criminalises the disclosure of information. Doctors and healthcare workers have condemned provisions that could see them imprisoned for two years for advocating in the best interests of their patients and disclosing the substandard care of asylum seekers in immigration detention. Some have even urged the government to prosecute them. Alternatively, those who use excessive force to detain or “manage” asylum seekers could soon be immune from prosecution if such force was exercised in “good faith.”

The enduring political obsession with “stopping the boats” means the government not only shatters the ability of refugees arriving by boat to seek asylum, but it is also willing to shield those who assault or abuse refugees and punish those who dare to expose such abuse. This denial of transparency eerily mimics the totalitarian systems Australia criticises quite frequently.

President of the Australian Human Rights Commission, Professor Gillian Triggs, recently issued a caution:

A growing threat to democracy is the expansion of discretionary, often non-compellable, ministerial powers that may be exercised with limited or no judicial scrutiny.

The separation of powers is a key feature of Australia’s constitutional democracy. While people are quick to condemn “unelected judges” for making political decisions, let’s not forget that one of the key roles of the judiciary is to guard against arbitrary and excessive use of government power. From border protection to national security, fear, panic and secrecy continue to expand the reach of executive power with limited accountability. This should be resisted.

When governments are empowered to consign people to detention or banishment or even death with a discretionary flick of a pen, the Rule of Law begins to evaporate. Now, that is a pressing threat to our collective security and that should terrify us all.

Senthorun Raj is a doctoral researcher at the Sydney Law School and a Right Now columnist. Twitter: @senthorun

Feature image: Tom Woodward/Flickr

This column has been assisted by the Australian Government through the Australia Council, its funding and advisory body.

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  • Kim Perkins

    The rule of law, the independence of the judiciary and the right to a fair trial are basic building blocks of a democracy. The erosion of these rights is frightening, not just for asylum seekers but for ALL Australians.