According to the Immigration Department’s “Australian values statement” proposed for new citizens, “respect for the rule of law” is a fundamental Australian value. But such respect is missing from our Minister for Immigration’s latest political volley.
Peter Dutton already holds god-like status in the pantheon of Australia’s political class. Not content with blanketing Australia’s offshore gulags in secrecy, threatening two years jail should a worker in these human warehouses report the sexual abuse of a child, or playing gatekeeper on the lives of those who come to Australia seeking safety, Dutton is now seeking further draconian powers.
Dutton is seeking a broad set of discretionary powers that would give him the ability to decide whether someone is eligible to become a member of the Australian citizenry. The latest Bill introduced into Parliament would give the Minister draconian powers to refuse someone’s application for citizenship or cancel a person’s citizenship, if he determines it is in the “public interest”. The Minister has the discretion to decide what is in the “public interest” and even the Administrative Appeals Tribunal could not overturn his decision.
The Bill also provides Dutton with sole powers to decide whether a person has “displayed behaviour consistent with Australian values”, even when they don’t have a criminal conviction. Dutton will have the power to determine which permanent visa holders are eligible to appeal to the Tribunal, and which aren’t.
The question the Australian community must ask itself is whether we feel confident in Dutton playing judge, jury and executioner on such matters. Such decisions could literally mean life or death for a person sent back to harm.
It is a fundamental principle of the rule of law that government powers are held in check by an independent body of review. Our only safeguard against authoritative rule is independent oversight of government decisions. Each person must have the right of an appeal and a fair process to challenge decisions made over their lives. Such safeguards also ensure that mistakes are not made – mistakes that have happened all too often in the past.
The question the Australian community must ask itself is whether we feel confident in Dutton playing judge, jury and executioner on such matters.
These new powers are accompanied by sweeping changes to the Australian citizenship test. One such change – requiring new citizens to have a university level of English – will have a significant impact on vulnerable migrants, especially those from refugee backgrounds.
For refugee and humanitarian entrants, Australian citizenship has a special significance. Gaining citizenship marks both their integration into their new country and the end of their displacement. For many, it will mark the first time they have experienced the protection of a State. Australian Citizenship provides eligible people with the safety they need to settle and to heal, and gives them the security to build their new lives. For this reason, most refugees and humanitarian entrants are eager to apply for citizenship as soon as they can, and prize it highly.
As the 2008 Government review of Citizenship found, gaining “citizenship should be an enabling, positive and welcoming process for applicants and one which is seen to contribute to building a cohesive and dynamic nation.” Yet the proposed changes will make it much harder for refugees to become citizens, thereby excluding the people who value Australian citizenship the most.
Refugee communities are concerned the proposed English language test sets a bar that is too high – a university equivalent level of “competent” English. This could mean people who have never had the opportunity to study, due to war and displacement, will never become an Australian citizen. This proposal will impact women the most, many of whom have been denied education by authoritative regimes such as the Taliban.
A further principle of the rule of law is a transparent and open law making process. While the Department called for submissions on its proposed changes to citizenship, it refuses to make the submissions public. This is yet another example of the Department refusing to release vital information about its controversial policies. Unless submissions are stated as confidential, they should be made public to allow the Australian community to judge for itself the harms that these proposed changes will cause. The Refugee Council has responded by creating an online portal for people to provide their submissions, increasing transparency and accountability. Likewise, Freedom of Information requests for the submissions have already been filled.
The proposed changes are also set to be retrospective, applying from the moment the announcement was made, rather than when the law is (if ever) passed. Retrospective laws again breach the principle of the rule of law.
Combined, these proposals show a troubling view of the rule of law. Judging by the current proposals, the Minister would not meet his own Australian values test.