What Australian refugee and immigration policy tells us about our democracy

By Dr Joyce Chia

Believe it or not, there’s a story that hasn’t been told enough about Australian immigration and refugee policy. It’s a story about the failings of our democracy, and that’s a story that concerns us all.

The simple fact is that Australia falls short of fulfilling the “liberal” part of a liberal democracy. A true liberal democracy recognises that the principle of “majority rules” can result in the oppression of minorities including, of course, refugees. This “liberal” aspect is reflected in institutions such as independent courts, human rights charters, and processes such as statements of human rights compatibility. Importantly, the principle of liberalism should be incorporated in a robust process of law-making.

The inadequacy of Australia’s legislative process is clearly demonstrated by the Australian Citizenship and Other Legislation Amendment Bill 2014 (“the Bill”) which is currently before Federal Parliament. This Bill affects all migrants, not just refugees. However, its impact is likely to be felt keenly by refugees, partly because they do not enjoy the benefits of another nationality, and partly because in practice refugees are more likely to be caught by the Bill’s provisions.

The Bill, although innocuously named, raises serious issues for the rule of law. For example, it allows the Minister for Immigration to overturn decisions by the Administrative Appeals Tribunal, an independent tribunal that (among other things) has the power to re-make the government’s decisions on citizenship matters. The Bill also allows the Minister to prevent the Tribunal from even looking at decisions made by the Minister himself. According to the Explanatory Memorandum, this extraordinary discretionary power is justified because the Minister has “a particular insight into Australian community standards and values and what is in Australia’s public interest.”

The Bill also allows the Minister to deprive a person of citizenship because the Minister believes there has been fraud, without needing for this to be proved in a court, and even where this might make a person stateless. This would likely affect refugees who are commonly found by the Department to have provided false identity documents – sometimes simply on the grounds that a country is known for producing fake documents. The Bill means that children may not be able to obtain citizenship if they have been put on good behaviour bonds for youthful indiscretions.

The Bill also makes significant changes to principles of citizenship law, by extending the Minister’s powers to revoke a person’s Australian citizenship, including in cases where the person acquires citizenship by descent or by adoption. This continues the long-running trend of concentrating powers in the hands of the Minister for Immigration. Limits to the Minister’s powers are removed, new discretionary powers are conferred, and checks and balances -such as independent merits review, judicial review and parliamentary scrutiny – are whittled away.

Despite these serious concerns, the Bill rapidly passed the House of Representatives and its fate is now in the hands of the crossbench Senators. In fact, the Bill was debated for only an hour in the House, and only one non-government speaker spoke. The statement of compatibility with human rights accompanying this Bill was inaccurate, misrepresenting the circumstances in which a child could be rendered stateless, which could result in Australia breaching its international legal obligations.

“It isn’t just the time that politicians spend debating issues that is the problem, but the quality of the debate.”

The Bill was referred to a Senate Committee responsible for examining legislation and making recommendations to Parliament, as is commonly done for controversial bills. However, the public was given only four business days to put in a submission. This was despite the fact that, as the Committee itself acknowledged, there was no apparent urgency to the Bill. As is common, the Committee recommended passing the Bill, although non-government members of the Committee issued a dissenting report.

In contrast, when the UK Parliament recently considered legislation allowing ministerial powers to deprive citizenship, even if it would render a person stateless, that Bill was considered in committee by the House of Commons in 11 sittings, and in committee by the House of Lords in six sittings, leaving aside the other stages of debate. The passage of the UK Bill involved over 50 different papers proposing amendments to the Bill. While the amendment still passed, it was at least subject to full and rigorous scrutiny.

It isn’t just the time that politicians spend debating issues that is the problem, but the quality of the debate. In Australia, the grip of tight party discipline means that legislative debates in Parliament are largely partisan and point-scoring, rather than reflecting a spectrum of opinion. Legislation is infrequently amended, even if this is recommended by a Senate Committee.

Bad law-making results in bad laws. Add to this cocktail the absence of human rights legislation, conservative approaches to judicial review, and the concentration of the media, and you begin to see why Australian political institutions and processes have failed minorities, including refugees, again and again.

The bad news is that many of the things we do in Australia to refugees are unthinkable – and unlawful – in other liberal democracies. The good news, though, is that political institutions and processes can be changed.

We can and should do better in entrenching the “liberal” part of our democracy into our institutions, processes, and culture. Such changes will benefit not only refugees, but all Australians.

Dr Joyce Chia is a former Senior Research Associate, Andrew & Renata Kaldor Centre for International Refugee Law.

Feature image: Old Parliament House – Senate by Jason James via Flickr