Part 2: Arise Scott Morrison, Lord Sixwords of Cronulla!
“Consider what kind of power Scott Morrison wanted” asks George Venturini.
Part 2 explores the chilling answers.
Arise Scott John Morrison, Lord Sixwords of Cronulla!
But why Sixwords? Simple: Eine Sprache, ein Gezetz, ein Kultur – translated into ‘One Language, One Law, One Culture’ for the benefit of the ‘boys of Cronulla’, Morrison’s grand electors.
A new Ozymandias
The ‘establishing provisions’ of Morrison’s (and his successor’s)
dictatorship are contained into three instruments: the first is the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. During its iter
it was travelling with two other bills, but the former is the most
important and fatal to any surviving notion of respect for international
treaties and conventions signed by, and until recently nominally abided
by, Australia. This Bill, by far the most important, was introduced
into the House of Representatives on 25 September 2014, was debated and
sent to the Senate on 28 October, there to be debated, agreed to on 4
December, re-sent to the House of Representatives and finally passed by
both Houses on 5 December 2014. It was assented on 15 December and is
now knows as Act 135/2014.
Two minor bills had also been introduced: the Migration Amendment (Character and General Visa Cancelation) Bill
2014, introduced on 24 September 2014 and passed on 26 November 2014
with Labor’s support. It has not yet received the necessary assent; and
another: the Australian Citizenship and Other Legislation Amendment Bill
2014. This was introduced on 23 October 2014, read a second time in the
Senate on 25 November 2014. But, in the process, on 30 October 2014,
the Senate referred the provisions of the bill immediately to the Legal
and Constitutional Affairs Legislation Committee for inquiry and report.
The closing date for submissions was 6 November 2014. The reporting
date was 1 December 2014. Four days later no action was reported, yet.
The two companion bills are no less offensive than the first, but the
latter is the most pervasive in its subversion of Australian and
international law.
Consider what kind of power Morrison wanted:
“As an elected Member of Parliament, the Minister represents the
Australian community and has particular insight into Australian
community standards and values and what is in Australia’s public
interest.” the Minister wrote in the Explanatory Memorandum accompanying
the bill. “As such, it is not appropriate for an unelected
administrative tribunal to review such a personal decision of a Minister
on the basis of merit, when the decision is made in the public
interest.” The logic is bizarre.
Such breathtaking self-justification could make even the most acute
Jesuit blush. And Jesuits do not do that frequently. But they are
persistent and this was explainable with the stubbornness of a
government the overreach of which on asylum seekers is too frequently
frustrated by the courts and which wants now to have legislated a way of
circumventing those courts’ judgements.
Briefly summarised in bureaucratese, Act 135/2014 was described as amending the Maritime Powers Act 2013 to:
provide clarity and consistency in relation to powers to detain and
move vessels and people; clarify the relationship between the Act and
other laws; and provide for the minister to give directions about the
exercise of maritime powers; as amending the Migration Act 1958 to:
introduce temporary protection for those who engage Australia’s
non-refoulement obligations and who arrive in Australia illegally;
create the authority to make deeming regulations; create the Safe Haven
Enterprise Visa class; introduce a fast track assessment process and
remove access to the Refugee Review Tribunal (RRT); establish the
Immigration Assessment Authority within the RRT to consider fast track
reviewable decisions; clarify the availability of removal powers
independent of assessments of Australia’s non-refoulement obligations;
codify Australia’s interpretation of its protection obligations under
the Refugees Convention; clarify the legal status of children of
unauthorised maritime arrivals and transitory persons; and enable the
minister to place a statutory limit on the number of protection visas
granted; and as amending the following acts: Maritime Powers Act
2013, Migration Act 1958, Administrative Decisions (Judicial Review) Act
1997, Immigration (Guardianship of Children) Act 1946 and Migration Regulations 1994 to make consequential amendments.
Morrison had, until 21-23 December 2014, and now the new Minister has
unchecked power to decide the outcomes which will affect the lives of
asylum seekers and refugees coming to Australia. Act 135/2014 has handed
the Minister unprecedented, unchallengeable and secret powers to
control the lives of asylum seekers. Decisions cannot not be challenged.
The enactment means that Australia is now no longer obliged to adhere to the Refugee Convention,
a treaty that Australia was instrumental in constructing and
implementing after the second world war. Australia was, at that time, at
the forefront of human rights of refugees. It signed the initial
Convention and the subsequent 1967 Protocol.
Australia adherence to these international documents had placed it,
until recently, as a ‘good world citizen’ with an agenda to uphold human
rights, and, in this case, treat people seeking sanctuary with dignity,
fairness and compassion. Refugee law is built upon the fundamental
principle of non-refoulement:
that is it is forbidden to return a person to a country where they may
still be persecuted or tortured. This is recognised by every one of the
147 signatory countries of the Refugee Convention.
Here was Morrison claiming in his inaugural speech in 2008
“As global citizens, we must also recognise that our freedom will
always be diminished by the denial of those same freedoms elsewhere,
whether in Australia or overseas.” He had just finished saying that he
derived his values from his faith: “the values of loving-kindness,
justice and righteousness, to act with compassion and kindness,
acknowledging our common humanity and to consider the welfare of others;
to fight for a fair go for everyone to fulfil their human potential and
to remove whatever unjust obstacles stand in their way; including
diminishing their personal responsibility for their own wellbeing; and
to do what is right, to respect the rule of law, the sanctity of human
life and the moral integrity of marriage and the family.”
He had quoted Jeremiah, chapter 9:24 alright, about loving-kindness,
justice and righteousness on earth. He had previously praised Tutu and
Wilberforce.
In 2014 it was time for a harsh jeremiad from the brutal marketeer: “
… it does not matter whether Australia has a non-refoulement
obligations in respect of an unlawful non-citizen.”
This is saying that Australia is now entitled to return an asylum
seeker to any country, even the place where s/he has been, or knows s/he
may be, tortured or persecuted.
Australia will now follow a new, independent and self-contained
statutory framework, and this will have the government’s own
interpretation of international law. Australia now regards itself as
free from the bonds of the Refugee Convention. Any checks and balances
which were previously in Australia’s refugee system have been stripped
away, removing basic protections for those who arrive by boat seeking
asylum.
New citizenship laws are on the cards, and they will not just affect
refugees. The lifting of rights has a corollary: its unencumbered power
by the executive.
If any of this seems exaggerated, one should take a close look at the
new national security laws. Civil rights, the law and international
treaties are only as strong as those upholding them. Once their
application becomes arbitrary, they are useless. “Stopping the
smugglers”, “stopping the boats” are scant consolation.
Once the Bill reached the Parliamentary Joint Committee on Human
Rights it was subjected to the closest examination which resulted in a
Report tabled on 28 October 2014.
Human rights considered by the Committee are those defined in the Human Rights (Parliamentary Scrutiny) Act
2011 as the rights and freedoms contained in the seven core human
rights treaties to which Australia is, albeit nominally, a party. These
treaties are: International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, International Convention on the Elimination of All Forms of Racial Discrimination, Convention on the on the Elimination of All Forms of Discrimination against Women, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Convention on the Rights of the Child, and Convention on the Rights of Persons with Disabilities
The examining Committee is composed of ten members, five from the
House of Representatives and five from the Senate. On the Committee sat
three members of the Liberal Party, two members of the National Party,
four members of the Labor Party and one of the Australian Greens. The
chair was held by one of the Liberal Party members.
In twenty one pages the Committee was, unanimously, scathing of most of the clauses of the Bill.
It is not possible, and would turn out somewhat pedantic, to examine
every proposition put forward by the Committee, but the following should
suffice to indicate the extent of the damage inflicted upon ‘law and
order’ of which the Coalition considers itself the absolute protector.
The Committee noted that the Bill, once enacted, would “remove most
references to the Refugee Convention from the Migration Act and replace
them with a new statutory framework reflecting Australia’s unilateral
interpretation of its protection obligations.”
Dealing with “Incorporation of international law into Australian
domestic law”, the Committee noted that “the measures in Schedules 1 and
5 of the bill engage and limit a number of human rights, including:
non-refoulement obligations; the right to security of the person and the
right to be free from arbitrary detention; the prohibition on torture,
cruel, inhuman and degrading treatment or punishment; the right to
freedom of movement; the right to a fair trial; and the obligation to
consider the best interest of the child.”
The Committee made specific reference to articles of the seven core human rights treaties.
By removing most references to the Refugee Convention from the Migration Act
and “replac[ing] them with a new statutory framework … the bill would …
allow Australian domestic law to develop independently from Australia’s
obligations under international law.”
The Committee called on the Minister – Morison until 21-23.12.2014 –
to provide an advice as to whether the amendments in Schedules 1 and 5
are compatible with the rights listed above.
The Committee strongly lamented that “The proposed amendments to
Schedule 1 of the bill expand powers to intercept vessels and detain
people at sea, and to transfer people to any country (or a vessel of
another country) that the Minister chooses. Further, they exclude court
challenges to government actions in this context.”
Having cited several cases considered by the High Court of Australia
and reported in 2014, the Committee noted “that the obligation of
non-refoulement is considered in international law as jus cogens,
which means that it is a fundamental or peremptory norm of
international law which applies to all nations, and which can never be
limited.” The Committee was taking the strongest objection to such
provisions. It concluded that “the proposed implementation of
Australia’s non-refoulement obligations through executive action alone, …
as a limit on a peremptory norm of international law, and so a failure
to comply with the obligation of non-refoulement.”
In the view of the Committee, the proposed amendments in Schedule 1
were incompatible with Australia’s obligations of non-refoulement under
the International Covenant on Civil and Political Rights and the
Convention against Torture.
As to Schedule 5, designed to amend the Migration Act to set
up “a new statutory framework articulating Australia’s unilateral
interpretation of its protection obligations”, the Committee noted,
citing the Vienna Convention on the Law of Treaties, that “it is not for a state to unilaterally determine its obligations under a treaty after ratification.” Again the Committee declared such proposals as contravening the I.C.C.P.R. and the Convention against Torture.
With reference with the intended temporary protection visa and
safe-haven enterprise visas, to be governed under Schedules 2 and 3, the
Committee made several observations: 1) people who were found to engage
Australia’s non-refoulement obligations would be granted a T.P.V. only
for a period of up o three years at one time, rather than being granted a
permanent protection visa.”, 2) T.P.V.s would “require refugees to
prove afresh their claims for protection every three years”, and 3) that
situation would cast doubt on Australia’s obligations under the
I.C.C.P.R. and the Convention against Torture. And, therefore,
the Committee was requesting further advice from the Minister for
Immigration and Border protection. (Incidentally, TPVs have been tried
before – and failed. Between 1999 and 2007 – that is under a previous
right-wing Coalition government, and soon to be abandoned by the
succeeding Rudd Labor government – Australian granted 11,206 TPVs. And
95 per cent of those visa holders were ultimately granted permanent
protection.)
As to the right to health guaranteed by the International Covenant on Economics Social and Cultural Rights,
with reference to the introduction of T.P.Vs, the Committee noted that
“research shows that TPVs lead to insecurity and uncertainty of refugees
which, in turn, may cause or exacerbate existing mental health
problems, or cause anxiety and psychological suffering.” And the
Committee sought further advice.
Concerned with the right to protection of the family, and the
obligation to consider the best interest of the child, the Committee
reflected on several articles of the I.C.C.P.R. and of the I.C.E.S.C.R.,
as well as the Convention on the Rights of the Child and again
sought advice of the Minister as to whether the proposed introduction
of T.P.Vs was compatible with the obligation to consider the ight to the
protection of the family and with the best interest of the child.
Turning then to Schedule 4, and with reference to the so-called
‘fast-track assessment process’, the Committee decided to seek advice
from the Minister as to whether the proposed limitation on merits review
through the creation of the Immigration Assessment Authority, and thus
excluding the competence of the ordinary system of courts, was
compatible with Australia’s obligations under the I.C.C.P.R. and the Convention against Torture of “ensuring independent, effective and impartial review of claims to protection against non-refoulement.”
The ‘fast track assessment’ procedure constitutes a radical shift in
the manner in which a large number of asylum seekers’ claims for
protection will be processed.
Research has demonstrated
that long periods waiting for the processing of claims can lead to
mental illness. A lack of work rights combined with ongoing uncertainty
is also associated with deepening mental deterioration.
Asylum seekers in the current backlog have been waiting in limbo for
almost two years to have their protection claims assessed, so the
opportunity to have their claims heard will be welcome for many.
However, the new assessment procedure carries real risks of privileging
efficiency at the expense of fairness.
‘Fast-track’ assessments are intended to apply to approximately
30,000 asylum seekers who arrived in Australia by boat between August
2012 and December 2013. The procedure will allow asylum seekers to make
an application for protection to the Department of Immigration and
Border Protection.
Time frames for the provision and assessment of claims will be short.
Applications which are refused will be referred to a newly created
Independent Assessment Authority. The Authority reviews will be
conducted ‘on the papers’; only in ‘exceptional circumstances’ will the
Authority accept or request new information or interview the applicant.
Some cases will be excluded from an independent merits review
altogether. This includes cases where the Department assesses the claims
to be ‘manifestly unfounded’, where the asylum seeker relied upon a
‘bogus document’ or had access to effective protection in another
country.
The Coalition government resolved to use this procedure for a group which, as statistics show,
have been overwhelmingly found to be refugees. Departmental statistics
indicate that over the four years prior to 2013, an average of about 70
per cent of asylum seekers arriving by boat were determined – at first
instance – to be refugees. In addition, 93 per cent of those who had
their applications reconsidered following independent review were later
accepted as refugees.
On Schedule 6 which was intended to deal with unauthorised maritime
arrivals and new born children, the Committee was quite indignant that the Schedule
“would designate children born to parents who arrived by sea after 13
August 2012 as ‘unauthorised maritime arrivals, [with] the same
designation under the Migration Act as their parents.” The Committee
requested to advice of the Minister as to whether such designation of
children “as ‘unauthorised maritime arrivals’ [was] compatible with the
obligation to consider the best interests of the child and the right to
acquire a nationality.”
With reference to Schedule 7 and the right of the person and freedom
from arbitrary detention, the Committee emphatically noted that Article 9
of the International Covenant on Civil and Political Rights
provides for the right to security of the person and freedom from
arbitrary detention. This includes the right of a person: to liberty and
not to be subjected to arbitrary arrest or detention; to security; to
be informed of the reason for arrest and any charges; to be brought
promptly before a court and tied within a reasonable period, or to be
released from detention; and to challenge the lawfulness of detention.
The Committee questioned that the intended legislation would meet all
such guarantees, and respectfully but firmly sought advice and
reassurance from the Minister.
Whether the Minister ever replied to the many, polite but firm, requests from the Committee is not known.
Morrison’s position, as far as the effect of numerous criticisms from
the United Nations Committee against Torture had not changed during his
administration. As recently as 29 November 2014 he would reject any
warning coming from the United Nations that Australia’s treatment of
asylum seekers caused them physical and mental suffering , persecution
and abuse. The report had found that the asylum seekers conditions were
harsh condition in mandatory detention, with overcrowding, inadequate
health care, and allegations of sexual abuse and ill-treatment. Morrison
made it very clear that only Australia would decide its policies. He
curtly said: “I don’t share their view … Australia’s border protection policies are made in Australia, nowhere else.”
Earlier that day it was revealed that 37 Sri Lankan nationals who
were returned to their home country after their boat was intercepted off
Cocos Island had since been arrested. One other passenger was
transferred for offshore processing.
Morrison said that he was very confident that the Australian
government had fulfilled its international obligations in that
situation. “The screening process which we adopt … has ensured that we
have acquitted our obligations as we must and as we do.” he said.
Human rights organisations had leapt on the U.N. report, saying it has condemned Australia in the eyes of the world.
“On asylum seekers, Australia is acting in absolute defiance of
international law and is being condemned on the world stage for doing
so” said in a statement
the Director of Legal Advocacy of the Human Rights Law Centre in
Melbourne. He had briefed the Committee in Geneva. Sending people back
without thoroughly assessing their refugee claims is “fundamentally
incompatible” with Australia’s obligations, he added.
The U.N. report had also identified an attempt by the Australian
government to make it even easier to return people to dangerous
environments, according to Amnesty International Australia. “[The main
bill before Parliament would] remove any requirement to consider when
denying a request for asylum whether a person will be tortured or
persecuted if they are returned home.” added Amnesty International
Australia.
Still, under Act 135/2914, asylum seekers imprisoned on Christmas
Island would be moved to the mainland while their claim was being
processed. Up to 468 children would be released from detention. About
25,000 people currently living in Australia on bridging visas would be
recognised the right to work.
All these seem significant concessions, but they are decision that
Morrison could have made at any time, and they are not in any way
flowing from the application of the new law. In December 2014 Manus
Island and Nauru were holding 2,151 refugees and asylum seekers, in
detention centres which have been blighted by violence, sexual assault
and suicide attempts. They would remain unaffected by the new law or by
any government ‘concession’.
Prime Minister Tony Abbott saw fit to call all such misery
“a win for Australia.” He triumphantly proclaimed that “We always said
that three things were necessary to stop the boats – offshore
processing, turning boats around and temporary protection visa and last
night [5.12.2014] the final piece of policy was put in place.” Amnesty International begged to differ
complaining that there was no avenue for appeal and would see refugees
returned to oppressive situations. “[The new law] violates international
law by removing any requirement to consider whether a person will be
tortured or persecuted if returned home.” said Dr. Graham Thorn, Amnesty
International Australia’s Refugee Coordinator since May 2000.
As recently as 5 December 2014 Morrison proudly announced
that 12 boats have been turned back to their country of departure since
December 2013, essentially denying passengers the right to seek asylum
and placing those passengers at risk of refoulement. These operations
were carried out in Australia’s contiguous zone and on the High Seas, in
breach of Australia’s obligations under the Law of the Sea and the Refugee Convention.
They don’t always get their own way (image from thechronical.com.au)
was that of the group of 157 Sri Lankan Tamils who left India in June
2014, who later challenged their interception, detention and attempted
return in the High Court. On 29 June the Australian Navy intercepted the
boat and detained the passengers in windowless rooms, separated from
their families, without access to lawyers, adequate food, healthcare and
only two hours of daylight outside per day. For 28 days they were
detained on the High Seas as Australia attempted to return them to
India, until negotiations failed and they were sent to the Cocos Islands
on 27 July. They were subsequently taken to Nauru detention centre,
again in an attempt to avoid Australia’s obligations to these people.
The case in the High Court essentially
challenges Australia’s right to extraterritorially intercept and detain
people, and subsequently return them to a place where they risk harm.
At the time of writing the decision was still pending in the High Court.
Act 135/2014 is aimed at reversing any decision of the High Court
which may limit Australia’s extraterritorial powers in relation to
interception and returns, among many other significant changes.
These laws will give the Minister for Immigration extraordinary powers
to intercept and detain people at sea (both within Australian waters and
on the High Seas) and to transfer them to any country or even a vessel
of another country that the Minister chooses, without scrutiny from
either Parliament or the court, even if that country is likely to
torture or persecute them on return.
As the United Nations High Commissioner for Refugees submitted as Amicus Curiae in the 157 Tamil case:
“Where people are intercepted on the High Seas and put on board a
vessel of the intercepting State, the intercepting State is exercising de jure as well as de facto jurisdiction and is subject to the obligation of non-refoulement.”
But all, it seems, to no avail.
To be continued . . .
(You can access Part 1 here if you have not yet read it).
Dr. George Venturini has devoted sixty
years to the study, practice, teaching, writing and administering of law
in four continents. He is the author of eight books and about 100
articles and essays for learned periodicals and conferences. Since his
‘retirement’ Dr. Venturini has been Senior Associate in the School of
Political and Social Inquiry at Monash; he is also an Adjunct Professor
at the Institute for Social Research at Swinburne University, Melbourne.
He may be reached at George.Venturini@bigpond.com.
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