Today Labor will introduces amendments to the Migration Act to criminalise breaching bridging visa conditions, a direct response to the recent High Court decision that found indefinite immigration detention unlawful.
This week 83 people, some found guilty of serious crimes, were released after the decision. Immigration Minister Andrew Giles and Home Affairs Minister Clare O’Neil said: “The government will introduce and seek to pass this legislation … to further respond to the High Court’s decision.”
This all came after Opposition Leader Peter Dutton’s attempt to link the release of “hardcore criminals” to a breakdown of “social cohesion” and a rise in anti-Semitism. The introduction of legislation to effectively overrule a court decision is, as it turns out, a staggeringly common one, particularly when it comes to immigration.
As constitutional expert George Williams bracingly put it to Crikey a while back: “The courts have never had great capacity to hold the executive in check. It’s the culture of the system.”
Legislative fixes
The clearest example of what governments are willing (and able) to do is demonstrated by what’s known as the M68 case. A Bangladeshi woman — known as Plaintiff M68 — was transferred from Nauru to Australia to receive urgent medical attention late in her pregnancy. While in Australia, she gave birth. With the help of the Human Rights Law Centre (HRLC), she brought this case against the immigration and border protection minister, the Commonwealth, and Transfield Services in an effort to prevent being returned to Nauru. The HRLC argued “her past detention was unlawful by reason that it was not authorised by any valid law of the Commonwealth nor based upon a valid exercise of the executive power of the Commonwealth”.
The government promptly amended the Migration Act, adding section 198AHA, which in staggeringly broad terms authorised the Commonwealth to “take, or cause to be taken, any action in relation to the arrangement or the regional processing functions of the country” and “do anything else that is incidental or conducive to the taking of such action”. The section purported to have retrospective affect to 2012.
Both sides of politics are very happy to push through changes of this sort. As Daniel Webb who led the M68 challenge told The Saturday Paper:
I don’t think we’ve ever seen a piece of legislation like this in Australia — retrospectively authorising three years of detention of thousands of innocent people in the middle of a case in our highest court. What’s almost as incredible as the law itself is how quickly it just sailed through our Parliament with bipartisan support. Opposition leader Bill Shorten said at the time it took him ‘not more than 10 seconds’ to decide what to do. I only wish he’d spent those 10 seconds thinking about the 37 babies and 54 children whose lives he was helping sign away.
The High Court’s conclusion, ruling that the government’s actions were justified not that “the plaintiff’s central claim (that the Commonwealth and the minister acted beyond the executive power of the Commonwealth by procuring and enforcing her detention at the regional processing centre between March 24 2014 and August 2 2014) to have been well-founded until 30 June 2015, when S198AHA was inserted with retrospective effect”.
Overruled? You’re overruled!
But who can be bothered going to all the trouble of getting some laws together — what if they’re so draconian your usually supine opponents can’t meekly wave them through (such as the border protection bill introduced the same day as the Tampa breached Australian waters in 2001)? There are plenty of other options.
In 2017, roughly 100 asylum seekers who had come to Australia from offshore detention to seek medical treatment and then gained court injunctions preventing their return, were issued with a new visa called “final departure bridging E visa”, which gave them three weeks’ notice that they were to be evicted from their accommodation and have their $300 a fortnight benefit ceased.
With the powers available to the minister, you can simply respond to a court case saying you can’t do something by just straight up doing the same thing — like the Federal Court overturned a decision to cancel two men’s visas and then Dutton waited 43 minutes before cancelling them again.
Sometimes we agree
But it’s not all conflict between the courts and government.
In November 2001, the High Court abruptly brought a case questioning the legality of the government’s handling of the Tampa affair to a halt. By refusing to consider an appeal from a split decision of the full Federal Court, which had upheld the lawfulness of the detention and expulsion of the Tampa refugees, the court “effectively sanctioned the federal government’s continued use of military force to remove asylum seekers from territorial waters and transport them to detention camps on remote Pacific islands”.
Then in 2015 the High Court held by a narrow majority that the detention of a Sri Lankan asylum seeker intercepted en route to Australia was lawful under the Maritime Powers Act.
Is it about time governments of both persuasions showed the courts some respect? Let us know by writing to letters@crikey.com.au. Please include your full name to be considered for publication. We reserve the right to edit for length and clarity.
I am astonished at how brazen our politicians are to openly advocate acting unconstitutionally and illegally, from the calls to re-detain the refugees, to the minister saying she wished she could keep them locked up, and how meek the media is in calling this out.
Barring the Greens, who I think are misreading the room, is there no-one who will call this out?
If our government and its officers hold their obligations on this matter in contempt, why should they not also have contempt for any other rule or law?
Surely the correct response to the courts finding that you have been acting illegally for the past 20 years is at a minimum to say “we got it wrong, here is what we’re going to do going forward to ensure we act constitutionally”.
The legislation bound to pass today surely falls foul just as much so as the one that the court quashed. Are curfews and electronic monitoring not punishment? Surely they are.
Yes, this is just a manifestation of habeas corpus, which is probably THE most critical principle in our liberal freedoms – the government cannot arbitrarily, summarily or unilaterally deprive someone of their freedom; this is the prerogative of an independent judicial system, administering known laws. If we’re going to have the government depriving people of their liberty because it doesn’t like them, then we’re no better than China, Russia and North Korea.
And isn’t it interesting that the same RWNJ’s who a month or so ago were claiming that the Constitution is so sacred we dare not change it, are now arguing we follow our passions rather than the rule of law.
Great comment Peter, particularly the last paragraph.
What astonishes me is that Dutton carries on about a small cohort of people who pose a threat to Australia. In the meantime, a great many politicians engage in climate denialism and fail to support action on that threat; which has far greater implications for Australia’s security.
Where is the legislation to protect us from these people?
Australia’s political system and media really do seem to be so easily distracted by things of much lesser consequence in the proportionality stakes.
We say we are worried about the character of illegal immigrants being released. But how about the dozen or more of our ADF muderers who three years on from Brereton are circulating freely around the community. Why not charge them and hold them on remand?
Probably because the evidence is lacking. One of those nit-picking requirements of the Court is proof. A war in which the bad guys look exactly like the good guys is bound to be confusing to soldiers whose officers have told them what to do and not to get killed doing it. (So they can do it again.) Then the officers can also be charged, presumably. And their superior officers up the chain of command. All the way to the top? Who needs an army anyway? Lock them all up for conspiracy to commit murder. But isn’t that what they’re for? They’re doing what the Government orders, so lets lock them up as well. But doesn’t it come down to the people who voted them in, like you and me.
A third of the soldiers who fought in Vietnam were later diagnosed as having PTSD so were probably not fit to decide if it was right to pull the trigger. Let down badly by OH&S, you might say. But ditto for Afghanistan, only worse. A court room full of psychiatrists and ex-officers covering their bums won’t get to the truth of anything. But I do see your point, Don. Were you there?
Its ridiculous that we need the most learned of legal thinkers to point out to our politicians through an expensive legal procedure that “indefinite immigration detention is unlawful”, one would think that most Australians can wrap their head around this with little assistance..
The confected theatrical hysteria of the Labor and LNP politicians following the High Courts decision against indefinite detention of refugees without a visa is fascinating as well as risible.
The curious thing is that convicted criminals are released all the time once they have completed their sentences (subject to parole conditions). However for convicted criminals claiming to be refugees and who have already been put into detention for periods of time often longer than that enjoyed by our local convicted felons, the same rules should not apply, according to Labor and LNP politicians.
I am curious to learn how a convicted criminal who comes from a refugee or migrant background is somehow more dangerous than a home grown one? Or, once convicted, should all criminals be kept in jail indefinitely so we can all sleep soundly in our beds at night?
Don’t give the pusillanimous poltroons posing as politicians ideas – as demonstrated last week that would have bipartisan support and pass it a heartbeat.
With a democracy like this, who needs dictatorship?
To modify the old saying “Same ordure, indistinguishable buckets“.