By Greg Barns Friday 5 December 2014
Photo: Make no mistake, the Senate has undermined democracy in Australia overnight. (AAP: Lukas Coch)
After winning a sickening game of legislative chess with the Senate crossbench, the executive now has the power to "play God" with the lives of those seeking safety on our shores, writes Greg Barns.
Faced with the most regressive shift in Australia's international human rights obligations in recent years, the Senate buckled.
Newly minted senators like those of the Palmer United Party as well as the Motoring Enthusiasts' Ricky Muir this week had a gun pointed at their heads in the form of amendments to migration laws that effectively undermine very directly Australia's obligations in international law to refugees.
Innocent children detained on Christmas Island were pawns in this sickening game of legislative chess.
What should those senators like Ricky Muir have done when it came to dealing with Immigration Minister Scott Morrison's bill that reintroduces temporary protection visas, gives the immigration minister unchecked and un-appealable powers to prevent asylum seekers arriving by boat from making claims, and allows him to return individuals to the country from which they fled, but which releases children from Christmas Island?
According to Senator Muir, he was "forced into a corner to decide between a bad decision and a worse decision, a position I do not wish on my worst enemies". Perhaps the Palmer United Party senators were of a similar view.
But in passing this legislation Senator Muir and his colleagues have done what many would think is unconscionable in a society that supposedly subscribes to the rule of law - allow the executive to "play God" with the lives of those in our world who want to put their case for asylum to a rich, developed world country with ample capacity to take them.
In 2005, the great English jurist Lord Bingham set out the essential principles which differentiate a civilised society bound by the rule of law from those societies that are authoritarian. One of those principles is that "questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion". Another is that that "the law must afford adequate protection of fundamental human rights".
Lord Bingham's principles have been ignored, either wilfully or unwittingly, by our legislators in the passing of the migration laws in the early hours of this morning.
The reintroduction of temporary protection visas offends both the principles referred to above. The Australian Government can return an individual on a TPV after three years if it believes conditions in the country from which the person came have improved. In other words, a government official or minister can decide the fate of a person's future via their assessment of whether it is safe to return to lawless countries like Afghanistan.
The powers given to an Immigration Minister and an internal bureaucratic process to determine the claims of those persons who arrive by boat seeking protection under the Refugees Convention, a fundamental human right, are an abrogation of the principle that questions of legal right and liability should be resolved by the application of the law and not on the basis of power being exercised by government officials.
The Abbott Government's law removes the right of individuals to have their case reviewed by the Refugee Review Tribunal and the courts. This new law is frightening in a genuine sense. It shows contempt by the executive and by legislators who support the unparalleled powers given to the Immigration Minister and the bureaucracy for any check and balance in the exercise of their power.
One is tempted to observe, how dare politicians in Australia criticise Russian president Vladimir Putin for his similarly distorting of Russian democracy when Minister Morrison and his legislative supporters have taken a leaf out of the Putin handbook.
And why did legislators like Senator Muir and other crossbenchers allow the Abbott Government to effectively rip up Australia's Refugee Convention before their very eyes?
Under the new law it is "irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen"; that is, a person who arrives by boat seeking asylum. Non-refoulement is the core of the Refugee Convention because it means no government that is a signatory to it can send a person back to a country or region where they know or are reckless as to whether or not the person will be persecuted.
The Abbott Government and its legislative allies have snubbed their noses at the rule of law yet again because the rule of law assumes that Australia, by signing up to an international legal framework, is compliant with that framework.
Make no mistake, the Senate has undermined democracy in Australia overnight. It has passed a law which allows for certain individuals, those who arrive by boat seeking asylum, to be discriminated against, to be denied fundamental human rights, and to be shunted back to possible death or persecution.
What senators like Ricky Muir and the Palmer United Party should have said is that they as legislators in a democracy cannot sanction such a wholesale attack on fundamental rights. And that sickening dangling of the future of children's lives on Christmas Island as a quid pro quo, by the Abbott government, was utterly unconscionable. If Ricky Muir and the Palmer United Party had blocked this new migration law, they would be rightly perceived by history as brave individuals who refused to undermine Australian democracy.
Greg Barns is a spokesman for the Australian Lawyers Alliance and barrister. View his full profile here.
