14 February 2018
With the arrival of white settlers, Australia began life as a prisoner island. Many of those first immigrants were convicts; many finding themselves transported under the harshest of conditions and often for little more than acts of petty crime.
The formative years of our nation – an era where the transportation of convicts was an accepted cultural norm – is now universally viewed as a period marred by harsh violations of human rights.
The theme of convicts and immigrants still plays out in present day, but now the transportees are called 501’s. You could be forgiven for not knowing this, as much of the ‘501 phenomenon’ has played out without great public scrutiny.
In 2014 under the Abbott government, Section 501 of the Migration Act was amended to allow for the mandatory visa cancellation and detention of long-term permanent residents deemed to be of bad character. The introduction of section 501(3a) was always controversial, and the subject of much criticism and concern. In the two years following its implementation, this legislation change has resulted in a 1,100% increase in individuals placed in detention on ‘character grounds.’ Whilst this is passed off as the protection of the Australian community from a ‘criminal element’, what is particularly chilling is the set of sweeping discretionary powers this legislation gave to just one man – namely the Minister for Home Affairs.
Reason and common sense dictate that it is supreme folly to accord virtually unchecked powers to one person. It means we are left to rely on the moral fibre of an incumbent minister to uphold the spirit and intent of the legislation in a fair and just manner. With great power comes great responsibility’ as the saying goes. And therein lies the problem. In Peter Dutton we have a veritable monkey with a match in a barrel of dynamite. This is a man who displays open contempt for the judiciary; who sees the court system as little more than a frustrating impediment. He is nothing if not transparent – it is not hard to see a man consumed by self-righteousness and driven by a personal vendetta to rid the country of all that he personally considers to be vile and wrong. And in that sense, he is little more than a self-appointed vigilante – a man who holds to the belief that the soft judiciary cannot protect us; who attempts to take matters of law into his own hands.
Section 501 has effectively equipped this vigilante Minister with a weapon of mass destruction. So how does a 501 visa cancellation actually work? Simply put, it can be likened to a card game which has the deck rigged in favour of the house:
You are a permanent resident who has been given a prison sentence of 12 months. Whether you like it or not, this automatically makes you a 501 player. On completion of your prison sentence, you are notified that your visa has been cancelled and you are offered the opportunity to present a submission in writing to the Minister telling him why you feel you should keep it. Let the game begin. Even though you have a home and job to return to, you will be placed in a detention centre which is the equivalent of a maximum security prison. You are likely to be moved to a facility like Christmas Island where it is virtually impossible for your wife and children to visit you. Locked down with restricted movement, you will suffer from some degree of mental and emotional anxiety, depending on your strength of mind. Unlike prison, nobody can tell you how long you will be here. By the time the Minister has read your submission and is ready to play, you will have been in detention almost 12 months. The wait is getting longer because of the massive rise in people detained, waiting to play 501. Let us consider your cards. In your case, you have a strong hand; a ‘Full House’ – you have lived here for 40 years and your entire family now reside here. Both your young children were born in Australia. You also have a “Get Out Of Jail Free’ card – you have lived lawfully and have no criminal record apart from one mishap, and you were granted parole on the basis that you present little risk to the community. The stakes you’re playing for are your home, your loved ones and your way of life. What monetary value do you place on this? You cannot afford not to play. Sobbing on the phone, your wife tells you that if you had only become an Aussie you would be back home with them. The only reason you are suffering through this nightmare is that you didn’t apply for citizenship. And that is not actually a crime.
Anyway, back to the game. The rules from here are that the Minister must consider all the cards in deciding your fate. However he can trump any and all cards simply by saying: ‘I have looked at your cards and I think you’re a risk to the community and it is in the national interest to deport you.’ In your case, the Minister plays his standard game and does just that, saying ‘I considered your ‘Full House’ and it is not enough. Your visa remains cancelled.’
So what now? Surely there is some check and balance to ensure the Minister made the right decision? Your only course of action from here is to appeal to the referee – the Federal Court. If the Minister made a judicial error when trumping you – if he overlooked an important card – the Court may overrule his decision. So you wait another 6-9 months for the referee to review your case. By now the relentless stress has caused your physical, mental and emotional health, and that of your estranged loved ones to decline further. Your youngest daughter has withdrawn and is seeing a psychologist. Your wife is working a second job to support the family in your absence, and is on the verge of a nervous breakdown. You feel powerless and responsible, and now require medication to sleep.
Fortunately, the court decides that the Minister was in error because he did not consider that vital ‘Get Out Of Jail Free’ card. It is relevant because it means the judiciary have assessed you to be of negligible risk, which contradicts the Minister’s judgement that you are a threat to the community. They rule the visa cancellation decision be quashed on that basis.
The referee has ruled in your favour! So you’re in the clear, right? Wrong. In this game, the referee can’t actually give your visa back. They can only tell the Minister to review his decision according to law. So you are returned to the detention centre while the Minister looks at your cards for a second time. More weeks of waiting drag by.
Now, in a game of tennis or cricket, or any other sport for that matter, the referee’s decision is final. Not so with 501 where the Minister is hell-bent on making his decision final, no matter that a court rules otherwise. And so you rot in a detention centre, awaiting the day when the Minister makes his next play. This is most likely to be: ‘I re-considered your ‘Full House’ AND your ‘Get Out Of Jail Free Card’ and it is not enough. I still consider you a threat to the community and in the national interest your visa remains cancelled.’
How confident would you feel playing Dutton’s 501 game?
Lawyers will speak of their concern with respect to the course that Section 501 has taken. Minister Dutton has capitalised on these broad powers to remove as many people as possible, including one-off offenders with otherwise lawful backgrounds. Even people who have done prison time decades ago and left the past behind have answered a knock on the door in the small hours of the morning; finding themselves dragged away to an immigration detention centre. And like the transportees of old, all have found themselves estranged indefinitely from partners, children and family as a result. Not since the Second World War has Australia deported permanent residents in such record numbers. Dutton has demonstrated precious little by way of compassion in many of his heavy-handed decisions, which have torn families apart. It would be fair to say that he presides over a deportation regime which has effectively created a second stolen generation.
The Commonwealth Ombudsman has suggested that the monster which Section 501 has become goes beyond the original intention of the provision. The Australian Human Rights Commission concurs, and has consistently called for an end to Australia’s system of mandatory detention for ‘unlawful non-citizens’ because it leads to breaches of Australia’s international human rights obligations.
With the possibility of a Labor government taking power at the next federal election, it is time for Shadow Minister Shayne Neumann to clarify his party’s position regarding the over-reach enacted courtesy of this sweeping set of administrative powers. Can we expect more of the same heavy handed treatment under Labor, or will judicial fairness and ministerial accountability prevail?
Giving an address at the Law Council of Australia’s Immigration Conference last week, Neumann stated that “Labor strongly supports the cancellation of visas on character grounds under Section 501 of the Migration Act.” He should have no complaint from the public in this respect – the protection of the Australian community must be held paramount. But here’s the thing – the majority of people now being caught in the 501 net are not ‘hardened criminals’ as Peter Dutton likes to paint them. Many have made a serious mistake which they will likely remember for the rest of their lives. They have paid their dues in the eyes of the law and the courts. Bear in mind that with respect to their risk to the community; if they were Australian citizens they would actually be back in the community, as a court or parole board has assessed them to be of negligible risk. Is it appropriate to break these people mentally, emotionally and financially while they await a second judgment by the Grim Reaper, simply because they remained permanent residents and didn’t become Australian citizens? What does the word ‘permanent’ mean, after all? How do Labor and Shayne Neumann plan to navigate this situation?
Mr Neumann further observed that “decisions made under Section 501 are too important for an Immigration Minister to get wrong or make legal errors.”
Recent history shows the Minister has made legal error on several occasions. When a Federal Court rules the Minister is in error and he subsequently over-rules the finding of the judiciary – often within hours of their ruling – I think you will agree that we have a problem. Apart from Dutton’s 501 game; how many legitimate sports can you name where one of the players can actually over-ride the decisions of the referee?
This week Minister Dutton cancelled an individual’s visa for the third time – he has now overturned the rulings of a court demanding he re-instate the man’s visa on two separate occasions.
Will this ‘stacking of the deck’ continue under a Labor government?
Please share this article with Labor MPs for their review and comment:
Hon Shayne Neumann MP – Shadow Minister for Immigration: @ShayneNeumannMP
Hon Mark Dreyfus QC MP – Shadow Attorney-General: @markdreyfusQCMP
Hon Bill Shorten MP – Leader of the Opposition: @billshortenmp