“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.

Scott 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 Scott 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)

The only boat of asylum seekers which was not returned in this period 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).

Updated 4/4/2016. Click on the links to access Part 3, and Part 4.

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.