Assume for a moment that Peter Dutton, the Minister for Immigration and Border Protection, is not a cruel and heartless man who derives pleasure from persecuting the unfortunate. Assume also that the Turnbull government is not so morally debased that its cabinet would sit around discussing what new torture it might inflict on boat people purely as a tactic of distraction, a morsel of red meat for the Murdoch press and shock jocks to noisily chew.
If that’s right — if Dutton is actually human and there’s something going on in the prime ministerial brain beyond his minute-to-minute survival — then why has the government chosen now to introduce its latest weapon of dehumanisation against a tiny group of people it has already reduced to non-person status in the country’s consciousness? What’s the deal with the “final departure bridging E visa”?
Remember when the word “visa” meant something positive? Way back, before immigration became an instrument of national security, a mode of prevention rather than nation-building. Now a visa can signify a status that includes no rights, no support, no hope, but is a tool designed solely to lever people into the conclusion that their only choice is between return to the country they originally fled, or return to a place — Manus Island or Nauru — where hopelessness is the entire design.
This new visa removes from fewer than 100 people presently in Australia, on no notice, their welfare support and gives them three weeks to move out of government-supported accommodation. They will be released into the community, free to work (ho ho, very droll, Minister) provided they’ve signed up to a Code of Behaviour. One wonders what the penalty for non-compliance is, when the choice is between deportation and starvation.
The small number of asylum seekers to whom this applies are here because they were brought here for medical treatment, from Manus or Nauru. The government didn’t want to bring them here, didn’t want Australian lawyers to take on their cases, didn’t want the courts to grant injunctions preventing their early return, and wants absolutely anything other than their permanent resettlement in Australia.
But they’re here, they have attracted the support of pro bono lawyers, and the courts have asserted a protective jurisdiction over them. Now getting rid of them is a prickly problem.
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The politics of this are apparently obvious. The Coalition’s sole unarguable policy achievement after five years in power is that it stopped the boats. Obviously, it needs to keep them stopped.
But does that explain this latest brutalisation of some of the most helpless people under our national care? Objectively, this “visa” imposition is an act of gratuitous victimisation. We are talking about a tiny number of people who have no prospects, suffer various health problems that necessitated their removal to Australia for medical treatment, and who genuinely fear persecution or worse in their countries of origin. Does anyone really think that any of the remaining boat arrivals, after all this time, knowing that the Australian government would fly them home any time they asked, is a so-called economic refugee?
Whatever those in the media who trade professionally in xenophobic fear-mongering may choose to believe, or at least spruik, the government knows for sure what these people are: destitute, helpless, lost souls who have nothing left but the faint hope of mercy from a wealthy nation. It knows they present no threat to national security, the welfare budget or social cohesion; at least they wouldn’t if the government stopped telling lies about them.
So, no, the politics don’t quite add up. The Howard government, despite its vaunted commitment to the Pacific Solution and keeping the gates padlocked, quietly resettled almost every asylum seeker from Nauru in Australia, once it had judged that the political mood had moved on. It would be easy for this government to paint these poor people as random victims of misfortune rather than willing manipulators of Australia’s generous nature. And really, who would mind taking a hundred or so residual charity cases, the leftovers as it were from our success at breaking the people smugglers’ business model?
I’ve seen it argued that the disconnection between the policy of stopping the boats and this seemingly endless persecution of asylum seekers is explicable on the basis that the government has lost sight of the end and is now just obsessed by the means. I think that pays way too little respect to the consciousness of Turnbull and his ministers. I think they’re acting rationally, albeit with no conscience and ultimately counter-productively.
The clue lies in the recent decision by the government to pay $70 million to the asylum seekers on Manus Island, to settle their case against the Commonwealth for wrongful detention. It was an utterly extraordinary thing for the government to do, in circumstances where it has never asserted anything but its 100% confidence that every one of its actions have been lawful. Dutton is never shy about labelling every asylum seeker as a conniving con artist; so it’s a lot more than strange that he decided to throw money at them rather than expose their deceitful ways in open court.
Clearly, the government either knew it was going to lose, or feared what would come out at the hearing — $70 million is a bloody lot of hush money.
The wider issue for the government is the wretched independence of Australian courts. They doggedly insist on not doing the bidding of the government of the day. In the field of immigration in recent years, the High Court in particular has been willing to give the government a wide authority to mistreat asylum seekers and trample all over the Refugee Convention, as the court acknowledges that it has no power to prevent that (international treaties not automatically being part of Australian domestic law).
However, a close student of the subject will have picked up that the courts are ever-wary of the tendency of the executive arm to over-extend. In the case that found the Nauru arrangements lawful, the High Court did make it clear that it was not sanctioning indefinite detention. It was implicitly assuming that, one day, the asylum seekers being held on Nauru would have to be resettled somewhere. It did not let Australia entirely off the hook.
The courts have been prepared to grant injunctions to protect the human rights of asylum seekers that the government denies it needs to observe, as soon as those people come within jurisdictional reach.
The judicial strands are relatively indistinct, but they might be tied together in the government’s nightmares to form a scenario like any of these: Manus and/or Nauru become dangerously untenable, the US doesn’t take the refugees off our hands, there is no alternative regional solution as we continue to refuse to let any of them settle in New Zealand; the asylum seekers are under immediate threat of dying from disease, starvation or local violence. What happens then?
The Australian courts have upheld the validity of the offshore detention arrangements, but they’ve not upheld the Australian government’s pretence that the asylum seekers are entirely not our responsibility. It is possible that, in an extreme situation, the courts might assert jurisdiction across the sea and order these people brought here; a form of habeas corpus, delivery of the body into the court’s protective arms.
That would be a disaster for the government. That’s what it’s desperately trying to avoid. And that’s why it’s trying to force, through the threat of actual destitution, the few asylum seekers who made it to Australia, back to anywhere but here.
The connecting point in this sequence is not the physical presence of a few random asylum seekers in Australia; that’s neither here nor there either politically or legally. The point is what the government is trying to avoid: precedent. As the lawyers look for ever more ways to engage the courts in their strategies to assert and protect the rights of asylum seekers, so the government is becoming ever more intent on not giving the courts the opportunity to rule on those asserted rights. Because the one arm of governmental authority upon which our rampant executive cannot impose its will is the judiciary. And the Coalition government is very uncomfortable with any force outside of its control.
For sure, Dutton is not empathy personified, and Turnbull is, well, nothing much at all. Their latest visa act is vicious and shameful; but it is rational. The game they are playing is avoidance of judicial intervention, and they’ve demonstrated that there are no limits to their expedience in pursuit of that goal.
For asylum seekers and their lawyers, this is actually good news. Now we know what the government fears most.