Peter Dutton could have stood on the Supreme Court steps and urinated on the Magna Carta, and he wouldn’t have got as violent a reaction from lawyers as he did for calling us “unAustralian”. Dudgeon levels were at an all-time high.
I was sufficiently offended myself to tell Dutton to fuck off by tweet, which sent our Twitter account somewhat viral for a bit. Are the lawyers merely exposing the thin skins of our ivory towers, or has the minister gone beyond the pale?
The correct answer is “who cares?”. In these times of serial institutional collapse, the notion that any normal person should give a toss about an ultra-conservative minister saying something fascist to a radio shock jock, and how that scandalised the legal profession, is quaintly ridiculous.
So I won’t join the frenzy about how appalling Peter Dutton is. Let’s talk instead about the slow death by strangulation of the rule of law.
I do go on about this a bit, but if you’ve cottoned on yet that the trajectory of the democratic world is pointing straight at the necessary conditions for a return to totalitarianism, you should know that the last two institutions that provide any check on unrestricted executive power are the Church and the courts. The Church, sadly, is mostly now a cautionary tale with little remaining moral authority. So really it’s just the judges we’ll be finally looking to for protection of our ephemeral human rights, before all those jokes about the Border Force’s uniforms cease to be funny (or allowed).
That’s the context for reflection on Dutton’s ostensibly loose language. UnAustralian is what he called the lawyers who act, pro bono, for refugees and asylum seekers. Insulting and outrageous, sure, but what lies beneath the gratuitous offence?
Asylum seekers are not citizens, but the law recognises that they have identical rights to citizens in their ability to access the protection of Australian courts. Although the government has enormous power within the constitution to interfere with their freedom to an almost limitless degree, nevertheless it is constrained by some basic principles such as the one that says it can’t detain anyone without proper cause.
The law of migration is incredibly, impenetrably complex. Apart from the extreme difficulty of the hoops that the Immigration Department makes visa-seekers jump through, the governing legislation is long, dense and amended with head-spinning frequency. No one other than a specialist immigration lawyer can navigate their way through this metaphorical sea with any hope of success.
So asylum seekers need help. Lawyers, lots of lawyers, have put up their hands to offer that help, mostly for free. They include barristers, big firm solicitors, suburban lawyers, community legal centres. There’s no reason to do this work other than to help.
Dutton paints a more complex picture, in which asylum seekers and their lawyers are not helpless people being helped by selfless lawyers, but professional con artists gaming the legal system assisted by cynical lawyers sacrificing the national interest for fun and profit.
The truth is at neither extreme, but again, who cares? The issue with Dutton’s assault isn’t his hyperbolic defamation but his conscious undermining of a fundamental feature of the rule of law: the right of individuals to seek legal help, and the responsibility of lawyers to provide it.
This has been a constant for the Abbott/Turnbull governments. Ministers have too frequently been prepared to criticise the courts and portray the legal system as an inconvenient obstacle to the smooth running of their business rather than an essential bulwark against executive excess.
The miscreants include the Attorney-General George Brandis, who attacked his own solicitor-general for not doing his bidding, tried to circumscribe his independence and ultimately drove him from office, while publicly undermining the head of the Human Rights Commission and trying to force her out too.
Tony Abbott has a famous disregard for the separation of powers, but he is best left alone. His urbane faux doppelganger, the current Prime Minister, overstepped gloriously during the recent citizenship debacle when he told Parliament how the High Court will rule on Barnaby Joyce’s case. He knows how egregious an error that was, but he apparently doesn’t care because he hasn’t retracted it.
In one sense, it’s good that this government has become increasingly loose with its willingness to overstep the conventionally respected boundaries that preserve the judiciary’s role as the unquestioned peak branch of government. It serves to remind us of what’s going on under the covers.
The same government has been assiduous in its pursuit of the extension of executive power. In national security and immigration (which it treats as the same thing), this has been non-stop. One random example: Dutton now has the legislated sole discretion to determine whether a particular region of any country is experiencing conditions such that a refugee’s fear of being persecuted there is genuinely felt. He can thus effectively change the definition of a refugee under the Refugee Convention.
The Immigration Minister has myriad other personal powers and discretions. He stands as legal guardian to many refugees; he makes decisions as to the national interest, on national security, about the intentions, desires, hopes and dreams of individuals. And he determines their physical fate.
So, when that Minister says that it’s unAustralian for an Australian lawyer to offer their expertise in helping an asylum seeker pursue their legal rights and entitlements, he is sending an unequivocal signal that he holds those rights to be non-existent, insignificant or, at best, an inconvenience.
This is important because, where a minister exercises discretionary power, they are assumed to do so impartially and without bias. When the minister has apparently predetermined on a global basis that all asylum seekers are scammers who do not deserve the protection of Australian law, which must be so because why else would he demand that lawyers refuse to assist them, then only one conclusion can follow. In any case in which Dutton is called on to exercise his discretion, he will start from the assumption which he has already stated.
Donald Trump came a cropper in attempting to implement his Muslim travel bans, because the US courts quoted his own words back at him as evidence that the geography-based pretence of his executive orders was a sham, and his intention was to achieve exactly what he had explicitly said: a ban targeted exclusively at Muslims.
Australian judges can also read. In any upcoming case in which Peter Dutton has exercised his powers to the detriment of an asylum seeker — for example, if he moves against one of those asylum seekers directly affected by this week’s move to remove all welfare support and coerce people back to Nauru or Manus Island — his own words can and should be used against him to argue that he is activated by a predetermined bias.
That bias, in the form of his jaundiced opinion of anyone who seeks refugee status under Australian law, reflected in his gratuitous insult to the legal profession which dares assist them as is our right and responsibility, arises not from fact but ignorant bigotry. He has the right to be a bigot, but his exercise of that right disqualifies him from performing the precious responsibility for human lives which he so carelessly wields.