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Issue #1554      4 July 2012

Asylum seeker legislation: Labor, Libs turn the law backwards

Increasing criticism is being directed at the Gillard government and the federal opposition, since their shock bipartisan introduction of new legislatioan that threatens the human rights of asylum seekers and Australian citizens.

The new legislation is intended to prevent asylum seeker boat crews from claiming they entered Australian waters in order to help others achieve their right to seek asylum here. That’s what Jeky Payara, a 20-year old Indonesian man has claimed in a case before the Victorian Court of Appeal.

By signing the UN Refugee Convention Australia has formally recognised the right of people to seek asylum here. However, the legislation is intended to deny people (in particular the crews of asylum seeker boats) the right to help others achieve this, even if they themselves are also seeking asylum.

The government and opposition are blaming crew members for people smuggling, even though the real people smugglers always remain back in the port of departure, counting their profits. Crew members are usually impoverished young men or boys from rural areas in Indonesia or other Asian countries, who accept an offer of work from the real people smugglers, in order to provide desperately-needed financial support for their families.

Jeky Payara was charged under the newly-created crime of “aggravated people smuggling”. His appeal was to have been led by Debbie Mortimer, one of the brilliant barristers who successfully argued in the High Court that the government’s “Malaysian solution” was illegal under the current Migration Act. In order to prevent the court finding in favour of Payara, which would set a precedent for all such cases in future, the government wants the legislation to act retrospectively. And that’s the most dangerous precedent of all.

Retrospective, reactionary, ruthless

As human rights lawyer Julian Burnside commented, retrospective legislation “makes a crime out of something which was not a crime when it was done”, and would enable any future government to prosecute anyone over any matter it wanted, as long as it could get the numbers in parliament to make it a crime. The numbers are currently within easy reach for the combined bipartisan forces of Labor and the Liberals with regard to the current asylum seeker legislation.

The Payara case has been held over pending the outcome of Senate debate over the legislation. Last week Saul Holt, Payara’s legal counsel and the senior public defender of Legal Aid, declared “Retrospective legislation in criminal law is an extraordinary step ... hardly ever taken by parliaments.” High Court judge Dyson Heydon described the legislation as “getting retaliation in first”.

Allan Asher, the former Commonwealth ombudsman who was forced to resign recently, has described the government’s implementation of its asylum seeker policies as “riven by fear”, “a form of moral cowardice” and characterised by “hatred and accusations”. He commented that in some quarters the asylum seeker issue is “a subject about which rational discourse seems impossible”.

He is right. The government is fearful of losing support from the most reactionary minority of voters, and is determined to frighten potential “boat-people” with the prospect of being sent to indefinite detention in Malaysia.

The government seems intent on ignoring increasing evidence of psychiatric problems among asylum seeker detainees. During a recent Senate inquiry the company that provides psychiatric counselling services to immigration detainees revealed that with current resources it simply can’t cope with its enormous workload.

The mandatory detention policy has caused overcrowding and long delays in processing, and a large proportion of detainees are suffering severe mental health problems. Detainees can wait up to six weeks before receiving mental health treatment, and nearly 500 of them are now regularly receiving anti-depressant medication.

Ian Rintoul, a spokesperson for the Refugee Action Coalition, commented grimly: “The Darwin detention centre is becoming a theatre of the absurd. Guards are posted for 24 hours, noting when the detainee sleeps, wakes, sneezes, eats – this cannot be dressed up as any kind of psychiatric support program.”

There have been well-justified calls for more extensive psychiatric health services, and for detention centres to be more spacious and open, and to incorporate gardens. However, the real solution lies in ending mandatory detention, as recommended recently by former Prime Minister Paul Keating, who introduced the policy originally.

Ian Rintoul recently spoke out on behalf of members of Burma’s Rohingyan minority, three of whom have been detained for more than two years because of the government’s requirement to detain people while ASIO carries out security checks. He declared:

“The Immigration Department should immediately release Rohingyans and all other asylum seekers from detention while ASIO conducts their security checks. ASIO itself told a parliamentary inquiry in October that it is not a requirement under the ASIO Act for boat arrivals to be detained during security processing.

“There is no excuse for keeping people locked up. We urge the government to follow the advice of Paul Keating … and welcome refugees.”

Neither the government nor the opposition is taking his advice. Both have seized on the recent tragic sinking of an asylum seeker boat to justify their obsessive commitment to off-shore detention.

Neither has considered the possibility of preventing asylum seeker risking their lives in leaky boats, by opening special offices in Indonesia and elsewhere to process refugee status applications, and/or by offering assisted passages to the most destitute refugees.

Moreover, both are ignoring a recent opinion poll in which 53 percent of respondents favoured dumping off-shore processing, a policy area in which the government is demonstrably failing.

This week an opinion poll indicated that since the 2010 election support has fallen by about 23 percent for the government, and has risen for the conservative coalition – but only by just over 2 percent. On the other hand, support has risen by about 16 percent for the Greens and has doubled for the independents.

The writing is on the wall, but neither the Liberals, the Nationals, nor the ALP have taken any notice of it. They will reap the whirlwind in due course, and a good thing too.  

Next article – Editorial – Taxes, symbolism and the need for change

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