Asylum Seekers: Two Bills that should cause concern

Seriously, it’s hard to keep up with the Government at the moment.  I have half-formed posts in my head about healthcare, and about pensions, and on how we construct value, and of course, the Victorian State Election is breathing down my neck with its promise of endless tiny political parties to write about, and now it seems we are finding new ways to pick on asylum seekers again. Honestly.  Some of us have full-time jobs, you know.  We can’t spend our entire time writing blog posts and letters about all the stupid and cruel things the government is doing.  You’d think they’d be old enough by now that you could let them play in Parliament House unsupervised, but evidently not… (Why yes, I am being sarcastic.  Though I have frequently suspected that the Abbott Government’s onslaught on everything from the environment to the unemployed was a deliberate strategy to weaken opposition by dividing its focus.  Nobody has the energy to fight on this many fronts.)

So.  If I’m not writing about all those other things, please don’t imagine it’s that I don’t care about them.  It’s that there are only so many hours in the day, and I have to pick the issue that a) upsets me the most, b) is worth badgering the pollies about this week and c) is something I actually have an intelligent opinion about.  You’re unlikely, for example, to get posts about global warming or coal seam gas or the Barrier Reef here, not because I don’t care, but because I’m starting from such a low baseline of knowledge that it makes sense to let people who know more write those articles. And boy, was that a digression. They were asking for it…

A Bill has been introduced into Parliament with the helpful-sounding name of Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. Doesn’t that sound cosy?  We like having things resolved, don’t we? Everyone keeps on hassling the Government about keeping people (especially children) in detention for so long – if we can be all efficient and process everyone fast, then nobody will have to be in detention!  It’s awesome!

Of course, it’s not quite that easy. This is a long Bill, and I don’t think there is much to be gained from going through it in great detail.  Others have already analysed this far better than I could, and I draw your attention in particular to the article by Malcolm Fraser and Barry Jones, to the analyses by the Asylum Seeker Resource Centre and ChilOut, and to the Refugee Action Collective’s Senate submission. I do, however, want to draw your attention to one segment of the Bill that I find particularly appalling.  This is clause 5J, which defines the meaning of well-founded fear of persecution, and it’s absolutely horrifying.  Here’s one of the clauses:

A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person.

In addition, persecution must be systematic and discriminatory.  Furthermore, 5K, if I’m reading it correctly, seems to say that you can’t count persecution that you or a member of your family has experienced ‘where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear of persecution had never existed.’

This is one long exercise in victim-blaming, and, frankly, it makes us the best ally an oppressive government could have.  I recently read the autobiography of Malala Yousafzai, and one of the things I found more chilling was that after she was shot, a member of the Taliban wrote to her, saying that he was shocked at the shooting, wished he could have warned her, and assuring her that if she would only come back to Pakistan, wear the Burka and go to a madrassa rather than a secular school, all would be forgiven.

In other words, if she would modify her behaviour, she would be safe.

Would the Australian Government send Malala back to Pakistan?

Is this hyperbole?  I don’t think so.  While I would imagine we wouldn’t send back someone as high-profile as Malala, who defines what is fundamental to someone’s identity or conscience?  Scott Morrison – who this Bill (and the one I will be describing below) is appointing as the ultimate authority, with no possibility of review?

This clause is, I think, particularly damaging to women.  It is women, not men, who tend to be excluded from education or forbidden to work outside the home, women, not men, who are often forced into child marriages, and women, not men, who are told, in domestic violence cases, that if they’d just be nicer, then their husbands wouldn’t beat them.  (And yes, I realise that men can also be victims of domestic violence, but if we are talking about countries from which one might be fleeing as a refugee, it is notable that there are cultures that believe a husband has the right to beat his wife, but none advocating a wife’s right to ‘discipline’ her husband.  So let’s not go haring off up this particular blind alley, OK?)

Is wanting to have an education, to work and keep one’s wage, to walk down the street without being accompanied by a male relative, or to simply leave a relationship that is abusive ‘a characteristic that is fundamental to the person’s identity or conscience’?

Is one’s sexuality would an innate and immutable characteristic?  While conversion therapy seems to have been discredited (and about time, too), there are still a lot of people who feel that the only way for a gay person to be good is for them to be celibate and stay within traditional gender roles.  Is it reasonable to ask gay refugees to avoid relationships and look as straight as possible in order to avoid harrassment at home? I think not.

Or here’s another one – what if I don’t agree with what the government in my country is doing, and write a blog about it?  Stranger things have happened.  What if the government wants to throw me in jail or ‘disappear’ me because I’ve written rude, rude things about their intelligence and ethics?  What if I flee the country to avoid this?  And what if the government says ‘It’s fine – we’ll forgive you, you just have to stop blogging about us’?

I could modify my behaviour and go home – and maybe the government would actually keep their word and not lock me up – but consider the result: political protest has been silenced, and my government hasn’t even had to lift a finger to make this happen.  It didn’t have to.  The Australian Government has done the job for them.

Quite seriously, I believe this clause will make it very, very difficult for anyone who is being persecuted for speaking out against an oppressive government to find asylum in Australia.  We will be in a silent collusion with exactly the sort of dictatorships and repressive governments we usually go to war against.

There is a lot more that is wrong with this Bill.  I am also deeply, deeply worried about the fast-track assessment process, which, if brought into law will significantly disadvantage those who are too traumatised to make their case well immediately on arrival, and may lead to people being sent back into danger simply because they were too ashamed or afraid to articulate what had happened to them.  This is not just speculation – the process is based on the UK’s Detained Fast Track Asylum System, which was recently found by their High Court to be unlawful, for precisely those reasons.

But let’s move on to another, less-discussed Bill, that is also doing the rounds in Canberra this month…

Citizenship? What Citizenship? This one is classy on so many levels.  In a new Bill, The Australian Citizenship and Other Legislation Amendment Bill 2014, the Government is changing the laws under which Citizenship can be revoked.  I’ve read through the draft Bill, which is not wholly intelligible unless one has read the bill it is amending, but a few interesting little clauses spring out at one:

34AA – Revocation by Minister – other cases of fraud or misrepresentation

(1) The Minister may, by writing, revoke a person’s Australian citizenship if:
(a) the person is an Australian citizen under Subdivision A, AA or B of Division 2 [These appear to be the sections talking about people who do not have citizenship by virtue of being born to Australian parents – if you were born an Aussie, this Bill does not apply to you]; and
(b) the Minister is satisfied that the person obtained the Minister’s approval to become an Australian citizen as a result of fraud , or misrepresentation, connected with:
(i) the Minister approving the person becoming an Australian citizen; or
(ii) the person’s entry into Australia before the Minister gave the approval; or
(iii) the grant to the person, before the Minister gave the approval, of a visa or of a permission to enter and remain in Australia; and
(c) the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen
(2) The fraud or misrepresentation:
(a) may have been committed by any person; and
(b) need not have constituted an offence, or part of an offence, by any person.
(3) However, the fraud or misrepresentation must have occurred during the period of 10 years before the day of the revocation.
(4) Without limiting subsection (1), the concealment of material circumstances constitutes a misrepresentation for the purposes of that subsection.
So, what we seem to have here is a a reply on the recent ruling by the High Court that Temporary Protection Visas were invalid.  Looking at this – and I am not a lawyer, nor do I play one in the movies, but the Asylum Seeker Resource Centre seems to agree with me here – the very fact of arriving in Australia without a visa can make you vulnerable to having your citizenship removed.  The fact that it is legal to seek asylum is neatly countered by the argument at 2b that one does not have to have committed an offence to have one’s citizenship removed in these circumstances.
I’m also a little concerned by section (4), which might be open to the interpretation that if one doesn’t disclose absolutely everything about the situation one was fleeing (which might be for reasons of fear, or shame, just as easily as for reasons of fraud) one might be subject to being sent back.
Here’s another nasty little section:
71 After subsection 52(2) Insert:
(2A) If the Minister makes a decision under section to refuse to approve a person becoming an Australian citizen under subsection(5), the person cannot apply for review of that decision unless:
(a) the person is a permanent resident; or
(b) the person holds a permanent visa of a kind prescribed in an instrument under subsection 3(2).
And also…
52A Minister may in the public interest set aside certain decisions of the Administrative Appeals Tribunal
Rather than quote the whole lot here, I’ll summarise this section, which essentially says that if the Minister says that someone can’t be a citizen because he is not satisfied with their good character, and that person appeals to the Tribunal, and the Tribunal says they can stay, the Minister can choose to set aside this decision.
In several other places we also have the addition “Decision not reviewable”.  If the Minister says no, you’re out of luck.
This essentially grants unchecked, life-or-death power to one person, who, even if he was an entirely good, kind and benevolent person, may still not always have all the facts at his disposal.  Nobody should have this degree of power.
The extra-nice thing about this Bill is the way the public consultation period was a mere seven days, and it wasn’t well publicised.  I’m afraid it has come and gone – though the ASRC did at least manage to get their submission in.
It’s not too late to badger your politicians, though.  (It’s never too late for a little bit of politician-badgering!)
OK.  I don’t want to leave you all depressed on a Sunday night, so let’s move on briefly.  I will try to come up with some Politician-Badgering Strategies over the next few days (and yes, I am aware of the privilege of living in a country where I get to bother politicians with impunity), but let’s end this on a more positive note, with some light(er) reading.
  • A nice article about how Shepparton’s welcome to refugees.  Proof that we can do better if we try – and that everyone benefits when we do!
  • Like a bit of social justice with your sambosa? The Sorghum Sisters started as a way to build employment and social engagement opportunities for African women living in Carlton, and has grown into a first-class catering business.
  • If you’re up for a longer read, this document, called ‘Beyond the Boats: building an asylum and refugee policy for the long term‘ is a  bipartisan report about asylum seeker policy, complete with some really good recommendations. Long, but worth your time.
  • And if you really can’t cope with reading one more word about politics tonight – here, have an owl and a pussycat who have not gone to sea in a pea-green boat, but who have apparently become excellent friends.  Because there are days when all you can really do is look at cute animal videos.
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4 thoughts on “Asylum Seekers: Two Bills that should cause concern

  1. Brilliant article. I love the way you’ve taken a piece of legislation apparently designed to be as indecipherable as possible and parsed it out so the layperson can understand its implications. Well done!

    • Thank you! It’s a nice warm-up for starting to decipher all those party policies…

      To be fair, I’m not sure the legislation is designed to be indecipherable so much as this is how legal language and amendments tend to be written. There were certainly a couple of amendments that made my blood run cold until I found the original paragraphs they related to (getting rid of an exclusion for children under 18 years – but thisturned out to be an exclusion from being allowed to apply for citizenship, for example. Occasionally, the government fails to live down to my expectations!). On the other hand, there certainly were sections which seemed needlessly complicated…

  2. Last week I contacted the 3 Labor Senators in SA about this, and yesterday I received a reply from Senator Alex Gallacher. I was greatly relieved to find out that the Opposition will oppose.

    • That is excellent – and rather surprising – news. I’m doing my letter-writing campaign this evening, just to be on the safe side. The more people Labor has telling them that we agree with them, the more likely they are to stick to their guns…

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