My weekly Guardian column:
The legislation on asylum seekers that immigration minister Scott Morrison pushed through the Senate last week, granting him even wider powers, is not the only area in which he is seeking to extend and concentrate his influence over the lives of vulnerable people.
The Australian Citizenship and Other Legislation Amendment Bill 2014 is yet another attempt by Morrison to give himself and his department massive, largely unchecked power to control individuals’ futures. Most of the affected aren’t asylum seekers but may include citizens undergoing drug rehabilitation or suffering from a mental illness. They face being potentially blocked or losing Australian citizenship. The bill outlines the various ways in which the minister can deny, block or rescind citizenship for any individual, former asylum seeker or not, who he believes obtained this privilege dishonestly.
The bill aims to change the definition of Australian citizenship. The minister already has the power to sever visas but this goes further to potentially affect thousands of Australian citizens who are living productive lives today. Morrison’s moves against asylum seekers aim to drop the established norms of natural justice. The citizenship bill continues this appalling trend where the minister and his department are deemed more knowledgable than independent oversight. It’s a change that must be rejected though the public response has so far been almost non-existent.
The bill aims to grant the minister powers to determine an individual’s “good character”. The Department of Immigration and Border Protection explains in its submission to a Senate committee why the government believes the law should change: “As an elected member of parliament and minister of the Crown, the minister has the privilege of representing the Australian community and has gained a particular insight into the community standards and values.”
These “values” may be news to the thousands of asylum seekers languishing in horrific conditions on Nauru and Manus Island, forced to suffer months and years of detention for the “crime” of legally arriving by boat.
Another section of the submission demands “setting aside” decisions of the Administrative Appeals Tribunal (AAT) “concerning character and identity if it would be in the public interest to do so.” The idea that a minister, Morrison or somebody else from any political party, is better placed to decide on character is an absurd proposition that denies recent history of a mostly successful process. The AAT isn’t a perfect body, but for the immigration department to state that its position is null and void shows contempt for any independent review. This obsession with centralising power guarantees secrecy and grave errors.
Despite the government claiming that it would only ignore the AAT in cases where decisions fall outside community expectations and standards, the Law Council of Australia opposes the proposal, saying it “undermines the independent review process which is provided by the AAT.”
The Law Council’s submission is concise and powerful. It praises the AAT as “generally designed to promote good decision-making and provide individuals affected by adverse decisions with a relatively straight-forward, inexpensive mechanism by which to seek review.” This echoes Morrison’s aim to restrict the ability of individuals to challenge rejection by his department.
The Law Council also condemns the proposal that the department could make decisions on citizenship “in the public interest.” It argues that such a term “should be defined and limited to decisions affecting the Australian economy, affecting Australia’s relations with other countries, concerning national security or concerning major political controversies.”
Another disturbing section of the bill revolves around granting the minister the right to determine “fraud” or “misrepresentation” of an Australian citizen, including children, and then potentially revoking that person’s papers. Crucially, as the Law Council details, “this is regardless of whether the person was convicted of an offence in relation to the fraud or misrepresentation.” Australia would be a country where a minister determines guilt “outside of any criminal proceedings.” The presumption of innocence is trashed in this bill.
Melbourne-based Carina Ford, an accredited immigration law specialist who works in this area, says that the bill revolves around a belief that, “the executive thinks that they’re in a better position to make decisions than tribunals.”
“I have concerns with a minister having the power to overrule AAT tribunal decisions. Australia has a system of separation of powers and it’s problematic when a minister can overrule it. This government has been doing that in terms of citizenship and character. We should have faith in our tribunals, they are able to make the right decisions.”
Ford argues that the Abbott government’s platform of securing Australia’s borders partly explain this bill. She worries that unjust decisions are assured. These are “draconian powers if somebody has provided a fraudulent document. It will be very difficult to get citizenship, even if it may have been 10-15 years ago for a person who has been paying tax and living safely here. A decision made when you’re 18 may come and bite you when you’re 28.”
Morrison’s thirst for power follows a global trend. In Britain the current issues of immigration and citizenship are inexorably tied to the rise of Ukip and prime minister David Cameron’s quest to toughen his country’s stance against European citizens. Across Europe the rhetoric against immigrants is growing, fuelling public insecurity about jobs and the economy. The Cameron government has made obtaining citizenship much harder.
In America, the power of the US Immigration and Customs Enforcement is staggering, affecting the options of millions of current and future citizens. Scapegoating for simply being immigrants is routine and lacks any serious accountability mechanism.
Morrison’s push to grant himself even larger influence should be resisted for the simple reason that his department proudly avoids scrutiny. The Abbott government, so fond of excluding critics in its Team Australia campaign, should not be trusted to decide the “good character” of vulnerable citizens.