But let’s be clear. The measures go way beyond what is required in dealing with offenders post-sentence who are not citizens. The entire scheme, and the debate surrounding the issue, is underpinned by the notion that if you are foreign, you are disposable.
Days before the Dunkley byelection, we saw this play out when deputy opposition leader Sussan Ley tweeted, “If you live in Frankston and you’ve got a problem with Victorian women being assaulted by foreign criminals, vote against Labor. If you do not want to see Australian women being assaulted by foreign criminals, vote against Labor. Send Labor a message.”
When the Minister for Home Affairs Clare O’Neil announced the proposed legislation, she said of her predecessor Peter Dutton, “He never wrote laws as tough as this.”Credit: AAP
The man Ley was referencing had been arrested and wrongly identified as someone who had been released from detention following the NZYQ decision.
Yet even when Ley learned of this, she did not delete or retract her comments; the subtext being if it had been proved he had committed a crime, the tweet would have been fair game.
Any veneer that might have covered the Coalition’s reliance on xenophobia was stripped away by those comments and her defence of it in the aftermath. The way this reflects on our politics and our commitment to the rule of law is shameful.
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Then, last week, the government introduced and attempted to rush through the House The Migration Amendment (Removal and Other Measures) Bill 2024. If passed, the bill will criminalise the refusal to cooperate with deportation, with a mandatory sentence of between 12 months and up to five years, and declares that a genuine fear of persecution if deported is no excuse for not complying.
Other key features of the bill include allowing for the reversal of protection findings already made, and prohibiting certain visa applications from people outside Australia, if they are nationals from a country the Minister has designated as a “removal concern country”.
Predictably, the Coalition’s response is not to question the need for it and to examine its humanity, but to attempt to point-score. Before attacking Labor for their lack of transparency, Coalition MPs allowed the bill to be rushed through the lower house before doing an about-face in the Senate.
Less than a year on from the rejection of the Voice to Parliament, a country founded on migration and the displacement of our First Nations people has shown its willingness to lock people up and throw away the key for conduct that our laws would otherwise never justify.
The rule of law includes the application of principles of criminal justice – in all their complexity – to those found to have committed criminal offences. All of them, not just some. As a society, we don’t countenance selective application of our laws between different citizens. We shouldn’t do so for others who are in our country – least of all those most vulnerable and in need of protection.
Instead of reacting to further litigation in the High Court with extreme measures like its latest bill, the government should pause and reflect on whether the system they are proposing – one that is inconsistent with community values, gives into fear and allows the exploitation of refugees for political purposes – is really the type of legacy they want to leave.
Sam Norton is a lawyer and vice president of Liberty Victoria.
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