The Man Who Won't Be Questioned


The word “mandate” is a slippery term. But if the Abbott government has a mandate for anything, it’s tough measures against seaborne asylum seekers. Only a wilfully ignorant voter could have missed the Coalition’s non-stop messaging about “stopping the boats” in the run-up to the 2013 election.

All the indications are that a majority of Australians approve of harsh measures. A recent poll for Fairfax by market researchers UMR found that 60 per cent of survey respondents want the government to “increase the severity of the treatment of asylum seekers.”

The majority also think asylum seekers aren’t genuine refugees. As usual with such polls, you can question the methodology. But given what we know about Australian politics over the pasty six years, these results are hardly a surprise.

There is a sense, therefore, that Australia’s slow slide towards building a Pacific Gulag is a national pursuit. With bipartisan support for tough treatment, egged on by many sections of the media and backed by a majority of the electorate, we’re all in this together.

That’s something to reflect on, as reports emerge that the Australian Navy has started firing on unarmed boats in international waters. If true, it marks a new low in Australia’s state-sanctioned brutality towards those seeking safety on our shores.

Let us be clear: the government denies that this happened. “Without commenting on any specific alleged incident I can confirm that no shots have been fired at any time by any persons involved in Operation Sovereign Borders at any time since the operation commenced,” Immigration Minister Scott Morrison said this morning in a statement. Given that it is now almost impossible to independently verify such claims, we must take him at his word.

Australians as a whole would do well to think hard about where our asylum seeker policy is heading, whatever its popularity. Some public policies can be popular, politically expedient – and bad for the nation.

As I argued last year, the Abbott government’s aggressive and increasingly militaristic approach to immigration policy is badly damaging our relationship with Indonesia. That’s bad news for Australia, because our most important international relationship is with the Islamic democracy to our north.

Despite some half-hearted efforts by Prime Minister Tony Abbott and Foreign Minister Julie Bishop to mend fences, that damage is still accruing. Just this week, Indonesian Foreign Minster Marty Natalegawa warned that Australia’s move to transfer asylum seekers to specially purchased life boats was a “slippery slope.”

“Developments of the type that has been reported in the media, namely the facilitation by way of boats, this is the kind of slippery slope that we have identified in the past,” Natalegawa told journalists. “Where will this lead to?”

It’s a fair question. If Australians think the Indonesian government is being less than cooperative on the issue of asylum seeker movements through the archipelago, these developments are scarcely going to improve the situation.

Indonesia is entering into an election season, in which it is likely many candidates will be tempted to beat the nationalist drum against Australian incursions on Indonesian sovereignty. Can we be surprised at this? Here at home, the Coalition has just fought and won a federal election on a nationalist immigration platform.

The Abbott government is also entering into some decidedly uncomfortable legal territory. No fewer than three separate High Court challenges to aspects of immigration law are now underway. One of these, an action mounted by international law firm Fragomen’s on behalf of a Rohingya man, threatens to cause real trouble for the government if successful. The challenges may block Immigration Minister Scott Morrison’s regulatory ploys to deny permanent visas to asylum seekers arriving by sea.

“If both of our clients receive decisions from the high court which are favourable to them, there is the possibility that unauthorised maritime arrivals will not be denied the opportunity to apply for and be granted protection visas, simply for reason of being unauthorised maritime arrivals,” Fragomen special counsel Farid Varess told the Guardian’s Lenore Taylor on Tuesday.

The Gillard government found to its cost that the High Court can derail the best-laid plans of ministers and immigration officials. In 2011, it overturned Labor’s so-called Malaysian Solution, which would have swapped asylum seekers arriving in Australian waters for “genuine” refugees residing in Malaysia. The defeat was a huge political embarrassment for Julia Gillard and her Immigration Minister, Chris Bowen.

Monash University legal academic Maria O’Sullivan told New Matilda that she thinks the High Court challenge on behalf of the Rohingya man has a “good chance” of success.

That’s because it could fall foul of the Legislative Instruments Act, a 2003 which states that a government cannot make a regulation that is similar to one struck down by the Senate in the previous six months.

“It’s clear that the regulation that’s been introduced [to deny permanent protection visas]has the same effect as the temporary protection regulation that was disallowed by the Senate,” O’Sullivan said, adding that the act of firing on asylum seeker boat in international waters – if it happened – may be unlawful under international maritime law.

“Under the Law of the Sea, my understanding is you can't use that sort of force unless there's some sort of threat to national security, for instance if there are pirates,” she said.

This backs up the advice of University of Sydney law professor, Ben Saul, who wrote in July that “it is not legal to turn back a boat which is unseaworthy and on which the lives of passengers are in danger or at risk”.

“Australia has no right to board and search foreign vessels on the high seas, so Australia’s power to turn back boats is really confined in most cases to boats which are already in Australian territorial waters,” he argued then.

The government’s campaign to militarise an already punitive system continues apace. Morrison has also moved this week to shut down a number of onshore immigration detention centres, and to end the notorious weekly briefings in which he often refused to answer questions about boat arrivals. There will now be even less available information about asylum seeker movements and the government’s draconian response measures.

It’s now clear that the media has essentially lost any ability to exert appropriate scrutiny on the government over this highly controversial area of policy. Welcome to Australia, 2014.

Ben Eltham is New Matilda's National Affairs Correspondent.