Code Of Conduct Puts Asylum Seekers At Risk

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In December of last year, Immigration Minister Scott Morrison announced that asylum seekers living in the community would be subject to a new Code of Behaviour. Last month, the code quietly came into force and appeared on the department’s website.

All so-called “illegal maritime arrivals” who apply for a bridging visa must sign the code, and thereafter become bound by a “list of expectations” about how they should behave at all times while in Australia.

Alongside the stipulation that asylum seekers must obey existing law, the code forbids them from engaging in “antisocial” or “disruptive activities” that are “inconsiderate or disrespectful, or threaten the peaceful enjoyment of other members of the community”. They must not bully, spread rumours, spit or swear in public, or persistently “irritate” anyone.

The department told us that where it determines a breach has occurred, “the visa holder will be provided with the opportunity to show that the breach did not in fact occur, or provide reasons why their visa should not be cancelled”.  As a result, the Code places a disturbing, unfettered discretion over the lives of asylums seekers in the hands of departmental officers.

Essentially anyone can implicate their asylum-seeker neighbours, employees or co-workers if, for example, they spot them uttering the occasional “fuck” or allegedly breaching an Australian law. In this way, the code renders asylum seekers subject to the constant surveillance, discipline and control of Australian citizens.

Prior to the code’s introduction, an asylum seeker in the community charged with a criminal offence was returned to detention, while Australian criminal courts determined the matter.

Now, if the code (including any Australian law) is breached, income support may be reduced or stopped, an existing bridging visa may be cancelled and an asylum seeker may be detained or transferred to an offshore detention centre.

The code also displaces the fundamental presumption in Australian criminal law that all persons are presumed innocent until proven guilty, and that crimes must be proven “beyond reasonable doubt”.

Scott-Morrison-parliament-wide

The department told us that where it determines a breach has occurred, “the visa holder will be provided with the opportunity to show that the breach did not in fact occur, or provide reasons why their visa should not be cancelled”.  As a result, the Code places a disturbing, unfettered discretion over the lives of asylums seekers in the hands of departmental officers.

Morrison has repeatedly characterised the code as being necessary to “protect” the “Australian community”, presumed to be under threat from “adult illegal maritime arrivals”.

The former are presumed to be law-abiding, courteous and civil, sharing a uniform set of values. Meanwhile, asylum seekers are characterised as racialised, social deviants who threaten “the peaceful enjoyment of other members of the community”.

But the Australian community is an imagined entity. Its sovereign borders are constructed and reconstructed in the rhetoric of politicians and shock-jocks — seeking to unify some, while excluding others.

As the Federal Government well knows, most Australian jurisdictions already contain laws criminalising offensive language and conduct. Legal academics have long criticised these laws for their deliberately vague wording, presumption of a “community standard”, and criminalisation of everyday behaviour.

Indigenous Australians, the homeless and those with a mental illness are already statistically much more likely to have their behaviour policed and be charged with these offences. Now asylum seekers have been added to that list, with fewer safeguards, and more serious sanctions.

The high incidence of mental illness amongst asylum-seekers has been attributed to successive Australian governments toying with their fate. This code adds another question mark to the mix, rendering their paths more precarious.

The killing of 23-year-old Iranian asylum seeker Reza Berati has exposed the intolerable conditions in the Manus Island detention centre. And yet, Manus Island is one of the places asylum seekers may be sent under the new code.

Might the utterance of a single swearword seriously result in an asylum seeker being shipped to Nauru, or Manus Island?  The newly appointed Human Rights Commissioner Tim Wilson, and Attorney General George Brandis, recently assured Australians that they are committed to free speech. What if an asylum seeker voices frustration at being coerced into signing this Code, and utters a few expletives in response?

What if an asylum seeker repeats Prime Minister Tony Abbott’s infamous words “sometimes shit happens”? What happens to the Australian “value” of free speech?

The idea that the Australian community needs protection from asylum seekers inverts reality. It is a sleight of hand whereby the state is at threat, rather than the undocumented boat arrivals seeking protection. When we accept policy like this, we ignore the fact that the Australian Government itself is a source of harm and violence towards onshore asylum seekers. It is not the victim in need of protection.

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Elyse Methven & Anthea Vogl

Elyse Methven is a Quentin Bryce Doctoral Fellow at the University of Technology Sydney, and an Associate Lecturer at Macquarie University Law School. Her areas of expertise are criminal law, police powers, and language and the law. For the last five years, Elyse has been teaching Criminal Law at the University of Technology Sydney. Anthea Vogl is a Quentin Bryce Law Doctoral Fellow working at the University of British Columbia and the University of Technology Sydney Faculties of Law. She teaches Forced Migration and Human Rights in International Law at the UNSW Faculty of Law. Her areas of expertise are refugee and migration law, administrative law and legal theory. For the last five years, she has worked between Australia and Canada and her doctoral research focuses on the oral hearing within onshore refugee status determination programs in both countries.

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