Border Force on parade

Blunders ahead as Australian Border Force gets to grips with "reasonable suspicion" ... Australia's refugee intake - much more woeful than the PM would have us believe ... Richard Flanagan wide of the mark on Border Force powers ... Government by smoke and mirrors ... Procrustes on the beat  

Border Forcettes: suspicion is king

THE Prime Minister kept us all relaxed and comfortable when he assured us, the decent and caring world citizens that we are, that "we are a country which takes our international obligations seriously [and] on a per capita basis we actually take more refugee humanitarian intake than any other country".

Sigh, if only it were true, but it is merely product of the conveyor belt of blather that constitute this man's public utterances.

Australia ranks high in the list of countries resettling refugees from offshore via the UNHCR, but our overall refugee intake is abysmal. 

The Refugee Council of Australia says the 14,350 refugees recognised or resettled in Australia during 2014 made up 0.43 percent of the global total, with Australia ranked 22nd overall, 27th on a per capita basis and 46th relative to total national GDP.

More per capita than anyone else - phewy! See more here

I'm happy to accept (at my age I have no option) whatever my elected government comes up with as policy. I just wish they wouldn't lie about it. Since the PM has gone for the Nazi analogy while gnashing over ISIS, he might do well to remember how the world mocked 1945 Germans for claiming that they didn't know what was going on in concentration camps.

But their government had told them for a decade that all was well in these re-education centres. I'd be happy, or at least entertained, if my government put an honest face to the world, hoisted the Jolly Roger and, giving the world community the two fingered salute, announced its intention to keep Australia at the bottom of the pack when refugee numbers were being discussed.

But no, we have to suffer this mealy-mouthed fib, tricked out as an assurance to our humanity, that we are the biggest philanthropists. 

It's all of a piece, the stream of consciousness blurted as media release in the hope of saving a situation. A relatively senior official in the magnificently caparisoned Border Force puts out a press release (passed by the PM's and Minister for Immigration's offices) announcing that Border Force officers would be patrolling Melbourne's CBD and stopping "any individual we cross paths with".

When this attracted an immediate adverse reaction from the public, the government ran for cover. From Thursday Island the PM thought bubbled: "Nothing out of the ordinary happened, absolutely nothing out of the ordinary." 

Richard Flanagan wrote on this farce in Guardian Australia, and I quote at length as it contains significant error that underlies all commentary, from left or right on the Border Force announcement. Flanagan expressed surprise at the arrival in Australia of ... 

"a paramilitary force that seemed not answerable to the legal limits and public expectations of our police and military forces, but only, and directly, to politicians - those same politicians who of late seem to have little respect for the rule of law, the truth, or the necessary independence of the judiciary.

Known as the Australian Border Force, this goon squad - formerly public servants, lately militarised at considerable taxpayer expense, given guns, the power to detain people, vaguely fascistic uniforms and a mandate that seems to not recognise the laws of their own country - were, we now told, mounting a large operation on Melbourne CBD streets, 'speaking with any individual we cross paths with'.

As is so often the case with the Abbott government, this comic event felt like Vladimir Putin meets Rob Sitch's Utopia; something sinister undone by a reliable stupidity, perhaps our last national virtue.

The hallmark bullying swagger of this government's was matched in this instance by a grovelling backdown as the illegality of the proposed actions become clear and public condemnation overwhelming, and the arse-saving swung into full gear."

Flanagan is correct to observe the power to detain that vests in officers of the ABF. However, and herein lies the error, the actions proposed by the press release are in fact in-line with the laws of this country (if not the spirit of the rule of law). There is no illegality in the proposed actions.

That's what is so terrifying about the press release. Not that it was a stuff-up (yes, trumpeting your intentions to the poor bastards that you're aiming to sweep-up is stupid), but that its content reflected the ABF's powers accurately.

ABF officers (and all officers of the Department of Immigration and Border Protection) are empowered under the Migration Act to detain anyone they "reasonably suspect" of being an illegal non-citizen.

Indeed, the Act says they "must" detain such persons. Now, when plod collars you on a reasonable suspicion of committing an offence, there's a whole protocol associated with the event. You must be told why you've been arrested and, at the first possible opportunity, you must be brought before a judicial officer who has a supervisory power over the arrest process and then the determination of guilt.

This judicial supervision is exactly what is missing from the Migration Act powers. Of course Mike Pezzullo, the secretary of the Department of Immigration and Border Protection, would tell you that his officers always get it right, so no judicial supervision is required (and the subjects of these ministrations are anyway lesser breeds without the law, in the antique phrase). 

But, wait, what of Cornelia Rau or Vivian Solon? Relax, you've all forgotten about them, although they did cost you, as taxpayers, a lot in compensation when the department's errors were uncovered.

The department doesn't want judicial oversight. Would you, when you're on a mission from god? But, "reasonable suspicion" as an unsupervised tool for determining bogus documents and visa status in the hands of base grade clerks or the Ruritania-uniformed ABF is dicing with administrative death.

Inevitably mistakes will be made, then the tedious train of litigation leaves the station and the judiciary has its say - all too late of course for rule of law theory.

Your scribe has a sniff of a case in the Federal Court right now, in which the facts are unequivocal as to long term detention, with the Commonwealth later conceding the validity of documents found bogus on entry. 

What's scary about this case is that it boils down to the Commonwealth asserting its discretionary right to deprive people of their liberty on a false pre-text, and that when the falsity is brought to light, the Commonwealth can deny the payment of damages for false imprisonment. Stay tuned for this one.

It's all of a piece with government by smoke and mirrors, with massive impacts on individuals by governmental power, which power conceals its evidence and process - so much for the rule of law. 

Section 42 of the Australian Border Force Act 2015, providing two years in chokey for any detention camp employee who tells tales of life on the inside, is a legislative example. The proposal to remove 3^rd party rights to litigate under the Environment Protection and Biodiversity Conservation Act 1999, if enacted, would suppress open challenge in the appropriate public forum, a court, to the statutory infractions of the great and the good (e.g. most recently, Minister Greg Hunt not bothering to check on the existence of any on-site rare animals before licensing a giant coal mine).   

I've written before regarding the deportation of Sheik Leghaei by writ of ASIO, with the Federal and High Courts running for cover (see what unredacted material you can find on Austlii) - no enquiry into the truth or indeed the ASIO process.

Suffice to say that the ASIO case rested on its translation of the Sheik's notes in his Koran, but a "neutral" translation performed by a Sydney TV station sided with the Sheik, not ASIO. How would this have fared under judicial scrutiny?

Earlier this year the United Nations Human Rights Committee looked at the Leghaei case and spanked the Australian government for not providing "adequate and obvious justification" for its expulsion of this father, whose adult children chose to remain in Australia, and it found that Australia's "procedure lacked due process of law".  

Why are we allowing unsupervised powers to accumulate in the hands of faceless officials? The answer is that the citizenry of Oz will cop it so long as these powers seem aimed at the great Otherness, the ones who aren't us. We all ought to know the historical consequences of that sort of selfishness.