Excising off-shore islands in the north of Australia from the “”migration zone” does not make sense. When you pose the question why enough times, the logical move by the Government should be to excise the whole of Australia from the migration zone.
Why does the Government want to excise these islands?
Because once they are excised people who land on those islands have different migration rights from people who land on the mainland. The Migration Act gives rights to people who are in the “”migration zone” and no rights to those who are not in it
Why are rights granted to those in the zone? Because Australia has signed international treaties that oblige Australia to protect certain people as refugees – namely not to return them home where they might face death, torture or jail because of their political or religious activity. Australia cannot take on these obligations for everyone in the world who says they are a refugee or we would be swamped with 17 million people. So we reduce our obligation to those who land in Australia. But we define “Australia” for these purposes. That definition is called the “migration zone”. If someone lands in that zone our international obligations require us to determine their refugee status and grant or refuse sanctuary accordingly. That requires the application of Australian law which is supervised by the High Court of Australia exercising the judicial power of the Constitution. That judicial power can demand that the exercise of legislative power by the Parliament and Executive power by the Minister operating under the laws of the Parliament be done according to law and constitutional restrictions. It means the minister must act in good faith; the minister and appeal tribunals must apply the law; must consider only the relevant and not consider the irrelevant; must abide by the Constitution and so on. And if the minister and tribunals do not act that way, an appeal lies to the Federal Court or the High Court, not matter what legislation is drafted to the contrary.
So a person in the migration zone can apply for a protection visa; must be assessed by an Australian immigration officer; and has appeal rights to Australian courts over that assessment. A person outside the zone – whether in a refugee camp in Sudan or Angola, or the recently excised Ashore reef or intended-to-be-excised Groote Island or other islands in the Torres Strait – has no access to the Australian courts. They must cop the Minister’s decision.
In a way it makes sense. If a person in Pakistan applies for refugee status in Australia and the Minister refuses it, that person should not have rights to appeal the decision in Australian courts. There are 17 million refugees out there. Where would it end?
The aim of the legislation present yesterday is simply to put those visaless people who struggle ashore on an island off the northern coast in the same boat (so to speak) as anyone on the Rwandan-Congo border or in any refugee camp anywhere else on earth where the right to enter Australia is purely on ministerial whim without any appeal to any court.
Those people can be moved anywhere in the world (other than their place of origin) by Australian officials without breaching our international obligations. When they are moved, say to PNG or Nauru, they are assessed by UN officials – not subjected to review by Australian courts. Those not deemed refugees can be returned home without court review and without Australia disobeying its international refugee obligations.
So the aim of excising islands is to ensure that those who land there do not get access to Australian courts.
The question is, wouldn’t it be easier not to have a migration zone at all? In other words, to excise the whole of Australia from the migration zone? This would be the logical extension of the Government’s attempt to excise off-shore islands. Our international treaty obligations are only enforceable if there is a piece of Australian legislation to enforce them by. If that legislation – say the Migration Act – grants limited enforceability then there is nothing anyone can do about it.
So, if the Government is serious about sending a message to people smugglers (and the rest of the clap-trap slogans it presents) it should simply excise the whole of Australia from the migration zone and replace existing law with a simple one-liner that says the Minister shall say who shall get a visa and who should not and there shall be no appeal.
But there is this troublesome thing called the Constitution and the rule of law that prevents the Executive from having unfettered power to do what it wants. That is the real reason for the Government not stretching the envelope to more than offshore islands — aside from a political exercise in embarrassing the Opposition and pretending to act tough for the voters.
Gosh, if the whole of Australia were excised from the migration zone, maybe it could be excised from all the rest of the law that gives people rights to access the courts. We could have one simple law – the Prime Minister shall determine who gets a pension, licence, tax assessment or whatever and no one shall appeal.
The islands today; the rest of Australia tomorrow. There is no difference.