The direct effect of Australia’s current refugee policies is to destroy people – their lives, their dignity, their dreams. Indirectly, this approach is eroding foundational constitutional norms of Australia’s democracy – the rule of law, accountability and transparency, responsible and representative government, the separation of powers, and human rights.
This is most obvious with the detention centres on Nauru and Manus Island, the former of which was the subject of a damning Senate committee report earlier this week.
Avoiding external scrutiny
These centres exist precisely to allow Australia to do things abroad that it could not do at home. “Offshore processing” allows the Australian government to suggest (wrongly) that what happens in Nauru or Papua New Guinea is not Australia’s legal responsibility.
It removes refugees from the supervision of Australian courts and from the effective scrutiny of Australian agencies such as the Human Rights Commission. It removes them from the protection of child protection laws and authorities, and from an effective criminal justice system.
Offshore processing removes refugees from the support of lawyers and advocates, and – through astronomical visa fees – from the media’s scrutiny.
Contracting arrangements for Nauru and Manus Island, and the new Border Force Act, mean that those who work there can’t talk about what they’ve seen. Others can be fired without cause or any form of natural justice.
Offshore processing also removes the consequences of Australia’s refugee policies from parliamentary supervision. Potential witnesses for a previous Manus Island inquiry were afraid to give evidence to parliament because they are not protected by parliamentary privilege.
More importantly, governments have a history of non-co-operation. As the Senate committee made clear in its report on Nauru, it “was not afforded full and transparent access to the information it requested from key stakeholders”, and:
… the government in particular has sought to avoid the full accountability to which the Senate is entitled.
Yet the government is meant to be accountable to parliament under the doctrine of “responsible government”, as it is parliament that is directly accountable to the people.
The Senate report does not call for the detention centre on Nauru to be closed. This was outside its terms of reference. Anyone reading the report, however, can see the truth clearly enough.
The government can replace the marquees with permanent structures, install air-conditioning and require drug and alcohol testing, as the report recommends. Ultimately, however, the problem comes back to these being secret places designed precisely to avoid accountability and to inflict punishment. Thus, abuse is a natural consequence, not an aberration.
Avoiding accountability is a recurring theme of contemporary Australian refugee policy. The agreement to transfer refugees from Nauru to Cambodia has no basis in legislation and has not been subject to any real parliamentary scrutiny. How is it, a taxpayer might well ask, that the government could give A$55 million to transfer four refugees and get away with it?
How is it, a taxpayer might also ask, that the government could spend more than A$2 billion on a new five-year contract with Transfield, whose performance has just been seriously questioned by the government’s own Moss review into the Nauru detention centre, the Australian Human Rights Commission’s Forgotten Children report and the Senate?
A taxpayer might reasonably ask: weren’t these people meant to be “resettled” or deported by now?
How do we turn the tide? The rapid response of protesters in Melbourne to the cancelled #BorderFarce operation last Friday might show us the way. Constitutional norms develop over time as people fight over how they want to be governed and how they want to live.
Ultimately, it is the people who must enforce constitutional norms by telling the government it has gone too far.