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Asylum seeker code is a rhetorical tool – with severe consequences

Scott Morrison has repeatedly characterised the Asylum Seeker Code of Behaviour as being necessary to protect the Australian community. AAP/Alan Porritt

Recently, it was reported that asylum seekers are “staying indoors”, fearful of breaching the Asylum Seeker Code of Behaviour. All unauthorised maritime arrivals (UMAs) who are granted bridging visas are required to sign this code.

The code was introduced in December 2013 and has remained in force despite an attempt by the Greens to disallow it in the Senate earlier this year. It applies to all UMAs who apply for or seek to renew a bridging visa. UMAs must sign the code in order to receive bridging visas. Upon signing the code, UMAs become bound by a “list of expectations” about how to behave “at all times” while in Australia.

After expressly stating that asylum seekers must not disobey any Australian law, the code forbids them from engaging in “antisocial” or “disruptive activities” that are:

… inconsiderate, disrespectful, or threaten the peaceful enjoyment of other members of the community.

As part of this requirement, UMAs must not bully, spread rumours, spit or swear in public, or persistently “irritate” anyone. The code also states that UMAs must not make sexual contact without consent, must never make sexual contact with someone under the age of consent, or engage in criminal behaviour.

If the Department of Immigration and Border Protection (DIBP) finds that an asylum seeker has breached the code, their income support may be reduced or stopped, an existing bridging visa may be cancelled, or the asylum seeker may be detained or even transferred to an offshore detention centre.

How does it operate?

The code and all of the publicly available information about it raise serious concerns about its extensive reach, its vague terms and the lack of detail as to how it will be adjudicated and enforced.

In an attempt to shed some light on these concerns, we submitted an extensive Freedom of Information request to DIBP earlier this year. Our request posed a series of questions:

  • Who would be compelled to report breaches?
  • Would reporting be mandatory? How would determinations about alleged breaches be made?
  • How would consequences of breaches be determined?

We also sought information about the operation of the code, including any alleged breaches, since it had come into force.

The Code and the Migration Amendment (Bridging Visas – Code of Behaviour) Regulation 2013, the legislation under which the code was introduced, is silent on how it will be administered procedurally. DIBP told us that where it determines that 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.

This suggests that the burden is on asylum seekers to prove their innocence to an unspecified standard of proof. Asylum seekers also have no access to basic review mechanisms or procedural safeguards.

The code and DIBP are silent on how breaches of the code might affect asylum seekers’ rights to a fair hearing in the criminal courts for offences that they have been charged with.

DIBP told us that it expects to receive allegations of breaches through “a range of sources”, including members of the public, service providers, police services and other government agencies.

In theory, anyone can implicate their asylum seeker neighbours, employees or co-workers for spitting, swearing or spreading rumours. In practice, it is unclear how this can work.

How are Australians supposed to distinguish a UMA from the rest of the community? Should the government require UMAs to wear special “Unauthorised Maritime Arrival” badges? Neither DIBP nor the code has addressed this issue.

How has it been enforced so far?

From its implementation to June 25, 2014, more than 9900 asylum seekers had signed the code. Only one person had refused to sign it.

During that time, DIBP recorded only seven allegations of breaches of the code. Of these, three were assessed as breaches and four were assessed as not in breach of the code. The four allegations that were not upheld ranged from refusal of assistance from an ambulance provider to importation of drugs. The three reports that were assessed as breaching the code were assault of a minor, unlawful and indecent assault of two minors and trespass, and damage to property.

All but perhaps one of the seven allegations were already illegal under existing laws. In two of the three upheld breaches, bridging visa cancellation was recommended but then did not occur as a result of or under the code. The other visa cancellation was pending at the time the FOI data was provided.

In relation to one of the breaches, DIBP reported that no action was recommended as it appeared that the bridging visa holder was intending to harm himself, was suffering mental distress and had limited capacity to consider the impact of his behaviour on others.

An exercise in rhetoric?

The FOI data exposes the code’s very limited enforcement. What the data, the government’s language and the code itself reveals is that the government has exploited the code mainly for political and rhetorical purposes. The code’s rhetorical force has been much more extensive than its implementation.

Immigration Minister Scott Morrison has repeatedly characterised the code as being necessary to “protect” the “Australian community”, represented as under threat from “adult illegal maritime arrivals”. The code patronisingly states that the community expects “non-citizens” to respect Australian values. However, these mythical values are never specified or defined.

Through language, Morrison and the code perpetuate an “us” versus “them” mentality. They construct asylum seekers as both pre-criminal and criminal, racialised “others”, who must be coercively assimilated into an imagined Australian community.

Although the code can be characterised as a rhetorical tool, its force should not be underestimated. While it may have been enforced in a limited fashion, asylum seekers on bridging visas must necessarily contend with the threat of surveillance by all members of the “Australian community”. Given the severe consequences of a breach, the code worsens the precarity and heightens the distress already experienced by people on bridging visas.

Above all, there is no need for a code of conduct that applies to a limited class of people, imposing on asylum seekers so-called Australian “values” (such as refraining from swearing) that Australians themselves do not uphold. We need to query the code’s disregard for basic procedural safeguards and its harsh punishments. Most importantly, we must interrogate and reject the discrimination and racism at the heart of the code.

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