It was a sensational day in the ever-escalating coronavirus story, with Home Affairs Minister Peter Dutton on Friday testing positive for COVID-19 and admitted to hospital.
Meanwhile, sporting and other organisations prepared for massive changes, after the government’s announcement of the latest moves to try to contain the spread of the virus.
In a sweeping set of measures, based on medical advice and unveiled by Prime Minister Scott Morrison following a meeting of the Council of Australian Governments (COAG), organisations have been advised against mass gatherings of 500 people or more, a national cabinet of federal and state leaders is being formed, and Australians are being told not to travel abroad unless they really need to.
The revelation about Dutton – who recently visited the United States – threw the Prime Minister’s Office into a spin. Dutton had attended cabinet on Tuesday. Did this mean he could have infected the whole upper echelon of the government as a job lot?
Well, no, came the word from the PMO. The medical advice was that only people who’d had close contact with Dutton in the 24 hours before he showed symptoms needed to self-isolate.
The latest indication is the Prime Minister doesn’t plan to be tested, because he doesn’t need to be. But don’t take that for gospel. Everything can change in a few hours. For example, on Friday afternoon Morrison was proposing to go to the football on Saturday; on Friday night he wasn’t.
The coronavirus crisis is moving so fast that by Friday, the government’s $17.6 billion stimulus package, critically important though it is, seemed very much Thursday’s news.
On Friday morning, praise for the government’s handling of the crisis suddenly seemed to be changing into criticism, with attention shifting sharply from economics to health and questions mounting. Why was it so tardy with its advertising campaign? Where was the “clear plan” it said it had to deal with the virus and was it adequate?
By mid-afternoon Friday – and a few hours after the Melbourne Grand Prix was cancelled – the dramatic new stage of the fight against COVID-19 started to unfold.
According to the Prime Minister’s Office, the “national cabinet” – a sort of health war cabinet – has no precedent in Australian history. To meet weekly from Sunday, it is a too-rare example of the federation working at its best, across state boundaries and party lines. In this highly complex situation, maximum co-ordination of effort and resources is vital.
The advice on mass gatherings – to apply from Monday – had seemed inevitable sooner or later. Critics were saying it should have been already in place. It is not a formal ban, but that’s unlikely to be necessary. What organisation would fly in the face of the recommendation?
Both Morrison and Chief Medical Officer Brendan Murphy were at pains to say this action was being taken early, to keep ahead of the rapidly evolving situation.
“This is a scalable response,” said Morrison. “What we’re doing here is taking an abundance-of-caution approach”.
“What we’re seeking to do is lower the level of overall risk and at the same time ensure that we minimise any broader disruption that is not necessary at this stage.”
“There is every reason for calm,” he insisted, even as the general community becomes, understandably, increasingly alarmed.
Earlier Morrison told Alan Jones: “I think it’s important for our economy and just our general well-being … that people sort of get on about their lives, you know, ‘keep calm and carry on’ is the saying.”
The government cannot avoid the inherent conflict between the duelling imperatives of health considerations and economic ones.
The greater the restrictions, even voluntary ones, on activity, the worse for the economy.
Some people might have spent at least part of their $750 cash handout from the stimulus on attending sporting events and the like.
More generally, while ramping up the protection measures is designed to make people not just safer but also feel safer, it equally could make them more anxious.
That could not just be a disincentive for individuals to spend their handouts, but also discourage businesses from buying new equipment, or even hanging onto workers, despite the encouragement they are being given.
The attempt to contain the spread of the virus for as long as possible is vital for the health system. An early big surge could overwhelm the intensive care facilities, which will cope much better if admissions are stretched over an extended period.
But for the economy, extending the duration in this manner worsens the impact.
This is an indication of the “wicked problem” the coronavirus is. Every policy response may produce some negative reactions, as well as the desired ones.
On some fronts the governments are trying to hold the line. They are not, for example, recommending schools or universities shut. A distinction is being made between “non-essential” gatherings and essential activities, like going to school or work.
In practice schools – which come under state responsibility – are shutting down on an individual basis for varying lengths of time when cases of the virus are discovered.
The Dutton diagnosis has raised the question the government hasn’t wanted to confront – how the parliament handles the outbreak when it spreads to one of its own.
Parliament resumes the week after next, with the priority to pass the legislation for the stimulus. It then adjourns until the May budget.
Asked on Friday about the implications of the “mass gatherings” edict for parliament, Morrison said parliament fell into the “essential” category but he flagged that visitors to the public galleries might be banned.
At that stage, Dutton’s illness had not become public.
It should be remembered that parliament doesn’t just belong to the government – making the question of its coming sittings still a live issue.
The High Court made an important decision today about whether it is possible for Aboriginal Australians to be deported from the country if they are not citizens.
By a majority of 4:3, the court decided that
Aboriginal Australians … are not within the reach of the ‘aliens’ power conferred by s 51(xix) of the Constitution.
The outcome of the decision is clear for one of the men, Brendan Thoms, who is a registered native title holder. As such, it is beyond the power of the Commonwealth to deport him.
However, the majority was divided on the question of whether the other plaintiff, Daniel Love, was an Aboriginal person as a question of fact, and so did not make a finding about whether or not he was an “alien”.
This case is significant. In some regards, it is about questions of deportation and immigration. But, crucially, it is a constitutional law case grappling with the deeper question of whether Aboriginal and Torres Strait Islander Australians can be aliens and therefore excluded from the Australian state.
Although the decision applies to only a small number of people – Indigenous Australians who are not citizens – it has a broader impact in recognising the special status of Indigenous Australians in Australia.
The case involved two Aboriginal men born overseas who were ordered to be deported from Australia because they each had a criminal conviction. Both men appealed to the High Court and their cases were heard together late last year.
Love, a Kamileroi man, was born in Papua New Guinea to an Aboriginal father and PNG mother. He moved to Australia in 1984 when he was five years old, but never applied for citizenship. After serving a 12-month sentence for assault occasioning bodily harm, his permanent residency visa was cancelled by the government. He was in detention but was released in 2018 pending the High Court’s decision.
Thoms, a Gunggari man and declared native title holder, was born in New Zealand to an Aboriginal mother and New Zealand father. He has lived in Australia since 1994. Like Love, his visa was cancelled after he served part of an 18-month sentence for a domestic violence assault. He has remained in immigration detention pending the court’s decision.
The Commonwealth has maintained that since the men are not citizens of Australia, the minister for Home Affairs has the power to cancel their visas and deport them. Under Section 51 (xix) of the Constitution, the Commonwealth has the power to make laws relating to “naturalisation and aliens”.
However, lawyers for the two men argued that although they are not citizens, they cannot be aliens – and therefore cannot be deported.
As a question of law, an alien is a person who owes allegiance to another country because they were born there. For people recognised as Aboriginal Australians, with longstanding connections to community, culture and traditional land, this implies they do not belong in their own country.
As Love’s lawyers argued to the court,
as a member of the Aboriginal race of Australia and the child of an Australian citizen … [he] is not an alien.
This argument suggests a new category of person described as “non-citizen non-aliens”. And under this special category, the lawyers argued, the minister would not have the constitutional right to deport them.
The conflict in this case arises because it seems contradictory for Aboriginal people to be thought of as strangers in their own land. This is especially so for registered native title holders, such as Thoms. As a native title holder, the law recognises his connection to the land.
The basis of the men’s argument, therefore, rests on the connection of Aboriginal and Torres Strait Islander people to their country and the obvious implication of belonging.
The court’s decision is good news for Indigenous Australians, as it expresses a new form of relationship between Indigenous people and the state – that of a “non-citizen, non-alien”.
The category will protect Aboriginal and Torres Strait Islander Australians born overseas, ensuring they will not lose their right to traditional lands because of an accident of birth. The decision upholds the law’s recognition of the importance of Indigenous Australians’ connection to, and rights over, their lands.
But it does mean that a person must be able to prove their Aboriginality before the court as a question of fact.
Because Thoms is a native title holder, his circumstances were clear. The majority was divided, however, on Love’s status as an Aboriginal person, as he is not a native title holder. And there was ultimately no finding as to whether he qualifies as an alien under the law.
The case also highlights the ongoing challenges for Indigenous Australians in their fight for proper legal recognition in relations with the state.
The minister ignored the implications of these men’s Aboriginality in seeking to deport them. And the Commonwealth argued before the High Court that these men did not belong in Australia – that they were aliens. Further, three of the seven judges agreed with that argument and decided there was no special category for “non-citizen, non-aliens”.
The fact this case was brought at all indicates that the relationship between Indigenous Australians and the state remains unresolved.
Despite the majority decision, it seems First Nations peoples’ close connection with the land is still not enough on its own to guarantee their ongoing rights to be part of Australia, and to retain their ties to community and country.
This decision will be recognised as a milestone for Indigenous Australians. But the closeness of the decision and the qualified finding in relation to Love’s case means this question of belonging for non-citizen Indigenous people will likely be raised again.
In the past five years, more than 95,000 people who arrived by plane have lodged a claim for asylum in Australia, new statistics show.
Labor’s Immigration Spokesperson, Senator Kristina Keneally, has labelled this a “crisis”, stating:
Peter Dutton’s incompetence and recklessness has allowed people smugglers to run riot and traffic record-breaking numbers of people by aeroplane to Australia.
But the “crisis” is not that visa-holding travellers are flying to Australia, then later lodging a claim for asylum. It’s not unprecedented for tourists or students to later lodge a claim for asylum due to circumstances beyond their control.
In 1989, for example, after events in Tiananmen Square, Australia provided refuge to thousands of Chinese students who had entered Australia with visas.
Instead, the “crisis” is the Australian government’s failure to properly manage the refugee-processing system. It gutted the ranks of experienced decision-makers and made organisational changes that undermine the quality of decisions, contributing to long processing delays and backlogs.
These organisational failures may have contributed to the increase in asylum applications over the last five years.
Protection visa decisions are highly complex. They must examine a variety of factors, including country-specific conditions and individual circumstances.
Yet, as the Australian National Audit Office noted in 2018, the Home Affairs department experienced a significant loss of “corporate memory” due to staff turn-over, “with almost half of SES officers present in July 2015 no longer in the department at July 2017”.
In a Senate Estimates hearing last year, Home Affairs officials said the average processing time for permanent protection visas, from lodgement to primary decision (not including appeals), was 257 days, or 8.5 months.
And the department’s training deficiencies are well-documented. The most recent Australian Public Service Employee Census put the department’s organisational management problems into stark relief: only 35% of employees said the department inspired them to do their best work, while two-thirds of respondents said they did not consider department senior executives to be of “high quality”.
These publicised problems raise important questions about the quality of decision-making at the primary level.
Poor decision-making at the primary level can lead to higher numbers of appeals. So it’s perhaps unsurprising that appeals to the Administrative Appeals Tribunal (AAT) from people who arrived by plane are also experiencing significant blowouts.
This results in a backlog. In 2017, the tribunal made 5,153 decisions on refugee claims, and so far this financial year, only 815 claims have been concluded.
In part, these worrying figures are due to the federal government appointing people with Liberal Party ties to the AAT over the last couple of years.
The Attorney-General recognised these problems in the 2019 Report on the Statutory Review of the Tribunal, which pointed to “competencies of members” as a key contributor to complications in the operation of the tribunal.
Stacking the AAT with political allies, many of whom are not lawyers and who are not appointed on merit, has removed independent expertise from the tribunal, risking errors and further delays.
And with more errors come further appeals in the courts. This not only places a heavy burden on the resources of the Federal Circuit Court and Federal Court, but also leads to more delays and backlogs in the AAT, where the court sends matters which were unlawfully decided for re-determination.
The solution is in proper organisational management. Instead of blaming refugees for fleeing persecution by safe means, the government must address the failures of its refugee processing system.
To this end, an urgent review of the Department of Home Affairs policies and organisational failures is needed. A review could find out whether there’s a management culture stopping Home Affairs from attracting and retaining staff who can make reasoned and well-supported decisions in an environment they can be proud of.
Similarly, there must be a transparent and independent system for appointing AAT members that prioritises skills and experience over politics – exactly what was recommended by the Attorney-General’s recent review.
If people seeking asylum can have their claims assessed quickly and fairly, then those who are not refugees can be sent home, while those needing safety could receive it.
Without the chance to remain in Australia for years while their claims are assessed, there would be no loophole for traffickers and others to exploit.
In turn, the number of non-genuine claims will go down, allowing decision-makers to focus on those who are actually fearing persecution.
We should be supporting refugees to access safety by air. If people fleeing persecution can access a flight to Australia, they won’t risk a dangerous journey by boat to find safety.
This is not an airport border “crisis”, it’s a management failure that can be fixed with more staffing, better resourcing, and transparent and meritorious appointments of decision makers.
Correction: A previous version of the article stated 815 refugee claims were concluded this year. This has been updated to clarify that 815 of claims were concluded during this financial year.
In light of the ministerial direction issued to the Australian Federal Police by the Home Affairs Minister Peter Dutton on August 9, it would be a spectacular contradiction in policy if the Australian Federal Police’s current pursuit of journalists were to end in prosecutions.
The direction stated in part:
I expect the AFP to take into account the importance of a free and open press in Australia’s democratic society and to consider broader public interest implications before undertaking investigative action involving a professional journalist or news media organisation in relation to unauthorised disclosure of material made or obtained by a current or former Commonwealth officer.
So much for the uncompromising stance of Dutton and the then acting commissioner of the AFP, Neil Gaughan, that the law was the law, and if journalists broke it they could expect to be prosecuted like anyone else.
The political sensitivity of this climb-down may be gauged from the fact the direction was issued at 4pm on a Friday.
A combination of early deadlines for the Saturday papers, the incapacity of television to pull together a comprehensive story in time for the evening bulletins, and the dead air of the weekend make late Friday the preferred time of the week to drop bad or embarrassing news.
Dutton’s announcement was bereft of explanation. However, events since the AFP raids on the home of a News Corp journalist, Annika Smethurst, and on the ABC headquarters on June 5 and 6 respectively give a hint of the likely reason.
First, there was the international condemnation across the Western world of the repressive nature of the police raids, expressed in a tone of disbelief that this could be happening in a mature democracy.
Then there was the unified response from the heads of Australia’s three main news organisations, the ABC, News Corporation and Nine. Their message, delivered in a nationally televised broadcast from the National Press Club on June 26, was that a government obsessed with secrecy had now gone so far as to criminalise journalism.
There was also the statement by the Federal Attorney-General, Christian Porter, that he was “seriously disinclined” to prosecute journalists for doing journalism. His consent is needed for any such prosecution.
Faced with international condemnation, pressure from the media and the potential for a major row in Cabinet between Dutton and Porter, the government then tried to take the sting out of the situation by setting up an inquiry into press freedom.
Bizarrely, this is being conducted by the Parliamentary Joint Committee on Intelligence and Security (PJCIS), the very body that has waved through most of these repressive laws in the first place.
The inquiry has generated a body of strongly worded submissions arguing for the balance between press freedom and government secrecy to be struck in a way that is more consistent with democratic principles.
It begins its public hearings this week.
So Dutton’s ministerial direction may be seen as having two objectives: heading off a potentially damaging split in cabinet, and accomplishing a preemptive buckle before the parliamentary inquiry calls him and outgoing AFP Commissioner Andrew Colvin, to give an account of themselves.
Of course, as far as anyone knows, the AFP investigations are still on foot. Already officers have removed thousands of records from the ABC, accumulated travel data concerning two ABC journalists and requested their fingerprints, as well as turning Annika Smethurst’s home upside-down.
So the government’s intimidatory tactics have had a good run already, even if prosecutions do not follow.
There is nothing to stop the police from completing these investigations and providing a brief of evidence for Porter. However, given his stated position, allied with the new political dynamics created by the reaction to the raids and Dutton’s directive, it seems unlikely prosecutions will follow.
While the ministerial direction represents a genuflection in the direction of press freedom, it provides nothing by way of protection for whistleblowers.
The direction says it
does not constrain investigation by the AFP of unauthorised disclosure of material made or obtained by a current or former Commonwealth officer.
So it seems the pursuit of whistleblowers – the people who provide journalists with leaked information – can continue unabated. They still have only a demonstrably useless law – the Public Interest Disclosure Act 2013 – offering a fig leaf of protection.
The present prosecutions of Richard Boyle (Tax Office) and David McBride (Defence) attest to this.
The last paragraph of Dutton’s directive deals with the process by which government departments or agencies refer leaks to the AFP, and the AFP then assesses for investigative possibilities.
This entire reference and assessment process has been shot through with politics, either at the departmental end or the police end, or both.
That is why the ABC and Smethurst leaks – neither of which had much to do with national security but were acutely embarrassing to the government – were subject to police action.
By contrast, a leak to The Australian about the alleged security effects of the medevac legislation, which the head of ASIO Duncan Lewis publicly complained was a real threat to national security, was not subject to police action because it played into the hands of the government’s scare campaign about people-smuggling.
Dutton’s direction says:
I expect the AFP to strengthen its guidance and processes about the types and level of information required from a Government department or agency when they are referring to an unauthorised disclosure. Referring departments or agencies will need to provide a harm statement indicating the extent to which the disclosure is expected to significantly compromise Australia’s national security.
If the direction is to be taken as meaning only leaks significantly compromising national security are to be referred to the police, then there may be a larger safe space within which journalists can operate.
But the hunt for whistleblowers will go on.
It’s been two years since the government announced it would establish a Home Affairs portfolio, and just over 18 months since it came into being. Since then, the department, and its high-profile minister and secretary, have attracted much controversy, discussion and criticism.
The latest debate centres on concerns that Home Affairs Minister Peter Dutton is further consolidating power with legislation that would prevent foreign fighters from returning home for up to two years and the recent decision to move refugee services into his department.
There’s also been criticism that the portfolio is cloaked in secrecy, with some questioning why an internal strategic review of the ministry has not been made public.
Are we seeing an unprecedented consolidation of unregulated power? Or is there a reasonable story of good public policy behind the headlines?
These questions need to be placed in the context of both history and broader developments in home affairs policy.
We’re used to having a single Department of Defence in Australia. But it was only 40 years ago that the momentous decision was made to consolidate five departments — including one for each of the armed services — into a single agency.
There was push-back at the time from some agencies, and also a focus on the high-profile personalities involved in the process, including Defence Secretary Sir Arthur Tange, and his relationship with ministers and service chiefs.
Decades later, the Department of Defence remains a large but effective organisation with a joint strategic and operational command, supported by a capable department. But its strategically important role and the significant resources needed to do its job mean it continues to require close management, attention and review.
Last year’s decision to take the Australian Signals Directorate out of the department shows it remains a work in progress, but one that continues to head in the right direction.
The lesson is that significant change in important areas of government policy, operations and services takes time, accompanied by ongoing review and revision.
Before the Home Affairs portfolio was created, there were numerous security issues that cut across government agencies and demonstrated the need for a more strategic approach and greater collaboration among agencies.
The crisis around the unauthorised boat arrivals in the late-2000s, for example, created significant tension between the Department of Immigration and Citizenship (DIAC) and the Australian Security Intelligence Organisation (ASIO).
The high number of arrivals saw demands to speed up immigration visa processing. But ASIO was seen as delaying the process as it had to ensure the largely undocumented arrivals presented no security threat.
It was challenging for the two agencies, with such different responsibilities, to work through these issues. There was also pressure on the Australian Defence Force to provide the operational response at sea, and on law enforcement and customs officials investigating people-smuggling operations and other related crimes.
The agencies worked reasonably well together, but were often constrained due to their separate roles and protocols that did not support collaboration. They got through the crisis, with a lot of effort.
Counter-terrorism has been another major cross-agency issue. ASIO handled terror threat advisories and terror investigations (along with the police), while the attorney-general’s department oversaw countering violent extremism (CVE) policy.
The prime minister’s department was home to senior counter-terrorism and cyber-security coordinators, and the departments of defence and foreign affairs and trade ran their own counter-terrorism initiatives.
There was no single agency responsible for providing strategic policy direction on the issue until the establishment of Home Affairs.
The advent of Home Affairs means that complex and sometimes competing priorities have a strategic policy home and can be worked through at a portfolio level.
Immigration and ASIO are now in the same portfolio. Other agencies have also been added to the mix, including the Australian Border Force (ABF), the Australian Federal Police (AFP), the Australian Criminal Intelligence Commission (ACIC) and the Australian Transaction Reports and Analysis Centre (AUSTRAC).
Even in the short period since its creation, Home Affairs has made progress in providing more effective operations and services, supported by enhanced information sharing and technical capabilities.
For example, the department now has dedicated leads overseeing cross-agency efforts on counter-terrorism, cyber-security, organised crime and foreign interference.
Yet, the breadth of issues handled by the portfolio has also raised concerns about consolidation of power.
But most of the Home Affairs agencies are separate statutory authorities, retaining the independence and power established in their roles. The heads of ASIO and AFP, for instance, provide advice directly to the prime minister and cabinet when required and carry out their own operations.
The most important issue facing Home Affairs is the need for clear communication to the public on what the department does, why it’s important, and how its work is carried out. That must also include assurances the department has appropriate oversight and accountability systems in place.
This is easier said than done in the highly charged political atmosphere that’s surrounded Home Affairs since its inception.
It’s good news, then, that Labor chose to establish a shadow home affairs minister after the federal election, thereby working with the new Home Affairs arrangements and letting the portfolio as a whole settle down.
The oversight and accountability mechanisms are also doing what they’re supposed to do. The proposed security laws, for example, were scrutinised by the Parliamentary Joint Committee on Intelligence and Security (PJCIS), which recommended changes to reduce the minister’s power.
Most suggestions were incorporated in the revised legislation, though Labor still has concerns about the minister’s power to grant a temporary exclusion order (TEO) for returning foreign fighters. The PJCIS will continue to examine the use of TEOs, as will the Independent National Security Legislation Monitor and other oversight organisations.
The PJCIS is also due to report to parliament in October on its inquiry into press freedom, which will shed light on issues related to the AFP raids. And we’ll likely see the key findings of Home Affairs’ internal review as its annual report and regular Senate Estimates appearances approach.
The creation of Home Affairs enables a more strategic and integrated approach to security, law enforcement, migration and border issues. It also means more efficient delivery of services.
But there are significant challenges to doing this and getting it right, particularly while managing such a vast portfolio of operations and responsibilities. Maintaining a balanced approach, and ensuring considered and appropriate oversight and review will be critical to its success.
More than 40 years after its creation, the Department of Defence is held up now for its strategic vision and stewardship of the country’s armed forces. The divisive politics surrounding its creation have long been forgotten.
And so it should be with Home Affairs. The creation of the portfolio is ultimately a good thing for Australia and for good public policy and services. But this is a long-term endeavour and the project is still in its early days.
Yesterday, the government introduced a bill into Parliament that, if passed, would allow the home affairs minister Peter Dutton to temporarily exclude some Australian citizens – including children – from returning to Australia.
The bill is aimed at mitigating threats posed by foreign fighters coming back to Australia from conflicts in Syria and Iraq. It was first put before Parliament in February, and has now been reintroduced with some amendments.
National security laws must continue to adapt to changing circumstances. But the government has not made it clear how the bill would fill an identified gap in Australia’s already extensive national security regime.
If passed, the bill will allow the minister to issue a Temporary Exclusion Order (TEO) preventing an Australian citizen who is overseas from re-entering Australia. These exclusion orders aren’t designed to exclude citizens from Australia forever, but rather to provide a system that manages their return.
A TEO can be imposed on a citizen outside Australia if they are at least 14 years old, and:
the minister reasonably suspects that issuing the TEO would substantially help prevent terrorism-related acts, or
ASIO has assessed the person to be a direct or indirect risk to security, for reasons related to political violence. ASIO doesn’t need to be satisfied to any standard of proof when making this assessment.
But neither of these criteria actually requires a TEO candidate to have engaged in any wrongdoing.
A person may not enter Australia while a TEO is in force against them. If they do, they can face up to two years behind bars. A TEO may also require the person to surrender their Australian passport.
Each TEO can be issued for a maximum of two years, but a person may have multiple TEOs issued against them. This means the actual period of exclusion from Australia can be much longer.
So how does a return to Australia work?
The return of citizens with TEOs against them is managed through “return permits”. This is designed to allow the government to monitor and control foreign fighters’ entry and presence in Australia. A return permit must be issued if the person applies for one, or if a foreign country moves to deport them to Australia.
A return permit may prescribe various conditions. Significantly, it doesn’t guarantee an immediate right to return to Australia – a person may be prohibited from entering Australia for up to 12 months after the permit is issued.
Once in Australia, a range of post-entry conditions may also be imposed. These can include passport surrender, and requirements to report changes to residence or employment, contact with particular individuals and technology use.
Breaching the conditions of a return permit is an offence, punishable by up to two years in prison.
The right to return to one’s country is commonly regarded as a core aspect of citizenship. And some experts have argued that a citizen’s right to return home is constitutionally protected in Australia.
But the High Court has never ruled on the question of whether a constitutional right of this nature exists, so it’s impossible to say for certain whether the bill, if passed, would be unconstitutional. Still, it’s likely to face constitutional challenge.
In any case, international law protects an individual’s right to voluntarily return to their country of citizenship. The government acknowledges that TEOs restrict a person’s capacity to do this, but says the bill is justified because it’s “reasonable, necessary and proportionate”. This, however, isn’t clear.
In April, when reviewing the original bill, the Parliamentary Joint Committee on Intelligence and Security recommended 18 changes, aimed at improving safeguards.
But the new bill only took on seven changes in full, including requiring the minister to consider specific criteria when imposing a TEO on a child, and providing independent oversight of decisions to issue TEOs.
Importantly, some of the committee’s most significant recommendations have been ignored, such as narrowing the criteria for issuing a TEO. And others have only been partially implemented.
Given the significant impact a TEO has on a person, the bill should adopt the committee’s recommendations in full.
In parliament, Dutton said national security agencies advise that many Australians who have travelled to conflict zones in Syria and Iraq to support extremist groups are “likely to seek return to Australia in the very near future”, and the bill is needed to keep Australians safe.
But the government hasn’t explained why Australia’s extensive suite of existing anti-terrorism mechanisms doesn’t already adequately protect against threats posed by Australians returning from conflict zones.
Australia’s 75 pieces of legislation provide for criminal penalties, civil alternatives to prosecution, expanded police and intelligence powers, and citizenship revocation.
And they protect Australia from the risks posed by returning foreign fighters in a variety of ways.
For example, a person who returns to Australia as a known member of a terrorist organisation can be charged with an offence punishable by up to 10 years’ imprisonment. Where the person has done more – such as fight, resource or train with the organisation – penalties of up to 25 years each apply.
Although gathering sufficient evidence to prosecute returning foreign fighters can prove challenging, there are mechanisms in our legislation that already account for this.
For instance, a control order may be imposed on a person in cases where they are deemed a risk but there is not enough evidence to prosecute. This restricts the person’s actions through measures such as curfews and monitoring requirements.
Evidence shows the existing measures work effectively. Police and intelligence agencies have successfully disrupted a significant number of terror plots using existing laws, most recently just days ago.
Arguably, this suggests Australia has not only the capacity, but also the responsibility to use the full force of our laws to bring foreign fighters to justice in Australia, rather than leave them stranded in conflict zones where their only connections may be to terrorist groups, thereby weakening global security.
Of course, if it’s to remain fit for purpose, Australia’s national security framework must continue to adapt to changing circumstances. But with extensive, demonstrably effective mechanisms in place, the government must clearly explain what gap this bill would fill. This has not been done.
Who decides who is to be prime minister?
When Malcom Turnbull was challenged by Peter Dutton in August 2018 for the leadership of the Liberal Party, and ultimately the prime ministership, Turnbull apparently asserted that the governor-general would not appoint a person whose eligibility to hold the office was in doubt.
His attorney-general, Christian Porter, reportedly replied that Turnbull was “wrong in law” and that the governor-general could only have regard to issues of confidence.
Who was right, and what might have happened if Dutton had been chosen as leader of the Liberal Party?
The governor-general can only act to fill a vacancy in the prime ministership if there is one. If Dutton had defeated Turnbull in a leadership challenge, this would not itself have vacated the office of prime minister. Turnbull would have continued as prime minister until he resigned (or in extreme circumstances, was dismissed). So the governor-general would not have faced the question of whether or not to appoint Dutton as prime minister until Turnbull had indicated he was going to resign.
The choice would then have been between Dutton and whoever else the governor-general considered was most likely to hold the confidence of the house. It would be unlikely that the governor-general would seek to reappoint the prime minister who had just resigned, unless he was the only person who could hold the confidence of the lower house.
This would seem most unlikely in the circumstances.
The more plausible scenario would have been that Turnbull resigned as prime minister but advised the governor-general to appoint someone other than Dutton, such as Julie Bishop, due to concerns about Dutton’s possible disqualification under section 44 of the Constitution. This raises the question of whether the advice of an outgoing prime minister about who should be his or her successor is conventionally binding on the governor-general.
Ordinarily, the principle of responsible government requires the governor-general to act on the advice of ministers who are responsible for that advice to parliament, and through parliament to the people.
But that principle only works when the minister continues to be responsible for that advice. An outgoing prime minister necessarily ceases to be responsible to parliament for advice about his or her successor. The governor-general is instead obliged, by convention, to appoint as prime minister the person who is most likely to command the confidence of the lower house, regardless of what the outgoing prime minister advises.
While this is the orthodox constitutional position, there is still some controversy about it. When Kevin Rudd defeated Julia Gillard for the leadership of the Labor Party in 2013, it was not clear whether the crossbenchers who supported the minority Gillard government would support Rudd.
The then governor-general, Quentin Bryce, sought advice from the acting solicitor-general as to whether to appoint Rudd as prime minister on the basis of Gillard’s advice. The acting solicitor-general advised that the governor-general should do so, and appeared to take the view that the outgoing prime minister’s advice was conventionally binding.
He did not advise the governor-general that her sole consideration should be who held the confidence of the house.
If, in 2018, the governor-general had sought legal advice about his powers and the conventions that govern them, two questions would have arisen. First, who should provide the advice? Should it be the solicitor-general, the attorney-general, or the even the prime minister?
In 1975, when the governor-general asked for legal advice, the prime minister, Gough Whitlam, said it could only come through him. The attorney-general and the solicitor-general prepared a joint draft advice, but it was not provided promptly.
When a frustrated governor-general, Sir John Kerr, called in the attorney-general to get the advice, he was presented with a draft that the attorney-general apparently said he had not carefully read and did not necessarily reflect his views. Kerr later, controversially, sought the advice of the chief justice, Sir Garfield Barwick.
In more recent times, the solicitor-general has provided advice to the governor-general, as occurred in 2013. Even then, that advice was controversial, as it addressed how the governor-general “should” act, rather than simply advising on the powers and conventions that applied and leaving the governor-general to decide how to apply them.
There is currently no clear position in Australia on who should provide legal advice to the governor-general and the constraints upon the type of advice that should be given. This needs to be addressed in the future.
The second question is how the governor-general should deal with conflicting advice, which in 2018 was a real possibility.
For example, the solicitor-general could have taken the same view as the previous acting solicitor-general – that the advice of the outgoing prime minister is binding. The attorney-general, Christian Porter, apparently took the view that it was not binding, and that the governor-general should only consider who held the confidence of the house.
The prime minister is likely to have taken the view that the governor-general was bound to act on his advice not to appoint Dutton as prime minister, or that if the governor-general had a discretion, he should take into account the doubts about legal eligibility and refuse to appoint a person who might be disqualified from parliament.
There is no rule book that tells the governor-general how to deal with conflicting legal and ministerial advice. Ultimately, in this case, it was a reserve power that was in question and the discretion was a matter for the governor-general to exercise.
Assuming the governor-general accepted the orthodox view that the appointment of a prime minister is a reserve power governed by the convention that the prime minister should hold the confidence of the lower house, what should he have done in this scenario?
The first issue is one of confidence. It is not certain that even if Dutton had been appointed leader of the Liberal Party, he would have held the confidence of the house. There may well have been defections that altered the balance of power.
Hence the governor-general, as occurred in 2013, could have required an assurance to be given by the prospective prime minister that he would immediately face the house to allow it to determine confidence.
The second issue concerns eligibility. The governor-general is obliged to obey the Constitution. If the Constitution plainly prohibits action, such as appointing a prime minister in certain circumstances, the governor-general is obliged to obey it.
But where the legal question is contestable, it is not up to the governor-general to determine it. In this case, the Constitution and the law confer the power on the relevant house, or the High Court acting as the Court of Disputed Returns, to determine disqualification from parliament.
Further, the Constitution allows a person to be a minister, without holding a seat in parliament, for up to three months. So the governor-general could legally have appointed Dutton as prime minister, but might first have required his assurance that he would ensure his eligibility was resolved by a reference to the High Court.
In this way, the governor-general would have protected the Constitution and the rule of law while still complying with the principle of responsible government. Of course, he may have had some difficulty persuading Dutton to give those assurances. But this is precisely why we appoint as governor-general people with the authority and gravitas to ensure that the Constitution is respected and upheld.
Malcolm Turnbull has accused Attorney-General Christian Porter of providing advice to him that was constitutional “nonsense”, as the divisive events around the former prime minister’s removal are revisited.
Turnbull launched his acerbic Twitter attack following reports that the day before he was deposed last August, he clashed with Porter over trying to involve Governor-General Peter Cosgrove in the leadership crisis. Turnbull was seeking to ensure Peter Dutton did not become prime minister if he won the leadership.
Meantime, Dutton has revealed that before the May election he removed himself from involvement in a family trust – an involvement that last term had raised doubts about his eligibility to sit in parliament. The trust received money from his wife’s child care business, and child care receives government subsidy.
Dutton always maintained he was on safe constitutional ground and his spokeswoman on Thursday reaffirmed that he had had legal opinions saying he was not in breach of section 44. During the leadership crisis the Solicitor-General provided advice, taking the view Dutton was eligible, though he left some doubt.
“Nonetheless, to silence those who are politically motivated and continue to raise this; prior to the minister’s nomination at the May election, he formally renounced any interest in the trust in question,” she said.
Accounts of the contretemps between Turnbull and Porter were published in Thursday’s Australian and by Nine newspapers.
Turnbull argued Cosgrove should refuse to commission Dutton, if he won the leadership, on the grounds he might be constitutionally ineligible to sit in parliament.
Porter insisted Turnbull’s suggested course would be “wrong in law” – that the eligibility issue was not a matter for the governor-general – and threatened to repudiate Turnbull’s position if he advanced it publicly at an imminent news conference.
The Attorney-General had a letter of resignation with him, in case he needed to provide it.
The events of last year will be extensively raked over in coming weeks in books by journalists Niki Savva and David Crowe. They featured in a Sky documentary this week.
Turnbull refought his battle with Porter on Thursday, tweeting: “The discretion to swear in a person as PM is vested in the Governor General. The proposition advanced by Mr Porter that it is none of the GG’s business whether the would be PM is constitutionally eligible is nonsense. The GG is not a constitutional cypher.
“During the week of 24 August 2018 there was advice from leading constitutional lawyers Bret Walker that Dutton was ineligible to sit in the Parliament and thus ineligible to be a Minister, let alone Prime Minister. I ensured we sought the advice of the Solicitor General.
“I took the responsible course of action, obtained the necessary advice, published it and the Party Room was informed when it made its decision to elect Mr Morrison, rather than Mr Dutton, as leader.”
Porter, speaking on radio on Thursday, confirmed the accuracy of the media reports, including the tense nature of the meeting. “Sometimes meetings in government aren’t all potpourri and roses,” he said.
Porter said an attorney-general’s role was to provide advice they considered accurate and legally correct.
“Sometimes that advice is not always what people want to hear. But I’ve always taken very seriously the role and the fact that the role requires to give advice to the best of your legal knowledge and ability you think is accurate and correct.
“And that’s what I’ve always tried to do, that’s what I did during the course of that very difficult week.”
With all the hyperbole about the medevac law, it is easy to lose sight of its purpose.
Refugees have been transferred off Nauru and Manus Island for emergency medical treatment since offshore detention restarted on these islands in 2013. The Department of Home Affairs reported to Senate estimates that 898 refugees and asylum seekers had been sent to Australia for medical treatment prior to the passage of the medevac law earlier this year. Of those, 282 were returned to Manus and Nauru after receiving treatment, and the rest remained in Australia in detention.
These transfers occurred in response to pleas from doctors and health professionals on an ad hoc basis. And it was up to the Home Affairs Department and Minister Peter Dutton whether to comply with such a request. Medical emergencies could include life-threatening brain or heart conditions, complex abortions, or emergency psychiatric care for children at risk for suicide – all of which are beyond the capacity of the health systems on Nauru and Manus to treat.
Although some refugees were granted emergency medical evacuation, many others were not. In response, legal cases were brought against the government for breaching its responsibility to care for the refugees.
This required the federal court to convene at short notice to hear cases. It also required the expenditure of huge amounts of taxpayer money to call expert medical witnesses and file thousands of pages of supporting documentation.
Because of the delays in treatment, these legal battles were enormously risky for those in need of medical care.
Through these early cases, the court established that it was a breach of the government’s duty not to provide refugees with emergency medical treatment. And yet, the Home Affairs Department continued to fight applications for transfers for emergency medical treatment, only to be overturned by the courts, time and time again.
The medevac law was passed due to concerns the department was rejecting transfer applications for political rather than medical reasons. The point was to provide an expedient, objective process to determine whether transfers were required.
And despite the Coalition government’s opposition to the bill, the process for determining which refugees are moved off Nauru and Manus for treatment remains highly deferential to the minister and Department of Home Affairs.
There are two stages to this process.
First, two doctors must assess the person and make a recommendation for transfer. The federal court recently ruled it was possible to make this medical assessment based on documentation alone, as opposed to an in-person or teleconference assessment. This was a necessary adjustment to the law, given that the Nauru government has banned teleconferences for residents.
The minister is required to approve or refuse the recommendation for transfer within 72 hours. There are three grounds for refusal:
If the minister rejects the transfer on medical grounds, the second stage of the process kicks in, with an independent health advice panel (IHAP) assessing the doctors’ recommendation. It is important to note that this panel is comprised of government medical officers and other health professionals appointed by the minister.
To date, there have been 31 medical transfers under the law. In addition, nine recommendations were refused by the government. The panel of health experts upheld seven of the minister’s refusals, and overturned two.
Dutton has made a number of claims about the impact of the medevac law that he argues justify its repeal. All defy reason and logic.
First, the minister has claimed “activist doctors” were using the law to bring people to Australia when they do not require emergency medical care.
This is frankly highly offensive to the medical profession in Australia, and contradicts the clear intention of the law to take politics out of transfer decisions. Even if doctors making the initial recommendation are too left-leaning for Dutton, the expert panel is stacked with medical practitioners of his choosing.
Second, the minister has argued that the capacity to be transferred to Australia for emergency medical treatment will lead to a resumption of the people-smuggling trade.
This is patently absurd. It is true that people smugglers can make up all sorts of stories about Australia relaxing its policies and it being easier to get to Australia. But the facts are crystal clear: the Coalition government maintains a policy of boat turn-backs and indefinite offshore detention for anyone thinking of making the journey.
Medical transfers to Australia are for a temporary period. Once people have been treated, they are returned to detention on Nauru or Manus. It is true that many asylum seekers have remained in Australia for extended periods for ongoing treatment, but these refugees remain within the immigration detention system. They are escorted to medical appointments and remain under guard while receiving treatment. They are given no hope of putting down roots in Australia.
The deterrent to people smugglers remains overwhelming. And, unsurprisingly, we have not seen a restarting of boat arrivals following the passage of the medevac law. Dutton’s own department has signalled this is unlikely in a briefing:
[Potential illegal immigrants] will probably remain sceptical of smuggler marketing and await proof that such a pathway is viable, or that an actual change of policy has occurred, before committing to ventures.
The only possible messaging that people smugglers might use to persuade people to get on a boat is the Coalition government’s own dire warnings of reopening the floodgates and political stunts like the brief resurrection of the Christmas Island detention centre at the staggering cost to taxpayers of over A$180 million.
Dutton’s third claim is that some refugees are refusing resettlement offers in the US because of the medevac law.
Again, it defies logic for refugees to refuse the US option – it is the only hope of resettlement currently on offer. One wonders whether the minister is using this claim as a cover for the fact that transfers to the US have come to a grinding halt under President Donald Trump.
For over six years, successive Australian governments have maintained an unwavering narrow focus on stopping refugee boats with no concern for the victims of this policy – the innocent people on Manus and Nauru.
These people are under Australia’s care. It is Australia that pays the governments of Nauru and PNG to house offshore detention centres to create the disincentive for others to travel by boat to Australia. It is Australia that pays the security companies to keep them detained. And so it is Australia that is responsible for the dramatic decline in their mental and physical health.
It is the narrowest of concessions to offer emergency medical treatment in Australia to people we have so mistreated.