The asylum suture

The legislation that follows is always thin and a little scabby. It’s always a suture. Over time the whole Migration Act has become like this, patched up and half-healed. Occasionally, as happened last week, the High Court will attempt to clean some of the grit from the wound. Basic principles will be argued. A modicum of decency might be advanced. Invariably, the parliament will respond with more legislative scarring.

The Albanese government’s answer to the illegality of indefinite detention is the Migration Amendment (Bridging Visa Conditions) bill 2023. The changes will allow the minister to force ankle bracelets onto the people freed by the High Court’s decision. It will allow the imposition of curfews and bail-like reporting conditions. The right to work will be curtailed on a whim. Failure to comply with these new measures will attract a prison sentence of up to five years.

These controls come without oversight. There is no court to check their fairness. The government doesn’t even pretend this is right. In fact, it says the opposite: “For the avoidance of doubt, the rules of natural justice do not apply to the making of the decision.”

The Home Affairs minister, Clare O’Neil, describes these as “tough new laws”. There is no difference between her language and the television news. It is all panic. She promises “very strict visa conditions, new visa conditions, to ensure the community is kept safe”.

“These include the ability for the Commonwealth to impose ankle monitoring bracelets on people who have been released from detention,” O’Neil says.

“They include the power for the Commonwealth to impose very strict curfews. For the first time there are criminal sanctions imposed for the breaking of visa conditions and there are jail terms attached to these.”

Some of the people O’Neil was describing were locked up for traffic offences. Others were locked up for serious crimes and served the sentences given to them by a court. The only difference between these people and anyone else released from prison is that they are stateless and that they came to Australia seeking asylum.

Within that difference is the confected anxiety on which the immigration system is built. It is an anxiety cultivated by both sides of politics. The image of the criminal asylum seeker is foundational to the entire brutal edifice. It begins with the fiction of “illegal immigrants” and extends all the way through to “must wear a monitoring device at all times”.

The government has made no meaningful attempt to engage with the end of indefinite detention. Its amendments come before the High Court’s reasons have even been published. It has ensured that no one freed by the Constitution’s limits on punishment will truly be freed. They will be constantly monitored, their bank accounts checked, their friendships scrutinised. They will be forced to live at agreed addresses and only to be out at certain hours.

One consequence of Australia’s perverse relationship to refugees is a willingness to make the entire country a prison. These latest changes are the most explicit version of that. No matter what a court says, the law will be bent to ensure people seeking asylum are never really free.

This article was first published in the print edition of The Saturday Paper on November 18, 2023 as "The asylum suture".

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