Paul Bongiorno
Dutton turns up the fear factor

The confected anger and political pointscoring was put on hold in parliament’s final sitting week of the year – at least for a brief time while politicians from all sides honoured the memory of one of their number, Peta Murphy, who had died after a long battle with cancer.

The prime minister paid a heartfelt tribute to the 50-year-old member for the Melbourne seat of Dunkley, which she won for Labor in 2019 “against the tide”, as he said. Murphy was widely respected on all sides for her courage and spirited contributions to the many causes she championed, among them online gambling reform, but especially for those suffering, like her, from metastatic cancer. “Peta continued to advocate not for herself,” Albanese said, “but for others, for better treatment, more services and stronger support.”

Opposition Leader Peter Dutton caught the sombre mood of the chamber. He said Murphy had so much more to say and so much more to do. He referred to her first speech to the parliament, made soon after she discovered her cancer had returned. “ ‘Life can be fragile, and we’d better make the most of it’,” he quoted. 

Murphy’s death creates a byelection in her seat and a chance for the Liberals to reverse the shock of their loss in another Melbourne seat, Aston. Dunkley had been held by the Liberals for 23 years before Murphy wrested it from them, building to a 6.3 per cent margin at the 2022 election.

Without her significant personal following, it will be no easy feat for Labor to hold it. Located on the Mornington Peninsula, south-east of Melbourne, its many middle-income earners are feeling the pinch every bit as much as voters elsewhere in outer metropolitan areas. While some in the parliament say it would be an act of statesmanship for Dutton not to run a candidate in acknowledgement of the cruel blow fate had dealt Murphy, the stakes are too high as he seeks to build on the momentum that has been recorded in the opinion polls.

Next year could well be an election year. Either way, it will be a fiercely contested prelude to the next federal vote. The polls suggest Dutton has managed to drag Albanese down to his level of unpopularity. Focus group research by RedBridge in five electorates came up with assessments of the prime minister that were very unflattering. An example: Albanese was a “weak beta male” who was “a follower”, “not a leader”. 

But Dutton’s work is far from done. RedBridge Group principal Kos Samaras says “the big take-out” of the exercise was “these voters saw Albanese as bad but Dutton as worse”.

The latest batch of published polls suggest voters are not yet ready to switch to the Dutton-led Coalition. Labor, though it has slipped to an average two-party preferred lead of four points, is still in an election-winning position.

According to psephologist Kevin Bonham, after he crunched the raw numbers, the latest Resolve poll in the Nine newspapers implies that Labor leads on a two-party preferred basis, 55.1 per cent to 44.9 per cent – which would give the party its best result since 1943, Bonham says, though his own analysis suggests a narrower margin of just 2 percentage points. 

In this context, it is not hard to see why Dutton, who has always been a strident partisan warrior, has given no quarter as he attempts to turn the High Court-directed release of indefinitely detained migrants and refugees into a national security emergency, a shambles and a catastrophe. In this he has the unabashed urging and backing of the Murdoch media.

By any measure, this is completely out of proportion and shameless fearmongering. We are expected to quake at the news that, at time of writing, five of the 148 detainees so far released have allegedly reoffended – all have been caught, fined or returned to custody. Every released detainee is subject to 31 stringent conditions, including wearing ankle bracelets 24/7 and adhering to strict curfews. That didn’t stop the Herald Sun screaming on its front page: “How could you let this happen?”

Consider this: every year in Australia 60,000 convicted criminals are released back into the community after serving their time. There is a 53 per cent recidivism rate. Are we less safe because one man, who was subsequently caught, allegedly assaulted a woman in a South Australian motel? We are being told to be very afraid because 148 people, who have served their sentences and then been held illegally for as long as 10 years, have been released and are under surveillance.

The hyperbole is dangerous and unconscionable. It is reminiscent of then prime minister John Howard equating hapless boat people to an invasion threatening our country’s survival. One thing in common with the Howard era is a scarcely subterranean appeal to Islamophobia.

No distortion is too great to peddle. This week Dutton and his shadow immigration minister, Dan Tehan, called for Home Affairs Minister Clare O’Neil and Immigration Minister Andrew Giles to be sacked for incompetence.

In the Coalition’s view, they were supposed to have legislation ready to go to redetain these people before the High Court unveiled its reasons. The legislation produced ahead of the court giving those reasons, at the urging of the Coalition, is now facing at least three legal challenges. In one, the complainant is arguing the imposition of bracelets and a curfew amounts to penal punishment, especially as he had been in less stringent community detention for nine months without reoffending.

The opposition is trading not only on people’s prejudices but also on their ignorance of our judicial system. Dutton and Tehan bolster their charge of incompetence by saying Minister Giles, in his submission to the court, told it that the complainant, NZYQ, had no prospect of being returned to his home country or deported. Dutton told radio station FIVEaa that was not a concession Giles should have made, because “he should be searching the world for outcomes for these people”. 

“That’s exactly what we did when we were in government,” Dutton claimed.

Except it wasn’t. Certainly not in the case of NZYQ. Refugee Legal executive director David Manne concisely rebuts Dutton. He asks if the opposition is really suggesting the minister should have lied to the court? Manne says he has led similar appeals to the High Court against the legality of indefinite detention only to see the then Coalition government cave in, and that includes while Dutton was minister. Dutton forced the settlement of the cases by releasing the complainants, thus avoiding a relitigation of the contentious 2004 ruling on indefinite detention.

Manne says even the 2004 ruling, allowing the complainant to be indefinitely detained, presumed the government would continue to try to find somewhere to deport him, and it was in some way a live prospect. However we have found for years the willingness of other countries to accept people Australia doesn’t want – because of convictions for serious offences – is patently zero.

The other canard the opposition is running, and which is being amplified in sections of the media, is that the government had to release only NZYQ. On Network Ten’s The Project, Steve Price said he thought the opposition had legal advice to this effect. Attorney-General Mark Dreyfus says what the Coalition is saying is “simply untrue”. He says the High Court set a new limit on the power to detain anyone in the same position as the plaintiff.

Dreyfus said the government was assessing who this applies to and any delay in releasing those found to be eligible would expose officials to personal liability for false imprisonment. He said he would not direct public servants to break the law and, in an angry outburst responding to a question from a Sky News reporter, said he would not apologise for upholding the law. David Manne says, depending on the number and the delay, compensation could run into millions of dollars.

The slide for the government in the Resolve poll, such as it is, coincided with the High Court brouhaha. This feeds into Labor’s paranoia about how toxic the immigration issue is for it. Party strategists are hoping parliament’s legislating of broadened preventive detention laws, with the support of the Liberals, will be the circuit breaker it needs.

It could be a faint hope. Manne believes these laws themselves are likely open to challenge. Not that Dutton would mind. The High Court’s interventions have proved politically damaging for Labor in government. The court’s rejection of the so-called Malaysian Solution in 2011 knocked the Gillard government off balance, especially when the Abbott-led opposition opportunistically refused to support its attempts to legislate around the decision.

The Albanese government will need to have more nimble footwork in responding to any future disruptions. The Dunkley byelection could be the first test of what, if any, damage has been done.

This article was amended on Dec. 11 to clarify Ken Bonham’s analysis of Labor’s lead on a two-party preferred basis.

This article was first published in the print edition of The Saturday Paper on December 9, 2023 as "Hooking on the fright side".

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