News

The minister is seeking to hugely extend his discretion to determine citizenship, visas and asylum. By Sophie Morris.

Scott Morrison wants to snatch courts’ powers over immigration and citizenship

Rest assured, not only does Immigration Minister Scott Morrison have the public interest at heart, he has “a particular insight” into what is in the best interests of all Australians.

We know this because the minister wants to grant himself extraordinary powers to revoke citizenship, cancel visas and determine asylum claims.

Morrison is pursuing what immigration lawyers describe as a “legislative blitzkrieg” via three bills that would dramatically extend the minister’s powers and curtail review of his decisions.

Each piece of legislation on its own is a significant extension of ministerial power. Taken together, they represent a tough new regime, as the minister who credits himself with stopping the boats now applies his unyielding approach to other facets of his portfolio.

Morrison spells out why his decisions should be beyond reproach and exempt from the standard review processes in the explanatory memorandum of the Australian Citizenship and Other Legislation Amendment Bill 2014.

“As an elected Member of Parliament, the Minister represents the Australian community and has a particular insight into Australian community standards and values and what is in Australia’s public interest,” it says. “As such, it is not appropriate for an unelected administrative tribunal to review such a personal decision of a Minister on the basis of merit, when that decision is made in the public interest.”

In other words: trust him, he’s the minister.

Similar justifications are cited for extra ministerial powers in the other two bills, relating among other things to the “fast-track” processing of 30,000 asylum seekers whose refugee applications are yet to be heard.

The Law Council of Australia begs to differ. In a submission on the citizenship bill, which passed the house of representatives and was introduced to the senate this week, the normally conservative council canvasses a range of concerns with the extension of ministerial power. It warns it is vital there are mechanisms to “safeguard against the misuse or overuse of Executive powers” and says “the Law Council is concerned by this proposal, and any proposal, which concentrates unfettered Executive decision-making powers”.

Coalition of compassion

Morrison may yet be forced to compromise, as opposition and crossbench senators, dubbed by Greens senator Sarah Hanson-Young as the “coalition of compassion”, are resisting key elements of his far-reaching plans.

Hanson-Young accuses Morrison of pursuing an unprecedented power grab that particularly targets refugees but could also leave Australian citizens subject to his whim.

“It’s all about him having unfettered power,” she says, “him wanting to be able to decide who gets refugee status, whose visa should be cancelled, who he thinks is a good person to be an Australian and who he thinks is a bad person.”

“Overarching all this is his attitude of ‘it’s my way or the highway’.”

Labor immigration spokesman Richard Marles says Morrison is “entirely focused on his own increasing ambition and appetite for power”, rather than on processing people and working co-operatively with regional partners.

“We are concerned that Morrison is embarking on a ham-fisted campaign to beef up his own powers while allowing people to languish in detention facilities,” he says.

Morrison maintains that his various measures, including restricting resettlement of genuine refugees from transit countries such as Indonesia, are “taking the sugar off the table” to deter people from attempting to reach Australia by boat.

The first of his three bills, the Migration Amendment (Character and General Visa Cancellation) Bill 2014, making it easier for the minister to cancel or refuse visas without review, passed parliament on Wednesday with Labor’s support.

“This bill demonstrates the Coalition government’s clear commitment to ensuring non-citizens do not pose a risk to the Australian community,” Morrison says.

But he faces a battle to get the other two bills, relating to citizenship and refugees, through the senate.

This week Morrison was attempting to rally senate support for an omnibus asylum seeker bill, known as the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill. The bill would reintroduce temporary protection visas, “fast-track” refugee processing and remove the right to appeal, handing the minister the final decision on many cases. It would allow detained asylum seekers or boats to be forcibly removed and sent to anywhere in the world, regardless of domestic or international law.

It would seek to prevent protection claims by asylum seeker children who were born in Australia, and would also shield the government from claims of human rights breaches under the United Nations refugee convention by narrowly interpreting Australia’s obligations and redefining who is eligible for refugee status, as well as preventing legal challenges over boat turn-backs.

Blaming Labor

Morrison blames Labor’s ineffective border protection policies for the “backlog” of asylum claimants who arrived by boat between August 2012 and November 2013, when the new Coalition government began shipping arrivals offshore to Nauru and Manus Island.

“We are going to toughen the Migration Act when it comes to these issues and process this backlog of 30,000 cases that Labor left behind,” he said in a radio interview this week.

Morrison has been telling crossbenchers that, if the changes do not proceed, these tens of thousands of people will continue to languish in the community without work rights, as the department will take seven years to process their applications.

Refugee advocates and human rights groups dispute this. They have also been talking to the crossbenchers and believe they have had a sympathetic hearing from the Motoring Enthusiast Party’s Ricky Muir and former Palmer United Party senator Jacqui Lambie, who both ambushed the government by backing the opposition on financial advice changes last week.

Hanson-Young dubs the crossbench and opposition senators expressing resistance to Morrison’s far-reaching plans a “coalition of compassion”. Indeed, independent senator John Madigan has called for more compassion from the government, and has accused Morrison of trying to blackmail crossbenchers to pass the bill. The numbers are still fluid but there could be enough support to force a compromise on the minister, who has insisted he will not allow a path to permanent residency for asylum seekers.

Madigan has been actively pursuing a solution with Labor, the Greens and other crossbenchers. They have found common ground. If Morrison brings the legislation on next week, the opposition parties are considering moving amendments that would knock off most provisions of the bill but flesh out the safe haven visa, insisting that it should be a genuine pathway to permanent residency and citizenship.

Morrison had flagged the so-called safe haven enterprise visa in a deal with the Palmer United Party in September, but his legislation provides scant detail of how it would work and he has indicated that very few people would qualify for it. Clive Palmer has raised concerns that this falls short of what was promised.

Legal challenge likely

As Morrison seeks to pare back administrative and judicial review of refugee decisions, advocates are warning the new powers – particularly the proposed “fast-tracking” regime – would inevitably face legal challenge.

David Manne, executive director of the Refugee and Immigration Legal Centre, rejects Morrison’s argument that processing would be drawn out for years under current rules and warns that the bid to deny people proper reviews of their cases would backfire.

“It’s quite clear there would be legal challenges and a so-called fast track would end up in slow, prolonged and complex litigation in the courts,” says Manne, who has won many High Court challenges on immigration matters.

“History shows that when governments seek to cut corners on fair process and curtail basic rights, courts will not allow it. We already have a system in place which is more than capable of making fair, efficient decisions, and that’s what should happen.”

The “fast-tracking” provisions would axe review by the Refugee Review Tribunal of a departmental rejection, in favour of a much more limited review by a new immigration assessment authority, which would be “efficient and quick” but not be bound by the RRT’s commitment to be fair and just. Such reviews would be conducted “on the papers”, involving no new information, and the claimant would not have the opportunity to make their case. The minister would have the power to block even this limited form of review and send an asylum seeker packing.

Labor senators, in a dissenting committee report on the bill this week, described the “fast-tracking” regime as a “truly Orwellian” proposal. Coalition senators recommended the bill be passed so the government could clear the backlog of asylum seekers, but allowed that, as the legislation contained a number of extraordinary provisions, it should be reviewed after three years.

Law Council concerns

Previous Immigration Ministers have on occasion complained privately about the immense burden of ministerial discretion in the portfolio, which requires them to make decisions over individuals’ fate. Morrison wants more power, but less accountability.

The minister already has the power to revoke citizenship if it were obtained through fraud or misrepresentation, but the proposed citizenship legislation would make this easier by removing the requirement that the alleged fraud be proved in court.

The Law Council argues that making the minister, rather than a court, the arbiter of whether fraud has occurred, and allowing him to revoke citizenship on that basis, would “undermine the rule-of-law principle that all people are entitled to the presumption of innocence and to a fair and public trial”.

“In particular, the Law Council considers that no one should be subject to punitive action by the state unless he or she has first been found guilty of an offence by an independent, impartial and competent tribunal,” it says.

The proposed legislation allows for a person’s citizenship to be revoked even if a third party was responsible for the alleged fraud or misrepresentation, meaning a child could lose citizenship if the minister believed their parents had lied when applying for it.

The Greens are particularly concerned by part of the bill that allows for the revocation or refusal of citizenship if a person has been ordered by a court to undertake drug rehabilitation or a residential program for the mentally ill.

The director of the Public Law and Policy Research Unit at the University of Adelaide, Alexander Reilly, says the legislation could devalue citizenship by making it conditional. “Citizenship gives you security,” he says. “When you’re a citizen, you can say: ‘I’m Australian and you can never take that away.’ That’s always been the case until this bill.”

Some of Morrison’s Liberal colleagues believe he is on a mission to show that he has stopped the boats and fixed other issues in the portfolio, and is now ready for new challenges. This comes amid speculation that Prime Minister Tony Abbott will be forced to reshuffle his cabinet to rescue the government from the doldrums it has been in since the budget in May.

As the government heads into its final sitting week for 2014, jettisoning some of the budget “barnacles” that would not pass the senate, it is anxious to reboot and turn around its sustained poor polling.

Traditionally, immigration and border security have been issues where it has been able to show it is delivering the tough approach it promised. But that may be about to change, as the unyielding minister confronts the unwieldy senate.

This article was first published in the print edition of The Saturday Paper on Nov 29, 2014 as "Morrison to snatch courts’ powers". Subscribe here.

Sophie Morris
is The Saturday Paper’s chief political correspondent.