Labor’s North Korea Solution

The Labor Party’s proposed changes to the Migration Act give the current Minister, or any future Minister, the power to deport children to, say, North Korea.

198AA(d):

the designation of a country to be an offshore processing country need not be determined by reference to the international obligations or domestic law of that country

198AB:

(1) The Minister may, in writing, designate that a country is an 18
offshore processing country.
(2) The only condition for the exercise of the power under subsection (1) is that the Minister thinks that it is in the public interest to designate the country to be an offshore processing country…
(5) The rules of natural justice do not apply to the exercise of the 28
power under subsection (1) or (4).

And that’s only one of two places in the new legislation where MPs are voting expressly that “the rules of natural justice do not apply”.

Think for a moment about what that means. “The rules of natural justice do not apply”? So… the parliament is happy for it to exercise its power unjustly. It admits that it intends to exercise its power unjustly. It is voting this Minister and any future Minister of Immigration the power to be unjust.

As for children? The new legislation undoes 55 year old protections for children that are part of the existing Immigration (Guardianship of Children) Act 1946, neutering it to now say:

(2) Nothing in this Act:
(a) affects the operation of the migration law; or
(b) affects the performance or exercise, or the purported performance or exercise, of any function, duty or power under the migration law; or
(c) imposes any obligation on the Minister to exercise, or to consider exercising, any power conferred on the Minister by or under the migration law.

(3) Without limiting subsection (2), nothing in this Act affects the performance or exercise, or the purported performance or exercise, of any function, duty or power relating to:
(a) the removal of a non-citizen child from Australia under section 198 or 199 of the Migration Act 1958; or
(b) the taking of a non-citizen child from Australia to an offshore processing country under section @198AD of that Act; or
(c) the deportation of a non-citizen child under section 200 of that Act; or
(d) the taking of a non-citizen child to a place outside Australia under paragraph 245F(9)(b) of that Act.

Expressly removing the obligations to give even a cursory thought to their safety. The Minister does not even have to consider the safety of a child in the country to which he is sending them. Doesn’t even have to consider it.

Why am I calling this Labor’s “North Korea Solution”? Because it is passing legislation that would enable it – and future governments – to send refugees anywhere. To the most dangerous, brutal places on Earth. Under this legislation, removing any responsibility for the Minister to ensure any basic protections will exist for the people under his care and power, this or a future Minister could deport children to, say, North Korea, if he felt like it and North Korea needed some slave labor or something and said they’d take them.

Any MP who votes for this legislation deserves to be put last at the next election.

UPDATE: Sadly, this old Kudelka cartoon may no longer apply.

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11 responses to “Labor’s North Korea Solution

  1. I ain’t no lawyer, but isn’t “natural justice” a matter for the courts to determine, not the parliament? Straight back to the High Court for another constitutional challenge no doubt.

  2. Let’s hope so, but I suspect the High Court might permit the Parliament to evade “natural justice” rules if it does so expressly.

  3. Deplorable. And just imagine what sort of precedent this would set if it did survive a High Court challenge. If a government can avoid accountability and justice if it expressly deems that it should, then all bets are off. With no Bill O’Rights to protect us, what other areas might the government, especially a conservative* one, deem convenient to disqualify from justice?

    *By that I mean that even more conservative than the one we’re stuck with, one that isn’t just apathetic to gay rights but downright hostile.

  4. Pingback: Wait, does News think its readers might LIKE Labor’s anti-refugee plan? | Pure Poison

  5. Jeremy, do you know whether any other legislation in Australia has ever expressly ruled out the laws of natural justice?

  6. God, that’s an obnoxious piece of leglislation. Why don’t they just put in “this law is not subject to judicial review of any kind” and be done with it?

  7. Good point, I will check with the local MP and senators to see which way they plan to vote, making it clear that if they vote for this amendment then they lose my vote. For ever. Although, frankly the parties involved probably lose my vote forever.

  8. Jeremy this is just awful stuff. This is a heart breaking blow to anyone who believes in the fundamental fairness of the law.

    Chris B, the Courts will imply common law rights (such as natural justice and they have been known to go as far as implying compliance with international treaties) into legislation if the words in the act are not express or not unambiguous enough (apologies for the double negative). However, these words have been crafted very specifically to be express and unambiguous – there is no question their purpose is to over-ride the common law norm position on this. There is no guarantee to natural justice (or any ‘rights’) in Australia if legislation expressly rejects that right.

    Reminds me of when the series of terrorism statutes (and amendments) came in – many of those had express provisions that denied what most would think were basic rights (the expansion of powers in the ASIO Act for example are very worrying).

    We have no such brake on Government like the UK and the US with their Rights legislation. This is frightening. Labor have reached a new disgusting point.

  9. I’ve advised my ALP senators that I won’t be voting for them if they vote for this amendment.

  10. Pingback: Only good thing about Labour? « I've got something to say, yeah?

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