On 8 November, the High Court ruled indefinite immigration detention unlawful, overturning a 20-year-old precedent.
The NZYQ decision, as it is known, ended the fiction that immigration detention was “administrative” and not “punitive” and that therefore non-citizens could be held in immigration detention, potentially forever, if they could not be deported.
Indefinite detention was inherently racist and discriminatory. It applied only to non-citizens because their visas could be cancelled and, without a visa, they could be held in immigration detention.
Worse, “character grounds” were enough for non-citizens, many of them asylum-seekers and refugees, to have their visas cancelled. Any conviction for an offence committed while in immigration detention was grounds for visa cancellation or refusal.
Criminal convictions could be deemed to be “a substantial criminal record” (as little as two convictions with a cumulative sentence of 12 months’ prison) and therefore fail the character test.
But the Minister could also cancel visas on character grounds based on “general conduct”. This meant that visas were cancelled on Ministerial whim (that could not be appealed) even though people were not convicted or charges against them were dropped.
This violated one of the central tenets of criminal justice—you do the crime, you do the time. Non-citizens are often doing more time in immigration detention than any sentence they served in prison.
It was shocking enough that the Labor government went to the High Court arguing to maintain indefinite detention. But in the aftermath of the High Court’s decision, Labor has grovelled to Peter Dutton’s demands for more punitive laws including hysterical calls for those released from detention to be re-detained.
Labor has passed laws requiring electronic ankle bracelets and curfews to be imposed on those previously held in indefinite detention, and promised new preventative detention laws to allow some to be put back in prison.
Home Affairs Minister, Clare O’Neil, enthusiastically joined the “hang ’em, flog ’em” cries from the Coalition, declaring, “If it were up to me, none of these people would have been released from detention and if I had any legal power, all of them would be right back in detention.”
Indefinite detention is the flip side of the same racist and exclusionary policies that underpin mandatory detention and border protection to systematically discriminate against asylum-seekers, refugees and other non-citizens.
Hard on the heels of Labor’s capitulation to Dutton came the revelations in the Sydney Morning Herald of NSW police efforts to use immigration detention as extra-judicial punishment.
NSW police lobbied the then Immigration Minister to indefinitely detain Moses Kellie, a refugee from Sierra Leone, when murder charges against him were dropped. Moses suicided in Villawood in January 2019.
Labor’s absolute commitment to Operation Sovereign Borders and offshore detention was also re-affirmed in late November when a boat carrying 12 Pakistani and Afghan asylum-seekers was discovered on the Kimberley coast. All 12 have been sent to Nauru.
Meanwhile British Prime Minister Rishi Sunak says he will overcome a Supreme Court ruling that sending asylum-seekers to Rwanda is unlawful by following Australia’s example of offshore detention on Nauru and PNG more closely and using compliant countries more under Britain’s control.
Australia’s Operation Sovereign Borders, to deny, deter and detain, has become the quintessential example for governments around the world seeking to keep out refugees.
Socialists oppose all immigration controls because those controls are fundamentally racist and inextricably linked to maintaining the national borders that uphold the capitalist state.
Labor’s support for indefinite detention is just an extension of its anti-refugee policies—boat turnbacks, mandatory and offshore detention. Like Labor leaders Gillard and Rudd did before him, Anthony Albanese has become the latest Labor leader to try to outflank the Liberals from the right.
Not for the first time, Labor has failed the political character test. Understanding that failure is crucial to building a movement to keep up the fight against Labor’s Operation Sovereign Borders.
By Ian Rintoul