Morrison’s “Kafkaesque” Deportation System Begs a Federal Bill of Rights

“The Migration Act has become a fest of discrimination,” says Social Justice Independent Gerry Georgatos. This is especially so, when considering the series of amendments to the legislation that current prime minister Scott Morrison oversaw the passing of in late 2014.

Under the Character and General Visa Cancellation Bill, then immigration minister Morrison toughened the character test contained in section 501 of the Migration Act 1958 (Cth), so that “noncitizens” are automatically deported if sentenced to at least 12 months prison time.

Since these changes took effect, this has translated into thousands of long-term residents – the overwhelming majority being New Zealanders – having been turfed out of the country, often due to an accumulation of multiple sentences relating to minor offences.

As Georgatos puts it, this “Fortress Australia” policy targets “impoverished” people, who’ve often spent the majority of their lives here, and due to their circumstances, don’t have the capacity to challenge their deportation in the tribunal and end up being separated from their families.

The social justice campaigner represented a potential deportee in the Queensland tribunal last week, after recently arguing other deportation cases nationwide. And not only is he highlighting the “classism and racism” latent in this system, but he also raises its “Kafkaesque” nature.

“Natural justice denied”

“The impacts are harrowing for children of fathers and mothers deported,” Georgatos stressed, “but also for the deportees sent to faraway lands that they’ve lost ties to or never actually had any ties other than the fact of their birth.”

“In December, I attended an appeals tribunal to represent, advocate and hopefully arbitrate the right of a long-term Australian resident to be released from an immigration detention centre,” he told Sydney Criminal Lawyers. “I successfully argued that he should not be deported.”

Georgatos represented the Philippine man, who’s lived here since he was 10. The advocate challenged the legitimacy of separating the man from his Australian family, as well raising the point that deportation after having served out his time in prison was a form of double punishment.

“When a carceral sentence is complete, penance is complete and the redemptorist in all of us should prevail – it’s a clean slate,” explained Georgatos from Perth. “To argue otherwise, is to defy the legal proposition of a penance as served and, in fact, plays out as if extrajudicial.”

“A few years ago, I prevented the ludicrous deportation effort of a First Nations father-of-four,” he continued, and clarified that the Aboriginal man’s parents had spent two years in NZ, which was when he was born, while local migration laws were blind to the potential deportee’s indigeneity.

God-like powers

“Entry and stay in Australia by noncitizens is a privilege, not a right, and the Australian community expects that the Australian government can and should refuse entry to noncitizens, or cancel their visas, if they do not abide by Australian laws,” said Morrison on introducing the 2014 amendments.

The changes to section 501 altered a pre-existing migration regime that saw the automatic deportation of noncitizens on being sentenced to at least 24 months prison time, which was a system the United Nations had already condemned in 2011, as a violation of international law.

“Section 501 is a human rights abuse,” Georgatos maintains, “especially when the near majority of the at-risk individuals have endured disadvantage and hardships from the beginning of life, were born into poverty and marginalisation, and have not completed secondary schooling.”

Subsection 501(6) contains the character test. Georgatos points out that it provides the power to deport if the minister just “reasonably suspects” a noncitizen doesn’t pass it. And he also cited subsection 501(4A) as it requires informing parliament of any deportation decisions within 15 days.

“The collective parliamentary silence is deafening and indicts every parliamentarian,” Georgatos said regarding the notifications system. “Where are the outcries? In effect, there is an obscene multi-partisan quiet – in fact, complicity.”

And the Morrison government has increasingly been throwing people out of the country under the provisions of section 116 of the Migration Act, which provides the minister with a number of discretionary reasons to consider. This was the power that was invoked to deport Novak Djokovic.

Cultivating division

The Morrison government introduced the Migration Amendment (Strengthening the Character Test) Bill 2021 last November. This would see people automatically thrown out of the country on being convicted of certain “designated crimes”, despite the length of the sentence that accompanies them.

Immigration minister Andrew Hawke tabled the bill just five weeks after the same set of laws contained in a piece of 2019 legislation by the same name was voted down in the Senate.

“The incumbent government is the most classist and racist government in my living experience. It is also the most elitist, winding back civil liberties and eroding rudimentary human rights,” remarked Georgatos in reference to the new migration laws sitting before parliament.

The Morrison government purposefully cultivates “tough on people policies”, he added, which “cultivate hate and nurture division” in the community as a means of holding on to power.

Federal rights protections

Georgatos is running for the Senate in the coming federal election on the WA Social Justice Independents ticket. And a key issue that he and his team are prioritising is the establishment of a bill of rights, or human rights act, that protects the rights of all at the national level.

“A federal human rights act is urgently needed, one which must protect the rights of all citizens and all residents,” explains Georgatos, adding that it should include protections for “special visa residents, permanent and temporary visa residents”, as well as “refugees and asylum seekers”.

Currently, Australia is the only western liberal democracy that doesn’t have legislation protecting basic rights at the federal level. And this has a direct bearing on some of the more draconian laws that have been enacted over recent decades, including the toughening of the deportation system.

A human rights act would not only provide a means to challenge violations of individual rights in the courts, but it would also prevent national security legislation being passed that erodes rights, such as privacy and free speech, which aren’t adequately protected in national law.

Over 90 pieces of national security-counterterrorism legislation has been passed at the federal level since 9/11. And while other comparable nations, such as the US and the UK, have been passing similar laws, the volume and reach of ours are much broader due to the lack of rights protections.

So, if elected, Georgatos plans to ensure these sorts of rights incursions are brought to an end.

“A human rights act commits governments to the common good. The work of government becomes clearer and monitored where there is a human rights act,” he concluded.

“No one who walks this continent – no matter where they are from or why – should ever become unseen and unheard.”

Image: “Llegada de Scott Morrison, primer ministro de Australia” by G20 Argentina is licensed under CC BY 2.0