The Border Force Act: Legislating Away Human Rights

In 2015 in a zeal of patriotism I started to write an article soundly abusing the Australian Border Force Act, 2015 which was scheduled to come into effect in July of that year.

I never finished the article, and a long-term of ill-health caused me to neglect my blog. On returning to the blogosphere I reviewed this article and wondered if the situation had evolved at all. A view of the legislation currently in effect showed the act was  in place.

I was disturbed to read in New Matilda, in an article published on 17 June, 2015, that Asylum Seekers had lost Freedom of Information rights and as such they no longer had access to information about themselves held by the Australian Government. It also seems that this quarantine prevents Australians having the right to know what our elected representatives are doing to the people who flock to our shores seeking refugee status.

Instead of taking action to address the crisis represented by the detention centres, the government decided to hide the problem from public view, enacting legislation to control the information that is made public. They have labelled a group of people on Australian soil or under Australian “care” as “others” to whom the normal rights and protections do not apply. This includes restricting access to Freedom of Information for the detainees, and threatening prosecution to any worker covered by the Border Force Act who repeats anything they learn in the pursuance of their duties.

Concern about the human rights abuses are being taken seriously by humanitarian groups. According to a report by ABC News (click to view ABC News report) in February this year the Global Legal Action Network (GLAN) argues “Australia’s immigration policy constitutes an attack against the civilian population — something which could be classified as a crime against humanity under the Rome Statute” [italics added], and they have lodged a submission with the International Criminal Court.

In my view the legislative support in the form of the Border Force Act, the legalisation of the status quo, makes the threat even more immanent.

Reds Under the Bed

When I was at university my politics lecturer, David Black, talked about the times when Australia was on the brink of passing laws which greatly expanded the powers of government; when, in effect, Australia could have been considered to be hovering on the brink of totalitarianism. I’m sure it is not a stretch of the imagination for anyone to understand that passing totalitarian style laws, regardless of the excuse or the target audience, opens the door for more of the same.

Examples include the referendum on the nationalisation of the banks, which would require constitutional change to extend the powers of the federal government; and, related, the communist “scare” of the 1950s, of which the Petrov Affair was a catalysing factor, and which saw an attempt to institute legislation that would erode the rights of privacy of the citizens and extend the powers of government.

In the environment of increasing communism in China and in the USSR, the idea of increasing centralism in Australia was unpopular as it was seen to be socialist in nature. In addition to this, however, was the actuality of potential constitutional and legislative change which would, if successful, grant government greater control over industry and see a decline in personal liberties. The required legal changes were rejected through a combination of High Court and referenda procedures.

This era under the Menzies government became known colloquially as the “reds under the bed” scare, or “dob in your neighbour”, when people would call a special number and report someone – anyone – they suspected of being a communist or a communist sympathiser and cause that person to be taken away and questioned.

ASIO, Australia’s national security service, became more involved in targeting local groups and people whose politics were unpopular rather than hunting for spies, and the spectre of the police state seemed to be much in evidence at the time, both in the social mind, and in proposed legislation. An interesting article on the man in charge at the time, Charles Spry, entitled “From the Petrol Affair to reds under beds: Menzies’ flawed secret agent” can be found here.

The thin edge of the wedge

The enacting of legislation that violates the rights of a group of humans, regardless of whether those humans are Australian citizens or not, creates a precedent.

We have allowed laws to be put in place that identify a subset of people who do not have access to the usual freedoms and liberties with the justification that they are not Australians. How will we complain when all of a sudden it is Australians? Perhaps “they” will be Australian Muslims, bolshy bloggers, or have undesirable contacts on Facebook or other social media.

When we neglect to examine all our legislation with a strict eye to equity and human rights we lower the bar for an acceptable internal response to the next global or national “fright” such as a terrorist attack or a new extremist group. The target group identified as the next threat could well include citizens of Australia.

It can hardly matter. On a legislative level we already have a structure in place that says “this group of people” are separate and have eroded liberties. We already have a structure in place that allows people to be placed in detention centres or internment camps. And it is even remotely possible that under national security legislation individuals, despite being Australian citizens, could still be considered to be threats to our border security. But if not it is simple to draft new legislation to expand the powers of other agencies along similar lines as the Border Force Act.

The Border Force Act, by its very existence, violates the tents of democracy, is an insult to human rights, and is the flagship of future totalitarian style legislation.

We cannot consider ourselves to be living in a democracy when we have undemocratic laws. If people in detention centres, whether on Australian soil or not, are not entitled to human rights, why are the rest of us? Upon what basis are human rights applied if not simply to the fact that we – “they” – are human?

God bless

Faith 🙏

Copyright © Faith White 2017

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