On one level, it seems so trifling to make arguments about whether Australia’s refugee detention system is lawful. We have a mean-spirited, small-minded legislature, which has, for successive shameful administrations, treated men, women and children as political pawns in a deadly game of vote-buying. Australian governments have spent billions of tax-payer dollars to fund a bloated and conspiratorial executive government to carry out bureaucratic shenanigans that would surprise even Hannah Arendt. Not to mention the millions of dollars Australia has piled on Nauru, an island nation with a barely functioning legal system that has, pitifully, become something of our client state. The whole immigration detention mess is as much a symbol of bad government as it is bad law.
Part of the problem is that we have a hopelessly out-dated constitution, with no real meaningful respect for human dignity. Keep in mind that we are the only jurisdiction in the Western world without a bill of rights. This puts us on a nasty jurisprudential course, which is barely recognisable when compared with our closest legal neighbours. The outcome is that courts – supposedly the arm of power that protects minority rights in contrast to the populist nature of representative democracy – get to treat vulnerable people who lack the protection of a bill of rights as non–people.
Were it not for this hopeless constitution, I would feel even more ashamed of the inability of our courts to protect vulnerable, innocent people. They need not have taken Australia down this path, but part of the problem is that the government has actively sought to destroy every alternative route on the map: the Migration Act has been subject to so many amendments and so much administrative screw tightening that it is now a patchwork illustrating Australia’s descent into legal shame. Remember when the Australian mainland was part of the migration zone? Remember when natural justice was something that used to apply to all people who were seeking asylum? Remember when protection visas were not temporary?
So we need lawyers everywhere who are prepared to argue for justice and stand firm against government hubris and indifference. For this reason, it is absolutely the right strategy to challenge the law – and we must continue doing so.
But I will now, perhaps uncharacteristically, speak as a lawyer against my own profession: the time has come to resist constantly turning to law as a place to direct our political disquiet. The indignity and disrespect with which we treat our fellow human beings is no longer about the law. The time has come to build a movement of solidarity with the people across oceans we plan to imprison, should they decide to make the rational decision to flee wars that we are already involved in (or no doubt will be fighting in future) – and to align ourselves with the fates of those we’ve already imprisoned.
We need more doctors refusing to cooperate with a system that undermines all attempts to treat and heal people. We need more shareholders pulling out of investments that see them profiting from abuse. We need more academics, writers, artists and comedians who are prepared to write, advocate and shame our government into responding.
We need to create and run more campaigns to stop corporations profiting from the immigration detention industry. Security companies that do business with the Department of Immigration should not be welcome in our workplaces or on our university campuses, for example. We need to all take responsibility for divesting ourselves from the companies that capitalise on political fear mongering, profiting from mistreatment and neglect.
We need the bus drivers who transport people to airports in the middle of the night to refuse to be part of forcing families into human warehouses. We need more pilots and airline staff to stop flying these people to islands where we know they will face sexual assault and countless other miseries. We need unions to organise their members who work in these places – detention centres, immigration departments – to stop participating in a system that turns them into jailers and facilitators of cruelty.
We need people to come up with better ideas for challenging this lawful, morally wrong practice.
We need everyone in the pipeline that sends people into immigration detention to down tools and make it stop.