The Inconvenient Truth About "Illegals"
- Nov 11, 2018
- 6 min read
Updated: May 25, 2019
This article aims to provide evidence which disproves the myths perpetuated by the Australian Government, both past and present, in their attempts to garner electoral support for openly discriminatory anti-immigration laws.
QandA 2017 (50:08): George Brandis QC (Attorney-General of the Commonwealth) vs Julian Burnside AO (Barrister)
BURNSIDE: Attorney-General, as the senior law officer of the country, do you believe that asylum seekers who come to Australia commit any offence?
BRANDIS: Ah, yes I do.
BURNSIDE: What offence do they commit, have any of them been charged with it?
BRANDIS: They commit offences against … ah … um … our migration laws…
BURNSIDE: Which one?
BRANDIS: Well … ah … I’m not going to quote you a section …
BURNSIDE: Because there isn’t one.
BRANDIS: The fact is that people are entitled to seek asylum …
In response to this QandA episode, Managing Partner at Marque Lawyers Michael Bradley wrote "Hey George Brandis, we read the Migration Act for you and can explain whether asylum seekers are 'illegal'".
Fact Check: Was Burnside correct?
Mr Bradley goes on to say "To ensure that we’re not being conned by either side of this debate, I’ve done the courageous thing and read the whole freaking Migration Act (it’s really long)! And now I know the answer for sure". And Mr Bradley is not alone, many law professionals and students have done the same.
For starters, the act doesn’t call anyone “illegal”. It does invent a class of people called “unlawful non-citizens”, which is anyone who arrives in our country or territorial waters without a valid visa. In this context, the word “unlawful” is just a rhetorical device, successfully designed to set the tone. It’s Parliament’s way of implying that asylum seekers are criminals without directly saying so.
You may have also heard the term “unauthorised maritime arrival”, which is a person who comes by boat without a visa, and also graciously includes any of their children, even if they’re born here.
The provision most often touted as proving that asylum seekers break the law is section 42(1) of the act. It says that “a non-citizen must not travel to Australia without a visa that is in effect”.
If they escape from immigration detention, for example, or try to get in with falsified documentation, those are crimes. But they don’t touch on the original act of simply turning up without a visa. There are people smuggling offences too, but unsurprisingly they only apply to the smugglers, not the asylum seekers themselves.
And that’s it. The other 7 billion sections of the Migration Act deal mainly with the mechanics of visa-granting... Nothing that could possibly be mistaken for a law asylum seekers can break by turning up in a boat.
Section 42 is a directive provision... as any lawyer of semi-competence knows, you do not commit an offence simply by doing something an act says you may not do. You only commit an offence if the act explicitly says it’s an offence.
It has no legal meaning, any more than would labelling a baby as “unlawful” in the period before its birth has been registered. Its only real significance is in its intended effect of dehumanising its objects.
Not many legal questions can be answered with 100% certainty. This one can. At no point in their journey do they become “illegal”; at no point do they commit an offence against Australian law.
Mr Bradley concludes (as does Julian Burnside) "Brandis, in stating categorically that asylum seekers commit offences against our migration laws, was 100% wrong. His error may be excusable if he were not the first law officer of the Commonwealth of Australia". Manus and Nauru are not just cruelty, but bureaucratic incompetence too.
Fact Check: What About Other Australian Laws?
Following Mr Bradley's lead, many law academics and professionals painstakingly poured over all the relevant Australian statutes and they have found no such offense listed anywhere.
Those statutes include Australian Criminal Codes (no such offense is listed there), Australian Border Force Act (applies to employees only), Refugee Law (protects refugees, does not punish them) and The Federal Circuit Court for Immigration Hearings (only applies to appeals against processing decisions).
The fact is, refusing to process boat people is a political policy, it is not legislated into Australian law. And as many Federal Circuit Court documents reveal, not a single ‘boat person’ has ever been charged with any offense because there isn’t one to charge them with.
Fact Check: Is there a solution that does not involve open borders?
As much to the disappointment of the many xenophobe Australians that government is appealing to, we are NOT communist dictators who decide where and when someone can and can’t live. We are a common law nation, laws that were founded on the doctrine of Habeas Corpus.
There are numerous possibilities that do not involve deprivation of liberty or cruel and unusual punishment.
Join a panel of international and Australian experts at UNSW for a positive conversation about what a just, lawful and humane approach could look like in a civil society.
The first and most obvious choice is to provide them with appropriate travel documents and let them move on to rebuild their lives elsewhere. These are UN travel documents, not Australian Passports or Visas (Australia already has entry and re-entry bans in place). The cost of issuing a UN document is minimal compared to $2b per year spent on arbitrary detention.
Canada does not have open borders, however its citizens have put “multiculturalism” right next to the national anthem without triggering a massive populist backlash. This is because humanitarian needs are mostly met by kind-hearted Canadians who are, in turn, subsidised by the government. Under similar arrangements, Canada's homelessness is also far lower than ours.
Many elderly and disabled people, who may otherwise be left lonely and unable to manage some daily tasks, often host refugees and asylum seekers. Australia, however, does not subsidise the home or business of hosts. This leads to much lower incentive and support than is demonstrated in Canada.
We will let George Brandis and his many followers have the last word on this matter.
"Australians have the right to be bigots"
Didn't Hitler have the right to be a bigot too, Mr Brandis?
Fact Check: Is Australia Being Overrun by Islamic Extremists?
ASIO Chief says "Less than 1/10th of 1% are the subject of security interest. If you flip that, more than 99.9% of Australian Muslims are of no security interest to my organisation. Traits such as ethnicity do not necessarily help us to identify the individuals who are of concern."
In fact, according to ASIO's statistics, the Muslim and left-wing community are at substantial risk of being attacked by right-wing extremists - not Islamic extremists, but other Australians.
Fact Check: Does Australia have a Legal Obligation to Non-Citizens?
Yes. Australia signed a number of legally binding international contracts including Human Rights, Civil Rights and the very doctrine that gives The Refugee Convention effect - our Migration Act.
While our government blatantly lies to the public, claiming "The UN can't tell us what to do!", Federal Circuit Court documents dealing with Immigration cases reveal a completely different story. Refugee Law and the Refugee Convention are the defining laws that many of these hearings are based on because we don't have a Bill of Rights.
If the government wishes to be free of the UN Human Rights Convention, the answer is simple. Give Australia a constitutional Bill of Rights. It cannot have it both ways, no UN convention and no Charter for rights at all. Even Communist China has constitutional rights! The Russian Federation does too!
Fact Check: Does the Government want out of the UN?
Quite the contrary. As a founding member, Australia played an important role in drafting the articles of the UN Charter. Australia held the first Presidency of the Security Council in 1946 and has imposed those articles and conventions on 193 member states over the past 100 years.
As an active member of the Security Council, Australia also co-sponsored a resolution imposing “safe, rapid and unhindered” access for humanitarian assistance to the victims of the Syrian war, to which Russia agreed. It also played an international role in the investigation of the downing of MH17.
Between 2013 and 2015, Australia sat for more than 300 UN meetings of the Security Council. In fact, the Australian Government prides itself for its international relations over and above its national relations. The complete difference in behaviour at the UN compared to sitting in parliament says it all.
And, this may come as a shock for most Australians to learn, our government is currently bidding for a future seat at the UN Security Council in 2029. The last campaign cost Australians $25 million and our annual contribution to the UN regular budget is around $2.1 billion.
In fact, there are very few UN bodies that we are not participating in or financing so, to believe that Australia has no obligations to the UN or any contracts it is a party to, is rather gullible.
About the Author I am a natural born Australian Citizen and a graduate of Harvard's "Justice" program (study of Moral and Political Philosophy), University of Louvain's "International Law" (study of how International Law is created, applied and upheld) and RMIT University's "Fundamentals of Contract Law" (study of legal frameworks, formation, law reform, content and interpretation of contracts in Australian law). I also hold a Certificate of Business Administration as well as a Bachelor Degree in Information Technology, where I majored in Software Engineering and minored in Business.
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