In Australia, since the infamous 2001 Tampa ‘crisis’ the decline of the rule of law, often in the context of playing the race card, has been a disturbing feature of the political landscape. And the decision by the Morrison government to announce that it would use a draconian measure to fine and jail Australians who wish to return from Covid ridden India, marks a new low in that trend.
Like former Prime Minister John Howard’s abuse of the law when he decided that a ship carrying asylum seekers would not be allowed to dock in Australia, similarly Mr Morrison’s preparedness to abuse power is based on the premise that when it comes to border issues Australians don’t care if governments abandon the rule of law.
The late and great former Senior Law Lord of the UK Tom Bingham said “the core of the existing doctrine of the rule of law was that all public and private persons should be bound by and entitled to the benefit of laws publicly and prospectively issued and publicly administered by the courts.” For Bingham a key component of the rule of law was that it “must afford adequate protection of fundamental human rights.” Bingham was writing in the context of war on terror and the rise of ministerial discretion in making decisions about the rights of individuals. He was concerned by the political class’s desire for arbitrary and unrestrained power. He was right, not only in the context of the UK, but equally Australia.
The criminalising of the right of citizens to return to their country is extraordinary and unprecedented in Australian legal history. While shamefully this nation does not have a national human rights law, Australia is a signatory to the International Covenant on Civil and Political Rights which provides, at Article 12 (4); “No one shall be arbitrarily deprived of the right to enter his own country.” The key here is the arbitrariness. It does not matter how long an individuals was in India, where they were, and what their reason is for travel to Australia, they will end up with a criminal record.
But it is also clear the Morrison government’s use of the Biosecurity Act 2015, a law replete with draconian powers and which in the context of a nation with no counter balancing human rights law is dangerous in the hands of a minister or government with little regard for the rule of law, is designed to whip up a ‘them versus us’ climate. In the same way that John Howard played to the xenophobic underbelly of Australia in his demonising of the poor souls mercifully treated by the Tampa crew, so Mr Morrison and his government is telling us that India is a dirty, wretched backwater of dark skinned people and those who return from there are an existential danger to public health in this country.
So when it comes to asylum seekers or to persons returning from India disregarding the rule of law is justified. In the case of the Howard government’s Tampa law it allowed for military personnel to commit criminal acts and be immune from prosecution. Today it is the undermining of equal treatment of all Australian citizens by treating those returning from India as criminals.
That the race card has been played in this case is self-evident. When the United Kingdom and the United States were equally, and often more beleaguered by the Covid pandemic last year, not once did Mr Hunt or Mr Morrison dust off the Biosecurity Act for the purposes of imposing criminal sanctions on returnees from those countries. If they had, then they would be able to claim today that the rule of law means equal treatment for all irrespective of race, colour and circumstances.
Another aspect of the decline of the rule of law that manifests itself in the abuse of the Biosecurity Act powers by Mr Hunt and the Prime Minister is the devious way in which a crisis is manufactured for political purposes which then allows for “extraordinary’ measures to be taken in the name of responding to that crisis. While there is no doubting the appalling state of much of India today, as noted above, the Morrison Government faced a similar challenged last year in relation to the US and UK. There is nothing new in the problem of Australian citizens returning from Covid ridden parts of the world. To see India as a special case, which seems to be what the government is saying to justify the imposition of a serious undermining of human rights of citizens, is a convenient fiction used to invoke extreme measures.
There is also the fact that the power used by Mr Hunt to threaten criminal sanctions, section 477 of the Biosecurity Act, states that before such a measure as this is taken, the minister has to ensure “that the requirement is appropriate and adapted to achieve the purpose for which it is to be determined and “that the requirement is no more restrictive or intrusive than is required in the circumstances.”
Here those who advise on Covid, the Commonwealth public health officials, have said they did not advise the Morrison government to criminalise citizens’ return to Australia. Nor is there any evidence the Morrison government examined urgent quarantine facilities or other less restrictive measures, as they did for US and UK returnees.
Once again the parallel with Tampa is evident. There was no sense in which Mr Howard and his ministers thought about more humane and lawful means of controlling the flow of displaced persons from Iraq, Afghanistan, Sri Lanka and other theatres of war. It was simply the case that they reached for race card and played it by undermining the rule of law for political advantage.
20 years on from Tampa and what it represented and here we are. It has become the new normal for governments, particularly the Coalition ones, to trash the rule of law and devise authoritarian measures simply so they can use that powerful political tool of race and border fear. The India travel ban is not novel. And sadly it establishes a useful political precedent for next time.
Greg Barns SC is the author of Rise of the Right: The War on Australia’s Liberal Values (Hardie Grant Publishing 2019) and a spokesman for the Australian Lawyers Alliance