MIKE:

Yesterday, Ange, we saw some pretty extraordinary scenes in Parliament house. The government, without any warning, scrambled to introduce emergency legislation on immigration detention.

Audio Excerpt - Andrew Giles:

“Speaker, there are currently non-citizens in Australia who have exhausted all visa pathways to stay in Australia...”

MIKE:

And this new emergency legislation is aimed at people who are in detention here in Australia, but have nowhere to go. It forces them to cooperate and engage with their country of origin to help Australia deport them. The problem is these people could be under serious threat in their home country for their sexuality, religion or other beliefs.

Audio Excerpt - Andrew Giles:

“Who have been found not to be owed protection, but who refuse to engage with their home country to undertake actions like applying for a passport, or attend meetings with officials from that country.”

MIKE:

And introducing this bill, with no warning, didn’t please many in parliament. The Coalition’s immigration spokesperson Dan Tehan accused the government of a lack of transparency.

Audio Excerpt - Dan Tehan:

“The approach they're taking, the processes they're taking, the botched and rushed way that they're doing it, gives the Australian people no confidence whatsoever that the immigration portfolio is being handled in any, any way.”

MIKE:

Independent Zali Steggall said the bill should bring shame on every member of the government.

Audio Excerpt - Zali Steggall:

“I would look at the backbenchers behind you Minister, and I just can imagine everyone is squirming. Because for everyone this is uncomfortable.”

MIKE:

But it was Greens leader Adam Bandt who condemned it in the strongest language.

Audio Excerpt - Adam Bandt:

“This is Labour desperately trying to outflank the coalition in a race to the bottom on immigration, which is only going to whip up attacks on migrants and more racism in our community.”

MIKE:

I mean this will result in people being sent back and potentially dying. It really is absolutely draconian and the current government has shown itself to be every bit as tough as, as its predecessor.

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ANGE:

From Schwartz Media, I’m Ange McCormack, this is 7am.

Yesterday, Labor’s emergency legislation on immigration detention was slammed by crossbenchers and the Greens as a ‘race to the bottom’ on the way governments treat migrants.

But in the lead up to that move, criticisms that Labor is trying to be tougher than the Coalition on immigration laws have been growing louder.

So, why is Labor intent on being known for its hardline border policy?

Today, national correspondent for The Saturday Paper Mike Seccombe, on whether Labor’s trying to one up Peter Dutton on immigration.

It’s Wednesday, March 27.

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ANGE:

Mike, today parts of Parliament are calling out Labor for being too harsh on immigration but interestingly, over the last few weeks, the coalition has been saying the opposite. They’ve called Labor weak, and have claimed that the government has lost control of the borders. To begin with, what’s meant by that and who’s being blamed for it?

MIKE:

Well Ange, this has been directed at the government and it's one of the primary lines of attack from the opposition this year. You know, it's become one of their major talking points. And it's been directed largely, but not exclusively, at the Minister for Immigration Andrew Giles.

Audio Excerpt - Dan Tehan:

“The minister, Andrew Giles, has been completely asleep at the wheel again. We know he was…”

MIKE:

And the opposition has been calling on him, on almost a daily basis, over recent weeks to resign or for Anthony Albanese to sack him.

Audio Excerpt - Matt Canavan:

“Now the Prime Minister should immediately replace Andrew Giles as immigration minister and appoint somebody who's going to do the job properly.”

MIKE:

Now the incidents that appear to be, you know, inciting this increased concern and the opposition's attacks include, I guess, two things. One is the release of people from indefinite immigration detention, after a High Court decision on the subject. And the other one was the relatively recent arrival of a boatload of asylum seekers in Western Australia. So I think that's what's inspired it. The reason the opposition's adopting this line of attack probably has less to do with the significance of those two events and more to do with the polling, I would suggest. I mean, a recent essential poll found that 51% of people thought that the government was indeed losing control of the borders. But the other interesting thing here I think, Ange, is that at the moment it appears the Albanese government has decided that the best way to counter the opposition attacks over asylum seekers is to echo them. And this applies particularly to another minister, Clare O'Neill. O'Neill has been doing and saying some pretty extraordinary things when it comes to the immigration system.

ANGE:

Yeah, can you tell me a bit more about how Clare O'Neill fits into this picture, Mike?

MIKE:

Well, as Minister for Home Affairs, she's a senior minister and Giles is a junior minister under her and there's a shared responsibility, he's responsible for the immigration part of it. So that's the background to the power structure there. And O'Neill has been the most vocal supporter of the government's solution to last year's High Court decision under which, you know, 150 odd people held in indefinite detention were released. And the government's solution was to pass new laws that would mean that these former detainees would be placed on very onerous visa conditions, including things like reporting conditions and curfews.

Audio Excerpt - Clare O’Neill:

“These laws allow us to do things that no government has ever been able to do before. To put ankle monitoring bracelets on people we are concerned about; to require approval for employment for people who are going to work in some types of industries; to apply curfews to people.”

MIKE:

And as well as implementing these toughened visa conditions she said there was something even more significant in the legislation which was, for the first time, breaching any of these visa conditions would be criminalised.

Audio Excerpt - Clare O’Neill:

“And what's really important about this bill, Speaker, is that for the first time we criminalise people who do not follow these visa conditions. This is something that the leader of the opposition could have done in the long years that he was Home Affairs Minister, but he chose not to do so.”

MIKE:

So it wouldn't just lead to the cancelling of a visa application and deportation, but criminal charges. So in other words you could be, you know, bang back up into jail.

Audio Excerpt - Clare O’Neill:

“The leader of the opposition loves to present himself as a tough guy on the borders. He never wrote laws as tough as this, Speaker. He never wrote laws as tough as this.”

MIKE:

So, essentially, she was trying to out-Dutton Dutton politically, which is a very hard thing to do. And the real world impact of that choice has been very interesting because there's a chance that it means that aspects of these laws now will not hold up in court.

ANGE:

Right, so how have these laws played out since the government passed them and O'Neill made those comments last year? How are the laws operating today?

MIKE:

Well basically, as some of these released detainees and their lawyers begin to appeal the conditions under which they've been placed, the government's lawyers are just retreating, they're not opposing it. So the ankle bracelets are coming off, the curfews are being dropped. There's only been a handful of cases so far, but likely there will be more to come. And in every instance where there's been a court case brought on behalf of someone under these new draconian conditions, the government has just preemptively folded. It's a strategy not unlike the one the previous government adopted during the Robodebt affair. You know, when a person claimed that a dodgy debt had been raised against them, the government simply wiped the individual debt rather than let the matter go to court and risk having the whole scheme found to be unlawful.

In this case, the government wants to avoid a court ruling that might result in a determination that the conditions imposed on all or almost all of these released detainees are punitive and therefore unconstitutional. So this leaves the government in a pretty tricky position on immigration. Not because they've been too soft, but ironically because in trying to out-Dutton Peter Dutton, they've passed legislation which is vulnerable to appeal in the High Court.

ANGE:

Coming up after the break, why Labor decided to scramble to introduce emergency legislation.

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ANGE:

Mike, the government's laws that cover detainees released into the community are not being defended in court. How is it that the government could have passed laws which government lawyers are so quickly backing away from defending?

MIKE:

Well it comes back to the politics of the situation, and it sort of highlights the differences, I guess, between Claire O'Neill and Andrew Giles. You know, according to the sources that I spoke to who've worked with both of them, you know, they could not be more different. As one said, they're the personification of their factional positions. You know, Giles on the left. O'Neill on the right. And one of them told me, and I'm quoting here, they are utterly different in every element, factional, ideological, in their policy views, in their whole way of coming at the world. And went on to say, one of them is a humanitarian, and the other is whatever it takes. And you can see that playing out in the choices that the government made when trying to get these laws through the Parliament. So I spoke to Anne Twomey, Professor Emerita at Sydney University and one of Australia's leading experts in constitutional law, and she said that the original bill proposed by the government last November, had clearly been carefully drafted by the government lawyers to try to ensure it was constitutionally valid. She said that that first version of the legislation would only have placed ankle bracelets and curfews, etc. on people subject to a risk assessment. So if they were found to be at high risk to the community, they might have got them. But then the opposition demanded that the bill be amended, because it wanted everyone to be placed under those restrictions, and that's what happened.

Audio Excerpt - Speaker of the House of Representatives:

“I understand that it is a wish of The House to go through the amendments together. I give the call to the Minister.”

Audio Excerpt - Andrew Giles:

“Thank you, Speaker. I move that the amendments be agreed to.”

MIKE:

So, you know, regardless of whether the people had committed serious crimes, and some of them clearly had I mean, I think there were seven people who'd been convicted of murder or attempted murder and there were rapists and other quite nasty people. So regardless of whether they'd committed serious offences or relatively minor offences, they would all be treated the same.

Audio Excerpt - Speaker of the House of Representatives:

“The matter is resolved in the affirmative. The question now is, the amendments be agreed to. I'll put the question, those opinions say aye. Against no? I think the ayes have it.”

MIKE:

And Labour was so desperate not to be outflanked by Dutton, it made a legally dubious choice and then amped up the rhetoric led by Claire O'Neill. Her approach was to prioritise the task of negating any criticism from the opposition that the government was too soft on immigration. And I might say it appears from the people I've spoken to that there was some controversy within the Labor Party too about this, and there are some who still view it as a mistake. As one adviser said to me, there was another path and another view which was that we should try and take some of the heat out of this by doing it quietly and carefully. In retrospect, he said, that would almost certainly have been a much better outcome because, you know, what resulted was that O'Neill was out there saying, look at all these horrible, dreadful people that we have just released.

ANGE:

And Mike, now the government appears to be going hard yet again with this emergency legislation they brought yesterday, why did they feel that was necessary?

MIKE:

Well, this latest piece of proposed legislation is apparently written to try to prevent the release of another cohort of people in detention. So what this legislation does is it makes it a crime not to cooperate in your own deportation. And if you don't, you’re being threatened with a minimum of one year in prison for not cooperating. And, and it's just outrageous. In April, the High Court will hear a case brought on behalf of an Iranian man, who's identified by the pseudonym ASF17, who has been held in immigration detention for ten years. And he's resisting deportation on the grounds that he's bisexual, Christian, Kurdish and has opposed the mistreatment of women by the Iranian government, all of which could place his life at risk in Iran. And the Commonwealth has accepted that there is no prospect of his removal to any country other than Iran. It is also accepted that he can't be removed to Iran without his cooperation, because Iran does not accept involuntary removals. So he's stuck, you know, potentially endlessly stuck, in detention. And there are probably somewhere between 100 and 200 people in a similar position. And so his case, if he succeeds, could also see all of those people released as well. So the government’s facing huge legal problems here in the immigration system. Not of its making, this situation has been building up for decades. You know it was, it was building up under the previous coalition government. It's really just a matter of circumstance that the High Court has got itself involved at this point and has come down with, with one decision and, in the view of many, is likely to come down with another decision, that is seeing a lot of people who have been held in detention released.

ANGE:

And so finally Mike, if these cases are only going to bring more of the immigration regime into question, then it seems like we'll probably be hearing more and more about it in the lead up to the next election. Why is it, do you think, after all these years that Labor's still struggling to come to a policy position that puts this to bed, I suppose, as a political issue for them?

MIKE:

Look, I wish I knew. As one of the advocates that I spoke to pointed out, we are the only major developed nation that has this indefinite detention practice. Everyone else seems to be able to keep their people completely safe without resorting to what we've been doing.

But, you know, behind it I guess there's several factors at play. One, I think, is an unfortunate tendency to xenophobia among some sections of the Australian community. And this, of course, has been encouraged by, you know, right wing media, which unfortunately we have a lot of in this country. And by a ruthless opposition that took the decision, back in the Howard years, to abandon, sort of, sober and considered bipartisanship on immigration generally and make it a politically partisan issue.

ANGE:

Mike, thanks so much for your time today.

MIKE:

Thank you.

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ANGE:

Also in the news today...

The UN Security Council has adopted a resolution demanding an immediate ceasefire between Israel and Hamas after the US abstained from the vote, having vetoed all previous resolutions on the matter.

The remaining 14 council members voted for the resolution which calls for a ceasefire for the month of Ramadan, which ends in two weeks.

And,

The US Department of Homeland Security has raided the home of rap mogul Sean Combs, otherwise known as P Diddy, as part of a sex trafficking investigation.

Separately, Diddy is facing a series of civil lawsuits alleging sexual assault and sex trafficking by a series of former partners and collaborators. Combs has previously denied any wrongdoing.

I’m Ange McCormack, this is 7am. Thanks so much for listening, we’ll be back again tomorrow.

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