The Politics    Monday, November 20, 2023

Justice detained

By Denham Sadler

Justice detained
What are politicians risking when they weaponise Australia’s immigration detention system?

It’s not just in offshore detention centres that Australia’s cruelty to asylum seekers has been laid bare. It’s seen across the country’s immigration detention system, which is built around punishment and exploiting unfounded fears in the community. And this has been illustrated in recent revelations of police interference in the deportation decisions of the government, and in the knee-jerk reaction last week to the High Court’s decision on indefinite detention. These events have shown how Australia’s punitive immigration system, built up by successive Liberal and Labor governments over decades, can be weaponised to circumvent Australia’s courts and the criminal justice system, and to unfairly target and punish those seeking asylum in our country. The degradation of the fundamental rules of law – rules that both major parties claim to be bound by when it suits them – should be of serious concern to all Australians.

Documents obtained by the Nine papers under a freedom of information request reveal that police across the country have been lobbying the federal government to deport individuals based on crimes for which they haven’t yet been convicted or even charged with. Under law, an individual’s Australian visa will be cancelled if they are sentenced to more than 12 months in prison, or if they fail the character test. The large majority of people in immigration detention have already served a full prison sentence, and are now challenging their deportation from Australia under these laws.

The Nine papers’ investigation revealed that police in multiple states are trying to use this process to circumvent Australia’s criminal justice system, and have individuals extrajudicially punished for crimes for which they are yet to be found guilty. In one case, the NSW Homicide Squad detective wrote to then Home Affairs minister Peter Dutton arguing for the deportation of refugee Moses Kellie. Charges against Kellie had been dropped due to “difficulties with the admissibility” of evidence and a history of mental illness. But in the letter, the detective said Kellie was the “prime suspect” in the crime, and that there was “no doubt from our perspective” that he was guilty. Kellie had maintained his innocence and there was no forensic evidence linking him to the crime. The letter also referenced other crimes that police “contended” were committed by the man, and raised concerns that he would not take his prescription medication or be welcomed back home by his family, something which his family in Australia has denied. In early 2019 while awaiting a decision on his visa, Kellie died by suicide at the Villawood Immigration Detention Centre.

In another case, Victoria Police wrote to Home Affairs about a man it suspected of having links to the “APEX gang” and “known” associations with people involved in serious crimes. The letter referenced that he had faced 126 charges and 44 arrests, but had only been convicted 13 times. It also said he had been observed squatting in an abandoned house with “other African males”, despite living with his family at the time. Canberra Law School professor of criminology Leanne Weber told the Nine papers that these are troubling examples of the bypassing of the judicial system to punish asylum seekers and refugees using a secretive process with no checks or balances. “There’s a lot of power in a system which happens behind closed doors, not open courts,” Weber said. “If you can’t get a ‘result’ through a conviction and sentence, the immigration system is providing an alternative pathway … There’s been this interplay between police, the criminal justice and immigration systems building up for a while. There’s been a ramping up of police using those tactics.”

The High Court’s long overdue stamping out of indefinite detention was not met with reasoned consideration by many in parliament, and not least by the fear-mongering opposition leader. Peter Dutton’s and others’ reactions will severely curtail the human rights of individuals who have served their full prison sentence, treating them as a higher risk than an Australian citizen who has committed the same crime. The lack of respect to the rules of law and criminal justice process was on full display during the entire sitting week, and is further evidenced by the police lobbying revealed today.

The emails revealed by the FOI documents occurred under the watch of the previous Coalition government, but when it comes to non-citizens of Australia, successive governments have used any means necessary to punish and restrict asylum seekers’ basic human rights. This has been facilitated by an immigration system focused on punishment and placating the unfounded fears of the general public. And this system is now being weaponised to have individuals deported, potentially back into dangerous situations, when they haven’t even been found guilty of a crime. Working in tandem, the police have been shown to be willing to go beyond their remit to push for the deportation of individuals, and if this is unable to be done, politicians have shown they are willing to ensure these people are detained in immigration detention or kept under highly restrictive conditions.

These revelations should lead to serious reflections on the rule of law in Australia and the separation of powers that we apparently hold so dearly. But if this shameful chapter is anything to go by, we shouldn’t be holding our breath.

Lifeline: 13 11 14

Denham Sadler

Denham Sadler is a freelance writer.

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