Legal Advice On ASIATIC Act, 2018

Asylum Seekers and Constitution

Ours is a small firm of solicitors and I joined the Law Firm seven months ago as a Junior Solicitor. This case was the first independent case I was asked to handle by my boss. I was introduced to Mr. Summer Rayne by my boss and was told to sort out his legal problem. Mr. Rayne briefed me about the illegal immigrants who come in boats and try to illegally land on the Australian shores to seek asylum. He also cited to me the report submitted in the UN General Assembly by one of UN’s global expert on such matters. In short, the expert had reported that this ‘push-back’ action of the Australian government in the international waters was an illegal action under international laws and it tends to put at risk the lives of these asylum seekers. Mr. Rayne was quite vocal about the high-handedness of the Royal Australian Navy (RAN) and the Department of Customs & Border Protection (CBP) who were intercepting these asylum seekers in high seas and turning them back without caring about their safety in the rough seas.

Mr. Rayne also gave me a photograph showing the incident of ‘push-back’, which he said was taken by him a few days ago. Mr. Rayne owned three high-speed boats and was planning to go and offer assistance to the asylum seekers by escorting their boats to Australian shores by cordoning-off the RAN and CBP petrol boats with his speedboats. Mr. Rayne was quite vocal in condemning the government’s actions and wanted our legal opinion about the action which he was contemplating. After discussing the situation with my boss and looking into the legal aspects of Mr. Rayne’s actions, I submitted the following report for the perusal of Mr. Rayne.

At the outset I must point out to you that the Australian Immigration Laws, governed by the Migration Act of 1958, are in tandem with the global environment. Whereas in most advanced countries of the world, refugees and migrants are being demonised and their act of moving to another country is considered as criminal, the Australian government’s policy on this is very lenient. When governments around the world are acting punitively and recklessly against the migrants, Australia fully honours Article 31 of the 1951 Convention of United Nation which stated that the signatories will not impose any penalty on the illegal immigrants because of their illegal presence or entry. 

Immigration Laws

I must also bring to your notice that despite multiple failures on the issue of providing protection to refugees and migrants, the Australian constitution grants right to live to these asylum seeker. Australian constitution does not promote deterrence policies which are punitive, including the government’s policy regarding securing more accessible border entry points. The government does not act as a deterrent to the migration flowing into the country with the imposition of strict detention and return policies. In fact, Australia has been prioritizing entry of refugees who come from life-threatening regions. In recent times the Government processed asylum applications of 12,000 Syrian and Iraqi refugees. Overall, as of September 2017, more than 3,500 of these immigrants have been resettled. Australia is also processing resettlement status of refugees who came from Central America and it is part of the government’s annual intake, which the administration is committed to retain at the level of 18,750 refugees in 2018 and 2019.

Another aspect which I would like to bring to your attention is that the Australian government is not devoid of legal and constitutional powers. Although the Australian Constitution is 117 years old, it never lost its hold on governance at the highest level in the country. The aspect of confrontation between the six territories and the Commonwealth is also not a new issue, but this confrontation has never compromised on the national interest. In the present circumstances, when Commonwealth is taking bold measures for controlling the influx of illegal migrants and it has introduced the ASIATIC Act, 2018 (Asylum Smuggling Interference and Anti-Terrorism Interception Control Act, 2018 (Cth)), does not mean that territories should start overruling this Act by not permitting it to be implemented in their region.

You should be aware that the Commonwealth has enough constitutional powers given to it by under Section 51 of the Constitution of Australia. This section of the Constitution has granted enormous legislative powers to the Australian (Commonwealth) Parliament when it comes to the constitutional rights of the administration. The six Australian colonies became the Original States of the Commonwealth when they joined together to form the Federation in 1901, and it was then that they ceded full constitutional powers to the new Commonwealth Parliament. Each of the 39 subsections of section 51 describe a ‘head of power’ for the administration under which the Commonwealth Parliament is given powers to make laws.

The powers of Commonwealth legislative are those which have been granted under the Constitution. Powers, which are not included under section 51 (combined with section 52 and 90 which prescribe certain additional powers) are classified as ‘residual powers’ and have been granted to the six states. I must make it clear to you that the reluctance of Western Australia in not letting ASIATIC Act, 2018 to be implemented in the region can be overruled by the Commonwealth as any legislation brought in by the states, will become ineffective, by virtue of inconsistency provision under s109, if found to be inconsistent with or is in the constitutional field ‘covered by’ a Commonwealth legislation.

Constitutional Powers of Government

Core and Incidental Powers of s51

Some of the most important heads of section in the Commonwealth legislation which are supporting contemporary governance in the country:

• Section 51(vi): Military Defence.

s 51(vi), a subsection of Section 51 of the Australian Constitution gives the Commonwealth Parliament of Australia the right of legislating the defence of Australia and the right to control the defence forces.

• Section 51(xxvii): Immigration.

s51(xxvii), a subsection of Section 51 of the Australian Constitution gives the Commonwealth Parliament of Australia the right of legislating the immigration of people into Australia.

• Section 51(xix): Naturalization and Aliens.

s51(xix), a subsection of Section 51 of the Australian Constitution gives the Commonwealth Parliament of Australia the right of legislating the process of naturalization of its people.

• Section 51(xxiv): Service and Execution of Court Processes.

s51(xxiv), a subsection of Section 51 of the Australian Constitution gives the Commonwealth Parliament of Australia the right of legislating the judicial process of the country.

• Section 51(xxv): Recognition of Judgements.

s51(xxv), a subsection of Section 51 of the Australian Constitution gives the Commonwealth Parliament of Australia the right of legislating the recognition of judgements.

• Section 51(xxviii): Influx of Criminals.

s51(xxviii), a subsection of Section 51 of the Australian Constitution gives the Commonwealth Parliament of Australia the right of legislating the influx of criminals into the country.

• Section 51(xxix): Power to Control External Affairs.

s51(xxix), a subsection of Section 51 of the Australian Constitution gives the Commonwealth Parliament of Australia the right of legislating the nation’s ‘External Affairs’.

You must be wondering why the government is bringing in this new Act when it has such sweeping powers. I may make it clear that this has been done because of the changing times in international relations. Globalization is demarcating the physical boundaries between countries and internet has ushered an era of instant communication. Travelling modes have become swift and are easily accessible. The biggest factor which is responsible for bringing this Act are the economic disparities between countries. All these factors discussed above, are driving every developed nation towards tighter measures of safeguarding its people, its economy and its territories.

As the Prime Minister said while introducing this Act in the parliament and I quote – ‘Although frankly, my Government does not care if the passengers on these boats pose no threat to Australia’s national security. Nor do we care if these so-called protestors are behaving in a completely peaceful fashion. They are still interfering with the lawful and proper defence of Australia and its people. We will bring the full force of the law to bear on this rabble, to ensure their efforts come to nothing. Any citizens misguided enough to support these people, financially or politically, will be persuaded to see the error of their ways. There is an appallingly high, misplaced level of public support for these trouble-makers, so we have appointed a number of new Federal Magistrates, who stand ready to hear new criminal charges against these people.’ Unquote.

Conclusion & Recommendation

Under all circumstances, as a law abiding citizen, it is your duty to first think about your country and then about the world. Considering all that has been brought to your notice through this report, I would suggest that you refrain from any activity which harms the interests of your country. As a nation, Australia is not against humanitarian welfare, but our constitutional duty tells us that it should not be at the expense of our people.

References

Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572

Badenach v Calvert (2016) 90 ALJR 610

Criminal Code (Qld), s 317(b)

Cunningham v Commonwealth (2016) 90 ALJR 1138

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 100

McAuliffe v The Queen (1995) 183 CLR 108

Miller v The Queen (2016) 90 ALJR 918

NH v Director of Public Prosecutions (SA) (2016) 90 ALJR 978

Passenger Transport Act 1990 (NSW)

R v Jogee [2016] 2 WLR 681.

Wilkie v Commonwealth [2017] HCA 40

Wilson v Bauer Media Pty Ltd [2017] VSC 521

Zaburoni v The Queen (2016) 256 CLR 482