We should be afraid, but not for the reason the major parties tell us

Home Affairs Minister Clare O’Neil openly declared last week that she would, if she could, re-detain “every one of those people” recently released from indefinite immigration detention because, so she says, she wants a “safe country”. 

Others, it might be said, may prefer a country where uncontroversial understandings of the rule of law and what it means to be a free society grounded in the tradition of Magna Carta aren’t routinely emptied of their significance; where indefinite detention, or open-ended imprisonment without charge, is by rights recognised as both obviously unlawful and morally reprehensible; and where the menacing drumbeat of moral panic is habitually considered inimical to the natural order of things. 

But against this seemingly tall order lies a bipartisan challenge. In recent days, the antics of both Labor and the Coalition have again confirmed, in case there was any doubt, the gradual decomposition of our democracy and the creeping embrace of what we might call lawless order. 

The pièce de résistance came late Thursday evening last week when Labor met Peter Dutton’s transparently partisan demand to rush through legislation which, by design, pledges to impose an extraordinarily punitive existence on the 93 people so far released from indefinite detention by force of a recent High Court ruling. The new laws meet their desired aim by shackling the liberty of these people to seriously onerous visa conditions, such as mandatory curfews, electronic monitoring and restrictions on work, association and whereabouts, and all without the pesky constraints of natural justice. 

Severe and disproportionate punishment awaits any person who falls foul of these conditions, courtesy of a suite of mandatory minimum sentences included in the legislation at Dutton’s insistence. 

Since Sunday, O’Neil has flagged further restrictions, and today there are reports the government is scoping a regime of preventative detention for the worst offenders as a means of circumventing the High Court’s decision. 

The prognosis for our democracy is, on this score, grim. Rarely has a Labor government so willingly forfeited the dignity of its office in a bid to surpass the caudillo instincts of an opposition leader so hopelessly unserious, so reflexively illiberal, and so utterly unsuited for leadership that his contempt for norms and customs rivals that of the perfidious moral degenerate who preceded him. 

It’s true that the group of released former detainees includes a handful of convicted murderers and rapists — all of whom, it bears emphasising, have served their respective sentences. But it also comprises people who lack a criminal record and whose only collision with the law lies in connection with traffic offences. Indeed, the one common thread that unites the disparate experiences of all, aside from their experience of indefinite detention, is their status as stateless human beings, the sole factor that precluded the government from deporting them on character grounds. 

The reason these people were not, by virtue of these circumstances, immediately released owed to a High Court decision of some 20 years ago which rendered indefinite immigration detention lawful in all but name. In reasoning which, to the credit of the current High Court, plainly hasn’t withstood the long march of time, the court in 2004 decided by the slimmest of majorities that whenever a person is detained with a view to deporting them, that purpose can never be said to be truly spent, even if that person is stateless and deportation sits outside the realms of possibility. If the purpose is not spent, so the argument goes, then ongoing detention is lawful. 

What followed were years of legal skirmishes with the precedent, as successive governments of both persuasions skilfully carved out an array of circumstances in which its overriding logic could apply. They did so chiefly by unspooling the exercise of the minister’s discretion in migration cases from a raft of constraints, many of which found reflection in international law, and by limiting applicants’ scope for review of decisions. 

This invariably occurred cynically, on a case-by-case basis, as the High Court was often prone to observe, and with a view to circumventing unfavourable judicial determinations of a regime beset by cruelty and clearly at odds with international law. To that end, the former Coalition government’s brazen politicisation of the Administrative Appeals Tribunal and certain appointments to the lower federal courts was merely emblematic of the same disease, the same coarsening of politics and the same desire to weaponise fear for political ends. 

It’s no secret of course that the ebb and flow of fear has long played an outsized role in Australian politics: pulling elections and upending an ever-shrinking political landscape. But this latest bipartisan foray into unhinged outrage politics in response to a landmark, long-overdue High Court ruling suggests we’ve reached an inflection point, and one where our democracy is at risk of metamorphosing into a caricature.

In reality, when Dutton and O’Neil tell us we should be afraid, they are right, though not for the desperately dark and dehumanising reasons they cite. The point of their panic-baiting, their capering and cavorting about fear, is to blind us into believing punitive and inhumane responses are required to salve the panic they declare all Australians feel. 

What ensues is a political sleight of hand of the worst kind, where perceived solutions lie in promises of toughness and protection — a twisted “freedom from” such “disgusting” people — but in a way that subverts the guardrails of a free society underpinned by liberal democratic norms and the rule of law. 

Naturally, the potentially baleful consequences of such circumstances always sound far-fetched until, of course, it’s remembered we lack a human rights charter in this country. Until it’s remembered that the alternative government in this country is one led by Dutton — a man whose reputation of disdain for immigrants and minorities precedes him, and whose ingrained illiberal tendencies last week appeared to stretch to testing the High Court’s resolve for a constitutional crisis. Until it’s remembered that everything is unprecedented and therefore unlikely until, of course, it happens.

We should be afraid, in other words, but not of the released former detainees or others who will follow in their stead. But of the major parties, which seem to care little for the implications their decisions spell for a free society. 

So while commentators such as Julia Baird are undoubtedly right to point out that the measure of a society is how we treat the despised and marginalised, there also exist entirely selfish reasons to treat such people with human dignity, by affording them the law’s full protection. Ultimately it’s not only for their sake, but for our own. 

We already know the cost of 20 years of indefinite detention to our collective humanity and international reputation is incalculable, that the psychological and physical scars of indefinite detention on those forced to endure it will never fade. The gravest thing we could do now is lose sight of the distinction that resides between the rule of law and lawless order.

Are you as afraid for your safety as Peter Dutton says you are? Let us know by writing to letters@crikey.com.au. Please include your full name to be considered for publication. We reserve the right to edit for length and clarity.