Legislating in the Ludicrous Direction: on Australia’s laws that target the vulnerable
In an ideal world, the legal system should work to protect the vulnerable. In reality, this is often not so. So, how have we ended up with our current asylum seeker legislation, and court rulings severely restricting the autonomy of transgender teens? In this edited extract from a longer conversation, Julian Burnside, Charlie Pickering, and Lorin Clarke discuss how ridiculous laws come to pass.
Some ridiculous laws are passed because people aren’t paying attention, but with, say, asylum seeker laws, there is a nation full of people who are bearing witness. How does this happen?
'So in what sense do we believe human rights are important? Maybe we just think our human rights are important.'
When you get ridiculous laws about things to do with asylum seekers and begging as a crime and [the fact that] gender dysphoria can't be corrected except with an order of the Family Court, it's almost always because the people whose interests are at stake are either vulnerable or powerless – and the state can pretty much ignore the harm that it inflicts on them, because it doesn’t need to think about them. It's one of the areas where democracy really fails us.
For example, in relation to gender dysphoria, there are people who have been assigned one sex when they're born, and actually believe that they belong to the opposite sex. Because of a High Court decision, called Marion's Case, the High Court held that only the state has the power to authorise a sex reassignment. And so, even though the child might believe that he or she belongs to the opposite sex, and even though the child's parents agree to have a sex reassignment, they cannot get it unless they get an order from the Family Court – and that's expensive, and for many people, it’s not possible.
But that’s a product of a judicial decision of the High Court?
It is, but it could be very easily be overcome by a bit of sensible legislation, if the Parliament thought those people matter enough.
So often the victims of ridiculous laws are vulnerable and powerless, and not in a position to draw attention to their plight or remedy the situation themselves – but the other side of the coin is, there is someone who stands to benefit politically from legislating in the ludicrous direction. So you could argue that there is a political gain to marginalise the trans community, because there's a certain number of voters that don't like trans people for who they are and are therefore happy to see them punished by the law.
What about domestic violence laws?
I don't know how the parliamentarians get away with it. We've got some very, very harsh laws directed against terrorist offenses. And curiously, the largest death toll from a terrorist act in Australia was in 1854 at the Eureka Stockade. Since then, I think there may be on average one death from a terrorist act every couple of years … whereas roughly three women every fortnight die in domestic violence episodes. And yet the law is not nearly as stringent in relation to domestic violence as it is in relation to terrorism, which is truly bizarre.
In order for ridiculous laws not to be a central part of the way our country works, where does the change need to happen?
Parliamentarians have to think, and they have to care.
But it has to be in their self-interest to think and care.
Yes. And I don't know how you make it in their self-interest except by calling them out, or by holding them to account.
If we're talking about ridiculous laws, bear in mind the framework of our refugee laws. First of all, the government calls refugees ‘illegal’ when they haven't broken the law. And then it says, ‘Well, okay, if you come to Australia you haven't got a visa, you've got to be detained until you get a visa or until you're removed from Australia.’
'Parliamentarians have to think, and they have to care.'
One case Claire O'Connor argued in the High Court was about a guy who couldn't be removed because he's stateless and he'd been refused a visa. And the Commonwealth of Australia, your government, argued all the way to the High Court that this man, innocent of any offense, could stay in detention for the rest of his life – which is horrifying when you think about it. And by a majority or four to three, the High Court said, ‘Well, that's what the statute says’, and with that meaning it's Constitutionally valid. We're gonna have another round of that one.
The next thing the framework says is, ‘You can be sent for offshore processing.’ And one of the fascinating bits of that, which I dug out today, starts with section 198AA, ‘Reason for the subdivision’:
This Subdivision is enacted because the Parliament considers that:
(a) people smuggling, and its undesirable consequences including the resulting loss of life at sea, are major regional problems that need to be addressed
Now, stop right there. I mean, is a person safer if they run the risk of drowning than if they stay at home and face down the Taliban? Why not look at the undesirable risks of being killed by persecutors, because that's basically what asylum seeking is about. And then it goes on to say that you can be bounced off to any country that we’ve managed to bribe, and it then says that if you've got a health problem there, you can be brought to Australia for treatment, and you are then called a ‘transitory person’.
And if a transitory person happens to be a pregnant woman who has their child in Australia, it is defined as a ‘transitory child’ and is denied any citizenship or right of citizenship in Australia. And a transitory child can be moved to an offshore detention center, because they are a transitory child.
'So often the victims of ridiculous laws are vulnerable and powerless – but the other side of the coin is, there is someone who stands to benefit politically from legislating in the ludicrous direction.'
So the only crime committed by the child was being born.
It’s original sin.
Is there any consideration of the practical implications of these laws on that child's actual life – or is it all politics?
It’s all politics. I don't think that classifying a child born in Australia as a transitory child who can be sent offshore for however long is actually going to save anyone from drowning. It's ridiculous, but it is the end point of a policy which began with populism and a bit of luck and has built on that.
Everyone remembers the Tampa episode in 2001. What is interesting is that the first judgment in the Tampa litigation was handed down in Melbourne at 2.15 in the afternoon on the 11th of September, 2001. Ten hours later, there's the attack on America, and all of a sudden the world looks different and all of a sudden, John Howard can say, ‘Terrorists are Muslim and all boat people are Muslim and they're illegal.’ And it's been relentless since September 2001.
It is vulnerable people at the margins who generally are the subject of laws that are ridiculous or unfair in their effect. I think most Australians do think that human rights are important. But then we tolerated the fact that David Hicks and Mamdouh Habib were held without charge by our allies in Guantanamo Bay for years before anyone started complaining about it. We knew for generations that we'd taken Aboriginal children from their parents and didn't seem too trouble about that, and we've known for a long time now how asylum seekers are treated.
By and large, most Australians seem to support the government's approach. So in what sense do we believe human rights are important? Maybe we just think our human rights are important.