The Guardian has revealed that two men holding dual Australian citizenship were sent to Christmas Island under section 501 of the Migration Act.
The law enables the minister to detain or deport non-citizens who fail the 'character test'. The detention of these citizens was without question unlawful. The error was identified and they were released.
It looks like a happy ending, but you'd have to squint hard. Citizenship in Australia has only ever been paper-thin, swept in the billows of political culture.
In recent decades, citizenship requirements may have opened up for people not born into it. But the certificate that they receive offers little protection, either in culture wars fomented by the white Christian right or in the more prosaic administration of rules.
The immigration department has a history of unlawfully deporting and detaining citizens or permanent residents, and conducting unauthorised searches at airports and houses. In 2015 the Australian Border Force announced a street-level visa-check in central Melbourne, which provoked heated public reaction and was scuttled by an irate Victoria Police.
More recently, the Coalition government moved to raise English language barriers to citizenship. It also sought to expand the power of Immigration Minister Peter Dutton, enabling him to overrule citizenship decisions from the Administrative Appeals Tribunal. It has alarmed lawyers and legal councils.
Dutton argued that his department is 'best placed' to make citizenship decisions because it has access to all relevant facts. The recent illegal detention of New Zealand-born Australian citizens belies that assertion. More than 200 such cases over the past decade have been investigated by the commonwealth ombudsman.
It raises questions about the level of competence that could be expected at the immigration department. Decisions in this area — as in all areas of governance that bear direct impact on human lives — rest on the skills and integrity of the individuals who make them. The size of the impact relates to the level of restraint. The bigger the shoes, the lighter the tread. That is the responsibility that comes with immense power.
"The problem, however, is that such solutions offer no dividends in a political climate that weaponises citizenship. There is nothing in it for the minister, nor the Coalition."
The solutions are in part structural: better training on due process, proper documentation and the limits of authority; cultural and legal education regarding use of force; more stringent recruitment; improvements in review procedures and chain of command; de-politicising decisions through judicial oversight. The problem, however, is that such solutions offer no dividends in a political climate that weaponises citizenship. There is nothing in it for the minister, nor the Coalition.
But there is everything in it for us. It should disturb us that the immigration ministry has become the locus for responses to crime and national security, via so-called 'character tests' or ministerial determinations over whether someone has 'integrated'. It is not its primary remit to enforce law and order; these are a matter for police and courts.
The immense power vested in the department also magnifies error and mischief. The pattern of recent years has in fact been about eroding impediments and remedies.
In keeping with the diminution of meaning in our time, an elected official accruing even more power is also being framed as better for accountability than an independent review tribunal.
A draconian mindset can be contagious, and when it emanates from the top, it can permeate thoroughly. If citizenship is no insulation from vagaries of the state, then no one is safe.
Fatima Measham is a Eureka Street consulting editor. She co-hosts the ChatterSquare podcast, tweets as @foomeister and blogs on Medium.