Today I am talking with Zaki Haidari and Dr Anthea Vogl on Australia’s immigration system and the use of the “Code of Behaviour”.

Zaki is a 2020 Australian Human Rights Commission Human Rights Hero, an Ambassador for the Refugee Advice and Casework Service, and works at Amnesty International as a Refugee Rights Campaigner. Zaki himself is a refugee, having fled Afghanistan after being targeted to be killed by the Taliban and has survived a terrifying boat journey to Australia in 2012. Despite this and a range of social, legal and financial obstacles, he has thrived, learning English and has become a well-known and respected human rights advocate speaking about the cruelty in Australia’s refugee system.

Anthea is senior lecturer at the UTS Faculty of law. Her work takes a critical and interdisciplinary approach to the regulation of migrants and on-citizens, with lots of this content falling within refugee, migration, and administrative law and theory. She is one of few Australians to highlight the issues in the Code of Behaviour.

As I mentioned, today we discuss the Code of Behaviour. In 2013, then Minister for Immigration and Border Protection, Scott Morrison, introduced a Code of Behaviour for asylum seekers released from detention. In order to be released from detention, asylum seekers must sign the code. The Code contains obligations on asylum seekers that both duplicate, and exceed the criminal law. These include requiring people to not make sexual contact with another person without their consent, to obey existing Australian laws, and undefined content, like to not engage in any, and I quote “anti-social or disruptive activities that are inconsiderate, disrespectful or threaten the peaceful enjoyment of other members of the community”….you know, like possibly advocating for your human rights. If you are found by the Department to have breached any of these conditions, you can have your welfare taken, or be put back in on-shore or off-shore detention.

All of these provisions are part of what’s called refugee and administrative law. They have all of the flavour and consequences of criminal law, but without any of the checks and balances before courts. Zaki has lived this and Anthea has researched this. Anthea’s research reveals all of these features in more depth, but also, that that non-governmental organisations are being co-opted into acting as police and surveillance officers of refugees and migrants.

We enter a new Albanese government with new Ministers for Immigration and for Home Affairs. This Code was written with a Ministry pencil, and can be erased at a Ministers discretion – Parliament was never involved. Consider writing to your local MP and the Ministers for Immigration and Home Affairs to have this inhumane code removed immediately.

[Note: Apologies for my audio at times - need a new microphone!]

This episode is recorded from the sovereign lands of the Wurundjeri People of the Kulin Nation. First Nations people have been custodians of this land for tens of thousands of years. Colonisation is a process that law and regulation, have been deeply complicit in, taking land, sea, children and lives, and I note that stolen wages and racial discrimination in the workplace being are another historic and contemporary example. I want to acknowledge that despite colonisation, 60 000 years of wisdom continues, and so too does non-Aboriginal Australia’s obligations to take a daily personal responsibility to do support reconciliation through truth and justice.

One of the central gaps in this podcast has been how the workplace, or the relationship between the worker and the employer, is regulated. I’ve been fortunate to speak to Josh Bornstein to help us navigate this space.

Josh is a Principal Lawyer with Maurice Blackburn and National Practice Leader of both its Social Justice Group and its Employment and Industrial Relations Group. In 2019, he was awarded Workplace Relations Partner of the Year by Lawyers Weekly. He’s got over 20 years of experience as an employment and industrial relations lawyer, addressing bullying, sexual harassment and representing some of Australia’s key unions and civil society organisations. He’s on the board of progressive think tank, the Australia Institute, and has written loads of articles, that I’ll put in the shownotes.

Josh takes us on a journey through some of the key issues and opportunities in 2022 with a new federal government, the chronic issues facing gig workers in the Australian economy, we take a lovely detour to discuss digital platforms and their regulation, before reflecting on Josh’s work around gender equality.

A wonderful episode that I could have run for much longer!

I hope you enjoy the episode. Rate it and share it as usual ploiiise.

Shownotes

Recent articles by Josh:

https://www.canberratimes.com.au/story/7595716/how-to-fix-hatred-online-impose-a-duty-of-care/

https://www.themonthly.com.au/blog/josh-bornstein/2022/31/2022/1648679235/great-wealth-redistribution#mtr

https://thenewdaily.com.au/opinion/2022/02/08/democratic-recession-josh-bornstein/

https://www.theguardian.com/business/commentisfre

Professor the Honourable Kevin Bell AM QC is the Executive Director of the Castan Centre for Human Rights Law, Commissioner for the Yoo-rrook Justice Commission, and Co-Chair of the Steering Committee of the National Mental Health Commission National Stigma and Discrimination Reduction Strategy. Among his many accomplishments, as Justice of the Supreme Court of Victoria and President of the Victorian Civil and Administrative Tribunal Professor Bell has presided over some of Victoria’s most important human rights judgements, including Patrick’s Case and the 2017 PBU & NJE case on electroconvulsive treatment.

Today we spoke about law, the role of judges in directly or indirectly exercising oversight of systems and how taking a human rights based approach can lead to the best experiences of and outcomes from, the courts.

[A note on language: there are diverse ways to understand and describe distress. Different terms are used in this podcast. We discuss in the episode, the need to acknowledge labelling and power in how terms like mental illness and mental health are used]

Show notes

Guardian Australia pieces on Victoria’s mental health regulator:

• Story on under-enforcement: https://www.theguardian.com/society/2022/may/26/no-action-taken-against-victorian-mental-health-services-despite-more-than-12000-complaints?CMP=share_btn_tw
• Olivia’s story: https://www.theguardian.com/society/2022/may/29/you-dont-have-a-choice-victorias-mental-health-regulator-criticised-over-complaints-handling?CMP=share_btn_tw

Cases discussed (explainers)

• Patrick's Case: https://www.hrlc.org.au/human-rights-case-summaries/p-j-b-v-melbourne-health-anor-patricks-case-2011-vsc-327-19-july-2011
• PBU & NJE: https://www.legalaid.vic.gov.au/about-us/news/landmark-judgment-strengthens-patients-rights-in-compulsory-electroconvulsive-treatment-cases
• Matsoukatidou Case: https://www.hrlc.org.au/human-rights-case-summaries/2017/4/24/victorian-supreme-court-rules-that-courts-have-fair-hearing-and-equality-obligations-to-assist-self-represented-litigants