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Immigration law needs ‘less puritanism and more flexibility’
Immigration law in Australia is “more driven by a puritanical and punitive streak rather than a human right focus”, according to a specialist in the area.
Grace Ormsby
Even preceding the outcome for legal aid funding in Tuesday night’s federal budget announcement, Kerry Murphy, an immigration law partner with Sydney’s D’Ambra Murphy Lawyers, spoke with Lawyers Weekly about the “almost non-existen(ce)” of Legal Aid in immigration and human rights law areas.
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Community legal centre funding has also been cut right back, he highlighted, especially in complex character and merits review areas.
Human rights law is “always important because it is one of the few ways of protecting the individual against the power of the state”, Mr Murphy said, and considers both human rights law and immigration law as “highly politicised” in Australia.
While he acknowledged “a traditional tug of war between sovereignty and international human rights norms”, he said that usually, the former wins.
“Complex issues are simplified in a media too busy, or itself too politicised to understand the legal complexities,” Mr Murphy explained.
“This can be from either end of the left to right spectrum”, he expressed, with language used “as part of the punitive and puritanical style such as referring to people as being ‘illegal’ when the term has not been used in immigration law since August 1994”.
“In the Migration Act, people are either lawful non-citizens, or unlawful non-citizens – there is no offence if someone were unlawful,” it was clarified.
While there are possible immigration consequences such as detention or removal, Mr Murphy conceded the terms as having gained “greater use by conservative politicians and commentators as a way of vilifying people”.
“It is not as if senior ministers and bureaucrats do not know the correct terminology, but the politicians use these more negative terms to reinforce their vilification, and direct the bureaucrats to do the same,” he added.
Mr Murphy also holds concern for developments including the ‘fast track’ process, whereby the process of merits review is being wound back, which he said “make(s) refusals much easier to do”.
“There are more plans to wind it back further and to reduce the chance for someone to have their case properly heard,” he continued.
With structures “already heavily loaded against applicants in favour of government”, Mr Murphy re-iterated the importance of advocating for and trying to protect human rights.
In calling for “less puritanism and more flexibility”, Mr Murphy acknowledged “people’s live do not fit neatly into boxes or categories, and as more complex and messy life scenarios develop, the system does not have the flexibility to deal with this adequately”.
