Constitutional Law: Asylum Seekers, Govt Powers & ASIATIC Act 2018

This report provides a legal analysis of the Australian government's policies regarding asylum seekers, particularly concerning the interception of boats and the proposed ASIATIC Act 2018. It examines the constitutional powers of the Commonwealth government under Section 51 of the Australian Constitution, focusing on aspects such as immigration, defense, and external affairs. The report also addresses the balance between national interests and humanitarian concerns, referencing relevant case law and legislation. The conclusion advises against actions that could harm the country's interests, emphasizing the importance of upholding constitutional duties while considering humanitarian welfare. The document includes a bibliography of cited cases and legislation, offering a comprehensive overview of the legal landscape surrounding asylum seekers in Australia. Desklib offers this solution along with other resources for students.

CONSTITUTIONAL LAW
Asylum seekers intercepted by a boat off Christmas Island
Asylum Seekers and Constitution
Ours is a small firm of solicitors and I joined the Law Firm seven months ago as a
Junior Solicitor. This case was the first independent case I was asked to handle by my
boss. I was introduced to Mr. Summer Rayne by my boss and was told to sort out his
legal problem. Mr. Rayne briefed me about the illegal immigrants who come in boats
and try to illegally land on the Australian shores to seek asylum. He also cited to me the
report submitted in the UN General Assembly by one of UN’s global expert on such
matters. In short, the expert had reported that this ‘push-back’ action of the Australian
government in the international waters was an illegal action under international laws
and it tends to put at risk the lives of these asylum seekers. Mr. Rayne was quite vocal
about the high-handedness of the Royal Australian Navy (RAN) and the Department of
Customs & Border Protection (CBP) who were intercepting these asylum seekers in
high seas and turning them back without caring about their safety in the rough seas1.
1 Criminal Code (Qld), s 317(b)

Mr. Rayne also gave me a photograph showing the incident of ‘push-back’, which he
said was taken by him a few days ago. Mr. Rayne owned three high-speed boats and
was planning to go and offer assistance to the asylum seekers by escorting their boats to
Australian shores by cordoning-off the RAN and CBP petrol boats with his speedboats.
Mr. Rayne was quite vocal in condemning the government’s actions and wanted our
legal opinion about the action which he was contemplating2. After discussing the
situation with my boss and looking into the legal aspects of Mr. Rayne’s actions, I
submitted the following report for the perusal of Mr. Rayne.
MY REPORT
Immigration Laws
At the outset I must point out to you that the Australian Immigration Laws, governed by
the Migration Act of 1958, are in tandem with the global environment. Whereas in most
advanced countries of the world, refugees and migrants are being demonised and their
act of moving to another country is considered as criminal, the Australian government’s
policy on this is very lenient. When governments around the world are acting punitively
and recklessly against the migrants3, Australia fully honours Article 31 of the 1951
Convention of United Nation which stated that the signatories will not impose any
penalty on the illegal immigrants because of their illegal presence or entry.
I must also bring to your notice that despite multiple failures on the issue of providing
protection to refugees and migrants, the Australian constitution grants right to live to
these asylum seeker. Australian constitution does not promote deterrence policies which
are punitive, including the government’s policy regarding securing more accessible
border entry points4. The government does not act as a deterrent to the migration
flowing into the country with the imposition of strict detention and return policies. In
fact, Australia has been prioritizing entry of refugees who come from life-threatening
regions. In recent times the Government processed asylum applications of 12,000
Syrian and Iraqi refugees. Overall, as of September 2017, more than 3,500 of these
2Zaburoni v The Queen (2016) 256 CLR 482
3 Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572
4 In Badenach v Calvert (2016) 90 ALJR 610 the High Court provided some important clarification on the
nature and scope of a solicitor’s duty

immigrants have been resettled. Australia is also processing resettlement status of
refugees who came from Central America and it is part of the government’s annual
intake, which the administration is committed to retain at the level of 18,750 refugees in
2018 and 20195.
Constitutional Powers of Government
Another aspect which I would like to bring to your attention is that the Australian
government is not devoid of legal and constitutional powers. Although the Australian
Constitution is 117 years old, it never lost its hold on governance at the highest level in
the country. The aspect of confrontation between the six territories and the
Commonwealth is also not a new issue, but this confrontation has never compromised
on the national interest. In the present circumstances, when Commonwealth is taking
bold measures for controlling the influx of illegal migrants and it has introduced the
ASIATIC Act, 2018 (Asylum Smuggling Interference and Anti-Terrorism Interception
Control Act, 2018 (Cth)), does not mean that territories should start overruling this Act
by not permitting it to be implemented in their region.
You should be aware that the Commonwealth has enough constitutional powers given to
it by under Section 51 of the Constitution of Australia. This section of the Constitution
has granted enormous legislative powers to the Australian (Commonwealth) Parliament
when it comes to the constitutional rights of the administration6. The six Australian
colonies became the Original States of the Commonwealth when they joined together to
form the Federation in 1901, and it was then that they ceded full constitutional powers
to the new Commonwealth Parliament. Each of the 39 subsections of section 51
describe a ‘head of power’ for the administration under which the Commonwealth
Parliament is given powers to make laws7.
The powers of Commonwealth legislative are those which have been granted under the
Constitution. Powers, which are not included under section 51 (combined with section
52 and 90 which prescribe certain additional powers) are classified as ‘residual powers’
5 Miller v The Queen (2016) 90 ALJR 918 gave the High Court an opportunity to decide whether to
follow a high profile decision of the Supreme Court of the United Kingdom
6 McAuliffe v The Queen (1995) 183 CLR 108 was found to be satisfied if each man intended to commit
an assault but foresaw the possibility that one of the other men might kill or inflict serious injury.
7 R v Jogee [2016] 2 WLR 681. In Jogee, the court held that the doctrine of extended joint criminal
enterprise, where there was a “possibility” of a more serious crime being committed, was an over-
criminalisation and extended liability too far

and have been granted to the six states. I must make it clear to you that the reluctance of
Western Australia in not letting ASIATIC Act, 2018 to be implemented in the region
can be overruled by the Commonwealth as any legislation brought in by the states, will
become ineffective, by virtue of inconsistency provision under s109, if found to be
inconsistent with or is in the constitutional field ‘covered by’ a Commonwealth
legislation8.
Core and Incidental Powers of s51
Some of the most important heads of section in the Commonwealth legislation9 which
are supporting contemporary governance in the country:
 Section 51(vi): Military Defence.
s 51(vi), a subsection of Section 51 of the Australian Constitution gives the
Commonwealth Parliament of Australia the right of legislating the defence of Australia
and the right to control the defence forces.
 Section 51(xxvii): Immigration.
s51(xxvii), a subsection of Section 51 of the Australian Constitution gives the
Commonwealth Parliament of Australia the right of legislating the immigration of
people into Australia.
 Section 51(xix): Naturalization and Aliens.
s51(xix), a subsection of Section 51 of the Australian Constitution gives the
Commonwealth Parliament of Australia the right of legislating the process of
naturalization of its people.
 Section 51(xxiv): Service and Execution of Court Processes.
s51(xxiv), a subsection of Section 51 of the Australian Constitution gives the
Commonwealth Parliament of Australia the right of legislating the judicial process of
the country.
 Section 51(xxv): Recognition of Judgements.
8 In Cunningham v Commonwealth (2016) 90 ALJR 1138 the High Court was asked to decide whether
four retired politicians had had their property acquired otherwise than on just terms when their travel
benefits were removed.
9 The challenge, under the Constitution, s 51(xxxi), drew comparisons with the popular 1997 Australian
film ‘The Castle’, where that section of the Constitution was used to stop a family home being acquired to
extend an airport runway.

s51(xxv), a subsection of Section 51 of the Australian Constitution gives the
Commonwealth Parliament of Australia the right of legislating the recognition of
judgements10.
 Section 51(xxviii): Influx of Criminals.
s51(xxviii), a subsection of Section 51 of the Australian Constitution gives the
Commonwealth Parliament of Australia the right of legislating the influx of criminals
into the country.
 Section 51(xxix): Power to Control External Affairs.
s51(xxix), a subsection of Section 51 of the Australian Constitution gives the
Commonwealth Parliament of Australia the right of legislating the nation’s ‘External
Affairs’.
Why ASIATIC Act, 2018
You must be wondering why the government is bringing in this new Act when it has
such sweeping powers. I may make it clear that this has been done because of the
changing times in international relations. Globalization is demarcating the physical
boundaries between countries and internet has ushered an era of instant communication.
Travelling modes have become swift and are easily accessible11. The biggest factor
which is responsible for bringing this Act are the economic disparities between
countries. All these factors discussed above, are driving every developed nation towards
tighter measures of safeguarding its people, its economy and its territories12.
As the Prime Minister said while introducing this Act in the parliament and I quote –
‘Although frankly, my Government does not care if the passengers on these boats pose
no threat to Australia’s national security. Nor do we care if these so-called protestors
are behaving in a completely peaceful fashion. They are still interfering with the lawful
and proper defence of Australia and its people. We will bring the full force of the law to
bear on this rabble, to ensure their efforts come to nothing. Any citizens misguided
enough to support these people, financially or politically, will be persuaded to see the
10 Passenger Transport Act 1990 (NSW), and attempted to justify his arrests on the basis of the Law
Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 100 – a section commonly known as the
citizen’s arrest power.
11 Wilkie v Commonwealth [2017] HCA 40
12 Wilson v Bauer Media Pty Ltd [2017] VSC 521
In hindsight there was no way that the Wilson case wouldn’t drop a bomb on defamation law in Australia.

error of their ways. There is an appallingly high, misplaced level of public support for
these trouble-makers, so we have appointed a number of new Federal Magistrates, who
stand ready to hear new criminal charges against these people.’ Unquote.
Conclusion & Recommendation
Under all circumstances, as a law abiding citizen, it is your duty to first think about your
country and then about the world. Considering all that has been brought to your notice
through this report, I would suggest that you refrain from any activity which harms the
interests of your country. As a nation, Australia is not against humanitarian welfare, but
our constitutional duty tells us that it should not be at the expense of our people.
BIBLIOGRAPHY
Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572
Badenach v Calvert (2016) 90 ALJR 610
Criminal Code (Qld), s 317(b)
Cunningham v Commonwealth (2016) 90 ALJR 1138
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 100
McAuliffe v The Queen (1995) 183 CLR 108
Miller v The Queen (2016) 90 ALJR 918
NH v Director of Public Prosecutions (SA) (2016) 90 ALJR 978
Passenger Transport Act 1990 (NSW)
R v Jogee [2016] 2 WLR 681.
Wilkie v Commonwealth [2017] HCA 40
Wilson v Bauer Media Pty Ltd [2017] VSC 521
Zaburoni v The Queen (2016) 256 CLR 482