Rather than adopt the government's label ‘illegal maritime arrivals’, we refer to this group of people as asylum seekers for the remainder of the article.
2.
Code of Behaviour for Subclass 050 Bridging (General) visa holders, established under the Migration Amendment (Bridging Visas – Code of Behaviour) Regulation 2013 (SLI 269 of 2013). The Code can be accessed at <https://www.border.gov.au/Forms/Documents/1443.pdf>.
3.
HageGhassan, Against Paranoid Nationalism: Searching for hope in a shrinking society (Pluto Press, 2003)
Commonwealth, Parliamentary Debates, Senate, 14 July 2014, 4860 (Sarah Hanson-Young).
8.
See Bridging Visa E (ClassWE), Condition 8564 (no criminal conduct); introduced by the Migration Amendment (Subclass 050 and Subclass 051 Visas) Regulation 2013.
See, eg, Australian Human Rights Commission, The Forgotten Children: National Inquiry into Children in Immigration Detention (2014).
13.
See Code of Behaviour, above n 2; and Explanatory Statement, above n 6.
14.
Explanatory Statement, above n 6.
15.
It is unclear, eg, whether an asylum seeker may be punished both under the criminal law and under the Code for the same conduct, or whether the principle of double jeopardy will apply to breaches of the Code. It is also unclear whether ‘evidence’ considered by the Department when determining breaches of the Code will be admissible in criminal proceedings.
16.
See, eg, ss 4 and 4A of the Summary Offences Act 1988 (NSW) (offensive behaviour and conduct); s 6 of the Summary Offences Act 2005 (Qld) (public nuisance). Similar provisions are found in every state and territory.
17.
See LennanJoanne, ‘The “Janus Faces” of Offensive Language Laws, 1970–2005’ (2006) 8University of Technology Sydney Law Review118; McNamaraLukeQuilterJulia, ‘Time to Define the Cornerstone of Public Order Legislation: The Elements of Offensive Conduct and Language under the Summary Offences Act 1988 (NSW)’ (2013) 36(2) UNSW Law Journal534.
18.
CunneenChris, Conflict, Politics and Crime: Aboriginal Communities and the Police (Allen and Unwin, 2001); WalshTamara, ‘Who is the ‘Public’ in a Public Space?’ (2004) 29(2) Alternative Law Journal81; WalshTamara, ‘Poverty, Police and the Offence of Public Nuisance’ (2008) 20(2) Bond Law Review7; WhiteRob, ‘Indigenous Young Australians, Criminal Justice and Offensive Language’ (2002) 5(1) Journal of Youth Studies21.
19.
Melser v Police (1967) NZLR 437, 444 per Turner J cited in Coleman v Power (2004) 220 CLR I per Gleeson CJ at [11].
20.
He Kaw Teh v R (1985) 157 CLR 523 per Brennan J (He Kaw Teh).
21.
‘The requirement of mens rea is at once a reflection of the purpose of the statute and a humane protection for persons who unwittingly engage in prohibited conduct’, He Kaw Teh, 567–8 per Brennan J.
22.
Woolmington v Director of Public Prosecutions [1935] UKHL I; article 14(2) of the ICC PR states that: ‘Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law’.
23.
The DIBP cited ‘legal professional privilege’ and ‘public interest’ under ss 42 and 47C of the Freedom of Information Act 1982 (Cth) as reasons for the refusal.
24.
This pertained to two Bridging Visa E (BVE) holders.
25.
Since the BVE conditions include discretionary grounds to consider visa cancellation where a BVE holder has been charged with or convicted of an offence in Australia or overseas.
26.
The DIBP also considered that imposition of a sanction did not appear appropriate or likely to have a positive impact on the BVE holder's behaviour. We note that despite the absence of procedural guidelines for determining breaches of the Code, this determination evinces consideration both of the asylum seeker's mental health, as well as their lack of legal capacity to commit a breach due to mental illness.
