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Towards more just, workable and decent policies

The European Union is now trying to formulate common standards and a unified approach to the processing of asylum applications. In Europe, they do not have the luxury of going it alone because "Methods that deter access to a national territory merely shift the burden from one country to another." It is very unneighbourly behaviour. Everywhere, governments of first world countries are under pressure from the asylum seekers and their electors as they strive to find the balance between the protection of borders and the protection of the asylum seekers who, like the poor, are with us always. But this is why it is so important that we Australians address our own fears rationally and ensure that we act decently.

The Europeans and Americans will not be copying us because our solution could only be designed by an island continent nation at the end of the earth that does not have much of a problem. Australia has designed a large sledge hammer for a small nut. It is a hammer which would wreak havoc in those countries with significant asylum seeker populations. It requires geographic isolation, mendicant island neighbours, and a compliant, unaccountable police force next door. It also requires plenty of space and a politicised public who will not be perturbed to learn that, in some cases, minors have been kept in detention for 1998 days before being granted a visa.

Compared with the European numbers, ours is a small nut to crack. Is that any reason for us to use a large sledge hammer which would inflict untold damage if used in other places? Our policy can be posited only on one of two options.

Either we want to be so indecent that no other country will dare to imitate us and so we will maintain the advantage that asylum seekers will want to try anywhere but here. Or we want to lead other countries to a new lowest common denominator in indecency losing the short term comparative "border protection" advantage but being seen to be world leaders in greater stringency towards asylum seekers, triggering another round of competitive tightening or at the very least leaving bona fide asylum seekers more vulnerable in the non-existent queues.

Uniya commends the government for its stated objective: "to resettle some 12,000 persons each year who are in greatest need and to prioritise those who are in need of assistance - those who are at risk if they remain where they are and have no other means of escape other than resettlement to a third country." Some of those persons in greatest need have come to Australia by boat without a visa and we have treated them appallingly. There is no reason why the government objective cannot be achieved together with the objective of treating asylum seekers within our territory firmly but decently. The immorality and inequity in world burden sharing resulting from our present "slam the back door" policy is highlighted by a simple thought experiment. Imagine that every country signed the Refugee Convention and then adopted the Australian policy. No refugee would be able to flee from their country of persecution without first joining the mythical queue in their country of persecution to apply for a protection visa. If anyone dared to flee persecution, they would immediately be held in detention (probably for a year or so) awaiting a determination of their claim. All refugees in the world would be condemned to remain subject to persecution or to proceed straight to open-ended, judicially unreviewable detention. The purpose of the Refugee Convention would be completely thwarted. The myopic argument runs that we Australians are able to implement the mandatory detention policy because other countries have not (yet) adopted our policies and because we are prepared to take 12,000 applicants through the front door provided they stay in the queue back in the country of persecution or first asylum.

If detention is to remain a cornerstone of Australian border protection and front door immigration entry, there is a need for alternative arrangements to render the present detention policy more humane and effective. Given the modesty of the problem confronting Australia, we would do well to ensure compliance with the standards set by other countries receiving far more asylum seekers across porous borders than we ever have. Consider the following three simple questions:

  • Given that we have the advantage of geographic isolation, why don't we try to be just a little more decent rather than less decent than other countries with the same living standards when it comes to our treatment of those who arrive (whether with or without a visa) invoking our protection obligations?
  • Or if that is judged too naive, how about we aim to be just as decent as those who receive ten times more asylum seekers than we do?
  • Or if that is too much to ask (given the fear driven mandate of the recent election), how about we limit our indecency to our treatment of adults, ensuring that never again are kids put in the line of batons and tear gas in the name of border protection, as they were at Woomera this last Easter?

While we await the European reviews of law and policy next year, our politicians should be urged to make these immediate corrections to our own law and policy:

1. Those claiming to be asylum seekers inside our territorial waters should be escorted to Christmas Island for processing by navy personnel who place the highest importance on the safety of life at sea and who always respond to those in distress.

The new $219 million purpose built Christmas Island facility would be a sensible place to detain those coming by boat without valid travel documents but only for a limited time (say 14 days) to establish health, security and identity issues. Thereafter any asylum seekers whose claims are not manifestly unfounded should be transferred to the mainland and housed in processing centres which are located in places suited to the processing of claims and to the delivery of services. Additional detention should be permitted only if the asylum applicant had the opportunity to apply to a court for bail. If parents are to be kept in detention, they should have the option of handing their accompanying children to the other parent or close relatives who have visas to reside in Australia. They should also be able to enlist the services of the State child care agencies to arrange parent-approved fostering for the length of detention should that be their wish.

There should be resident child protection officers at Christmas Island. No child should be treated as a security risk.

2. Those who have passed these checks and not been screened out as bogus claimants should be moved to the Baxter reception and processing centre which should be conducted for reception and processing rather than for deterrence and punishment. Better still, they could be moved to one of the urban centres such as Villawood with provision for day release. Any person absconding would forfeit the entitlement to future day release. Curtin, Port Hedland and Woomera should be closed. Alternative detention arrangements outside Baxter should be set up in Port Augusta and/or in the large vacant Whyalla housing stock where many in the local community are anxious to welcome newcomers. Alternative detention should be available to any person for whom a primary decision is still pending after four months or an RRT decision after two months of lodgement.

3. There should be regular State services on hand at reception and processing centres, especially police and Childrens services. The State governments should be adequately resourced and free to deliver professional services without political interference from Canberra.

If children are to be held in detention with their parents, they should be held in facilities where there is ready access to State Children's Services and the policy parameters of their detention should be sufficiently humane to win the support of both the Federal and State governments, regardless of which party is in power.

4. There should be an independent guardian for unaccompanied minors who can exercise the powers of guardian without the conflict of interest and artifices which surround the present guardianship arrangements. We must avoid the farcical situations such as the guardian offering his ward a financial incentive to return to a war zone because the guardian has a vested interest in having the child leave the territory.

5. The influences on primary decision makers which lead them into regular error in the assessment of Iraqi and Afghan claims should be investigated and removed.

6. RRT members should be given sufficient security of tenure, if need be after an initial probation period during which time their decisions would be automatically reviewed by senior members, to ensure the integrity of their decision making process immune from improper ministerial and departmental influence.

7. Once asylum seekers are found to be refugees, they should have the same rights as all other refugees regardless of whether they arrived by plane or boat, with or without a visa. In particular, they should have the same rights of international travel and of family reunion as specifically provided in Article 28 of the Convention on Refugees of which Australia is unquestionably in breach.. By denying these rights to some, we encourage women and children to risk hazardous voyages and we demean those refugees living in our community wanting to get on with their lives without remaining disconnected from their families. Family reunion is not a "convention plus" outcome as the Minister likes to describe it; it is a basic human right. We have 60,000 overstayers a year who arrived with visas. Most of them are far more able to escape detection in the community than the handful of unauthorised boat arrivals each year. Once again this discrimination is only for the purpose of deterrence, wreaking too much devastation in the uncertain lives of those who now have every entitlement to be living in our midst.

8. A temporary protection visa should be made permanent if our protection obligations are still invoked three years later.

9. Australia should maintain a commitment to at least 12,000 off-shore refugee and humanitarian places each year in our migration program regardless of the number of successful on-shore applications for refugee status we receive. There is no reason to think that our on-shore caseload will increase exponentially given the improved regional arrangements and the tighter controls within Australian territory.

10. Australia should abolish the Pacific solution.

11. If the High Court upholds the validity of the privative clause, we should abolish the concept of a distinct Australian migration zone given that our processing and appeal system would be sufficiently streamlined to process all comers. The AFP has already warned that the excision of further islands from our migration zone may " deflect illegal immigrants to regional centres with better infrastructure".

12.-Given the Federal Court's decisions in the Al Masri and Al Khafaji cases, the government should move promptly to release all those persons in similar circumstances.

by Frank Brennan SJ AO.