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Problems with Australia's Mandatory Detention Policy

There are seven key problems with Australia's mandatory detention policy.

1. Dubious legality

The legality of the policy is doubtful and the majority of those who are adversely affected by the policy are the very people Australia has voluntarily agreed to provide real protection under the Refugee Convention.

Uniya agrees with Mr Ruddock that:

The length of the period of detention should not be considered in the abstract but must be considered alongside the reasons for detention (that is to ensure that unlawful non-citizens are available for processing, to allow identity, security and health checks to be made and to ensure availability for removal if they are not owed protection).

The Australian mandatory detention policy goes further than this. It is the extent to which the policy that goes further than this which is of doubtful legality.

Consistent with the High Court's decision in the Lim Case ten years ago, detention of all persons, including children, should be restricted to migration purposes and should take place in locations which are well suited to the purpose of detention, especially the efficient processing of visa applications. Deterrence in the desert is the big lie in the government's policy.

The Australian government is right to reject alternatives which would permit detention of unaccompanied adults and mandate the release of family groups with children. Such a policy would only encourage parents to put children to sea on these dangerous voyages.

2. The policy penalises refugees

Asylum seekers should not be penalised for entering or remaining in Australia illegally. This is not morally justifiable. Nor is it consistent with Australia's obligations under the Refugee Convention. As has been recognised recently by a Federal Court judge:

The Refugees Convention is a part of conventional international law that has been given legislative effect in Australia. It has always been fundamental to the operation of the Refugees Convention that many applicants for refugee status will, of necessity, have left their countries of nationality unlawfully and therefore, of necessity, will have entered the country in which they seek asylum unlawfully. Jews seeking refuge from war-torn Europe, Tutsis seeking refuge from Rwanda, Kurds seeking refuge from Iraq, Hazaras seeking refuge from the Taliban in Afghanistan and many others, may also be called "unlawful non-citizens" in the countries in which they seek asylum. Such a description, however, conceals, rather than reveals, their lawful entitlement under conventional international law since the early 1950's (which has been enacted into Australian law) to claim refugee status as persons who are "unlawfully" in the country in which the asylum application is made.

3.Australia's form of detention does not assist in processing claims

The government justifies detention in part because it helps with the processing of claims.

Whereas previously our mainland detention centres were primarily processing centres for those with a real expectation of release on a visa, at the moment they are centres primarily for holding those denied a visa, waiting to go home voluntarily or by force. The deterrence aspect of these facilities is highlighted by the realisation that none of these persons is eligible for transfer to Villawood or Maribyrnong where they might have access to visitors and be spared the horrendous heat and winds of the three select venues.

Every fairminded person including the government's own Immigration Detention Advisory Group thinks that Woomera should have closed long ago. There are less than 130 detainees now in that facility. It is a hell-hole, dehumanising for the detainees and the workers alike. But it is our twenty-first century Port Arthur. Its deterrent value to government is enormous. It is the jewel in the crown of desert detention. There is no other policy reason for keeping it open. There is no sensible financial reason for keeping it open. It is far removed from state services such as children's services and police. It is too isolated a place for public servants and tribunals comfortably and efficiently to process claims for refugee status.

DIMIA sees an ongoing use for Woomera because this ensures that "we have a network of centres in order to best manage the diversity of the detainee caseload. Retaining the Woomera IRPC also makes possible the operation of the alternative housing project for women and children in the Woomera township." But let's face it: Woomera's main purpose now is to emit a double signal to would-be asylum seekers and to fear-filled voters. Dispersing the 130 Woomera detainees to other places would deprive government a precious transmitter. With the opening of the new Baxter detention facility, the government now has 2,000 beds available in other detention facilities and yet, given that no boats have reached the Australian mainland for more than a year, there are only 550 in detention on mainland Australia.

The Australian detention regime is now split between the mainland and the Pacific solution venues. On the mainland, there are three reception centres where unlawful non-citizens are detained: Woomera and Baxter in South Australia and Port Hedland in Western Australia. They are all run by ACM under contract to DIMIA. The contractual arrangement, the appointment of senior DIMIA staff to outside consultancies and the Pacific solution are key elements in removing the process from judicial, parliamentary and public scrutiny.

Off-shore processing is done in the hope that it will be spared judicial review by the High Court. Consultants and ACM staff unlike public servants cannot readily be compelled to give evidence to parliamentary committees. These reception centres previously held a majority of detainees who were awaiting a decision from the primary decision maker or the Refugee Review Tribunal. If the applicants were Afghan or Iraqi they had a very good chance of success.

Detention in an accessible place and in a more work friendly environment might help with processing. The detention regime contributes to and helps to disguise the uneven performance of our decision makers especially when it comes to the Iraqis and Afghans who have been applying for protection this last year.

Most of the Afghans and Iraqis held in these desert camps have been proved to be refugees with every right to be integrated into the Australian community.

During the last financial year (1 July 2001 - 30 June 2002), the Refugee Review Tribunal (RRT) set aside 62% of all Afghan decisions appealed and 87% of all Iraqi decisions appealed. This means that Afghan asylum seekers got it right 62% of the time when they claimed that the departmental decision makers got it wrong. And the public servants got it wrong 87% of the times that the Iraqi applicants claim to have been mistakenly assessed.

Meanwhile the RRT set aside only 7.9% of decisions appealed by members of other ethnic groups. Even more disturbing than these comparisons is the statistic that in the last financial year, the RRT finalised 855 detention cases of which 377 were set aside. This is a 44% set aside rate in detention cases. 82% of all Afghan and Iraqi applicants were found to be refugees by the primary decision makers (7,330 out of 8,965 applicants) over the last three years. Nonetheless it is concerning that the primary decision makers get it wrong so often when they reject any Afghan or Iraqi claim.

4. Offering discriminatory visa conditions

In the months ahead, the government will be tempted to return to detention those TPV holders whose visas have now expired and whose renewed asylum claims will be rejected because of changed circumstances especially in Afghanistan. If the government sees through such a policy, these detention centres will become even more gross centres of despair - removal centres in the middle of the desert inhabited by Afghans who have no assurance that the changes back home are substantial, effective and durable, making it safe for them to return. Given that these applicants were found to be refugees three years ago, it must be conceded that if they had entered Australia on (say) a student visa, they would have been eligible for a permanent protection visa three years ago.

Surely it is fairer that they continue to be treated as refugees (whatever the minutiae of our visa requirements) until the government can genuinely be satisfied of a change of conditions in Afghanistan warranting the invocation of the Cessation Clause (Article 1C) of the Refugee Convention. If the government is to insist that the 4,000 Afghan and Iraqi TPV holders whose visas come up for reassessment in the next nine months prove again that they are refugees, it is imperative that the applicants once again be provided with at least the same level of legal assistance they were provided at the time of their initial applications. Three years ago, it was easy for an Hazara to prove persecution under the Taliban regime. This does not mean that such an applicant might not face other persecution if returning home now. To establish such a claim would require painstaking research, especially given the applicant's three or four year absence from home. Also there are the complex questions whether the applicant is now eligible for a permanent or temporary visa depending on whether he or she was continuously resident in a place where UNHCR or country protection could have been invoked.

To date the mandatory detention regime has been acceptable to the Australian public because the detainees were so "other", so faceless and so unknown. It is an altogether different matter for government to march off young Afghans from the abattoirs where they have been working and from the soccer pitches on which they have triumphed these last three years back to the desert Gulag - all in the name of border protection when only one boat person has reached land without a visa this last year.

The regime has also been acceptable because the government has been prepared to allow the harshest manifestations of the policy to be mitigated by the issue of bridging visas to unaccompanied minors and by the legal fiction of ongoing detention for some young persons in the company of a carer in a capital city. But the cost to these young people has been the arbitrary deprivation of liberty, curtailing their capacity to catch public transport to school or even to attend a school or course of their choice. If the government were concerned for the well-being of these Afghan unaccompanied minors in our midst, rather than simply offering them a cash payment to return home, why not attend to their real concern. Most of them have written numerous letters home but received no reply. Why does the government not send one of its officers together with a person trusted by the unaccompanied minors to seek out their families and to bring back news so that the minors might make an informed choice whether to return? And if this service can be provided for unaccompanied minors, why not for other Afghans whom the government wishes to depart our shores?

5. Removal of detainees

The situation in our mainland detention centres could become more despairing given the fact that the majority of the detainees have now exhausted all appeals and are awaiting removal. Some will go voluntarily; others will not. The government may eventually be able to force some to leave. But there is no way they can force the Afghans or Iraqis to leave. Recently the UNHCR and the Afghan government have reached agreements with the British and French governments. According to UNHCR, "The emphasis is on voluntary repatriation, although the agreements also recognise that Afghans who are not recognised as refugees and who are without current protection needs or other humanitarian concerns, can legitimately be returned 'in a closely co-ordinated, phased and humane' process after the end of winter." The Afghan Minister for Refugees, Enayetullah Nazeri, has been pleading that Europe and other countries not send back more refugees now just before their winter. They are struggling to absorb the 1.6 million who have returned from Pakistan and Iran. Meanwhile the UN is appealing for $US64 m for food for the winter.

Our government continues to give detained Iraqis a choice between ongoing detention and return to the border of Iraq. This is an unconscionable choice which could be formulated only by those wanting to clear the Canberra books at all costs. Any Iraqi who is not a security risk should now be released into the Australian community until the threat of bombing by us has passed or until the dust from the bombs has settled. To give Iraqis who fled the Hussein regime a choice between Australian detention at Woomera or Australian bombing at home is an obscenity.

If we continue to detain Afghans, Iraqis and Iranians without any hope of their being released in to the community, we will be transforming these processing centres into punitive jails which labour under insuperable institutional defects. There is no regime of carrots and sticks to ensure good behaviour. The well behaved rejectee cannot be promised early release. The misbehaving rejectee cannot be threatened with the loss of privileges or visa. The ACM staff are very demoralised, most junior staff now being on short term contracts awaiting the result of the new tender process. The stress levels among staff at Woomera and Port Hedland have been very high of late.

It is very misleading of the government to continue telling the public that "Detainees who have failed to engage Australia's protection obligations can bring their detention to an end by choosing to leave Australia and by cooperating in removal arrangements."

The Palestinians in Woomera have been very co-operative and are desperate to leave Australia if we are not prepared to permit them and their families residence rather than detention.

The Minister's statement is equally misleading in relation to the increasing number of Iraqis who cannot return home. Their ongoing detention on the eve of war to which we will be party is not "reasonably capable of being seen as necessary for the purposes of deportation" (Lim's case).

Despite Mr Ruddock's "detailed rebuttals" of the UN report, there is an increasing caseload of detainees who have been rejected and cannot be moved, this being no fault of theirs. Furthermore, the detention of some applicants has been lengthened by the government's decision to appeal to the full Federal Court decisions which have been favourable to asylum seekers.

Justice Merkel and Justice Mansfield have recently ruled (in separate decisions) that the detention of a Palestinian applicant and an Iraqi applicant (respectively) is unlawful and unconstitutional as the removal of the relevant applicants was not reasonably practicable, in the sense that in the particular circumstances there is no real likelihood or prospect of remove in the reasonably foreseeable future.

6. The Legal and Political Impossibility of Protecting Children in Detention

Though Minister Ruddock has had carriage of the portfolio for six years detaining children with regret, he has not yet concluded a satisfactory memorandum of understanding with any State government for the care of children in the mainland reception centres. He has not finalised any document with any Western Australian government regardless of its political persuasion. He had signed an agreement with the previous Liberal government in South Australia. But Labor Premier Mike Rann has made clear that it is not worth the paper it is written on when it comes to the interests of children.

Detention of children in the desert, far removed from regular State children's services and in a political hothouse where there is no agreement between State and Federal governments for the delivery of children's services is a recipe for institutionalised child abuse.

7. Resettlement of refugees from Pacific centres

Meanwhile 200 refugees have been resettled in Australia after enduring the added trauma of detention in Nauru and Manus Island where there are still another 1,000 detainees, 300 of whom have been found to be refugees. They must wait longer in detention while countries including Australia decide whether to accept them for resettlement.

by Frank Brennan SJ AO.