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Refugees and Mandatory Detention: What Australians Don't Know

Sydney Institute
Museum of Sydney Theatrette
16 October 2002

Fr Frank Brennan SJ AO

1. Border Protection , the Protection of Those Refugees Still in Direct Flight, and the Deterrence of those Refugees Engaged in Secondary Movement

In democracies governed in accordance with the rule of law, persons during peace time are deprived of their liberty by means of State-authorised detention ordinarily only by order of a court and such detention is usually subject to ongoing judicial supervision. One exception is migration detention: whether it be preventing unauthorised entry into the territory, detaining the person for the purpose of establishing identity or of determining that the person is not a health or security risk, or holding the person for removal from the territory. In these circumstances, governments can authorise detention without the need for court action.

Countries which have signed the Refugee Convention are entitled to maintain the integrity of their borders but Article 21 stipulates that they "shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence."

Even though most of the asylum seekers who arrived by boat in Australian territory these last few years have proved to be refugees, the government argues that they have not come directly from a territory where their life or freedom was threatened. In the government's opinion, most (if not all) the refugees have had protection available to them in some other place en route. They continued their journey not for protection but for a migration outcome, seeking a better life in Australia. The government therefore claims that it is entitled to impose penalties such as detention and the provision of a visa with restrictive and discriminatory provisions given that everyone is presumed to have spent at least seven days in a country where protection was available. Last week the government issued a series of papers prepared as a contribution to the UNHCR's Expert Roundtable Series. In the paper on Article 31, DIMIA states:

There is no Australian jurisprudence specifically on the phrase "coming directly from" in Article 31(1).

In the view of the Australian Government, a person to whom Australia owes protection will fall outside the scope of Article 31(1) if he or she spent more than a short period of time in a third country whilst travelling between the country of persecution and Australia, and settled there in safety or was otherwise accorded protection, or there was no good reason why they could not have sought and obtained effective protection there. What amounts to a short period of time will depend ultimately on the facts of a particular case.

But this has not deterred the government from arbitrarily setting seven days residence in a country as the cut-off for access to a permanent protection visa, even if protection could have been sought only through the offices of UNHCR in that country. Does this mean that any refugee who has spent a week en route in Indonesia waiting for a boat to Australia can be penalised and denied a permanent protection visa because they could have gone to Jakarta and joined the queue at the UNHCR office rather than awaiting a boat in precarious circumstances? Given that Indonesia is not a signatory to the Convention and given that the country is not governed by the rule of law, how can it credibly be argued that boat people should stop their journey in Indonesia and enjoy sufficient protection? Mr Robert Illingworth, Assistant Secretary of DIMIA for Onshore Protection has told the Senate committee:

With the agreement of the Indonesian authorities, the UNHCR operates in Indonesia to identify people in need of protection. As a general principle, the UNHCR is not involved in directly providing physical protection to refugees. &The UNHCR can mandate an individual, but in most cases the UNHCR &given that there are 12 million refugees in the world, is not in a position to provide physical protection in the face of somebody intent on persecuting them or refouling them. It relies heavily on the cooperation of states.

What about the Afghan Hazaras who were kept away from the UNHCR queue by the Pashtun Pakistanis? How does one prove or disprove access to appropriate protection through the offices of UNHCR?

Australia's unilateral attempts to design punitive deterrents to secondary movement have not been welcomed by UNHCR. UNHCR's chief Ruud Lubbers has told the European Union Justice and Home Affairs Council:

A major concern today is the issue of secondary movements of refugees and asylum seekers. I am convinced that the international community needs new agreements to deal with cross-cutting issues such as this. These new agreements would supplement the Convention and form part of multilateral frameworks for protecting refugees and achieving durable solutions, primarily in regions of origin.

I hope it is not too late for the Australian government to heed Mr Lubbers, caution: "The current trend towards more unilateralism is adding to the confusion, and needs to be reversed. It can be." Those who have suffered most as a result of Australia's unilateral action have overwhelmingly been found to be refugees and no security threat at all. Over the last three years, ASIO, the government's security organisation, had checked 5,986 unauthorised arrivals to assess whether or not they constituted a direct or indirect threat to Australia and found that not one of those persons constituted such a threat. It is in the interests of the refugees of the world that we address the problems of secondary movement and 9-11 heeding the warning of Mr Lubbers that we "build an effective system of international burden sharing, where governments are discouraged from taking unilateral and punitive action, and where refugees are able to rely on adequate protection and assistance within their regions of origin. For to take punitive action is to shoot oneself in the foot. It is not effective, and it only worsens the climate between North and South."

The matter is more complex than Mr Paddy McGuinness would have it in his most recent Quadrant editorial where he says, "There is in fact no argument about the right of refugees, as defined in the 1951 Convention, to arrive without authorisation and claim asylum in the first country at which they arrive. Few such people actually arrive in Australia and claim asylum." He then proposes that all other refugees are false refugees for the purposes of the Convention, and therefore not deserving of compassionate entrance. But what about those refugees who set out on their journey, not especially seeking an Australian lifestyle, but seeking real protection for themselves and their family, being of the view that Australia is the first port of call on the only journey available to them where they think there is the prospect of real protection? Many Afghan and Iraqi asylum seekers have told me that they would have gone to Europe if they could afford it. Australia happened to be the cheapest available destination offering the prospect of real protection. Many of them knew little or nothing about Australia other than the smuggler's assurance that protection was guaranteed. Mr McGuinness thinks that all refugees are obligated to seek protection "in the first possible country". In recent times, Afghans and Iraqis have gone to any safe country they can find. It is not as if they have set their sights especially on Australia. Like the Jews after World War II, they should be accorded some latitude in finding asylum even if there be a country closer to their home country where some other refugees from their country could have found protection. It is wrong for government to design a punitive deterrent policy based on the simplistic McGuinness presumption that few if any refugees reaching Australia could be seeking real protection at the first available port of call. In times of crisis, Australia like all countries which can offer real protection should be expected to pull its weight in offering proper assessment and protection to those who come seeking asylum. We should not go it alone in designing more punitive means for deterring asylum seekers thereby punishing true refugees as much as the handful of undoubted secondary moving economic migrants.

2. The Legal and Constitutional Limits of Detention

In Lim's case in 1992 the Australian High Court set the constitutional limits for government acting unilaterally to detain persons under the immigration power, without recourse to the courts. Those limits are less restrictive than the European Convention on Human Rights which authorises detention in migration cases without court order only in limited circumstances. Deprivation of liberty is authorised for "the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition." Once a person has effected an unlawful entry he cannot be detained for a substantial period except on court order or while awaiting deportation. Long term detention without judicial order or supervision for the purpose or processing asylum claims is just not on in Europe. Here in Australia in Lim, three of the High Court judges observed that migration detention laws would be valid:

if the detention which they require and authorise is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered. On the other hand, if the detention which those sections require and authorise is not so limited, the authority which they purportedly confer upon the Executive cannot properly be seen as an incident of the executive powers to exclude, admit and deport an alien. In that event, they will be of a punitive nature and contravene Chapter III's insistence that the judicial power of the Commonwealth be vested exclusively in the courts which it designates.

It is these observations of the High Court which explain the tenor of the Mr. Ruddock's oft repeated remarks that "Detention is not arbitrary. It is humane and is not designed to be punitive." These ministerial comments about deterrence and the non-punitive intent of the detention are related to the constitutional doubts about the validity of legislation authorising administrative detention of persons without access to the courts when their detention is neither relevant nor incidental to the processing of their applications for an entry permit and when the detention is neither relevant nor incidental to their removal or deportation in the foreseeable future.

Both sides of Australian politics in the national parliament have supported law and policy which authorises detention of asylum seekers not just for the determination of health, security and identity issues at the commencement of the asylum process and at the end of an unsuccessful claim, awaiting deportation but detention from the moment of unauthorised entry until departure or issue of a visa. Despite the protestations of the minister, mandatory detention in places such as Woomera is an integral part of the government's deterrent regime designed to punish those who come to our shores or who enter our territorial waters without our permission.

The government has expressed strong criticism of Justice Bhagwati's UN report of "Human Rights and Immigration Detention in Australia" which concludes that

From a human rights point of view, the detention of children in the context of immigration procedures is certainly contrary to international standards

Mr Ruddock has published his "Detailed Rebuttals" to the Report of the UN Human Rights Commissioner's Envoy into Human Rights and Immigration Detention. I agree with him 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)."

It was no part of Bhagwati's brief to determine whether the Australian regime amounted to arbitrary detention. That was decided back in 1997 when the UN Human Rights Committee (of which he was a member) ruled on a complaint by a Cambodian detainee ("Mr A") under the first optional protocol of the International Covenant on Civil and Political Rights. In those days there was still a 273 day limit on detention and in that case there was no problem about the applicant being able to return to his home country should he have so wished. The decision was disregarded by Australian politicians on the basis that it was simply the opinion of an international committee.

Last year, the Court of Appeal in the United Kingdom quoted the UN's decision on the mandatory nature of the Australian detention regime and went on to state its unanimously held belief "that most right thinking people would find it objectionable that such persons should be detained for a period of any significant length of time while their applications are considered, unless there is risk of their absconding or committing other misbehaviour."

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. 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, causing the minister to trip up on the use of the word "deterrence".

3. The Government Rationale for Mandatory Detention

The government gives four reasons for mandatory detention of unlawful non-citizens seeking asylum:

1. Saving lives - the government's leaflet distributed in Indonesia reads:

If you get on a boat in Indonesia you will:

  • Expose yourself and your family to great danger
  • Lose your money
  • Fail in your objective to get to Australia

The boats used by people smugglers are overcrowded and dangerous. Too many people have died trying to enter Australia by boat.

Stop. Go back. Don't get further into the trap.'

Unfortunately we Australians and our parliament are being kept in the dark about the arrangements our governmetn has made with the Indonesian authorities for what is felicitiouly described as "upstream disruption". The sinking of SIEVX is yet to be fully explained. Because we changed our policy denying women and children the right to family reunion once their fathers and husbands had established a refugee cliam in Australia we have had more women and children making the hazardous boat journey, risking their lives.

2. Saving spaces - the Government has decided to tie the number of off-shore humanitarian places to the number of on-shore asylum claims each year. There is no particular moral logic to this linkage. For example it would be unthinkable in the United States that they would link the onshore claims of asylees to the 70,000 places for resettlement of off-shore refugees each year. In the US, there are 50-60,000 on-shore asylum applications instituted voluntarily each year by applicants who come forward and make an affirmative application. 60% of those are granted even before the applicant appeals to the Board of Immigration Appeals. They are not held in detention. The only ones held in detention at this stage are those who are held for expedited removal on arrival at ports of entry, it being decided that they do not have credible fear and their claim is manifestly unfounded. In the US, it is accepted that the nation state has two discrete functions to perform: process the legitimate on shore asylum claims and offer resettlement to a pre-set quota of off-shore refugees. That is the way we used to do it before the Howard government created this new moral calculus for "saving spaces". It is time to once again break the nexus. Incidentally there is a major crisis of immigration detention in the US at the moment. But it does not relate to unprocessed asylum seekers but rather to long term residents who never took out citizenship and who now are being detained and deported in their thousands following convictions for criminal offences pursuant to the broad provisions passed by Congress in 1996. 60% of those in immigration detention are held in county jails because there are not sufficient INS facilities to accommodate the overflow of detainees.

Our government's logic on this nexus between offshore refugees and onshore asylum seekers becomes more strained when it is appreciated that most of the onshore asylum seekers obtain only a temporary protection visa. So how can they be said to be taking someone else's place. If the government has its way, many of them will be leaving our shores permanently within three years. Only 348 of the 13,475 boat people to have arrived in the last 13 years have obtained a permanent visa. 7957 of them are still on temporary protection visas.

3. Giving preference to off shore refugees and humanitarian cases in greatest need over on shore asylum seekers who are seeking a migration outcome in Australia, having had the opportunity to find asylum elsewhere. But many of the 4,000 off shore refugees we take each year are chosen from the pile (rather than the queue) on the basis that they have good qualifications and are judged to be good migrant prospects for Australia. And those who come under the Special Humanitarian program must have some link with Australia, being formally proposed by an Australian citizen or some organisation which is active in Australia.


4. Eliminating the problem of overstayers - On average, we have received about 1,000 boat people a year for the last 14 years. Prior to Tampa, there was a new peak of 4,000 a year. Most of them were found to be refugees. If applicants had been released in to the community after health, security and identity issues had been resolved there may have been a small group of overstayers. But we do have 60,000 other overstayers a year. Detention of all boat people, especially when most of them have been proved to be refugees is excessive and discriminatory given the small percentage they would have added to the group of overstayers.



4. Mandatory Detention: One Ingredient of the Australian Recipe for Border Control

Mandatory detention is one element for the achievement of these goals. The other elements include:

  • Asking (and providing payment in kind for) Indonesian authorities to engage in disruption activities, not ruling out activities which we would not expect our own AFP to perform and which we would not expect to be scrutinised by the Australian or Indonesian parliaments.
  • Asking the Australian Navy to deter unauthorised boats from entering our territorial waters. This has included our navy personnel firing shots 50-100 feet in front of overcrowded wooden boats in the middle of the night. The navy's task became more manageable following the loss of all lives on SIEV X which went down in international waters within the surveillance area of Operation Relex.
  • Granting only a three year temporary protection visa to the refugees who establish their claim, denying them the right of family reunion or the right to travel overseas and return.
  • Granting only a renewed three year protection visa subject to the same limitations rather than a permanent visa to those who establish that they are still refugees in need of protection three years later if they had ever resided for a continuous period of at least 7 days in a country in which the applicant could have sought and obtained effective protection of the country or through the offices of UNHCR located in that country.
  • Implementing the Pacific Solution with the excision of Christmas Island and Ashmore Reef from the migration zone and the detention of asylum seekers in Nauru and Manus Island (contrary to their Constitutions) and in the case of Nauru, without access to lawyers (who were constantly denied visas) and without ICRC's tracing services being available.
  • Immunising government decisions from court review with the attempted enactment of a comprehensive privative clause.

Despite claims to the contrary by the government, this uniquely Australian solution has no appeal in Europe. In the UK, they are perturbed by the number of asylum applicants coming unlawfully through the chunnel. But it is just not possible to expect the French police to engage in what our own Minister for Justice felicitously describes as "upstream disruption" activities without detection by either Parliament. There is no possibility of firing shots at people trying to deter their entry. The British express a delightful surprise that Australians of all people would be engaged in a Pacific solution, shipping their unwanted human flotsam to remote islands. That colonial practice was abandoned a couple of centuries ago. With 51,500 onshore asylum applications being made in the UK in the first six months of this year (as compared with 3,284 in Australia), it is just not practicable to lock up those who are not lawful entrants. And countries like the US and the EU do not have the same obsession as we do with granting an electronic travel authority or visa to all comers to their territory. In a globalised world, they have better things to do with their time and resources. The Germans, sharing land boundaries with nine countries would see little point in attempting a comprehensive registration of border crossings. The European Convention on Human Rights precludes mandatory detention for asylum seekers. The French and German constitutions even guarantee the right of asylum.

With a comprehensive visa regime, we Australians have taken to classing asylum seekers as unlawful non-citizens but this domestic classification overlooks the international law and reality nicely highlighted by Justice Merkel in the recent case of the Palestinian Al Masri who was ordered released from detention because, in accordance with Lim's case, the government had no real likelihood of deporting Al Masri back to the Gaza Strip once he had exhausted all claims to asylum and once he had asked to be returned home. Justice Merkel said:

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.

On a Friday evening more than a week before the Commonwealth was in a position to return Al Masri to the Gaza Strip, police were instructed to detain him once again, necessitating the Federal Court to sit again on a Saturday morning to order once again his ongoing liberty under habeas corpus. This government action under cover of night which was a flagrant discourtesy (if not contempt) of the court highlights the present Executive obsession in Australia with keeping unlawful non-entrants under lock and key, away from the watchful gaze of the judiciary. Incidentally the Al Masri decision should be good news for all Palestinians and Iraqis in detention who have exhausted all applications for asylum and asked to be returned home rather than being held in detention.

5. The European Experience

(a) UK

In the UK, there have been increased efforts to remove failed asylum seekers who have no lawful right to remain. The Home Secretary was hoping to remove up to 30,000 such persons a year. That has not been possible. And no one knows the number of overstayers there are in the UK. There are about 480,000 new settlers who move to the UK each year and up to 300,000 permanent departures. The UK government is committed to building removal centres with 4,000 detention places - but these would not be places for persons still pursuing asylum claims. They would be places for persons who have run the asylum gauntlet and who have not only failed to obtain asylum. They have also failed to obtain "exceptional leave to remain" (ELR) which is extended to persons on humanitarian grounds even though they cannot establish that they are refugees. In 2000, the UK authorities on average took 15 months to decide an on shore asylum claim. 70% of those were refused; 14% were found to be refugees and a further 16% (11,495) were given ELR status. The Home Secretary has announced his intention to amend the process for ELR because it has blown out from 10 to 25% of the caseload in the last five years. But countries such as Germany with their duldung status (tolerated status for one who would face cruel and degrading treatment back home contrary to the ECHR Article 3) and the UK with ELR accept the need to grant temporary residence on humanitarian grounds to persons who though not strictly refugees are nonetheless not in a position to return home safely. In Australia we have become obsessed with determining whether someone without a visa is a refugee in the strict sense or not. If they are not, we rarely countenance their remaining in Australia whatever the horror they will face back home. The handful who get to remain in Australia can do so only if they enjoy the non-enforceable, non-reviewable discretion of the Minister, this discretion being the only means for ensuring Australia's compliance with the Convention Against Torture and the International Covenant on Civil and Political Rights which provides that no one shall be subjected to cruel, inhuman or degrading treatment or punishment.

In the UK, most asylum seekers are first of all put up in hostels and other reception centres at the port or in London for the first eight weeks where they are free to come and go. The centres provide meals and the asylum seekers are given vouchers. They are then dispersed throughout the country if they are unable to provide for their own accommodation. NASS (National Asylum Support Service) officials make arrangements for their accommodation with local authorities, voluntary organisations and accommodation providers. At the moment, access to the labour market is permitted after six months, but the government is threatening to take away that right in its largely symbolic attempts to get tough on asylum seekers. The Home Secretary, Mr. David Blunkett has recently told the Home Affairs Select Committee:

(The right to work after six months) was an incentive for people not to want an early decision. Secondly, it sent all the wrong signals apropos what happens in other European countries. I do not think we should under-estimate the critical importance of signals that are sent. With countries now evaluating their own policies, we can see and we can track the change in direction of particular nationalities dependent on what they think is available to them. We want to say to people, "If you want to claim asylum, then you should use the legitimate asylum route. If you want to work you should use the economic migration work permit route." That is why, contrary to those who are against any form of inward migration - and there are people now promoting this quite heavily and we will see more of it in the media through the months ahead - I believe that we need a managed economic migration policy in order to welcome people in the country. It has to be robust and managed. At the moment a very large number of people seek asylum as a route to migration and we should discourage that.

The UK government is now proposing to build a chain of processing centres around the country, but there is no suggestion of universal, mandatory detention. The Home Secretary hopes to construct four processing centres with 750 beds each in the next couple of years. While we have constructed detention centres in some of the remotest and least hospitable parts of Australia (Woomera, Port Hedland and Baxter), the Home Secretary has told the Home Affairs Select Committee:

I do not see why it should be the most disadvantaged areas of the country - when there is accommodation available by the very nature of the accommodation being empty and where there are school places because they are not oversubscribed and where GP practices have registration available - that should take asylum seekers. I do not see any reason whatsoever why it should be the most disadvantaged areas of the country that have to take that additional pressure, which is why accommodation centres properly placed in a variety of areas would, in my view, provide both for the needs of asylum seekers, and meet the requirements of a robustly managed asylum policy and good community and race relations, as it reduces the pressures which allow others to foster and fester racism.

The Executive Officer of the British Refugee Council has expressed the Council's concern to the Home Affairs Select Committee about the government proposals which by Australian standards are already most enlightened:

These accommodation centres will have 750 people each. Let's say by some miracle they get people through in six months, they are still then looking in total, even by 2005, at less than ten per cent of all asylum seekers going through this system. The idea that they will then somehow be able to construct the other 40 they need in a short space of time is unlikely. The point I want to make is that from our point of view the key issue for the support of asylum seekers is going to be that the dispersal system pretty much as it now is will continue for many years to come. One of the problems I have with the accommodation centres is the huge amounts of political and management energy which is going into setting up something which, frankly, is not going to have that much impact on the overall support of asylum seekers. The key issue from our point of view is making the dispersal system work. Having said that, in principle our problem with the accommodation centres as proposed is that they are too big and in the wrong place. The Home Office has got itself in a muddle over this. When they started they said, "This is a trial. By definition, we are not sure if this is going to work. We are going to try this and see if it works." And suddenly this trial has become an enormous point of principle. Even if you look at the way the trials have progressed so far in the planning stages, the costs and time involved are much greater than originally anticipated. I think they should look at the whole system on that basis. The starting position is let's have these big centres and then decide what we are going do in them. I think they should have done it the other way round and said, "What is the process we want to follow?" How do we best integrate and support the decision-making processes and what infrastructure do we need in order for that?" That is where we are coming to our proposal for much smaller "core and cluster" centres.

Presently, if someone is judged to have a manifestly unfounded asylum claim they can be taken immediately in to detention at the Oakington detention centre where their claim is promptly processed in a matter of days with the provision of legal advice. Others who are ultimately rejected for asylum or ELR may be rounded up in the community and placed in detention at removal centres or prisons, awaiting their deportation. There are about 2,000 persons in such detention at any one time.

Mr. Ruddock is right to say that the UK government is wanting to tighten up on asylum seekers. He is wrong to claim that they are attracted to the Australian model which would be unworkable and contrary to the European Convention on Human Rights. The UK Government is attracted to the idea of an annual quota of off shore refugees being offered permanent resettlement, in part to put a compassionate face on stricter measures for asylum seekers at home. But there is no interest in judicially unreviewable mandatory detention of any asylum seeker who enters the country without a visa or an electronic travel authority.

(b) EU Harmonisation

Over the next couple of years, the EU is concluding its harmonisation of policy and practices relating to asylum seekers. The proposed Council directive laying down minimum standards on the reception of applicants for asylum in Member States provides:

Member states shall not hold applicants for asylum in detention for the sole reason that their applications for asylum need to be examined.

The European Parliament's Committee on Citizens' Freedoms and Rights from Justice and Home Affairs has recommended that detention be permitted only to determine identity when documents have been lost or forged, to ensure removal of one whose claim has been rejected, or to protect national security and public order. The harmonisation exercise will not be complete until 2004. Meantime governments are proceeding with bilateral and trilateral negotiations trying to bed down lowest common denominator procedures in the hope that such agreements will consolidate their bargaining position at the EU table. The UK Home Secretary recently told the Home Affairs Select Committee:

There is a new spirit in terms of recognising that we must work together on this - I was discussing this with the Justice and Home Affairs Council only this last weekend - and a commitment to people building on what is called Eurodac, the finger-printing and biometric system which within the Schengen area and in co-operation with us will help us to be able to do a much better job Europe-wide. I am not waiting for European-wide agreement on anything. Waiting for Dublin II is a bit like "waiting for Godot", so we have to make what progress we can as quickly as we can bilaterally and trilaterally based on what we are anticipating on a Europe-wide basis.

Meanwhile the major organisations in the UK advocating the refugee cause and providing refugee assistance have expressed cautious optimism about the harmonisation process. Keith Best of the Immigration Advisory Service told the Committee:

What we are ending up with, though, is that very often the EC Draft Directives that are coming out in this field are ones that do have adequate safeguards and are ones that many of us could live with quite happily, but by the time individual ministers have got their hands on it, they are being cut down to such minimum standards that they are not harbouring the safeguards that we would want to see in a common European policy.

Nick Hardwick from the Refugee Council told the committee:

Clearly it is a good thing to move in that direction. I agree with Keith's analysis. I think some of the proposals coming out of the Commission are quite positive. If we simply go down to the lowest common denominator, it will be a missed opportunity. I would say about a harmonisation process that it is not a panacea. We do not think that is going to solve everything and make the whole system work better right across Europe and make it perfect, but I think it would help.


(c) Germany

Germany has the greatest restrictions on the movement of asylum seekers. But they could never contemplate going down the path of mandatory detention. They have received 130,000 applications a year on average these last four years despite the fact that those coming overland claiming asylum will be immediately returned to the safe third country from which they have come. All asylum seekers must stay in one of the 32 initial reception centres around the country. They are not detained but it is compulsory for them to reside in one of these centres during the first few months. They are then dispersed to one of the 16 Landers unless their case is judged to be manifestly unfounded in which case they are given a week to leave the country, and with very limited appeal rights. Within each lander, there are subdistricts to which an applicant will be confined - spreading the load throughout the country. Some applicants are confined to areas no greater than 15 sq km. Bear in mind that they had 438,000 asylum claimants in 1992 following the war in the former Yugoslavia. They are not allowed to work for a year and may leave their allocated district only with permission for special reasons. They have to stay in the accommodation allocated while their application is finalised and that can take from 2 - 7 years. They receive vouchers and limited welfare assistance.

6. The Australian Detention Gulag

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 regardless of the fate of the privative clause. 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.

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

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.

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.

7. The Legal and Political Impossibility of Protecting Children in Detention by Edict from Canberra

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. On 3 June 2002, Mr Ruddock wrote to me:

The Department is working to conclude appropriate protocols with State child welfare authorities. The aim of these Memoranda of Understanding (MOU) is to provide the framework for collaborative and cooperative relationships between DIMIA and the State authorities and to clarify the roles and responsibilities of the agencies to ensure that the best interests of all children in detention are met. A Memorandum of Understanding (MOU) was signed last year between my Department and the South Australian Department of Human Services (DHS) relating to child protection notifications and child welfare issues pertaining to children in immigration detention in South Australia.

But then on 9 August 2002, the Premier of South Australia, Mr Rann, in a ministerial statement to Parliament said:

It is important to note that state child protection workers are only allowed into the Centre with the permission of the Commonwealth and cannot legally enforce their recommendations under South Australia's Child Protection Act as would be possible in other cases concerning children who are not on Commonwealth land.

&there is a need for a protocol to protect and remove children from dangerous situations within the compound to protect children seeing traumatic incidents or being harmed in such incidents.

The following recommendations are made: That the centres develop a protocol by which children are protected and removed from situations of danger and upset within the compound. All of the children in such centres need to be protected from viewing traumatic incidents and the risk of being physically harmed during such incidents. The duty of care to children needs to be effectively managed.

On 15 August 2002, the Attorney General, speaking for Mr Ruddock in his absence, said: "The Department has a strong and cooperative relationship with the South Australian Department of Human Services and works closely with officials to ensure that the best interests of the children are met." Citizens like myself are left to think that there is no possible co-ordinated government response to child protection while one government remains committed to a punitive desert regime without a workable MOU and protocol being in place. The result must be damage to children. Meanwhile Mr Ruddock says that the relevant MOU and protocol with the South Australian government had been in place for some time. But in the opinion of the level of government with responsibility for child welfare, there is still a need for a protocol to remove children from traumatic situations. The Ruddock MOU has produced some very damaged children whom State officials felt powerless to help.

Let me give one example of the incapacity of the Canberra bureaucracy to deal credibly with reports of child abuse and neglect in detention, given their need to pursue a hot political agenda. I communicated information about injuries to children at Woomera to the Minister and to the Department on 4 April 2002. Some of this information, including the claim that a seven year old boy was hit with baton and tear gas, was then published in the Canberra Times on 18 April 2002. Within six hours, DIMIA had publicly refuted the claim saying, "This department has no record of injuries to a 7-year-old sustained during the disturbance at Woomera detention facility on Good Friday &. If Father Brennan has information or evidence of mistreatment of detainees he should report it to the appropriate authorities for investigation." I had seen the bruises with my own eyes. I had heard reports of tear gas hitting children even from the ACM manager at Woomera. I lodged a complaint about the department's spin doctoring. It took the Secretary of the department more than three months to conduct the inquiry. They can do you in in six hours but it takes them over three months to admit their mistakes. The Acting Secretary of the Department explained that their public misinformation occurred because "a number of communication problems in the Department allowed the matter to escalate to the stage where Mr Foster &posted inaccurate information". According to the departmental inquiry, this escalation took place over four days. And yet the public rebuttal was issued within six hours of the publication of my remarks - hardly any time at all for communication problems or escalation to impede the single-minded objective of denying injury to children. Mr Ruddock's own chief of staff had referred the matter to the South Australian Family and Youth Services on 29 April 2002, once a new search of medical records revealed there was a problem. The mother of the boy still has received no report on her complaint. The cursory and dilatory nature of the Department's inquiry invokes no public confidence that there will be no recurrence of cover-ups or neglect of credible claims of injury to children in detention in remote places where they are being used as a means to an end. In this instance, the Commonwealth Department was guilty of a negligent or wilful cover-up regarding the investigation of child abuse in detention centres. 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. It is obscene that defenceless children be used as political footballs by political spin-doctors.


8. The Change from Reception and Processing Centres to Removal Centres

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. I note the news this week that 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. Last Friday while flying to Port Hedland, I heard an ACM officer claim to a member of the public that detainees regularly stabbed ACM officers with sharpened tooth brushes tailor-made to leave the end of the brush irretrievable inside the body of the guard. The member of the public exclaimed, "We don't want people like that living in Australia!" I can only presume the guard believed it. If such an incident had occurred even once, I have no doubt it would have been reported within hours on the DIMIA web site and taken up by at least one talk back radio commentator.

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. Last week I met an Afghan TPV holder in Perth. He spotted his wife and children on television in one of the detention facilities on Nauru. They have been found to be refugees. Given the absence of ICRC, no tracing had been possible. But for their fleeting appearance on the television, they may not have seen each other again.

9. The Way Ahead

Messrs Hawke and Wran in their review of the ALP present woes have observed:

No policy issue arose more frequently in our listening to and reading submissions from Party members than that of boat people and refugees. We suggest what we believe is the correct and humane policy in this area. We clearly assert Labor's belief that Australia has the right to determine the size of its population intake, who remains in Australia and who becomes an Australian citizen. Boat people and refugees should be located in reasonable accommodation and with humane treatment in the natural holding area of Christmas Island and, on completion of the new facility, John Howard's diaspora of the desperate around the Pacific should be located there. The unacceptable detention centres on the Australian mainland, like Woomera, can then be closed. Increased resources would be applied to processing these people as rapidly as possible and those judged to be genuine refugees would be admitted to Australia under an enhanced refugee program. Through negotiations with our neighbours and a strengthened coastguard service everything possible would be done to stem the illegal and inhumane trade in boat people. We would negotiate with the appropriate national and international authorities to secure the return to their homelands of those judged not to be genuine refugees. Australia needs to rid itself of a conservative government that is divisive at home and subservient abroad.

I do not think this compromise is good enough. The 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.

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?

Recently I visited the memorial at the Changi war prison and I realised that the abuses of detention are always the more aggravated when the jailers are people of another race. 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. What have we done to each of them? What have we done to ourselves? 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, to quote the Minister's modulated phraseology, " The longest recorded period for any minor asylum seeker in detention was 1998 days. This minor would now be 12 years old, is the child of the above female and was included in the same application. Immigration detention ceased 29 days after the family member's litigation was completed." It remains only to add that the litigation resulted in the issue of a visa to the family member.

If we broke the nexus between on shore asylum processing and off shore acceptance of persons in need of humanitarian assistance (a legislative construct of the present government), we would expose the cant of those government propagandists who claim to be committed to maximum humanitarian outcomes. Having been at Woomera over Easter, I say again that it is no place for kids, nor for their parents, nor for the ACM and DIMIA officers all of whom are stressed and dehumanised by such unnecessary suffering.