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Australia's Refugee Policy - Facts, Needs, Limits

Fr Frank Brennan SJ

I am one of a minority who thinks Australia needs a more generous refugee policy and that we should abandon mandatory detention and the Pacific solution. For the moment, there is bipartisan support in the parliament for a strict quota on our refugee intake and for detention of adult males who arrive by boat without a visa. Even if mandatory detention remains a feature of Australian border protection, the system needs to be made less capricious, less arbitrary, more transparent and more efficient. Mandatory detention and the Pacific solution should be subject to judicial scrutiny given the doubts about the constitutional validity both of long term detention in Australia and of the cheque book approach in Nauru and Papua New Guinea.

Australia is unique in being one nation having exclusive sovereign control of an entire continent, sharing neither land boundaries nor close proximity to any other nation state. Our isolation is complemented by a very sparse population across a vast coastline in the north, much of the population being Aboriginal persons who were deprived their rights to land and political participation in the new nation state until very recently.

Australia has always been a country for migrants. We continue to receive 75-80,000 migrants a year, the majority of whom come under family reunion or special skills categories. But then again we also lose up to 40,000 a year through emigration, and almost half of those who emigrate permanently are Australian born. Our natural birth rate has fallen below the replacement rate. We need to be a net migration country if we are even to maintain our present population. Most economists would insist on the need to at least maintain your population if you want to maintain present lifestyle and growth. Most of our migrants come under the non-humanitarian banner being skilled migrants or persons being reunited with their family members who are Australians. The Howard government has retained a modest 12,000 places a year in addition to our annual migration intake of 75-80,000 migrants for those who are to come under our humanitarian program which is for refugees and other persons who need humanitarian assistance and who have some existing connection with Australia. In 1999-2000, only 9,960 of those places were filled. However in 2000-01 the quota was exceeded by 1,733 places which included an increase in the onshore component from 2,458 in 1999-2000 to 5,777 in 2000-01.

Those who gain access under our humanitarian program come through one of three routes. The first route is the off-shore protection program where successful applicants have joined a queue in a UNHCR office or at an Australian embassy with migration processing facilities. This route is not available to refugees who have fled from Afghanistan. They were informed last year that we had closed our queue facility in Islamabad and that applicants would need to go to Bangkok to join the queue, with the warning however that the customary level of service could not be assured because of increased demand.

The second route is lawful entry to Australia followed by an application in the queue during which time the person will be permitted to remain in the community even if they are then overstaying their visa time limit. With so much attention on unlawful entrance to Australia it is worth recalling that we have 50,000 overstayers a year, and the highest grouping comes from the UK and the US.

The third route is the direct help line - coming by boat with the assistance of "people smugglers". Most of those coming that way at the moment are found to be bona fide refugees. In the fifty years since Australia became a signatory to the Convention on Refugees we have received 650,000 refugees (more than 12,000 per year) but in recent years we have taken only about 4,000 refugees a year through our offshore humanitarian program. After World War II there was an equal emphasis on fundamental human rights and state sovereignty. World leaders committed to the establishment of the United Nations conceded that the sovereignty of the nation state would be sustainable only if the community of nations made provision for those persons fleeing their own nation state with a well founded fear of persecution "for reasons of race, religion, nationality, membership of a particular social group or political opinion". Prior to 1989, less than 500 persons a year who had arrived in Australia would claim to be refugees. And refugees from overseas came in an orderly fashion by plane or passenger liner, having been processed before boarding. Things started to change with the end of the Vietnam war and the first wave of boat people turned up on our shores.

The first wave of 52 boats came after the fall of Saigon in 1975 and lasted until 1981. The persons on these boats were recognised as refugees without the need for individual determination of their cases. They were welcomed and given protection. In June 1989, Prime Minister Bob Hawke, like many of his fellow Australians, was moved to tears by the plight of Chinese students studying in Australia who were afraid to return home in the wake of the Tiananmen Square confrontation. He promised they could stay. By 1990-1, the government had received 16,248 on shore protection applications for the year, most of which came from mainland Chinese. Meanwhile the second wave of boat people started arriving in 1989 from China, Vietnam and Cambodia. The welcome mat was taken away and Mr Gerry Hand was the Labor Minister for Immigration who spearheaded the new policy of detention and individual determination of claims. He and his successors Nick Bolkus and now Philip Ruddock have been strong advocates for mandatory detention of boat people and strong critics of the courts for being too soft on asylum seekers.

The Hawke Government decided on a policy of humane deterrence with this second wave. With bipartisan support in the Parliament, the government decided that boat people would be locked up so as to send a signal and deter others from setting out for Australia. The policy was justified on the grounds that these boats often landed on other shores such as Indonesia where they were refuelled and repaired, encouraged to move on to Australia. Government conceded that some of these persons may have been refugees but was adamant that the majority were economic migrants and queue jumpers. The Government saw only one way of maintaining a fair and ordered migration program. It was essential to make an example of the queue jumpers and make it clear that a boat trip to Australia without papers was no way to gain entry. Australian politicians deliberately fuelled the public anxiety that uncontrollable boatloads of people were arriving on our shores from Asia and that it was difficult to maintain the sovereignty of our borders. Despite the floodgates perception, during the course of this second wave on average one person a day arrived in Australia. In the early stages of the second wave, new arrivals were flown the length and breadth of the country by government partly in an attempt to keep them away from lawyers and do-gooders.

In June 1993, Mr A, a Cambodian boat person who had arrived in Australia in November 1989 made a communication to the UN Human Rights Committee. The Committee processes took almost four years. Mr A spent time in detention centres at Villawood near Sydney, a bush camp south of Darwin, and finally at Port Hedland 1500 kilometres north of Perth. By May 1992, the Commonwealth Parliament had changed the law so that courts had little power to review migration decisions and circumstances of detention. Basically, once a boat person was classed as a "designated person", the door was closed and the judges could do nothing. When the High Court found that some detentions were unlawful, the Parliament retrospectively legislated to limit damages claims to $1 a day. The government described the boat people's entitlement to damages as a "windfall". Then when doubts were raised about the constitutionality of a law retrospectively taking away the right to common law damages, the Government lawyers drafted another measure retrospectively to make the detention lawful.

The UN Human Rights Committee found that in Mr A's case, Australia was in breach of the International Covenant on Civil and Political Rights which provides that no one shall be subjected to arbitrary detention. The Committee also found Australia in breach of the provision which entitles anyone in detention "to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention".

The public hysteria and government obsession with control of borders without court supervision in Australia is highlighted by a study of the recent UK litigation regarding asylum seekers. In Saadi & Others v Secretary of State for the Home Department, the UK Court of Appeal had to consider the lawfulness of detention of Kurdish asylum seekers for more than ten days while their applications were processed. Meanwhile here in Australia we have legislated a regime for long term detention in faraway places. On average Australia has been receiving 13,000 asylum applications a year while the UK has been receiving 84,000. The UK has been keeping some applicants in detention for a week to ten days. Some are even kept for up to 65 days. Australia has been keeping some applicants in detention for over four years.

In the UK people are usually detained only if there are problems with their security or identity. However, the Oakington Reception Centre was set up to process people quickly while they were detained usually for no more than ten days, regardless of whether there were problems with their security or identity. The European Convention of Human Rights which is now incorporated into UK domestic law by operation of the Human Rights Act 1998 sets strict limits on detention of persons. Having considered the position in 1951 when the European Convention was finalised, the Court of Appeal concluded "that the exception to the right to liberty & was intended to preserve the right of the member States to decide whether to allow aliens to enter their territories on any terms whatsoever." But the court then went on to consider modern developments including the decision of the Human Rights Committee in the Australian case of Mr A. Three paragraphs of the decision are quoted in the Court of Appeal decision. Meanwhile back in 1997 the decision was disregarded by Australian politicians on the basis that it was simply the opinion of an international committee. Our Attorney General Daryl Williams defended the four year detention of Mr A in these terms:

After giving serious and careful consideration to the other views expressed by the Committee, the Government does not accept that the detention of Mr A was in contravention of the Covenant, nor that the provision for review of the lawfulness of that detention by Australian courts was inadequate. Consequently, the Government does not accept the view of the Committee that compensation should be paid to Mr A.

The Committee is not a court, and does not render binding decisions or judgements. It provides views and opinions, and it is up to countries to decide whether they agree with those views and how they will respond to them.

The Court of Appeal noted the UK government's policy decision "that, in the absence of special circumstances, it is not reasonable to detain an asylum seeker for longer than about a week, but that a short period of detention can be justified where this will enable speedy determination of his or her application for leave to enter." Though conceding that "the vast majority of those seeking asylum are aliens who are not in a position to make good their entitlement to be treated as refugees", the Court of Appeal 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 problem now is that we have no equivalent of the European convention in our domestic law, that a decision of the UN Human Rights Committee is simply disregarded, that our politicians pillory our judges for applying strict scrutiny to the detention of asylum seekers, and that our parliaments (dominated by either side of the political spectrum) have enacted specific laws for the long term detention of asylum seekers thereby separating Australia from the contemporary UK reading of the common law heritage.

The third wave of boat people have come mainly from Afghanistan and Iraq. On arrival they are held at one of the three Immigration Reception Detention Centres in remote locations at Woomera, Port Hedland or Curtin. The tragedy of this third wave is that government hysteria and bipartisan disregard for the well being and human rights of these boat people flies in the face of their bona fide refugee claims. Over 90 per cent of those assessed in the third waves have been found to be refugees.

Let me highlight some of the problems of long term, isolated detention of persons who have fled persecution and who are in desperate need of humanitarian assistance by referring to the situation at Woomera. There are about 150 Afghan detainees in the Woomera IRPC who have not yet received primary decisions in relation to their applications for protection visas. Each of them has now been in detention for more than six months since they applied for their visa. Meanwhile the government claims that the avaerage time for a determination is 15 weeks. Given the uncertainty and change in Afghanistan since 11 September 2001, it is unlikely that credible adverse decisions could be made against those who establish that they are Afghan nationals (as distinct from Pakistanis), and this would be especially so in the case of those who are Hazara.

Given that it will be a long time before non-detention countries and UNHCR start processing Afghan claims, it would be in the public interest that bridging visas be granted once Afghans are held in detention longer than other applicants or once there is no prospect of their applications being credibly processed within a reasonable timeframe. Afterall, sustained detention when there is a suspension of visa processing through no fault of the applicants is not in the public interest. In the absence of judicial review or warrant, such sustained detention could even be unlawful.

If the situation in Afghanistan remains intractably unstable, there may be a need for a special category visa for those awaiting determination of their refugee claims or for those deserving special humanitarian assistance once their refugee protection claims have been rejected. It is unlikely that the government will be able forcibly to return any detainees to Afghanistan in the foreseeable future. Having been party to the bombing of their country, we do have some humanitarian obligations to those who are here and fear returning at this time. We should at least wait until the dust has settled before sending back those on our shores who are unwilling to return.

There may be a need to reopen some cases in light of the changed circumstances in Afghanistan. Some detainees say that their claim to persecution by the Taliban was the most pressing claim some months ago but that they now have a well founded fear of persecution by the new government linked to warlords. There are some detainees who having exhausted all appeals from a primary decision and are still in detention because the government is unable to return them home in safety or to remove them to a third country. Four Palestinians recently wrote to Minister Ruddock saying:

We are being held in detention here at the Woomera Immigration Reception and Processing Centre. Each of us has had our application for a protection visa rejected by the Refugee Review Tribunal. We want to go home when it is safe but we have been told that your government, at this time, is unable to return us home in safety or to take us to a third country.

We do not want to be kept in isolated detention here at Woomera indefinitely. We cannot go to any court. We are no longer being detained to assist with the processing of any claims nor to assist with our removal or deportation in the foreseeable future. We understand that we cannot be released from detention unless you issue us with some form of visa. We think it would be very unfair to be kept in prolonged detention as punishment for having come to Australia or as a deterrent to other Palestinians thinking of coming here. Afterall we have not been convicted or even charged with any criminal offence. We can see no reason for our continued detention. Please release us into the Australian community until it is possible for us to go home or to a third country.

If you insist on keeping us in some form of detention, we ask that you provide us now with alternative detention arrangements similar to those being provided for some of the women and children in the Woomera township.

We hope the officers of your department will be able to help us now that we have come to the end of the road in applying for protection from your government.

Such persons should no longer be held in immigration detention. Their ongoing protracted detention is unrelated to the processing of claims or to the preparation for removal or deportation from Australia. Except for a constitutional challenge to their detention, they have no recourse to the courts. And they can be released from detention only if the Minister grants them a visa of some description. Once again the Minister could consider substituting the decision of the RRT or issue a special category visa. The only other option would be more humane detention in a less isolated place unless and until they can return home in safety.

In 1992, the High Court had cause to consider the lawfulness of detention of those in the second wave of boat people. In Chu Kheng Lim And Others v The Minister For Immigration, Local Government And Ethnic Affairs And Another, three of the judges observed that migration detention laws would be valid "if the detention which they require and authorize 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 authorize 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 Ch.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 present Minister's remarks to the Australian Anglican Synod on 27 July 2001:

Detention is not punitive nor meant as a deterrent. & Detention ensures that they are available for processing any claims to remain in Australia and that importantly they are available for quick removal should they have no right to remain.

The situation for people who overstay their visa is fundamentally different. We know who they are and have already assessed that they do not constitute a danger to the Australian community.

Nobody is forced to remain in detention. Detainees can choose to leave detention by leaving Australia. They can go wherever they wish to any country where they have, or can obtain, the right to enter, and we will do our best to facilitate that.

He offered a similar comment in the Medical Journal of Australia on 21 January 2002: "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 claims and when the detention is neither relevant nor incidental to their removal or deportation in the foreseeable future. But one should note the minster's more recent remarks to the Parliament on 19 February 2002:

Late last year,...we were able to pass certain laws which strengthened our territorial integrity. This strategy has been successful in deterring potential illegal immigrants from making their way to Australia.

We now have a publicly acknowledged deterrent regime, and in the case of Iraqis and Palestinians no one could credibly claim that they are not forced to remain in detention. They cannot go home. The government cannot find a third country for them. In light of the present government's detention policy, the minister could be acting in the public interest by creating a special class of visa permitting release of those persons whose ongoing detention would undermine the constitutionality of the mandatory detention regime and seriously call into question the claims that detention is neither punitive nor meant to be a deterrent and that "Nobody is forced to remain in detention."

Since the end of the Cold War, there have been at least 20 million refugees a year, most of whom are not able to find protection as part of a balance of power arrangement between the superpowers. Many of them are fleeing internal racial and ethnic conflicts which have been exacerbated by the new world order. Since 1997, we have received a modest 6-9,000 refugees a year - less than our 50 year average at a time when there are more refugees than ever. Our injustices to women and children in remote detention centres are simply a stark reflection of the injustices meted out to all asylum seekers whose detention is not required for migration, health or security purposes. Humane deterrence does not work because it is only one more deterrent which pales into insignificance over against the risk of the sea voyage. It is immoral because it treats persons, including the innocent and most vulnerable, as means rather than ends.

The blanket detention policy and the Pacific solution are morally reprehensible. But we live in a democracy where that is not the prevailing public opinion nor the moral assessment of our lawmakers. Given that detention is an integral component of the government's present border protection policy, it is essential that the time delays, uncertainties, and psychological trauma exacerbated by the events of September 11 and the federal election now be put behind us as quickly as possible. Because of those events, every inmate in Woomera (including the bona fide refugees) will have spent an additional five months in detention - five months of despairing isolation which drove people to sew their lips so that they might be heard. Surely it is time for government and the community to respond with a renewed commitment to a determination process which is "fair, just, economical, informal and quick".

It will not be too long before protracted detention of children in the heated isolation of Woomera will be seen to be a moral obscenity especially when some of them have fathers living in Sydney and Melbourne, happy to resume their parenting responsibility. If the media were allowed inside the one kilometre fence to show ordinary Australians the sight of women with little children behind razor wire in the middle of the desert, many would surmise that there must be a better way.

For limited enhancement of our sovereignty and border protection, we have forfeited much of the Australian heritage including respect for the courts, long term detention only under judicial supervision, and a measured welcome for those deserving our protection and humanitarian concern. With our Pacific solution we have even flaunted the constitutions of Nauru and Papua New Guinea which prohibit detention in these circumstances without ready access to a lawyer. Any policy which results in a 12 year old boy self harming in Woomera when his father is living in Sydney is inhumane and unAustralian. If detention is not punitive and not a deterrent, it should not be practised as universally and callously as it is in places such as Woomera. It is very unAustralian for us to engage in people trading around the Pacific skewing our aid assistance to our poor, small island neighbours. Border protection and respect for our national sovereignty can be achieved without abandoning the rule of law, the separation of powers, judicial supervision of life determining decisions, and basic Australian decency at home and abroad. We Australians should pull our weight decently in granting due process and protection to refugees who warrant our assistance either because they are in the queue where a queue for orderly off-shore processing exists or because they are on our shores or in our waters seeking a place in a queue for orderly on-shore processing. The present system is too costly and demeaning for all of us.