Developing Just Refugee Policies in Australia: Local, National
and International Concerns
Free Public Forum
Eastern Avenue Auditorium
University of Sydney
7 August 2002
Fr Frank Brennan SJ AO
Our search tonight is for the beginnings of a contemporary refugee
policy which is workable, decent, affordable and efficient. The
boats may have stopped coming for the moment, but this does not
necessarily mean that our policy meets any of these descriptors.
Refugee flows respond more to the push factors in the countries
of persecution than to the pull factors in the countries of reception.
The claim that there is a need for radical improvement in our policy
balancing pull factors with the decent response demanded by the
push factors will evoke ad hominem attacks from politicians and
shrieks from radio shock jocks. So let's try and confine ourselves
to the facts, seeking incremental changes to policy. I commend the
Senate of the university for initiating this forum of inquiry. I
thank the Centre for Peace and Conflict Studies for the organisation
of the event, and I am honoured to be introduced by your Chancellor,
Justice Kim Santow OAM.
Contemporary Problems with Protecting Borders
Since the end of the Cold war, we have come to expect that there
will be more conflicts in the world, producing refugees. When the
balance of power was maintained between two power blocs, parties
to a conflict and those fleeing the conflict would often be under
the control of one of the major power blocs. Refugees were more
readily grouped as "them" or "us" depending
on which power bloc they were fleeing. All of them are now to be
closely scrutinised. We now expect that there will be more inter-ethnic
and inter-religious conflict in more fragile nation states. We also
expect there will be more failing states unable to offer human rights
protection to their citizens.
Since September 11, we also expect that there will be greater difficulty
both in determining whether persons without valid travel documentation
are a security risk and in moving some of these persons back to
their home countries. For example, at the moment and for the foreseeable
future, it is impossible for our government to move Iraqis or Palestinians
anywhere else in the world unless they already have residential
rights in some third country.
One of the aspects of globalisation is that money and people are
more mobile. Australia may be the end of the earth, but it is no
longer inaccessible. Unauthorised movement from the third world
to the first world, from insecurity to security, from persecution
to protection is to be expected. Entrepreneurs, including criminal
syndicates, are willing to cash in on the market for assisted passage.
Since 1989, we have had 259 boats turn up on our shores constituting
the most recent wave of asylum seekers wanting access to Australia
without a visa. 213 of those boats have come during the prime ministership
of John Howard. 102 of them came (mostly from Indonesia) after our
intervention in the East Timor conflict when we did the right and
decent thing in the circumstances but dressed it up as the action
of a deputy sheriff taking the high moral ground and when the Indonesian
presidency was in transition and some disarray. I have no doubt
that some persons in authority in Indonesia thought they would test
the waters of our superior morality by allowing or encouraging a
few more boats to make the journey. As Indonesia is a lightly governed
country with endemic corruption, it is unlikely that any Australian
government could negotiate any agreement which would stop "people
smuggling" completely. Later this month, it will be a year
since the Tampa affair and the Australian response to it, no more
boats having come in that time. The AFP has told the Senate that
" there are currently 2,100 people in transit from various
countries now in Indonesia who may be seeking to enter Australia".
These last 13 years, 13,475 unauthorised arrivals have come by boat
- on average, 1,000 a year. But from 1999 until 2001, that number
At any one time there are said to be up to 20 million refugees
and other persons of concern to UNHCR. There are about 37,000 off-shore
asylum seekers who are on the books having indicated a desire to
come to Australia. Australia takes up to 12,000 off-shore refugees
or other humanitarian applicants a year. To some extent, our government
seeks a migration outcome in choosing these successful applicants.
It is misleading to claim that they are the ones who happen to be
at the head of a queue of persons ranked according to greatest need.
They are the lucky ones in a lottery where some connection with
Australia or greater compatibility with Australia usually counts
The sovereignty of the nation state is morally justifiable only
if the nation state discharges its primary obligation to protect
the human rights and uphold the dignity of its citizens. Non-interference
in the affairs of other States is morally justifiable only if the
international community makes provision for the protection of the
human rights of those persons who are persecuted by their own state
either because the state authorities single out members of their
group for persecution or because the authorities selectively fail
to protect members of such groups from persecution by other non-state
Since 1951, such protection has been best accorded by countries
signing up to the Convention on refugees. Australia is a signatory
- Indonesia is not. Papua New Guinea is a signatory, Nauru is not.
Under the convention, we are not to force back those who rightly
invoke our protection obligations. And we are not to punish them
for having the temerity to turn up without a visa. This defect is
the equivalent of not having a parking permit when you have entered
the carpark while fleeing a bush fire. To equate bona fide asylum
seekers with queue jumpers is to equate the bona fide bush fire
victim with the carpark cheat who simply wants to avoid the permit
fee while jumping the queue. Much of our present government rhetoric
is posited on the presumption that all boat people, even those who
are refugees, are engaged in secondary movement for non-persecutory
reasons. They are all assumed to be persons seeking a migration
outcome, trying to jump the queue. That is also the underlying assumption
in the legislation and policy directions. We now treat them as criminals
until they can prove that they are refugees, locking them up as
a deterrent, locking them up in the desert and sending a message
to their countrymen.
Even those countries which are not net migration countries have
to do their part in assisting refugees providing them with safe
haven until it is safe for them to be repatriated. In the long term
the options for a refugee are repatriation to their home country
when it is safe to return, integration into the nation state to
which they fled seeking asylum or resettlement in a third country.
With modern travel habits and ease of communication, the line becomes
blurred between an asylum seeker's secondary movement from a country
of first asylum and an asylum seeker's ongoing journey seeking a
place of secure asylum for self and family dependents. Our government
and our parliament thinks this blurred line can be straightened
by precise legislation which would be interpreted by public servants
and tribunal members spared any review by the courts.
Being an island continent nation, we do not share land boundaries
with any other nation and we enjoy the splendour of our isolation.
That isolation also feeds our fear of the other. The politics of
fear has become a hallmark of Australian politics this last decade,
and fear of the foreigner has always been part of the Australian
story. Having been involved in the Mabo native title exercise in
1993, the Wik debacle in 1998 and now the boat people saga of this
last year, I have become used to our politicians thriving on or
being paralysed by the politics of fear, depending which side of
the political fence they find themselves. As with Mabo and Wik we
will all emerge from this present fracas wondering what all the
fuss was about. But this time we have been prepared to inflict substantial
damage on some of the world's most despairing people in the cause
of deterrence and border protection, wasting many taxpayers' dollars
in the process. The fear is compounded by the "other"
religion - Islam. It is also compounded by cultures which are so
"other" such as those of Afghanistan and Iraq.
If democracy is about honouring the will of the people and protecting
the rights and dignity of all, it is essential that our political
leaders respond responsibly to people's fears rather than feeding
those fears and that they resolve people's fears with policies which
are faithful to the values of the people and to the integrity of
the social institutions. Because of the electoral fervour and the
talk back radio lather about the issue, we have not taken sufficient
stock of the damage and cost being inflicted by the present policy.
Our policy presumes that we can isolate Australia from these population
flows which affect the rest of the world. We think we can stop or
control the flow by sending a harsh message. We should rather manage
the flow by keeping step with other first world countries and by
maintaining a principled commitment to human rights.
Contemporary Problems with protecting Asylum Seekers
Let me walk you through some of the abuses and costs created by
our present policy. Like most Australians I want to believe Rear
Admiral Smith's recent rebuttal of the claim that the RAN could
be guilty "of deliberately turning their backs on people in
peril". I hope he is still right when he says, "The
Royal Australian Navy is a highly professional service which places
the highest importance on the safety of life at sea and, whenever
we are able, we will always respond to those in distress."
But how do we reconcile these noble sentiments with what we are
asking our able seamen to do? Here is an extract from the log of
the HMAS Adelaide tabled in the Senate on 21 February 2002:
- 1813 (AEST 2113) First warning given to master
- 0153 (AEST 0453) Second warning issued.
- 216 Boarding party ordered by Commanding Officer
to prepare to board SIEV 4 when vessel enters Christmas Island
- 258 Adelaide made close pass down SIEV4 starboard
- 335 Adelaide directed by CJTF to conduct a
positive and assertive boarding .
- 402 Warning 5.56 mm (cannon) shots fired 50
feet in front of vessel.
- 405 Warning 5.56 mm shots fired 75 feet in
front of SIEV4.
- 409 Warning 556 mm shots fired 50-100 feet
in front of SIEV 4.
- 414 Boarding party advised by CO that if 50
cal machine gun warning shots do not stop vessel, boarding party
is to aggressively board SIEV 4.
- 418-420 Twenty-three rounds of 50 cal (20 rounds
of automatic fire) fired in front of SIEV 4
- 430 Close quarters manoeuvering by Adelaide,
SIEV passed close astern to Adelaide port quarter and reduced
speed/took way off momentarily.
- 432 Boarding party issued final warning (to
SIEV) indicating that if they did not allow boarding party to
board, Adelaide would not let them enter Australian waters.
- 442 Boarding party effected a conducted non-compliant
boarding of SIEV4.
- 445 Boarding party in control of SIEV 4.
If a boat - even a leaking, overloaded wooden boat - enters our
territorial waters with a human cargo credibly claiming to be asylum
seekers, that boat should in future be escorted to the new $219
million detention centre being purpose built on Christmas Island.
If the passengers come without valid travel documents, we should
keep them there until their identities are established and a prompt
determination is made whether or not they are a health or security
risk. If they were a security risk or of questionable identity,
ongoing detention in this isolated place would be warranted.
At enormous cost, we are maintaining reception and processing centres
at Curtin, Port Hedland, Woomera and now Baxter on the Australian
mainland. Curtin will soon close. Every fairminded person including
the government's own Immigration Detention Advisory Group thinks
that Woomera should have closed long ago. There are only 180 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 180 Woomera detainees to other places would deprive government
a precious transmitter.
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
During this 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. In this last financial year,
the RRT set aside 115 of the 132 Iraqi decisions appealed and 197
of the 318 Afghan cases appealed. Meanwhile it set aside only 7.9%
of decisions appealed by members of other ethnic groups (398 of
5012 cases). 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. Though there are problems with the significant
Iraq and Afghanistan caseloads, DIMIA rightly notes that over 90%
of the refugees from these two countries "are identified by
the Department through the primary decision-making process".
But those Iraqis and Afghans who are turned down have a very high
success rate before the RRT.
The RRT delegation in their presentation of evidence at the HREOC
inquiry two weeks ago was unable to give a coherent public explanation
for the discrepancy in set-aside rates for Afghan and Iraqi cases.
Especially in the case of Iraqi claims where there has been little
in-country change from the date of primary decision to the date
of RRT hearing, the set-aside rates are very troubling. Admittedly
there has been a rapid change of circumstances in Afghanistan but
those changes are just as likely to render the applicant ineligible
for protection some months later when they appeal to the RRT from
the primary decision maker. And yet 62% of those who have appealed
the primary decision have succeeded.
The government and the parliament have been anxious to get the
decision making process away from court supervision. There was a
time when the Commonwealth conducted itself as a model litigant
before the courts. Because of the politics of refugees, those days
have gone and we now pay the price of losing such sensible conventions.
When the Federal Court constituted a special five member bench to
consider appeals on the new privative clause provision, Chief Justice
Michael Black saw fit to call Minister Ruddock to account. He addressed
the Solicitor General of the Commonwealth:
It has however come to our attention that on Thursday 30 May 2002,
your client made some observations about the Court on the Channel
9 Today program. He did so in response to a question put to him
by the compere about a statement he had made in the Parliament on
the previous day. I will not repeat what he is reported as saying
in the Parliament. On Channel 9 however he said:
“…and what we are finding is that, notwithstanding
that legislation, the courts are finding a variety of ways and means
of dealing themselves back into the review game.
And what I have said to the Parliament is, look, we’ve passed
this legislation, this was a decision of the Parliament. The High
Court of Parliament is saying decisions of the Tribunal should be
final and conclusive and if we need to give the court some further
advice we may need your support again. “
In fact, the legislation enacted by the Parliament expressly retains
a role for this Court. A major question that we have to consider
in these appeals is what the Parliament intended to be the extent
of that role.
Your client has made other statements along these lines over the
years. For example he is reported as having said at a meeting of
the Commonwealth Lawyers Association in London recently that it
should be the Parliament that decided its laws not what he termed
“unelected and unresponsible officials” of the courts.
Despite these statements I have not previously responded to any
of them publicly. The most recent statement however raises a new
issue since it would appear that it could only refer to the issues
before the Court on these appeals – appeals to which your
client is a party. He is the respondent in four appeals, in which
he was successful before the trial judge, and he is the appellant
in one appeal in which he was unsuccessful before the trial judge.
The statement was made only a matter of days before the date fixed
weeks ago for the hearing of the appeals.
You would of course know Mr Solicitor that the court is not amenable
to external pressures from Ministers or from anyone else whomsoever,
but we are concerned that members of the public might see the Minister’s
statements as an attempt to bring pressure on the Court in relation
to these appeals to which he is a party.
All this simply earned Mr Ruddock a pat on the back from the Prime
Minister and a round of applause in the party room. Ex-Chief Justice
of Australia, Sir Gerard Brennan explained the matter to an Indonesian
There has been much controversy about the laws relating to the
mandatory detention of people who arrive in Australia without the
requisite immigration permits. The Government and the Parliament
of the Commonwealth assert that those laws are essential to preserve
both the integrity of the national borders and the policies which
govern a generous immigration program. Some of those who arrive
without permits are refugees seeking asylum and who are entitled
to asylum under Australian law. The laws are controversial because
many Australians regard the laws as offensive to the human rights
of those who flee from other countries, particularly children and
those who are genuine refugees within the definition of that term
in the International Convention relating to the Status of Refugees.
The Government has been critical of Federal Court decisions which,
it is said, have been too generous in determining refugee status.
Laws have been passed restricting the jurisdiction of the Federal
Court to judicially review decisions on refugee status, but the
Constitution precludes the passing of laws restricting the jurisdiction
of the High Court in any case in which judicial review is sought
against an officer of the Commonwealth. Although the effect of the
restrictive laws has been an increase in the High Court’s
workload, the importance of the Constitutional provision has been
illustrated. This provision is a constitutional guarantee of equality
under the law: any person in Australia may invoke the High Court’s
jurisdiction if that person claims to be adversely affected by an
exercise of Commonwealth executive power.
Sir Gerard described this as "a dramatic example of the tensions
that can exist between the Executive Government and the judiciary
and of the ultimate constitutional protection of the rule of law
as defined by the High Court." We could all breathe more easily
with the cost effectiveness of removing the courts from supervision
of the correctness of these decisions if we could be more convinced
of the professionalism and independence of the primary decision
makers and of the competence and security of the RRT members. The
Minister and one of his in-house lawyers have taken public pot shots
at the judges but when 18.2% of RRT decisions appealed to the Federal
Court have been set aside this last financial year, there are good
grounds for concern when the Parliament (following a Senate gag
and a bypassing of the usual Senate committee processes) attempts
to limit judicial review of RRT decisions. Justice McHugh, hardly
an expansionist High Court judge, has recently told the Australian
Bar Association Conference:
Even if 30 percent of applicants have commenced proceedings "as
a means of prolonging their stay in Australia", it seems
a small price for a just and prosperous country to pay for maintaining
the rule of law.
The frustration of the Executive as the result of applicants abusing
the judicial review system is understandable. But Parliament and
the Executive should never forget the statement of Sir William Wade,
the doyen of administrative lawyers, that "to exempt a public
authority from the jurisdiction of the courts of law is, to that
extent, to grant dictatorial power". Review of a public servant's
decision by an administrative tribunal, whose members do not have
the same security of tenure and independence as judges, is no substitute
for review by a court. In principle, even a national emergency should
not be a sufficient basis for refusing to permit the courts to examine
the legality of the conduct of the Executive Government.
Under the separation of powers doctrine, the principal function
of the judiciary is to uphold the rule of law. It is a corollary
of that doctrine that the judiciary cannot be deterred from exercising
that function by criticisms of the Executive branch even if the
Executive's criticisms have the support of the general public. The
Judiciary has to apply the law, not public opinion.
The government is right to claim that many unsuccessful applicants
will appeal all the way to the High Court if it buys them more time
in Australia and if they can buy time with no financial cost to
themselves. But the Minister himself has also been pursuing higher
court appeals rather than having matters resolved promptly on the
merits. His motivation is even more base and questionable than those
who desire to extend their stay in Australia. And the human cost
is unbearable. Let me give one graphic example.
An Iranian single mother made a very serious and professional attempt
on her life in early June at Woomera. This happened after the minister
lodged an appeal to the full Federal Court from her successful appeal
to a single judge of the Federal Court who had ordered that her
matter be remitted to the Refugee Review Tribunal to be decided
in accordance with the law set down by the High Court in a case
which had been decided after the RRT had considered her case. In
her favour, Justice Tamberlin had observed:
In this case the RRT member, as in Khawar, dismissed, without any
consideration, the possibility that the applicant could be a member
of a particular social group which may be either women in Iran or
divorced women in Iran. The reasons for decision focus only on the
question whether the added references to possible harm could define
a social group. In so doing the decision fails to come to terms
with the central issue of group identity. Until this issue has been
addressed and determined it is not possible for the decision-maker
to determine whether there is a real chance of persecution as a
consequence of being a member of that group. Furthermore, the RRT
decision does not make a determination as to the availability of
protection by the State or State agencies against violence or threatened
violence to women in Iran.
In my opinion the failure by the RRT to consider and determine
the applicant's claims in relation to membership of a particular
social group is a fundamental error of law because it demonstrates
that the essential issue for determination by the RRT has not been
The judge had simply remitted the matter to the RRT ordering that
the RRT determine the matter consistent with the principles set
down by the High Court in Khawar. Surely it is in everybody's interests,
especially the mother and her accompanying seven year old son at
Woomera, that this reconsideration by the RRT proceed as quickly
as possible without further proceedings in the courts. If the minister
is concerned about Justice Tamberlin's interpretation of the scope
of the privative clause, I would have thought that the many other
cases on appeal, including those which have now been reserved by
the special bench of five, would have been sufficient vehicles for
him to obtain clarity on that aspect of the law.
Now that a court has had the opportunity to scrutinise an RRT
decision and to find it inconsistent with the subsequent High Court
decision in Khawar, I cannot see that anything is to be gained by
any party, including the minister, proceeding with an appeal to
the Full Federal Court. The only conceivable gain to the government
would be if an alternative outcome were to be obtained by upholding
the original RRT decision and reasoning without the benefit of the
High Court's guidance in Khawar. But that would be a travesty of
justice highlighting the injustice of the outcome.
And yet the Minister has constantly told Parliament and the public
that he is more concerned with a just outcome in a particular case
rather than elaborate and legalistic appeal points. I would have
thought this an appropriate case for prompt determination by the
RRT rather than further Federal Court litigation with the prospect
that the matter will be eventually returned to the RRT in any event.
The government has a medical report indicating that after the
minister lodged his appeal, the Iranian applicant "made
a serious attempt to kill herself by cutting a vein in her arm.
This was in the context of now wanting her son to be fostered out
to an Australian family and she thought that if she died that this
is what would happen to him." The psychiatrist has observed,
"Her determination to find a way of getting her son out
of the Detention Centre is strong and in this context, she is quite
capable of further significant acting out behaviour and is ultimately
at serious risk of suicide." Her statements to me on my
last visit to Woomera last week are consistent with this prognosis.
The government's lodgment of full Federal Court appeal thereby postponing
or avoiding the RRT deciding her case consistent with the High Court
decision in Khawar, as modified if at all by later legislation,
can only add to her anxiety and desperation. The human cost is too
The word games about deterrence and migration detention have become
complex. Ten years ago, the High Court of Australia said migration
detention without a court order or court supervision was permissible
only if it were necessary for health, security, visa processing
or removal. Otherwise it would be punitive and a deterrent, unconstitutional
and unlawful unless subject to an exercise of judicial power. If
the government has its way, Iraqis and Palestinians who have been
rejected, who have no third country in which they have residence
rights, and who cannot return home are to be held in open-ended,
judicially unreviewable detention for years. In the case of the
Iraqis, their detention at our hands will be extended interminably
should we decide to bomb their country.
Consider the Palestinian case of Akram who has now appealed his
detention to the Federal Court seeking an order of habeas corpus.
He arrived on Ashmore Reef in July 2001. In Woomera he was processed
and rejected. He formally applied to be returned home. He packed
his bags expecting to leave in February. On 18 February a public
servant told him that he could not be moved anywhere. He went berserk
understandably and smashed his right hand through a plate glass
door, being hospitalised for weeks. With other Palestinians in the
same situation he then wrote to Minister Ruddock in February, March,
May and July 2002 saying:
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.
The minister's only response has been to say on 3 June
The issue with this group is not the question on their right of
return to the Palestinian Territories (they either already hold
valid Palestinian National Authority travel documents) or we believe
we will be able to obtain them), it is the need for approval for
their overland transit through the territories of a third country.
We are negotiating with three relevant countries and believe this
matter is capable of resolution.
Justice Merkel has reserved his decision on the habeas corpus application
by Akram. Hopefully, we will all soon have the advantage of clarity
about the legality and constitutionality of long term, open ended,
judicially unreviewable detention of rejectees who happen to have
entered Australia in the past without a visa and who happen to be
nationals of countries unable to receive back their nationals from
Problems with the present Australian Balance between border protection
and protection of refugees within our territory
In recent days, 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. But even from a practical point of view this would be
undesirable as the children would be growing up in a detention centre
enclosed by spiked iron bars in surroundings hardly conducive to
the healthy growth of a child. While, in most cases, the parents
of these children carry the main responsibility for ensuring the
well-being of the children, and as such are to some extent responsible
for the plight of the children, it would nevertheless appear obvious
that detention of children for immigration purposes is not in their
……the human rights situation of persons in immigration
detention in Australia is a matter of serious concern. Despite the
many positive efforts undertaken by the Government to improve the
conditions in the detention centres, from a human rights perspective
it might be useful to ask whether the current approach to illegal
immigration is the correct one. In any case, a more humane approach
would certainly be desirable.
Mr Ruddock has now have 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
But in relation to the Palestinians at Woomera, it is very misleading
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 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"
The minister continues to claim, "The period of time in detention
is lengthened by detainees appealing negative decisions through
tribunals and courts and by their non-cooperation in removal."
But in the case of the Iranian mother at Woomera and her seven year
old son, their detention is now being lengthened by the Minister's
unnecessary appeal of their case to the full Federal Court rather
than their case being considered promptly by the RRT.
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. If Justice Merkel does rule that
the detention of the Palestinian applicant is unlawful and unconstitutional,
I hope the government will be able to move promptly to release all
those persons in similar circumstances.
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 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. In his press release
of 17 December 1997, Attorney General Daryl Williams defended the
four year detention of Mr A on the basis that
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.
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 UK Court of Appeal found no dissonance between the European
convention and other sources of English domestic law as "the
Convention sets out values which our laws have reflected over centuries….
The policies that have constrained, and still constrain, the exercise
of statutory power to detain aliens…result from a recognition,
that is part of our heritage, of the fundamental importance of liberty."
In this instance, the Court decided that the detention was lawful
but that it was right that it receive strict scrutiny from the courts.
The Australian problem now is that:
- we have no equivalent of the European convention in our domestic
- a decision of the UN Human Rights Committee on a case involving
circumstances which are no doubt replicated in many other cases
is simply disregarded,
- our politicians pillory our judges for applying strict scrutiny
to the detention of asylum seekers,
- they then pillory overseas judges who accept UN appointments
to scrutinise our inhumane detention practices,
- our parliaments (under governments of both party persuasions)
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 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".
Once asylum seekers are found to be refugees, they should have
the same rights as all other refugees regardless of whether they
arrived by plane or boat, with or without a visa. In particular,
they should have the same rights of international travel and of
family reunion. By denying these rights to some, we encourage women
and children to risk hazardous voyages and we demean those refugees
living in our community wanting to get on with their lives without
remaining disconnected from their families. Family reunion is not
a "convention plus" outcome as the Minister likes to describe
it; it is a basic human right. We have 60,000 overstayers a year
who arrived with visas. Most of them are far more able to escape
detection in the community than the handful of unauthorised boat
arrivals each year. Once again this discrimination is only for the
purpose of deterrence, wreaking too much devastation in the uncertain
lives of those who now have every entitlement to be living in our
I will not delay long on the Pacific solution which is the last
step in a morally bankrupt policy. Imagine if every first world
country decided to engage in this sort of unlawful people trading.
Such detention is contrary to the constitutions of PNG and Nauru.
The minister's first defence is to claim that the facilities in
those places are not detention centres despite the Migration Legislation
Amendment (Transitional Movement) Act 2002 speaking of "the
detention of the person in a country in respect of which a declaration
is in force (s. 198D(3)(c)). And the bills digest for the Migration
Legislation Amendment (Transitional Movement) Bill 2002 speaks of
the removal of persons "to a place such as a 'Pacific Solution'
detention facility on Nauru or Papua New Guinea". Even Senator
George Brandis and Mr John Hodges in the Senate Select Committee
on a certain Maritime Incident have referred to the "detention
centres" in those places and the "detainees" kept
therein. In his evidence on 1 May 2002, Mr Hodges said, "Nauru
is by far the worst of the detention centres." Mr Ruddock's
next defence is to claim that it is not for the Australian government
to tell other governments how to interpret their constitutions.
UNHCR has informed the government and now the Senate about its
concerns with the detention regime under the Pacific solution. In
its submission to the Senate's Legal and Constitutional References
Committee on the excision of more islands from Australia's migration
zone, UNHCR has said:
Detention or similar restrictive measures applied to asylum seekers
are inherently undesirable and should normally be avoided. If necessary,
detention may be resorted to only on grounds prescribed by law to
verify identity; to determine the elements on which the claim to
refugee status or asylum is based; or for reasons of national security
or public order. Detention, where this lacks appropriate safeguards
such as humane conditions and access to periodic judicial review
may be considered arbitrary.
Of concern to UNHCR in the cases of Nauru and Manus Island, is
that refugees who have been recognized and therefore have had their
status regularised remain detained until a durable solution is found.
This detention is without time limits or periodic review. The ongoing
detention of persons recognized as refugees is a restriction of
freedom of movement in breach of Article 26 of the 1951 Convention.
Furthermore, such detention is not consistent with Article 31(2)
of the Refugee Convention, which provides that restrictions of freedom
of movement shall not be applied until the status of refugees in
the country is regularised. Even though these recognised refugees
are no longer on Australia's territory, Australia's obligations
under the Refugee Convention continue to be engaged until a durable
solution is found.
Towards more just, workable and decent policies.
The European Union is now trying to formulate common standards
and a unified approach to the processing of asylum applications.
In Europe, they do not have the luxury of going it alone because
"Methods that deter access to a national territory merely shift
the burden from one country to another." It is very unneighbourly
behaviour. Everywhere, governments of first world countries are
under pressure from the asylum seekers and their electors as they
strive to find the balance between the protection of borders and
the protection of the asylum seekers who, like the poor, are with
us always. But this is why it is so important that we Australians
address our own fears rationally and ensure that we act decently.
Compared with the European numbers, ours is a small nut to crack.
Is that any reason for us to use a large sledge hammer which would
inflict untold damage if used in other places? Our policy can be
posited only on one of two options. Either we want to be so indecent
that no other country will dare to imitate us and so we will maintain
the advantage that asylum seekers will want to try anywhere but
here. Or we want to lead other countries to a new lowest common
denominator in indecency losing the short term comparative "border
protection" advantage but being seen to be world leaders in
greater stringency towards asylum seekers, triggering another round
of competitive tightening or at the very least leaving bona fide
asylum seekers more vulnerable in the non-existent queues.
I commend the government for its stated objective: "to resettle
some 12,000 persons each year who are in greatest need and to prioritise
those who are in need of assistance - those who are at risk if they
remain where they are and have no other means of escape other than
resettlement to a third country." Some of those persons in
greatest need have come to Australia by boat without a visa and
we have treated them appallingly. There is no reason why the government
objective cannot be achieved together with the objective of treating
asylum seekers within our territory firmly but decently. The immorality
and inequity in world burden sharing resulting from our present
"slam the back door" policy is highlighted by a simple
thought experiment. Imagine that every country signed the Refugee
Convention and then adopted the Australian policy. No refugee would
be able to flee from their country of persecution without first
joining the mythical queue in their country of persecution to apply
for a protection visa. If anyone dared to flee persecution, they
would immediately be held in detention (probably for a year or so)
awaiting a determination of their claim. All refugees in the world
would be condemned to remain subject to persecution or to proceed
straight to open-ended, judicially unreviewable detention. The purpose
of the Refugee Convention would be completely thwarted. The myopic
argument runs that we Australians are entitled to design a sledge
hammer to crack this small nut because other countries have not
(yet) adopted our policies and because we are prepared to take 12,000
applicants through the front door provided they stay in the queue
back in the country of persecution or first asylum.
If detention is to remain a cornerstone of Australian border protection
and front door immigration entry, there is a need for alternative
arrangements to render the present detention policy more humane
and effective. Given the modesty of the problem confronting Australia,
we would do well to ensure compliance with the standards set by
other countries receiving far more asylum seekers across porous
borders than we ever have. I propose three simple questions: Given
that we have the advantage of geographic isolation, why don't we
try to be just a little more decent rather than less decent than
other countries with the same living standards when it comes to
our treatment of those who arrive (whether with or without a visa)
invoking our protection obligations? Or if that is judged too naïve,
how about we aim to be just as decent as those who receive ten times
more asylum seekers than we do? Or if that is too much to ask (given
the fear driven mandate of the recent election), how about we limit
our indecency to our treatment of adults, ensuring that never again
are kids put in the line of batons and tear gas in the name of border
protection, as they were at Woomera this last Easter?
While we await the European reviews of law and policy next year,
our politicians should be urged to make these immediate corrections
to our own law and policy:
- Those claiming to be asylum seekers inside our territorial waters
should be escorted to Christmas Island for processing by navy
personnel who place the highest importance on the safety of life
at sea and who always respond to those in distress.
- Initial detention at Christmas Island should be limited to
identity, health and security checks. There should be resident
child protection officers at Christmas Island. No child should
be treated as a security risk.
- Those who have passed these checks and not been screened out
as bogus claimants should be moved to the Baxter reception and
processing centre which should be conducted for reception and
processing rather than for deterrence and punishment. Better still,
they could be moved to one of the urban centres such as Villawood
with provision for day release. Any person absconding would forfeit
the entitlement to future day release. Curtin, Port Hedland and
Woomera should be closed. Alternative detention arrangements outside
Baxter should be set up in Port Augusta and/or in the large vacant
Whyalla housing stock where many in the local community are anxious
to welcome newcomers. Alternative detention should be available
to any person for whom a primary decision is still pending after
four months or an RRT decision after two months of lodgement.
- There should be regular State services on hand at reception
and processing centres, especially police and Childrens services.
The State governments should be adequately resourced and free
to deliver professional services without political interference
- There should be an independent guardian for unaccompanied minors
who can exercise the powers of guardian without the conflict of
interest and artifices which surround the present guardianship
arrangements. We must avoid the farcical situations such as the
guardian offering his ward a financial incentive to return to
a war zone because the guardian has a vested interest in having
the child leave the territory.
- The influences on primary decision makers which lead them into
regular error in the assessment of Iraqi and Afghan claims should
be investigated and removed.
- RRT members should be given sufficient security of tenure,
if need be after an initial probation period during which time
their decisions would be automatically reviewed by senior members,
to ensure the integrity of their decision making process immune
from improper ministerial and departmental influence.
- Successful applicants should be given a visa which entitles
them to family reunion and international travel as specifically
provided in Article 28 of the Convention on Refugees of which
Australia is unquestionably in breach. A temporary protection
visa should be made permanent if our protection obligations are
still invoked three years later.
- We should maintain a commitment to at least 12,000 off-shore
refugee and humanitarian places each year in our migration program
regardless of the number of successful on-shore applications for
refugee status we receive. There is no reason to think that our
on-shore caseload will increase exponentially given the improved
regional arrangements and the tighter controls within Australian
- We should abolish the Pacific solution.
- If the High Court upholds the validity of the privative clause,
we should abolish the concept of a distinct Australian migration
zone given that our processing and appeal system would be sufficiently
streamlined to process all comers. The AFP has already warned
that the excision of further islands from our migration zone may
"deflect illegal immigrants to regional centres with better