Archive for the Refugees Category

Bernard Keane writes in Crikey that in the wake of the demolition of the Government’s “Maylasia Solution”,

We’re left with the policy problems of how many asylum seekers Australia should take, and how we can stop lives being placed at risk.

The point of the Malaysian deal — a deal seemingly more criticised than properly understood — was to try to address both at the same time. When all the cheering has stopped, we still need to address those issues. And doing nothing, warehousing people on Nauru before inevitably allowing them to come to Australia or only giving them Temporary Protection Visas, aren’t any more solutions than what’s left of the Malaysian deal now that the High Court has ripped it apart.

What I really don’t understand, though, about the latest High Court decision / policy train wreck for the Government, is why this was never tested before.

The High Court decision kind of appears to say that maybe transporting people to Nauru was different because – I paraphrase – Australia was still responsible for all the processing, and because the MOU between Australia and Nauru was really short and probably created formal obligations for both countries. Or because refugees had already been carted off to Nauru, so the relevant section of the Migration Act obviously can’t have meant that it’s not OK to cart refugees off to Nauru. (It’s paragraphs 128 and 169 if you’re really that nerdy).

But the broader logic of the decision seems to be that unless the international and domestic legal protections for the protection and welfare of refugees are in place in the country concerned – and it would seem that they were not present in Nauru in 2001 and, arguably, still are not today – Australia can’t send them away.

Father Frank Brennan, and other commentators are highlighting that the judgement at the very least raises serious questions about the legitimacy of processing refugee claims on Nauru or in Papua New Guinea. Don Rothwell, Professor of International Law at ANU is quoted all over the place, saying

At face value it would be difficult at the moment to see how either Papua New Guinea or Nauru would immediately meet [the High Court's] criteria.

Are you seriously telling me that we could have avoided Howard’s “Pacific Solution” entirely if someone had just mounted a challenge to the Government’s power to arbitrarily “declare” a country an appropriate place for warehousing people for their asylum claims to be processed??!!

Lawyers, lawyers, lawyers. What were you doing between 2001 and 2007?

There was a High Court challenge in 2001 to a Federal Court decision about the legality of the detention of people on board the Tampa. But the High Court basically refused to hear the challenge. I think the argument went something like, “Well, maybe these people were detained unlawfully and carted off against their will to Nauru. But they’re on Nauru now, so I guess we’ll never know.”

The High Court’s decision is probably good for asylum seekers. Though that depends on what else the Government is prepared to try in order to “stop the boats”.

It is also probably bad for the Government. Though that depends on what lengths the Opposition is prepared to go to in order to make political capital from a policy failure and ongoing human tragedy.


Sorry. Definitely bad for the Government.

Under Australian law and policy, “indefinite detention, even for life in the worst conditions imaginable, is lawful.”

Julian Burnside QC, explores the legal history of Australia’s treatment of asylum seekers over at New Matilda.

Australian governments, both Liberal and Labor, have repeatedly shown that they are willing to ignore all the dictates of human decency when the object of their attention is a group of people who are politically unpopular.

The Centre for Policy Development has just released a new report on Australia’s policies on refugees and asylum seekers, entitled A New Approach: Breaking the Stalemate on Refugees & Asylum Seekers (pdf).

The report has been endorsed by 34 prominent Australians (their statement is here).

The report itself is very thorough and thoughtful, and a bonanza of facts and human stories – both welcome in a policy debate that largely ignores facts, and dismisses the human dimension of “border control” or mandatory detention.

They call for change in the public and political debate in Australia, renewed regional cooperation, better post-arrival support for asylum-seekers, an end to offshore processing and a move from mandatory to risk-based detention, with firm time limits (30 days for adults and 14 days for children) on how long someone can be detained unless they are deemed a security or health risk.

From a policy angle, everything they’ve written seems pretty sensible and would be substantially more humane and cost-effective than our current policies.

My big concern, though, is that the authors really present no plausible road-map for how we get there from here. What and who needs to change and how could that change come about for Australia to achieve a facts-based, non-hysterical, compassionate set of policies towards asylum-seekers and refugees? Apart from calling for more “national leadership”, what actually do the authors think can happen that will get us from where we are to where they want us to be?

In short, it seems like great policy, but not enough politics.

For example, the two recommendations for changing the public and political debate in Australia are to develop an independent commission to facilitate informed political and public debate and also an Independent Refugee Asylum and Humanitarian Assistance Authority to administer all aspects of policy. “What we need,” the report reads,

is a small independent and professional commission to promote informed debate about refugees.

Now, informed debates faciliated by independent and professional commissions are bound to be great. And I’m sure it would be wonderful if all public policy was formed after sober debates facilitated by independent and professional commissions.

But how is that independent and professional commission supposed to get traction in the public debate when every boat arrival is breathlessly reported on by media outlets? How is its supposedly informed debate meant to trump the political advantage which is there to be seized by whoever can most relentlessly stoke fear and portray refugees and asylum-seekers as threats to national security and sovereignty?

Because I think we have two rival views at work here. On the one hand we have a view (perfectly encapsulated in the slogan, “Stopping the boats”) which places “border protection” and “national sovereignty” higher than any other value. The appeal to national security and border protection, and its rhetoric exploits notions of boundaries and the prevention of bodily contamination or defilement (in this case, the defilement of the body politic by the unwanted, and potentially threatening, other).

Like an airborne virus or an invasive parasite attacking the body, asylum-seekers have transgressed certain physical and metaphorical boundaries and our response, or at least the response of many, is revulsion. I think the (at least partially) metaphorical nature of Australia’s borders is readily seen in the ease with which vast swathes of Australia can be legislatively removed from our “migration zone”.

And when asylum-seekers are viewed in this light, it is inevitable that they will also be subject to negative moral judgements. “Queue-jumpers.” “Illegals”. The kind of people who would throw their children overboard (except they didn’t).

It is also inevitable that our revulsion will be used to justify harsh responses (mandatory detention, removal of family reunion rights, towing boats back to sea, and so on).

The other view, that taken by the report’s authors, is that asylum-seekers are people. People who, because of certain traumas, have undertaken difficult and dangerous journeys to reach a place where they hope they might find safety and security. People who should be treated with, at a minimum, respect and, perhaps, even with a modicum of compassion and hospitality.

I’m completely with the report’s authors on this. And the facts, of course, are on their side. The tiny numbers of boat arrivals poses no meaningful threat to Australia’s “sovereignty”. Most people who arrive by boat are found to be refugees who are genuinely in need of a safe haven in Australia. Very few pose any kind of health or security threat to Australia, and a short period of detention for the purposes of security and health checks is entirely justifiable.

But my question is, how do we make it politically possible for Australia’s politicians and immigration system to treat asylum seekers differently?

How can we shape the national conversation and responses so that human rights and values trump abstractions of “border security” and “sending messages to people smugglers”?

How will we ensure that politicians flourish electorally by standing on principles of compassion and inclusion, rather than fear and exclusion?

How will we ensure that mercy wins out over sacrifice?

For a take on the politics of this, David Marr’s article is good.

Australia’s policy of mandatory detention (imprisonment for an indefinite period without judicial review) for asylum seekers arriving by boat is wrong on just about every level. It is immoral: degrading people’s dignity and harming their physical and mental health. It is expensive and inefficient. It is likely to breach Australia’s obligations to uphold human rights. And it is highly questionable whether it achieves any valid policy goal anyway.

But, none of that matters. Since the policy was first developed by the Labor Government in 1992, asylum seekers who arrive by boat (but not by plane) have been locked up sometimes for years on end. Often in remote locations with limited access to health care, legal advice, or educational and recreational opportunities for children and adults. And in the iterations of Australia’s “border protection” policies since the arrival of the MV Tampa in 2001, they have been carted to other countries (Papua New Guinea, Nauru, and – possibly soon – Malaysia) to be processed or warehoused.

The human cost doesn’t matter: stress-related physical health problems, self-harm, depression, suicide attempts and suicides. In fact, when the Australian Medical Association made the obvious point, that

the system of mandatory detention of asylum-seekers is inherently harmful to the physical and mental health of detainees. The harm is especially acute in the case of children.

their considered opinion was swiftly rejected as mere politicking.

The ridiculous financial waste doesn’t matter. Regarding the cost of keeping people in mandatory immigration detention, Bernard Keane’s back-of-the-envelope estimate of $113,000 per asylum seeker is probably not too wide of the mark.

The damage to Australia’s international reputation and the functioning of international human rights regimes doesn’t matter. The United Nations Refugee agency regularly asks Australia to live up to its international obligations. Navi Pillay, UN High Commissioner for Human Rights referred to our “hardline and unsustainable immigration detention policies” in her address(pdf) to the 17th session of the UN Human Rights Council last May.

Policy incoherence and ineffectiveness also doesn’t matter. After almost 20 years of mandatory detention, there is no evidence that it has deterred boat arrivals. There is no evidence that it has made processing people’s cases easier than it would otherwise have been (and given the remoteness of many of the detention centres, there’s no reason to see why it would be). There’s no evidence that it makes removing unsuccessful asylum applicants easier and none that it makes integrating successful applicants into the community easier. And, given everything we know about the impact of extended imprisonment on asylum seekers, it’s easy to intuit that mandatory detention probably makes successful integration harder. Which is a real problem, given that around 80% of people who arrive by boat are found to be refugees.

When even the Secretary of the Department is trying to feed politicians the questions they should be asking at a parliamentary inquiry (pdf), you know there is a serious deficiency in the rationale for the policy of mandatory detention.

Is immigration detention a deterrent? Does immigration detention facilitate case resolution? What range of facilities should be utilised? For how long is an immigrant arrival and status determination process in a detention centre environment required?

Why does none of this matter?

Because it’s what our Government and the Opposition want. The Minister for Immigration says that mandatory detention is “an essential component of border control.” The Shadow Minister agrees.

And because it’s what we want. According to this poll from October 2010, 53% of respondents would rather have children in detention centres, than to allow them to live in the community while their claims are being processed.

We want the costly and ineffective policy of mandatory detention for boat arrivals. We don’t mind that this policy fails to meet basic standards of human rights. We are happy to have a policy that has self-harm and suicide as its inevitable byproduct. And, when asked, we want to ensure that children are caught up in the policy drag-net too.

… the evil of indefinite mandatory detention of asylum seekers on Nauru (and Baxter, etc.), Peter Martin has posted the transcript of Dateline’s February 2003 program – Inside Nauru: Pacific Despair.

SADISA, DETAINEE (Translation): I want to get out of here. We’re so tired. We’re tired, we can’t take it any more. Yesterday my son wanted to put his hand in the electricity. You can record that. He wanted to electrocute himself. It’s been a month since we had food, water, cigarettes, doctor… What have we done? What have we done wrong? Where are humanity and human rights? Where’s Australia?

And while the physical conditions on Nauru and Manus Island were generally regarded as poor, and there was very limited access to health and legal assistance, the aspect that all the asylum-seekers found worst, was the emotional and mental toll that the indefinite detention and uncertainty exacted. And on that score, while physical conditions in Australia’s detention centres may be better, the mental health impacts on asylum seekers are not necessarily.

The Joint Standing Committee on Migration’s 2005 investigation (pdf) into conditions at the Baxter Immigration Detention Centre and the Port August Residential Housing Project found that:

3.32 While the physical conditions in the Baxter IDF are reasonable, the Committee feels that they are not conducive to good mental health and well-being. The Committee cannot deny the impact of long term detention.

3.33 The personal accounts expressed during the roundtable with detainees indicate that the strain on detainees awaiting the results of appeals for prolonged periods is immense.  The Committee believes that the length of detention has a close correlation with the development or exacerbation of depressive conditions in a number of cases.

That’s right, even a cross-party Parliamentary committee has to admit (in cautious, diplomatic language) that Australia has taken people who have broken no law, committed no crime, and who are seeking refuge from a well-founded fear of persecution, and we have knowingly caused them to become mentally ill, or have worsened existing depression.

And we have done this, knowing that there are more humane and more cost-effective(pdf) alternatives.

And as for the Coalition’s promise to reintroduce Temporary Protection Visas should they win the election, the strongest, clearest critiques of this appalling policy I can find are:

Can you imagine what temporary entry would mean? It would mean that people would never know whether they would be able to remain here. There would be uncertainty, particularly in terms of learning English, in addressing the torture and trauma so they healed from some of the tremendous physical and psychological wounds they have suffered. So I regard (the) approach (calling for  temporary protection visas) as being highly unconscionable.


The spurious claim is made that Australia’s refugee policies should be changed and that, at best, Australia should only be a temporary haven for refugees before they are sent back again when “things get better”. Those views are deeply flawed and dangerous… Creating uncertainty and insecurity as these views undoubtedly do is one of the most dangerous ways to add to the harm that torturers do.

It is even well documented that in pursuing domination, regimes that practise torture deliberately set out to create a climate of fear and chronic alarm by removing any sense of safety or control from those they seek to oppress. The(se) views and policies … would only continue the suffering of refugees who have been tortured and could well complete the insidious work that torture began.

Australia must and will remain true to its traditions of welcoming people who have fled to this country fearing persecution in their original homeland. We must not and will not turn our backs on those who come here for refuge. To do so would be to betray our moral obligation as a community and to betray that great Australian tradition of helping out those in need.

And who are these passionate advocates for refugee rights? These loony lefties who are weak on border protection?

Howard Government Immigration Minister, Philip Ruddock, and Howard Government Health Minister, Michael Wooldridge, speaking against One Nation policy in 1998.

Just a few months before they adopted it themselves.

You got refugees? We like to call ‘em convenient skin-encased opportunities for rampant xenophobia and political mischief-making.

Well, Bill Easterley has a blog. Which is good.

Though it turns out he doesn’t much like simulation games. Or the Davos World Economic Forum. Or simulation games about refugees. Or invitations to simulation games about refugees sent to Davos participants. Or something.

What do you think of the Davos rich and powerful going through the “Refugee Run” theme park re-enactment of life in a refugee camp?

Can Davos man empathize with refugees when he or she is not in danger and is going back to a luxury banquet and hotel room afterwards? Isn’t this just a tad different from the life of an actual refugee, at risk of all too real rape, murder, hunger, and disease?

Did the words “insensitive,” “dehumanizing,” or “disrespectful” (not to mention “ludicrous”) ever come up in discussing the plans for “Refugee Run”?

I hope such bad taste does not reflect some inability in UNHCR to see refugees as real people with their own dignity and rights.

TEAR Australia (and especially the people of TEAR’s southern Sydney support group) had a hand in shaping the simulation event (it’s not a theme park, Bill – sheesh, read the invitation properly) that is being run there. Though I should emphasise we had nothing to do with it being run in Davos. That is all the work of Crossroads in Hong Kong, taking it global!

But, unlike the majority of Easterley’s commenters – who seem also to have drunk his elixir of curmudgeonliness – I can’t see it is a bad thing. Sure, if it is run as a piece of party entertainment for the world’s elite, then obviously that is a bad thing. Knowing the Crossroads mob, though, that won’t be the case.

I’ve been involved in running that particular simulation many, many times in Australia. And it never failed to challenge people’s prejudices about refugees, and raise awareness of their plight and empathy for them as people. Like all simulations it captures only partially the experience it simulates. (Though why this counts against it for some of Easterley’s commenters is beyond me. Nothing  apart from being a refugee would fully represent the experience of being a refugee to someone who has not been through that tragedy, but a well-handled simulation can raise awareness, generate empathy, and pose challenging questions. I suspect most of the commenters aren’t teachers and don’t recognise the value of this kind of activity that blends cognitive and affective learning and reflection.)

The relevant questions to ask are, does the simulation prompt participants to think more deeply about the issues it raises? Does it make them more or less likely to understand and empathise with the real, lived experiences of refugees? Does it make them more or less likely to take constructive action in support of some of the world’s most vulnerable people?

I have seen the Refugee Run simulation  challenge the prejudices many people in Australia, particularly at a time when the political and social environment was hostile towards refugees and asylum seekers. Refugee friends of mine often helped run the simulation and spoke about their experiences during the debriefing sessions, which was extraordinarily powerful. Many participants became involved in supporting refugees and asylum-seekers after going through the simulation.

I’m glad that participants at Davos (and the general public too!) have the chance to go through it. The Wall Street Journal actually checked out the event, and on the basis of the experience, have a much more positive take. It would have been nice if Bill Easterley hadn’t so snidely dismissed it on the basis of the invitation alone.

You can check out the simulation here and decide for yourself if it could be a powerful consciousness-raising tool or merely cheap thrills.

The Immigration Minister has announced the Government’s intention to end the policy of indefinite and unreviewable detention of asylum-seekers. Currently, anyone without a valid visa, but who is making an asylum claim, is held in “immigration detention” until their claim is heard in full, including the reviews and appeals which are essential safeguards in a process on which people’s lives hang.

I have visited Villawood many times, and there is no doubt that long-term detention has a terrible impact on the people who have been held there for long-term. I have one friend – a gifted painter – held there more than two years now. He has gone through anger and depression. He has struggled to occupy his time and his mind when the art room has been open only a few hours a day, two days a week and he, of course, is not allowed any art materials in his room. He has been without friends and family. Because Government policy up until now is that until his asylum claim is heard in full (and he has a prima facie case to be found a refugee) he must be locked up. No appeal, no review.

Long-term, indefinite and unreviewable detention has been inhumane policy (first established by Labor in 1992) that has damaged people’s lives.  Men, women and children have been detained – in some cases for years – in prison-like conditions when they never posed the slightest danger to the Australian community. Thank God this national shame is being brought to an end.

Under the new policy, to justify the ongoing detention of anyone, the onus of proof is going to on the Department of Immigration to demonstrate that someone poses a risk to the community or has repeatedly breached their visa condition. They will have to review detention every 3 months. The policy proposed by the Minister also establishes that a minimal period of detention for people arriving by boat will be used to conduct health, identity and security checks. Advocates have long argued that this is a legitimate function for detention.

It will also overturn the previous Government’s policy of applying second-class status determination procedures to anyone picked up in the “excised offshore places” like Christmas Island or Ashmore Reef – ie. pretty much any part of Australia that is not part of the mainland or Tasmania. People arriving by boat will now have access to free legal advice and full reviews of their cases.

Read the Minister’s speech. Reflect on the damage our Government has done to so many people. And speak out so that this policy can be turned into legislation, making the new policy permanent and certain. The Opposition is trying to run the line that these changes are “weak on border protection” which is vicious rubbish, so we may all need to pray for some changes of heart too.