Australia’s
Maltreatment Of Asylum Seekers
And Refugees – Part I
By George Venturini
Countercurrents.org
“When [Prime Minister] Howard was leading our country,
staffers in one minister’s office called themselves the
KKK. Used in relation to asylum seekers, it meant ‘Keep
them out, Kick them out, or Keep them in detention’. I
have heard this more than once from reliable sources and
I have no doubt that it is true.”
Susan Metcalfe, author of The Pacific Solution
(Melbourne 2010), an activist who has worked for many
years as an asylum seeker and refugee advocate.
It is correct that
(2) This right may not be invoked in the case of prosecutions
genuinely arising from non-political crimes or from acts contrary to the
purposes and principles of the United Nations.” Together
some of these treaties are referred to as the International Bill of Human Rights.
Interestingly,
Additionally,
- Convention on
the Prevention and Punishment of the Crime of Genocide (C.P.C.G.) (adopted 1948,
entry into force: 1951)
- Convention Relating to the Status of
Refugees (C.S.R.)
(adopted 1951, entry into force: 1954)
- Convention on
the Elimination of All Forms of Racial Discrimination (C.E.R.D.) (adopted 1965, entry into
force: 1969)
- Convention on
the Elimination of All Forms of Discrimination Against Women (C.E.D.A.W.) (entry into force: 1981)
- Convention Against Torture
and Other Cruel, Inhuman and Degrading Treatment or Punishment (C.A.T.)
(adopted 1984, entry into force: 1987)
- Convention on the Rights of the Child
(C.R.C.) (adopted 1989, entry
into force: 1990)
- International
Convention on the Protection of the Rights of All Migrant Workers and Members
of their Families (I.C.R.M.W.)
(adopted 1990, entry into force: 2003)
- Convention on
the Rights of Persons with Disabilities (C.R.P.D.) (entry into force:
- International
Convention for the Protection of All Persons from Enforced Disappearance
(adopted 2006, entry into force: 2010).
While
This principle reflects the fact that agreeing to
be bound by a treaty is the responsibility of the Executive in the exercise of
its prerogative power, whereas law making is the responsibility of the Parliament.
* * *
In
The policy of
mandatory detention in
Pursuant to the
policy it is a requirement that ‘unlawful non-citizens’ - nationals
from another country without a valid visa
- in Australia’s migration zone be
detained, unless they have been afforded temporary lawful status through the
grant of a bridging visa while they make arrangements to depart or apply for an
alternative visa. Most are usually granted temporary lawful status in this
manner, but if an ‘unlawful non-citizen’ is considered to be a flight or
security risk, or refuses to leave
Until recently, all
asylum seekers who arrived without authority by boat - referred
to as ‘irregular maritime arrivals’
- were detained and usually
transferred to Christmas Island while their reasons for being in Australia were
identified. The policy is in the process
of changing.
The main focus of
1) people who arrive without
lawful authority do not enter the Australian community until they have
satisfactorily completed health, character and security checks and been granted
a visa, and
2) those who do not have
authority to be in
While Australia’s
detention population is comprised of irregular maritime arrivals, some visa
over-stayers and certain other ‘unlawful non-citizens’, it is the often lengthy
mandatory detention of asylum seekers who have arrived unauthorised by boat which
attracts the bulk of the attention in the public debate.
Detention policy in
The first wave of
‘boat people’ was initially received by the Australian public with sympathy; there
was a general assumption that these arrivals were ‘genuine’ refugees and most
were granted refugee status relatively quickly.
However, continuing arrivals
became a matter of increasing concern with what would generously be referred to
as ‘public discussion’ soon focusing on such issues as rising unemployment and
the impact of people ‘jumping the immigration queue’. ‘Respecting the queue’ is one of the few
fundamental tenets of ‘Australian way of life’. The other is ‘playing the game’ -
an almost untranslatable expression which has something to do with
cricket, at the essence of life ! Of
course, the foundation elements of that life could be listed under ‘s’: sun,
sand, surf, sports and soldiering
- a lot of it, as it becomes
self-designated inheritors of the glorious British past. Such ‘s’ are generously distributed under the
exclusive word of ‘mateship’. The
concept (?) is inexplicable other than to say that it describes a communion
shared by men only - sheilas
(women) cannot partake of it.
Spiritual poverty, a sense of illegitimacy of tenure because of the
original invasion and subsequent devastation of the Indigenous People,
self-inflicted ignorance, and a limited but strongly authoritarian view of life
have from the beginning of the penal colony established a complex attitude to
‘the other’ which vacillates from an intense dislike of ‘different people’ to
an open, often mutating, but never abandoned prejudice against classes of
people. That explains the substantially
racist nature of the place and the occasional xenophobic explosions.
In the late 1970s
three Australian facilities could be described as immigration detention
centres, in
The initial wave of
boat people comprised 56 boats from
These initial
difficulties led to the enactment of the Migration Legislation Amendment Act 1989, which introduced
changes to the system of ‘processing’ boat arrivals and allowed officers to
arrest and detain anyone suspected of being an ‘illegal entrant’. Detention
was still discretionary and not mandatory until 1992, but the changes made in
1989 effectively introduced a policy of ‘administrative detention’ for all
people entering Australia without a valid visa, or any others unlawfully present
in the country, while their immigration status was resolved.
The second wave of
boat people was held in detention in Villawood -
which was still unfenced.
The next wave of boat
people, mainly from
However, most of the detainees
of the second wave were not ‘processed’ quickly and -
for good measure - all remained in custody for the entire
period of their refugee determination process. Between November 1989 and January 1994,
eighteen boats arrived carrying mostly Cambodians, Chinese and Vietnamese nationals,
with one third remaining in detention until the end of this period - some
of whom were in custody for over four years.
In response to this
second wave of boat arrivals the Port Hedland Immigration Reception and
Processing Centre opened in 1991 in order to accommodate some of the -
mostly Cambodian - asylum
seekers. The removal of asylum seekers
to this relatively isolated centre on the site of a disused mining camp in
north-west
As a result of the
enactment of the Migration Legislation Amendment Act 1989, numbers of immigration detainees began slowly to increase by
leaps and bounds. For example, on
In 1989 the average
length of stay in immigration detention was 15.5 days, but for the Cambodian
asylum seekers who arrived by boat in 1989, the average length of stay -
until a primary decision was made on refugee status -
proved to be 523 days.
While the main factor
contributing to the increased use of immigration detention was the arrival of
several boats carrying Indochinese asylum seekers fleeing the region in the
aftermath of the Vietnam war, there were also ‘unlawful non-citizens’ who had
arrived in the country originally by air.
This was partly due to the fact
that in the 1980s and 1990s there was pressure on the Australian Government to
address concerns over the number of ‘undocumented migrants’ or visa over-stayers
in the community - a sizeable number of 90,000 in 1990. The 1990
Joint Standing Committee on Migration Regulations report noted the issues of
public concern. The control of ‘unlawful
non-citizens’ had taken on a new urgency because the problem was coupled with
or compounded by fears of an increased movement of asylum seekers. The two
issues were to be seen as different, but the presence of unlawful entrants had
come, whether correctly or not, to symbolise the inability of governments to
control their borders, and in
Fear has dominated
the life of the country from the very beginning. ‘Border control’ became an obsession and an
easy electoral appeal.
So it was in 1992
that the policy of mandatory detention was introduced by the Keating (Labor) Government,
with the support of the Opposition, through the enactment of the Migration
Amendment Act 1992. Mandatory detention was initially envisaged as
a temporary and ‘exceptional’ measure to deal with a particular class of
‘designated persons’ - Indochinese
unauthorised boat arrivals. In his second reading speech, the Labor Minister
for Immigration stated quite firmly the Government’s determination that a clear signal be sent that migration
to
Detention of unlawful
arrivals has not changed in twenty years !
Mandatory detention
was subsequently extended to all ‘unlawful non-citizens’ with the enactment of
the Migration Reform Act 1992, which
came into effect on 1 September 1994. The
Act established a new visa system making a simple distinction between a
‘lawful’ and ‘unlawful’ non-citizen. Under Section 13 of the Act, a migration
officer had a duty to detain any person suspected of being unlawful. Quite importantly, the Act removed the 273
day detention limit which had applied under the Migration Amendment Act 1992. Mandatory detention became indefinite
under the law. Over-stayers could apply
for a bridging visa which allowed them to stay in the community while their
claims were assessed. The Act had the support of the Coalition Opposition.
In an acknowledgement
of the high costs of mandatory detention, and by way of discouraging further
‘unlawful arrivals’ the Act also
introduced detention charges - called detention debts - whereby an ‘unlawful non-citizen’ was liable
for the costs of her or his immigration detention.
In his second reading
speech Minister Hand provided the Government’s rationale for some of the
amendments. He proposed “a range of
measures to enhance the Government’s control of people who wish to cross our
borders. The Bill sets out more effective means of regulating entry, detention
and removal of people who do not establish an entitlement to be in
The Minister made it
quite clear: the Government did not intend to detain people indefinitely and,
initially, a time limit was given.
Still, it is beyond
comprehension that the Minister could say without blushing that: “
Here was the
Minister, reassuring Parliament that: “The Government has no wish to keep
people in custody indefinitely and I could not expect the Parliament to support
such a suggestion. Honourable members will note that the amendment calls for
custody for a limited period. The period provided for in the amendment is 273
days - this translates into nine months.”
In fact, however, as
already noted, the 273 day time limit
was subsequently removed by the Migration Reform Act 1992 and, with indefinite detention
permitted under Australian law, many instances of prolonged detention have
occurred over the years.
Successive
governments have argued the need to ‘retain mandatory detention to support the
integrity of
* * *
Since the 1990s the
detention of asylum seekers in often remote locations has received a great deal
of public attention - and, by and large, approval. Only for a small minority, the duration and
conditions of detention have been controversial issues; yet they have plagued
successive governments beginning in the early 1990s when there were several
hunger strikes, rooftop demonstrations and suicide attempts at Villawood and Port Hedland.
It is possible to
establish a degree of continuity between the 1992 provisions and those put
forward by the Howard Government’s Minister for Immigration, Philip Ruddock ten
years later. Successive governments and other supporters of Australia’s
mandatory detention policy have claimed that it is an ‘integral part of the
highly developed visa and border controls’ necessary to maintain the integrity
of Australia’s much vaunted ‘world class migration and refugee resettlement
programmes’. Defenders of the policy of
mandatory detention have furthermore been successful in attributing to the
victims the causes of their prolonged detention: they came to be blamed for
their actions and determination to remain in a more prosperous country. Detainees -
mostly those who had escaped one form or another of persecution -
have always been ‘free to leave at any time’, and cynically invited to
“Go back where they came from”.
Late in 2011 the Minister for Immigration of the Gillard Government announced a change in policy whereby ‘eligible boat arrivals who do not pose risks will be progressively considered for community placement on bridging visas while their asylum claims are assessed’, but most ‘unlawful arrivals’ continued to be mandatorily detained ostensibly for the purpose of health, security and identity checks.
* * *
The numbers of
Indochinese boat arrivals between 1976 and 1994 were relatively small - just
over 2,760 people. However, between 1999 and 2001
The issue of
providing additional and appropriate accommodation to avoid overcrowding and a
deterioration of conditions was a significant challenge for the Howard
Government with the surge in boat arrivals in the late 1990s and is proving to
be the case again for the Labor Government following a surge in arrivals since
2008.
In October 1999 the Howard
Government introduced temporary protection visas enabling the release into the
community of many detainees who had been granted refugee status. However,
protection and therefore residency in
While this measure had the potential significantly to reduce the number of people in detention, it was criticised by many for only providing protection for a limited period of time - three years initially; for not allowing refugees to sponsor family members under the family reunion programme - with the result that more family groups began to arrive by boat; and for not affording access to the full range of government services provided to refugees with permanent visas.
The conditions in
detention centres, prolonged detention and the physical and psychological
effects on detainees on
With the rapid
increase of asylum seekers arriving by boat in 1999-2000, the rate of
processing slowed again and by the end of December 2000, of the 2,023 people in
detention, 18 per cent had already been detained for a year or more.
On 26 August 2001 the Howard Government refused permission for the Norwegian freighter MV Tampa, carrying 438 rescued refugees, predominantly Hazaras of Afghanistan from a distressed fishing vessel in international waters, to enter Australian waters.
Hazara people live
predominantly, but not exclusively, in the central highland region of
When the
The asylum
seekers were subsequently transferred to H.M.A.S.
Manoora and taken to the Pacific
On
Once approved the Act would give the Government the power to use reasonable force to remove any ship from Australian territorial waters; forcibly to return any person to such a ship; and to guarantee that no asylum application may be made by anyone on board.
The purpose of
the Act was to make the Government’s actions against the MV
Tampa legal and to allow
The Government
introduced the so-called ‘Pacific
Solution’, whereby the asylum seekers were to be taken to Nauru where their refugee
status was to be considered, rather than in
On
On
Under the ‘Pacific Solution’, Christmas
Island, Ashmore and Cartier Islands and the Cocos (Keeling) Islands were
excised from Australia’s migration zone, meaning that non-citizens arriving
unlawfully - without valid documentation -
at one of these territories were
not able to make a valid application for a visa to Australia, including protection
visas, unless the bar on the visa application process was lifted at the
discretion of the Minister.
From then on,
unauthorised arrivals at excised places were transferred to Offshore Processing
Centres which were established on Manus Island of Papua New Guinea’ Manus
Island, with an area of 2,100 kilometres
- 810 square miles, situated
some 1,700 kilometres from the nearest Australian International Airport in
Cairns, and Nauru, which is some 3,000 kilometres from the same airport. There they would remain while their asylum
claims were processed. Persons who were found to be owed protection were eventually
resettled either in
On 7 October 2001 SIEV 4 - the acronym
standing for Suspected Illegal Entry Vessel
is used by the surveillance authority for any boat which has entered Australian
waters without prior authorisation and the 4 is a designation where a tracking number
has not or is yet to be assigned, in accordance with Australian Government
orders - a fishing boat carrying 223 asylum seekers
was intercepted by Australian Navy ship H.M.A.S. Adelaide north of Christmas Island.
The federal election was announced.
On
On
On
On
In a later
interview with the Edmund Rice Centre, based in New South Wales, an Iraqi
survivor removed from the Tampa to
Australian Navy boat Manoora revealed
the conditions under which she and others were taken to Nauru: “We refused
to land in Nauru and were kept on the boat for one month in a room large enough
for 100 and we were 350. We could not breathe; there was not enough room and
the toilet facilities were terrible, terrible.”
The Howard
Government took full advantage of the opportunity caused by the
In early
November 2001 Dr. John Pace, former secretary to the U.N. Commission on
Human Rights and Chief of Branch Office of the High Commissioner for Human
Rights, visited Nauru and reported back to Amnesty International that asylum seekers
showed “symptoms of post-traumatic stress disorder, including nervousness,
anxiety, an aggressive attitude, muteness, distrust, withdrawal, and lack of
focus and concentration.” These symptoms affected their participation in the eligibility
process. Dr. Pace found that detainees
were housed in corrugated iron huts, plastic sheeting and shade cloth, with
dirt floors; and that the huts were infested with mosquitoes and with little
protection from heat. Conditions were harsh. While there were basic health
facilities, there was insufficient psychological care.
On
On
On
The detainees
later told the British Broadcasting Corporation that
they were initially told they would only be on the island for a few weeks while
their claims were processed.
On
Labor meanwhile
was reported to be softening its attitude towards mandatory detention and the
‘Pacific Solution’.
A journalist
with The Sydney Morning Herald,
posing as a tourist to obtain access to
Early in February 2002 Immigration Minister Ruddock and Opposition counterpart Julia
Gillard M.P. visited
Interviewed by
a journalist of the Australian Broadcasting Corporation
television on her return about centre conditions, Ms. Gillard commented:
“The conditions are not what you or I would aspire to, but I do understand that
by the conditions of refugee centres around the world, that they are, you know,
adequate conditions, not bad conditions.”
On
On 22 March 2002, in
a submission to the Select Committee, Australian Lawyers for Human Rights argued that the ‘Pacific Solution’ was incompatible with
Australia’s obligations under international law, that its operation lacked
transparency and that it provided insufficient access to refugees. Journalists insisted
that Non-government organisations and the Human Rights and Equal Opportunity
Commission should be allowed access to the centres.
On
There were now
1,155 people detained in
In May 2002 the Australia
Government announced that the 2002-2003 Budget would “focus on removing some of
the ‘push factors’ from source countries,” with $5.8 million provided over
three years in assistance for Afghan asylum seekers who volunteered to return
to Afghanistan.
In June 2002 Refugee
activist Ms. Kate Durham and founder of Spare Rooms for Refugees entered
A Catholic
priest visited the island and reported
that Australians “will look back on this policy of the Pacific Solution with
shame and regret. We will recognise it for what it is: a xenophobic fear-ridden
reaction, well served by obscene political opportunism in keeping with the now
discredited White Australia Policy.”
On
On
Although the
Committee did not find the ‘Pacific Solution’ to be in breach of the Convention
relating to the Status of Refugees, it noted concerns in relation to the International Convention against Torture and the Convention on the Rights of the Child, particularly in
relation to people being held in detention after they have been found to be
refugees. It was concerned about the lack of transparency in the application
process. Less than 400 of the
The Liberal
senators on the Committee dissented, condeming the report as an undignified sideshow.
On
On
On 20 December 2002, according to a report titled Soldiers, sailors and asylum seekers,
co-authored by human rights lawyer Julian Burnside, Q.C., asylum seekers on
Nauru and Christmas Island were being tortured and treated in an inhuman, cruel and degrading way. “…[I]f
the government is not prepared to investigate these claims seriously, I would
take that as an admission that they’re true.” Burnside wrote. He called for a Senate
or judicial inquiry. Labor M.P. Dr. Carmen Lawrence
launched the report, saying: “[T]hese are circumstances where people are held
indefinitely, in many cases without hope, and without any review of their
conditions. …lack of hope and the brutality, both physical and psychological,
produces devastating consequences on human beings.”
On
On
On
On 29 January 2003 Australia’s Special Broadcasting Service’s Dateline and The Sydney Morning Herald reported that, following the 24 December protest, asylum
seekers on Nauru complained that they had no running water and were living on
one meal a day. There were allegations
that children were threatening suicide. In
the Dateline programme, a Nauruan
policeman alleged that Australian Protective Service officers left food and
water at the front gate. Guards and asylum seekers had thrown rocks at each
other during the protest. The Australian
Protective Service said that it had no evidence to support the claims.
Asked about the
situation on
On
On
On
On
On
On
On
The Australian
Greens called for offshore detention centres to be closed immediately. “ [Nauru] is a despairing camp more akin to a
penal colony in Australia 200 years ago than to the sort of Australia we
respect ourselves for running in the year 2003 … Growing fears of serious
injuries to those in detention in Nauru, or even fatalities, cannot go unheard.”
Greens Leader Bob Brown said.
Labor said that
“
The (
On
On
On behalf of
Nauru detainees, human rights lawyers sought a court declaration that the they were being held
illegally. Julian Burnside, Q.C. accused the Government of trying to force the detainees
back to
On
On
It said that
those who did not qualify as refugees, but could not for security reasons be
transferred to their countries of origin, should be treated humanely while a
solution was found which would not involve continued detention in harsh
conditions. U.N.H.C.R. described the
hunger strike as “symptomatic of a general degree of despair that must be
addressed with a view to responding humanely to what is becoming a
human tragedy.”
On
On
On
The United Nations
High Commissioner for Refugees said that it began reviewing 46 detainees’
claims several months before, given the deterioration of the situation in
On
On 29 December 2003 the Australian Council of Trade Unions president Sharan Burrow and Howard Glenn, A Just Australia director, wrote to the New Zealand Prime
Minister Helen Clark urging her to intervene in the strike. “We know that
this is an unfair request, but we are desperate to save these lives.”
they wrote.
At the end of
2003, 35 asylum seekers, 18 of whom were in hospital, remained on hunger strike
on
On
On 3 January 2004 the
hunger strikers wrote to the Australian Government saying they would end the
protest if they were assured that their claims would be reviewed fairly using
an interpreter of their trust. U.N.H.C.R. said that it
expected that some claimants, who were initially refused, would be recognised
as refugees.
On
On 11 January 2004 child psychiatrist Dr.
Louise Newman said she was particularly concerned about the damaging effect of
detention on babies and young children. She described it as a form of
child abuse.
On
On
The Australian
Government argued in the Victorian Supreme Court that the actions of
Australian personnel were valid because the Nauruan Government was detaining
asylum seekers on
On
On
On
On
On
By 2005 31 per cent of
detainees had been held for one year or more and in 2007 there were 367 people
who had been in detention for two years or more.
Between 2001 and
February 2008, when the ‘Pacific Solution’ was formally brought to an end by
the Rudd (Labor) Government, a total of 1,637 people had been detained in the
While the ‘Pacific Solution’ reduced the numbers of those who would otherwise have been detained onshore - by 1,637 people, it was widely but in vain criticised by refugee advocacy and human rights groups as being contrary to international refugee law, psychologically damaging for detainees, and unjustifiably expensive to implement. In addition, there was a great deal of criticism at the time of conditions in onshore immigration detention centres such as Baxter, Curtin and Woomera - leading to widespread unrest and riots.
While mandatory detention remained a cornerstone of the Howard Government’s attempts to deter asylum seekers arriving by boat, some softening of the policy was introduced in 2005 by the then Minister for Immigration, Philip Ruddock, through a residential housing project for women and children and community detention arrangements.
On
On
On
On
On
On
On
On
On
On
On 29 September 2006 the Edmund Rice Centre published its report Deported to danger, a study
of Australia’s treatment of 40 rejected asylum seekers. It was an inquiry
into cases of people found not to be refugees who were returned to countries of
origin. The inquiry found that authorities took a reckless view of the dangers
and discrimination faced by people in countries to which they returned. The
report documented the perils they faced including living in fear of being
arrested, imprisoned, tortured or killed.
Four Afghans
returned from
One man
explained why he decided to leave “voluntarily” even though he expected to face
danger: “This detention centre is a hell-hole. There was a lot of persecution
by [Australian Correctional Management]. I felt I had no hope of freedom ever
and I felt I would never see my wife and children again. I was very depressed.
I was afraid I would lose my mind if I stayed any longer. I felt it was better
to lose my life trying to reach my family than to lose my life in that
detention centre.”
On
On
In 2006 the Howard
Government funded researchers at the
On
On
On
On
In
On 4 September 2007 Oxfam and A Just Australia
released a report, A
price too high: Australia’s approach to
asylum seekers, which found that
the ‘Pacific Solution’ had cost the Australian taxpayer more than $1
billion over five years and more than $500,000 per person processed, seven
times more than on the mainland. It had also failed to reduce the number of
people arriving.
Amnesty
International reported that, given that
In November 2007
Prior to the 2007
federal election, the Australian Labor Party resolved to implement significant
changes to asylum and immigration detention policy if elected, including a
commitment to end the ‘Pacific Solution’, while still retaining the excision of
Christmas Island, Ashmore and Cartier Islands, and the Cocos (Keeling) Islands;
to give permanent, not temporary, protection to all refugees; to limit the
detention of asylum seekers for the purposes of conducting initial health,
identity and security checks; to subject the length and conditions of detention
to review; to return management of detention centres to the public sector - the
Howard Government had privatised the operation of detention centres in 1997;
and to set up a new Refugee Determination Tribunal.
On
On 8 December 2007 eighty one Burmese and Sri Lankan refugees held on Nauru would be allowed to
settle in Australia. Sixteen recent Indonesian boat arrivals would be
repatriated to home island of Roti.
A new
Government in Nauru said that it was worried about the loss of funds for its economy if the
scheme was discontinued.
On 8 February 2008
the ‘Pacific Solution’ was formally ended, as the last 21 asylum seekers held
at the Offshore Processing Centre in Nauru were resettled in Australia. The
Government announced that the centres on Manus and Nauru would no longer be
used, and that future unauthorised boat arrivals would be processed on
Christmas Island, which would remain excised from Australia’s migration zone. Of more than 1,200 detainees, most have been
found to be refugees, often after three years in detention. Some of those who
returned to their countries still claimed they were refugees.
Mr. David
Manne, co-ordinator of the Refugee and Immigration Legal Centre, welcomed the closure but said that there were three waves of
anguish: the first is trauma which forces people to become refugees, the second
is the period in detention and the third are the debilitating nightmares and
anxiety attacks being experienced by some after detention.
In May 2008 Labor
began to expand facilities on Christmas Island.
The Minister
for Immigration and Citizenship, Senator Chris Evans, described the Pacific
Solution as a “cynical, costly and ultimately unsuccessful exercise.” U.N. High Commission
for Refugees, Richard Towles welcomed the end of the policy. “Many bona fide refugees
caught by the policy spent long periods of isolation, mental hardship and
uncertainty - and prolonged separation from their
families.” he said.
On 29 July 2008 the
Minister for Immigration Senator Chris Evans announced in a speech to the
Centre for International and Public Law at the Australian National University,
an overhaul of the policy of mandatory detention, guided by seven ‘key
immigration detention values’ as endorsed by Cabinet:
1) Mandatory detention was to be retained an essential guarantee of strong border control.
2)
For the purpose, and with a view to supporting the integrity of Australia’s immigration
programme, three groups would still be subject to mandatory detention: 1) all unauthorised arrivals, for management
of health, identity and security risks to the community; 2) ‘unlawful
non-citizens’ who present unacceptable risks to the community; and 3) ‘unlawful non-citizens’ who have repeatedly
refused to comply with their visa conditions.
3)
Children, including juvenile foreign fishers and, where possible, their
families, would no longer be detained in an immigration detention centre.
4) Detention which is
indefinite or otherwise arbitrary would no longer be acceptable and the length
and conditions of detention, including the appropriateness of both the
accommodation and the services provided, would be subject to regular review.
5)
Detention in immigration detention centres was to be used as a last resort and
for the shortest practicable time.
6) People in
detention were to be treated fairly and reasonably within the law, and
7) Conditions of
detention would ensure the inherent dignity of the human person.
The new policy
dictated that people would be detained as a ‘last resort’, rather than as
standard practice. Unauthorised arrivals would be detained on arrival for
identity, health and security checks, but once these had been completed the
onus would be on the Department of Immigration to justify why a person should
continue to be detained. Ongoing detention would be justified for
people considered to pose a security risk or those who did not comply with
their visa conditions. It was assumed
that the majority of people would be released into the community while their
immigration status was resolved.
Changes were also announced to the processing of unauthorised arrivals at excised offshore places. Those arriving unauthorised at an excised place would be processed on Christmas Island, where asylum seekers would undergo a non-statutory refugee status assessment process, but they would have access to publicly funded advice and representation. They would also be able to access a review process for negative asylum decisions - although not through the Refugee Review Tribunal - and would be subject to external scrutiny by the Immigration Ombudsman. This was a change from the system under the previous Government, where unauthorised arrivals at excised places had no access to independent review or external scrutiny, but it still did not afford such people the same rights as those who arrived and were processed onshore - with access to merits or judicial review through the Refugee Review Tribunal and the Courts.
On 27 October 2008 the
Edmund Rice Centre reported that at least nine Afghan asylum seekers had been
killed in Afghanistan after being rejected by Australia. Director Phil
Glendinning released a documentary in which he tracked a number of rejected
asylum seekers and found that three children had died.
Despite the change in
policy rhetoric, long-term mandatory detention continued under both the Rudd
and Gillard Governments. As at 31 October 2011, 39 per cent of the detention
population had been ‘inside’ for more than 12 months.
The increase in boat
arrivals during 2009 and 2010 placed significant pressure on immigration
detention facilities. The Rudd Government responded to this pressure by
expanding the immigration detention network: $202.0 million over five years - including
$183.3 million in capital funding, and $18.7 million in related expenses - were allocated in the 2010-2011 Budget to
ensure appropriate accommodation for asylum seekers. The measure provided for
funding of $143.8 million for increased capacity at immigration detention
facilities. The measure also provided capital funding for a number of upgrades
and enhancements to essential amenities and security at existing facilities,
consisting of $22.0 million for Christmas Island, $15.0 million for the
Northern Immigration Detention Centre in Darwin, $1.5 million for Villawood in Sydney and $1.0 million to
upgrade existing residential facilities for unaccompanied minors at Port
Augusta, South Australia.
One of the key
changes to detention policy made by the Rudd Government was the removal of the
statutory requirement that asylum seekers be liable for the cost of their
detention - detention
debt, a policy which had been introduced in 1992 with the aim of minimising the
significant cost to government of holding people in immigration detention. The
Rudd Government argued that the policy was ineffective because recovering debts
had proved to be extremely difficult; the level of debt recovery over the years
averaged around four per cent. On 8 September 2009 Parliament passed the Migration
Amendment (Abolishing Detention
Debt) Bill 2009 which amended the Migration Act to remove this requirement. The Act also had the
effect of extinguishing all immigration detention debts outstanding at the time
of commencement.
However, in response to a new wave of asylum seekers arriving by boat in 2009 and 2010, the Rudd Government began to introduce changes to its policies. On 9 April 2010, citing changed circumstances in Afghanistan and Sri Lanka, the Rudd Government announced that it would suspend the processing of new asylum claims from Sri Lankan nationals for three months and from Afghan nationals for a period of six months. Those affected by the suspension would remain indefinitely in immigration detention until the suspensions were lifted - as it occurred, in July 2010 for Sri Lankans and September 2010 for Afghans.
On 30 March 2010 the
Leader of the Opposition, Tony Abbott vowed to restart the ‘Pacific Solution’
policy and returned to John Howard’s border protection rhetoric. “The problem is that under Mr. Rudd we do not
decide who comes to our country and the circumstances under which they come.” Mr.
Abbott told reporters. “Under Mr. Howard we did.”
The Rudd Government’s
temporary suspension in April 2010 of the processing of asylum seekers from Sri
Lanka and Afghanistan arriving by boat was criticised on the basis that it
might lead to their indefinite detention and would contribute to over-crowding
and processing delays in the future.
On 24 June 2010 Mr. Kevin
Rudd was replaced as Prime Minister by Ms. Julia Gillard.
In July 2010, following the change in leadership, the Labor Government under Prime Minister Julia Gillard continued in its efforts to reduce the number of people in immigration detention and deal with the problem of overcrowding - both on the mainland and on Christmas Island. In particular, the Gillard Government continued to expand the detention network in order to ease the problem of overcrowding on Christmas Island. In addition Ms. Gillard announced the Government would be moving towards establishing a regional processing centre, possibly in East Timor - although negotiations for the ‘Timor Solution’ subsequently collapsed.
Since 2010
overcrowding has placed extreme pressure on infrastructure and the detention
network generally and the Department of Immigration and Citizenship has
struggled adequately to house the
various different groups of detainees. The Gillard Government subsequently
lifted the suspensions, but over-crowding, delays in processing, and recent
protests, rioting and incidents of self harm in both onshore and offshore
detention centres attracted further attention and criticism.
Following the
re-election of the Gillard Government, on 17 September 2010 the newly appointed
Minister for Immigration and Citizenship, Chris Bowen, announced that
additional immigration detainee accommodation would be prepared for families
and unaccompanied minors in Melbourne, and for single adult men in northern
Queensland and in Western Australia - through
an expansion of capacity at the Curtin Detention Centre which had been reopened
earlier in the year. Over the following months new facilities were also
announced for Inverbrackie in South Australia, Wickham Point in Darwin and
Pontville in Tasmania.
Like the Howard
Government before it, the Gillard Government came under increasing pressure to
move children from detention centres, as had been promised in Labor’s
‘detention values’. On 18 October 2010 the Prime Minister and the Minister for
Immigration and Citizenship announced that the Australian Government would
expand its existing residence determination programme and begin moving children
and vulnerable family groups out of immigration detention facilities and into
community-based accommodation.
With pressure on the detention network continuing to increase, the Gillard Government announced several significant policy changes and initiatives in 2011.
On 5 March 2011 the
last two Iraqis to be detained on Nauru applied to the Federal Court to have
access to their security assessments. The court upheld the right of Australia’s
security agency A.S.I.O. to keep assessments secret.
Mohammed Sagar is now living in Sweden. Muhammad Faisal lives in Australia. A.S.I.O. has by now withdrawn its negative assessment
of him.
On 27
April 2011, in response to increasing unrest in immigration detention centres,
the Minister for Immigration and Citizenship announced that he would
introduce amendments to the Migration
Act, including a new provision to
strengthen the ‘character test’. Under the proposed changes a person would fail
the ‘character test’ should s/he be convicted of any offence committed while in
immigration detention would be prevented from applying for a permanent protection
visa. On 5 July 2011 the amendments were
enacted by Parliament.
On 6 May 2011, despite
human rights and development group opposition, Prime Minister Gillard indicated that she wanted to reopen Manus Island. Opposition Leader Tony Abbott urged the
government “to send a message” to people smugglers by reopening Nauru,
that he says his shadow minister Scott
Morrison has visited and found to be in good condition.
On 7 May 2011, in an attempt to
discourage boat arrivals and people smuggling, the Government announced that
Malaysia had agreed to a transfer of 800 unauthorised boat arrivals in exchange
for 4,000 refugees to Australia over four years. This proposal came to be known
in the public debate as the ‘Malaysia Solution’.
On 2 June 2011 the Government
agreed to a new select committee inquiry into mandatory detention to inquire
into Australia's Immigration Detention Network, ‘including its management,
resourcing, potential expansion, possible alternative solutions, the Government's
detention values, and the effect of detention on detainees’.
On 9 June 2011 Liberal Senator Simon Birmingham told Sky News that the detention centre on Nauru had been “overseen and approved” by the U.N.H.C.R., and the Nauruan Government continued to claim that the centre operated “under the auspices of U.N.H.C.R.” A U.N.H.C.R. spokesman said “UNHCR was not involved and, indeed, distanced itself from any role in overseeing or managing the processing facilities on Nauru under the Pacific Solution. Recent media reports that the centre on Nauru was approved by and run under the auspices of the UN are factually incorrect.” It describes the policy as “deeply problematic”.
On 29 July 2011 the
Australian Commonwealth Ombudsman announced that his office would initiate an
investigation into suicide and self-harm in Australian immigration detention
facilities in response to growing concerns about the impact of long-term
detention on the ongoing mental health of detainees. Numerous other interested parties, including
many mental health professionals, supported the Ombudsman’s inquiry and also
expressed their growing concerns about prolonged detention in immigration
detention centres and the effects it may be having on detainees.
On 19 August 2011 the
governments of Australia and Papua New Guinea signed a Memorandum of
Understanding towards the proposed establishment of an ‘assessment centre’ on
Manus Island.
On 19 September 2011, after the
High Court had ruled against the ‘Malaysia Solution’ on 31 August 2011, casting
doubt on the legality of offshore processing entirely, the Government released
the proposed Migration Legislation Amendment (Offshore Processing and Other
Measures) Bill 2011. The
Bill was introduced to the House of Representatives on 22 September 2011, but
was not pursued when it became clear that it was unlikely to be passed by
Parliament.
On 13 October 2011
the Gillard Government stated that it in addition to the expanded use of
community detention it would extend the practice of issuing bridging visas to
onshore asylum seekers - air arrivals
- to include some of those who
arrived irregularly by boat. It was proposed that these individuals would
then be released from detention into the community while their asylum
applications were processed ‘as part of the suite of measures to respond to
pressures on the immigration detention network’. It would appear that ‘as part
of the new approach to asylum seeker management’ some of the asylum seekers to
be released under this arrangement will include long-term detainees who will
‘live in the community on bridging visas while their asylum claims are
completed and their status is resolved’. On 25 November 2011 the Immigration Minister would announce that the first
group of long-term detainees were to be released under these arrangements.
As at 31 October
2011, 39 per cent of the detention population had been ‘inside’ for more than
12 months. On that day, a delegation of
refugee advocates, led by the Refugee Council of Australia, briefed
parliamentarians on best-practice community-based models to process asylum
seekers and committed to supporting detention alternatives: “Our message to the
Government is clear - we are ready to work with the Government to
build community support for successful community processing models.”
On 29 November 2011
the Government released an independent report commissioned by the Minister for
Immigration and Citizenship to review incidents of unrest at the Christmas
Island and Villawood detention
centres earlier in 2011. The report noted the stress that the detention network
had been placed under by the recent surge in boat arrivals. In the case of
Christmas Island, the report found that “the immigration detention
infrastructure was not able to cope with either the number or the varying risk
profiles of detainees”; “the rapid increase in arrivals overwhelmed the refugee
status and security assessment processing resources despite the Department of
Immigration and Citizenship’s action to train additional staff”; and “in this
environment, problems of health, including mental health, increased, and
detainee anger and frustration rose, often producing violent reactions and self
harm.”
The Gillard Government appeared to remain firmly committed to offshore processing and at the Australian Labor Party National Conference in December 2011 it was agreed that the party Platform would be amended to reflect the Government’s intention to continue to pursue this policy in the context of ‘strong regional and international arrangements to deter secondary movements of asylum seekers’. However, after the collapse of the phantomatic ‘Timor Solution’, the withdrawal of the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 and the subsequent collapse of the ‘Malaysia Solution’ - and the new proposal for an ‘assessment centre’ on Manus Island in Papua New Guinea, the Government announced other options to relieve the pressure on detention centres. Already in October 2011 the Gillard Government had proposed that some asylum seekers who arrive unauthorised by boat be issued with bridging visas - just like most air arrivals - and released from detention into the community while their claims were processed.
The Government appeared to be particularly sensitive to the problem of imprisoning children - particularly unaccompanied children. Some, but not all of them, were moved into the community.
Later on, in July 2012, while the Houston Panel was examining submissions, the Australian Human Rights Commission would deliver the Government another message: the rights of Indonesian children had been flouted for a long time under the pressure of ‘public opinion’. It would have been quite embarrassing for any lawyer, even one like Ms. Gillard, and more so for one like the Attorney-General, for Ms. Roxon had had a rather distinguished career and certainly had a reputation to defend.
For years, Australian authorities had been incarcerating Indonesian children and wrongly accusing them of being adult people smugglers. The Australian Government had been influenced by an “'adverse public discourse”' around people smugglers, according to the President of the Human Rights Commission.
Ms. Catherine Branson, Q.C. would present her report titled An age of uncertainty to the Attorney-General on 27 July 2012. In a 427 page document, most cogently argued, the Commission indicted the Australian Federal Police, the federal Attorney-General's Department and the Commonwealth Director of Public Prosecutions Office for flouting child rights - and undermining the right to a fair trial.
In 15 cases where Indonesian youth were convicted by Australian courts of people smuggling charges, it was eventually established that there was “doubt” whether they were adults when apprehended. They were eventually released, “having spent an average of 948 days in detention.” Another 48 youths, who were initially charged with adult criminal offences, had “spent an average of 431 days in detention” - including long stints in adult prisons. Ultimately, the prosecutions were abandoned.
They were, mostly poor, illiterate, innumerate youth - but Indonesian, and Muslim.
The Report would reveal how discredited wrist X-ray techniques were embraced as the best method to distinguish children from adults for prosecution purposes. The official policy at the time - as is now - was to charge minors only in exceptional circumstances. However, between 2008 and late 2011 - and thus during the Rudd/Gillard and the Gillard/Swan governments - in most cases where wrist X-rays suggested that Indonesian boat crew were “skeletally mature”, authorities immediately treated them as adults.
“We know now that many young Indonesians assessed to be adults on the basis of wrist X-ray analysis were in fact children at the time of their apprehension, or are very likely to have been children at that time.” the Report said. “Having a mature wrist is quite consistent with a person being under the age of 18 years.”
Persisting with this method, and other errors, led to “prolonged detention” of a number of children from impoverished fishing villages.
Overall, 180 Indonesian boat crew who arrived in Australian territory between 2008 and 2011 stated they were minors.
President Catherine Branson, Q.C. said that the Report exposed that “Australian authorities did not respect the rights of children” involved. She concluded that the most likely explanation was that “the adverse public discourse that we have in Australia around issues of people smuggling and the perceived need to be tough on people smugglers” influenced judgments of key agencies.
Ms. Branson said that she hoped the inquiry would lead to “mature” reflection on the strengths and weaknesses of the criminal justice system more generally. “The inquiry has revealed that this system may be insufficiently robust to ensure that the human rights of everyone suspected of a criminal offence are respected and protected.” she said.
Meanwhile, the Report also raises the prospect that the minors who crewed the boats may have been “victims of trafficking”. “Many individuals who have been investigated and prosecuted for people smuggling offences in Australia appear to have been told that they would be transporting cargo, such as rice or fruit, around Indonesian islands or that they would be taking tourists on a tour of the Indonesian archipelago.”
Attorney-General Nicola Roxon said the Report dealt with people who were subject to age-determination practices prior to changes made by the federal government in 2011. “These changes now see minors returned to Indonesia as soon as possible.” she said
The Australian Lawyers Alliance called for the Australian Government to pay compensation to children who had been illegally detained.
On 25 November 2011 the Minister for Immigration and Citizenship announced that the first group of asylum seekers - all long term detainees - would be released on bridging visas under the already mentioned arrangement.
On 22 June 2012 the Leader of the
Opposition, Mr. Abbott indicated that he would accept
no refugee proposal which would not involve re-opening Nauru. In order to
obtain support for the ‘Malaysian Solution’ which involves sending boat
arrivals to Malaysia in return for other refugees, Immigration Minister Chris
Bowen said that he would inquire into reopening Nauru. Prime Minister Gillard
also said she would consider reopening Nauru.
On 25 June 2012 The (Melbourne) Herald reported that it understood that the Government would canvass
reopening Nauru in the absence of the Malaysia deal being passed by Parliament,
and for the outside hope that it could work to stop an increasing number of
boats arriving at Christmas Island but also to prove Mr. Abbott wrong and to
put further pressure on him over the ‘Malaysia Solution’.
Government
sources denied that this resolution had been discussed but agreed that it was
likely to be considered. The Department of Immigration advised the Government
and the Opposition in 2011 that the Howard Government’s ‘Pacific Solution’,
that Labor had abandoned, would not
work again.
On 27 June 2012 a government supporter’s
private bill which included the Nauru solution as well
as Malaysia passed the House of Representatives, but failed in the Senate,
where the Australian Greens and the Coalition opposed the bill.
On 29 June
2012 human rights lawyer Julian
Burnside, Q.C. told the A.B.C.’s Triple J
and Fairfax services that asylum
seekers should be processed in Indonesia in order to prevent more deaths among
those trying to reach Australia by boat. He said that people who are found to be
refugees should be given tickets allowing them eventually to settle in
Australia so long as they don’t get on a boat. Mr. Burnside said that the
Malaysia and Nauru solutions will not curb deaths.
On 21 July 2012 Mr. Abbott
exhorted Prime Minister Gillard to make progress during Parliament’s winter break in reopening Nauru
and Manus Island detention centres. But Nauru remained closed.
Two thirds of
the 1,547 people processed on Manus Island and Nauru were eventually resettled
in Australia and New Zealand. A small number went to Scandinavia and Canada.
The remaining third returned, under pressure, to their countries of origin.
Some of them were killed and many others found conditions were too unstable and
unsafe for them to remain and made their way to other countries.
* * *
Problems surrounding
mandatory detention have been the subject of vigorous debates since it was
introduced in 1992, igniting great passion in both its supporters and
detractors. The provision has been presented and retained as a necessary
measure ‘to maintain the integrity of Australia’s immigration system and
protecting our borders’. Others -
more sensitive, well informed, but not numerous, and not powerful at the
ballot box, argued that detaining asylum
seekers is contrary to the spirit and the letter of international law, is inhumane
, is largely ineffective in reducing/containing the number of unauthorised
arrivals, and finally is economically very costly.
Investigations have been followed by reports, promoted and delivered by different governments in office from time to time, and by non-government organisations since the policy was introduced in 1992.
In 1993 the Joint Standing Committee on Migration conducted an inquiry into immigration detention, following public concern regarding the mandatory detention of unauthorised arrivals seeking refugee status. The Committee’s report, Asylum, border control and detention, released in 1994, recommended that unauthorised arrivals seeking refugee status continue to be mandatorily detained for the duration of the claims process, but that there be a “capacity to consider release where the period of detention exceeds six months.”
The Report also found that the conditions, treatment and services for detainees varied considerably among the three detention centres which were the focus of the inquiry: Perth, Port Hedland and Villawood. The Commission made detailed recommendations to address human rights breaches which were identified, and significantly enhanced external oversight and monitoring of the conditions and treatment of detainees. The Coalition Government did nothing about it.
Also in 1998 the Australian National Audit Office published a report by the unflattering title The management of boat people, arguing that the detention and management of boat arrivals was costly and inefficient. Persuasive as the argument was, it would not impress the Coalition government, which was conscious of the advantages of preserving the contrived public apprehension about newcomers.
In 2001 the former Secretary of the Department of Foreign Affairs was asked by the Coalition Minister for Immigration and Multicultural Affairs to undertake an inquiry into immigration detention procedures. The resulting report expressed concerns over conditions throughout the detention system - particularly in the remote centre at Woomera - and documented several instances of psychiatric problems, self harm and sexual, verbal and physical abuse of children in Curtin, Port Hedland, Villawood and Woomera immigration detention centres. The report recommended that in its management of long-term detainees the competent Department should ensure that children are not held in detention for long periods - particularly at Woomera - and that processing times for temporary protection visas be reduced.
In another 2001
report on visits to immigration detention centres, the Joint Standing Committee
on Foreign Affairs, Defence and Trade also expressed a number of concerns about
the human rights and detention conditions for detainees.
In 2002 the Select
Committee on A certain maritime incident
inquiry report on the Tampa affair, the ‘children overboard’ incident
and the ‘Pacific Solution’ was published. The report was critical of the
uncertain outcomes for those being processed under the ‘Pacific Solution’ and
the lack of transparency in the implementation of the arrangements - involving
long processing times and a lack of scrutiny of the procedures.
In 2004 the Human
Rights and Equal Opportunity Commission published A last resort ? The national inquiry into
children in immigration detention. The report was scathing in its
criticism of the mandatory detention of children. The inquiry found that
Australia’s immigration laws, as administered by the Commonwealth, and applied
to unauthorised arrival children, are responsible for a detention system which
is fundamentally inconsistent with the Convention on the Rights of the Child. The inquiry further found that children in
long term immigration detention were at risk of serious psychological harm, and
that failure to remove children from detention with their parents constituted
cruel, inhumane and degrading punishment.
In July 2005 the Inquiry
into the circumstances of the immigration detention of Cornelia Rau -
the Palmer Report - reported on the wrongful detention of Ms. Cornelia
Rau, a German citizen and Australian permanent resident who was unlawfully detained
for a period of ten months in 2004 and 2005 as part of the Australian Government’s mandatory detention programme. In its
main findings the report noted serious problems with Australia’s handling of
immigration detention cases and suggested that urgent reform was necessary.
Even more heartrending was the case of Ms. Vivian Alvarez Solon.
What happened to Ms. Alvarez Solon before she appeared at Lismore Base Hospital in 2001 is unclear. She was treated for serious injuries which continue to afflict her still: she can walk with a crutch but often uses a wheelchair and the use of her fingers and one arm is limited. Sadly, her trauma also appears to have affected her memory: she said she wanted to see her family but could not remember who they were. This combination of physical weakness and mental confusion possibly explains how it was that Ms. Alvarez Solon, a middle age person and an Australian citizen, accepted her fate: to live for four years among the dying at the Mother Teresa Missionaries of Charity hospice in the Philippines city of Olongapo.
How she came to be deported from Australia and separated from her children, one of whom would be in foster care for four years as a result, is a matter the Australian Government did not and still cannot explain. Her story, as it had been reported, still raises a number of questions. How is it that she was deemed to be an illegal immigrant three days after being listed as a missing person by Queensland Police ? What mechanism determined that this injured woman, with no known family or resources, should be handed over to Catholic nuns and how is it that, once she had been accepted into their care, the Australian Government was not able to find her ? As long as at August 2003 Queensland Police realised that Ms. Alvarez Solon had been deported but authorities, but said that they were unable to locate her in the Philippines.
Immigration Minister Amanda Vanstone pithily summed up Ms. Alvarez Solon's history: “There’s a woman who was clearly in need of help and who through, I think it’s fair to say, no fault of her own ended up in an immigration detention facility and clearly didn't have the capacity to explain to people who she was. And that is a tragic situation.” And that was that.
And was that it ?
It appeared important that the questions regarding Ms. Alvarez Solon’s deportation be answered, but the case also raised larger concerns.
Like Ms. Cornelia Rau, the mentally ill Australian resident who was wrongly detained in the Baxter detention centre, when Ms. Alvarez Solon came to the attention of the Immigration Department she was incapable of explaining herself and defending her rights. This inability has had tragic consequences, not only for her but for her children. The failure of authorities to provide proper care and protection for a woman who desperately needed their help is perhaps the most disturbing aspect of her story. When the Cornelia Rau case came to light, Prime Minister Howard said that he could not guarantee other Australians had not been wrongly detained by immigration authorities.
There was the usual investigation, prudentially controlled in its terms of reference and the powers of the investigators. That is the style of the Australian Government under the Westminster System.
In October 2005
a report on Ms. Solon’s deportation was released, following the inquiry conducted
by former Victoria Police Commissioner Neil Comrie.
The report revealed that several senior Department of Immigration officials in Canberra
knew about Ms. Solon’s unlawful deportation in 2003 and 2004, and failed to
act. It also found that Ms. Solon’s mental and physical health problems were
not given proper attention. Ms. Solon returned to Australia on 18 November
2005.
There was the usual kerfuffle, with press, government, police and ‘the public’ involved for some time, until the matter was abandoned out of exhaustion and everyone’s indifference - except for a pugnacious legal team.
On Ms. Alvarez
Solon’s return to Australia her lawyers confirmed that a request for
compensation would be determined by retired High Court Judge Sir Anthony Mason
after Vivian and her legal team had reached agreement on the form of a private
arbitration. As part of the deal the Australian Government confirmed that it
would care for Ms. Solon until the arbitration process was completed.
On 30 November
2006 Sir Anthony Mason awarded Ms. Solon a compensation payout, reported by The
(Melbourne) Age newspaper as $4.5
million. But the Australian Government
refused to confirm the amount, citing ‘privacy reasons’.
Both the Palmer’s and the Comrie’s explorations were hampered by considerations of ‘privacy’ - whose ‘privacy’ not being quite clearly established. Neither investigator had the power to subpoena witnesses and the people who appeared before them did not have legal protection. This necessarily limited an investigator’s activity. The only ‘privacy’ to be protected seemed to be that of ‘public’ servants and officers.
The cases of Ms. Cornelia Rau and Ms.Vivian Alvarez Solon are unhappy addenda to the stories of those souls who are trapped in mandatory detention. And if that could happen to two persons lawfully entitled to be in Australia what of the poorchrists left to the whim, slothfulness, incompetence, prejudice, xenophobia of ‘public’ servants and the sheer irresponsibility of Ministers of Immigration ?
Initially under the
Labor Government the intensity of public debate on mandatory detention was
subdued due to the small number of boat arrivals, the dismantling of the ‘Pacific
Solution’ and the announcement of an overhaul of the policy of mandatory
detention guided by seven ‘key immigration detention values’.
On 5 June 2008 the
Joint Standing Committee on Migration was asked to conduct an inquiry into
immigration detention at a time when there were very few unauthorised boat
arrivals; only three boats arrived in 2007-2008 and there were only 408 people
in immigration detention in Australia as at 6 June 2008. The Committee examined a variety of issues,
including detention facilities and services, detention length, criteria for
release and community based alternatives to detention. In
the first of three reports the Committee praised the Government for its ‘New
Directions’ policy and stated that Minister Evans’ announcements signalled a
paradigm shift in Australian policy. The presumption of detention which defined
the policy of the previous Government had shifted to an assumption of release
following minimum checks. The onus would be on the Department of Immigration
and Citizenship to demonstrate that detention is necessary. The Committee welcomed the announcement of
these values and the commitment of the Government to a fairer and more humane
system for asylum seekers and others who are detained in immigration custody. The Committee expressed the view that this
would have been “not just a new
beginning for people held in detention, but for Australian society in
determining the detention time, nature and treatment of those who come to our
shores.”
However, the third
report, which was published after an increase in the arrival of people by boat,
noted that there were still serious concerns regarding the well-being of
detainees both on the mainland and on Christmas Island: “The Committee
acknowledges that the Australian Government has made positive steps to
introduce more appropriate and humane accommodation and facilities through
immigration residential housing and immigration transit accommodation. However, the standard of the accommodation
and facilities provided at immigration detention centres was of a serious
concern, ... Many detention facilities also have disproportionate and
antiquated security measures such as razor/barbed wire, ... The Committee, and many other organisations,
continue to have some reservations about the Department of Immigration and
Citizenship’s capacity to shift to a risk-averse framework where the onus is on
establishing the need to detain. The primary concern of immigration authorities
should be one of care for the well-being of detainees.”
A dissenting report
by Liberal backbenchers also argued that the issue of the detention of children
had not been adequately addressed by any of the three reports and that the
length of detention and the detention conditions they were experiencing were
‘disturbing’.
Since the Joint Standing Committee on Migration completed its inquiry into immigration detention the debate has intensified due to the increase in the arrival of asylum seekers by boat and the corresponding rise in the number of immigration detainees on Christmas Island and in onshore detention centres.
In recent times the
duration of detention has again become an issue of concern. When the surge in
boat arrivals began in late 2008 asylum applicants were initially processed and
released from detention relatively quickly. However, as more and more people
arrived processing times began to increase and the period of time people were
spending in detention began to drag out once again. The situation was exacerbated
by the freeze on processing for applicants from Afghanistan and Sri Lanka which
was imposed by the Rudd Government in April 2010. The stated rationale was to
enable decision makers to consider ‘evolving circumstances in these two
countries’, and to wait for new country guidelines from the U.N.H.C.R. The effect of this freeze was that people
remained in detention for up to six months before processing of their claims
even began.
In reports on its 2011 inspections of the Villawood and Curtin Immigration Detention Centres, the newly renamed Australian Human Rights Commission expressed frustration and concern about detention conditions, both onshore and on Christmas Island, and on Australia’s mandatory detention policy generally: “The Commission’s longstanding concerns about Australia’s immigration detention system have escalated over the past year, with ongoing troubling incidents across the detention network. These have included six deaths in detention - five of which appear to have been the result of suicide, suicide attempts, serious self-harm incidents including lip-sewing, riots, protests, fires, break-outs and the use of force against people in detention on Christmas Island by the Australian Federal Police. These incidents have occurred in the context of a detention network that is under serious strain due to a number of factors, but most importantly because thousands of people are being held in detention facilities for long periods of time.”
Still, as of 11 March 2011, with a new Labor Government, there were 6,819 people, including 1,030 children, in immigration detention in Australia, of whom 4,304 on the mainland and 2,515 on Christmas Island. More than half of those people had been detained for longer than six months, and more than 750 people had been detained for longer than a year.
In vain the Australian Human Rights Commission has repeatedly raised concerns about the detrimental impacts that prolonged and indefinite detention has on people’s mental health, and had repeatedly recommended reforms to bring the immigration detention system into line with Australia’s international obligations. The Commission was quite clear: “In the Commission’s view, there is an urgent need for the Australian Government to end the current system of mandatory and indefinite detention, and to make greater use of community-based alternatives that are cheaper, more effective and more humane than holding people in immigration detention facilities for prolonged periods.”
If there was any
embarrassment on the part of the government not many people noted it.
The 2011 Australian
Human Rights Commission report on Curtin Immigration Detention Centre, which
had been reopened in June 2010 to assist in accommodating the growing number of
detainees, also reinforced the Commission’s key concerns over pressures on the
infrastructure, services, facilities, staff and detainees in Australia’s
detention facilities.
The level of political interest regarding immigration detention forced the establishment, in June 2011, of a parliamentary inquiry into the detention network. The inquiry was initially proposed by the Coalition Opposition to draw attention to increasing levels of unrest and outbreaks of violence in detention centres. Following some negotiation concerning its terms of reference, the motion to establish the inquiry was passed with the support of the Australian Greens and the Government. The inquiry’s terms of reference were extensive and included an examination of the impact, effectiveness and cost of mandatory detention and the alternatives. The Committee had received a large number of submissions which had been highly critical of Australia’s current immigration detention policies and voiced the concerns of many organisations.
* * *
If the matter of
mandatory detention could be argued no end, and simply to disguise the fear,
prejudice and ultimately xenophobia which has been running through the veins of
institutional Australia from the moment of the invasion and subsequent
commodification of the Indigenous People, nothing could justify the detention
of children.
The detention of
children continues to be one of the most contentious issues of Australia’s
mandatory detention policy. It is also the one area which has seen a
significant shift in policy in response to sustained criticism by refugee
advocates, human rights groups and government backbenchers.
During the Howard
Government, the Australian Human Right Commission produced a report in 2004
which was highly critical of the detention of children. In
response, the Government rejected the findings and recommendations of the
report and reaffirmed its commitment to the policy of mandatory detention. At
the time the Minister stated that “to release all children from detention in
Australia would be to send a message to people smugglers that if they carry
children on dangerous boats, parents and children will be released into the
community very quickly.”
However, in June
2005, following significant pressure from certain Coalition members of the back
bench, the Howard Government announced a ‘softening’ of immigration detention
policy, including the release of families with children into community
detention arrangements.
The detention of
children has also proved to be a contentious issue for the Labor Government.
One of the seven ‘immigration detention values’ endorsed by Cabinet in 2008 was
that children should not be held in immigration detention centres, but in lower
security detention alternatives such as immigration transit accommodation or in
community detention. Yet as more and
more people began arriving by boat from 2008 onwards this ‘value’ was put to
the test. The number of children being held in detention rose steadily,
attracting vocal criticism from refugee advocates and human rights groups.
In response to growing pressure by interest groups and overcrowding in detention centres generally, the Immigration Minister announced in October 2010 that children would be progressively moved out of detention facilities into community-based accommodation by June 2011. Progress on this commitment proved to be slow, but by 30 June 2011 the Government announced it had moved ‘most’ children out of centres and into community detention. According to the Department of Immigration and Citizenship, as at 31 July 2011 there were 872 children - i.e. aged under 18 years - in immigration detention. 446 were detained in the community under residence determinations, 329 were in alternative places of detention, 45 were in immigration residential housing and 52 were in immigration transit accommodation. No children were detained in an immigration detention centre. An increasing number of children were living in the community under a residence determination (community detention) since the Government's announcement on 18 October 2010. The number of children in immigration detention has also been decreasing.
Community detention, or residence determination as it is otherwise known, was introduced in June 2005. The term ‘residence determination’ refers to the process by which the Minister for Immigration and Citizenship specifies that a person may live in community detention. It enables certain asylum seekers to reside in the community without needing to be accompanied by an officer while their applications for refugee status are being processed. Residence determination does not give a person lawful status or the right to work or study in Australia.
In
August 2011 the Department of Immigration and Citizenship provided the Joint Select
Committee on Australia's Immigration Detention Network with the
following data on people transferred into community detention:
1) Between 18
October 2010 and 27 July 2011 1,601 individuals - 823
adults, 514 accompanied children and 264 unaccompanied minors - had
been approved for community detention:
“This issue
- the petitioners were
saying - is urgent and action needs to be taken now.
The mental health of immigration detainees can’t wait until the political
debate over the appropriateness of immigration detention has been resolved.
Every person has the right to be treated with
dignity and respect, to have decent living conditions, and freedom to
communicate with their family, lawyers and friends. The Government must act now
to make the changes to the living conditions and freedoms that will improve the
mental health and wellbeing of people in detention.
Detainees have the right to mental health care
commensurate with their need. The Government’s own National Practice Standards
for the Mental Health Workforce should apply to detention centre staff. Mental
health professionals need to be able to work within the same standards that
protect everyone in Australia to ensure that the care they provide to detainees
is effective and safe.”
In early October a report from the Australian Human
Rights Commission had been released, and was raising serious questions about
the mental health impacts of indefinite detention on people being held at the
Curtin Immigration Detention Centre.
There were genuine concerns that the Government was
not providing adequate mental health care to people in detention centres at a
time when incidents of self-harm and suicide have increased, and riots,
protests, and hunger strikes have become common.
It was clear that conditions inside detention
centres are unacceptable.
Children
- the petition emphasised -
are especially vulnerable. The mental health crisis in the immigration
detention system is rapidly worsening and these conditions cannot be allowed to
continue.
The Government was requested immediately to launch
an independent investigation into the standards of mental health care in
Australia’s immigration detention centres.
Since then, however, and during the course of the inquiry by the Joint Committee which reported on 12 April 2012, the community detention programme continued to expand at a rapid rate. The Department estimated that, as at 13 February 2012, there were 1,576 people in community detention. Included in this figure were 1,047 adults and 529 children. Of the 529 children, 133 were unaccompanied minors.
Many more people had been approved by February 2012, but not yet moved out of detention facilities and into community detention. The Department advised that as at 15 February 2012, over 3,200 people had been approved for community detention. Of these, 1,582 had already been moved.
There were approximately 700 children in 'held detention' on October 2010. As at 17 February 2012 there were more than 660 children already in or transitioning into community detention. This figure represents 64 per cent of asylum seeker children. Of the 660 children, 212 were unaccompanied minors. This figure represents 57 per cent of unaccompanied asylum seeker minors.
By 14 March 2012 the number of children in held detention stood at 479, while 544 were in community detention. Children in the community detention programme have access to schooling, which includes English language classes.
* * *
Any serious discussion of
asylum seekers and refugees is hampered by the persistence of two facile and
poisonous myths. Parliamentary ‘debate’
of the fundamental issues narrowed down to exchanges between Government and
Opposition on trite points, mainly for the purpose of emphasises the
unworthiness of the asylum seekers, who were portrayed as ‘illegal migrants’
and ‘queue jumpers’.
In the process, and during the
year 2011-2012, the major parties entered into a competition to device punitive
measures to discourage the arrival of new boats, a descent into nastiness which
could still not match the terror from which the asylum seekers were fleeing.
Most arguments, used with
particular animosity by speakers from the ‘Liberal’ Opposition, displayed a
gross dose of intellectual dishonesty.
Asylum seekers who attempt to
reach Australia are neither engaging in illegal activity as illegal immigrants,
nor a threat to Australia’s
national security. They certainly do not jump
queues which exists only in the impressionable minds of the ignorant
majority - and at that a self-inflicted and self-satisfied
ignorance. Finally, they do not take places away from refugees in overseas camps.
The United Nations Refugee Convention recognises
that refugees have a right to enter a country for the purposes of seeking
asylum, regardless of how they arrive or whether they hold valid travel or
identity documents. The Convention
stipulates that what would usually be considered as illegal actions - i.e. entering a country without a visa - should not be treated as illegal if a person
is seeking asylum. This means that it is incorrect to refer to asylum seekers
who arrive without authorisation as ‘illegal’, as they in fact have a right to
enter Australia to seek asylum.
In line with its obligations under the Convention,
Australian law also permits unauthorised entry into Australia for the purposes
of seeking asylum. Asylum seekers do not break any Australian laws simply by
arriving on boats or without authorisation.
Australian and international law make these allowances because it is not
always safe or practicable for asylum seekers to obtain travel documents or
travel through authorised channels.
Refugees are, by definition, persons fleeing persecution and in most cases are
being persecuted by their own government. It is often too dangerous for
refugees to apply for a passport or exit visa or approach an Australian Embassy
-
where it exists - for a visa, as such actions could put their
lives, and the lives of their families, at risk.
Refugees may also be forced to flee with little
notice due to rapidly deteriorating situations and do not have time to apply
for travel documents or arrange travel through authorised channels. Permitting
asylum seekers to enter a country without travel documents is a way of
recognising that extreme circumstances warrant an exception to the strict legal
position.
It is also incorrect to refer to asylum seekers as migrants. A migrant is
someone who chooses to leave her/his country to seek a better life. A migrant
make a conscious and deliberate choice to leave and ordinarily knows that
return is always possible. Refugees are forced to leave their country and
cannot return unless the situation which forced them to leave improves. Some
are forced to flee without warning; significant numbers of them have suffered
torture and trauma. The concerns of refugees are human rights and safety, not
economic opportunities.
Nor are asylum seekers a
threat to Australia’s national security.
The majority of asylum seekers, up to 90 per cent, who
have reached Australia by boat have been found to be genuine refugees. That figure should be compared with the around
40 to 45 per cent of asylum seekers who arrive with some form of temporary visa
-
e.g. tourist, student or temporary work visa. In 2010-2011, 89.6 per
cent of asylum seekers arriving by boat were found to be refugees, compared to
43.7 per cent of those who arrived with valid visas.
According to the Australian Security Intelligence Organisation - which
is responsible for the protection of the country and its citizens from espionage,
sabotage,
acts of foreign interference, politically motivated violence, attacks on the
Australian defence system, and terrorism - of the 34,396 visa security
assessments which were made in 2010-2011, only 45 visas were refused or
revoked. Understandably, every case is assessed on its individual merits;
however, from these numbers it can be seen that the risks are very low.
The Refugee Convention excludes people who have committed war crimes, crimes
against peace, crimes against humanity or other serious non-political crimes
from obtaining refugee status. Any person who is guilty of these crimes will be
denied refugee status. Additionally, all asylum seekers must undergo rigorous
security and character checks before being granted protection in Australia. It
is therefore highly unlikely that a war criminal, terrorist or any other person
who posed a security threat would be able to enter Australia as a refugee. It is also improbable that a criminal or
terrorist would choose such a dangerous and difficult method to enter
Australia, given that asylum seekers who arrive without authorisation or
without valid travel documents undergo more rigorous security and identity
checks than other entrants to Australia.
During
the ‘debate’, former Prime Minister Kevin Rudd, a former diplomat, a person who
wants to be taken seriously and displays a certain demeanour, a person who
purports to draw inspiration for his life from
Dietrich Bonhoeffer, on 17 April 2009 reached the nadir of debasement by
declaring that “People smugglers are engaged in the world’s most evil trade and
they should all rot in jail because they represent the absolute scum of the
earth.”
The fundamental point is that, if a person can
afford to pay a people smuggler thousands of dollars to gain safety from
persecution in Australia, and if the claim to refugee is genuine and supported,
the mode of arrival should not matter.
Economic status has no bearing on refugee status. A
refugee is someone who has a well-founded fear of being persecuted because of her/his
race, religion, nationality, membership of a particular social group or
political opinion.
It makes no difference whether a refugee is rich or
poor; the point is that refugees are at risk of, or have experienced,
persecution. Many refugees arriving in Australia are educated middle-class
people, whose education, profession or political opinions have drawn them to
the attention of the authorities and resulted in their persecution.
* * *
Applying for protection onshore is not a means of ‘jumping
the queue’ or bypassing the ‘proper’ process of applying for protection. Most of the people who attempt refuge in
Australia are fleeing war zones, in parts of the world where Australia might
have been seen to play its part as trusted vassal in American’s
adventures.
In fact, applying onshore is the standard procedure
for seeking protection. According to the definition in the Refugee Convention,
refugees are persons who are outside their country of origin. This means that one cannot apply for refugee
status from inside one’s own country. In order to be recognised as a refugee, one
must leave her/his country and apply for refugee status in another country.
Every refugee in the world - including those whom Australia resettles
from overseas - has,
at some point, entered another country to seek asylum.
The vast majority of the world’s refugees either return home once conditions
which forced them to leave have improved or settle permanently in the country
of first asylum.
For some refugees, however, these solutions are impossible. For example, some
countries are hosting very large numbers of refugees or do not have the
capacity to provide effective protection, and therefore require assistance from
other countries to fulfil their protection obligations. In other cases, a
country may simply refuse to provide any form of protection or assistance to
refugees and asylum seekers.
In these sorts of cases, it may be necessary for
refugees to be resettled in a third country. However, there is no resettlement ‘queue’
that onshore applicants are trying to evade. Resettlement is intended to be a
complement to, not a substitute for, providing protection to refugees who apply
for asylum onshore. It is a way of providing a solution for refugees who have
been unable to find effective protection elsewhere, but is certainly not the
standard or only ‘legitimate’ way to find protection. It is simply a different solution based on
different circumstances. In fact, only a tiny minority - less
than one per cent of the world’s refugees
- are resettled in third countries.
The United Nations resettlement system does not
work like a queue. The word ‘queue’ implies that resettlement is an orderly
process and, if one joins the end, one is guaranteed to reach the front within
a certain amount of time. In reality, the United Nations resettlement system
works more like a lottery than a queue. Many refugees lack access to
the United Nations High Commissioner for Refugees’
resettlement processes altogether and therefore simply do not have resettlement
available to them as an option.
Furthermore, refugees are considered for
resettlement according to need, not according to how long they have been
waiting. These needs fluctuate and are continuously reassessed. For example,
conditions in a refugee-producing country may improve, allowing refugees from
that country to return home if they wish; or conditions in a refugee-hosting
country may deteriorate, placing the refugees in that country in greater need
of resettlement.
Finally, asylum seekers do not take
places away from refugees in overseas camps.
The myth that asylum seekers take places away from refugees who are resettled
from overseas does have some basis in truth. However, this is not because
asylum seekers are trying to rort the system or ‘jump the queue’. They have a right to seek asylum and
Australia has a legal - not to mention a moral -
obligation to process their claims. What little truth there is in the
myth is the direct result of Australian Government policy.
Australia’s refugee programme has two components:
1) the onshore component, for people who apply for refugee status after
arriving in Australia, and 2) the offshore component, under which Australia
resettles recognised refugees and other people in need of protection and
assistance. The onshore and offshore components are numerically linked, which
means that every time an onshore applicant is granted a protection visa, a
place is deducted from the offshore programme.
The linking policy blurs the distinction between
Australia’s legal obligations as a signatory to the Refugee Convention - addressed
through the onshore component - and its
voluntary contribution to the sharing of international responsibility for
refugees for whom no other durable solution is available. The perception that
there is a ‘queue’ which onshore applicants are trying to evade is actually caused
by a policy choice which could easily be changed. No other country in the world
links its onshore and offshore programs in this way.
All human beings have a right to seek and enjoy in other countries asylum from
persecution, which makes refugee protection a universal and global
responsibility. As a signatory to the Refugee Convention and as a member of the
international community, Australia shares in this responsibility. There is no
reason why Australia should be exempt from receiving and processing onshore
asylum claims while expecting other nations to fulfil this responsibility. As a
developed nation with well-established systems for refugee status determination
and strong settlement support infrastructure, Australia is well-placed to play
a leading role in refugee protection, both within its region and at a global
level.
A common misconception about refugee protection is
that applying for resettlement from overseas is the ‘proper channel’ for
seeking protection. In fact, resettlement of refugees in third countries is the
exception rather than the rule. In general, resettlement is only used as a
solution for refugees in cases where it is not possible for them to return home
or settle permanently in the country where they first sought asylum.
Out of the world’s 15.2 million refugees, the United
Nations High Commissioner for Refugees has identified around
800,000 - approximately five per cent -
as being in need of resettlement in coming years. In 2011, 79,800
refugees were resettled through U.N.H.C.R. with the U.S.A. receiving the
highest number: 51,500.
Over the past 10 years an average of around 81,000
refugees have been resettled annually. At this rate, it would take 188 years
for all of the world’s refugees to be resettled. While there remains a
significant gap between resettlement needs and available places, it is not
necessary, feasible or even desirable for all of the world’s refugees to be
resettled in third countries.
The enormity of the problem is analysed in a report
released on 18 June 2012 by the United Nations High
Commissioner for Refugees. The report
shows 2011 to have been a record year for forced displacement across borders,
with more people becoming refugees than at any time since 2000.
U.N.H.C.R.’s Global Trends 2011 report detailed for the first time the extent of forced displacement from a string of major humanitarian crises which began in late 2010 in Côte d'Ivoire, and was quickly followed by others in Libya, Somalia, Sudan and elsewhere. In all, 4.3 million people were newly displaced, with a full 800,000 of these fleeing their countries and becoming refugees. “2011 saw suffering on an epic scale. For so many lives to have been thrown into turmoil over so short a space of time means enormous personal cost for all who were affected.” said the U.N. High Commissioner for Refugees António Guterres. “We can be grateful only that the international system for protecting such people held firm for the most part and that borders stayed open. These are testing times.”
Worldwide, 42.5 million people ended 2011 either as refugees - 15.2 million, internally displaced - 26.4 million, or in the process of seeking asylum - 895,000. Despite the high number of new refugees, the overall figure was lower than the 2010 total of 43.7 million people, due mainly to the offsetting effect of large numbers of internally displaced people returning home: 3.2 million, the highest rate of returns of internally displaced people in more than a decade. Among refugees, and notwithstanding an increase in voluntary repatriation over 2010 levels, 2011 was the third lowest year for returns - 532,000 - in a decade.
Viewed on a 10-year basis the report showed several worrying trends. One is that forced displacement is affecting larger numbers of people globally, with the annual level exceeding 42 million people for each of the last five years. Another is that a person who becomes a refugee is likely to remain as one for many years - often stuck in a camp or living precariously in an urban location. Of the 10.4 million refugees under U.N.H.C.R.’s mandate, almost three quarters - 7.1 million - have been in exile for at least five years awaiting a solution.
Overall, Afghanistan remains the largest source of refugees - 2.7 million - followed by Iraq - 1.4 million, Somalia - 1.1 million, Sudan - 500,000 and the Democratic Republic of the Congo - 491,000.
Around four-fifths of the world’s refugees flee to their neighbouring countries, reflected in the large refugee populations seen, for example, in Pakistan - 1.7 million people, Iran -886,500, Kenya - 566,500, and Chad - 366,500.
Among
industrialised countries, Germany ranks as the largest hosting country with
571,700 refugees. South Africa, meanwhile, is the largest recipient of
individual asylum applications - 107,000, a status it has held for the past
four years. It was followed by the United States of
America - 76,000, and France -
52,100.
U.N.H.C.R.’s original mandate was to help refugees, but in the six decades since the agency was established in 1950 its work has grown to include helping many of the world’s internally displaced people and those who are stateless - those lacking recognised citizenship and the human rights which accompany this.
The Global Trends 2011 report noted that only 64 governments provided data on stateless people, meaning that U.N.H.C.R. was able to capture numbers for only around a quarter of the estimated 12 million stateless people worldwide.
Of the 42.5 million people who were in a state of forced displacement as of the end of 2011, not all fall under U.N.H.C.R.’s care. Some 4.8 million refugees, for example, are registered with the U.N. Relief and Works Agency for Palestine Refugees. Among the 26.4 million internally displaced, 15.5 million receive U.N.H.C.R. assistance and protection. Overall, U.N.H.C.R.’s refugee and internally displaced people caseload of 25.9 million people grew by 700,000 people in 2011.
Because of what can only characterised as the hostility of Australian authorities to the asylum seekers, many of them drowned in the attempt to reach Australia by unsafe boats.
By the time the Australian Parliament went into winter recess on 28 June 2012 both Government and Opposition had devoted much effort to commiserating for the loss of lives, jousting on how to find the way to avoid asylum seekers deaths while continuing ‘to maintain the integrity of the borders’. No solution had been found which would recognise and honour the right of asylum seekers to reach for safety in Australia, by whatever means. And that really was the point.
The memory was
still vivid of events such as the sinking of an unnamed boat, which came to be
referred to as SIEV X. SIEV X sank in international waters
on 19 October 2001, just south of the Indonesian island of Java, drowning 353
people, approximately 146 children, 142 women and 65 men died. The tragedy
had political resonance for several
reasons: the Tampa affair had already focused national media’s attention on
the issue of asylum seekers, the sinking of SIEV X occurred during an election campaign at a
time when asylum seekers and border protection were major issues, and it was
rendered incandescent by a previous episode and the shameless use made of such
tragedies by the Howard Government.
In the early afternoon of 6 October 2001, SIEV 4,
carrying 223 asylum
seekers had been intercepted by H.M.A.S. Adelaide 190 kilometres
north of Christmas Island and then sunk. The next day
the Minister for Immigration Philip
Ruddock announced that passengers of SIEV 4 had threatened to throw
children overboard. This claim was later repeated by other senior government ministers including
Defence Minister Peter Reith and Prime Minister John Howard.
On 20 February 2002 the Australian Senate Select
Committee inquiring into A certain maritime incident met for the first
time. Its primary task was to investigate the ‘children overboard affair’, however its
terms of reference also included investigating “operational procedures observed
by the Royal Australian Navy and by relevant Commonwealth agencies to ensure
the safety of asylum seekers on vessels entering or attempting to enter
Australian waters.”
The committee investigated the SIEV X sinking, and
concluded that “... it [is] extraordinary that a major human disaster could
occur in the vicinity of a theatre of intensive Australian operations and
remain undetected until three days after the event, without any concern being
raised within intelligence and decision making circles.” While no government department was found to be
to blame for the tragedy, the Committee was surprised that there had been no
internal investigations into any systemic problems which could have allowed the
Australian government to prevent it from occurring.
On 23 October
2002 in its report the Committee found that no children were thrown overboard
from SIEV 4, that the evidence did not support the ‘children overboard’ claim,
and that the photographs purported to show children thrown into the sea were
taken after SIEV 4 sank. In response,
Prime Minister Howard said that he acted on the intelligence he was given at
the time.
A minority dissenting report, authored by
government senators on the committee, described the inquiry as driven by a “misplaced
sense of self-righteous outrage [felt] by the Australian Labor Party at its
defeat in the 2001 federal elections.”
An appendix to their report documented cases where
passengers aboard other SIEVs had threatened children, sabotaged their own
vessels, committed self-harm and, in the case of SIEV 7 on 22
October, thrown a child overboard who was rescued by another asylum seeker.
On 16 August 2004 a former
senior advisor to Defence Minister Peter Reith, revealed that he had he told
Prime Minister Howard on 7 November 2001 that the ‘children overboard’ claim
might be untrue. Mr. Howard said that they
only discussed the inconclusive nature of the video footage. In light of the
new information, the Labor Opposition called for further inquiry.
On 15 December 2010 a boat
carrying around 90 asylum seekers, mostly from Iraq and Iran, sank
off the coast of Christmas Island, killing 48 people aboard; 42
survivors were rescued. The boat was later named SIEV 221.
Reciprocal accusations went on for years, much as
they were cast in 2011 and 2012.
On 20 November 2011, 50 asylum
seekers drowned after their boat was smashed to pieces on Christmas Island’s
rocky coastline, as helpless residents watched in horror. More than 200 died in
2011 and about 100 would die in July 2012. In all, a thousand asylum seekers
are thought to have died at sea since the late 1970s - many in vessels never detected by rescue
crews.
The 79 asylum
seekers from Afghanistan, Iraq, Iran, Sudan and Pakistan were rescued thanks to
the efforts of local volunteers and naval personnel, although the captain of
the ship is missing after he was believed to have jumped overboard to avoid
arrest by the Australian authorities.
The
near-tragedy occurred almost a year after the previous December’s smashing of a
refugee ship onto the cliffs of Christmas Island in similar conditions. That
disaster, involving SIEV 221, cost the lives of 50 asylum seekers.
As with the
SIEV 221, the Australian Government’s Border Protection Command claimed that
the latest boat arrived undetected, despite intensive surveillance of the
waters between Australia and Indonesia.
On
22 June 2012 scores of asylum seekers were feared dead after a boat carrying
more than 200 people capsized in waters north of Christmas Island. Efforts were continuing throughout the night
to rescue victims, but treacherous conditions with waves up to 12 metres high were
making it hard for rescuers to find survivors.
In the end 110 people had been
rescued, with earlier reports that at least 75 had drowned.
The two major parties of Australian politics were accusing each other of helping people smugglers. Neither side was prepared to support the other’s proposals for offshore processing of asylum seekers. Both the Government and the Opposition wanted to see no asylum seekers arriving to Australia by boat but could not agree on where to send the asylum seekers. The Government wanted to use Malaysia for offshore processing. The Opposition wanted to re-open Nauru.
The Government had adopted an amended policy, which
was intended to circumvent the August 2011 High Court decision, and by which asylum
seekers who have entered Australian waters or territory would be sent to either
Nauru or Malaysia. However, the Opposition Coalition was adamant in rejecting
Malaysia as a destination, or any other country which has not signed the
Refugee Convention.
While Government, Opposition, the Greens and the Independents
were united in expressing concern over the deaths, and some were visibly
distressed during discussion on the issue, a way out of the impasse could not
be found, because Government and Opposition parties were rigidly committed to
the off-shore processing policy and their incompatible versions of it.
Legislative amendments proposed by Independent members
of Parliament also involved offshore processing but differed from the policy
variations of the Government and Opposition, so they were rejected. The Greens
have consistently opposed off-shore processing but are outnumbered.
A real solution had to be found because in 2012
alone more than 100 boats carrying 7,500 suspected asylum seekers arrived in
Australia, after the Government failed to have legislation enacted and aimed at
deterring them by sending them to Malaysia. The
so-called 'Malaysia Solution' would have seen boatpeople arriving in Australia
transferred to the Southeast Asian nation, with Canberra resettling thousands
of that country's registered refugees in return.
The proposal was scuttled by
the Opposition and the Greens, who refused to pass laws allowing off-shore
processing. (to be continued)
************************
* Dr. Venturino Giorgio Venturini devoted some sixty years to
study, practice, teach, write and administer law at different places in four continents.
He may be reached at [email protected].