Developing just refugee policies in Australia

Frank Brennan SJ AO

Contemporary Problems With Protecting Borders

One aspect of globalisation is that money and people are more mobile. Australia may be the end of the earth, but it is no longer inaccessible. Unauthorised movement from the third world to the first, from insecurity to security, from persecution to protection is to be expected. Entrepreneurs, including criminal syndicates, are also willing to cash in on the market for assisted passage.

Since 1989, we have had 259 boats turn up on our shores; 213 have come during the Prime Ministership of John Howard. Later this month, it will be a year since the Tampa affair, no more boats having come in that time. These last thirteen years, 13,475 unauthorised arrivals have come by boat—on average, 1,000 a year. But from 1999 until 2001, that number had quadrupled. There are another 37,000 offshore asylum seekers who have indicated a desire to come to Australia.

Under the 1951 Convention on the Status of Refugees to which Australia is a signatory, we are not to force back those who rightly invoke our protection obligations, and we are not to punish them for having the temerity to turn up without a visa. Yet much present government rhetoric presumes that all boat people, even those who are refugees, are seeking a migration outcome, trying to jump the queue. We now treat them as criminals until they can prove they are refugees, locking them up in the desert to send a message to their countrymen.

The politics of fear has become a hallmark of Australian politics this last decade, and fear of the foreigner has always been part of the Australian story. As with Mabo and Wik we will all emerge from this present fracas wondering what all the fuss was about. But this time we will have inflicted substantial collateral damage on some of the world’s most despairing people in the cause of deterrence and border protection, wasting many taxpayers’ dollars in the process.

It is essential that political leaders respond responsibly to people's fears.

If democracy is about honouring the will of the people and protecting the rights and dignity of all, it is essential that our political leaders respond responsibly to people’s fears rather than feeding them, and that they resolve those fears with policies faithful to the values of the people and the integrity of social institutions. Because of the electoral fervour and talkback radio lather over this issue, we have not taken sufficient stock of the damage inflicted by the present policy. That policy presumes we can isolate Australia from the population flows affecting the rest of the world. We think we can stop or control this flow by sending a harsh message. We should rather manage the flow by keeping step with other first world countries and maintaining a principled commitment to human rights.

Contemporary Problems With Protecting Asylum Seekers

At enormous cost, we are maintaining reception and processing centres at Curtin, Port Hedland, Woomera, and now Baxter on the Australian mainland. Curtin will soon close. Every fair-minded person thinks Woomera should have closed long ago. There are only 180 detainees there now. It is a hell-hole, dehumanising for detainees and workers alike. But it is our 21st century Port Arthur. The government values its role of deterrence. There is no other policy reason for keeping it open. There is no sensible financial reason. It is far removed from children’s services and police. It is too isolated to efficiently process claims for refugee status.

The government justifies detention in part because it helps the processing of claims. Detention in an accessible and more work friendly environment might indeed help. However the detention regime contributes to, and helps disguise, the uneven performance of our decision makers especially when it comes to the Iraqis and Afghans who have been applying for protection during the last year.

During the 2001–02 financial year, the Refugee Review Tribunal (RRT) set aside 62 per cent of all Afghan decisions appealed (197 of 318 cases) and 87 per cent of all Iraqi decisions appealed (115 of 132 cases). This means Afghan asylum seekers got it right 62 per cent of the time when they claimed the departmental decision makers got it wrong. And the public servants got it wrong 87 per cent of the time when Iraqi applicants claim they were mistakenly assessed. Meanwhile, the RRT set aside only eight per cent of decisions appealed by members of other ethnic groups (398 of 5,012 cases). Even more disturbingly, in the last financial year, the RRT finalised 855 detention cases of which 377 were set aside. This is a 44 per cent set aside rate in detention cases. Though there are problems with the significant Iraqi and Afghan caseloads, the Department of Immigration and Multicultural and Indigenous Affairs rightly notes that over 90 per cent of refugees from these countries ‘are identified by the Department through the primary decision making process’. But those who are turned down have a very high success rate before the RRT.

The detention regime helps disguise the uneven performance of decision makers.

The RRT delegation at the recent Human Rights and Equal Opportunity Commission inquiry was unable to give a coherent explanation for the discrepancy in set-aside rates for Afghan and Iraqi cases. These rates are especially troubling in the case of Iraqi claims, where there has been little in-country change from the date of primary decision to the date of RRT hearing. Admittedly there has been a rapid change of circumstances in Afghanistan but those changes are just as likely to render the applicant ineligible for protection when they later appeal. And yet 62 per cent of Afghans who have appealed the primary decision have succeeded.

The government and parliament have been anxious to get the decision making process away from court supervision. There was a time when the Commonwealth conducted itself as a model litigant before the courts. Because of the politics of refugees, those days have gone and we now pay the price of losing such sensible conventions.

We could all breathe more easily with the cost effectiveness of removing courts from the supervision of these decisions if we could be more convinced of the professionalism and independence of the primary decision makers and the competence and security of the RRT. But when eighteen per cent of RRT decisions appealed to the Federal Court have been set aside this last financial year, there are good grounds for concern when the Parliament (following a Senate gag and bypassing usual Senate committee processes) attempts to limit judicial review of RRT decisions. Justice McHugh, hardly an expansionist High Court judge, recently told the Australian Bar Association Conference:

Even if 30 per cent of applicants have commenced proceedings ‘as a means of prolonging their stay in Australia’, it seems a small price for a just and prosperous country to pay for maintaining the rule of law.
Review of a public servant’s decision by an administrative tribunal, whose members do not have the same security of tenure and independence as judges, is no substitute for review by a court. In principle, even a national emergency should not be a sufficient basis for refusing to permit the courts to examine the legality of the conduct of the Executive Government.
Under the separation of powers doctrine, the principal function of the judiciary is to uphold the rule of law. It is a corollary of that doctrine that the judiciary cannot be deterred from exercising that function by criticisms of the Executive branch even if the Executive’s criticisms have the support of the general public. The Judiciary has to apply the law, not public opinion.
Detention of Iraqis will be extended interminably if we decide to bomb their country.

The government is right to claim that many unsuccessful applicants will appeal all the way to the High Court if it buys them more time in Australia and they can buy time with no financial cost to themselves. But the Minister has himself been pursuing court appeals rather than having matters resolved promptly on merit. His motivation is even more base and questionable than those who desire to extend their stay in Australia, and the human cost is unbearable.

The word games about deterrence and migration detention have become complex. Ten years ago, the High Court said migration detention without court order or supervision was permissible only if necessary for health, security, visa processing or removal. Otherwise, it would be punitive and a deterrent, unconstitutional and unlawful unless subject to an exercise of judicial power. If the government has its way, Iraqis and Palestinians who have been rejected, who have no third country in which they have residence rights, and who cannot return home are to be held in open-ended, judicially unreviewable detention for years. In the case of the Iraqis, their detention at our hands will be extended interminably should we decide to bomb their country.

Problems with the Balance Between Border Protection and Protection of Refugees

In recent days, the government has expressed strong criticism of Justice Bhagwati’s United Nations report on ‘Human Rights and Immigration Detention in Australia’ which concludes that:

From a human rights point of view, the detention of children in the context of immigration procedures is certainly contrary to international standards.
Despite the many positive efforts undertaken by the Government to improve the conditions in the detention centres, from a human rights perspective it might be useful to ask whether the current approach to illegal immigration is the correct one.

It was no part of Bhagwati’s brief to determine whether the Australian regime amounted to arbitrary detention. That was decided in 1997 when the UN Human Rights Committee ruled on a complaint by a Cambodian detainee (‘Mr A’) under the first optional protocol of the International Covenant on Civil and Political Rights. In his press release of 17 December 1997, Attorney General Daryl Williams defended the four year detention of Mr A on the basis that:

the Government does not accept that the detention of Mr A was in contravention of the Covenant, nor that the provision for review of the lawfulness of that detention by Australian courts was inadequate.
The Committee is not a court, and does not render binding decisions or judgements. It provides views and opinions, and it is up to countries to decide whether they agree with those views and how they will respond to them.
Our politicians pillory judges for scrutinising the detention of asylum seekers.

Last year, the United Kingdom Court of Appeal quoted the UN’s decision and went on to state its unanimously held belief ‘that most right thinking people would find it objectionable that such persons should be detained for a period of any significant length of time while their applications are considered, unless there is risk of their absconding or committing other misbehaviour’. The Court found no dissonance between the European Convention on Human Rights and other sources of English domestic law as ‘the Convention sets out values which our laws have reflected over centuries … a recognition, that is part of our heritage, of the fundamental importance of liberty’. The Australian problem now is that:

  • we have no equivalent of the European Convention in domestic law,

  • a decision of the UN Committee involving circumstances which are no doubt replicated in many other cases is simply disregarded

  • our politicians pillory judges for applying scrutiny to the detention of asylum seekers

  • they then pillory overseas judges who accept UN appointments to scrutinise our inhumane detention practices

  • our parliaments enact laws for the long term detention of asylum seekers thereby separating Australia from the contemporary UK reading of the common law heritage.

The government is right to reject alternatives that permit detention of unaccompanied adults and mandate the release of family groups with children. Such a policy would encourage parents to put children to sea on dangerous voyages. Detention of all persons, including children, should be restricted to migration purposes and take place in locations well suited to the efficient processing of visa applications.

Once asylum seekers are found to be refugees, they should have the same rights as all other refugees regardless of whether they arrived by plane or boat, with or without a visa. In particular, they should have the same rights of international travel and family reunion. By denying these rights to some for the purpose of deterrence, we encourage women and children to risk hazardous voyages, wreaking too much devastation in the uncertain lives of those who now have every entitlement to be living in our midst.

Towards More Just, Workable, and Decent Policies

Compared with Europe, ours is a small nut to crack.

The European Union is trying to formulate common standards and a unified approach to the processing of asylum applications. In Europe, they do not have the luxury of going it alone. Everywhere, governments are under pressure from asylum seekers and electors as they strive to balance the protection of borders and the protection of asylum seekers. But this is why it is important that Australians address our fears rationally and ensure we act decently. Compared with Europe, ours is a small nut to crack. Is that any reason to use a large sledgehammer that would inflict untold damage in other places? Either we want to be so indecent that no other country will dare imitate us and so maintain the advantage that asylum seekers will try anywhere but here. Or we want to lead other countries to a new lowest common denominator in indecency, triggering another round of competitive tightening and leaving bona fide asylum seekers more vulnerable in nonexistent queues.

I commend the Minister for his objective, as stated in Parliament on 1 July 2002, ‘to resettle some 12,000 persons each year who are in greatest need and to prioritise those who are in need of assistance—those who are at risk if they remain where they are and have no other means of escape other than resettlement to a third country’. Some of those persons have come to Australia by boat without a visa and we have treated them appallingly. There is no reason why the government’s objective cannot be achieved together with that of treating asylum seekers within our territory firmly but decently. The immorality and inequity resulting from our present ‘slam the back door’ policy is highlighted by a simple thought experiment. Imagine that every country signed the Refugee Convention and then adopted the Australian policy. No refugee would be able to flee their country of persecution without first joining the mythical queue to apply for a protection visa. All refugees would be condemned to either remain subject to persecution or proceed straight to open-ended, judicially unreviewable detention. The purpose of the Refugee Convention would be completely thwarted. The myopic argument runs that Australians are entitled to design a sledgehammer to crack this small nut because we are prepared to take 12,000 applicants through the front door, provided they stay in the queue back in their country of persecution or first asylum.

If detention is to remain a cornerstone of Australian policy, there is a need for alternative arrangements to render it more humane and effective. Given the modesty of our problem, we would do well to ensure compliance with standards set by other countries receiving far more asylum seekers than we have. Given that we have the advantage of geographic isolation, why don’t we try to be just a little more decent than other countries with the same living standards when it comes to our treatment of those who arrive (with or without a visa) invoking our protection obligations? Or if that is too naïve, how about we aim to be just as decent as those who receive ten times more asylum seekers than we do? Or if that is too much, how about we limit our indecency to our treatment of adults, ensuring that never again are kids put in the line of batons and tear gas, as they were at Woomera this last Easter?

Frank Brennan SJ AO, a Jesuit priest and lawyer, is Adjunct Fellow in the Research School of Social Sciences at the Australian National University, Honorary Visiting Fellow in Law at the University of New South Wales, and Associate Director of Uniya, the Jesuit Social Justice Centre in Sydney. This article is an edited extract from an address to a public forum at the University of Sydney on 7 August 2002. The full text will be published later this year as a discussion paper of the Centre for Peace and Conflict Studies.