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Developing Just Refugee Policies in Australia: Local, National and International Concerns

Free Public Forum
Eastern Avenue Auditorium
University of Sydney
7 August 2002

Fr Frank Brennan SJ AO

Our search tonight is for the beginnings of a contemporary refugee policy which is workable, decent, affordable and efficient. The boats may have stopped coming for the moment, but this does not necessarily mean that our policy meets any of these descriptors. Refugee flows respond more to the push factors in the countries of persecution than to the pull factors in the countries of reception. The claim that there is a need for radical improvement in our policy balancing pull factors with the decent response demanded by the push factors will evoke ad hominem attacks from politicians and shrieks from radio shock jocks. So let's try and confine ourselves to the facts, seeking incremental changes to policy. I commend the Senate of the university for initiating this forum of inquiry. I thank the Centre for Peace and Conflict Studies for the organisation of the event, and I am honoured to be introduced by your Chancellor, Justice Kim Santow OAM.

Contemporary Problems with Protecting Borders

Since the end of the Cold war, we have come to expect that there will be more conflicts in the world, producing refugees. When the balance of power was maintained between two power blocs, parties to a conflict and those fleeing the conflict would often be under the control of one of the major power blocs. Refugees were more readily grouped as "them" or "us" depending on which power bloc they were fleeing. All of them are now to be closely scrutinised. We now expect that there will be more inter-ethnic and inter-religious conflict in more fragile nation states. We also expect there will be more failing states unable to offer human rights protection to their citizens.

Since September 11, we also expect that there will be greater difficulty both in determining whether persons without valid travel documentation are a security risk and in moving some of these persons back to their home countries. For example, at the moment and for the foreseeable future, it is impossible for our government to move Iraqis or Palestinians anywhere else in the world unless they already have residential rights in some third country.

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

Since 1989, we have had 259 boats turn up on our shores constituting the most recent wave of asylum seekers wanting access to Australia without a visa. 213 of those boats have come during the prime ministership of John Howard. 102 of them came (mostly from Indonesia) after our intervention in the East Timor conflict when we did the right and decent thing in the circumstances but dressed it up as the action of a deputy sheriff taking the high moral ground and when the Indonesian presidency was in transition and some disarray. I have no doubt that some persons in authority in Indonesia thought they would test the waters of our superior morality by allowing or encouraging a few more boats to make the journey. As Indonesia is a lightly governed country with endemic corruption, it is unlikely that any Australian government could negotiate any agreement which would stop "people smuggling" completely. Later this month, it will be a year since the Tampa affair and the Australian response to it, no more boats having come in that time. The AFP has told the Senate that " there are currently 2,100 people in transit from various countries now in Indonesia who may be seeking to enter Australia". These last 13 years, 13,475 unauthorised arrivals have come by boat - on average, 1,000 a year. But from 1999 until 2001, that number had quadrupled.

At any one time there are said to be up to 20 million refugees and other persons of concern to UNHCR. There are about 37,000 off-shore asylum seekers who are on the books having indicated a desire to come to Australia. Australia takes up to 12,000 off-shore refugees or other humanitarian applicants a year. To some extent, our government seeks a migration outcome in choosing these successful applicants. It is misleading to claim that they are the ones who happen to be at the head of a queue of persons ranked according to greatest need. They are the lucky ones in a lottery where some connection with Australia or greater compatibility with Australia usually counts for something.

The sovereignty of the nation state is morally justifiable only if the nation state discharges its primary obligation to protect the human rights and uphold the dignity of its citizens. Non-interference in the affairs of other States is morally justifiable only if the international community makes provision for the protection of the human rights of those persons who are persecuted by their own state either because the state authorities single out members of their group for persecution or because the authorities selectively fail to protect members of such groups from persecution by other non-state actors.

Since 1951, such protection has been best accorded by countries signing up to the Convention on refugees. Australia is a signatory - Indonesia is not. Papua New Guinea is a signatory, Nauru is not. Under the convention, we are not to force back those who rightly invoke our protection obligations. And we are not to punish them for having the temerity to turn up without a visa. This defect is the equivalent of not having a parking permit when you have entered the carpark while fleeing a bush fire. To equate bona fide asylum seekers with queue jumpers is to equate the bona fide bush fire victim with the carpark cheat who simply wants to avoid the permit fee while jumping the queue. Much of our present government rhetoric is posited on the presumption that all boat people, even those who are refugees, are engaged in secondary movement for non-persecutory reasons. They are all assumed to be persons seeking a migration outcome, trying to jump the queue. That is also the underlying assumption in the legislation and policy directions. We now treat them as criminals until they can prove that they are refugees, locking them up as a deterrent, locking them up in the desert and sending a message to their countrymen.

Even those countries which are not net migration countries have to do their part in assisting refugees providing them with safe haven until it is safe for them to be repatriated. In the long term the options for a refugee are repatriation to their home country when it is safe to return, integration into the nation state to which they fled seeking asylum or resettlement in a third country. With modern travel habits and ease of communication, the line becomes blurred between an asylum seeker's secondary movement from a country of first asylum and an asylum seeker's ongoing journey seeking a place of secure asylum for self and family dependents. Our government and our parliament thinks this blurred line can be straightened by precise legislation which would be interpreted by public servants and tribunal members spared any review by the courts.

Being an island continent nation, we do not share land boundaries with any other nation and we enjoy the splendour of our isolation. That isolation also feeds our fear of the other. The politics of fear has become a hallmark of Australian politics this last decade, and fear of the foreigner has always been part of the Australian story. Having been involved in the Mabo native title exercise in 1993, the Wik debacle in 1998 and now the boat people saga of this last year, I have become used to our politicians thriving on or being paralysed by the politics of fear, depending which side of the political fence they find themselves. As with Mabo and Wik we will all emerge from this present fracas wondering what all the fuss was about. But this time we have been prepared to inflict substantial damage on some of the world's most despairing people in the cause of deterrence and border protection, wasting many taxpayers' dollars in the process. The fear is compounded by the "other" religion - Islam. It is also compounded by cultures which are so "other" such as those of Afghanistan and Iraq.

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

Contemporary Problems with protecting Asylum Seekers

Let me walk you through some of the abuses and costs created by our present policy. Like most Australians I want to believe Rear Admiral Smith's recent rebuttal of the claim that the RAN could be guilty "of deliberately turning their backs on people in peril". I hope he is still right when he says, "The Royal Australian Navy is a highly professional service which places the highest importance on the safety of life at sea and, whenever we are able, we will always respond to those in distress."

But how do we reconcile these noble sentiments with what we are asking our able seamen to do? Here is an extract from the log of the HMAS Adelaide tabled in the Senate on 21 February 2002:

6 October:

  • 1813 (AEST 2113) First warning given to master of vessel.

7 October:

  • 0153 (AEST 0453) Second warning issued.
  • 216 Boarding party ordered by Commanding Officer to prepare to board SIEV 4 when vessel enters Christmas Island Contiguous Zone.
  • 258 Adelaide made close pass down SIEV4 starboard side.
  • 335 Adelaide directed by CJTF to conduct a positive and assertive boarding .
  • 402 Warning 5.56 mm (cannon) shots fired 50 feet in front of vessel.
  • 405 Warning 5.56 mm shots fired 75 feet in front of SIEV4.
  • 409 Warning 556 mm shots fired 50-100 feet in front of SIEV 4.
  • 414 Boarding party advised by CO that if 50 cal machine gun warning shots do not stop vessel, boarding party is to aggressively board SIEV 4.
  • 418-420 Twenty-three rounds of 50 cal (20 rounds of automatic fire) fired in front of SIEV 4
  • 430 Close quarters manoeuvering by Adelaide, SIEV passed close astern to Adelaide port quarter and reduced speed/took way off momentarily.
  • 432 Boarding party issued final warning (to SIEV) indicating that if they did not allow boarding party to board, Adelaide would not let them enter Australian waters.
  • 442 Boarding party effected a conducted non-compliant boarding of SIEV4.
  • 445 Boarding party in control of SIEV 4.

If a boat - even a leaking, overloaded wooden boat - enters our territorial waters with a human cargo credibly claiming to be asylum seekers, that boat should in future be escorted to the new $219 million detention centre being purpose built on Christmas Island. If the passengers come without valid travel documents, we should keep them there until their identities are established and a prompt determination is made whether or not they are a health or security risk. If they were a security risk or of questionable identity, ongoing detention in this isolated place would be warranted.

At enormous cost, we are maintaining reception and processing centres at Curtin, Port Hedland, Woomera and now Baxter on the Australian mainland. Curtin will soon close. Every fairminded person including the government's own Immigration Detention Advisory Group thinks that Woomera should have closed long ago. There are only 180 detainees now in that facility. It is a hell-hole, dehumanising for the detainees and the workers alike. But it is our twenty-first century Port Arthur. Its deterrent value to government is enormous. It is the jewel in the crown of desert detention. There is no other policy reason for keeping it open. There is no sensible financial reason for keeping it open. It is far removed from state services such as Children's services and police. It is too isolated a place for public servants and tribunals comfortably and efficiently to process claims for refugee status. DIMIA sees an ongoing use for Woomera because this ensures that "we have a network of centres in order to best manage the diversity of the detainee caseload. Retaining the Woomera IRPC also makes possible the operation of the alternative housing project for women and children in the Woomera township." But let's face it: Woomera's main purpose now is to emit a double signal to would-be asylum seekers and to fear-filled voters. Dispersing the 180 Woomera detainees to other places would deprive government a precious transmitter.

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

During this last financial year (1 July 2001 - 30 June 2002), the Refugee Review Tribunal (RRT) set aside 62% of all Afghan decisions appealed and 87% of all Iraqi decisions appealed. This means that Afghan asylum seekers got it right 62% of the time when they claimed that the departmental decision makers got it wrong. And the public servants got it wrong 87% of the times that the Iraqi applicants claim to have been mistakenly assessed. In this last financial year, the RRT set aside 115 of the 132 Iraqi decisions appealed and 197 of the 318 Afghan cases appealed. Meanwhile it set aside only 7.9% of decisions appealed by members of other ethnic groups (398 of 5012 cases). Even more disturbing than these comparisons is the statistic that in the last financial year, the RRT finalised 855 detention cases of which 377 were set aside. This is a 44% set aside rate in detention cases. Though there are problems with the significant Iraq and Afghanistan caseloads, DIMIA rightly notes that over 90% of the refugees from these two countries "are identified by the Department through the primary decision-making process". But those Iraqis and Afghans who are turned down have a very high success rate before the RRT.

The RRT delegation in their presentation of evidence at the HREOC inquiry two weeks ago was unable to give a coherent public explanation for the discrepancy in set-aside rates for Afghan and Iraqi cases. Especially in the case of Iraqi claims where there has been little in-country change from the date of primary decision to the date of RRT hearing, the set-aside rates are very troubling. Admittedly there has been a rapid change of circumstances in Afghanistan but those changes are just as likely to render the applicant ineligible for protection some months later when they appeal to the RRT from the primary decision maker. And yet 62% of those who have appealed the primary decision have succeeded.

The government and the parliament have been anxious to get the decision making process away from court supervision. There was a time when the Commonwealth conducted itself as a model litigant before the courts. Because of the politics of refugees, those days have gone and we now pay the price of losing such sensible conventions. When the Federal Court constituted a special five member bench to consider appeals on the new privative clause provision, Chief Justice Michael Black saw fit to call Minister Ruddock to account. He addressed the Solicitor General of the Commonwealth:

It has however come to our attention that on Thursday 30 May 2002, your client made some observations about the Court on the Channel 9 Today program. He did so in response to a question put to him by the compere about a statement he had made in the Parliament on the previous day. I will not repeat what he is reported as saying in the Parliament. On Channel 9 however he said:

“…and what we are finding is that, notwithstanding that legislation, the courts are finding a variety of ways and means of dealing themselves back into the review game.

And what I have said to the Parliament is, look, we’ve passed this legislation, this was a decision of the Parliament. The High Court of Parliament is saying decisions of the Tribunal should be final and conclusive and if we need to give the court some further advice we may need your support again. “

In fact, the legislation enacted by the Parliament expressly retains a role for this Court. A major question that we have to consider in these appeals is what the Parliament intended to be the extent of that role.

Your client has made other statements along these lines over the years. For example he is reported as having said at a meeting of the Commonwealth Lawyers Association in London recently that it should be the Parliament that decided its laws not what he termed “unelected and unresponsible officials” of the courts.

Despite these statements I have not previously responded to any of them publicly. The most recent statement however raises a new issue since it would appear that it could only refer to the issues before the Court on these appeals – appeals to which your client is a party. He is the respondent in four appeals, in which he was successful before the trial judge, and he is the appellant in one appeal in which he was unsuccessful before the trial judge. The statement was made only a matter of days before the date fixed weeks ago for the hearing of the appeals.

You would of course know Mr Solicitor that the court is not amenable to external pressures from Ministers or from anyone else whomsoever, but we are concerned that members of the public might see the Minister’s statements as an attempt to bring pressure on the Court in relation to these appeals to which he is a party.

All this simply earned Mr Ruddock a pat on the back from the Prime Minister and a round of applause in the party room. Ex-Chief Justice of Australia, Sir Gerard Brennan explained the matter to an Indonesian legal audience:

There has been much controversy about the laws relating to the mandatory detention of people who arrive in Australia without the requisite immigration permits. The Government and the Parliament of the Commonwealth assert that those laws are essential to preserve both the integrity of the national borders and the policies which govern a generous immigration program. Some of those who arrive without permits are refugees seeking asylum and who are entitled to asylum under Australian law. The laws are controversial because many Australians regard the laws as offensive to the human rights of those who flee from other countries, particularly children and those who are genuine refugees within the definition of that term in the International Convention relating to the Status of Refugees.

The Government has been critical of Federal Court decisions which, it is said, have been too generous in determining refugee status. Laws have been passed restricting the jurisdiction of the Federal Court to judicially review decisions on refugee status, but the Constitution precludes the passing of laws restricting the jurisdiction of the High Court in any case in which judicial review is sought against an officer of the Commonwealth. Although the effect of the restrictive laws has been an increase in the High Court’s workload, the importance of the Constitutional provision has been illustrated. This provision is a constitutional guarantee of equality under the law: any person in Australia may invoke the High Court’s jurisdiction if that person claims to be adversely affected by an exercise of Commonwealth executive power.

Sir Gerard described this as "a dramatic example of the tensions that can exist between the Executive Government and the judiciary and of the ultimate constitutional protection of the rule of law as defined by the High Court." We could all breathe more easily with the cost effectiveness of removing the courts from supervision of the correctness of these decisions if we could be more convinced of the professionalism and independence of the primary decision makers and of the competence and security of the RRT members. The Minister and one of his in-house lawyers have taken public pot shots at the judges but when 18.2% of RRT decisions appealed to the Federal Court have been set aside this last financial year, there are good grounds for concern when the Parliament (following a Senate gag and a bypassing of the usual Senate committee processes) attempts to limit judicial review of RRT decisions. Justice McHugh, hardly an expansionist High Court judge, has recently told the Australian Bar Association Conference:

Even if 30 percent of applicants have commenced proceedings "as a means of prolonging their stay in Australia", it seems a small price for a just and prosperous country to pay for maintaining the rule of law.

The frustration of the Executive as the result of applicants abusing the judicial review system is understandable. But Parliament and the Executive should never forget the statement of Sir William Wade, the doyen of administrative lawyers, that "to exempt a public authority from the jurisdiction of the courts of law is, to that extent, to grant dictatorial power". Review of a public servant's decision by an administrative tribunal, whose members do not have the same security of tenure and independence as judges, is no substitute for review by a court. In principle, even a national emergency should not be a sufficient basis for refusing to permit the courts to examine the legality of the conduct of the Executive Government.

Under the separation of powers doctrine, the principal function of the judiciary is to uphold the rule of law. It is a corollary of that doctrine that the judiciary cannot be deterred from exercising that function by criticisms of the Executive branch even if the Executive's criticisms have the support of the general public. The Judiciary has to apply the law, not public opinion.

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

An Iranian single mother made a very serious and professional attempt on her life in early June at Woomera. This happened after the minister lodged an appeal to the full Federal Court from her successful appeal to a single judge of the Federal Court who had ordered that her matter be remitted to the Refugee Review Tribunal to be decided in accordance with the law set down by the High Court in a case which had been decided after the RRT had considered her case. In her favour, Justice Tamberlin had observed:

In this case the RRT member, as in Khawar, dismissed, without any consideration, the possibility that the applicant could be a member of a particular social group which may be either women in Iran or divorced women in Iran. The reasons for decision focus only on the question whether the added references to possible harm could define a social group. In so doing the decision fails to come to terms with the central issue of group identity. Until this issue has been addressed and determined it is not possible for the decision-maker to determine whether there is a real chance of persecution as a consequence of being a member of that group. Furthermore, the RRT decision does not make a determination as to the availability of protection by the State or State agencies against violence or threatened violence to women in Iran.

In my opinion the failure by the RRT to consider and determine the applicant's claims in relation to membership of a particular social group is a fundamental error of law because it demonstrates that the essential issue for determination by the RRT has not been considered.

The judge had simply remitted the matter to the RRT ordering that the RRT determine the matter consistent with the principles set down by the High Court in Khawar. Surely it is in everybody's interests, especially the mother and her accompanying seven year old son at Woomera, that this reconsideration by the RRT proceed as quickly as possible without further proceedings in the courts. If the minister is concerned about Justice Tamberlin's interpretation of the scope of the privative clause, I would have thought that the many other cases on appeal, including those which have now been reserved by the special bench of five, would have been sufficient vehicles for him to obtain clarity on that aspect of the law.

Now that a court has had the opportunity to scrutinise an RRT decision and to find it inconsistent with the subsequent High Court decision in Khawar, I cannot see that anything is to be gained by any party, including the minister, proceeding with an appeal to the Full Federal Court. The only conceivable gain to the government would be if an alternative outcome were to be obtained by upholding the original RRT decision and reasoning without the benefit of the High Court's guidance in Khawar. But that would be a travesty of justice highlighting the injustice of the outcome.

And yet the Minister has constantly told Parliament and the public that he is more concerned with a just outcome in a particular case rather than elaborate and legalistic appeal points. I would have thought this an appropriate case for prompt determination by the RRT rather than further Federal Court litigation with the prospect that the matter will be eventually returned to the RRT in any event.

The government has a medical report indicating that after the minister lodged his appeal, the Iranian applicant "made a serious attempt to kill herself by cutting a vein in her arm. This was in the context of now wanting her son to be fostered out to an Australian family and she thought that if she died that this is what would happen to him." The psychiatrist has observed, "Her determination to find a way of getting her son out of the Detention Centre is strong and in this context, she is quite capable of further significant acting out behaviour and is ultimately at serious risk of suicide." Her statements to me on my last visit to Woomera last week are consistent with this prognosis. The government's lodgment of full Federal Court appeal thereby postponing or avoiding the RRT deciding her case consistent with the High Court decision in Khawar, as modified if at all by later legislation, can only add to her anxiety and desperation. The human cost is too high.

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

Consider the Palestinian case of Akram who has now appealed his detention to the Federal Court seeking an order of habeas corpus. He arrived on Ashmore Reef in July 2001. In Woomera he was processed and rejected. He formally applied to be returned home. He packed his bags expecting to leave in February. On 18 February a public servant told him that he could not be moved anywhere. He went berserk understandably and smashed his right hand through a plate glass door, being hospitalised for weeks. With other Palestinians in the same situation he then wrote to Minister Ruddock in February, March, May and July 2002 saying:

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

The minister's only response has been to say on 3 June 2002:

The issue with this group is not the question on their right of return to the Palestinian Territories (they either already hold valid Palestinian National Authority travel documents) or we believe we will be able to obtain them), it is the need for approval for their overland transit through the territories of a third country. We are negotiating with three relevant countries and believe this matter is capable of resolution.

Justice Merkel has reserved his decision on the habeas corpus application by Akram. Hopefully, we will all soon have the advantage of clarity about the legality and constitutionality of long term, open ended, judicially unreviewable detention of rejectees who happen to have entered Australia in the past without a visa and who happen to be nationals of countries unable to receive back their nationals from Australia.

Problems with the present Australian Balance between border protection and protection of refugees within our territory

In recent days, the government has expressed strong criticism of Justice Bhagwati's UN report of "Human Rights and Immigration Detention in Australia" which concludes that

From a human rights point of view, the detention of children in the context of immigration procedures is certainly contrary to international standards. But even from a practical point of view this would be undesirable as the children would be growing up in a detention centre enclosed by spiked iron bars in surroundings hardly conducive to the healthy growth of a child. While, in most cases, the parents of these children carry the main responsibility for ensuring the well-being of the children, and as such are to some extent responsible for the plight of the children, it would nevertheless appear obvious that detention of children for immigration purposes is not in their best interest.
……the human rights situation of persons in immigration detention in Australia is a matter of serious concern. Despite the many positive efforts undertaken by the Government to improve the conditions in the detention centres, from a human rights perspective it might be useful to ask whether the current approach to illegal immigration is the correct one. In any case, a more humane approach would certainly be desirable.

Mr Ruddock has now have published his "Detailed Rebuttals" to the Report of the UN Human Rights Commissioner's Envoy into Human Rights and Immigration Detention. I agree with him that "The length of the period of detention should not be considered in the abstract but must be considered alongside the reasons for detention (that is to ensure that unlawful non-citizens are available for processing, to allow identity, security and health checks to be made and to ensure availability for removal if they are not owed protection)."

But in relation to the Palestinians at Woomera, it is very misleading to continue telling the public that "Detainees who have failed to engage Australia's protection obligations can bring their detention to an end by choosing to leave Australia and by cooperating in removal arrangements." The Palestinians have been very co-operative and are desperate to leave Australia if we are not prepared to permit them and their families residence rather than detention. The minister's statement is equally misleading in relation to the increasing number of Iraqis who cannot return home. Their ongoing detention on the eve of war to which we will be party is not "reasonably capable of being seen as necessary for the purposes of deportation" (Lim's case).

The minister continues to claim, "The period of time in detention is lengthened by detainees appealing negative decisions through tribunals and courts and by their non-cooperation in removal." But in the case of the Iranian mother at Woomera and her seven year old son, their detention is now being lengthened by the Minister's unnecessary appeal of their case to the full Federal Court rather than their case being considered promptly by the RRT.

Despite Mr Ruddock's "detailed rebuttals" of the UN report, there is an increasing caseload of detainees who have been rejected and cannot be moved, this being no fault of theirs. Furthermore, the detention of some applicants has been lengthened by the government's decision to appeal to the full Federal Court decisions which have been favourable to asylum seekers. If Justice Merkel does rule that the detention of the Palestinian applicant is unlawful and unconstitutional, I hope the government will be able to move promptly to release all those persons in similar circumstances.

It was no part of Bhagwati's brief to determine whether the Australian regime amounted to arbitrary detention. That was decided back in 1997 when the UN Human Rights Committee ruled on a complaint by a Cambodian detainee ("Mr A") under the first optional protocol of the International Covenant on Civil and Political Rights. In those days there was still a 273 day limit on detention and in that case there was no problem about the applicant being able to return to his home country should he have so wished. The decision was disregarded by Australian politicians on the basis that it was simply the opinion of an international committee. In his press release of 17 December 1997, Attorney General Daryl Williams defended the four year detention of Mr A on the basis that

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

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

Last year, the Court of Appeal in the United Kingdom quoted the UN's decision on the mandatory nature of the Australian detention regime and went on to state its unanimously held belief "that most right thinking people would find it objectionable that such persons should be detained for a period of any significant length of time while their applications are considered, unless there is risk of their absconding or committing other misbehaviour."

The UK Court of Appeal found no dissonance between the European convention and other sources of English domestic law as "the Convention sets out values which our laws have reflected over centuries…. The policies that have constrained, and still constrain, the exercise of statutory power to detain aliens…result from a recognition, that is part of our heritage, of the fundamental importance of liberty." In this instance, the Court decided that the detention was lawful but that it was right that it receive strict scrutiny from the courts.

The Australian problem now is that:

  • we have no equivalent of the European convention in our domestic law,
  • a decision of the UN Human Rights Committee on a case involving circumstances which are no doubt replicated in many other cases is simply disregarded,
  • our politicians pillory our judges for applying strict scrutiny to the detention of asylum seekers,
  • they then pillory overseas judges who accept UN appointments to scrutinise our inhumane detention practices,
  • our parliaments (under governments of both party persuasions) have enacted specific laws for the long term detention of asylum seekers thereby separating Australia from the contemporary UK reading of the common law heritage.

The government is right to reject alternatives which would permit detention of unaccompanied adults and mandate the release of family groups with children. Such a policy would only encourage parents to put children to sea on these dangerous voyages. Consistent with the High Court's decision in the Lim Case ten years ago, detention of all persons, including children, should be restricted to migration purposes and should take place in locations which are well suited to the purpose of detention, especially the efficient processing of visa applications. Deterrence in the desert is the big lie in the government's policy, causing the minister to trip up on the use of the word "deterrence".

Once asylum seekers are found to be refugees, they should have the same rights as all other refugees regardless of whether they arrived by plane or boat, with or without a visa. In particular, they should have the same rights of international travel and of family reunion. By denying these rights to some, we encourage women and children to risk hazardous voyages and we demean those refugees living in our community wanting to get on with their lives without remaining disconnected from their families. Family reunion is not a "convention plus" outcome as the Minister likes to describe it; it is a basic human right. We have 60,000 overstayers a year who arrived with visas. Most of them are far more able to escape detection in the community than the handful of unauthorised boat arrivals each year. Once again this discrimination is only for the purpose of deterrence, wreaking too much devastation in the uncertain lives of those who now have every entitlement to be living in our midst.

I will not delay long on the Pacific solution which is the last step in a morally bankrupt policy. Imagine if every first world country decided to engage in this sort of unlawful people trading. Such detention is contrary to the constitutions of PNG and Nauru. The minister's first defence is to claim that the facilities in those places are not detention centres despite the Migration Legislation Amendment (Transitional Movement) Act 2002 speaking of "the detention of the person in a country in respect of which a declaration is in force (s. 198D(3)(c)). And the bills digest for the Migration Legislation Amendment (Transitional Movement) Bill 2002 speaks of the removal of persons "to a place such as a 'Pacific Solution' detention facility on Nauru or Papua New Guinea". Even Senator George Brandis and Mr John Hodges in the Senate Select Committee on a certain Maritime Incident have referred to the "detention centres" in those places and the "detainees" kept therein. In his evidence on 1 May 2002, Mr Hodges said, "Nauru is by far the worst of the detention centres." Mr Ruddock's next defence is to claim that it is not for the Australian government to tell other governments how to interpret their constitutions.

UNHCR has informed the government and now the Senate about its concerns with the detention regime under the Pacific solution. In its submission to the Senate's Legal and Constitutional References Committee on the excision of more islands from Australia's migration zone, UNHCR has said:

Detention or similar restrictive measures applied to asylum seekers are inherently undesirable and should normally be avoided. If necessary, detention may be resorted to only on grounds prescribed by law to verify identity; to determine the elements on which the claim to refugee status or asylum is based; or for reasons of national security or public order. Detention, where this lacks appropriate safeguards such as humane conditions and access to periodic judicial review may be considered arbitrary.

Of concern to UNHCR in the cases of Nauru and Manus Island, is that refugees who have been recognized and therefore have had their status regularised remain detained until a durable solution is found. This detention is without time limits or periodic review. The ongoing detention of persons recognized as refugees is a restriction of freedom of movement in breach of Article 26 of the 1951 Convention. Furthermore, such detention is not consistent with Article 31(2) of the Refugee Convention, which provides that restrictions of freedom of movement shall not be applied until the status of refugees in the country is regularised. Even though these recognised refugees are no longer on Australia's territory, Australia's obligations under the Refugee Convention continue to be engaged until a durable solution is found.

Towards more just, workable and decent policies.

The European Union is now trying to formulate common standards and a unified approach to the processing of asylum applications. In Europe, they do not have the luxury of going it alone because "Methods that deter access to a national territory merely shift the burden from one country to another." It is very unneighbourly behaviour. Everywhere, governments of first world countries are under pressure from the asylum seekers and their electors as they strive to find the balance between the protection of borders and the protection of the asylum seekers who, like the poor, are with us always. But this is why it is so important that we Australians address our own fears rationally and ensure that we act decently. Compared with the European numbers, ours is a small nut to crack. Is that any reason for us to use a large sledge hammer which would inflict untold damage if used in other places? Our policy can be posited only on one of two options. Either we want to be so indecent that no other country will dare to imitate us and so we will maintain the advantage that asylum seekers will want to try anywhere but here. Or we want to lead other countries to a new lowest common denominator in indecency losing the short term comparative "border protection" advantage but being seen to be world leaders in greater stringency towards asylum seekers, triggering another round of competitive tightening or at the very least leaving bona fide asylum seekers more vulnerable in the non-existent queues.

I commend the government for its stated objective: "to resettle some 12,000 persons each year who are in greatest need and to prioritise those who are in need of assistance - those who are at risk if they remain where they are and have no other means of escape other than resettlement to a third country." Some of those persons in greatest need have come to Australia by boat without a visa and we have treated them appallingly. There is no reason why the government objective cannot be achieved together with the objective of treating asylum seekers within our territory firmly but decently. The immorality and inequity in world burden sharing resulting from our present "slam the back door" policy is highlighted by a simple thought experiment. Imagine that every country signed the Refugee Convention and then adopted the Australian policy. No refugee would be able to flee from their country of persecution without first joining the mythical queue in their country of persecution to apply for a protection visa. If anyone dared to flee persecution, they would immediately be held in detention (probably for a year or so) awaiting a determination of their claim. All refugees in the world would be condemned to remain subject to persecution or to proceed straight to open-ended, judicially unreviewable detention. The purpose of the Refugee Convention would be completely thwarted. The myopic argument runs that we Australians are entitled to design a sledge hammer to crack this small nut because other countries have not (yet) adopted our policies and because we are prepared to take 12,000 applicants through the front door provided they stay in the queue back in the country of persecution or first asylum.

If detention is to remain a cornerstone of Australian border protection and front door immigration entry, there is a need for alternative arrangements to render the present detention policy more humane and effective. Given the modesty of the problem confronting Australia, we would do well to ensure compliance with the standards set by other countries receiving far more asylum seekers across porous borders than we ever have. I propose three simple questions: Given that we have the advantage of geographic isolation, why don't we try to be just a little more decent rather than less decent than other countries with the same living standards when it comes to our treatment of those who arrive (whether with or without a visa) invoking our protection obligations? Or if that is judged too naïve, how about we aim to be just as decent as those who receive ten times more asylum seekers than we do? Or if that is too much to ask (given the fear driven mandate of the recent election), how about we limit our indecency to our treatment of adults, ensuring that never again are kids put in the line of batons and tear gas in the name of border protection, as they were at Woomera this last Easter?

While we await the European reviews of law and policy next year, our politicians should be urged to make these immediate corrections to our own law and policy:

  • Those claiming to be asylum seekers inside our territorial waters should be escorted to Christmas Island for processing by navy personnel who place the highest importance on the safety of life at sea and who always respond to those in distress.
  • Initial detention at Christmas Island should be limited to identity, health and security checks. There should be resident child protection officers at Christmas Island. No child should be treated as a security risk.
  • Those who have passed these checks and not been screened out as bogus claimants should be moved to the Baxter reception and processing centre which should be conducted for reception and processing rather than for deterrence and punishment. Better still, they could be moved to one of the urban centres such as Villawood with provision for day release. Any person absconding would forfeit the entitlement to future day release. Curtin, Port Hedland and Woomera should be closed. Alternative detention arrangements outside Baxter should be set up in Port Augusta and/or in the large vacant Whyalla housing stock where many in the local community are anxious to welcome newcomers. Alternative detention should be available to any person for whom a primary decision is still pending after four months or an RRT decision after two months of lodgement.
  • There should be regular State services on hand at reception and processing centres, especially police and Childrens services. The State governments should be adequately resourced and free to deliver professional services without political interference from Canberra.
  • There should be an independent guardian for unaccompanied minors who can exercise the powers of guardian without the conflict of interest and artifices which surround the present guardianship arrangements. We must avoid the farcical situations such as the guardian offering his ward a financial incentive to return to a war zone because the guardian has a vested interest in having the child leave the territory.
  • The influences on primary decision makers which lead them into regular error in the assessment of Iraqi and Afghan claims should be investigated and removed.
  • RRT members should be given sufficient security of tenure, if need be after an initial probation period during which time their decisions would be automatically reviewed by senior members, to ensure the integrity of their decision making process immune from improper ministerial and departmental influence.
  • Successful applicants should be given a visa which entitles them to family reunion and international travel as specifically provided in Article 28 of the Convention on Refugees of which Australia is unquestionably in breach. A temporary protection visa should be made permanent if our protection obligations are still invoked three years later.
  • We should maintain a commitment to at least 12,000 off-shore refugee and humanitarian places each year in our migration program regardless of the number of successful on-shore applications for refugee status we receive. There is no reason to think that our on-shore caseload will increase exponentially given the improved regional arrangements and the tighter controls within Australian territory.
  • We should abolish the Pacific solution.
  • If the High Court upholds the validity of the privative clause, we should abolish the concept of a distinct Australian migration zone given that our processing and appeal system would be sufficiently streamlined to process all comers. The AFP has already warned that the excision of further islands from our migration zone may "deflect illegal immigrants to regional centres with better infrastructure"