End in sight for 'cruel' asylum seeker policy

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Nauru, Pacific Solution'When I asked why the eight Burmese had not been settled in Australia in accordance with international law there was an embarrassed silence.

Eventually the answer emerged. The Howard Government had ordered they stay put. They had been left rotting on Nauru because the Howard Government wanted to maintain the myth that third country settlement was possible.

Sadly, Australia's treatment of asylum seekers had sunk this low.

The treatment of asylum seekers has been controversial in Australian political debate for many years. The length and conditions of their detention has been a particular focus of criticism.' Minister Evans, 29 July 2008

Mandatory detention of unauthorised arrivals has been the policy of the Australian government since at least 1989. When it was challenged in the courts in 1992, and the High Court found there was no legal basis for it, the response of the then Labor Government was to tighten the laws and offer a pittance of compensation for 'unlawful imprisonment'.

When it was again challenged in 2004 in the High Court the Howard Government's law that effectively provided for indefinite mandatory detention was upheld by a majority of the judges. Even one of the judges who voted to retain the law commented that he was uncomfortable about the decision.

Finally in July 2008, a government has accepted what most advocates and detainees have been calling for since 1989 — provision for quick release from detention of people assessed not to be a security risk. The onus on keeping someone in detention will fall on the relevant department.

A statement of '7 Immigration Detention Values' restates that mandatory detention is essential, but this is mitigated by values 4 and 5:

4. Detention that is indefinite or otherwise arbitrary is not acceptable and the length and conditions of detention ... will be subject to regular review.

5. Detention in IDCs (Immigration Detention Centres) is only to be used as a last resort and for the shortest practicable time.

This is a major policy change since the High Court found in 2004 that a Palestinian could be detained without a time limit.

This brings Australia more in line with the recommendations of the UNHCR Executive Committee which provided for only short-term detention for health and security checks.

The exact details of the changes still need to be seen in the legislation, but the announcement is a major reform of what was without doubt a cruel policy. The policy was slowly unwinding even under Howard since the Cornelia Rau and Vivian Solon cases showed the politically driven policy was out of control.

The new policy also provides for legal advice for people who are considered to come within the 'excised' provisions and previously would not have any entitlement to legal advice. A mechanism of review is also to be set up, though the details still need to be seen.

This fundamental shift in policy may have been possible because there are really few cases affected. If boats do arrive, it will be interesting to see if the Government holds to these commitments. We can only hope it will.

The changes ameliorate some of the worst parts of the 'excision policy' which was part of the infamous 'Pacific Solution'. Ideally the excision provisions should also be repealed but many people will breathe more easily at this reform.

The stated abolition of the TPV is still to be legislated, and hopefully this punishing visa will be gone before the year's end. In the meantime, many will welcome the changes as they would an escape from a form of eternal punishment.


Kerry MurphyKerry Murphy is a solicitor and accredited specialist in Immigration Law. He is a partner in his own practice. He was formerly coordinator of the Jesuit Refugee Service in Sydney.

Topic tags: kerry murphy, asylum seeker, refugee policy, UNHCR Executive Committee, gareth evans, Cornelia Rau, solon

 

 

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Existing comments

Is it a basic human right to migrate anywhere on the earth? If not, why not? If so, what can limit the right?
Communicable disease, inability to support oneself, criminal and violent behaviour, other? If it is not a basic human right what sanctions to prevent unwelcome or enforced intrusion are allowed? Is there a parallel with home invasion? I have failed to understand either side of this debate.
Ted Lambert | 30 July 2008


It seems that at last Australia is showing a measure of compassion towards asylum seekers most of whom are victims of circumstance. It is to be hoped that without further delay the impost placed on many genuine refugees to meet the cost of being held in detention will be waived. In some cases the calculated cost well exceeds $200,000.
David Dyer | 30 July 2008


Well done, Kerry! I rejoice that years of your untiring work in this field is bearing fruit. I pray with you that our government can abide by its new decisions for justice. Viv
Vivienne Goldstein sm | 30 July 2008


Thanks Kerry Murphy, and thanks again, Eureka Street. What splendid companion pieces today's two are!
Joe Castley | 31 July 2008


One hears the sincere questions raised by Ted lambert very often.

Will somebody answer them?
Peter Ryan | 01 August 2008


Ted, after the horror of WW11 the world wrote a convention, with Bob Menzies at the head of the table, to say 'never again". After the world sent away Jewish refugees and denied them safe haven the Refugee convention seeks to guarantee rights to asylum seekers and refugees.

Australia managed to get it all terribly wrong over the last years by saying that refugees were only refugees when they arrived here, not because they had been forced to leave there.

There are only a few exclusion clauses - those who had protection in another country have no right to further protection unless that protection has been withdrawn. Australia did not exclude one person under this clause.

The other exclusion is war crimes.
Marilyn | 02 August 2008


There still remains, and I suspect will remain even after this legislation, the legal right of the executive to detain asylum-seekers without recourse to a court order. That surely is what 'mandatory detention' means, and the ALP is still committed to that.

What we need is for this executive power to be removed and for the whole process of dealing with people who arrive without permission to be shifted to the courts where the person could be formally charged. It would be up to the court then to decide whether the person should be held in custody pending trial or released on bail.

The granting of bail would be determined after consideration of all the normal factors including the danger of absconding or re-offending and so forth.

What is it about an asylum-seeker that requires s/he be dealt with any differently at law to any other person who has allegedly entered to country without prior permission?
Warwick | 06 August 2008


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