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Asylum seeker Scrabble


Last week there were three significant events affecting refugees including, tragically, more deaths.

Yet another detainee killed himself after a prolonged period in detention and while awaiting a security check. It has never been satisfactorily explained why these checks take so long. For more than 15 years, mental health professionals have been stating that prolonged detention can cause serious damage to a person's mental health. Yet the mandatory detention policy remains.

The second event was the passing of the Deterring People Smuggling Bill. The law ensures that a person convicted under people smuggling offences introduced in 1999 will not be able to claim that they did not commit an offence if the people they transported were later found to be refugees. The law was introduced into Parliament and passed within a day to defeat ongoing court proceedings.

Then there were more deaths at sea when another unseaworthy boat sank. The tragedy refuelled the debate about whether a Nauru or a Malaysia based 'solution' would more effectively 'stop the boats'.

The Government and Opposition will tighten the system when challenged, but refuse to accept that the flawed system of mandatory detention is in need of major reform.

The use of language in the debate is always striking. It has evolved and adapted over the years.

Previously, governments spoke of 'border protection' as a reason for mandatory detention and methods of deterring applicants who arrive by boat. Now the tactic is to speak about 'preventing deaths at sea'. However, the politics is still driven by a philosophy of border control. The human rights of asylum seekers and international obligations are secondary considerations.

In 2001 we had the 'Pacific Solution', which was a misnomer: it was not 'pacific', and warehoused refugees rather than providing a solution. We saw, too, the creation of 'excision', whereby islands formerly considered to be part of Australia were no longer so for the purposes of Migration Law.

The prize for legalese must go to 'offshore entry person', which is defined as a 'person who arrives at an excised place after the excision time and becomes an unlawful non-citizen'. Everyone who has arrived at Christmas Island since late September 2001 has been designated as such.

We now have 'offshore processing'. This, too, is a misnomer, when it is used for people held in Christmas Island or in detention in Australia itself — which is definitely 'onshore'.

The term 'offshore processing' was used in an attempt to pretend such cases were not subject to the same judicial scrutiny as 'onshore' cases. This fiction was destroyed in November 2010 when the High Court handed down its judgment in M61 & M69. All of the 'offshore processing' of 'offshore entry persons' was subject to judicial oversight, in a similar manner to onshore cases.

Then, in August 2011 the High Court scuttled the misnamed 'Malaysian solution'. Again, it was not a solution, but a system of refugee 'warehousing'. No 'processing' of cases by Australia is involved at all, so again it is wrong for this to be called 'offshore processing'.

Since this decision and the political impasse over Nauru or Malaysia, we now have the 'Australian solution' — the processing of applications in Australia.

Sometimes language is used to demonise refugees, such as the term 'queue jumper' which persists despite the fact there are no queues (acceptance into Australia's offshore system is more like a lucky dip). In other instances, the language has adapted to avoid pejorative or innaccurate terms; for example, the term 'illegals' is less common now (it is not an offence to arrive without a visa). 

Whatever the language used, it does not change the fact that the arrival of small numbers of people claiming asylum from some of the most dangerous countries on the planet continues to prompt both major parties to turn community fear to political advantage, rather than acknowledge our duty as a global citizen to contribute to refugee resettlement without moving our responsibilities offshore.

Meanwhile, people will continue to be damaged by this flawed system. 


Kerry MurphyKerry Murphy is a partner with the specialist immigration law firm D'Ambra Murphy Lawyers. He is a student of Arabic, former Jesuit Refugee Service coordinator, teaches at ANU and was recognised by AFR best lawyers survey as one of Australia's top immigration lawyers. 

Topic tags: Kerry Murphy, offshore processing, mandatory detention



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Existing comments

"Whatever the language used, it does not change the fact that the arrival of small numbers of people claiming asylum from some of the most dangerous countries on the planet continues to prompt both major parties to turn community fear to political advantage, rather than acknowledge our duty as a global citizen to contribute to refugee resettlement without moving our responsibilities offshore."

Amen to this statement.

David Crowley | 08 November 2011  

Organising a game of Russian roulette, dealing in drugs or promoting travel via dangerous seas has always attracted sociopath of the lowest order. In the case of promoting travel via dangerous seas the exploitation by people smuggling industry is even more despicable as we often have lawyers, priests and other so-called “pillars-of-the community” acting either as promoters or beneficiaries. Of course this is nothing new, we have seen child abuse, the inquisition and crusades carried out by evil hypocrites and the current support of people smuggling will go down in history as one of these dark chapters. In the meantime these merchants of death and misery have the audacity to look down at politicians trying to stop it.

Beat Odermatt | 08 November 2011  

Thanks Kerry for the lucid, cogent argument.

The articles you and other contributors make to Eureka Street are in stark contrast to the fear, racism and selfishness of most newspaper columnists,shock jocks, bloggers and the government & opposition.

They provide me with useful argument in discusions in the workplace and social settings.

Well done!

Tony W | 08 November 2011  

Beat, I find your comment offensive. Just because we want to help those who are helpless when they arrive on our shores does not mean we are merchants of death. The crime is committed by the people smugglers, not by those who would help the victims of the crime. You are accusing the Good Samaritan when the accused should be the robbers (not to mention the Levite and the priest).

ErikH | 08 November 2011  

To ERIKH: I hope that my comment offends all promoters and beneficiaries from this deadly trade. These people know very well where the money comes from and where it is going and they do not care how many lives are lost. They continue to act as long profits are to be made or as long they can continue to beat their chest in hypocritical self-rightfulness.

Beat Odermatt | 08 November 2011  

There are no people smugglers committing any crime. In these two Afghan cases it is clear that it is governments committing the crimes. In one an Afghan refugee was deported from Iran three times and sent back to danger. In another he was illegally deported from Malaysia, as Malaysia nearly always does. Before that of course the culprits are the taliban. It is not the so-called smugglers committing any crime - it is the governments. Disgustingly Australia also tried to deny refuge to these two Afghan men. http://www.austlii.edu.au/au/cases/cth/RRTA/2011/904.html http://www.austlii.edu.au/au/cases/cth/RRTA/2011/905.html

Marilyn Shepherd | 08 November 2011  

Thank you Kerry for reminding us of the excision, a fiction which rendered parts of Australia "not australia for migration purposes". Perhaps the politicians and bureaucrats who have the awesome and dubiously constitutional power to do this could have used their textas to draw circles round Tasmania or round parts of WA where mining companies need workers. Perhaps, also, the people who arrive by boats could be treated just like those who arrived by big boats, were housed in camps in Melbourne and were then sent on to build the Snowy River Scheme and such things. Read Raimond Gaita's Romulus my Father to see how much such migrants gifted the country. In Western Australia we already have one remote town delighted by the benefits it is receiving because people seeking asylum have been sent there. And people who have lived for years in the town clearly like the "boat people". We have lots to think about.

Gerry Costigan | 08 November 2011  

The human beings are not being bought and sold, the human beings are buying a method of getting from a - b only and that is their legal right.

Marilyn Shepherd | 08 November 2011  

So what you're saying, Beat, is that anyone who says they want to treat desperate people with compassion and sympathy is a merchant of death. That's a twisted morality, if you ask me.

I have said in these pages before that it is time the Australian Govt did more on the ground in Indonesia instead of wasting resources locking people up on Christmas island, most of whom are eventually given residency anyway. That's how you are going to deal with the situation.

ErikH | 08 November 2011  

No issue so illustrates the moral bankruptcy of both major Australian political parties. For neither Gillard nor Abbott is there any genuine engaging with desperately vulnerable and needy people. They have reduced their vision and their responsibility to engaging with one another. The hung parliament means that either would sell their grandmothers to remain in power. If being human with regards to asylum seekers means that any electoral risk is run it will not be countenanced. Australian politics has never sunk so low. Australian self-respect has never been so threatened.

Joe Castley | 08 November 2011  

The fact remains that many people either out of profit motive or a twisted sense of rightfulness provide the incentives for people with enough money to get on dangerous boats. The fact remains that the Government and opposition are aware of the danger and are trying to stop it. In the end it does not matter if the promotion of people smuggling is carried out in a back alley in Indonesia or on this forum. The fact remain that more innocent people will die and that many true refugees will not be able to get a new home in Australia.

These people are often called “do-gooder” and I agree that the term is wrong, as the term of “evil-doers” is far more appropriate. Promoting a deadly path to Australia and benefiting from it has nothing to do with “doing good”, it is 100% evil.

Beat Odermatt | 09 November 2011  

Beat, the reality is not as black and white as you present it. It is far more complex. In fact, those accepted through the refugee process in Australia go through a far more rigorous process of assessment than those resetttled from offshore. Also,the recent Dateline show of Les Murray returning to Hungary to find his 'people smuggler' from 1956 was of interest.

Kerry Murphy | 09 November 2011  

If an Afghan asks a man for help and the man sends him back to the taliban is he a good person? If an Afghan man asks a man for help and the man says yes is he an evil person to save the Afghan from the Taliban?

Marilyn Shepherd | 09 November 2011  

I’m puzzled by the logic of Murphy’s argument. Is our government culpable for deaths in detention but not for boat people deaths at sea? If the government encourages boat arrivals – or fails to discourage them - then is it not responsible for those deaths? Is it not strange to criticise the government for caring about boat people deaths on the ground that this is just another tactic in border control? Is the suggestion that the government should be indifferent to the dangers of people smuggling? And what of the responsibility of those who defend the use of people smugglers: are they not complicit, even if remotely, in these deaths? The moral reasoning of the government’s critics never admits that there might be a moral problem here for them to deal with.

It is true that getting to Australia from, say, Iraq is something of a lucky dip. If one’s chances of making it here can be enhanced by employing people smugglers, then does not that resemble paying airlines a premium to board a flight first? The fact that one has paid doesn’t mean that one is not jumping the queue, only that this is permitted. That there are no rules about this for entry to Australia seems to justify the Malaysian solution: those seeking to come by boat have no greater right to a place here than those declared refugees in Malaysia. Being able to afford a people smuggler does not confer this right and I’m surprised that some people suggest it should and that smugglers who place no value on human life are not guilty of a crime.

Gorgias | 10 November 2011  

Thanks, Kerry. I too am interested in the language that works to enable these awful, punitive policies and laws to receive popular support. One thing that interests me is the language of so-called 'pull' factors. I have just seen a great report on Greece, by one of the Foreign Correspondent reporters on the ABC. Greece (along with Italy) treats asylum seekers in an even more punitive way than Australia (appalling, overcrowded, filthy detention facilities which have come to the attention of human rights agencies; no welfare or support AT ALL for those released into the community; no documents to even allow people to return to their country of origin etc). So, you can hardly say there are any 'pull' factors there. But they have over 100,000 asylum seekers join them every year. There are many reasons for this, including 'porous' borders with Turkey and the effects of the Schengen Agreement on the southern countries in Europe. Around 1 in 10 people in Greece is a forced migrant! We have the luxury of dealing with such small numbers of asylum seekers here, and we still have fear and rage whipped up by politicians and the media. The Greek situation highlights the overriding need for us to get real, start looking seriously at our global and regional responsibilities, and working on viable regional cooperation to deal with these issues - not just packing people off to Malaysia or Nauru or detaining them for heaven knows how long...

Lydia Ralph | 11 November 2011  

I think there is a difference between responsibility for locking people up in detention centres and that of people taking their chance on the seas outside Australian territory. This is an interesting link discussing the issues http://www.aph.gov.au/library/pubs/bn/sp/AsylumFacts.pdf

Kerry Murphy | 11 November 2011  

Kerry Murphy, yes, there is a difference: Australia doesn’t have many unqualified obligations to non-citizens, but it is has perfect obligations not to harm. If Australia can harm others by action or inaction, then it is culpable. Were it to encourage boat people who drowned, then it would be culpable. Were it not to discourage them, it would be culpable. This culpability has been obscured by moralising. It seems a cheap response to deflect this by claiming the Government’s concern is really about border control. It seems equally ridiculous for people who claim there is no queue of refugees to Australia to try to prevent the Government from forming one via the Malaysian solution.

Gorgias | 11 November 2011  

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