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Burying Australia's inhumane refugee laws


'RIP TPV', by Chris Johnston

In recent years protection for human rights in Australia has degenerated. This has been especially marked in the area of immigration. Indeed, the refugee regime in Australia may represent the Western world's worst practice. Key features have included mandatory, indefinite, non-reviewable detention, temporary protection visas, the Pacific/Indian Ocean Solutions, naval repulsion of asylum seekers arriving by boat, and 'excision' of Australian territory to prevent people from applying for asylum in Australia.

Although the changes made after the Palmer enquiry mitigated the human suffering, the changes have been largely bureaucratic. The change in Government has opened the way to a more fundamental review of refugee policy and legislation.

The policy of granting only temporary protection visas to on-shore asylum seekers violated many human rights principles and treaty obligations. The policy re-traumatised thousands of recognised refugees fleeing tyranny from places like Iraq, Afghnaistan, Iran and Burma. Refugees were discriminated against according to their way of arriving. They were denied rights to family reunion and travel documents. They were reassessed arbitrarily after three years, and risked losing their refugee status if their visa expires. They lived in a twilight world.

The Labor Government's abolition of TPVs is a commonsense and humane decision. But a more substantial review of immigration policy and legislation is still required. This must recognise that immigration legislation has departed from the application of normal legal principles that lie at the foundation of our legal system, such as access to legal advice and courts, and anti-discrimination principles.

Reform of refugee policy should place within the mainstream Australian legal system and ensure that it meets international human rights obligations. Although this will require new legislation, many abusive practices can be changed within the framework of existing legislation.

The Pacific Solution caused great human suffering. It involved 'excising' Australian territory to prevent claims for protection under the Australian legal system, warehousing asylum seekers who arrived by boat in Nauru or PNG, denying the right to legal assistance, deciding claims for refugee status outside the rule of law, and refusing durable resettlement to those found to be refugees.

The Government has dismantled the Pacific Solution, however it has retained the excision provisions. New arrivals are condemned to detention on Christmas Island, and continue to be denied access to the protection of the Australian rule of law. This risks replacing the Pacific Solution with an Indian Ocean Solution.

The legislation that underpinned the Pacific Solution needs to be reformed in such a way that asylum seekers enjoy equal protection under the Australian legal system.

The damage done to human beings by mandatory, unreviewable and indefinite detention has been demonstrated. The policy not only violates Australian obligations under various international treaties, it also runs counter to the principles governing detention in Australian law, which provide that it should be for specific 'protective' reasons, that it should be for a finite period, and should be open to legal challenge.

Even recent reforms leave release into the community entirely at the minister's discretion. It is disappointing that in the Budget far more money is being committed to exorbitant and inhumane incarceration of innocent people, instead of more reasonable, inexpensive and humane alternatives.

This detention regime must be changed to enshrine the principle that detention is undesirable and should only be used as a last resort. Any use of detention in the processing system should be limited in time, subject to judicial review, and be only to check identity, health and security issues. Those presently in detention should be released with appropriate rights to welfare and to work.

The cornerstone of the existing system is ministerial discretion. The minister is invested with more than 20 sets of powers that enable him to decide matters as significant as people's opportunity to be reunited with their families and to be protected from persecution. The minister cannot be compelled to hear cases, give reasons for his decisions, nor is his judgment reviewable. All the evidence suggests the exercise of these powers has been arbitrary, whimsical and unwieldy, and the advice given to ministers often flawed.

The question here is not which minister or government has been tougher on decisions, but whether correct and just decisions have been — or are capable of being — consistently made. The minister must avoid the folly of making flawed decisions under a failed system.

This framework must be changed to give responsibility to administrative decision-makers and to courts under clear legal and policy guidelines. The whole field should be brought under the mainstream legal system that governs administrative decision-making.

The core of these suggestions is to bring immigration law into the mainstream legal system. It should operate under a set of principles and doctrines that reflect our international obligation to respect human rights. But because history suggests political considerations often lead to an unjust and cynical policy, principled immigration reform would be greatly strengthened by the introduction of a Federal Charter of human rights.

To read an extended version of this paper, click here

David ManneDavid Manne is coordinator and principal solicitor at the Refugee and Immigration Legal Centre in Melbourne.


Topic tags: david manne, refugee policy, temporary protection visa, pacific solution, budget 2008-09



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Existing comments

I can only applaud the sentiments expressed in this article. Denial of human rights and equal treatment under the law is an essential foundation of this democracy. When politicians and bureaucrats undermine this principle they visit the consequences on all of us by stealth. The previous government shamed all Australians with their treatment of refugees. The Rudd government has an obligation to assure the citizens of this country that they recognise the slippery slope Howard's laws have led to and that the 'fairer treatment' promises apply to everyone who enters this land as long as they abide by the just laws enshrined in our statutes. The unjust laws should as a first step be repealed as part of the current Ministers recent stated intention to replace our immigration laws following a full root and branch review.

Brian Larsson | 19 May 2008  

Arnold Zable's article in today's Age points out the illegitimacy of the present ministerial discretion. To David Manne I say yes, yes and yes.

Neil Tolliday | 19 May 2008  

It is also important to recognise the gross injustice suffered by genuine refugees after release when they are presented with huge bills for the cost of their accommodation in detention centres.

Two such bills come immediately to mind: one for $227,000+ and the other for $235,000+. Both are faced by men who are now highly respected members of the Australian community and use their skills by being engaged in very worthwhile employment.

While the government is legally entitled to make such charges, this right is based on the 1958 Immigration Act, a time when asylum seekers were detained for only very short periods of time. Obviously at just the time when these refugees are trying to establish a new life in a new country such huge debts impose unwarranted stress.

David | 19 May 2008  

An important book will be published in September by Scribe. It is the result of the peoples inquiry into detention which did interviews with over 200 refugees, lawyers, advocates and others and will expose the lies of the detention regime as never before.

I know this because I provided the ACM incident reports, photos and manual.

Marilyn | 20 May 2008  

Hi there,
this is a very inspiring article to read. i am currently in greade 12 and am doing a research assignment on this issue. could you assit by directing which legislation/s have been breached or futhermore which sections. this assignment must be a legal based assignment and thuse include legislation or conventions signed by Australia.

anthony moor | 21 July 2010  

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