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End in sight for 'cruel' asylum seeker policy

  • 30 July 2008

'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