Getting the balance right on border protection

One of the key issues in the debate about asylum seekers is the balance between sovereignty and human rights. This question is not about whether asylum seekers should be allowed to make claims, but about what restrictions should be made on those who arrive without a visa, and whether boats should be interdicted and applications processed outside Australian jurisdiction. The issues are clear for advocates, but for politicians it is harder to find the balance.

Kevin Rudd talks of being 'tough on border protection' and 'humane for asylum seekers'. The Opposition calls any boat arriving a 'failure in policy' without stating what they would do differently. The Howard Government policy was temporary protection visas (TPV), excision, interdiction and processing in Nauru and PNG for those arriving by boat. Despite hints at returning to some of this, the Opposition is struggling to present a serious policy alternative.

The TPVs were shown to have serious harsh effects such as forced separation from spouse and children for years at a time, without the option of even visiting them in a third country and subsequently returning to Australia. This went against not only the UNHCR's policy of family reunion, but also the ICCPR and Convention on the Rights of the Child. Processing in Nauru was done outside the Migration Act, and the processing times were very long.

Some reforms were made of the old system by the Howard Government. These started in 2004 and 2005 after other serious flaws in the Migration portfolio were highlighted by the detention of Cornelia Rau and the forced removal of Australian citizens like Vivian Alvarez. Later the Ombudsman reported on over 200 cases of unlawful detention, some of Australian citizens. The 'tough' policy had clearly gone too far.

Processing of protection cases was sped up to 90 days, unless applicants were waiting for security checks. This did not apply to those 'excised cases', but did speed up a process that had for too long been bogged down.

The abolition of the TPV was necessary as it caused serious trauma for those caught up in it. Some waited seven or more years to get their permanent residence. The cruel policy of the separation of families under TPVs probably caused significantly more women and children to arrive in boats in 2001.To put your family at risk in a boat was the only way to achieve a family reunion.

Excising of territory remains. It is one area where advocates for asylum seekers remain critical of current policy. Excision creates a fiction. If a boat arrives and is taken to Christmas Island, all detainees become 'offshore entry persons' by landing on 'excised territory' after the 'excision time'. They are then processed in a system not regulated by the Act, but by Ministerial discretion.

The use of language also influences the debate. Rudd referred to 'illegal immigrants', but this term is unknown to Migration Law. A person in Australia without Australian citizenship is described in the Migration Act as either an 'unlawful non citizen' (no visa) or a 'lawful non-citizen' (with a visa). 'Illegal' has a number of adverse connotations that do not move the debate forward, but to the fringes.

The UN Convention on Refugees provides that a country should not punish a person for arriving without a visa. This is because most refugee movements are uncontrolled and done without a visa.

The Opposition has been more careful in this respect, but has promoted the idea of a refugee 'queue'. This myth has been around for many years, and was created to try to give order to a process that is by nature disorderly. Refugee resettlement is not like waiting for the bus. Refugees are fleeing persecution, not bad coffee. The factors that force people to leave can arise quickly but can also remain threatening for years.

The Opposition claims the Government has become 'soft' on border protection. The fact is that when the enforcement of a law shows the law to be too harsh, reform is needed. Even the former government realised this when in 2004 it made changes to the TPV in order to give these refugees the chance to apply for other visas instead of simply waiting for permanent protection.

Both the Government and Opposition have tried to out-vilify the other on 'people smugglers'. But it is only in the last decade that the actions of those who organise the trips have been criminalised. We did not hear of prosecutions of organisers of the Vietnamese boat people in the 1970s and 1980s.

The focus on 'people smugglers' diverts attention to a particular group, but risks tarnishing the reputations of refugees by association. The activity may be criminal but if your life and your family are saved by getting help from a 'smuggler' you see it differently.

The psychological effect of fear and of the process are difficult to understand without experiencing them. For some, the experience or fear of persecution will remain with them forever. Providing temporary and uncertain futures only adds to the strain, and reduces the ability of people to contribute to and be part of their new country.

In the political balance between 'border control' and 'human rights' sometimes we forget we are dealing with people. Treating people with dignity ought be an overriding concern in this debate.

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 is one of Australia's top immigration lawyers recognised by last year's Australian Financial Review Best Lawyers survey.

Topic tags: border protection, temporary protection visas, pacific solution, asylum seekers, refugees, boat people



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Existing comments

Speaking of flight from bad coffee, the comparison with Canada reflects interestingly on Australia.

A boatload of Tamils landed in British Columbia around the same time as Indonesia intercepted the Australia-bound boat last month. Although the federal minister responsible, Jason Kenney, tried to whip up sentiment against boat people, Canadians' reactions have been much more patient and tolerant. Why?

I suspect a very important factor in the Australian history is the timing of that last big wave of boat arrivals, so shortly after 9/11 and before the 2001 election.

That conflation with terrorism was too good to resist for opportunists like Howard and Reith. The belligerence and emotional intensity of that time meant that the demonisation was both effective and lasting. We can expect 'boat people' to remain objects of fear and hatred in Australia for a long time to come — especially compared with those plane-borne immigrants, who outnumber them 180 to 1 since 1975!

Granted, according to Pew surveys, Canadians have the world's most positive attitudes toward migrants and migration — but Pew rates Australia as the world's 2nd-most progressive country on the same measures.

There really is something peculiar about us and boat people.
Tom Clark | 02 November 2009

At last a balanced, informative article on asylum seekers. Getting widespread coverage in the media of views such as these ought to be a priority, along with educational programs focusing on facts and not myths. Any ideas on how a community education program could be implemented?
Maureen O'Brien | 06 November 2009

Under the people smuggling protocol we ratified in 2004 it is forbidden to punish people for being "smuggled" and forbidden to punish those who assist them to escape.

In the case of Afghans - the person getting them out of Afghanistan is not condsidered evil is he?

How about the false document maker? What is his crime?

We only turn refugee claimants into smuggled migrants when they come here.

And that is surely deranged because every refugee on the planet needs transport and not one other country considers the providers to be criminals.

Now if only we would tackle the real people smugglng to stop the massive trade in slave labour, sexual slavery and other crimes running amok instead of whining about a few refugees on boats.
Marilyn Shepherd | 10 November 2009


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