Immigration law under Labor

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ALP Immigration PolicyForty years can make a difference. In 1966, the ALP immigration policy contained four major points. It would strengthen and protect Australia’s national and economic security. It would safeguard the welfare and promote the integration of all citizens. It would preserve our democratic system and the balanced development of the nation. And finally it would not disturb the predominance of England, Scotland, Ireland and Wales as sources of Australian immigrants.

The first three points would still be represented in both the government and opposition policies. But only minority parties of the right would still openly promote the last policy. Mainstream parties have come a long way in the past 40 years. But many policy areas still need attention.

In its 2007 policy Labor focuses on four aspects of immigration. These are temporary working visa issues (457 visas), refugees and protection visas, reform of the department and English language teaching.

The ALP has criticised perceived abuses by employers in their use of the 457 visa. A recent inquiry noted that the amount of abuse was low, but the examples of abuse highlighted by the media have been extreme. The ALP accepts a temporary work visa is required. But it argues that it should neither be at the expense of jobs for Australians nor provide a lower salary than that available to local workers.

The 457 visa provides a useful way for employers to find skilled staff they could not otherwise find. The gazetted list enumerates more than 500 occupations, ranging from hairdressers to petroleum engineers, for which this visa can be available. Although it is important to correct abuses, the large numbers of occupations covered by the visa makes it difficult to formulate policy in specific terms. This is especially so in a growing economy. The ALP policy emphasises training, but commercial pressures forbid waiting until someone is trained for work needed today.

The ALP policy has much to say about refugee and temporary protection visas (TPV). Although the ALP supported the introduction of the TPV in 1999, it has finally accepted that it must go. Psychologists such as Zachary Steele recently published studies showing that TPV holders experience much trauma due to uncertainty about the future and their inability to bring family members to Australia. Critics have argued this case since the introduction of the visa, but the ALP did not accept it until 2007. The Coalition still supports this traumatic visa.

The ALP policy is also to close the centres in Nauru and on Manus Island and not to take part in the 'refugee swap' with the US. It is to be hoped that the party also removes other procedures associated with the 'Pacific Solution' such as the interdiction and forced return of refugees to Indonesia by the military.

A pressing question that needs to be resolved is to determine the law that case officers apply when assessing cases like those of the Sri Lankans on Nauru. At present Australian bureaucrats have the power to make refugee assessments outside existing law, but their assessment does not commit Australia to accept the cases for resettlement. The ALP has not revealed the detail of the legislative changes it proposes. But it will not be sufficient simply to close the Nauru centre.

Reform of the Department is needed. Although the government has promoted some reform since the Cornelia Rau and Solon disasters, some parts of the Department are still hostile to administrative review and administrative transparency. The overuse of the power to cancel visas on the basis of character, recently seen in the case of Dr Haneef, is one example. Other people have also been subjected to this extreme power for slight transgressions.

The system has encouraged zealotry for some years. Its consequences can be seen in what happened in the Rau and Solon cases.

Another issue that needs to be addressed is the suffering of people in long term detention and of those who must wait for months or even years before the Minister decides whether or not to intervene in their cases. An objective assessment of their cases would sometimes have resolved them years before.

The ALP policy gives priority to teaching English over testing. The new Citizenship Act places emphasis on language and the 'Citizenship test'. The ALP policy aims to improve English language teaching and help people find work. At present some immigrants learn English easily, but others live for decades in Australia speaking little more English than when they first arrived. Affordable English classes will help them to not only 'settle in and manage' but also find work.

The ALP policy has some gaps. Australia needs, for example, to establish an onshore humanitarian system of complementary protection. This would avoid the lucky dip of relying on ministerial discretion. It would also provide a way to resolve hard cases more quickly.

Above all Australia needs to reform review processes and make decisions more transparent. For many years the government has attempted to remove any form of judicial review from immigration decisions. Judicial review ensures accountability and proper decision making. Its removal encourages zealots at the expense of fair administration and justice.

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.




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Existing comments

Thanks for such a rational view on this. Australia is such a wonderful country in so many ways, but both Labor and Liberal governments have done our egalitarian ideals a disservice with mandatory detention. There is nothing fair about locking people up when they haven't committed any crime except for trying to come to Australia, often fleeing severe torture or trauma.
We have to get rid of the barbed wire and the electrified fences, both on the mainland and on Nauru and Christmas Island.
We also have to let people waiting for their sometimes lengthy assessments work or study, so they feel more like part of the community and not ostracised. The New Zealand model of halfway houses seems like an equitable system.
Anyone who really believes in the so-called Aussie value of a fair go could not hear one of the refugee stories without feeling ashamed we still lock them up and treat them like criminals - indefinitely.
As you know, the High Court has ruled in the al-Kateb case indefinitely can mean life.
Hopefully it doesn't come to that, as apart from anything else it's too expensive to keep someone locked up for so long!
Please, someone do a money trail investigation of how much mandatory detention has been costing us?! Forget human rights for the time being, the cold, hard dollars spent would perhaps spark more interest among people who don't normally follow much media.
Chris Rau | 02 November 2007


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