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Immigration reform review

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On Wednesday, the Senate made two decisions which take immigration reform forward. The first was to pass the Abolition of Detention Debt Bill, the second was not to disallow the abolition of the 45 day rule regulations.

The Detention Debt Abolition Bill ends the charging of detainees for their time in detention but retains the charging of people who are removed from Australia. The provision was introduced in 1992 by a former Labor Government.

This rule meant that if someone arrived in Australia with a visa and was immigration cleared, then if they later applied for protection, this had to be done within 45 days of arrival or they would not have any permission to work on their bridging visa whilst there case was decided.

The rule was arbitrary and quite unfair and was introduced by the previous Government in July 1997. At the time, the Government claimed that it would reduce abuse of the process for asylum claims, but in practice it meant rushing cases to lodgment to meet the deadline rather than the benefit of more time to check the claims. A simple mistake by an advisor could have adverse consequences later for the asylum seeker when a claim was ambiguous or not clearly made.

Similar arguments were used by the Coalition against both of these reforms, but the Government's reforms were approved with the support of the Greens and Independents, and one Liberal Senator. Reading the Hansard gives some insight into the current debate.

Curiously, the Coalition argued that both measures would result in more unlawful arrivals and encourage 'people smugglers'. In her speech against the Bill, Senator Fierravanti-Wells stated:

'Since about August last year, there has been a shift in our immigration policy. We have gone from a strong border protection regime, which included a strong and fair immigration system under the coalition, to a softening of a whole raft of measures. And what has been the result of this? An increase in people-smuggling activities, a surge of boat arrivals and an increased number of overstayers.'

With respect to the Senator, I am not convinced there is a simple causative relationship. There are more complex issues at play here such as the increase in movement of people around the world and the fact that Australia still only receives a tiny proportion of asylum seekers.

Senator Fierravanti-Wells tells us that 95 per cent of the debts are waived or written-off as most relate to successful refugee cases (which she stated the Coalition supported) and only 2.5 per cent are recovered. As Senator Evans, Immigration Minister explained, the cost of recovery of 2.5 per cent of the debts was greater than the amount actually recovered.

Another argument used by the Coalition was:

'The current Labor government appears to have lost sight of the simple underlying fact that, without effective border control and a properly managed migration and humanitarian program, we cannot offer safe haven to those most in need.'

The fact is the program does not and never has targeted 'those most in need'. People with criminal offences or serious health problems can be excluded. This means that a family where one child has Downs Syndrome, may be refused on health grounds, and the rule is 'one fail all fail'. So a family has the choice of leaving the Down Syndrome child behind, or all the family being refused because of the child's condition.

The offshore policy has the luxury of picking and choosing those the Department believe are most suitable. This may be due to a variety of factors such as numbers of family here already, ability to settle quickly, even age may play a factor. Thousands are refused for the lucky few who are accepted.

Only a small number of people are resettled from refugee camps, and the reality now is that many refugees are not living in camps, but in urban centres. There may be many Sudanese refugees in camps in Kenya, but probably as many Iraqi refugees not in camps but in towns in Jordan or Syria. It is mistaken to believe that the only deserving refugees are those in camps.

The Coalition senators argued that abolition of the detention debt, as well as other Migration reforms, are 'pull factors' attracting asylum seekers to Australia. There is little qualitative research on this but a study by JRS and Uniya completed in 1996 concluded that most asylum seekers came because of 'push factors' in their homeland. This point was made by Senator Xenophon:

'The number of people seeking asylum is a clear function of and directly related to what is happening in their homeland-to chaos, to political instability, to extreme poverty, to hunger and, in particular, to political persecution. I think we need to consider that those are the primary factors. If we want to stem the flow of people coming to our shores, we ought to consider the causes of that.'

In reply, Senator Evans pointed out that the Bill did not affect refugees, as their debt was waived, but did affect a small number of people allowed to stay on Ministerial intervention grounds, and he states:

'This is not good policy. It has terrible, unfair consequences. Everyone who has looked at it, every parliamentarian who has been involved in a committee who has looked at it, has said that it ought to go.'

The argument of the Coalition against the Bill was flawed not just logically, but also financially. These points were ably made by Senator Troeth who crossed the floor and voted with the government.

'The comment has been made that the more we 'soften'-and that is other people's word, not mine-policies towards refugees the more we can expect a flood of refugees. And words like 'flood', 'panic' and 'hundreds of thousands of people arriving on our shores' are used all too often.

'There is no doubt that the United Nations High Commissioner for Refugees, in his most recent report, shows that the number of individual claims for asylum worldwide rose for the second year in a row by 28 per cent to 839,000 people. Developed countries like Australia do attract asylum seekers, but the fact is that 80 per cent of the world's refugees are hosted by developing countries-Pakistan, Syria, Iran and Jordan ...

'Australia received-and this is taken together, both boat people and plane arrivals-4,500 asylum claims. That is 0.05 per cent of the worldwide total, and almost all of them did not arrive by boat. So I challenge the theories of those who want to say that this is opening the floodgates. Firstly, that is an unpalatable concept to those of us who think about it and, secondly, it simply is not true.'

Her conclusion regarding the Debt charges was:

'Let us just do away with it. The law does not help. Even if it is never collected, the fact is that it is still a blot on our statute book and I for one will not accept that it should be in continuation. No advanced society should have on its books laws like this, and so I will be supporting the government on this bill.'

The other debate was about the abolition of the 45 day rule. The Coalition returned to their arguments about softer policies leading to more arrivals, despite the fact that the abolition of the 45 day rule was not relevant to people arriving without a visa. A number of unsubstantiated claims were made such as:

'The 45-day rule has been effective in limiting abuse of the system. Vexatious claims occur mostly when international students and visitors exploit the chance to extend their time to earn wages in Australia.'

This claim is firstly just not verifiable, and secondly it is not true in my experience over the last 12 years. Speeding up the processing of cases to 90 days where possible has been more effective in reducing abusive claims than the 45 day rule and it had a positive effect of granting visas quicker.

Once again it was Senator Troeth's speech which succinctly rebutted the claims of her Coalition colleagues and raised questions for the future of Liberal Policy in the area:

'Our vote on this regulation today will not change the country. It will not pave new highways, fix our hospitals or build more schools. But it will show that we are a nation of compassion by righting a wrong that is causing needless suffering to people in our country.

'The American Vice President Hubert Humphrey once observed that compassion is not a weakness and concern for the unfortunate is not socialism. It is not a mark of pride for this parliament that successive governments have devalued these principles in the administration of this policy. The shameful burden placed on churches, community groups and benevolent individuals by this policy is incompatible with the indelible concept and revered national tradition of the fair go ...

'The Liberal Party has a proud story to tell on immigration, but both parties over the last 50 years have written some bleak chapters too. We find our genesis in Harold Holt's dismantling of the White Australia policy and in Malcolm Fraser's welcoming of Vietnamese refugees that not only made

'Australia's migrant intake truly multiracial but turned the abolition of the White Australia policy into a practical reality ...

'Australia does not have to choose between strong, secure borders and compassion for those seeking liberty and freedom. We can have both.'

Sadly, Liberal Senator Troeth will retire at the end of her term. It is hoped that her replacement will be as articulate and humane in the Senate.

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: Kerry Murphy, Senator Judith Troeth, immigration reform, Abolition of Detention Debt Bill, 45 day rule



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Existing comments

And the reality is ignored by everyone. Every one has the right to seek asylum and there is no policy on earth that takes away that right so why on earth do we have these inane and cruel policy debates.

They fill up Hansard, destroy lives but they don't mean a damn thing.

Marilyn Shepherd | 10 September 2009  

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