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Refugee Legislation proves Government's reform desire a sham


The optimism that many Australians felt following significant reforms to asylum and refugee policy in 2005 has been cruelly dashed by the government’s wretched response to Indonesia’s displeasure at the granting of protection visas to 42 West Papuans in March.

At its core, the Government’s proposal seeks to introduce new laws which would mean that all people who arrive informally (so-called ‘unauthorised’) by boat in Australia will be automatically transferred to ‘offshore’ processing centres to have their claims for refugee status assessed. Offshore processing, most likely in Nauru, would apply to all boat arrivals regardless of where they land in Australia. In practice, all of Australian territory would become excised, and all claims by such people for refugee status would have to be made outside of the Australian legal system.

During 2005, the shocking and tragic circumstances of the Cornelia Rau and Vivian Solon cases awakened in Australians a recognition of the scandalous abuse and cruel indifference which the Immigration system was perpetuating on innocent and vulnerable people, including asylum seekers.

A number of significant developments flowed from this. The Government rejected calls for a Royal Commission and instead, established the Palmer Inquiry, which ultimately made findings constituting one of the most devastating indictments of a major government department in Australia’s history. The Palmer Report shaped much of the promised process of ‘wide-ranging, systemic reform’ of the Immigration Department, which commenced in the first half of 2005. Fair and reasonable treatment of those confronting the Immigration system has been part of the new mantra and intended practice.

Another development was the drafting by Liberal MP, Petro Georgiou, of Private Members Bills which sought a serious curtailment of the mandatory, indefinite detention system, and the abolition of temporary protection visas. The compromise deal subsequently struck with the Prime Minister represented a significant, albeit seriously inadequate, set of reforms which had the real potential to limit or end the suffering of many still subjected to the system, if implemented quickly and in good faith. They included provisions for release of children and their families, as well as others from detention centres, quicker processing of refugee applications, and oversight of cases involving over two years of detention by the Commonwealth Ombudsman, and oversight of the reform process by an Inter-Departmental Committee chaired by the head of the Department of Prime Minster and Cabinet.

Although none of the reforms announced included reform of the so-called Pacific Solution and the situation on Nauru, the Government finally relinquished and tried to clean the slate by reassessing, approving and resettling to Australia all but two of the remaining Afghan and Iraqi asylum seekers on Nauru. The atmosphere was now different, and this shift from the previous position of deadlock and hostility to such a resolution appeared to be part, at least, of the spirit (if not the letter) of the new reform period. It seemed to represent a mixture of pragmatism, and even, perhaps humanity.

However, the shape and trajectory of the reforms was always very fragile; very tenuous at its core. Why? Because they had always depended on the external environment; on the external environment remaining substantially unchanged and benign. In other words, it was a situation in which if there was one significant change in the external environment, the fragile reform process would be thrown into a state of crisis and collapse.

This is because there was never a true change of heart by the Government in 2005. By the end of 2005, the fact remains that most of the key aspects of one of the toughest and most comprehensive anti-asylum seeker systems in the Western world remained in place. Key features continued to be: mandatory, indefinite, non-reviewable detention; Temporary Protection Visas; the Pacific Solution; naval repulsion of asylum seekers arriving by boat; and ‘excision’ of Australian territory to preclude people seeking asylum in Australia at all.

While the reforms ended or limited the agony and uncertainty for many subjected to the system, the new detention regime left the ultimate power of release into the community entirely to the discretion of the Minister, with still no other legislative limits placed on the government’s ability to indefinitely detain innocent people. The whole reform framework was essentially dependent not on the rule of law, but on the grace and discretion of the Minister and her Government.

It is clear that under the Government offshore processing proposal, the protection of borders prevails over the protection of people. Were all other countries to adopt such policies and practices, the international framework designed to protect refugees would be so seriously undermined as to be rendered ineffective and meaningless. It would, in fact, collapse. And from an ethical standpoint, such practices seem to cast our country’s commitment to justice, to fairness and to decency out onto the high seas.

The proposal has not yet become law, and its passage into law is not a foregone conclusion. In recent times, there have been some courageous stands - acts of conscience and conviction - and some substantial successes in seeking reform of refuge policy in this country.

David Manne is coordinator and principal solicitor at the Refugee and Immigration Legal Centre in Melbourne. This article was taken from a speech he delivered last week for the Castan Centre for Human Rights Law - Boatloads of Extinguishment? Forum on the proposed offshore processing of ‘Boat People’. Click here to download the full text (Word).



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Existing comments

Frank Brennan says that the Pacific solution Mark 2 will be trafficking but in reality Australia has been trafficking human beings for many years.

David Corlett and the Edmund rice centre showed that comprehensively and I have documents to show precisely how they do it.

Sadly the media is asleep as usual when a real issue is raised.

I have spent all the years since the TAMPA trying to help those incarcerated in places like Woomera and the refugees once they are released.

I cannot pretend to be remotely surprised that the government has reneged on everything - there are an Iraqi family locked up in Baxter housing after all - but feel gutted none the less, especially as the appalling Al Kateb is still legal.

Marilyn Shepherd | 16 May 2006  

thankyou for clarifying the current state of this matter and hope this shameful behaviour is well publicised

bernard duckett | 21 May 2006  

A thought provoking article. The Howard Government's asylum seeker policies are autocratic and anti-democratic, to be sure.

peter anderson | 23 May 2006  

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