Time for detention reform


Razor wireThe recent tragic death of a man in Villawood Detention Centre has again raised questions about the need for Australia's harmful detention policy. It is not appropriate to discuss the particular case as it will likely be subject to a coronial inquest. However these events again remind us that immigration detention is still in need of urgent reform. Deprivation of liberty should be the last resort, not the first.

There are many reports about the harmful effects of detention on mental health. Governments have known this for many years yet still we have laws requiring detention in a number of circumstances. New centres are built and old ones expanded. Some people will only be mildly affected by detention, but for others, even a short period in detention could be very harmful, irrespective of age or gender.

Prolonged detention has been shown to be the most harmful. Asylum seekers are already traumatised and detention can make this trauma worse.

Those who have experienced it report that the worst part is the uncertainty that comes from significant delays in processing, or from the perception that the processing is not being done fairly, due to an unfair case officer, poor interpreter or an inadequate or unresponsive lawyer. Freezing processing, as occurred in April for Afghans and Sri Lankans, adds to the uncertainty and unfairness while also prolonging detention.

There are three different systems used by Australian Immigration officers for assessing refugee cases. The fairest process provides for a strict legal assessment, an interview, and independent review by the Refugee Review Tribunal (RRT). There are avenues of appeal to the courts on errors of law. This is the process for protection visa applicants, most of whom are living in the community and are not in detention.

The second process is a less transparent system with no real independent review. People arriving by boat or plane without a visa must be detained. If sent to Christmas Island, they are classified as 'offshore entry persons' which means that they can only make an application for refugee status if the Minister allows them. They will be interviewed but must stay in detention throughout the process.

This system has less accountability than the onshore processing system and is designed to keep claimants away from the courts.

The third system applies to those who are offshore, maybe in camps in Africa or the suburbs of Damascus or Amman. This system does not even require an interview and most of these cases are refused on the papers.

Most asylum seekers in detention are in the second system. Very few detainees get the benefit of the more scrutinised 'onshore' system. This creates anxiety for people who wonder why they are being treated differently. This fear is inevitable, regardless of the quality of the decision-makers, because the assessment system is flawed.

Given the legal, administrative and health concerns about the detention system, what can be done? The Uniting Church National Assembly recently stated:

Instead of expanding the failed paradigm of detention facilities and offshore processing, just a small proportion of that money could fund alternative programs which allow asylum seekers — after health, security and identity checks have been done — to reside peacefully in the community while their claims for refugee protection are assessed.

This is the current practice for those who arrive by air and then claim asylum.

This is certainly a start and it is not the first time such a reform has been suggested. Whilst nothing will help the man who died, hopefully this tragedy will lead to some genuine reforms of detention. In July 2008, the former Immigration Minister Senator Chris Evans announced a series of reforms to immigration detention.

The challenge for Labor, having tackled the worst excesses of the Howard immigration legacy, is to introduce a new set of values to immigration detention — values that seek to emphasise a risk-based approach to detention and prompt resolution of cases rather than punishment ...

Labor rejects the notion that dehumanising and punishing unauthorised arrivals with long-term detention is an effective or civilised response. Desperate people are not deterred by the threat of harsh detention — they are often fleeing much worse circumstances. The Howard Government's punitive policies did much damage to those individuals detained and brought great shame on Australia.

Senator Evans announced seven immigration values. Two key ones are:

Detention that is indefinite or otherwise arbitrary is not acceptable and the length and conditions of detention, including the appropriateness of both the accommodation and the services provided, would be subject to regular review. Detention in immigration detention centres is only to be used as a last resort and for the shortest practicable time.

Leadership is required to reform the process, apply these values and abandon the 'race to the bottom' we saw during the election. 

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, and teaches immigration law at ANU.

Topic tags: Kerry Murphy, Villawood Detention Centre, Chris Evans, immigration, boat people, asylum seekers



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Existing comments

It's not simply policy that kills would-be asylum seekers as I pointed out in my Letter to the Editor, (see below) published by The Age, the Sydney Morning Herald and The Australian...but is anyone listening?

"Villawood crisis caused by misguided policies"

Given the billions of dollars that the federal government has showered on builders to ''stimulate'' the economy, how difficult would it be to commission just one of them to make the roof of Sydney's Villawood detention centre (and others) safe by making it inaccessible to its inmates?
The risks being taken by these desperate people, telecast nationally each night and beamed overseas, does nothing to enhance Australia's image abroad in terms of its attitude to asylum seekers.

That the newly appointed Immigration Minister should fly off for an inspection tour of Christmas Island before Villawood - with a public suicide, an almost daily spectacle of human self-harming and threatened suicides - must rank as one of life's great mysteries. Perhaps one of the federal independents could draw attention to it.

Brian Haill Frankston (Vic)

Brian Haill - Melbourne | 24 September 2010  

We should initiate a pressure group called PASM - process asylum seekers in Melbourne. Labor policy used to be to have claims processed in 30 days unless there were exceptional circumstances and then things would be handled in a transparent way. What was wrong with that?

Jim Jones | 24 September 2010  

Surely detention isn't as bad as what these people have left behind. Placing refugees immediately within the community would be more costly than keeping them in detention centres; we don't have enough accommodation for our own people - look at the street people. I think we should be seriously looking at putting our own house in order before we begin determining the futures of refugees.

Shirley McHugh | 24 September 2010  

i am not sure about anyone else, but I am heartily sick and tired of innumerable talking heads and bleeding hearts carrying on about how dreadful is Australia's "detention system" for "asylum seekers" without their offering any real, practical, workable alternative. What would they actually DO when confronted by the next sinking boat-load of would-be migrants. The Uniting Church's proposed solution would certainly solve the problem of "boat" people. They would be replaced by "flotilla" people! The clear message would then be, 'get yourself out into the Timor Sea, on whatever vessel you can find, and you will be absolutely assured of a comfortable life in Australia while you wait for the bureaucrats to clear up the paperwork'.

If the law says that one needs a visa to enter Australia, and you enter without one - then you have broken the law. Most law-breakers face detention; why should these be treated any differently? As with any lawbreaker they know that this is one of the risks they take.

Certainly complain about the quality of the detention, if you must, but if you don't like the fact of detention - then, as I asked, please provide a viable alternative.

John R. Sabine | 24 September 2010  

Shirley, have you been to Villawood? Have you had to go through the entry process with suspicious guards taking your ballpoint pen apart to see what you might have hidden inside? With them confiscating freshly bought, unopened and sealed jars of spices that you wanted to give refugees inside because the food is so bland? With them refusing to let you take in some root crops because "you never know what these people will do with them"?

It's no picnic in there, Shirley. For the first time, I understood why it's called razor wire - it was almost frightening just looking at it, not just on the walls but in rings around the place. You would think those inside had committed the most heinous crimes imaginable.

For the first time, I felt I was an undesirable person, an intruder, a suspect, simply because I wanted to give some comfort to people who were desperate. One of those had been incarcerated in Villawood for over 5 years.

These are human beings who have sought our help. And our response is treat them like animals. Disgusting.

Erik H | 24 September 2010  

John Sabine, surely the "real, practical, workable alternative" is what is already done with people who arrive by air — the first process described in the article.

Gavan Breen | 24 September 2010  

We need detention centres, if people want to avoid being in them don't break the law, don't overstay your visa, don't circumvent the immigration process, otherwise be prepared to be put into detention.

Having said that this person's suicide shouldn't be used as an excuse to push peoples left wing agendas- We shouldn't even be having this debate. The man killed himself because he was denied citizenship not because of detention conditions, so don't start a debate out of nothing.
The immigration process isn't designed to be a 100% strike rate if it was we may as well not have and have a free for all and don't even worry about detaining people while we check for tropical diseases.

How can you have a debate about needing to reform our detention centre because a man killed himself when the man in question offered to be kept in detention rather than be deported, he just didn't want to accept the decision.

Peter | 24 September 2010  

I couldn't agree with you more.

Sadly I think that a majority of Australians still fear asylum seekers arriving by boat. While a number of organisations have addressed the misinformation, there is a way to go. Until our political leaders take steps to address the bias, majority opinion remains unchanged; and unfortunately, it's the pervading public opinion in marginal seats that appears to rule policy.

MBG | 24 September 2010  

Whether people overstay their visas or don't have one there is no law broken and has not been since the ALP changed the law way back in 1992 when they gave the refugee convention force in the Migration Act.

Like Brian I had a letter in the SMH savaging the media and pollies.

I note the MSM have beee silent.

It's a disgusting digrace.

Marilyn Shepherd | 27 September 2010  

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