The 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 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.