05 January 2011

Catching up

It's been a few months since my last post. I will make it my New Year's resolution to be more attentive to keeping up the blog during 2011.

As far as the media was concerned, the only immigration related issue worth mentioning in the second half of 2010 was "the boats". I will follow their lead in this first post for the new year.

Certainly the horrible events of the morning of 15 December at Christmas Island confirm the urgency of the need for a solution to this problem. The actual number of people who have died in Australian waters or en route to this country is unknown. The Christmas Island disaster showed that even the last few metres of this journey can be deadly. With the deaths of so many adults and children in mind, no one can seriously claim that the only issue is how we treat asylum seekers once they make it onto the beach.

For the politicians a good way to avoid having to come up with an answer is to divert attention onto the "people smugglers". No epithet is too lurid, no hyperbole too extreme, no mandatory sentence too draconian.

When pressed for a real solution, the Liberals fall back on deterrence. The Howard government stopped the boats, they say, by two measures: temporary protection visas (TPVs) and the "Pacific Solution". Sending all boat arrivals for processing in Nauru of course could never be as effective a second time around, both due to the fact that most asylum seekers sent there eventually made it to Australia or New Zealand and the impact of the High Court decision in December about processing ruses (see below). As for TPVs, besides the misery and injustice of not allowing recognised refugees to bring their families here or even visit them overseas in flagrant breach of Australia's obligations under international law, there is a strong case that the policy was a direct cause of the deaths of many of those family members who had no alternative but to risk their lives on the high seas: see http://sievx.com/articles/challenging/2006/20060206SueHoffman.html.

Deterrence will always work if the punishment is sufficiently graphic. Deliberately sinking any asylum seeker boat that entered Australian water and leaving its passengers to drown would pretty quickly end the flow, for example. The nefarious people smugglers on board could be summarily hanged drawn and quartered on the decks of the naval interceptors for good measure.

The deterrence approach is based on the assumption that the only problem is the boats. If you can stop them coming, the problem is solved. The asylum seekers themselves, if we can keep them away from our shores, then become someone else's problem.

Labor explicitly rejected both TPVs and Nauru in its campaign for the 2007 election, and is now stuck with those laudable policies like it or not. Gillard's brainstorm idea of a regional processing centre in East Timor has still not made it off the drawing board however.

In the end, the key to the succes of any regional processing centre, wherever located, will lie in the meaning of the word "processing". If the outcome of a genuine assessment based on international law is that an asylum seeker is a genuine refugee, what happens next? If the end result of the processing is not immediate resettlement in Australia for anyone recognised as a genuine refugee, the boats will remain the only option.

And any assessment would have to be genuine, or at least in accordance with the principles of natural justice, as the High Court has ruled in the case known as M61. The practice of denying boat arrivals the right to make a formal application for a visa, followed by a "non-compellable" Ministerial decision to grant a visa after an informal assessment and appeal, was held by the Court not to be a loophole that allowed for denial of natural justice in the assessment process. The fact that the Australian government was in charge of the procedure from start to finish, as it would be in any offshore processing arrangement, meant that the principles of Australian law were applicable.

Meanwhile, the asylum seekers who do make it here have to be "housed" (ie, locked up). Building new detention facilities almost seems to be propping up the construction sector single-handedly. Cries of "not in my backyard" are being heard all through the land. It is tempting to label these objections as racist, xenophobic, etc. But when you think about it, the reasoning behind them is not hard to follow. For nearly 20 years Australian governments from both sides have insisted that asylum seekers must be locked up. It has been done for so long now that a generation of Australians has grown up with it. Normally in a free country people are locked up in order to protect society from them, because they are dangerous. So asylum seekers must be dangerous, in which case we don't want them in our neighbourhood.

When mandatory detention was introduced in 1992, the responsible Minister Gerry Hand (ALP) gave the following explanation in the second reading speech: "I believe it is crucial that all persons who come to Australia without prior authorisation not be released into the community. Their release would undermine the Government's strategy for determining their refugee status or entry claims. Indeed, I believe it is vital to Australia that this be prevented as far as possible. The Government is determined that a clear signal be sent that migration to Australia may not be achieved by simply arriving in this country and expecting to be allowed into the community."

Then as now, the majority of asylum seekers arrived in Australia with visas and were allowed to remain in the community while their claims were assessed, so the reasoning behind the first justification is hard to follow. As for sending that clear signal, after nearly two decades it must be admitted that it is not getting through. It must be time to rethink the whole idea.

1 comment:

Madeleine Kingston said...

Michael thank you for an excellent article on the status of current asylum seeker and refugee policy and attitudes.

It has just the right cynical punch but highlights the dilemma, prejudices and fears.

I will follow your blogs on this topic, in which I have a passionate interest.

I am dismayed over the level of prejudice and fear that has been instilled into people and believe that you have accurately summed up how and why past and existing policies have contributed to fear and prejudice, though some of this does appear to be ingrained and independent of policy stances.

At the root of many attitudes taken for xenophobia and racism is fear of one kind or another. Political spin and goals have done their share of damage.

The question is where to from here? What are the answers. I am very much against mandatory detention and believe this should be abolished apart from the period perhaps where initial health and security screening is achieved.

Many say that thorough screening takes a long while to achieve.

I am concerned about country information relied upon to suit political goals and sceptical about assessments in certain cases, including of the alleged conditions in either Afghanistan or Sri Lanka where minority groups such as the Hazaras and Tamils have been historically persecuted.

Their situation will never change.

Neither will the position of the Somalis from the Shikal clan

(see the case of Sadiq Shek Elmi Communication No 120/1998 Committee against Torture under Article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1999)


I hope you will also consider making direct contributions to multiple articles on foot at ABC Drum Unleashed including:

1) Asylum seeker tragedy deserves something finer in our politics Khalid Koser


2) Bad Policies and the Cruel Seas Bob Ellis


3) What really lies behind out refugee policy? Tad Tietze


4) Victory for Asylum Seekers against Legal Fiction Greg Barns

5) Turning the Boats Back – it’s a Bridge Too Far Susan Metcalfe

6) Abolishing Mandatory Detention for Boat People Ken Parish

7) Moral Dilemma for Asylum Seeker Policy (Best of 10) Robert Manne

Others: (Bob Ellis)

The Big Population Lie

The Urzugan Six

Take Back your Poor your Huddled Masses

Thanks for reaching out to the wider community to discuss these important issues.