Time for an Amnesty


In 2002, a young Russian mother still breastfeeding her baby was separated from the child and locked up in the Villawood detention centre. The shocking image of a woman being taken from her infant and put under threat of imminent deportation was the first indication for many people of the reach of Australia’s harsh migration laws. They could be applied not just against boat people from the Middle East or Asians working here illegally but against a European woman who had a child with an Australian man.

Three years later, and after the Cornelia Rau and Vivian Alvarez Solon cases, we are much wiser about the workings and culture of the Department of Immigration.

This quarter’s Griffith Review

The cases caught up in Australia’s increasingly vigilant compliance and deportation system are, typically, not from the Middle East but from our own region Malaysia, Fiji, China, Tonga, Bangladesh, India, Korea. Some are asylum seekers, believing that if they return to their countries of origin they will face persecution. Most are ‘visa overstayers’: people who have been in Australia a long time, have built lives here, have had children here, but with whom the Immigration Department has finally caught up.

Visa overstayers are usually not asylum seekers and the distinction needs to be kept clearly in mind. The asylum system is a matter of life or death for refugees. It is too important to be weakened by thousand of visa overstayers claiming to be refugees.

But what overstayers and asylum seekers have in common along with the thousands of refugees granted temporary protection visas is separation from family. The Australian Government’s refusal to treat immediate members of a refugee family as one unit has been one of the most outrageous injustices in a system that is full of cruel and arbitrary acts. Mothers and children are kept locked up while fathers are given visas, and vice versa; teenage boys are detained while their younger siblings are released.

There are often very good reasons why visa overstayers should be allowed to remain. One is the interests of the children involved. This was the position taken by Justice Mary Gaudron in the High Court when she said that the best interests of the children needed to be considered when deciding whether a non-citizen parent should be deported: children who were Australian citizens should not be separated from a non-citizen parent. This is not an attitude that has been embraced by the Government.

Before 1986, any child born here was considered Australian (apart from the children of foreign diplomats). But since then, a child is only Australian if at least one parent is a citizen or a permanent resident. A paper published by the Parliamentary Research Library in 2003 said: ‘It appears to be beyond the powers of Parliament and the Commonwealth to treat locally born children as œaliens  without an alteration to the Constitution.’ Yet that is precisely what has occurred in recent times, when Australian-born children have been imprisoned in detention centres.

Six-year-old Janie Whang and her older brother, Ian, were removed from Stanmore Public School in Sydney in March by immigration officers and taken to Villawood detention centre. Their mother had been picked up at Sydney Airport while trying to re-enter the country. The children had been staying with an aunt while their mother was overseas. The mother and children came close to being deported, then spent two months in detention before being released.

After her release, Janie Whang was one of 16 children whose case was taken to the Federal Court in August. They sought the right to citizenship because they were born in Australia. Their appeal was rejected. A similar case went to the High Court last year and also failed.

Having been born here they cannot be aliens, but nor are they citizens. They are in effect ‘naturally born subjects’. Under an amendment made to the Citizenship Act in 1986, such children automatically become citizens on their 10th birthdays. But that may be too late for some they may have already been deported.

Sereana Naikelekele has lived here for more than 16 years, borne five children here, yet faces deportation to Fiji. She may be separated from three of her five children. She was in detention with two of the children but released earlier this year, on a bridging visa, which means she can’t work.

The 1986 amendment is the reason Naikelekele’s five children fall into three different categories: her two eldest children are Australian because they have passed their 10th birthdays; the middle two are non-citizens born here but under 10; and the youngest is Australian because the father is Australian.

The status of Australian-born children is important for another reason. If a person is neither an alien nor an immigrant then the detention provisions of the Migration Act do not apply. In other words, Australian-born children like Janie Whang and Naikelekele’s middle two children cannot be locked up without a court order. This situation has been repeatedly ignored by the Department.

The lack of judicial review of the Department’s activities is one of the issues that have been highlighted by the Rau and Alvarez Solon cases. Departmental officers, scathingly criticised in the Palmer Report, have taken an open-slather approach to detaining and deporting people, apparently ignorant of the law under which they operate.

The Department of Immigration’s powers to enter, search and detain exceed those of the police or ASIO. The Department can lock people up without having to consult a magistrate or appeal for a court order. Where a Department official reasonably suspects that a person is an unlawful non-citizen, they are obliged, under the Migration Act, to detain that person and to remove them from the country as soon as possible.

Up until the 1990s, no one could be deported unless they went before a court. And it was up to the Commonwealth to prove that the deportation was legitimate. No such scrutiny happens now. Since 2001, no deportation orders have been issued. The terminology ‘deportation’ is not even used by the Department because that implies a judicial order. What the government does these days is ‘removal’.

In recent years, the number of forced removals has leapt to more than 10,000 a year. This is a far higher rate of removal, relative to population, than comparable Western countries. So what are those other countries doing? Some are beginning to follow Australia’s lead cracking down hard on ‘illegals’, tightening asylum provisions. But not all are going down the hardline path.

Earlier this year, Spain announced a three-month amnesty, allowing illegal workers to come out of the woodwork and become legal members of Spanish society. About 700,000 workers accepted the amnesty, adding up to about one million people when family members were included. (No, the Spanish Government didn’t deport their families.) Spain has not collapsed as a result of its amnesty. The Spanish Government considers it a great success, despite opposition fears that it might encourage further unlawful arrivals.

During the 1990s, the United States granted amnesty to many hundreds of thousands of people. Another amnesty has been proposed by President Bush the business community likes the idea of ‘regularising’ illegal labour.

An amnesty is also a way of acknowledging the complex reality of modern migration. People don’t always stay where they were born. And that is not necessarily a bad thing. An amnesty recognises that people are in the country, that they are working, studying, raising families. That they have lives. It is a way of allowing them to be visible, to stop hiding, to pay taxes and vote.

Perhaps it is time to consider such an amnesty here. The Department of Immigratio
n estimates that there are more than 50,000 visa overstayers. Each year about 10,000 are deported. But more than 30 per cent of overstayers have been here more than 10 years. These figures do not include the tens of thousands of people who are working here even though their temporary resident visas prohibit it.

At the very least we could, when considering the cases of visa overstayers, take more account of their ties in Australia: to families, communities, professions, or simply take into account the fact they have lived here for a long time. We could consider their calibre as citizens: have they contributed to the economy, the community, to their families’ upkeep? Not all these things are easy to judge, but some are. Have they been law-abiding? Have they bought houses? Have they shown in manifold ways that they wish to make lives here?

Until this year, young people who had spent a substantial part of their lives in Australia could apply for a ‘close-ties visa’ when they turned 18, and thus stay here permanently, eventually becoming citizens. But that form of visa was summarily abolished in July.

We used to be told, during the golden days of multiculturalism, that there were many types of Australians. Well, it’s time we recognised that there are many ways to become Australian; that trying to live a life is a complicated, messy, sometimes desperate business for a lot of people, and it’s not always possible to do things the right way.

A more flexible attitude to a few thousand families won’t hurt the rest of us at all. And it will make an enormous difference to them. It might mean that Sereana Naikelekele can stay in the country where she has lived for nearly 17 years with all five of her children.

Is that so very much to ask?

A longer version of this essay is published in Griffith REVIEW 10: Family Politics (ABC Books).

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.