Who'll Stop The Boats?


An exploding boat full of asylum seekers must have seemed like a godsend for leader of the Opposition, Malcolm Turnbull, who is about as popular as a root canal. The Opposition had already been pushing to reignite the border protection debate for weeks, but their message only gained traction in the media after a boat carrying 49 asylum seekers was intercepted by the navy, and shortly after exploded in a sensational fireball, killing five passengers.

Unfortunately for Turnbull, voters appear to be unmoved by his feigned outrage. But the events do highlight that the political exploitation of asylum seekers was not, as many hoped, relegated to Australian history along with its master: John Howard.

The Opposition’s accusation that the Government has opened the doors to asylum seekers with a "soft" policy is not surprising as it may be the only "gotcha" issue the Opposition has right now. However, their protestations are misleading. Shadow Immigration Minister Sharman Stone — who was one of the first to blame the boat blast on the Government’s policy changes — endorsed Labor’s abolition of John Howard’s "inhumane approach to immigration detention". A report handed down by the Joint Standing Committee on Migration (of which Stone is a member) in December of last year, made recommendations to soften the mandatory detention policy in a number of ways.

Also, when the Opposition claims that their system "didn’t risk lives" as Liberal MP Andrew Robb recently did, they aren’t just stretching the truth — they’re lying. The People’s Inquiry into Detention found that between 2000 and 2008, 18 people died under the care of the Australian Immigration Department — a 1700 per cent increase on the seven years previous to that. The majority of deaths were due to a mix of self-harm and medical problems that were insufficiently addressed. The Howard government’s Temporary Protection Visa system also encouraged women and children who were denied family reunion privileges to make the desperate and ultimately tragic decision to travel to Australia on the boat that was subsequently dubbed the "SIEV X".

It is unclear whether Turnbull would like to see a return to the Howard/Ruddock policies, which undoubtedly violated human rights and, yes, risked lives. Despite his squawking he has failed to outline Opposition policy on the issue. However, he is calling for a return to Temporary Protection Visas (although some of his colleagues disagree) and has said that the object of Australia’s border protection policy should be "no boats". Even Howard couldn’t completely stem the flow, so is Turnbull calling for tougher policy than that of the Howard government?

Turnbull has also continued calls for the Government to pre-empt the conclusion of a police investigation and release information about the explosion. "We need to know precisely what happened," he said last week.

But the question we should be asking is not whether someone on the boat deliberately sabotaged it, but why we urgently need to know if they did? Presumably so Australians’ suspicions about refugees being undesirable candidates for citizenship are confirmed? One would think that such an act speaks more of desperation than any homicidal/suicidal tendencies.

On the flipside, Turnbull doesn’t know whether he wants to demonise asylum seekers or hug them, recently requesting to meet the injured. This would serve to humanise them — something the media has so far failed to do, and which Turnbull presumably wanted to cash in on. Is asylum seeker as both villain and victim too complicated a message to be peddling to the electorate?

Both sides of politics are now engaged in a rhetorical war to give the impression they’re tough on border protection. Key to the debate is what the Opposition means when they speak of "soft" policy. Labor hasn’t done away with mandatory detention, nor have they stopped forced deportations or rolled back significant legislative changes put in place during the Howard years, such as the Migration Amendment (Excision from Migration Zone) Act. However, Immigration Minister, Chris Evans, has taken a number of steps to smooth some of the pointier ends of immigration policy since Labor was voted into power.

Temporary Protection Visas scrapped
Boat arrivals increased after TPV legislation was enacted by the Howard Government in 1999. This could have been because people on TPVs had no access to family reunion, forcing family members of those already in Australia to come by boat. The TPV policy tragically culminated in the sinking of the SIEV X, a severely overloaded boat carrying 253 people, mostly women and children, who made the perilous journey to reunite with the family members who had come before them.

TPVs also left refugees in a state of legal limbo, having to renew their visa every three years and prove time and time again that they required protection. People on TPVs were unable to leave the country. The visas restricted access to refugee settlement services, such as English language programs, employment and income assistance. TPVs were "inhuman, unfair and ineffective" according to Minister Evans.

The Pacific Solution
One of the first things Labor did when coming to power was dismantle parts of the "Pacific Solution". The Pacific Solution saw many asylum seekers languishing in detention centres in Nauru and Manus Island without access to Australia’s legal system. Most people held in detention centres under the Pacific Solution were eventually found to be refugees and resettled.

Labor has retained the excise and downsizing of Australia’s migration zone and offshore processing of boat arrivals — all boat arrivals are now processed on Christmas Island. However, the Government did introduce access to legal advice, independent review and oversight by the Immigration Ombudsman.

How that works in practice is another story, however, since Christmas Island is 2600 kilometres off the coast of Perth. Many lawyers take on refugee cases pro bono and the cost of flights to Christmas Island can be prohibitively expensive (return flights are over $1500).

Time limits on detention
Detainees now have their cases reviewed by a senior departmental official every three months with the onus on the official to prove the detainee should continue to be detained. The Labor Government also committed itself to implementing key changes to the detention regime as set out in the Joint Standing Committee’s report, Immigration Detention in Australia: A new beginning.

Recommendations included:

Using detention in Immigration Detention Centres only as a last resort and for the shortest practicable time.

Five day time frames for health checks.

Up to 90 days for the completion of security and identity checks, after which consideration must be given to release onto a bridging visa.

A maximum time limit of 12 months detention except for those who are considered to be a risk.

Members of this committee included not only Shadow Immigration Minister Sharman Stone, but also Liberal MPs Dana Vale, Petro Georgiou, Don Randall and Alan Eggleston.

Scrapping the Detention Debt Regime
Last month, Evans introduced a bill to waive debts for all current and former detainees and abolish the practice of charging detainees for the costs of their detention. The Joint Standing Committee on Migration unanimously recommended the repeal of the practice, which saw detainees charged over $100 per day in detention. Convicted people smugglers and illegal foreign fishermen are still liable for the costs of detention. People who are deported also remain liable for the associated costs.

The Commonwealth Ombudsman expressed disapproval of the detention debt regime in April last year. The Ombudsman said, "the size of some debts causes stress, anxiety and financial hardship to many individuals who are now living lawfully in the Australian Community".

In 2006, the Senate Legal and Constitutional Affairs Committee also came out against the regime saying that it was "an extremely harsh policy and one that is likely to cause significant hardship to a large number of people".

Establishing a body to regulate migration agents
In February this year Evans announced the establishment of a new body to regulate migration agents. A review found statutory self-regulation of migration agents was unsatisfactory, particularly in the area of handling complaints. From 1 July the newly established Migration Agents Registration Authority will take over regulatory functions.

Review of Ministerial Intervention powers
In July last year Senator Evans released a report into the appropriate use of ministerial intervention powers. There was a massive increase in requests for ministerial intervention after Philip Ruddock took over the portfolio. Gerry Hand, the Labor immigration minister who introduced mandatory detention in 1992, received 81 intervention requests. Senator Nick Bolkus handled 311 over three years. Philip Ruddock used his intervention powers 2513 times during his reign as minister from 1996 to October 2003. In 2006–07, 4000 requests for ministerial interventions were received.

Evans has expressed discomfort at the power he holds over life and death decisions. Under the Migration Act the minister has the power to grant, refuse and cancel visas. "Those decisions are non-compliable, non-reviewable and non-delegable," he said in a media release in July last year. Evans said the intervention requests had ceased to become a check on the system and are now entrenched in the immigration process. However, Evans is yet to implement any of the recommendations in the report aimed at longer-term solutions.

Still more to do
For many refugee advocates these amendments are a start but they don’t tackle the root of the problem: loopholes in the Migration Act that could easily be exploited by a future government. There is still no judicial oversight of the imprisonment of people for migration purposes. People can still be held without charge for years. Offshore processing continues to isolate refugees from Australia’s legal system and advocacy services.

If the Rudd Government really wants to prevent the kind of exploitation of vulnerable people that was undertaken by the Howard government, these changes need to be written into law.

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.