24 Oct 2013

Asylum Policy A 'Vortex Of Political Posturing'

By Judi Moylan

The Abbott government's Operation Sovereign Borders is unduly provocative, writes former Liberal MP Judi Moylan, as she concludes her series on the history of Australian border policy

This is the second in a two-part series about the history of Australian border policy. Read the first part here.

The Gang Of Four

When Parliament resumed in 2005, four Liberal Party Members of Parliament, Petro Georgiou, Russell Broadbent, Bruce Baird and I, met to discuss concerns about indefinite mandatory detention and its impact on children.

Petro Georgiou had commenced drafting a Private Members Bill to amend the Migration Act. Once the drafting was complete, the group met with then prime minister John Howard to advise their intentions. To avoid the embarrassment of a split on the benches, the prime minister asked for time to speak to his cabinet colleagues.

During the hiatus, the mistaken and unlawful detention of two Australian citizens, Cornelia Rau and Vivian Alvarez Solon, aroused considerable public disquiet and sympathy. Cornelia Rau was erroneously held in immigration detention for 10 months and Vivian Alvarez Solon wrongly deported and “dumped” at the Manila airport in a wheelchair. Inquiries into both cases led to a damning exposé of inadequate care, lack of openness and scrutiny in the system and the pervasive culture of “denial and self justification” within the Department of Immigration.

Public alarm over detainees covertly held indefinitely heightened with the case of Peter Qasim, a stateless person detained for seven years. Qasim’s case became a cause célèbre when it was taken up by prominent businessman Dick Smith. The Sydney Morning Herald revealed the government’s decision to soften its hard line on mandatory detention. Under a headline 'Free at last, but a prisoner still of his tortured mind', it disclosed that Qasim would be one of 50 people locked up for more than two years, who would now be summarily released on bridging visas.

Churches, non-government organisations and a growing number of web-based social media commentators exerted growing pressure on government to change the policy. The threat of a private members bill was a crucial element in the government’s turnabout. The government announced that “a child shall only be detained as a matter of last resort”.

The Ombudsman was to review cases of detainees who had been in detention for more than two years and make recommendations about their release. The minister was required to report the recommendations to Parliament within 15 days, but could not be compelled to act on them. Other elements of the changes forced by the backbenchers included an agreement to place time limits on the processing of protection visa applications and offer the existing 4000 refugees on Temporary Protection Visas (TPVs) permanent protection within 90 days.

Winding Forward, Winding Back

In 2007 the Rudd Labor government was elected. As the boats slowed, the new government made good its election promise to dismantle the “Pacific Solution”. It ended TPVs and abolished detention charges. Mandatory detention and ‘excision’ of the migration zones remained firmly in place.

Two years later, boat arrivals bounded from seven in 2008 to 60. A deepening sense of panic gripped the government. A withering attack was unleashed by the Opposition accusing the government of not protecting the borders and encouraging smugglers.

The government suspended processing refugees from Afghanistan and Sri Lanka claiming that the situation in both jurisdictions was evolving and that the “Taliban’s fall, durable security in parts of the country and constitutional and legal reform to protect minorities’ rights have improved their circumstances.” This led to increased periods of detention, overcrowding and outbreaks of violence. Incarcerated children became a resurgent issue.

Flagging polls, further boat arrivals and a relentless campaign by the Opposition were among the issues which led to a change of leadership from Kevin Rudd to Julia Gillard on 24 June 2010. With an election imminent, the new prime minister cast about for her own version of the Pacific Solution. Senior political journalist Michelle Grattan reported “the dog whistle is sounding like a wolf howl” and quoted part of Gillard’s speech announcing the latest proposal:

“Hardworking Australians wanted to know refugees settled here weren’t getting special treatment. People like my own [migrant] parents who have worked hard all their lives can’t abide the idea that others might get an inside track to special privileges.”

A month later the prime minister’s plan to send asylum seekers to East Timor had been rejected by their Parliament.

In 2011 the Commonwealth Ombudsman initiated an investigation into suicide and self harm in detention facilities. Later that year the government commissioned the Hawke review following violent incidents and episodes of self-harm by detainees. It noted that a recent surge in boat arrivals had placed the detention network under stress and despite efforts to train additional staff they had been overwhelmed, leading to problems of health, including mental health, anger, frustration and self harm. Despite the 2008 guidelines favouring the release of families with children, there were still over 1000 children in detention centres in January 2011.

The government began negotiating what later became known as the Malaysia Swap Deal with the Malaysian government even though it is not a signatory to the UN Convention. The plan was to send 800 asylum seeking “boat people”, including unaccompanied minors, to Malaysia in return for Australia accepting 4000 refugees. The government believed that under section 198A of the migration legislation the minister could make a declaration in respect of the country to which asylum seekers can be sent, as the former Coalition government had done.

A High Court challenge prevented the removal of the first group of asylum seekers, finding against the Minister’s declaration on the basis that Malaysia does not recognise the status of refugees in its domestic law. It also found that the plan breached the (Guardianship of Children Act) 1946.

The Prime Minister attacked the court decision as “a missed opportunity” and for turning the current law “on its head” and shortly after introduced the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 to circumvent the court’s findings and enable transfers to a third country.

The Opposition would not support legislation allowing asylum seeker transfers to countries which are not signatories to the Convention. Opposition Leader, Tony Abbott said: “if the government was serious about stopping the boats she [the prime minister] would support the Coalition’s amendments”. In the end, both the government’s legislation and the Opposition’s amendment were defeated.

To quell public criticism as news broke of more deaths at sea, the prime minister announced the establishment of an “expert panel” made up of three eminent Australians, to find a way to break the impasse. Several weeks later, the panel delivered 22 recommendations to the government, including the re- introduction of the “Pacific Solution”.

“No advantage” would be permitted for asylum seekers arriving in Australia by boat. They would be transferred to Nauru and Manus Island waiting the same amount of time they would have waited for asylum claims to be determined in Malaysia or Indonesia. No instrument has been recommended to gauge that timeframe, so re-settlement could take years.

One day after the report was delivered, the government hastily re-introduced the legislation to once again allow the transfer of “boat people” (including unaccompanied minors seeking asylum) to the Pacific Islands. Malaysia or any other country not a signatory to the UN Convention could now become a destination for asylum seekers (including children), subject to the tabling of a Disallowable Instrument. The legislation passed through both houses of Parliament in August 2012.

In Conclusion

Four decades ago, Australia's response to Indo-Chinese refugees didn't invoke such harsh policies as indefinite mandatory detention, temporary protection visas and offshore processing. Neither did it result in the navy being sent to turn back the boats. Instead the government undertook energetic, diplomatic engagement with Indonesia and other nations of the region to share responsibility for successfully resettling tens of thousands of refugees. Despite initial public apprehension, it is widely accepted that these refugees have enriched Australia in a multitude of ways.

It is axiomatic that tough deterrent policies have not stopped boat arrivals and it is unlikely that any civilised jurisdiction can invoke penalties so harsh that they stop people escaping unimaginable brutality. Managing the human dimensions of refugees fleeing war and civil unrest will require a return to regional processing, including “effective protections” and a commitment to resettlement by participating host countries as indicated by UNHCR.

Notwithstanding the well-documented harmful effects of offshore processing, Australia has now regressed to the principle of “out of sight, out of mind” by the passage of legislation that once again invokes an offshore policy tougher and more sensational than ever before. This comes on the back of a March 2012 government report revealing that, “Evidence overwhelmingly indicates that prolonged detention exacts a heavy toll on people, most particularly on their mental health.”

The tragedy is that there is little evidence that these policies will “stop the boats” or save people from drowning. Both Labor and Liberal governments have persisted with policies that are out of proportion to the so called “problem”.

Barely one month after the passage of legislation to reinstate the Pacific Solution 35 vessels carrying 2,295 asylum seekers arrived – a number far outstripping the capacity of Nauru and Manus Island to decently accommodate them.

Once again a stream of disconsolate humanity is led to incarceration on Manus Island and Nauru. Despite commitments under the Howard government, supported by the Rudd government, the cohort now includes unaccompanied minors.

The consequences of allowing asylum seeker policy to be drawn into a vortex of political posturing flouts our commitment to international treaties, vitiates our ties with our regional neighbours, lends legitimacy to racist elements within our community and above all causes unimaginable harm to those who come to our shores seeking refuge.

Historically, the same divisive and destructive arguments have featured with every wave of migration whether European or Asian. However the current debate displays a gathering clamour for yet harsher policies.

The Abbott government appears set to continue Labor’s model of the “Pacific Solution” with a determination that no asylum seeker arriving by boat will ever be given asylum in Australia.

The re-introduction of “turn back the boats” engages our navy in dangerous brinkmanship and it is unduly provocative. Worse, it ignores the inconvenient fact that once the asylum seeker boats are out of our sight, we have little if any idea whether they make it back to Indonesia’s shores.

These operations are now cloaked in secrecy as the Immigration Minister, Scott Morrison, declares “operational reasons” for withholding information about boat interceptions and asylum seeker transfers.

The Abbott government has announced the re-institution of Temporary Protection Visas and officially labeled asylum seekers “illegals”. Is it all part of the plan to demonise and dehumanise asylum seekers?

Contempt for our international obligations appears to be set firmly in place with the changing of the guard, as our administration continues to ignores both the spirit and the letter of or commitments to asylum seekers and human rights.

This article was originally written for the Prison Service Journal in the UK and published in January 2013. It has been updated for New Matilda. NM National Affairs correspondent Ben Eltham will return next week.

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Thomas Fields
Posted Thursday, October 24, 2013 - 14:44

Solution: All you "progressives" who want them here can pay for their entire upkeep and processing until they can stand on their own feet financially.

 

Now watch all the "progressives" make every excuse in the book to avoid having to spend a cent on asylum seekers. Watch them palm it all off onto the tax payer and a soulless bureaucracy. 

This user is a New Matilda supporter. Marga
Posted Thursday, October 24, 2013 - 14:47

According to Wikipedia and other documentation, Cornelia Rau is a German citizen and permanent Australian resident.

Ant..
Posted Thursday, October 24, 2013 - 15:50

The LNP have sent a clear message that government funding is not a bottomless pit. So the money to support these people has to have a line somewhere in the governments budget. 

Given that this government has given the Australian people an undertaking  to balance the books and trade Australia to a surplus by a reduction in spending and/or the sale of government assets then this is an issue that really requires careful consideration.

Its not a difficult equation when you are required to improve the bottom line you have got to either reduce the number of asylum seekers or reduce the cost of processing and accommodating them or a combination of both.

So on the question of fiscal responsibility the question for everyone is who is going to support a compulsory asylum seeker levy?

EarthFan
Posted Thursday, October 24, 2013 - 17:10

"Despite initial public apprehension, it is widely accepted that these refugees have enriched Australia in a multitude of ways."

I have seen this written many times, but have yet to see anyone explain how refugees have enriched Australia? I realise that the extra customers increased the profits of businesses, and pushed up real estate values, but how does that enrich the rest of us? I certainly see no cultural enrichment other than a few more Thai restaurants.

Observation
Posted Thursday, October 24, 2013 - 17:42

This government consists of some scarey scarey people. In the future, historians will look at this period as a time of shame where Australia was lead by bigots and zealots. I watch to see how selfish, heartless and inhumane we will become. 

Shannon Oram
Posted Thursday, October 24, 2013 - 19:37

@EarthFan: Diversity of food is enough enrichment for me. Imagine eating bland english food every day of your life, awful!

Samatha Watson
Posted Thursday, October 24, 2013 - 19:47

@Thomas: We're one of the most financially well off countries in the world. When will we be able to afford to help asylum seekers if we can't now?

This user is a New Matilda supporter. guywire
Posted Friday, October 25, 2013 - 00:07

Onesmallclue, The meat and three veg pies pasties cauliflower cheese etc are Traditional Australian food and only recently have we become proud of our excursions into Eurocuisine. My mum was English and cooked fabulous food including wild food and Wartime rations.

We forget that almost all of us are 1st-2nd generation migrants many fleeing wartorn nations and those generations are exclusive even from a position of national wealth and popular comfort. What do we compensate for the generosity of others but its OK now that we dont recieve much media coverage.  The dark has been lifted and we have no reason to be worried.

This user is a New Matilda supporter. laurie4
Posted Friday, October 25, 2013 - 09:52

Judi, you make me sick.If you had seriously opposed the Coalition racism and fear tactics on asylum seelers many lives would have been saved .

Proof of your hypocrisy is that you give do not mention  "push" factors , which in the light of Iraq, Syria, Afghanistan etc makes a mockery of your crocodile tears.

You know damn well that it was the Coalition that drove the asylum seeker issue to the insane Right , beginning with that disgraceful political bottom feeder, John Howard.

He set the rules and all you Coalition sheep followed. Bleating from time to time does not constitute humanitarian behaviour on your part.

Nicko
Posted Saturday, October 26, 2013 - 18:25

Moylan et al. was a party to it all, if unwilling a bit. But at least then there was token humanitarian heads in the 'broad church' Liberal Party, unlike now as they are cauterised out as the Liberal Party has become One Nation at a Tea Party.

Howard negated Hanson by adopting One Nation policies (willingly, given his previous anti-Asian muckraking and his almost lone support for apartheid in the Fraser government).

TPVs went from 'unconscionable' to Ruddock to being introduced by him.

The slide continues - it isn't about stemming leaky boats now, but about actively punishing those who have made it. The Liberal Party has to be 'tougher' that the ALP even though they are using human beings as their pawns.

The degeneration of the Liberal Party is generating the degeneration of a large part of the electorate (and vice versa). We are so party to hysterical scare campaigns it is frightening. People are 'educated' by the scare campaigns to be dumb (*Thai* restaurants?) and have a childish black and white view of a complex world.

Witness Abbott's moronic comment about trading carbon being socialist or Newman's lurid attack on 'unaccountable' judges. Both certified pure shock jock lines being adopted by a PM and Premier. Scary.

 

 

Thomas Fields
Posted Saturday, October 26, 2013 - 20:48

Samantha, who is "we"? Why not join a charity and donate your paypacket to the cause? 

steveintianjin
Posted Sunday, October 27, 2013 - 10:39

It's so infutiating that this debate is stuck in a tightening downward spiral of harsher penalties and self-justification. Meanwhile, people are DYING! Australia could retreat to a protectionist, xenophobic position - hang on, that's what successive governments have done, and are doing.

All the discussion about not sending people to countries that are not signatories to the UNHCR is blindingly hypocritical. We do it all the time - the LNP is doing it now by "turning back the boats." And the very fact that Indonesia is NOT a signatory is justification enough for people to want to move on to a signatory country. We are a wealthy nation. We have been enriched by welcoming people (please remember, they are people, not political pawns) to our country. The broadening of our minds to see beyond our own narrow cultural boundaries is justification enough, I think. As for our physical borders, there is no threat to sovreignty. No nation is threatening to invade Australia, and it would be unlikely to succeed if they tried. The naming of our coastal patrols Operation Sovreign Borders, is about as misleading and alarmist as you can get.

We need to make a U-turn and make a serious effort at constructing a regional solution. Rather than locking people up in expensive detention centres and throwing the key into the "no advantage" abyss, we could be pouring significantly more diplmatic and bureaucratic effort into fostering a regional, even global solution. It's no good calling people illegals and then pointing to a "queue" that is non-existent or, at the very least hopelessly, ineffectual. Australia needs to reinstate it's reputation as a leader in the protection of human rights and broker a lasting, better solution in our region to what is a global problem. The Bali  process (remember that?) is perhaps a good starting point that could be built on. That's what I want to read/hear/see  in the news. I don't want news of anymore knee-jerk reactionist policies to "numbers of illegals" who then become "detainees." It's disgusting and demeaning, to ourselves and to legitimate assylum seekers.

I am a history teacher. After seeing how Australian politicians have handled this issue, I am more convinced than ever that the teaching of history is essential. Two hundred years ago a wealthy nation was unprepared to find a humane solution to a so-called "criminal" problem so they deported people to Australia. How is what we are doing to assylum seekers essentially different? People who do not know about history, or refuse to learn from it, are destined to repeat it.

And before anyone out their wants label me a "bleeding-heart" whatever, let's just remember our focus should be on sustainable solutions. Calling people "illegals" and locking them in detention centres is clearly not sustainable and for the current Australian government to offer it as virtually the only solutions is a disgrace.

This user is a New Matilda supporter. Marga
Posted Sunday, October 27, 2013 - 13:09

steveintianjin:

They have a choice.  They don't have to come by boat but can wait in the camps as most others do.   And they should never be resettled, just protected - that is all the Convention asks for.  Kenya is sending Somalis back home now because the political situation has stabilized but also because the Somalis used the camps for terrorist activities.

One of the Nairobi shopping centre terrorists is a Somali with a Norwegian passport!

How do we know what intentions people have who arrive by boat - especially when they destroy their IDs.?

I am a numbers person.  I like stats:

Please quantity how, where, when migrants have enriched us - lately, not generations ago when newcomers were not pampered and had to stand on their own feet.  As a history teacher I am sure you will know all about that!

Should we ask the ATO and Centrelink for relevant data?

Please also quantity our wealth in an analytical manner.

 

EarthFan
Posted Monday, October 28, 2013 - 00:27

@ Shannon Oram. I was brought up on the traditional English diet of meat and 3 veg: one orange, one leafy green and potato. It wasn't at all bland. It was healthy and low in fat. It would be interesting to compare the oil, salt and sugar contents of Asian and southern Mediteranean diets. Nowadays, vegetables are little more than a garnish in dishes served at restaurants, or described in cooking shows and in published recipes. I put that down to multicultural influence.

EarthFan
Posted Monday, October 28, 2013 - 00:31

@ Shannon Oram. I was brought up on the traditional English diet of meat and 3 veg: one orange, one leafy green and potato. It wasn't at all bland. It was healthy and low in fat. It would be interesting to compare the oil, salt and sugar contents of Asian and southern Mediteranean diets. Nowadays, vegetables are little more than a garnish in dishes served at restaurants, or described in cooking shows and in published recipes. I put that down to multicultural influence.

steveintianjin
Posted Monday, October 28, 2013 - 18:55

Marga

Actually, article 34 of the UN Convention and Protocol on the Treatment of Refugess does say that contracting states should do all they can to assimilate and naturalise refugees. The whole tone of the language in the  Convention is so much more generous than what we've heard from our politicians recently.

As to the wealth of Australians, there was an article in the Australian recently that claimed we were the wealthiest people in the world. Of course, as I notice that you like stats, this an average figure that hides the percentage of Australians that are in genuine need. And yet I think it's true to say that even our poorest are richer than a refugee. People who sell all they have to buy a $15000 passage on a leaky boat aren't that rich compared to almost everyone in Australia.

Finally, how do we know anyone's intentions, especially if we haven't asked them? Do we know the intentions of our neighbour at the end of the street, to whom we give a friendly nod and nothing more? There are bound to be some undesirables mixed in with the genuine refugees, but can we say conclusively that this is any more likely than the average in Australian society in general?

steveintianjin
Posted Monday, October 28, 2013 - 18:56

Marga

Actually, article 34 of the UN Convention and Protocol on the Treatment of Refugess does say that contracting states should do all they can to assimilate and naturalise refugees. The whole tone of the language in the  Convention is so much more generous than what we've heard from our politicians recently.

As to the wealth of Australians, there was an article in the Australian recently that claimed we were the wealthiest people in the world. Of course, as I notice that you like stats, this an average figure that hides the percentage of Australians that are in genuine need. And yet I think it's true to say that even our poorest are richer than a refugee. People who sell all they have to buy a $15000 passage on a leaky boat aren't that rich compared to almost everyone in Australia.

Finally, how do we know anyone's intentions, especially if we haven't asked them? Do we know the intentions of our neighbour at the end of the street, to whom we give a friendly nod and nothing more? There are bound to be some undesirables mixed in with the genuine refugees, but can we say conclusively that this is any more likely than the average in Australian society in general?