Labor better but not best for refugees

After the change in Government in November 2007, there was a marked change in rhetoric and the treatment of especially asylum seekers by the then new Labor Government.  In the four and a half years since then, we have seen significant reforms but also some serious setbacks in the treatment of asylum seekers. On one hand, the Government has implemented significant reforms, only to then react to populist rhetoric from the Opposition with poor policy.

At times under the Coalition, there were up to five different visa categories for refugees, four differed mainly on the basis how someone came to Australia.  Until changes were announced in early 2012, there were three different refugee assessment processes, again depending on how you arrived, not on the merits or otherwise of your claims.

Labor’s reforms moved slowly at first with the closing of Nauru in February 2008, and in August 2008, the abolition of the Temporary Protection Visa (TPV).  This meant that all those who met the refugee criteria onshore would be granted permanent residence.

Other positive changes included the abolition of detention debt in March 2009, the end of the 45 day rule which restricted access to permission to work on 1 July 2009 and the introduction of complementary protection legislation initially 2009, but it did not start until March 2012.  Complementary Protection introduced a joint process whereby a person was first assessed against the Refugee Convention, and then against the Convention Against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR).  This shorted the cumbersome system whereby previously the only way to access CAT or the ICCPR was through a ministerial request after a refugee claim was refused at merits review.

Where Labor has reached political problems is in dealing with unauthorized arrivals who come by boat, rather than by air.  This debate has become increasingly polarized.

The original tone was set by former Immigration Minister Evan who delivered a key speech on reforms of the detention system in July 2008 at the ANU. In that speech, Senator Evans outlined seven objectives and made the following remarks:

At my first meeting with Department officials as Minister for Immigration, I asked who was detained at the immigration detention centre on Nauru and at what stage were their claims for asylum.

I was told there were eight Burmese and 81 Sri Lankans there. Virtually all of this group had already been assessed as refugees but had been left languishing on Nauru.

When I asked why the eight Burmese had not been settled in Australia in accordance with international law there was an embarrassed silence.

Eventually the answer emerged. The Howard government had ordered they stay put. They had been left rotting on Nauru because the Howard government wanted to maintain the myth that third-country settlement was possible.

Sadly, Australia’s treatment of asylum seekers had sunk this low.

At the time, there were few people arriving by boat.  Those who did arrive by boat were assessed in an administrative process which was seen as outside the onshore protection visa process, but mirrored it in its approach.  The excision provisions of the Howard Government still operated but the Minister has power to grant a visa if in the public interest.  Cases assessed as meeting the refugee criteria were granted protection visas. As more and more people arrived by boat, the detention centres filled up and Christmas Island was no longer large enough to hold all the arrivals.  As detention centres such as Curtin near Derby in WA were reopened, many other centres were established around the country.

Whilst the actual numbers arriving were small by international standards, they overwhelmed the limited systems set up in Australia.  Rather than change the systems to deal with larger numbers, the Government was caught in a ‘tough on people smugglers but fair on boat people’ rhetoric which lead to long periods in crowded detention centre.   Security checks delayed the processing for longer and longer periods.  Then there were processing freezes for Sri Lankan and Afghan cases in 2010, a strange policy that achieved nothing but further delays.  In the August 2010 election, the Opposition’s simplistic ‘stop the boats’ chant was not rebutted by the Government due to the paradox of their ‘tough but fair’ approach. 

Self-harm and protests due to delays led to more strident rhetoric and a change to the character test in May 2011which meant that someone convicted of offences in detention or of escaping from detention could be refused a visa on character grounds alone.  This meant that now refugees have to meet a higher standard of character than other visa applicants- an irrational response to the problems of delays and unresponsive inquiries about the progress of a case.

In November 2010, the High Court ruled that the process of assessment of those arriving by boat was subject to judicial review and the common law rules of natural justice, and further changes were made to the administrative process.  By now, the process had a merits review stage, undertaken by contractors, a significant number of whom were former members of the Refugee Review Tribunal.  The system the Government thought was outside immigration law, was found to merely copy the onshore system and many flawed decisions had to be reassessed.

Prime Minister Gillard tried to arrange a deal for processing of arrivals by boat with Governments in the region, and after the East Timor plan failed in 2010, a deal with Malaysia was proposed. Malaysia is not a signatory to the Refugee Convention but they agreed to warehouse 800 asylum seekers who arrived in Australia in return for Australia resettling 4000 of the more than 90,000 refugees in Malaysia.   The ‘swap’ started to unravel soon after it was announced with unaddressed concerns such as the treatment of unaccompanied minors forced to travel to Malaysia.  One of the few positives to emerge was engaging Malaysia, a non-refugee convention signatory country, in a process which may lead to a regional approach.

The Malaysian deal was successfully challenged in the High Court in August 2011 and legislation to make it possible was not introduced as the Opposition wanted the reintroduction of their TPV policy and use of Nauru.  There is no evidence that the TPV deterred anyone.  In fact, what it did was cause major stress for refugees because of enforced family separation as well as making the only path for family reunion that of women and children on boats – which is what happened in 2000 and 2001. The psychological harm was documented by mental health professionals at the time.   In the end most people on TPVs were granted permanent residence. 

Nauru was also never a ‘solution’, but a warehousing of refugees, many of whom were later resettled in Australia because they could not be sent anywhere else.    Unlike the resettlement of Vietnamese in the 1980s, Comprehensive Plan of Action for the mainly Vietnamese refugees in the 1980s, because under that system, there was no international agreement about resettlement of cases from Nauru except for a group on the MV Tampa.   This is considered Australia’s problem. Nevertheless, both points are key to the Opposition’s policy.

Now the Government is moving to greater use of ‘community detention’ and use of bridging visas to get people out of the overcrowded detention centres.  This positive step is somewhat overshadowed by the inordinate delays involved in the secretive and unreviewable security assessment process.  Applicants are commonly waiting more than a year to receive a positive security assessment.  These inordinate delays create further tensions in a stressed group of people.  Now all those who arrive by boat will undergo the same assessment process, a return to what happened in the pre-excision days of the Coalition up to September 2001. 

The Joint Select Committee on Australia’s Immigration Detention reported in March 2012 but the final report was divided along party lines. The report stated ‘Evidence overwhelmingly indicates that prolonged detention exacts a heavy toll on people, most particularly on their mental health and wellbeing.’   A further finding was the need to provide for review of ASIO security assessments.    The report provides a significant overview of the current process and hopefully key recommendations will be implemented. 

Since November 2007, there have been significant reforms in the refugee area. However, the politics has become increasingly hostile while the Opposition maintains a simplistic approach to what is a complex international phenomenon. This resulted in a political standoff over a ‘flawed Malaysian deal’. The major questions posed by the 2012 Final Report remain to be answered:

How does Australia treat people seeking asylum? What weight do we ascribe to human rights on our borders? Is there a standard for how a civilised, humane society responds when people arrive uninvited asking for protection, irrespective of who they may be, their mode of arrival, or the challenges they pose?