New immigration solution needs legal backup

Evans has indicated that Labor's new immigration values will apply in the excised areas, leading to the question of why the excisions are to be maintained. One answer is that it honours, at least in form, an election commitment, and another might lie in Evans's answer that the new values will apply to excised areas ''as much as possible''. This leaves some disturbing wiggle room and might even allow a return to Howard's policies if the Rudd Government takes too much heat over a large number of boat arrivals.

One of the most important changes has received some of the least attention. It is the decision to reverse the onus of proof when it comes to immigration detention. The change means that, instead of arrivals having to show why they should not be detained, it will be up to the Immigration Department to prove it has a sufficient reason to hold them.

This shifting of the onus will fundamentally alter many aspects of immigration detention. There will be a presumption in favour of liberty for unauthorised arrivals rather than a presumption they should be detained. This will help to prevent problems such as the large number of cases in which the status of a person, such as Cornelia Rau, could not be determined and they were simply held in detention. At least 247 people, many Australian citizens, have been wrongly held in immigration detention.

While the Rudd Government has announced a major change in policy, this needs to be followed up by changes to the law. Until this occurs there will be an awkward mismatch between the law enacted under the Howard government and Labor's new values, some of which cannot be implemented. Without legal change, it will also be possible for a new government, or even a new minister, to revert to the old ways of mandatory detention and to undo the policy shift.

It is not only the law that needs to be changed. We need to know the rights that people will have when they are released into the community pending a decision on their visa. A more effective regime of processing applications should mean this number will be small, but it does still need to be determined whether such people will be able to work. If they cannot, many of them will be destitute and dependent on the goodwill of Australian charities. The Government should grasp the nettle by ensuring that such people can earn a decent wage. They should be allowed to live a life of dignity at a time that for them is one of great insecurity and uncertainty.