A colleague has put together a new policy for treatment of refugees.  He does not wish to be identified, but asked me to put his proposal on my website.  It looks like a pretty good set of ideas.  As he says in conclusion: “Each Politician will have to choose as to whether they will be on the right side of history.”

“A Break with the Past” : A Bi-Partisan Refugee Policy for Australia

  1. Introduction

The Government of Australia has an obligation to uphold national security, to ensure no diminution of quality of life in the country, and to enhance and develop Australia’s economic fortune and the standard of living of all of its citizens, current and future. Adherence to international treaties, laws and conventions as a modern, engaged and responsible first world nation are further features of a modern, caring country. Replacing the current abusive and cruel policies with a humane set of policies towards Asylum Seekers does not run counter to these obligations.

Over the last 20 years, Australian Governments of both persuasions have progressively put in place one of the world’s harshest sets of policies and arrangements for the handling and processing of refugees seeking asylum in Australia. This has often been manipulated for electoral advantage by the two major parties. Asylum Seekers have been demonised in the minds of many Australians by the unending negative narrative delivered by successive Governments. As a consequence, the Australian public have acquiesced in the cruel, abusive and illegal arrangements currently in place.

This Paper seeks to articulate how a bi-partisan approach between the LNP and the ALP can put in place a suite of policies that will address the failures of the current policies, whilst meeting the Governments overall obligations to the Australian people

  1. The Current Opportunity

The change in leadership of the current Government along with the refugee policy platform adopted by the ALP at its recent Conference in late July creates a unique opportunity for the adoption of a bi-partisan set of humane policies for the treatment of asylum seekers and refugees for the future.

An examination of the key elements of each party’s policy platforms shows a high degree of alignment with relatively minor differences in particular aspects. This alignment and the new leadership of the LNP would allow a bi-partisan approach to be developed that would remove asylum Seeker and refugee policy from the party political contest in the lead-up to the next election. This would put an end to the “race to the bottom” that has prevailed for the last 20 years or more. In doing so a progressive dismantling of the current harsh policies can be undertaken on a bi-partisan basis.

  1. The Failure and Fatal Flaws in the Current Policies

The current suite of policies have resulted in establishing one of the world’s harshest set of policies for the treatment and processing of asylum seekers. The result is a system that is riddled with fatal flaws and cruelty, and runs counter to the Australian people’s natural tendency to be welcoming and give people a “fair go”, and generally accepted Australian values. Moreover it has resulted in a policy “cul de sac “in relation to the 2000 people in the Regional Reprocessing Centres (RRPC’s) on Nauru and Manus. A dispassionate examination of the RRPC policies, and the long term treatment of those found to be refugees, would conclude that they are inhuman and cruel and doomed to wholesale failure. This is supported by numerous reports from the likes of UNHCR, Amnesty International, and the International Red Cross etc.

Set out below are further examples of the more egregious aspects the Australia’s current refugee policies:-

  • The overall cruelty and abuse of human rights that asylum seekers are subject to. In particular, the recent findings of the Moss Report into abuse at Nauru, and the brutality of the security staff at Manus, which resulted in murder (Reza Barati) and the serious wounding of many more.
  • The sub-standard health care provided to detainees.
  • Extended Mandatory Detention, upwards of 7 years now for a number of individuals, many of whom have been judged to be Refugees, but have an unknown and undisclosed adverse ASIO assessment against them.
  • Detention of children for many hundreds of days. As an example, the UK prohibits detaining children for more than three days.
  • The deliberate dehumanising effects of the Australia Government’s policies, which are designed to destroy hope, and encourage return to the danger they face in their countries of origin. Actual quote to the author “I would rather be executed in Iran than spend years in “Villawood”.
  • The further removal of the legal rights of Asylum Seekers enacted by the passage of the “Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014” by the Senate on the 4th of December 2014. This act also granted the Minister unfettered powers, outside the purview of the Courts.
  • The demonising of Asylum Seekers for rank political gain.
  • The Government’s veil of secrecy put in place by Minister Morrison.
  • The referral of 8 journalists to the AFP for reporting on Asylum Seekers’ treatment
  • The non-disclosure provisions of employment contracts for those working in detention centres
  • The lies told daily by Senior Ministers of the Australian Government
  • The degrading and punitive restriction on work rights for people living in the community, often for years.
  • The cruel restriction which bars family reunion, for boat arrivals
  • Deportation to danger, for example, to countries such as Afghanistan, where the government has sent letters to many countries, including Australia, stating that they do not want to accept deportees, as it is now not safe to do so
  • Subsequent to the Asylum Caseload Bill 2014,the reintroduction of TPV’s and the refusal to grant permanent visas, keeping refugees in a perpetual condition of insecurity
  • The “No advantage rule” for those held on Manus and Nauru
  • The introduction of the patently flawed and biased “Fast Track Assessment Process” by DIBP, which gives asylum seekers a mere 28 days to complete an application with in excess of 160 questions (in English only), and requires volumes of supporting documentation, without recourse to legal assistance in the preparation of their application.

In addition to all the above issues, the cost to the Commonwealth is exorbitant. This is dealt with more fully in para 11.

  1. Australia’s International Obligations

The Australian Government’s treatment of Asylum Seekers and refugees is in wholesale breach (estimated to be 140+ separate breaches) of the following international conventions that Australia is a signatory to:-

  • Convention relating to the Status of Refugees(1951) and the Protocol(1967)
  • The International Covenant on Civil and Political Rights(1966)
  • The Convention on the Rights of the Child(1989)
  • The Convention Against Torture(1984)

Australia is increasingly the subject of international opprobrium for these breaches, and this will increase as those advocates for Asylum Seekers take their protests off-shore.

There is a possibility that the International Criminal Court (ICC) may investigate Australia’s breaches of the above conventions. The independent MP, Andrew Wilkie, has submitted a Memorandum to the Court seeking such an investigation, and naming the Prime Minister and his Cabinet as the defendants. Julian Burnside is seeking to have the ICC investigate Australia. A second Memorandum from a Refugee Advocate which requests the ICC to investigate Australia has also been submitted, and is under consideration. http://www.andrewwilkie.org/content/index.php/awmp/home_news_extended/case_against_abbott_government_builds_at_the_hague

Members of the international diplomatic community in Canberra are directly approaching Australian refugee advocates, seeking first hand briefings in relation to the “on-the-ground” reality and impact of Australia’s refugee polices. As one Ambassadors put it to the author during a one on one briefing “Australia is keeping interesting company with some of the world’s worst human rights abusers”

In summary, Australia will, in the coming months and years, face increasing public and private diplomatic international criticism over it harsh and illegal policies towards asylum seekers.

Australia has sacrificed its proud record on human rights, and will have a much reduced standing in any discussions of human rights and will be increasingly isolated and marginalised in International Human Rights forums.

  1. The Human Consequences of continuing with the Current Policies

Within the next five to ten years, the Australian Government will be forced to dismantle the whole abhorrent apparatus that it has put in place to imprison, detain, assess and process asylum seekers. This will happen regardless of which of the two major parties is in power.

As dismantling commences, the community will ask: “Why did we do this? Who is responsible? How can we make sure this never happens again? Every parliamentarian will have a role to play in answering why they supported the policies, or did nothing to seek to overturn them.

In the meantime, collateral damage is occurring every day due to the delay. This is not just financial damage, but much more seriously is damage to the minds and souls of individual people – including many children. At the very minimum, any open minded observer can see and witness today:-

  • More abuse, sexual assaults, suicides, hunger strikes, protests, and self-harm
  • More mentally disturbed people, both asylum seekers and the workers in the detention centres with PTSD and the like.
  • Refoulment of genuine Refugees to their countries of origin, to then be tortured or killed. ( Syrians, Iraqis, Iranians, Hazaras and Rohingyais)
  • The complete international shaming of Australia
  • Possible investigation of Australia by the ICC.
  • Increasing numbers of acts of civil disobedience
  • Increasing claims for damages against the Australian Government
  • Damage to Australia’s tourism industry
  • Campaigns targeting Companies contracted by the Government to run and service the detention centres, such as Transfield Services, Wilson Security, Toll Holdings, SERCO, Qantas etc
  1. The Damage to Australia’s Democracy

The multitude of amendments to the Migration Act, along with a number of other pieces of legislation relating to Border Protection and asylum seekers pose a real threat to Australian democracy. The following are of particular note:-

  • Severely curtailing asylum seekers and refugees access to the courts and legal system to seek redress for incorrect assessments of their claims for protection.
  • The passage of the “Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload)” Bill 2014 by the Senate on December 4th 2014, gave the Minister of Immigration unfettered powers, with no checks or balances from the Courts over the treatment and lives of these refugees. The Coalition and the ALP stood by in abject silence, and allowed our precious democracy to be dismantled. History will judge this government harshly for these actions. It is only a small step for any minister to try to eliminate the oversight of the Courts, and give himself/herself absolute power, which as we know “corrupts absolutely”. No Minister should ever be above the Law.
  • The new secrecy provisions relating to all staff and contractors associated with the DIBP are a further example of the erosion of free speech. The Medical Profession have been particularly vocal in their opposition to this piece of legislation.
  • In a similar vein the AFP investigation of 8 journalists in recent times is yet another example of the threat to free speech.
  • The proposed legislation granting legal indemnity to all staff working in detention centres when they use force to maintain “good order” gives relatively untrained staff greater powers to use physical force than the AFP, with minimal oversight or supervision.
  • The use of quasi military secrecy provisions in relation to boat “turn backs” is completely at odds with a free society.
  • The operation of a dual standard legal system for asylum seekers and refugees in the community results in an individual being placed back in detention immediately he or she comes into contact with the police, regardless of whether the individual is found innocent or not. Free societies do not operate dual standard legal systems.
  • The pretence that mandatory detention is administrative detention is an untruth that is clear to anyone who has any experience of the reality of the Australian detention centres. These are prison camps by another name.
  • Free societies do not detain people for upwards of 7 years and deny them access to legal redress for wrongful detention. The fact that Australia has created a cruel legal framework for such detention does not make it acceptable in a free society.

In summary the political demands of successive Governments asylum seeker and refugee policies have resulted in major erosion of those aspects of Australia’s free society. These impact not only asylum seekers, but also many ordinary citizens.

  1. The Culture within DIBP

The creation of the DIBP and in particular the ABF has given rise to a quasi-military organisation (Note the “Black Shirts”) who at its heart has a culture of wishing to prevent refugees from arriving and seeking protection in Australia. The recent farce of the joint operation with the Victorian Police gives ample evidence of this. It is unjustifiable that they should be armed.

The new culture in DIBP has seen a large cohort of experienced senior staff, who were dedicated to helping asylum seekers and refugees, leave in a short space of time. DIBP is more interested in deporting and detaining asylum seekers than in integrating genuine refugees into Australian society.

The operation of Manus and Nauru RRPC’s are cloaked in secrecy so that the Australian public may not learn of the horrendous conditions in these “Gulags”.

No journalist is allowed to speak to asylum seekers who are in detention.

Dreadful things happen where there is no public scrutiny. Nauru and Manus RRPC’s bear testament to this.

  1. Claims for Damages against the Australian Government

It is inevitable that the Australian Government will face significant claims for damages from those who have suffered serious injury and harm at the hands of the Australian Government and it agents and contractors. There is currently no way that this can be avoided. There have already been significant sums paid to individuals as a result of legal action s seeking compensation for harm. There are currently class actions underway for a number of those already harmed as a result of their detention on Manus in particular. There are a number of instances where individual have been successful in seeking compensation for harm done to them in the on-shore detention centres. The financial exposure from such claims for damages increases daily the longer the current arrangements continue. It is reasonable to suppose that there will be a public outcry about this waste of public funds once the scale of these financial liabilities becomes more widely known to the Australian public. The only path available to cap these financial exposures is to rapidly close Manus and Nauru RRPC’s and empty the on-shore detention centres as far as possible

  1. Gap Analysis between the LNP and the ALP Policies

Both Labor and the Coalition are in general agreement on many of the key measures in place to deal with these issues, including mandatory detention for unauthorised boat arrivals introduced in the 1990s by the Keating Government; and offshore processing arrangements in the Pacific first introduced by the Howard government.

However, there are some policy differences, including whether asylum seekers should be offered temporary or permanent protection; whether boats should be intercepted in international waters and ‘turned back’; and what size Australia’s formal annual intake of refugees and other humanitarian entrants should be.

 

Policy ALP LNP
Off-Shore Processing Yes Yes
Mandatory Detention for those who arrive by boat Yes Yes
Boat arrivals deemed “illegal” or “unauthorised maritime arrivals” (UMA) Yes Yes
“no advantage principle”, and categorically no resettlement for UMAs in Australia Yes Yes
Temporary Protection Visas (TPV’s) No. Permanent Protection visas to be issued Yes
Support for ABF Act Yes Yes
Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015 Yes Yes
Support for the Bali Process Yes Yes
“Boat Turn backs” Yes , when safe to do so Yes
Increased funding for UNHCR Yes-$150m pa Yes $40m pa
Restoring the UN Refugees Convention in the Migration Act Yes No
Increased Humanitarian intake 27000 13750+ one of increase of 12000 Further increase over the next 4 years to 18750
Independent Advocate for children seeking asylum Yes No
90 day rule for refugee assessments Yes No
Independent oversight of RRPC’s on Manus and Nauru Yes No
Transparency on “Operational matters” Yes? No
On-water assessment of asylum seekers intercepted at sea Silent Yes
Compliance with all the relevant UN conventions No No

 

Examination of the above analysis shows that both major parties are aligned on the key elements of refugee policy. ie they have essentially arrived at the same place in the “race to the bottom” for electoral gain.

  1. Preventing People Smuggling (“Stop The Boats”)

The current policies for “stopping the boats” rely on physical interception and turning back boats, along with creating a deterrent, namely the RRPC’s on Manus and Nauru, and the barring of anyone arriving by boat from ever being granted a visa to reside in Australia. If success is crudely defined as eliminating boats reaching Australian territory then the policies have been successful. However a more holistic assessment of these policies would find then to have failed on the grounds of the cruelty and abuse that has been inflicted on people, the large majority of whom deserved Australia’s protection. In addition the enormous financial cost of these policies makes this approach hugely costly to the Federal Budget.

The “people smugglers business model” has to be dismantled by creating viable and credible alternatives for asylum seekers seeking protection. It is not suggested that Australia cease intercepting and turning back boats. It is proposed that Australia in conjunction with the UNHCR make available some 15,000 humanitarian places to be allocated to Asylum seekers in Malaysia and Indonesia. The UNHCR and DIBP would manage the processing and assessment of these asylum seekers in Malaysia and Indonesia. Such an approach will require the wholehearted cooperation of the Malaysian and Indonesian Governments. The adoption of such an approach will destroy the people smuggler’s business model. This in turn would allow the deterrent aspects of the current policies to be dismantled, and allow the closure of Manus and Nauru RRPC’s once and for all.

  1. The Economic Argument in favour of change

The 2015/16 Budget Papers indicate that Australia will spend $2.3 billion on detention and compliance-related programs for asylum seekers who arrived by boat. The cost of offshore processing is $810.8 million, and $1.49 billion for those currently residing in Australia. This includes the $1.12 billion for onshore detention.

Based on a revised set of refugee policies that would see the RRPC’s on Manus and Nauru closed, and a 70% reduction in the onshore detention expenditure, as a result of rapidly releasing detainees into the community, it should be possible to deliver a saving of some $1.85 billion. This assumes that there would be no reduction in the cost of interception and boat turn backs.

  1. A suggested way forward

The very striking alignment between the LNP’s and the ALP’s refugee policies provides an opportunity to adopt a bi-partisan approach to developing a suite of policies to replace the current flawed arrangements, as set out earlier in this paper. It is suggested that a bi-partisan approach is essential in order to de-politicise the whole subject of asylum seekers and refugees. Establishing such a bi-partisan approach is in the hands of the Government of the day and it is suggested that this be approached as a matter for discussion between the Leaders of the LNP and the ALP.

If such an approach were agreed then the program for dismantling the current arrangements and policies would have the following elements as a bare minimum:-

  1. Devise high level principals of a humane set of policies, that are fully compliant with Australia’s’ international obligations. This will require a carefully thought through narrative to be developed to reverse the years of demonising asylum seekers and refugees.
  2. Release all children and their families held in detention into community detention, whilst their final status is determined.
  3. Increase humanitarian visas to 35,000 from the projected 18750. The extra 15,000 to be allocated specifically to the UNHCR for Asylum Seekers in Malaysia and Indonesia. This will effectively put an end to the Indonesian people smugglers business. Refugees will therefore not travel by boats to Australia, given the very real prospect of being granted a visa for Australia by the UNHCR
  4. Close Manus and Nauru and bring all the detainees and refugees who have been released into the communities on Nauru and Manus, back to Australia.
  5. Commence meaningful discussions with all countries in the region and develop and put in place policies that reduce the “push factors” behind the refugee flows.
  6. Release al Asylum Seekers from the on-shore detention centres on permanent visas with work rights etc., on a priority basis.
  7. Restore full judicial oversight of all policies and actions of the Government, including a transparent judicial review of all ASIO’s adverse findings against a number of refugees in detention
  8. Repeal all of the legislation that has deprived both Asylum Seekers and Australians of their human rights.
  9. Legislate that no child may be held in detention for more than 3 days and, that subject to any adverse findings, no individual can be held in detention for more than 30 days whilst identity, health and security checks are completed.
  10. Re-instate the 90 day time limit for assessment of asylum seekers claims for protection.
  11. Close all detention centres that are no longer required.
  12. Conclusions

This paper argues that there is currently a window of opportunity before the next election to change the whole discourse, and policies in relation to asylum seekers and refugees. There has been a measurable shift in public opinion in favour of Australia changing its current harsh policies to one of a more humane approach.

                     It is for the Government to grasp the opportunity.

Politicians are free to choose their personal role in this shameful history.

Each Politician will have to choose as to whether they will be on the right side of history.