AUSTRALIA’S MALTREATMENT OF ASYLUM SEEKERS AND REFUGEES
by George Venturini * (Part one)
When [Prime Minister] Howard was leading our country, staffers in one minister’s office called themselves the KKK. Used in relation to asylum seekers, it meant ‘Keep them out, Kick them out, or Keep them in detention’. I have heard this more than once from reliable sources and I have no doubt that it is true.
~ Susan Metcalfe, author of The Pacific Solution (Melbourne 2010), an activist who has worked for many years as an asylum seeker and refugee advocate.
AUSTRALIA HAS ratified every possible, imaginable treaty and/or convention that any civilised country would want to be known to honour — and respected none of them in its maltreatment of asylum seekers and refugees.
It is correct that Australia does not generally agree to be bound by a treaty unless it is satisfied that its domestic laws comply with the terms of the treaty. Nevertheless, Australia considered itself bound by some basic instruments such as Article 14 of the Universal Declaration of Human Rights — a declaration adopted by the United Nations General Assembly on 10 December 1948. The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled. It consists of 30 articles which have been elaborated in subsequent international treaties, regional human rights instruments, national constitutions and laws. Article 14 proclaims:
(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.
(2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.
Together some of these treaties are referred to as the International Bill of Human Rights. Interestingly, Australia is the only one, among the Anglophone countries: Canada, New Zealand, the United Kingdom and the United States, not to have a Bill of Rights. According to the official view of the present political representatives of the two major parties, the Australian Labor Party – now in government – and the Coalition of the Liberal and National Parties, Australia does not need a Bill of Rights. The International Bill consists of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (I.C.C.P.R.) a multilateral treaty adopted by the United Nations General Assembly on 16 December 1966, and in force from 23 March 1976. It commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. As of March 2012 the Covenant had 74 signatories and 167 parties;and the International Covenant on Economic, Social and Cultural Rights (I.C.E.S.R.), a multilateral treaty adopted by the United Nations General Assembly on 16 December 1966, and in force from 3 January 1976. It commits its parties to work towards the granting of economic, social, and cultural rights to individuals, including labour rights and the right to health, the right to education, and the right to an adequate standard of living. As of July 2011, the Covenant had 160 parties. The International Bill is completed by its two Optional Protocols. After the Covenants had been ratified by a sufficient number of individual nations, the Bill took on the force of international law.Australia has ratified all of them.
Additionally, Australia has ratified a number of human rights instruments, including the following:
- Convention on the Prevention and Punishment of the Crime of Genocide (C.P.C.G.) (adopted 1948, entry into force: 1951)
- Convention Relating to the Status of Refugees (C.S.R.) (adopted 1951, entry into force: 1954)
- Convention on the Elimination of All Forms of Racial Discrimination (C.E.R.D.) (adopted 1965, entry into force: 1969)
- Convention on the Elimination of All Forms of Discrimination Against Women (C.E.D.A.W.) (entry into force: 1981)
- Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (C.A.T.) (adopted 1984, entry into force: 1987)
- Convention on the Rights of the Child (C.R.C.) (adopted 1989, entry into force: 1990)
- International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (I.C.R.M.W.) (adopted 1990, entry into force: 2003)
- Convention on the Rights of Persons with Disabilities (C.R.P.D.) (entry into force: 3 May 2008)
- International Convention for the Protection of All Persons from Enforced Disappearance (adopted 2006, entry into force: 2010).
While Australia has agreed to be bound by these major international human rights treaties, they do not form part of Australia’s domestic law unless the treaties have been specifically incorporated into Australian law through legislation. Section 51(xxix) of the Australian Constitution, the ‘external affairs’ power, gives the Commonwealth Parliament the power to enact legislation that implements the terms of those international agreements to which Australia is a party. Some provisions of a treaty may, however, already exist in national legislation. For instance, many of the provisions contained in the Convention on the Rights of People with Disabilities are mirrored in Australian law through the Disability Discrimination Act 1992 (Cth).
This principle reflects the fact that agreeing to be bound by a treaty is the responsibility of the Executive in the exercise of its prerogative power, whereas law making is the responsibility of the Parliament.
In Australia, all ‘unlawful non-citizens’ must be detained and, unless they are granted permission to remain in the country, through the grant of a visa, they must be removed as soon as practicable. This mandatory detention policy was set into legislation with the support of the two major parties – Labor and Liberal + Agrarian Socialist – in 1992, and endorsed through a major parliamentary inquiry in 1994. Mandatory detention applies to visa ‘over-stayers’ as well as unauthorised arrivals. However, people who arrive legally and overstay their visas, and who apply for refugee or other visas, can be given bridging visas. Unlike boat people, they are not held in detention for the duration of their refugee claims assessment.
The policy of mandatory detention in Australia – that is the legal requirement to detain all non-citizens without a valid visa – was introduced by the Keating (Labor) Government in 1992 in response to a wave of Indochinese boat arrivals.
Pursuant to the policy, it is a requirement that ‘unlawful non-citizens’ – nationals from another country without a valid visa – in Australia’s migration zone be detained, unless they have been afforded temporary lawful status through the grant of a bridging visa while they make arrangements to depart or apply for an alternative visa. Most are usually granted temporary lawful status in this manner, but if an ‘unlawful non-citizen’ is considered to be a flight or security risk, or refuses to leave Australia voluntarily, s/he may be refused a bridging visa and detained in preparation for her/his removal.
Until recently, all asylum seekers who arrived without authority by boat – referred to as ‘irregular maritime arrivals’ – were detained and usually transferred to Christmas Island while their reasons for being in Australia were identified. The policy is in the process of changing.
The main focus of Australia’s mandatory detention policy is to ensure that:
1) people who arrive without lawful authority do not enter the Australian community until they have satisfactorily completed health, character and security checks and been granted a visa; and
2) those who do not have authority to be in Australia are available for removal from the country.
While Australia’s detention population is comprised of irregular maritime arrivals, some visa over-stayers and certain other ‘unlawful non-citizens’, it is the often lengthy mandatory detention of asylum seekers who have arrived unauthorised by boat which attracts the bulk of the attention in the public debate.
Australia is still the only country where immigration detention is mandatory for all unlawful non-citizens — including asylum seekers.
Detention policy in Australia began to evolve in response to the arrival of the first wave of boats carrying people seeking asylum from the aftermath of the Vietnam War. Over half the Vietnamese population was displaced in those years and, while most fled to neighbouring Asian countries, some embarked on the voyage by boat to Australia. It is estimated that about 1.8 million people departed Vietnam in and after 1975, and it is probable that there were at least 3 million departures from the region over a twenty year period. In comparison, a relatively small number embarked by boat to Australia; the first wave of Indochinese boat arrivals from 1976 to 1981 included about 2,100. Between 28 November 1989 and 27 January 1994 eighteen boats arrived in a second wave carrying 735 people — predominantly Cambodian nationals.
The first wave of ‘boat people’ was initially received by the Australian public with sympathy; there was a general assumption that these arrivals were ‘genuine’ refugees and most were granted refugee status relatively quickly. However, continuing arrivals became a matter of increasing concern with what would generously be referred to as ‘public discussion’ soon focusing on such issues as rising unemployment and the impact of people ‘jumping the immigration queue’. ‘Respecting the queue’ is one of the few fundamental tenets of ‘Australian way of life’. The other is ‘playing the game’ — an almost untranslatable expression which has something to do with cricket, at the essence of life ! Of course, the foundation elements of that life could be listed under ‘s’: sun, sand, surf, sports and soldiering — a lot of it, as it becomes self-designated inheritors of the glorious British past. Such esses are generously distributed under the exclusive word of ‘mateship’. The concept (?) is inexplicable, other than to say that it describes a communion shared by men only — sheilas (women) cannot partake of it. Spiritual poverty, a sense of illegitimacy of tenure because of the original invasion and subsequent devastation of the Indigenous People, self-inflicted ignorance, and a limited but strongly authoritarian view of life have from the beginning of the penal colony established a complex attitude to ‘the other’ which vacillates from an intense dislike of ‘different people’ to an open, often mutating, but never abandoned prejudice against classes of people. That explains the substantially racist nature of the place and the occasional xenophobic explosions.
In the late 1970s, three Australian facilities could be described as immigration detention centres, in Melbourne, Perth and Sydney. However, all were designed to detain short term compliance cases – such as visa over-stayers – and only the infrastructure in Sydney was considered adequate to accommodate the new arrivals. The initial detention centres would soon be transformed in veritable concentration camps — barbed wire and all. At the beginning, most of the Indochinese asylum seekers arriving from 1976 to 1981 were housed in Sydney’s Westbridge Migrant Centre – now called Villawood – together with other refugees and humanitarian arrivals.
The initial wave of boat people comprised 56 boats from Vietnam carrying about 2,100 people. The first arrived in Northern Australia in April 1976 and the last in August 1981. There were few concerns within the Government or the Department of Immigration about the ‘bona fides’ of these boat people; they were fleeing a regime with which Australia had been at war for some ten year. They were ‘processed’ – the bureaucracy’s favourite word! – for permanent residence immediately on arrival. These mainly Vietnamese boat people were held in ‘loose detention’ in an open part of Westbridge, together with migrants who had been granted visas under the humanitarian and refugee programmes. They were not allowed to leave the Centre during ‘processing’ and had to report for rollcall daily.
These initial difficulties led to the enactment of the Migration Legislation Amendment Act 1989, which introduced changes to the system of ‘processing’ boat arrivals and allowed officers to arrest and detain anyone suspected of being an ‘illegal entrant’. Detention was still discretionary and not mandatory until 1992, but the changes made in 1989 effectively introduced a policy of ‘administrative detention’ for all people entering Australia without a valid visa, or any others unlawfully present in the country, while their immigration status was resolved.
The second wave of boat people was held in detention in Villawood — which was still unfenced.
The next wave of boat people, mainly from Cambodia, began to arrive in Australia from 28 November 1989. Passengers on the first of these boats were held for a period of three weeks at a holding centre near Broome, in northern Western Australia, ordinarily used for illegal fishermen awaiting trial. They were subsequently moved to Westbridge. As in the case of the earlier Vietnamese boat people, they were detained in an unfenced area, but were not permitted to leave the centre and had to report daily to the Australian Protective Service.
However, most of the detainees of the second wave were not ‘processed’ quickly and – for good measure – all remained in custody for the entire period of their refugee determination process. Between November 1989 and January 1994, eighteen boats arrived carrying mostly Cambodians, Chinese and Vietnamese nationals, with one third remaining in detention until the end of this period — some of whom were in custody for over four years.
In response to this second wave of boat arrivals the Port Hedland Immigration Reception and Processing Centre opened in 1991 in order to accommodate some of the – mostly Cambodian – asylum seekers. The removal of asylum seekers to this relatively isolated centre on the site of a disused mining camp in north-west Western Australia attracted criticism from the Refugee Council of Australia amongst others.
As a result of the enactment of the Migration Legislation Amendment Act 1989, numbers of immigration detainees began slowly to increase by leaps and bounds. For example, on 1 January 1985, only five people were being held in immigration detention centres but, by June 1992 – after the second wave of Indochinese boats had begun to arrive – there were 478 people in immigration detention, of whom 421 had arrived by boat.
In 1989, the average length of stay in immigration detention was 15.5 days, but for the Cambodian asylum seekers who arrived by boat in 1989, the average length of stay – until a primary decision was made on refugee status – proved to be 523 days.
While the main factor contributing to the increased use of immigration detention was the arrival of several boats carrying Indochinese asylum seekers fleeing the region in the aftermath of the Vietnam war, there were also ‘unlawful non-citizens’ who had arrived in the country originally by air. This was partly due to the fact that in the 1980s and 1990s there was pressure on the Australian Government to address concerns over the number of ‘undocumented migrants’ or visa over-stayers in the community — a sizeable number of 90,000 in 1990. The 1990 Joint Standing Committee on Migration Regulations report noted the issues of public concern. The control of ‘unlawful non-citizens’ had taken on a new urgency because the problem was coupled with or compounded by fears of an increased movement of asylum seekers. The two issues were to be seen as different, but the presence of unlawful entrants had come, whether correctly or not, to symbolise the inability of governments to control their borders, and in Australia’s case, to protect the integrity of its immigration programme.
Fear has dominated the life of the country from the very beginning. ‘Border control’ became an obsession and an easy electoral appeal.
So it was in 1992 that the policy of mandatory detention was introduced by the Keating (Labor) Government, with the support of the Opposition, through the enactment of the Migration Amendment Act 1992. Mandatory detention was initially envisaged as a temporary and ‘exceptional’ measure to deal with a particular class of ‘designated persons’ —Indochinese unauthorised boat arrivals. In his second reading speech, the Labor Minister for Immigration stated quite firmly the Government’s determination
...that a clear signal be sent that migration to Australia may not be achieved by simply arriving in this country and expecting to be allowed into the community.
The words became a battle-cry for both sides of Her Majesty’s Government in Australia. Nevertheless, it was said that the legislation was only intended to be an interim measure, a proposal which was directed ‘principally to a detention regime for a specific class of persons’, and that, as such, it was ‘designed to address only the pressing requirements of the current situation’.
Detention of unlawful arrivals has not changed in twenty years!
Mandatory detention was subsequently extended to all ‘unlawful non-citizens’ with the enactment of the Migration Reform Act 1992, which came into effect on 1 September 1994. The Act established a new visa system making a simple distinction between a ‘lawful’ and ‘unlawful’ non-citizen. Under Section 13 of the Act, a migration officer had a duty to detain any person suspected of being unlawful. Quite importantly, the Act removed the 273 day detention limit which had applied under the Migration Amendment Act 1992. Mandatory detention became indefinite under the law. Over-stayers could apply for a bridging visa which allowed them to stay in the community while their claims were assessed. The Act had the support of the Coalition Opposition.
In an acknowledgement of the high costs of mandatory detention, and by way of discouraging further ‘unlawful arrivals’ the Act also introduced detention charges – called detention debts – whereby an ‘unlawful non-citizen’ was liable for the costs of her or his immigration detention.
In his second reading speech Minister Hand provided the Government’s rationale for some of the amendments. He proposed
...a range of measures to enhance the Government’s control of people who wish to cross our borders. The Bill sets out more effective means of regulating entry, detention and removal of people who do not establish an entitlement to be in Australia. ... Unlawful non-citizens who satisfy prescribed criteria will be able to acquire lawful status and release from detention by the grant of a bridging visa. Bridging visas will not be available to people who arrive in Australia without authority.[meaning by that: boat people] Depending on their circumstances, they will be immediately removed from Australia or will be subject to detention until any claim they wish to make has been resolved. When a person who is in Australia unlawfully has exhausted all available application and merits review entitlements, the law will require that person to be removed as soon as practicable.
The Minister made it quite clear: the Government did not intend to detain people indefinitely and, initially, a time limit was given.
Still, it is beyond comprehension that the Minister could say without blushing that:
Australia will, of course, continue to honour its statutory and international obligations as it always has done.
Or that he went on declaring that:
Any claims made by these people will be fully and fairly considered under the available processes, and any persons found to qualify for Australia’s protection will be allowed to enter. Until the process is complete, however, Australia cannot afford to allow unauthorised boat arrivals to simply move into the community.
Here was the Minister, reassuring Parliament that:
The Government has no wish to keep people in custody indefinitely and I could not expect the Parliament to support such a suggestion. Honourable members will note that the amendment calls for custody for a limited period. The period provided for in the amendment is 273 days — this translates into nine months.
In fact, however, as already noted, the 273 day time limit was subsequently removed by the Migration Reform Act 1992 and, with indefinite detention permitted under Australian law, many instances of prolonged detention have occurred over the years.
Successive governments have argued the need to ‘retain mandatory detention to support the integrity of Australia’s immigration programme’ and ‘ensure the effective control and management of Australia’s borders’. As a result, while many changes and reforms have been introduced by both sides of politics since the 1990s, Australia’s mandatory detention policy essentially remains unchanged.