Today’s report on asylum seeker policy by Prime Minister Gillard’s Expert Panelseems so far to have received a more positive response than I expected it would, including from the Abbott Coalition. Mind you, that mostly seems to be because Abbott’s Immigration spokesperson Scott Morrison has decided to spin it misleadingly and mischievously as supposedly largely endorsing the Howard government’s policies.
A more interesting question as far as I’m concerned is whether the Expert Panel’s report makes sense from a policy viewpoint. My own preliminary assessment falls somewhere between the enthusiastic endorsement of the Labor government and the outright condemnation of the refugee and human rights lobbies. There are numerous positive, constructive recommendations, not least an increase in Australia’s overall humanitarian intake to 20,000 and eventually 27,000 annually (a move I have been advocating for some time).
However the key problem with the recommendations is that asylum seekers arriving by boat are to be subjected to a “no advantage” principle to deter them from enlisting with the people smugglers. It may well be necessary to have some sort of deterrent component to Australia’s policy, but it must not only be workable but conform with reasonable human rights standards. That’s where the Panel’s recommendations fall down as presently formulated:
- As far as I can see the Expert Panel report does not clearly define what it means by the “no advantage” principle;
- The Report recommends only 3,800 refugees be taken each year from South East Asia (out of 20,000, rising over time to 27,000);
- There are currently more than 100,000 asylum seekers in Malaysia alone;
- Thus even if all 3,800 come from Malaysia that implies that the current backlog will take at least 27 years to clear;
- Does the “no advantage” principle as conceived by the Expert Panel therefore require all boat arrivals to remain in migration detention on Nauru or PNG for 27 years?
Clearly any such proposition is neither workable nor humane. Moreover it isn’t likely to fool the people smugglers or their customers for very long. Just as they eventually began to wake up to the fact that the Howard government was quietly letting about 70% of Nauru detainees into Australia, a similar unravelling process is inevitable over time with the Panel’s proposal.
However, if the government were to tweak the Panel’s recommended numbers substantially we might have the core of an approach that could work. First, we should immediately increase the total humanitarian intake to 30,000 (the Panel recommends increasing it to 27,000 over a few years). That is quite manageable and indeed only 10% of Australia’s current combined annual intake of permanent migrants and 457 work visa holders. This 30,000 intake would be allocated as follows:
- 12,000 from Malaysia and Indonesia. That would clear the current backlog within about 8 years and provide a powerful incentive for asylum seekers to wait and apply offshore rather than enlist with the people smugglers. In other words, we would be creating a genuine semi-orderly “queue” for the first time.
- 12,000 from the Middle Eastern countries of first asylum from where most of our boat arrivals set out. That should largely avoid unintentionally setting up Malaysia as a transit “magnet” for asylum seekers because our policies have made it the sole or predominant launching pad for relatively express processing into Australia.
- 6,000 from Africa, many of whose refugees are the most desperately in need of durable asylum. That is approximately the same number that Australia currently takes each year.
However, although I think this would be both a workable and humane policy approach, the Panel’s proposal for reviving some version of the old Pacific Solution device of prolonged migration detention on Nauru/PNG might well encounter serious constitutional problems flowing from separation of powers and Chapter III of the Constitution.
A constitutional problem?
Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1 dealt with the Keating government’s initial version of universal mandatory detention of asylum seeker boat arrivals. The law was challenged inter alia as offending separation of powers because detention was authorised (as it still is) at the sole behest of the Executive government. As Brennan, Deane and Dawson JJ explained:
There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character. The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth. That function appertains exclusively to … and “could not be excluded from” … the judicial power of the Commonwealth. That being so, Ch.III of the Constitution precludes the enactment, in purported pursuance of any of the sub-sections of s.51 of the Constitution, of any law purporting to vest any part of that function in the Commonwealth Executive.
In exclusively entrusting to the courts designated by Ch.III the function of the adjudgment and punishment of criminal guilt under a law of the Commonwealth, the Constitution’s concern is with substance and not mere form. It would, for example, be beyond the legislative power of the Parliament to invest the Executive with an arbitrary power to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt. The reason why that is so is that, putting to one side the exceptional cases to which reference is made below, the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt. Every citizen is “ruled by the law, and by the law alone” and “may with us be punished for a breach of law, but he can be punished for nothing else” …
However, Their Honours then went on to carve out an exception for immigration detention of aliens by the Executive government, concluding that Constitution s51(xix)(the aliens power):
encompasses the conferral upon the Executive of authority to detain (or to direct the detention of) an alien in custody for the purposes of expulsion or deportation. Such authority to detain an alien in custody, when conferred upon the Executive in the context and for the purposes of an executive power of deportation or expulsion, constitutes an incident of that executive power.”
In other words, immigration detention was not “punitive” in nature but merely incidental to the Executive government’s power to exclude aliens.
That principle was later taken to what many lawyers regard as absurd lengths in Al-Kateb v Godwin (2004) 219 CLR 562, where the majority held that a rejected asylum seeker was still being detained “for the purposes of expulsion or deportation” even though he had consented to return to his country of origin (Israel) but it refused to accept his return. Detention had therefore in a practical sense become indeterminate and potentially very long term.
The Chu Kheng Lim principle of supposedly non-punitive Executive detention is again under challenge in a matter currently reserved before the High Court called Plaintiff M47/2012 v Director General of Security. The case deals with the situation of persons who have been found to be genuine refugees (and therefore unable to return to their country of origin) but remain in permanent immigration detention because they are subject to effectively non-appellable adverse ASIO security assessments. One of several arguments advanced by counsel for the plaintiff is that ongoing detention at Executive behest in those circumstances can no longer plausibly be labelled as “for the purposes of expulsion or deportation”.
However, the situation of persons found to be genuine refugees but still detained on Nauru for 8 years or more under the Expert Panel’s proposal is arguably even more extreme. Not only would such people by definition be genuine refugees and therefore not legally liable to deportation from Australia (had they not been shanghaied to Nauru before entering an artificially confined migration zone) as Mr Al-Kateb was, but they also would not be the subject of adverse security assessments, a factor which at least arguably lends a plausible executive flavour to decisions concerning people like M47. It would be difficult to argue in relation to genuine refugees detained for a prolonged period on Nauru that their detention was anything other than punitive in nature.
It might be possible to avoid such a legal consequence if Nauru or Papua New Guinea could be persuaded to agree to host a reasonable and humane form of non-custodial accommodation for these people where they are free to mingle with the local community while waiting out the “no advantage”period. However whether any such agreement could actually be reached is highly questionable.
The Panel’s specific recommendations for Nauru are:
- treatment consistent with human rights standards (including no arbitrary detention);
- appropriate accommodation;
- appropriate physical and mental health services;
- access to educational and vocational training programs;
- application assistance during the preparation of asylum claims;
- an appeal mechanism against negative decisions on asylum applications that
- would enable merits review by more senior officials and NGO representatives with
- specific expertise;
- monitoring of care and protection arrangements by a representative group drawn
- from government and civil society in Australia and Nauru; and
- providing case management assistance to individual applicants being processed
- in Nauru.
If the government of Nauru agrees to having indeterminate numbers of asylum seekers/refugees in open community accommodation for years on end then that probably would avoid the Chapter III problem discussed above.11. KP: Mind you, I’m not completely certain about that. Ask yourself whether transporting British convicts to New South Wales and keeping them there in 1788 amounted to imprisonment? [↩] However I doubt that the Gillard government has undertaken discussions with Nauru yet. Unless the new policy is instantly successful in stopping the boats, I doubt that the 10,000 or so citizens of Nauru will be over-excited about the prospect of sharing their tiny island with a similar number of community-based refugees. Impacts on their lives would be very large. Reaching agreement may be considerably more difficult than many Australian commentators seem to be assuming.
What are the political/tactical implications?
It’s hard to believe that Gillard and Bowen would not be aware of the constitutional danger outlined above. After all it’s hardly constitutional rocket science. Why therefore has Cabinet publicly endorsed the Panel’s recommendations with such alacrity? Could it be a Machiavellian manoeuvre?
In one sense the Panel’s recommendations are sufficiently close to the Abbott Opposition’s position as to lure Scott Morrison into openly boasting to that effect. On the other hand they’re sufficiently compassionate (not hard-hearted) as to have attracted a very positive initial reaction from both media and Independents like Rob Oakeshott.
Where does it go from here? I suspect Abbott will ultimately decide still to oppose the legislation Labor will again introduce to implement the Panel’s recommendations. He will insist on “tow back the boats” despite the fact that a Panel including the former Chief of Australia’s armed forces has said it can’t currently work, and will insist on Temporary Protection Visas despite the fact that the Panel’s recommendations are almost as hard-hearted as that in proposing to exclude boat arrivals from family reunion eligibility. Abbott’s position in that situation will look even more intransigent and pointlessly destructive than it already does. Maybe even the most obtuse political journalist will begin portraying him rather more skeptically.
On the other hand maybe the Coalition might even vote for Gillard’s amendments. We would then have a regime which, however dubious on human rights grounds, would probably stop or drastically slow the boats at least until the High Court hands down its decision on the inevitable constitutional challenge. If the challenge succeeds Abbott’s core position (the Coalition’s policy worked and Labor was incompetent to abandon it) will be revealed to all but the most partisan or obtuse as totally misconceived. If the constitutional challenge fails Gillard will have a “solution” which (again however dubious on human rights grounds) will “stop the boats” for a couple of years anyway which is good enough from her viewpoint.
In other words, Labor may well take the view that all of the above possible outcomes are an improvement on where they’ve been on asylum seekers until now, at least from a purely political/tactical perspective. I rather hope that they eventually reach a rather more principled position than that and adopt something resembling the suite of measures discussed above.