My thoughts on “bail” for asylum seekers

John Quiggin has suggested that detained asylum seekers should be released on “bail” pending finalisation of their visa applications and appeals. It’s a suggestion that I’ve also previously made, although in the context of implementation of a revived “Australia Card” secure national photo ID system.

If production of the “Australia Card” was required for employment, accommodation and accessing government services (by everyone, not just foreigners), it would be difficult if not impossible for absconding failed asylum seekers to maintain themselves in the long term. Sweden has such a photo ID system, and experiences much lower asylum seeker absconding rates than Britain, despite both countries eschewing the sort of punitive mandatory detention regime which distinguishes Australia (along with the US).

In Britain around 2/3 of failed asylum seekers abscond and disappear into the “black” economy. To give you an idea of the scale of the problem, Britain has something like 80,000 refugee applications per year (ballpark estimate), of which typically 80-85% are unsuccessful (incidentally, Britain is significantly less generous in acceptance of asylum claims than Australia, where the long-term success rate has always hovered around 30%). Thus, somewhere around 40,000 people every year disappear into Britain’s “black” economy. We could expect similar absconding rates if migration detention was completely abolished here without implementing a Swedish-style photo ID system. In fact the absconding rate might be even higher than Britain because of Australia’s large geographical size and mobile and highly urbanised population (making disappearance and anonymity relatively easy).

But does this matter? Martin Pike suggests in John Quiggin’s comment box that “on the whole they are seen as an economic boon.” You’d have to wonder just who Martin is talking about. Desperate illegal immigrants confined to working in the “black” economy for fear of detection and deportation are certainly a boon to organised crime and operators of “sweat shop” factories and brothels, but whether they’re regarded so benignly by the rest of the community is questionable to say the least. Moreover, few would dispute that Britain has significantly higher levels of racial and social tension than Australia, although I certainly wouldn’t argue that absconding asylum seekers are the only (or even a dominant) cause.

There are also several critical social and historical distinctions between Britain and Australia. Most importantly, Australia still has a fairly large-scale racially non-discriminatory migration program. Britain has no migration program at all: it isn’t looking to increase its population. Of course, whether Australia should be doing so is a live policy issue that we should discuss one day, but not in this post. Australian politicians operate under a constraint their British counterparts don’t have: the need to maintain public support for the migration program. The Pauline Hanson One Nation phenomenon, and racial tensions in south-western Sydney in the wake of the Bilal Skaf rape cases, both illustrate the fragility of public support for migration, and the potentially explosive social consequences if that support is undermined. Australia is arguably the world’s most successful and harmonious multicultural melting pot, but wise policy makers don’t take that harmony for granted.

On the other hand, Canada is an example that suggests we probably don’t need to be anywhere near as paranoid about the dangers as the current harsh mandatory detention regime suggests we are. Canada also has a large-scale migration program and a large, relatively lightly-populated land mass. But its acceptance rate for asylum seekers is around twice as generous as Australia’s (at around 60%), and it doesn’t impose universal mandatory detention on applicants. That generous approach doesn’t seem to have converted into either major racial and social tension or decreased public support for the general migration program.

On the other hand, Canadians might well regard themselves as more secure generally than Australians, given their geographical location next to the world’s only current super power. The “yellow peril” fear remains fairly deeply ingrained in the psyches of many Australians. Moreover, it’s partly rooted in the geographical reality of our location very close to the densely populated (and much poorer) nations of south-east Asia. However much the “socially progressive” classes might decry it, this is a reality that any politician who wants to survive must keep in mind (although recent surveys suggest that Australians are now somewhat less fearful, at least of invasion, than has previously been the case). Although John Howard has taken exploitation of xenophobia to new depths of cynicism, it was the Hawke government that first implemented the mandatory detention regime way back in 1991.

Although I support implementation of a national photo ID system, and don’t think there are any compelling civil liberties arguments against it, the reality is that proposing such a reform would be a “courageous” move in a Sir Humphrey Appleby sense, so it isn’t going to happen any time soon.

Nevertheless, I think the existing regime of ‘concentration camps’ in isolated desert locations (Baxter et al) is a repugnant measure of surplus repression. It was actually first implemented in 1990-91 in response to the efforts of a group of volunteer Darwin lawyers who banded together (with this armadillo as the ‘solicitor of record’) to assist a large group of Cambodian asylum seekers who had arrived here fleeing the post-Pol Pot chaos in that country. They were initially accommodated in fairly open facilities at Curragundi Scout Camp at Darwin River Dam, where we Darwin lawyers would visit them each day after work to take statements and prepare their protection visa applications. Other community groups also had quite liberal access, and the Cambodian asylum seekers enjoyed a high level of support and compassion from the Darwin community generally. I used often to take my then 2 year old daughter Rebecca down to Curragundi with me, and she would play happily with the Cambodian kids while I took statements from their parents detailing the horrors they had experienced at the hands of Pol Pot and the new (and still current) Hun Sen regime.

This cosy and welcoming situation was one that sent DIMIA and its then Minister Gerry Hand into fits of apoplectic fury. Hand is alleged to have named the cows at his hobby farm after us volunteer Darwin lawyers! Maybe he still milks a cow named Parish for all I know. Hand ordered his Department to implement urgent measures to get the asylum seekers away to a location where volunteer lawyers and other do-gooders couldn’t easily get access to them. Hence the Cambodians were hastily moved to remote Port Hedland, with overflow facilities at the even more remote Curtin airbase near Derby. Later, another permanent detention facility was established at Woomera in the South Australian desert. Now both Woomera and Port Hedland have been superseded by the Baxter facility near Port Augusta. All of these detention centres were deliberately located in remote and inaccessible places, where a Darwin-style warm welcome would not be extended to ‘boat people’ asylum seekers.

The bizarre thing about this entire program is that, except for a relatively short period of time in 2000-2001, the number of “boat people” asylum seekers was a relatively small proportion of the total number of onshore asylum seekers. Throughout the 1990s, the number of “boat people” arrivals was a few hundred per year, whereas several thousand each year arrived on valid tourist or student visas and then made protection (refugee) visa applications on arrival. This much larger group of “non-boat people” asylum seekers has never been interned in concentration camps while being processed, and still isn’t. You can’t help wondering why we need to impose drastic deterrent detention on the boat people, but not on those who obtain visas (no doubt often under false pretences) and then apply for refugee status as soon as they arrive here?

I accept that there is a need for a supervisory regime to ensure that the great majority of unsuccessful asylum seekers remain available for deportation; a regime that keeps absconding under fairly tight control. But surely a much more open, congenial regime could achieve that end, where applicants are accommodated in reasonably open facilities in capital cities and larger regional centres with decent medical and community facilities, where children can attend local schools and families go shopping together and so on.

It might be necessary to impose a closer supervision regime just before and after adverse visa and appeal decisions, because that’s when the absconding risk is at its greatest. But there’s no obvious reason, apart from surplus repression motivated by xenophobic bastardry, why the current punitive regime should continue. There is no reason to expect that a more relaxed and humane supervisory regime should result in a return to the anomalously high “boat people” arrival rates of 2000-2001, given continued Indonesian co-operation with Australian authorities.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Geoff Honnor
Geoff Honnor
2022 years ago

I understand that Canada does impose mandatory detention when people present, claiming asylum, without documentation – and most Canadian-aspirant asylum-seekers present at US border crossings which might tell us something about the illegals absorption factor which the US offers to Canada

I understand that the overwhelming majority of our pre-Tampa boat people were also in an undocumented situation. It’s much more problematic for an airline arrival to do this because documentation is obviously needed to embark and disembark. Hence, one of the significant disparities in relative treatment, I’d suggest. To arrive by plane and make application on arrival might – or might not – say something about the prospective merits of one’s case vis a vis overflying half the world, disembarking in Indonesia, destroying one’s identifying documentation, boarding a boat of dubious provenance and landing illegally in Oz.

I have no difficulty understanding why people want a better life nor do I have any difficulty in understanding that we set the migration approval criteria barrier too high to accommodate the vast mass of those who might wish to come here to avail themselves of that opportunity. To digress a tad, is there not an ethical issue with, say, Indian docs getting residency in Australia because no-one local wants to work in Coonabarabran, when India could sorely do with more docs itself?

I also recognise that the international processes required to substantiate refugee/asylum seeker status – and then to provide resettlement – grind painfully slow.

I don’t however have ‘the answer.’ At least, not an easy one.

I guess I’m also inclined to place a caveat on your proposal, Ken, in relation to those who front up without identifying documentation. Do you believe that they should be permitted to be at liberty? One thing I am clear on is that my views aren’t motivated by “xenphobic bastardry.” Nor do I think I’d be susceptible to that line of thinking. Howard’s “We decide who comes here” is frequently brandished as a worst-practice exemplar of that kind of thinking but I always thought he was stating the blindingly obvious. What nation-state doesn’t reserve the right to decide who enters it?

Ken Parish
Ken Parish
2022 years ago

Geoff

I’m not suggesting that we shouldn’t detain people until their identities, criminal, security and health status have been verified. Just about all countries do this. I suspect that’s what you’re talking about in relation to Canada. However, typically those issues are resolved within a couple of months of arrival (even with most applicants who arrive without identity papers), and countries like Canada then release them while their asylum applications are processed on their merits and they negotiate an appeal process (where necessary).

Australia by contrast continues to detain ALL illegal arrival asylum seekers throughout the process, even where no concerns about identity, criminal, security or health status are held. It’s that surplus repression aspect of the policy that I’m talking about. Nor am I suggesting that people should be fully released on “bail” into the general community, as John Quiggin proposes. Instead I’m suggesting a more open, congenial form of detention, with closer supervision at critical times when applicants are to be notified of adverse application or appeal decisions (beause that’s when they’re most at risk of absconding).

Thus, I’m in no sense suggesting an open door migration policy, nor do I decry the “we will decide who comes here …” message per se, although I do decry the calculatedly xenophobic overtones that were undeniably present in the way John Howard deployed that message for electoral purposes. I’m simply suggesting that there are less extreme, more humane methods of administering a sustainable migration/border control policy. It’s a classically centrist response.

Stan
Stan
2022 years ago

I get the impression that Australia’s response is slowly evolving towards your “classically centrist”

Frank Quinlan
2022 years ago

I dont have any practical experience in the asylum seekers debate other than being a ships master who has picked up stowaways in foreign ports ,detected them at sea and overcarried them back home here to Australian ports where I have attempted to discharge them ,mostly successful I add .
A few details….I was until seven years ago Captain(Master)of Australian cargo ships to Asia,Europe etc and return .I have some legal experience in the handling of their entry into Australia as well as the practical side of prevention,detention,carriage of ,handling,(putting them to work on the ship).My ships have been boarded by pirates in Asia,been hassled by officials around Indonesia,Singapore,with stowaways wanting to travel in between those countries .Some of the stowaways been Russian /Chechnian soldiers,Roumanian refugees,Turkish Airmen,you name it, the buggars seemed to love my ships and the food we doled out to them.I could go on .If any of this is interesting or of any use ,please email me .I laugh a bit when I read the heartrending stories re asylum seekers ,because they are not all people to be pitied and helped unconditionally .

Frank Quinlan

Ken Parish
Ken Parish
2022 years ago

I laugh a bit when I read the heartrending stories re asylum seekers, because they are not all people to be pitied and helped unconditionally.

Of course not Frank, and I’m not suggesting otherwise. In fact the whole point of this post was to suggest that we need a more mature, nuanced, sophisticated approach rather than continually resorting to primitive sloganeering. But at least some of the asylum seekers, and a majority of the arrivals from the Middle East in recent years, have in fact been genuine refugees and have been eventually assessed as such by our own government’s processes. Given that unavoidable fact, it’s unacceptable to imprison all these people, especially children, in harsh conditions in remte locations, when there are other viable and less draconian alternatives that would equally serve the undoubted public interest in national security, border protection and a sustainable immigration program.

BTW Frank. I’d be interested in publishing your narrative account of your experiences and observations of life as a merchant captain, with particular focus on people smugglers, pirates, stowaways etc., if you can be bothered taking the time to write it down. I bet you have some really fascinating anecdotes.

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