The hard-headed realist’s case for abolishing universal detention of “boat people”

It always seems to be two steps forward and then two back with Australia’s asylum seeker policy.  In the wake of the High Court’s M61/M69 decision, DIAC has apparently begun offering all offshore asylum seekers who have been refused refugee status a renewed assessment and presumably merits review if necessary. They really didn’t have much choice because, as I suggested in a previous post, every single “offshore” asylum seeker assessment is affected by the fatal errors of law identified by the High Court.

Whether these renewed assessments will result in different outcomes remains to be seen. As I explained, it will be necessary for DIAC to provide all applicants with access to any general country information likely to be taken into account adverse to their application.   Apparently the success rate of applications has fallen in recent months from around 80% to 50%, since processing of Afghan and Sri Lankan applications resumed after the pre-election suspension of processing stunt .  That dramatically lower success rate may have something to do with the simmering discontent in detention centres in recent days.  It’s rumoured that the lower success rate results from assessors relying on more “positive” country information reports deeming a greater number of regions in both Sri Lanka and Afghanistan to be safe.  Applicants’ capacity to challenge the accuracy of those assessments may change the situation from now on, however, and is certainly likely to prolong the assessment and review process.

However, at the same time DIAC was granting applicants renewed assessments it was also emphasising that nothing fundamental had changed:

The Government says it will not be changing its policies or the way it handles asylum seeker cases. It says people can expect more frustration and tension as more asylum seekers have their refugee claims rejected and are repatriated.

Surely the government should now at least be asking itself whether it’s time for a major change in policy direction, or at least revisiting the fundamental assumptions on which the whole edifice of mandatory universal detention is based. There are three major motivating factors underpinning the policy:

  1. To deter boat arrivals by making it as difficult as possible for them to access the full range of legal assistance or indeed to access judicial review at all;
  2. In the case of both the Howard government’s Pacific Solution and Julia Gillard’s proposed Timor Solution, to deter boat arrivals by creating the impression that enlisting with the people smugglers won’t gain them any advantage.  Because they are being detained in another country Australia is under no obligation under the Refugee Convention to offer them protection unless it chooses;
  3. Last but certainly not least, to give hostile voters the impression that the government is being suitably tough on “queue jumpers” and “illegal arrivals”.

The force of each of these factors is highly dubious, even if you’re a hard-headed realist unimpressed by “bleeding heart” arguments about human rights of the vulnerable and dispossessed.

First, at least for asylum seekers processed within Australia, the High Court has made it clear that the rule of law and natural justice apply and that judicial review is available.  Privatising asylum seeker processing does not circumvent judicial review.  As I have tentatively suggested, it might conceivably be possible successfully to evade Australian judicial review if East Timor co-operates to structure an offshore “regional” processing system.  However, why does the Labor government still apparently wish to do so?  Surely they’re not opposed to a fair process?  If the government’s concern is that applicants will deliberately prolong the process to postpone deportation indefinitely, it could amend legislation to provide an accelerated judicial review and appeal process for asylum seekers.  For example, review by a single Federal Court judge could be followed directly by appeal by special leave to the High Court.

Moreover,  it is claimed that the new “Fast Track” case management system now used in some commercial disputes in the Federal Court has reduced the average time from commencement of proceedings to post-trial judgment to as little as four months.  There seems no reason why such a system could not be applied to judicial review of asylum applications. Together with the current three month target for initial assessment and merits review, this would mean that primary assessment, merits review and judicial review would be completed within seven months in the great majority of cases.  Applicants seeking special leave to appeal to the High Court could string it out for another three months or so, and for the tiny minority granted special leave another nine months waiting for the hearing and then judgment.  But for the vast majority seven months in total is very respectable.  It certainly does not provide a strong justification for re-implementing what would certainly be an extremely expensive offshore system in East Timor or Nauru.

The second motivating factor is in many ways the most interesting, and no doubt most contestable.  The Howard government’s implementation of the Pacific Solution in the wake of the Tampa crisis certainly had a dramatic impact in reducing boat arrivals.  There is no doubt that, together with Howard’s famous/infamous words “We will decide who comes to this country and the circumstances in which they come”, the Coalition government achieved a powerful deterrent effect by giving the impression that Australia had closed its doors and there was little point in embarking on the dangerous and expensive journey with the people smugglers.

Although we can’t be certain, given that the Rudd government abandoned the Pacific Solution when it came to office, it is likely that the flow of boats would have gradually increased in any event as people smugglers and their clients realised that jumping on a boat remained a sure-fire passport to life in Australia if you could convince authorities you were a genuine refugee.  You just had to be prepared to spend two or three years on Nauru, arguably a rather more pleasant detention site than Woomera or Baxter.

The increase would not have been as rapid or dramatic as what has actually occurred after Rudd sent a much more powerful if inadvertent “open door” message, but I suspect it would have been just as inexorable and would have eventually resulted in just as large a number of arrivals. This is suggested by actual boat arrival asylum seeker numbers.  There were just 92 boat arrivals in the first 3 years of the Pacific Solution (contrasting with 3-4000 in each of the 3 years before that) but 194 in the two years immediately before the 2007 election.   It is also suggested by the fact that US implementation of offshore processing of Haitian and Cuban boat arrival asylum seekers at Guantanamo Bay starting in the early 1980s did not ultimately stem the increasing flow of arrivals from those countries.

If the inhibiting effect on boat arrivals of any offshore processing solution will at best be short term, lasting only until asylum seekers realise that the impediment it presents to successful migration is illusory, then there is no point in going to the huge expense of creating such a facility in the first place.

Lastly, part of the motivation of successive governments in persisting with mandatory universal detention of boat people is a domestic political one.  Governments hope to convey a Phantom-like “rough justice for roughnecks” message to alienated outer suburban upwardly mobile voters and less affluent “battler” victims of future shock.  However, it may well be that the practice of imprisoning all boat-arriving asylum seekers itself actually creates this hostile community response.  Perhaps it provides a concrete focus for what would otherwise merely be a low level generalised unease about social change and economic uncertainty. A cynic might suggest that all the mandatory detention policy achieves is to make a target out of an extraordinarily vulnerable group of people, some of whom are recent victims of torture and trauma in their homelands.

I don’t recall there being any significant level of community resentment towards boat arrival asylum seekers in 1989-90 when mandatory universal detention was implemented informally, or in 1992 when it was entrenched in the Migration Act by the Keating government.  In fact there was widespread sympathy for the mostly Cambodian asylum seekers of that era, who were fleeing the successive horrors of Pol Pot and then Hun Sen.  Immigration Minister Gerry Hand wasn’t obviously concerned about community resentment, but rather had internalised the punitive culture of his Department and decided to implement a system of harsh remote detention centres in order to prevent “do-gooder” lawyers and others from helping asylum seekers and creating nuisance value for the Department.   Focused community resentment towards asylum seekers mostly post-dates implementation of mandatory universal detention, culminating in the ugly Pauline Hanson’s One Nation phenomenon later in the 1990s.

Would abolition of universal mandatory detention help to reverse this process of turning vulnerable asylum seekers into targets of uninformed community resentment?  It is impossible to be certain, but the fact that even now there is no apparent community resentment directed towards asylum seekers who arrive by air with valid visas rather suggests it might.  There are many more such asylum seekers than those who arrive by boat; around 60,000 each year compared with 5,000 or so boat people.  Moreover, they have a much lower success rate in being granted a protection visa, so you would think they would provide a more natural target for labelling as “queue jumpers” or “economic migrants”.  They could also readily be demonised as people who have abused Australia’s hospitality by obtaining student or tourist visas under false pretences only to make an application for a protection visa on arrival.  Yet that does not occur.  That may well be because they are dispersed in the community and consequently don’t prevent a visible target for community members who might be minded to seek scapegoats to blame for their own fears and insecurities.

Perhaps treating boat arrivals in a similar fashion to their onshore-arriving visa-possessing counterparts would result over time in a similar level of community unconcern with a phenomenon that isn’t objectively threatening to Australia’s national interests or security.  Boat-arriving asylum seekers would still need to be detained while health and security checks were completed, but would then be released into the general community pending completion of assessment and review processes.  After all, that’s what most other western countries do so it’s hardly a radical proposal.

I will outline in a separate post a suggested set of policies for Australia for dealing with the asylum seeker/refugee phenomenon which I believe would be both more effective and more humane, and which could be successfully “sold” as such to the Australian electorate by a competent government with effective communication skills (which sadly on present indications doesn’t include the Gillard government).

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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12 Responses to The hard-headed realist’s case for abolishing universal detention of “boat people”

  1. timothy watson says:

    I’m all for Bob Ellis’ “Caravan Park Solution

  2. Ken Parish says:

    Thanks Tim. Yes, that’s a rather more light-hearted version of what I’m talking about.

    That said, I’m seriously disturbed to discover that I’m thinking like the egregious Mr Ellis.

    Well,actually it isn’t quite what I’m talking about. Ellis seems to have in mind a series of dispersed but open “detention” centres. That would still involve clearly identifiable asylum seeker centres which would still form a visible focus for community resentment. Even in communities where the majority might welcome such centres there would still inevitably be a significant minority who would oppose them, and tabloid coverage of their protests would still serve as a focus of resentment for outer suburban voters in major cities. That’s what makes it a very real political management problem for both major parties, and Ellis’s “solution” wouldn’t really help.

    I am instead proposing that ALL asylum seekers be allowed to live in the general community, most in ordinary suburban rental accommodation (although some might be in group homes or hostels). They would be no more identifiable as asylum seekers than their visa-possessing brethren who simply aren’t identified or noticed because they’re indistinguishable from the rest of the community.

  3. timothy watson says:

    I am similarly distrubed more often than I would perhaps like. So it goes.

  4. Paul Frijters says:

    Ken,

    admirable morals, but I must say I am doubtful that the genie can be easily put back into the bottle.

  5. Ken Parish says:

    My hypothesis is that it should (or at least might) make sense to a hard-headed politician quite apart from any moral dimension. If the policy doesn’t achieve any of its objectives, costs a fortune, and creates short-term political headaches for a Labor government, which might get rid of those headaches after a period of immediate pain by abolishing the policy, then why not do it?

    Hopefully you’ll better be able to see what I’m getting at once I publish Part 2 tomorrow.

  6. Jacques Chester says:

    Ken;

    As you know, refugee places are a zero-sum game. Refugees who arrive by boat do, in fact, jump the queues Australia has set up for refugees from various countries.

    The issue still remains that there is a demand for refugee status and we are letting the black market provide part of its implementation. It would be much cheaper and easier simply to charge a fixed price for non-quota places, set at (say) 2/3rds of the going rate for people smuggling.

    I know I’ve put this in other threads about refugees, but it still remains the simpler, cheaper and frankly more humane option.

  7. Paul Frijters says:

    Jacques,

    I have seen the ‘charge for refugee status’ arguments several times now, but dont see how it could possibly be implemented. The boat or plane arrives on our shores and the people coming out ask for refugee status. Are you going to say ‘sorry, that status is available only at price X. If you cant pay, I will just send you back to where I think you came from’? This would surely be illegal under our international obligations. Asking for the fee before asking for refugee status is surely also illegal. I dont see how big fees can be implemented, quite apart from the question of whether they would survive the political process.

  8. Ken Parish says:

    Paul

    Sorry, I should have responded to Jacques earlier. Your objection to Jacques’ proposal is entirely correct. Australia would be in fundamental breach if its obligations under the Refugee Convention if we sent back asylum seekers to face persecution who they could not pay the price of an Australian visa.

    Moreover, even on pragmatic grounds the proposal demonstrably would not work. Many people are not aware that until mid-2009 successful applicants for a protection visa were charged for the costs incurred by the Commonwealth in detaining them while their applications were processed. The daily rate for each day of detention at the time the charge was abolished was $125.40 and many refugees racked up debts to the Commonwealth of many tens of thousands of dollars (in some cases hundreds of thousands). The system was in force to my knowledge since at least the mid 1990s but had little or no impact on the rate of boat arrival asylum seekers. The Commonwealth’s recovery rate of these debts was less than 3% and the costs of recovery generally exceeded the amounts recovered (for the obvious reason that these people had no money).

  9. Jacques Chester says:

    Paul;

    And when these arguments come up I usually forget to point out that the could be waivable or made payable through a HECS scheme. As I recall the LDP policy is to waive the migration fee for genuine refugees, which does away with the angst of deporting those found not to be refugees.

    But if those who will be adjudged to be non-refugees can afford to pay people-smugglers, they can afford to pay the Commonwealth instead.

    I am not talking about deterring refugees from seeking refuge. I am talking about stopping them coming by boat. Which is, frankly, a humane goal to pursue.

    As a side effect, by producing a simpler tradeoff between refugee and non-refugee (free or fee), the criteria can be loosened and the system simplified to speed up processing. Again, this is a humane goal to pursue and one which would allow cost savings for the Commonwealth.

  10. Jacques Chester says:

    Perhaps this works best as a diagram, but here’s the logic:

    * Apply to migrate to Australia
    * Judged Refugee –> migration fee waived
    * Non-refugee –> migration fee applied
    * Already resident & unable to pay migration fee –> income contingent loan
    * Not yet resident –> Migration fee payable as lump sum

    If folk want to skip the refugee queue, they can do so directly by applying as ordinary migrants. This is the money that would have been paid to people smugglers, now available to be spent on infrastructure.

    If they don’t have the money, they can queue up the normal way and try their already terrible luck.

    Does this create two tiers? Absolutely. But the two tiers already exist and are not going away. The current system costs more and places human life and mental health at risk.

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