A non-detention, non-bleeding heart asylum seeker policy

The publication of an edited version of my Troppo post about abolition of mandatory universal detention of asylum seekers at the ABC Unleashed site has certainly been an interesting experience. Fairly predictably it attracted the sort of polarised “howling into the darkness” comment thread that used to characterise Troppo years ago before we decided that smaller, more civil conversations were more congenial and useful.

About the only advantage of that sort of forum is that it at least provides a chance to respond to the standard knee-jerk canards of the Great Unwashed in the hope that more thoughtful and open-minded readers, who might otherwise be swayed by ignorant “pub” wisdom, will be provoked into thinking a little more deeply about the subject.

I was instantly labelled a “bleeding heart” “ivory tower” “leftie” academic whose thoughts should on that account be just as instantly dismissed.11. KP: OTO Saint Julian Burnside praised it as a “great article”, which may or may not be a compensating factor depending on one’s viewpoint [] As frequent Troppo readers will be aware, those labels just don’t fit. In fact I was even a cautious supporter of Howard’s “Pacific Solution” some years ago, until it became apparent that it simply didn’t work and achieved little except to inflict additional and pointless suffering on asylum seekers who in the majority of cases were genuine refugees fleeing persecution.

Of course, rejecting mandatory universal detention and offshore processing because they don’t actually work does not make one a “bleeding heart”.  It does however impose some sort of intellectual obligation to propose alternative policies if you expect to be taken seriously.

For a start, abolishing universal mandatory detention, especially the offshore processing variant, will save large amounts of money which will then be available for spending on programs for dealing with asylum seekers in an effective and humane way.  A conservative estimate is that it costs around $150 per day to keep an asylum seeker in detention but only around $50 per day for community-based accommodation during processing, review and appeals (derived from conversion of US figures from a Human Rights Watch publication no longer online).

At present, asylum seekers enlist with people smugglers because it is the rational decision on entirely pragmatic grounds.  If they get close enough to Australia to be intercepted by the Australian Navy and can satisfy the requirements for refugee status 22. KP: A refugee is a person who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country…” [] then they will receive a protection visa and residence rights in Australia.  They may have to endure 2-3 years in detention but the result is certain.  By contrast, if they stay in a refugee camp in Pakistan, India or wherever, they are likely to be waiting 5-10 years even if they are in a position to apply under Australia’s offshore humanitarian program, and even then they may or may not be selected.  In those circumstances, paying $10-15,000 to a people smuggler is an excellent deal for those who can raise the money from their extended families, and the prospect of 2-3 years even in quite uncomfortable migration detention in Australia, Nauru or East Timor is unlikely to prove a deterrent.

The policy challenge for any Australian government is to find workable ways to make enlisting with the people smugglers less attractive and waiting in an overseas refugee camp more attractive, while not adopting deterrent tactics that subject refugees to inhumane treatment.  Fortunately, abolishing mandatory detention will make available substantial funds to implement such policies  Here are my proposals:

  1. Employ more primary assessment and merits review officers in Australia to ensure that all asylum seekers have their primary and review applications processed and finalised within 3 months of arrival (subject to any unresolved national security concerns);
  2. Streamline judicial review by legislating for appeal direct by special leave to the High Court from a single judge of the Federal Court, with the Federal Court matter conducted under its “Fast Track” system.  The aim would be to ensure that unsuccessful applicants are processed and deported in less than one year;
  3. Fit unsuccessful applicants awaiting outcomes of appeal or judicial review with irremovable tracking bracelets similar to those issued to offenders in home detention, and implement a regime of regular reporting and random inspections to minimise the incidence of absconding by unsuccessful applicants (that is the ostensible principal rationale for mandatory detention);
  4. Grant protection visas to successful “boat people” applicants which are permanent but which contain no right or possibility whatever of applying for extended family members to come to Australia under the Family Reunion program. That should stem the current flow of unaccompanied and very mature-looking “minors” without passports or other ID;
  5. Employ many more investigative personnel in the main source countries for “boat people”, currently Sri Lanka, Afghanistan and Iraq.  Their job would be to investigate on the ground any dubious stories to check their veracity, although security issues in some parts of Afghanistan may inhibit investigations.  One would be naive to imagine that there aren’t at least some asylum seekers, perhaps even a substantial number, who deliberately craft bogus but difficult-to-disprove stories to fit themselves within the Convention definition of refugee but who are really “economic refugees”;
  6. Further boost Australia’s efforts and funding to disrupt people smuggler activities in Malaysia and Indonesia with a view to stopping the boats before they depart.  We’re already doing this more intensively than previously, but more funding and resources will help.  Moreover, we should be prepared to use all available leverage including foreign aid funding to encourage Malaysia and Indonesia to criminalise people smuggling and actually begin treating it as a serious crime;
  7. Offer substantial rewards to local ordinary citizens in Indonesia or Malaysia for information about people smugglers that leads to interception or prevention of a voyage and arrest of the smugglers;
  8. On the “carrot” side of the ledger, alter the weighting of Australia’s offshore humanitarian program so that instead of taking substantial numbers from Africa and elsewhere we are taking all or almost all of the humanitarian intake from the countries which are the main source of “boat people” arrivals (i.e. currently Sri Lanka, Afghanistan and Iraq).
  9. increase Australia’s overall annual humanitarian/refugee target from 13,000 to 16,000 (still not a huge number in the context of a total migration program of around 180,000 per year);
  10. Greatly increase the number of Australian officers receiving and processing humanitarian visa applications in the refugee camps from which “boat people” predominantly come.

The overarching objective of policies 1-6 inclusive would be to decrease the attraction of enlisting with the people smugglers, while policies 7-10 are aimed at encouraging asylum seekers to wait in primary refugee camps in South Asia and the Middle East and apply from there as the better pragmatic choice.

Update – There are some common elements between the above and proposals outlined today by the Coalition spokesperson Scott Morrison in an address to the Lowy Institute.  However, Darryl Kerrigan would have a succinct answer to Morrison’s idea for “establishment of refugee processing centres in the countries of “first asylum” like Pakistan and Iran” instead of East Timor or Nauru: Tell him he’s dreaming!  Why would poor countries like that accept return from a wealthy country like Australia of asylum seekers who aren’t nationals of either Pakistan or Iran?

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.
This entry was posted in Law, Politics - international, Politics - national, Uncategorized. Bookmark the permalink.

9 Responses to A non-detention, non-bleeding heart asylum seeker policy

  1. Paul Frijters says:

    Ken,

    My gut-reaction to your 10 points:

    1. (more officers) Expansion of the bureaucracy.

    2. (streamlining) Sounds like any fast-tracking would involve some reduction in the rights of appeal to some group. Not clear this is legal.

    3. (bracelets) Cute, but if the fear before was that people would run away, surely no bracelet would provide a cure. I can just see the criminal gang specialising in removing the bracelets stepping into the market. Also, not sure this is legal.

    4. (no family reunion for some visas). Again, sounds like selective application of the law.

    5+10. (more officers abroad). Hard to do (sending people to other countries who want to go and speak the language is very expensive and difficult), would invite corruption of the officers sent out, and might mainly serve to advertise Australia.

    6+7. (more money to disrupt boats). Effectively this increases the incentives for whole communities to specialise in people-smuggling and their detection. X smuggles, the brother of X gets a reward for dobbing him in, the father of X gets a reward for convicting him, and then his uncle lets him out of jail for good behaviour within a week.

    8+9. (more intake, especially from current sources). This of course is an encouragement to try Oz as it increases the odds of success for any applicant.

    I dont have a better alternative, Ken, and I applaud you for putting actual proposals forward, but my gut feeling is that 8 and 9 are certainly not going to happen given the reality of Australian politics, and that quite a few of your other proposals might be tried but would prove counter-productive or illegal.

    I am particularly sceptical about the long-run behavioural consequences of rewarding individuals in other countries for telling on the smugglers (point 6 and 7). It seems to me that that can only lead to more boat-smuggling activities. The usual way in which we try to get other countries to comply with something we want is to threaten or bribe the leaders of that country (i.e. top-level government). To actually start to hand out money to ordinary citizens and low-level government just means you eventually have to bribe everybody.

    If its legal, I have a feeling bracelets might indeed be tried next.

  2. Ken Parish says:

    There’s definitely no problem of legality with 2, 3 or 4. Fast-tracking is already occurring in the Federal Court for less complex commercial disputes. It mostly involves abolishing general discovery ofn documents and inspection as of right, and having judges who take a tough line on time-wasting tactics by lawyers. On 4, it’s certainly selective but that is neither a legal nor moral objection per se. As I observed, we already subject offenders on home detention to fitting of a tracking bracelet. Although asylum seekers have not been convicted of any offence, there is no doubt on existing High Court authority that compulsory wearing of a tracking bracelet would be lawful. An alternative, and perhaps more difficult to remove, device might be an internal/sub-cutaneous tracking device.

    As for 1, DIAC is already advertising and interviewing for more assessment and review officers because of the legal requirement, flowing from the M61/M69 decision, to re-process all existing unsuccessful applicants who haven’t yet been deported.

    On your point that it’s expensive to train and station officers abroad who speak the language, no doubt you’re right. However abolishing mandatory detention would save at least $150 million per year on my rough back-of-envelope calculations (and much more on the on-off capital cost of constructing an offshore “regional” processing centre whether in Timor, Nauru or Iran/Pakistan as Morrison is now suggesting), so that would pay for an awful lot of training and overseas stationing of investigating and processing officers.

    Finally, I take your point on paying rewards to ordinary local Indonesians and Malaysians.

  3. Patrick says:

    Paul makes a very valid point on the incentives (as KP acknowledges) for local Indos and Malays. This might be best scrapped.

    On removal of the bracelets, Paul, these are (relatively) widely used in the US now and I haven’t heard a single story of them being removed.

    I suspect it is rather difficult!

    I think only 7 is ‘counter-productive’, and none of the others appear illegal at all.

    Whilst I agree that substantially increasing the immigration bureacracy has a lot of negatives to it, I think that from a political perspective a determined government can do almost anything as long as it puts the right spin on it. IIRC refugee intake increased substantially under Howard as did gross immigration, but not many people doubt that Howard had immigration ‘sorted’.

    Once again, we come back to the core incompetence of the current labor generation!

  4. Alan says:

    Bracelets are effective with home detention and there is no easy way to remove them. The removal attempt itself generates an alarm. It is, however, a fairly expensive and intrusive technology and I am not sure that it is really needed. I concede that it makes the proposal much more saleable.

  5. Tel says:

    I fully support 1 & 2, which make perfect sense even for those who do support mandatory detention. After all, the work you put off today doesn’t get any less work by doing it next year or the year after and given the high cost of keeping people in detention is seems a no-brainer to keep them as little time as possible. However, I think there’s a deeper problem which is a barely whispered admission that we honestly have no idea who is a genuine refugee and who is not… so the years of mandatory detention turn out to serve a purpose; being nothing more than an arbitrary gauntlet course to test the will power of those who would burden our system. Come to think of it, the years waiting in refugee camps serve much the same purpose.

    Paul, don’t worry about illegality here… after we have wangled our way around constitutional limitations every way from Sunday, I’m sure this is no biggie. If the courts are grumpy to get cut out of the deal, then just cut them in. Once the lawyers and judges see work for their boys on the cards they’ll turn about quicksmart.

    As for 4, I like the principle of putting some sort of stigma on those who jump queue and come here by illegal means, taking away privileges like Family Reunion is as good as any, and much cheaper than detention facilities, and probably less damaging to the individuals concerned. How much of a deterrent it serves remains to be seen, but somehow I find it hard to accept that people doing the wrong thing get better results than people doing the right thing (not that this is in any way unusual).

    5, 6, 7 (stopping the smugglers and cheats) is good in principle. Money flowing to people smuggling gangs also supports the build up of expertise in false identities, general smuggling, helping criminals slip away from justice and many of the facilities that other criminal gangs (and terrorists) find useful. However, from a practical point of view, international law enforcement is difficult stuff. No doubt would be money better spent than pointless wars in the Middle East, but even so probably the return on investment would be limited. I’m surprised that the hard line “anti-terrorist, law and order” types are happy to throw millions into war spending but bugger all into actual police work, they should be thumping the table demanding we throw resources into rooting out people smugglers.

    As for raising and lowering the quotas on various types of immigration — why is this not front and center of the whole political debate? It’s almost impossible to get people to accept that we run a quota system at all, let alone accept the implication that one boat-person in automatically means some camp-sitting refugee is out. John Howard was widely recognized as a racist bastard when he ran some of the highest immigration quotas in Australia’s history but he bashed some trivial number of boat people. The Rudd / Gillard government quietly put the chop to the quota numbers while holding hand to heart and singing softly about how much they cared — and the public fell for it!

    I’ll step outside now while my head explodes (yet again), more news when I’m back from the repair shop.

  6. Pamela says:

    First up Ken I have to be straight and say that I am one of those bleeding heart latte sipping inner urban etc etc- and no apologies. However I appreciate an intelligent discussion from an opposite point of view that is not laced with lies and invective. We need more discussion and less rage.
    In this spirit I would like to contribute with on the ground information direct from asylum seekers in Australia and Indonesia who have shared their experiences and other sundry bits of intelligence which have come my way.
    ON YOUR TEN POINTS
    1.Employ more primary assessment and merits review officers in Australia to ensure that all asylum seekers have their primary and review applications processed and finalised within 3 months of arrival (subject to any unresolved national security concerns);
    NO ARGUMENT HERE
    2. Streamline judicial review by legislating for appeal direct by special leave to the High Court from a single judge of the Federal Court, with the Federal Court matter conducted under its “Fast Track” system. The aim would be to ensure that unsuccessful applicants are processed and deported in less than one year;
    AIM –IDEAL; PROCESS- I WILL LEAVE TO OTHERS
    3. Fit unsuccessful applicants awaiting outcomes of appeal or judicial review with irremovable tracking bracelets similar to those issued to offenders in home detention, and implement a regime of regular reporting and random inspections to minimise the incidence of absconding by unsuccessful applicants (that is the ostensible principal rationale for mandatory detention);
    NO- Asylum seekers are not criminals, dangerous. Where is the evidence that this is necessary? We like to think that as a society we act rationally for good reasons based on sound arguments. Tracking bracelets would be fitted to satisfy the ill-informed prejudices of the ignorant, the racist and the bigoted. Is this the way we want to organise our society- based on apenal colony model?
    4. Grant protection visas to successful “boat people” applicants which are permanent but which contain no right or possibility whatever of applying for extended family members to come to Australia under the Family Reunion program. That should stem the current flow of unaccompanied and very mature-looking “minors” without passports or other ID;
    Ken, Would you like to spend the rest of your life separated from those you love- your family? Why would you ask others to forgo this comfort? Are you saying that “boat people ‘ are less deserving of the basic human right of family reunion. Surely family reunion is a universal right.
    5. Employ many more investigative personnel in the main source countries for “boat people”, currently Sri Lanka, Afghanistan and Iraq. Their job would be to investigate on the ground any dubious stories to check their veracity, although security issues in some parts of Afghanistan may inhibit investigations. One would be naive to imagine that there aren’t at least some asylum seekers, perhaps even a substantial number, who deliberately craft bogus but difficult-to-disprove stories to fit themselves within the Convention definition of refugee but who are really “economic refugees”;
    There are ads , commercials running on Radio and TV, posters in Sri Lanka and Afghanistan trying to put people off coming. Only last week a PR/ advertising company here in oz sent us a request for refugees who speak “Perian and Tamilees” to make ads which would not be seen in Australia but in Afghanistan and Sri Lankan. They wanted them to “ speak their national languages” reading a script detailing how their families and children had drowned en route to Australia.
    6. Further boost Australia’s efforts and funding to disrupt people smuggler activities in Malaysia and Indonesia with a view to stopping the boats before they depart. We’re already doing this more intensively than previously, but more funding and resources will help. Moreover, we should be prepared to use all available leverage including foreign aid funding to encourage Malaysia and Indonesia to criminalise people smuggling and actually begin treating it as a serious crime;
    This is happening right now. AFP are in Indonesia in and out of the Detention centres, riding ferries between Malaysia and Indo and working alongside Indonesian police in raiding hostels, arresting would be boat people, setting up road blocks and picking up busloads. It is all happening but 13,500 islands in a hungry country where people survive on corruption is hard to beat.
    7. Offer substantial rewards to local ordinary citizens in Indonesia or Malaysia for information about people smugglers that leads to interception or prevention of a voyage and arrest of the smugglers; THIS IS BEING DONE
    8. On the “carrot” side of the ledger, alter the weighting of Australia’s offshore humanitarian program so that instead of taking substantial numbers from Africa and elsewhere we are taking all or almost all of the humanitarian intake from the countries which are the main source of “boat people” arrivals (i.e. currently Sri Lanka, Afghanistan and Iraq). NOT A BAD IDEA
    9. increase Australia’s overall annual humanitarian/refugee target from 13,000 to 16,000 (still not a huge number in the context of a total migration program of around 180,000 per year); WHY NOT 20,000
    10. Greatly increase the number of Australian officers receiving and processing humanitarian visa applications in the refugee camps from which “boat people” predominantly come. YES
    The BOTTOM LINE IS THAT WE CAN NEVER INFLICT WORSE TREATMENT THAN THAT WHICH THEY ARE FLEEING AND STAY THE COUNTRY WE WANT TO BE so why not stop punishing boatpeople and treat them decently while they are assessed AND maybe be glad that the numbers are so small and that we have no land borders so we really can without any difficulty welcome the stranger.
    PS REAL COST of detention is $1700 per person per day averaged out through the system.

  7. Peter Patton says:

    I am seriously considering entering public life to convince Australians to demand the government leave the UN Refugee Convention, so that we can actually do something decent with these desperate people with all the money we spend. The current UN Convention is neither economically rational nor relevant to 2010. My strategy would be to take those aspects of Pauline Hanson, which were bloody obvious, and now bipartisan government policy, turn them into national movements.

    I would increase the refugee intake to 25,000. But they will all be chosen by Australian officials touring Asia Pacific refugee camps. No Afghans would reach Australian soil, unless they came from a regional refugee camp in that region at our discretion. Any boats which try to enter our territory would have Navy ships fire across their bows, before returning all passengers to the appropriate refugee camp in their region.

    The category “asylum seeker” would be decoupled from our refugee policy, and again no non-Asia Pacific types allowed.

    Exceptions would include those who pay $30,000 before they leave, and only then will we consider them if they fly. Yes, we will welcome queue jumpers who can pay their way.

    Much of the funding will come from a virtual complete removal of Australia government funding for any program which which endorses/encourages people to continue living in those tips currently called remote Aboriginal communities.

    I hope to persuade the Australian people that 21st Australia is precisely that; 21st century. Any school teacher who insists there are Indigenous peopleS, and that they had massive irrigation systems, and intensive agriculture before 1788, will be moved sideways to needy Coles cash-registers. All current occupants of six-figure salary academic and bureaucratic jobs in the Aboriginal Industry by people who have more than six white European great grandparents will have their services terminated.

    I will begin a campaign to get all Law students to read Mabo closely and offer $10,000 to each student who can show Terra Nullius had anything at all to do with British settlement; or that it was mentioned by Blackstone, etc.

    I will offer a considerable sum of money to any student who can defend Brennan, Deane, Gaudron, and Toohey’s invocation of Terra Nullius in the Mabo judgement. I will also announce in the press a nation-wide competition to anybody who can prive that the Mabo judges – except Dawson – did not twist the words of Blackstone and Marshall CJ in Worcester v Georgia, and similar cases. Further cash will be offered to anybody who can argue that the first decision to be made was whether Australia was settled, conquered, or ceded by Treaty.

    I will then take out a full page in the national media, demanding each of these judges front the Australian people and explain why they misrepresented, changed words, inserted non-existent words, and basically lied.

    I will then offer them an opportunity for Redemption by apologising, and handing back their Knighthoods.

    After this, I shall attempt to secure world peace.

  8. Pingback: Club Troppo » Safe third countries: an asylum seeker solution?

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