02/04/10

Customs officials take people from a vessel intercepted just off Christmas Island on Thursday. Photo: Glen McCurtayne

When Senator Chris Evans announced he was overhauling Australia’s immigration detention system on a winter morning two years ago, the mood in the packed university hall in Canberra was jubilant.

The Immigration Minister veered off script to jest about the dangers of briefing excited NGOs before a big announcement and threw in asides to emphasise the brutality of the system he was overturning.

A leak to a TV network the night before had drawn a crowd larger than anticipated; academics, department heads, human rights lawyers and journalists spilled over to the adjoining room.

”Today I want to announce that cabinet has endorsed a policy containing seven values that will guide and drive new detention policy and practice into the future,” Evans said.

”The Rudd Labor government will reform our immigration detention policies and the treatment of asylum seekers in a way that reflects the compassion and tolerance of the Australian community.”

That was on July 29, 2008. The detention centre on Christmas Island had never been used and not a single boat of asylum seekers had arrived under the Rudd government.

The 101st sailed into Australian waters this week, evidence, the opposition said, that Labor’s border protection measures had failed. On Tuesday, immigration spokesman Scott Morrison sent out menacing posters to mark the 100th boat, showing silhouettes of 100 black and grey battleships and the date each was spotted.

”One hundred boat arrivals. One hundred Labor policy failures,” it said across a band of red through the middle. ”Support real action to protect our borders.”

The seven immigration values announced two years ago had little real bearing on border protection policy. The perception that they did, however, has been crafted by the opposition and has constrained what Labor is now able, or willing, to change in immigration policy.

The main change was the way Australia would treat people in detention. Immigration officials would have to justify the need for incarceration, not presume it, and detainees would be treated with ”inherent dignity”, Evans said.

The code guiding immigration officials was rewritten to say people should be locked in high security centres as a last resort, and for the shortest possible time. The mandatory detention of boat arrivals and those illegally in Australia on invalid visas was retained.

”There hasn’t been a dismantling of the system. There’s been a change to policy approach in how you deal with human beings when you have them detained,” says Dr Kim Rubenstein, the director of the Centre for International and Public Law at the Australian National University.

”Those principles should be maintained. It is politicking that’s going on, not any real alteration that needs to be addressed.”

The opposition insists it would change domestic policies to stop asylum seekers paying people to ferry them to Australia. Leader Tony Abbott flirts with the idea of sending asylum seekers to other countries such as Nauru without explicitly promising a return to the Pacific Solution.

”We’ve got to get back to the situation that we had under Mr [John] Howard where we decided who came to this country and the circumstances under which they come,” Abbott said this week.

”I will do whatever is reasonably necessary … to keep our country safe.”

The Coalition has already vowed to bring back temporary protection visas and turn back seaworthy boats.

Temporary protection visas, used under the previous government, forced refugees to demonstrate their ongoing need for protection. The visas prevented family reunions and therefore led to more women and children boarding boats that previously only a male of the family would take.

University of Sydney professor of public law Mary Crock has researched the flow of boat arrivals in relation to Australian immigration policy changes going back as far as the Vietnam War.

”The correlations between the push factors [casting people out of their homelands] and direct intervention such as a memorandum of understanding with China; the interdiction program which blocked people from coming, period; and the sinking of the boats were very strong,” she said.

”The correlation between boat arrivals and detention was zero.”

The best method of dissuading desperate people from stepping on to a boat was to create other means for them to escape. For example, Sri Lankan advocates have asked for a return to the 215 special assistance visa, to allow more people to migrate.

”We should be working more closely with communities in Australia and we have to try to beat people smugglers at their own game,” Crock says.

Research suggests Australians are worried about the arrival of boat people. A Lowy Institute poll last year showed that 76 per cent of people were ”concerned” or ”somewhat concerned” about unauthorised asylum seekers arriving by boat.

Neither side of politics disputes that the boats will continue to arrive.

Figures released by the United Nations High Commissioner for Refugees show Australia received 6170 claims for asylum last year, 29 per cent more than the year before. Numbers dropped for other industrialised countries such as the US and UK.

But the Australian experience pales in comparison with that of Liechtenstein. The tiny country, with a population roughly that of Wodonga in Victoria, had an 867 per cent increase in Somalis and Eritreans seeking refuge last year.

Although it was at the extreme end of the spectrum, it shows what the UN is at pains to point out: ”The principal driver of increased asylum-seeker flows is violence and insecurity in countries of origin and a lack of opportunities for people to find protection closer to home.”

The largest group of asylum seekers arriving in Australia remain the Chinese, 1186 in all, most of whom came by air. The second-largest group are Afghans – 940 in 2009, compared with 52 the previous year – followed by 553 Sri Lankans (a 33 per cent rise) and 344 Zimbabweans

(up 61 per cent), and 303 from Iran.

The UN is aware of the argument that numbers are related to changes in government policy but UN Assistant High Commissioner for Protection Erika Feller has said this is speculative and at odds with global trends.

According to a spokesman in UNHCR Canberra: ”The last time we saw such a major spike in Afghans seeking asylum in the West was in 2001 when people were fleeing the Taliban, which is also the last time we saw a peak in the numbers coming to Australia.”

Right now, it is not the opposition’s threat to return to punitive tactics that concerns academics and lawyers – it is the stalling effect such threats have on government.

”We’re coming up to an election,” Rubenstein said. ”Unfortunately, immigration has always been one of those issues that becomes sensationalised, which in my view, is a great shame for good policy.”

CHRISTMAS Island is close to overflowing, and while mental health experts, soaring costs and a lashing from human rights groups and the Greens give the government cause to move asylum seekers to the mainland, the government has dug in its heels.

It didn’t have to. Before tents were flown to the island as ”temporary accommodation”, Evans announced he was prepared to move some asylum seekers to Darwin but Prime Minister Kevin Rudd said the detention outpost would be renovated to cope.

Delayed though they were, the transfers to Darwin will begin soon. And other immigration reforms are likely to stall. Among them is complementary protection. The proposed law would give asylum to people who do not qualify as refugees but face harm if they return home.

”You’ve got to ask why the complementary protection bill has dropped off the list,” Mary Crock says. ”I just can’t see them pushing any of this through before the next election, which is really sad because it needs to happen.”

Human Rights Commissioner Catherine Branson, QC, says the government will struggle to maintain detention on Christmas Island.

”It’s small, it’s remote, it’s got limited infrastructure,” she says. ”There’s not a lot of other accommodation available on the island.”

Australians are right to feel anxious about who enters the country, she says, but it is critical to remember that the policies fought over in Parliament affect traumatised people.

”These people are trying to preserve their lives and their families’ lives,” she says.

The solution is to help other countries abide by the rule of law.

”The way for Australia to do that is not to abandon its own obligations,” she says. ”These are not things that made Australians proud before.”