Brisbane, August 18, 2014 (Alochonaa): I have written earlier on concerns regarding Australia’s border protection policies. While these criticisms are worthwhile, many critics fail to put an alternative framework forth. I believe part of this is because a necessary balance between human rights concerns and sustainable migration is hard to find. This is unfortunate as it means there is a lack of accountability on opponents to put forth a pragmatic solution. As a result I believe there is an element of moral-superiority in how we talk about border protection. This is an understandable reaction to the callous nature of current policy, but doesn’t benefit policy or asylum seekers. Therefore, I’ll put forth some suggestions which I believe point toward an appropriate balance.
Before providing suggested reforms, it is necessary to situate the debate within its broader history. It’s no secret that Australia has a vexed relationship with immigration: while Australia has taken in seven million migrants since WW2, this was marred by the white Australian policy (and the dispossession of Australia’s First Peoples). Mandatory sentencing was first employed by the Labour government in 1992 in response to a rapid influx of asylum seekers. The real politicisation of the debate appears to have emerged during the lead up to the 2001 election. Conflict with Tampa carrying asylum seekers lost at sea, as well as claims of Children Overboard catalysed the emotive topic we’re stuck in today. A bunch of policies generally aimed at deterring asylum seekers came to be known as the “Pacific Solution”.
After the Kevin07 election, Prime Minister Rudd acted on his promise to remove these policies in the pursuit of a more humane program. Unfortunately during 2009-2010, asylum seeker numbers dramatically increased, forcing the Rudd government to re-expand its immigration detention network. Under Gillard’s leadership there was a failed attempt (the High Court held it was ultra vires & the Abbott government refused to support legislative reform) to establish an agreement with Malaysia. The agreement would have allowed for a refugee swap whereby 800 unauthorised arrivals were swapped for 4000 refugees over four years. Rudd’s re-emergence brought the “PNG Solution” which established offshore processing on Manus Island for unauthorised arrivals. The election of the Abbott government has brought more punitive policies under the banner of the “Australian Border Force”. While the latter title is laughable (and clearly politically-motivated), the reversal in policy from the Labour government illustrates that this is a complicated and vexed issue.
With this context in mind, I put forth the following suggestions: (1) an immediate improvement in living conditions in off-shore processing centres; (2) legislative amendments to impose a 90 day limit on the processing of existing offshore asylum claims; (3) the increased use of in-community processing procedures with working provisions; (4) legislative reform to Australia’s migration system to allow greater transparency and judicial oversight; and (5) a diversion of funding towards multilateral and regional resettlement solutions.
(1) Living Conditions
There should be an immediate improvement in the living conditions on Nauru and Manus Island. The horrible and degrading conditions have been extensively reported (despite the secretive nature surrounding access). There doesn’t appear to be any evidence that suggests detention conditions deters asylum seekers, rather, it appears it is clear and streamlined visa pathways.
(2) Time Limits
Time limits should be placed on the processing of claims in order to minimise the harm to asylum seekers as well as save tax-payers money. The physical and psychological impacts on detainees have been documented by the links provided in the prior suggestion. The Commission of Audit revealed that it costs $400k per year for offshore processing, as compared with $200k and >$100k for on-shore detention and in-community processing. Under the 1992 amendments as well as the Howard government, there were 273 and 90 day time limits placed on the processing of claims. All evidence suggests the latter time-limit should be re-implemented.
(3) In-Community Processing & TPVs
Given the cost to the individual and tax-payers, the use of in-community detention where possible makes a lot of sense. More resistance may come from my suggestion that Temporary Protection Visas should be re-implemented. TPV’s generally provide that a person may be granted asylum in Australia, but only for a prescribed period. Criticisms accurately suggest that TPV’s may breach our responsibilities of non-refoulment and also have negative psychological impacts on refugees.
However much of this evidence is linked to the restriction of TPVs to working rights. Therefore I suggest that TPVs should remain but that they are accompanied by working rights. This provides a flexible mechanism for governments to respond to international events. It allows the return of persons to their country when it is safe to do so, allowing the government to respond better to a backlog of claims.
(4) Judicial Oversight
Perhaps the most concerning thing I noted in the last blog was that there is very limited judicial oversight of detention practices. This is through the privatisation and extra-territorialisation of detention. Therefore I suggest that there be amendments – either to the Migration Act or Judiciary Act – to re-establish oversight of Australia’s offshore processing. This would demand greater responsibility on the part of the Australian government for third parties doing its dirty-work.
(5) Multilateral Engagement
A shift towards a more multilateral approach is one more long-term approach. Multi-lateral engagement isn’t of itself a good thing – the recent attempts to eschew claims to Cambodia is illustrative. However one example may come in the form of a resurrection of the Malaysia Solution. While this was subject to much debate, it did provide promising pathways toward a sustainable solution. Before it was struck down by the High Court, the agreement had the UNHCR as a tentative supporter. While this may be subject to criticism, it is a much more humane and strategically sustainable approach than offshore processing in Nauru and Manus Island.
The criticisms of the current government’s border protection policies are deserving. However there is a serious lack in alternative frameworks put forth. And if there are alternatives suggested, there doesn’t appear to be the necessary rigour in critically evaluating them. If we remove the current policies for justified reasons, we must have other options in mind. Otherwise I believe we are just engaging in a kind of self-congratulatory criticism of the Abbott government with no perceivable benefit to vulnerable asylum seekers.
* Simon Katterl is a student of Law & International Relations at Griffith University. His current Honours thesis focuses on how the legal subject may be challenged and transformed by contemporary brain and mind sciences. Simon can be reached at firstname.lastname@example.org and this is his personal opinion.
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