Back to basics on asylum seeker policy

Forty four months of Labor governments have seen mixed results for refugees and asylum seekers. The Rudd Government promised positive reforms after the decade of 'boat people'-bashing we saw from the previous government. At first a change of government was seen as a relief for those working with refugees — a chance for proper reform.

The progress was slow but it came in a major speech by former Minister Evans in July 2008 at the ANU, entitled, 'New Directions in Detention — Restoring Integrity to Australia's Immigration System'. Senator Evans set out seven key immigration values, and started with the following observation:

At my first meeting with department officials as Minister for Immigration, I asked who was detained at the immigration detention centre on Nauru and at what stage were their claims for asylum.

I was told there were eight Burmese and 81 Sri Lankans there. Virtually all of this group had already been assessed as refugees but had been left languishing on Nauru.

When I asked why the eight Burmese had not been settled in Australia in accordance with international law there was an embarrassed silence.

Eventually the answer emerged. The Howard Government had ordered they stay put. They had been left rotting on Nauru because the Howard government wanted to maintain the myth that third-country settlement was possible.

Sadly, Australia's treatment of asylum seekers had sunk this low.

Within three years, we are back at a process of interdicting boats and sending people for processing offshore. How did this come about? It will help to overview the changes under Labor and to see the gradual decline in the 'key immigration values'.

On the positive side, Nauru was closed in February 2008 and in the budget in May 2008, it was announced that the Temporary Protection Visa (TPV) would be abolished in that year. Sure enough, the legislation was passed in August 2008.

Other changes included the abolition of detention debt in March 2009, the end of the 45 day rule for permission to work on 1 July 2009 and the introduction of complementary protection legislation in 2009 which was reintroduced in 2011, but still not legislated. As a practitioner, I noticed that case officers made more reasonable decisions requiring less cases going onto review.

Throughout the whole period there has been a steady refrain from the Opposition of 'stop the boats'. For a while, the Government was not caught up in 'stop the boats' rhetoric, however it continued like an annoying whine in the background. The slogan was ramped up to almost hysterical levels under Abbott. As more boats arrived, the cry to 'stop the boats' only got louder. It was one of the Coalition slogans in the August 2010 election.

In April 2010, a processing freeze on Afghans and Sri Lankans was instituted, for six and three months respectively. The 'logic' was that as the cases could not be refused in April, maybe the country information would improve by the time the freeze ended so the cases could be refused. This unprincipled position meant longer periods in detention for already traumatised people.

Slow processing due to long delays in security checks left people in detention limbo for months and sometimes years. This added to the stress levels in a traumatised population in detention, and there were riots, self harm and protests. The deteriorating mental health of asylum seekers was again noted by the Australian Human Right Commission report into Villawood in 2011. The Commission noted that it had raised all these issues about mandatory detention a decade before, yet still the system was in place that leads to breaches of human rights.

Rather than deal with the causes — the long processing times — the Government under Gillard has returned to punitive measures: changes to the character test which will reintroduce a form of TPV for protestors in detention and 'offshore processing' anywhere, it seems, but Nauru.

The 'offshore processing' (which in fact was done onshore and mimicked much of the onshore protection visa process) was subject to a successful High Court challenge in November 2010. The case meant that the rule of law did apply to asylum seekers and they could not be dealt with entirely outside the Migration law and Constitution. This was possible because the appellants were detained and held in Australia.

The Opposition said this meant that a return to actual processing offshore, in Nauru for example, was needed to avoid such legal challenges. This is untested but the grey legal area of what law applies when Australian officials work in Nauru will possibly be avoided by the 'Malaysian solution' (which replaced the mooted East Timor and PNG (again) solutions).

While an annual increase of 1000 refugees is welcomed, it should not come at the forced relocation of 800 asylum seekers in Australia to join the mythical 'queue' that governments and UNHCR know does not exist.

Malaysia is not a signatory to the refugee convention. Over 90,000 refugees in Malaysia are termed 'illegal immigrants' in Malaysia. Any improvement in the process in Malaysia is to be welcomed, but it should not come at the cost of Australia dropping human rights standards and not accepting some responsibility for working with what is a global phenomenon of the movement of asylum seekers and refugees around the world.

Sadly the promise of serious reform to mandatory detention and making detention 'the last resort' has faded under the constant media and political attention whenever another boat arrives. If the July 2008 speech of Senator Evans was a high point, the recent exchange between Minister Bowen and Tony Jones reaches a new low:

TONY JONES: So, just to confirm, you are actually saying that in order to break the people smugglers' model, you will make an example with the 800 of the unaccompanied minors and send them to Malaysia, is that correct?

CHRIS BOWEN: It's not a matter of making examples of people, Tony, it's a matter of ensuring you have a robust system in place to break the model. And of course we will treat people with dignity and of course we will treat people with regard to their circumstances as to how we implement this arrangement.

TONY JONES: But no exceptions for unaccompanied minors, is that what you're saying?

CHRIS BOWEN: I do not want to send the message that it's OK to get on a boat if you fit one sort of particular category. Now I know these are hard decisions, I know these emotive and difficult issues.

Scott Morrison is right to say that people were never whipped on Nauru — a reference to one of the penalties imposed on 'illegal immigrants' in Malaysia — but that does not make the use of Nauru and the Pacific Solution right. Maybe we should not be too surprised; it was the Hawke and Keating Labor Governments that fought hard to introduce mandatory detention in the first place.

The chance of reform outlined in the ANU speech is still possible. The policy focus needs to return to ensuring adherence to basic human rights, protecting refugees from refoulement and treating people with dignity.

It would help to return to those basic principles outlined in the ANU speech back in 2008. They include: firstly, no children in detention. Secondly, arbitrary or indefinite detention is not acceptable and should be subject to regular review. Thirdly, detention should be a last resort for the shortest practicable time. Finally, people in detention should be treated fairly and reasonably and detention conditions should ensure the inherent dignity of the person.

These principles are founded in concepts of human rights and respect for the dignity of people. Shaping the policy around these principles, rather than political push factors, would lean to a more humane and justifiable process all round.

Kerry Murphy is a partner with the specialist