It is difficult to formulate and implement a fair, humane policy for the treatment of boat people in Australia — especially when the number of boats spikes, and most especially when a spike occurs in an election year. Appreciating the complexity of the issues involved, we need to keep a sense of proportion about Australia's woes in comparison with those of other countries seeking to do the right thing by refugees.
Prior to 2001, the Australian Government took the view that refugees fleeing even faraway countries via Indonesia or Malaysia were 'coming directly' and were thus not to be penalised for their illegal entry or unauthorised presence in Australian territory or waters.
That presumption was abandoned in 2001 with the increased influx of boat people from Afghanistan, Iraq and Iran. The Australian government decided to penalise boat people arriving without a visa by imposing mandatory detention and by replacing the permanent protection visa (which carried the right of family reunion and sponsorship) with the temporary protection visa (which was for three years only and which did not carry the right of family reunion and sponsorship).
The Government also decided to reduce the access for these persons to judicial review of their status determination decisions. The government took the view that these boat people were no longer engaged in direct flight from persecution. Rather they had fled persecution, found a modicum of protection in another country, and then decided to engage in secondary movement seeking a more benign migration outcome.
The Government indicated that if ever there were persons engaged in direct flight to Australia, those persons would be accorded proper treatment under the Convention including the non-application of these new penalties for illegal entry and unauthorised presence. However when a boatload of asylum seekers arrived directly from West Papua, the government applied the same policy.
As well as revising its routine assessment of when persons were engaging in direct flight, the Howard Government created a nexus between the number of successful onshore asylum claims and the number of places available for humanitarian offshore cases. Refugee advocates unsuccessfully argued that even those countries without a net migration program would be required to provide a durable solution for refugees within their jurisdiction, and that therefore there should be no nexus.
There is presently no strong community demand for the nexus once again to be broken. The nexus is judged by the community to be morally acceptable as well as politically expedient. Every successful onshore asylum seeker takes a place which otherwise would have been available to an offshore humanitarian applicant. Offshore humanitarian applicants do include very needy, deserving refugees without access to people smugglers.
The Australian system without discrimination gives preference to three groups of onshore asylum seekers over offshore humanitarian applicants. Those three groups are transparently honest visa holders whose country conditions deteriorate after they have arrived in Australia, visa holders who make less than full disclosure about their asylum claims when applying for a visa to enter Australia, and unvisaed refugees who arrive by boat often having engaged the services of a people smuggler.
Strangely it is only the third group which causes great community angst even though most of that group, unlike the second group who come by plane with visas, are transparently honest about their intentions and their status.
The Rudd Government improved the time lines for mandatory detention claiming that detention was only for the purposes of identity, health and security checks. In fact, detention was to last as long as the refugee determination process took, but with the assurance that it would usually be complete within 90 days. The permanent visa was restored. Boat people intercepted before arrival on the Australian mainland were processed on Christmas Island without access to the courts for the usual raft of appeal procedures.
Those asylum seekers arriving without visas should be detained only for the purposes of health, security and identity checks. Once those checks are successfully completed with a decision that the known applicant poses no health or security risk and if there be too great a caseload for final determination of claims within that time, these asylum seekers should be humanely accommodated while their claim process is completed.
Community groups should be invited to assist with the provision of such accommodation to applicants likely to have a successful refugee claim. Those unlikely to succeed should continue to be accommodated by government or its contractor being assured availability for removal on final determination of an unsuccessful claim.
Given that we are a net migration country, those who establish a refugee claim should be granted a permanent visa, thereby being able to get on with their lives. There should not be any suspension of claims on the basis that a change in country circumstances is confidently expected. There is no reason for delaying the prompt processing of all Sri Lankan claims now, taking into account the recent past changes there including democratic elections and the cessation of civil war. There is no evidence of similar improvement for Hazaras in Afghanistan and neither is any to be expected in the foreseeable future. Australia's leading academic commentator on Afghanistan, Professor Bill Maley, says that any suggestion of improved conditions there 'is frankly bizarre'.
Until the treatment of asylum seekers in transit countries such as Indonesia is enhanced, we Australians must expect that some of the world's neediest refugees will engage people smugglers and come within reach of our authorities. For as long as they do not excessively skew our migration program, we should allow those who are proven to be genuine refugees to settle permanently and promptly so they may get on with their lives and make their contribution to our national life. The suspension of claims is unprincipled and unlikely to achieve any reduction of successful claims. It will simply lengthen the time of detention.
And let's not forget the assessment of immigration detention centres by Professor Patrick McGorry, Australian of the Year: 'You could almost describe them as factories for producing mental illness and mental disorder.' Proposals such as temporary protection visas and the Pacific Solution are not only unprincipled; they fail to stem the tide or to reduce the successful claims.
As the election lather on the issue commences, let's always ask, 'Why is it right to treat the honest, unvisaed boat person more harshly than the visaed airplane passenger who fails to declare their intention to apply for asylum?' If the answer is based only on consequences, then ask, 'Would not the same harsh treatment of the visaed airplane passenger have the same or even greater effect in deterring arrivals by onshore asylum seekers?' The Qantas 747 does not evoke the same response as the leaky boat, does it?
Frank Brennan SJ is professor of law at the Australian Catholic University and Adjunct Professor at the Australian National University. This is an edited excerpt from his address to the Public Policy Institute at Curtin University, Perth, on 17 June 2010, the UN International Day in Support of Survivors of Torture. Full text