Mike Steketee. Mandatory detention punishes but it does not deter.

Aug 4, 2014

“It has not been easy for organised world opinion in the United Nations or elsewhere to act directly in respect of some of the dreadful events which have driven so many people from their own homes and their own fatherland but at least we can in the most practical fashion show our sympathy for those less fortunate than ourselves who have been the innocent victims of conflicts and upheavals of which in our own land we have been happy enough to know nothing” – Robert Menzies, Prime Minister, broadcast for the opening of World Refugee Year, September, 1959.

Even some of the strongest supporters of the Liberal party and its policy of turning back the boats   cannot feel comfortable about many of the actions being taken in the name of securing our sovereign borders.

They do not fit easily with the small “l” liberal philosophy that was an important part of the big “l” Liberal party that Menzies founded – beliefs that have been muted but not eradicated under successive conservative Liberal prime ministers in John Howard and Tony Abbott.

In waging war against people smugglers, we are punishing their clients, who have turned to us for help – help that we have offered through our membership of the Refugee Convention. The armoury directed at deterring asylum seekers from coming by boat, implemented by Labor and Liberal governments, is astonishing in its extent and ferocity.

Most of it achieves nothing other than degrading and in some cases ultimately destroying people’s lives. It is all the more pointless now that the one deterrent that has been effective – turning around the boats – has been implemented. As explored further later, a group of Australian experts on refugee policy believe there is a better way, even working within the present political constraints.

We should do all we can to discourage people from taking dangerous sea journeys but we should also ensure there are alternatives for genuine refugees. The gold standard was achieved under the Fraser government.

Deaths at sea have always been a feature of refugee flows. A document prepared for the Australian Cabinet in 1979 estimated that between 50 per cent and 70 per cent of those fleeing in the wake of the Vietnam War drowned.

Then, as now, people driven by sheer desperation continued to get on boats. Then, as now, government action stopped the boats. Then, unlike now, people were given an alternative: Australia joined the US, China and Canada to reach an agreement under which each country took substantial numbers of Vietnamese and Vietnam agreed to stop pushing people out of the country. Australian officials, together with those from other countries, processed people in camps in Malaysia and other South-east Asian countries and flew the successful applicants to Australia.

Without the same sense of crisis and with refugees fleeing from many different countries, it has been impossible to replicate such an arrangement. Instead, successive Australian governments have chosen other options, all  specifically rejected by the Fraser cabinet, like turning back boats – which then Foreign Minister Andrew Peacock told Cabinet, prophetically as it turned out, “would be courting international pariah status” – offshore processing, Australian detention centres and temporary protection visas.

Turning back boats is the one policy that has unambiguously achieved its objective of stemming the flow of boat people. But it comes with costs. For some, the danger at sea has been replaced by the risk of forced return to the country from which they fled – like the 41 asylum seekers Australia sent back to Sri Lanka, a country which, assurances of a peaceful nation to the contrary, continues to persecute Tamils, including through torture and sexual violence, according to the US State Department, the United Nations High Commissioner for Human Rights and Amnesty International, among others. There is the farcical saga of the 157 asylum seekers kept on a floating Australian prison on the high seas to ensure there is no blemish on Immigration Minister Scott Morrison’s record of stopping the boats. There is the damage to the relationship with Indonesia, including the likely long-term consequences for co-operation on refugee issues.

Stopping the boats may solve a political problem in Australia but it does so by dumping the issue into other country’s laps. People smugglers will look for other countries to which to send their clients. Genuine refugees who are deterred from fleeing by Australia’s tough policy run the risk of persecution and worse.

The other policies of deterrence in Australia have not worked. The two big flows of boat people – between 1999 and 2001 and between 2009 and 2012 – occurred after the introduction of mandatory detention as a blanket policy in 1994.

Not only has it failed to stop asylum seekers coming by boat but it has inflicted untold damage on their lives. The evidence is consistent and unambiguous, most recently from the Human Rights Commission’s visit to Christmas Island – that people left in limbo, with no guarantee of an end point,   despair over their future and can bear the mental health scars for the rest of their lives. The effects on children, 983 who remained in detention centres at the end of May, are particularly rapid and severe.

At least most of the people who made it to Australia by boat before the gates slammed shut are now either living in the community on bridging visas or in community detention. Immigration Minister Scott Morrison wants to implement a form of temporary protection visas for those found to be refugees.  With no commitment that the visas will be renewed or that they will not be sent back, it is another form of enforced limbo, leading to the same spiral of despair and mental illness. Most of them have been denied the right to work, creating yet another source of despair. Jane McAdam, professor in international refugee law at the University of NSW, describes it to The Drum as “creating a broken future citizenry”.

Legislation introduced last month by Immigration Minister Scott Morrison sets up yet more hurdles for asylum seekers. One measure lifts the threshold for people at risk of torture applying for so called complementary protection (an alternative to refugee status) to 50 per cent. “In reality it means that if even an asylum seeker has a 49 per cent chance of being tortured, Australia will still send them home,” says McAdam.

She was one of 35 experts from diverse backgrounds and perspectives, together with federal MPs who met a fortnight ago to look at future policy. The details of their discussions are confidential until a report is released later this year but a discussion paper http://cpd.org.au/wp-content/uploads/2014/05/Final-Policy-Paper-Beyond-Operation-Sovereign-Borders-03.06.14.pdf that was fed into the process points to a better way forward.

It suggests detention should be kept to an absolute minimum, given the harm it causes. Asylum seekers should be given firm timelines for processing their claims, even though it might take three years to make decisions, given the large numbers involved. In the meantime, they should have work rights and health and welfare safety nets. If those found to be refugees are granted only temporary protection initially, there should be a defined process leading to permanent residence. Those not found to be refugees should receive reintegration help when returned to their countries.

Because of the harsh condition in Nauru and ManusIsland, claims there should be processed within a year. As well, asylum seekers should be allowed some freedom of movement outside the detention centres. Better co-operation with other countries in the region should include more funding to help other governments support asylum seekers.

These and other proposals would be steps towards restoring our standing as a nation to which many Australians, including Liberals, aspire – one that was among the first under the Menzies government to adopt the Refugee Convention and that Menzies described in the same broadcast in 1959: “It is a good thing that Australia should have earned a reputation for a sensitive understanding of the problems of people in other lands; that we should not come to be regarded as people who are detached from the miseries of the world.”









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