Wednesday, June 15, 2005

PM pushes to avert split on detention - National -

Reading the Sydney Morning Herald in preparation for the upcoming debate tournament (Austral-Asians) in Brisbane, Queensland. So this blog might be featuring quite a bit more of Australian news than you might actually want to read...=P But look at it this way, we rarely get news about what's happening on that continent after all and it is probably the closest 'Western' country to our shores.

Background on Australia's immigration policy: One of the harshest in the world and has come under fire especially post Pauline Hanson and in particular the manner in which John Howard pushed a very hardline anti-immigration (more accurately illegal immigration and refugee) stance in the election before this. This was partly in reaction to the 9/11 incident as it was also a reaction to Pauline Hanson's One Party electoral success, reflecting the relatively broad societal support

Three particular aspect of Australia's policy massively differentiates it from the rest of the Western nations (and possibly violates international laws and treaties).
1. Mandatory detention system for immigrants/refugees without a valid visa permit
2. There is no judicial review of the detention
3. Detention is indefinate

International law and treaties e.g. Refugee Convention (of which Australia is a party to) states that every individual has a right to seek asylum. But it also acknowledges the right of every country to control its immigration. However, these same countries are also bound to provide protection and consider all asylum claims. What is important is that these self same laws prohibit the use of detention as a BLANKET policy of dealing with illegal immigration. It also requires that these detention be reviewable by the court (which the Australian system currently does not allow for, allowing it to indefinately drag its foot without recourse). The principle behind this is an acknowledgement that many of these refugees might be subject to abuses (mostly political or even social and economic) which makes it impossible for them to avail themselves to legal recourse to legally enter the country. Hence the state really should not penalise illegal immigrants when considering them for asylum. Mandatory detention precisely does this exact thing.

According to Dr Jane McAdam, law lecturer at the University of Sydney, despite the EU receiving a 100 times more asylum applications, no nation within the EU actually uses detention as a form of accomodation pending asylum application. Even so, detainees haev the right (and the expection) of speedly processing as well as recourse of the judiciary. Detention is use both at the beginning (verification of identity) and at the end (processing of documentation) as well as when the person might pose a threat to public safety.

Even on the issue of time, there are very strict time limits placed on detention subsequent to which the person must be release or the detaining subject to governmental (Canada, senior immigation officer) or judicial review (elsewhere). In Spain, France and Ireland, the period is about 4 days. Austria, Germany, Belgium and Luxembourg, maximum is between 2-3 months. Canada comes in between at about 8 days.

So what's been happening is that there have been four rebel MPs from Howard's Liberal Party who are breaking ranks with the party and initiating their own private member's bill would would mitigate the harshness of the regime (note, merely mitigate and not abolish, putting it someways behind best internation and legal practices above). This has however openned them up to accusations of political terrorism and balckmail as well as ignoring the wishes of the party and the people (seemingly a lack of support). After all, the system has been credited with reducing the number of illegal immigration to Australia (although forcing ships away from Australia on grounds of suspecion might have a lot to do with it...or a reluctance to help drowning refugees as well)

In particular, the two bills seek to address different issues.
1. Migration Amendment (Act of Compassion) Bill 2005 serves the needs of those already in detention centres. Subject to judicial assessment on an individual basis by a serving or retired judge, upon determination that they are not likely to pose a public safety threat or to abscond, families (those with children) and those who have already been in the detention centres for more than a year will be released.

This bill seems to have greater and broader support than the second bill.

2. Migration Amendment (Mandatory Detention) Bill 2005 modifies (but again does not abolish) the mandatory detention regime for future asylum seekers.

Noteworthy features include:

1. A time limit of 90 days for detention and only to cases where verification of identity, assessment of asylum application, protection of public safety, conducting health checks and ensuring the continued presence of the asylum seeker (for removal if necessary) is needed. Children will only be incarcerated as a last resort (the New Paper did a pretty good series of reports on a 3 year old boy whose entire life had been in such a detention centre.) This puts it at the maximum period of EU nations.

2. Application for release by detainees to the Federal Court on the basis of a lack of reasonable grounds for detention. While this is a good policy, the fact that the bill does not attempt to abolish mandatory detention probably means a lot more work for the courts.

3. Should the government (Department of Immigration and Multicultural and Indigenous Affairs) believe that detention for more than 90 days is necessary, it must make an application to the Federal Court for such an order.

The fear of supporting the second is the logical one which states that it would encouraged renewed people smuggling, always a dangerous endeavour. While the current policy is obviously a stop gap measure and would never address the root cause of refugees and people smuggling, one must acknowledge it is an entirely rational fear. After all, even if enforcement were top notch and all illegal immigrants could be caught, the cost of repartriating all of them (assuming asylum application fails) would be very high. But even so, I think in this instance, considering that life and human dignity is at stake, cost should not be an issue. But more than that, Australia is facing a severe shortage of labour so loosening their immigration policy would not hurt (Howard habing taken the first step of issuing temporary visas to workers).

At any rate, according to the above report, the negotiations by Howard and the rebel MPs have not gone entirely well (or anywhere for that matter). To quote the article: "Mr Howard offered concessions including setting time limits on processing of refugee applications and agreeing to allow fathers to live with mothers and children in low-security residential accommodation. But he would not agree to fully releasing families into the community, ending indefinite detention, giving those on temporary protection visas permanent residency and allowing an independent arbitrator."

Personally, I do think that the concessions don't go far enough. I think at the very least there ought to be some form of independent arbitrator or judicial review of the system. The fact that Howard refused to budge on this SEEMS indicative of a knowledge that the system is seriously fundamentally wrong and that such a policy (if pushed ahead) would have made that entirely clear to the rest of the populace. And even assuming that the majority of the population (and more importantly the electorate) supports him, I think his international reputation would take a hit particular in our region (SEA) which probably make the bulk of the detainees in the Refugee Centres.



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