refugees, deportees and TPVs

Chris Sidoti

National Spokesperson

Human Rights Council of Australia


Deakin University

5 December 2002




A year has passed since the terrible events of the last quarter of 2001. A year has passed since the Tampa Affair dominated national and international news when Australian military personnel stormed a merchant vessel of a friendly nation to prevent it discharging its miserable asylum seeker passengers on Australian soil, a event that set the scene for the Australian federal election due late in the year.


A year since allegations that asylum seeker parents had thrown their children overboard, allegations that provided cannon fodder for the electoral conflict.


A year since the sinking of Suspected Illegal Entry Vessel X on the way from Indonesia to Australia with the deaths of 353 people.


A year since the deaths of two women asylum seekers when their boat sank off Australia’s Ashmore Reef.


A year since the Seven Acts of the Australian Parliament of 26 September 2001 that retrospectively validated what otherwise could have been the unlawful armed assault on the Tampa, the unlawful detention of its crew and passengers and possibly unlawful assaults on them, that deemed significant parts of Australia not to be part of Australia, that withdrew the protection of Australian laws from those coming here by boat to seek asylum and that sentenced genuine refugees to permanent insecurity and family separation through denying permanent settlement to all on-shore refugees.




We know far more now about the events of that period than we knew then. We now know, for example, about government activities at the time of the Tampa Affair, including the improper surveillance of the communications of Australian citizens and of foreign diplomats.


We have the report of the Senate Committee inquiry into “a certain maritime incident”, the alleged children overboard affair. We know now that the only thing thrown overboard was the truth and that that was the action not of asylum seekers desperate for protection from persecution but of politicians and their lackeys desperate for re-election. The log of HMAS Adelaide was tabled before the Committee on 21 February 2002. In a recent address a friend of mine, Frank Brennan, quoted extracts from that log relating to the inception of Suspected Illegal Entry Vessel 4 in October 2001. The extract tells us much about the way the Royal Australian Navy has been ordered to intercept over-crowded boats of unarmed, frightened, distressed people.


6 October [2001]

1813  First warning given to master of vessel.

7 October [2001]

0153  Second warning issued.

0216  Boarding party ordered by Commanding Officer to prepare to board SIEV-4 when vessel enters Christmas Island Contiguous Zone.

0258  Adelaide made close pass down SIEV-4 starboard side.

0335  Adelaide directed by CJTF to conduct a positive and assertive boarding.

0402  Warning 5.56 mm (cannon) shots fired 50 feet in front of vessel.

0405  Warning 5.56 mm shots fired 75 feet in front of SIEV-4.

0409  Warning 5.56 mm shots fired 50-100 feet in front of SIEV-4.

0414  Boarding party advised by CO that if 50 cal machine gun warning shots do not stop vessel, boarding party is to aggressively board SIEV-4.

0418-0420  Twenty-three rounds of 50 cal (20 rounds of automatic fire) fired in front of SIEV-4.

0430  Close quarters manoeuvering by Adelaide, SIEV passed close astern to Adelaide port quarter and reduced speed/took way off momentarily.

0432  Boarding party issued final warning (to SIEV) indicating that if they did not allow boarding party to board, Adelaide would not let them enter Australian waters.

0442  Boarding party effected a conducted non-compliant boarding of SIEV-4.

0445  Boarding party in control of SIEV-4.[1]


The description itself is intimidating, the words alone aggressive: a warship making a “close pass” along the side of the unarmed vessel, cannon shots fired three times and 23 rounds of machine gun fire in the dark, “close quarters manoeuvering”, “positive and assertive boarding”, “aggressively board”. Is this really how we would want and expect the Australian Navy to act towards unarmed civilians in leaky boats? This evidence raises questions about the operational instructions given to the Australian Navy by the Government in relation to the interception of boat people.


The Senate Committee’s report shed important additional light on what had happened late in 2001 but it left many questions unanswered. The Government refused to permit key witnesses from giving evidence to the Committee. The Government and Opposition members of the Committee combined to prevent the Committee issuing subpoenas to require these witnesses to appear. So although we know much more now than we did a year ago, we still wait for critical information to which we are entitled. Nothing short of a full judicial inquiry will uncover all that happened but unfortunately there is no prospect of the Government agreeing to that.


During the 2001 federal election campaign, soon after the terrorist attacks in the United States of 11 September that year, Government Ministers had said that terrorists could be attempting to enter Australia pretending to be asylum seekers. We now know more about this threat too. In its annual report for 2001-02 the Australian Security Intelligence Organisation said that between 1 July 2000 and 30 June 2002 it had undertaken security assessments of 5639 boat people of whom not one had been found to present a security risk. Not one.[2]


We also know more now than we did a year ago about the deaths of the two women, Nurjan Husseini and Fatimeh Husseini, off Ashmore Reef. In November the Western Australian State Coroner conducted an inquest into those deaths. Although the Coroner is still to present his findings, evidence given to the inquest indicates that the women drowned after the boat caught fire soon after a naval boarding party seized it. The boat quickly sank. There were two Australian vessels nearby, a Navy ship and a Customs ship. Both effected rescues of passengers but failed to save these two lives. The evidence given to the inquest does not suggest in any way any wrongdoing by Australian Navy or Customs personnel.[3] But it raises serious questions about the suitability of these services to undertake the interceptions and about the training provided to their personnel to effect rescues in circumstances such as those they encountered. Once again there are important issues in relation to the operational instructions given to the Australian Navy and Customs ships by the Australian Government.


So we know far more now about the events of late 2001 than we knew then but there is still much that we need to know. Over the last year the situation has changed in a number of fundamental ways. The issues that Australian Government policies raise are quite different now from what they were then.




No more boats


First, over the past year no more boats of asylum seekers have come to Australia. The Tampa Affair was the first time the Australian Government intercepted asylum seekers at sea and prevented their landing on Australian soil. Between then and the end of 2001 other boats carrying asylum seekers were intercepted. They were turned around at sea, if they were considered seaworthy, or, if they were not, their passengers were forcibly transferred to off-shore camps established in Nauru and Papua New Guinea, the so-called Pacific Solution. So far as I am aware no boats have attempted to bring asylum seekers to Australia this year.


We have to acknowledge then that the Australian Government has succeeded in stopping the boats. And we have to say that this is a good thing. As sympathetic as we should feel towards those desperately fleeing persecution we must recognise that the crossing from Indonesia to Australia in these leaking, over-crowded boats is an inherently dangerous practice that cost at least 355 lives last October and November alone. As supportive as we should be towards those who successfully make the crossing, we should not hesitate to name the practice as wrong and to be pleased and relieved that it has been stopped. But what has caused this change? The Government hails it as demonstrating the success of its policies towards boat people. Yes, but which policies? And at what cost?


Is it due to the indefinite mandatory detention of virtually all boat people in inhumane conditions in remote camps? Not likely. Indefinite mandatory detention was introduced in 1989 and was practised for twelve years before the boats stopped coming. So indefinite mandatory detention has been shown to have no deterrent effect and its continuation cannot be justified on the basis that it stopped the boats. It did not.


Is it due to the removal of permanent protection from refugees who come as boat people? The most that genuine refugees can now expect from Australia is a series of temporary protection visas that give them few rights and benefits here, that deny them family reunion in Australia and that prevent them re-entering Australia if they leave temporarily, for example, to be re-united briefly with their families elsewhere. Possibly the end of the flow of boats was due to the new temporary protection scheme. It is possible but not likely. Temporary protection visas were first introduced in 1999 but they had no negative effect on the numbers of boat people between 1999 and 2001. Indeed the numbers arriving actually increased many times over and were at their peak in 2000 and 2001. If the temporary visa scheme had any effect it was to increase the numbers. In 2000 and 2001 the numbers of women and children on the boats increased greatly. The denial of family reunion in Australia meant that the only hope of keeping a family together was to subject women and children to the risks of the terrible voyage so that they too could seek asylum on-shore. As human rights and refugee advocacy groups had warned in 1999 when the scheme was introduced, the scheme provided not an effective deterrent but a new incentive to come by boat. So the continuation of the temporary protection visa system cannot be justified on the basis that it stopped the boats. It did not.


The boats have stopped due to several other factors. One significant factor is the overthrow of the Taliban regime in Afghanistan. A very large proportion of boat people were refugees from Afghanistan. Now, with the Taliban gone, many Afghanis are looking to return home rather than seek asylum elsewhere. Another factor is the effect on potential boat people of the sinking of the Suspected Illegal Entry Vessel X and the deaths of 353 of its passengers in October 2001. This tragedy is well known and brought home to people the risks of the voyage. There is no doubt that it proved to be an effective deterrent. Australian Government policies too have undoubtedly played a part. The policy of interception at sea and the Pacific Solution have removed any hope of protection in Australia even of a temporary kind. They have removed the reason for taking the risk and so without doubt have been effective. So too have actions to identify, arrest and prosecute people smugglers and to provide more support to the United Nations High Commissioner for Refugees in countries to which the refugees first flee. Some Government policies have contributed effectively to stopping the boats, but not the policies of indefinite mandatory detention and indefinite temporary protection.


The camps


The second change over the past year has been in relation to those in the immigration detention centres.


The numbers in the on-shore camps have decreased greatly because no new boat people have arrived since September 2001. In August 2001 there were 3721 people in the Australian camps. On 21 November 2002 there were only 1282, of whom fewer than 600 were boat people.[4] The number of detainees then has been reduced by two thirds. The Curtin camp has been closed; there are few people left at the Woomera camp and it too is likely to be closed soon; the new camp at Baxter has been opened.


The nature of the detainee population has also changed significantly. The Department of Immigration and Multicultural and Indigenous Affairs has cleared the backlog of asylum applicants. Those accepted as refugees have been released into the community with temporary protection visas. Most of those rejected at the primary stage have also finished the review process and are now awaiting deportation. But where are they to be deported to and when? I will return to these questions.


The numbers in the off-shore camps has also been reduced substantially over the year, from the peak of 1515 at the end of 2001 to 819 early in December 2002.[5] The applications of all but 18 of the 1515 asylum seekers have been processed. Of those 736 have been recognised as refugees and 761 have not. Of the 736 recognised refugees, 526 have been granted entry to a country of asylum and 210 are refugees still detained with nowhere to go. Of the 761 not recognised as refugees, 155 were returned to Afghanistan by 20 November 2002 and another 110 to 120 have agreed to return but around 500 are still detained with nowhere to go.[6] Meanwhile political fall-out from the Pacific Solution is increasing in both Nauru and Papua New Guinea. The President of Nauru, Rene Harris, has described it as the Pacific Nightmare and the newly elected Prime Minister of Papua New Guinea, Sir Michael Somare, has declared his Government’s opposition to the continuation of the camp on Manus Island. The Pacific Solution has cost Australia dearly, not only in the millions of dollars used to bribe these impoverished states to take those Australia does not want but, far more importantly, in its good name and reputation and in political capital throughout the region.


Conditions in the camps have also been subjected to greater criticism over the year. From 24 May to 2 June 2002 the former Chief Justice of India P N Bhagwati visited Australia and inspected the Curtin and Baxter camps as the Special Envoy of the United Nations High Commissioner for Human Rights. Also from 24 May to 6 June 2002 a delegation from the Working Group on Arbitrary Detention established by the United Nations Commission on Human Rights visited Australia and inspected the Port Hedland, Woomera, Baxter, Perth, Maribyrnong and Villawood detention centres. Both Justice Bhagwati and the Working Group delegation met with Government Ministers and officials, detainees, refugees released into the community and non-government organisations. Justice Bhagwati issued his highly critical report soon after his visit.[7] The leader of the Working Group delegation, M Louis Joinet, an eminent and internationally regarded French jurist, made some initial comments soon after the visit and the Working Group’s full report was released on 24 October 2002.[8] That report too was highly critical both of the system of indefinite mandatory detention and of conditions in the camps.


The critical comments from these two UN mechanisms echoed and endorsed longstanding criticisms from domestic experts and organisations, including Australian Human Rights Commissioner, Dr Sev Ozdowski, of the Human Rights and Equal Opportunity Commission. Dr Ozdowski visited many detention centres and reported some improvements since 2000 but he remained very critical of conditions in them.[9] During the year Dr Ozdowski on behalf of the Commission conducted an inquiry into the situations of children in detention. That inquiry received evidence from large numbers of individuals and organisations, including some who had worked in immigration detention centres.[10] The evidence revealed a consistent pattern of dehumanising treatment and inhumane conditions in violation of international human rights obligations accepted by Australia. The inquiry is to report in 2003. The medical profession, grouped in an alliance including the Australian Medical Association and the Committee of the Presidents of Medical Colleges, added its expert voice to these criticisms condemning the detention system as undermining the mental health and general well-being of detainees, especially children.[11]


In October I was in Lombok in Indonesia and had an opportunity for the first time of inspecting the places where asylum seekers are accommodated there. I was ashamed that they enjoy far better conditions there than they do here. In Lombok they stay in hotels of a modest but reasonable standard. Their rooms have basic facilities including television. They are able to cook for themselves and their families and to live within family groups as families. They are free to move around the area, to go shopping or to the cinema or anywhere else they want to go. They have unrestricted access to newspapers, telephones and the internet. They are not bounded by razor wire, guarded by armed security guards, deprived of privacy and respect for their human dignity. They are far better off in poor, chaotic Indonesia than their counterparts are here in rich, democratic Australia. And that is disgraceful and scandalous.


Temporary protection visas


The situation of refugees recognised by the Australian Government has changed fundamentally over the year as a result of the extension of the temporary protection visa system to all refugees who enter Australia without authority. Although the Refugee Convention prohibits the imposition of any penalty on refugees based on their unauthorised entry into a country, Australian law imposes such a penalty.[12] Refugees who apply off-shore for settlement in Australia and are accepted are given permanent protection here. They receive settlement support, including English language education and assistance to find employment, and they can sponsor members of their immediate families to join them in Australia. They are also entitled to leave and re-enter Australia without difficulty. Those who enter without authority and apply on-shore receive only temporary protection. They are denied the benefits that off-shore refugees receive. Denial of family reunion is especially troubling because of the long-term harm it causes most of all to children but also to spouses and parents. That is why the right to family life and a child’s right to contact with both parents and, where separated, reunion with them are recognised as fundamental human rights.


The first studies of the situations of refugees on temporary protection visas were completed and published this year. They were undertaken in Queensland and Victoria.[13] The studies reveal a consistent pattern of insecurity and alienation among those on these visas. The same pattern was found among young refugees interviewed in May 2002 for the NSW Commissioner for Children and Young People.[14]


Refugees given only temporary protection know no security. Their lives are placed on hold, indefinitely. They are fearful that they will be returned forcibly to the countries where they faced persecution. They worry deeply about spouses, children and parents from whom they have been separated without hope of reunion. They are denied access to government funded job support programs and have difficulty in finding and retaining work because employers are reluctant to hire those without permanent residency. They encounter greater difficulty in being integrated into the broader community because they are excluded from English language programs. They are often already highly traumatised by persecution, flight and their experiences of prolonged detention in Australia and their insecurity exacerbates that. They often have difficulty in being motivated. Many are overwhelmed by a sense of hopelessness. The policy “has created uncertainty, insecurity, isolation, confusion, powerlessness and health problems among the holders of these visas as well as an increased burden on community organisations, state governments and volunteers”.[15]


The fears of temporary protection visa holders are now coming to a head as the first group of visas expire. Those granted three year visas under the scheme when it was first introduced in 1999 will soon know whether they will receive their second temporary visa or be required to find another country willing to accept them. There have been no full explanations how these assessments are to be conducted and no indications what the results are likely to be. Although only the first group of visa holders is directly affected, all others are watching with trepidation and anxiety. It may well foreshadow their own fates in one, two or three years when their visas are up.


The law


Over the past year the laws of 26 September 2001 have come into effect. I have mentioned several aspects of those laws already as they affect boat people and recognised refugees. One other aspect is their further erosion of proper administrative and judicial review of refugee determination processes. The laws excised Christmas Island, the Cocos (Keeling) Islands and Ashmore Reef from the Australian migration zone. That is, they effectively declared these parts of Australia to be no longer part of Australia for migration purposes. This denies asylum seekers who land on these islands access to the standard process for refugee determination, with its legal rights and protections, established under Australian law. They will have their claims determined by public servants without even the Refugee Review Tribunal able to re-consider their applications. In addition, the law seeks to displace proper judicial review of refugee status determinations both within the migration zone itself and within the excised territories. If there is no administrative review through the Refugee Review Tribunal and no judicial review through the courts, asylum applicants will be dependent on public servants getting it right – in a political environment of undisguised hostility towards on-shore applicants. Can they expect the right decision? Can we, as taxpayers and citizens, expect our public servants to get it right all the time? We are entitled to know that because the consequences of a mistake can be literally fatal.


The track record to date does not give me much confidence that we can rely on public servants in so sensitive a matter. In 2001-02 the Refugee Review Tribunal upheld the appeals of 62% of rejected Afghani applicants and 87% of rejected Iraqi applicants. Of all applications heard by the Tribunal it set aside 44% of negative decisions affecting people in detention. Departmental decision makers got it wrong many times. And then when the Federal Court heard applications for review of Refugee Review Tribunal decisions, it set aside 18.2% of those decisions.[16] The Tribunal too got it wrong many times. This experience gives me no confidence that public servants will get these decisions right. And now, because these levels of review have been abolished, we will not even know whether and when they get it right. There is a clear need for supervision and review by higher administrative tribunals and courts.


And some good news too


The past year, though so difficult and concerning, has not been unrelenting gloom. Some good things have happened too.


The first is that at last community opposition to these policies is growing stronger. After the appalling events of late 2001 human rights and refugee advocacy groups decided that challenging and changing community attitudes had to be the top priority. They saw little prospect of changing the policies of the triumphantly re-elected Howard Government and so decided not to waste their time and scarce resources in fruitless activity there. Instead they took the issue into the community as never before. The result has been a surge of community activity in support of refugees and asylum seekers. New groups have appeared in many areas, especially in rural areas where they have formed a loose colation as Rural Australians for Refugee.[17] Nationally groups have coalesced in a new campaigning organisation, Australians for Just Refugee Programs, which has broad based support.[18] These groups have focused on influencing community attitudes but they have not ignored policy development. Work begun in the mid 1990s on an alternative to detention has continued and there is now widespread support for a single model.[19] The unfortunate side is that much of this effort on behalf of asylum seekers has drawn individuals and organisations away from activity in support of indigenous struggles for reconciliation and justice at a time when those struggles too have been seriously set back.


The growing community opposition has been accompanied by new concern from local government in many parts of Australia. Many councils have shown leadership in relation to refugees. In Young the local council has been very public in supporting refugees who have settled in town and are contributing to the local community. Some Sydney councils, like Leichhardt City Council, have placed large banners across their main roads saying that the council supports refugees and asylum seekers, a small gesture that challenges prejudice.


Many councils are providing services for refugees, often in situations where the federal Government has sought actively to discourage or even prevent support services being provided. In areas of western Sydney councils have offered new community services to support the large refugee populations. In eastern and northern areas of Melbourne, for example Darebin City Council, councils have been particularly active in helping refugees on temporary protection visas.


Other councils have become advocates for refugees. The Brisbane City Council has been especially active. It has published material about their situations and placed its political weight on their side. In Melbourne the Darebin City Council has supported researchers from Deakin University and the Victorian Arab Australian Association who have brought to public attention the sufferings of refugees on temporary protection visas. In Sydney Marrickville and Waverley City Councils have adopted policies that support refugees and asylum seekers and their right to fair and just treatment and permanent settlement. For refugees this kind of advocacy by councils is more than mere support. It is recognition and affirmation of their humanity by an official governmental authority in a context in which Australia’s federal Government has denied it.


The media at last have become far more critical of Government policy and propaganda about asylum seekers. Perhaps this is an understandable reaction to the way in which the Government manipulated and lied to the media during the 2001 election campaign. Many journalists and commentators rightly feel used and abused. But whatever the reason Government policies and statements are being subjected to far greater scrutiny now than before. They are no longer accepted at face value. Serious investigative journalists have exposed many lies, untruths and half truths and contributed to more reporting of asylum seekers as persons, human beings worthy of our compassion. In this way they are under-cutting many years of Government effort to depersonalise and dehumanise asylum seekers.


In making these positive comments about trends in the media, I have to add, I am not suggesting a universal change of heart. On the contrary the radio shock jocks and the tabloid rabblerousers continue their past work of demonising and distorting. But certainly the trend is far more positive than we have seen in the past decade.


At the national level the best news has been the end of bipartisanship in refugee policy between the Government and the Opposition, announced by the Opposition Leader, Simon Crean, at the beginning of the year. Mr Crean also announced that Labor now opposed the continuing indefinite mandatory detention of women and children. Under intense pressure internally and externally the Australian Labor Party reviewed its policy during the year. The new policy was announced earlier this week.[20] It is certainly an advance on past policy but it goes only half way. It leaves Labor in the contradictory position of opposing indefinite mandatory detention but retaining it, opposing the excision of Australian territory but retaining it, opposing the temporary protection visa scheme but retaining it, opposing the Pacific Solution but introducing the Indian Ocean Solution.


Labor’s new policy does not permit family reunion for those on temporary protection visas. It does not reintroduce proper judicial review. It supports a single global system for refugee status determination but cannot even provide a single system for Australia, proposing one procedure for those on Christmas Island and another, quite different one for those elsewhere in Australia. It condemns Government vilification of asylum seekers but it uses expressions like “track down”, “smash”, “eradicate” and “cop on the beat, 24 hours a day, seven days a week”. Unfortunately Labor has failed to find the courage and commitment required to do what needs to be done. As a result its new policy will please no one.


Labor is a long way from government, however, and so what the present Government does must remain our principal concern. There too there has been a small positive step at last. The Government’s practice of locking up children has been its most vulnerable point. Many Government backbenchers have applied quiet but insistent pressure on the Prime Minister and the Cabinet to change this practice. External pressure, including from the more credible parts of the media, has been louder. Earlier in the year, without any public announcement that might undermine the Government’s tough rhetoric, the Minister adopted a new policy towards separated or unaccompanied children, releasing almost all of them into foster care in the community. Then this week, to pre-empt Labor’s release of its new policy, the Minister announced that the pilot scheme for the release of women and children at Woomera would be extended to the new camp at Baxter. These are important concessions by the Government but, of course, far short of what is required.




The changes that have occurred over the past year pose new questions and require new priorities to address the human rights of asylum seekers. We cannot keep fighting the battles of a year ago. The scene has changed. The principal reason for that, of course, is that there have been no more boats. In that context I suggest there are five issues requiring priority attention in the coming year.


Non-deportable deportees


First, what is to be done with non-deportable deportees? I have described how the population in detention as changed over the past year and I flagged this question. As of 21 November 2001 only 13 people of the 1282 in detention were asylum seekers awaiting a primary decision on their protection application, of whom only four were boat people.[21] In addition on 30 November 2002 there were only 43 persons in detention awaiting a decision by the Refugee Review Tribunal on their applications for review of negative decisions on refugee status.[22] There may also be a handful of other detainees awaiting completion of judicial review processes. So the great majority of those in immigration detention now are not asylum seekers awaiting determination of their claims for protection but rejected applicants awaiting deportation. The problem is that most have no realistic prospect of being deported any time in the foreseeable future.


Most prospective deportees are Iraqi or Afghani. The Iraqi Government will not accept them back and even if it did the Australian Government would be very hard pressed to justify the forcible return of anyone, whether or not a refugee, to Iraq while it prepares for war against the Iraqi regime which it condemns as evil. Most Iraqis awaiting deportation travelled to Australia after fleeing initially to another country, usually Jordan or Iran. Those countries are struggling to support the hundreds of thousands of Iraqis who have gone there and understandably they will not accept back those who have left.


So far as the Afghanis are concerned the overthrow of the Taliban regime has changed the situation in Afghanistan but the country remains gravely unstable and unsafe and it is struggling already to reintegrate the hundreds of thousands of refugees who have already returned from camps in Iran and Pakistan. It has indicated that it is willing to accept those who return voluntarily but not at this stage any forced returnees. The United Nations High Commissioner for Refugees has described the country situation as inherently unsafe and has agreed with the Afghani Government’s position on returnees.


Others awaiting deportation are Palestinians. In almost all cases the Israeli Government has refused to permit Palestinian asylum seekers to return to Israel or the Occupied Territories.


So Australia’s detention centres now accommodate persons awaiting deportation who have no realistic prospect of being deported. What is to be done with them? This is the most significant question now in relation to immigration detention in Australia but neither the Government nor the Opposition is prepared to discuss it. It did not rate even a mention in the Labor policy released this week.


The courts have not been as reluctant as the major political parties to deal with this issue. Some months ago the Federal Court ordered the release of a Palestinian detainee awaiting deportation. It held that his continued detention was unlawful because there was no prospect of his deportation in the foreseeable future.[23] The Government responded quickly, appealing the decision and at the same time inducing the Israeli Government to permit his return. After being freed for a short time the man was arrested, detained and deported within a matter of days. There have been other cases since this one and the issue will be decided ultimately by the High Court. That will not be the end of the matter, however. Over the past decade Australian Governments of both political persuasions have rushed to change immigration law whenever the High Court has decided a case against their wishes. No doubt the Government will do as it has done in the past if it loses on this issue. Whether it succeeds again in changing the law in these circumstances, however, is another matter now that bipartisanship on immigration detention policy has ended.


The situation of non-deportable deportees is an urgent humanitarian issue that needs to be discussed and resolved more satisfactorily than the current practice. I do not argue that Australia is required to permit unauthorised arrivals who are not refugees to stay. There is no basis in international human rights law that would support such an argument. But they should not be detained indefinitely until circumstances change to permit their deportation. Only those who have committed a crime under Australian law and been sentenced to imprisonment by an Australian court require detention. The others, the great majority, have committed no crime and their continued detention is unreasonable and inhumane. Although temporary protection visas are inappropriate for refugees they could be used quite appropriately to permit the release of persons awaiting deportation who are unlikely to be able to be deported within a short time.


Conditions in the camps


The second priority should be improving conditions in the immigration detention centres. I accept the difficulty of establishing and maintaining the best possible conditions in camps when they are over-crowded and have to integrate large numbers of new people. Now that there have been no new boats for over a year, there are few new people and the camps are no longer over-crowded. Now we should expect that those detained will enjoy conditions that are as good as possible. Detainees are not criminal offenders and they should be treated better than criminals. In fact their conditions of detention are far worse than in the worst Australian prisons. In the past there have been significant improvements in camp conditions when the numbers have dropped. That was the experience in 1997-98 when few boats arrived and the number of detainees fell to under 1000.[24] It is again a priority now.


The new camp at Baxter was opened during the year. It has been described as state of the art but, from what I have heard, it is better described as an electronic zoo. I remember when Katingal Prison was opened in New South Wales many years ago. It too was described both as state of the art and as an electronic zoo. It was a very modern, high tech prison with the latest in surveillance and control equipment. From the very beginning it was a nightmare to manage. After constant destructive action by inmates and a series of riots an independent inquiry recommended that it be closed as inhumane, degrading and unusable. It was. I fear that the Katingal experience has been forgotten, that the designers of Baxter have made the same mistakes. Time will tell.


Ensuring good conditions in Baxter and the other camps is not only a matter of humane treatment. It is also a matter of good management. Now that the camps are full of non-deportable deportees they are places where all hope has been extinguished. Detainees have exhausted all the processes for refugee recognition and have lost all hope of being permitted to remain permanently in Australia. Desperate people do desperate things. I have no doubt that, without the possibility of being released until deportation is possible and living in conditions that dehumanise and traumatise, many detainees will become destructive and violent and there will be more riots. Nothing is surer. This is not prophecy or doomsaying but simple fact based on the long experience of prisons and other forms of detention.


Conditions in detention must be improved.


Refugee determination process


The fall in numbers seeking protection also provides an opportunity to improve the refugee determination process. The current process is not good enough. It has been made worse by the constant series of amendments to legislation and practices over the decade. I referred earlier to the number of mistakes made by initial decision makers and even by the expert Refugee Review Tribunal. These decisions are far too important to permit us to accept the error rates that have been typical in the past. The whole process needs to change and more checks and balances are needed, not fewer.


To begin with, as the Human Rights and Equal Opportunity Commission recommended in 1998, the refugee determination function should be removed from the immigration department.[25] That department was established a century ago to control immigration to Australia. Controlling immigration is part of each country’s sovereign right to determine who is or is not permitted to enter and remain within that country. General immigration is a discretionary issue that can be regulated and enforced. Refugee determination is an exception, however. Countries that have ratified the refugee treaties, which Australia has, have binding legal obligations to accept and protect refugees within their jurisdiction.[26] Proper determination of refugee status is a legal obligation not an immigration discretion. It should be entrusted to a legal agency, not to public servants, and it should fall within the responsibility of the Attorney General, not the immigration minister and department.


The process should also incorporate proper administrative and judicial review to ensure the accuracy and lawfulness of determinations. The excision of Australian territory from the migration zone has excluded many refugee determination decisions from administrative review by the Refugee Review Tribunal. The limitations on judicial review and the widespread use of privative clauses in refugee law have eliminated almost any opportunity for judicial review. These changes to the determination process are unreasonable and, at a pragmatic level, unnecessary. They were introduced to overcome perceived abuse of the system but no abuse was ever shown. On the contrary what was demonstrated year after year was that original bureaucratic decision makers got it wrong far too often and that even the expert review panel got it wrong at times. Experience shows that proper review is essential, not that it is abusive. Understandable concerns about the time taken for the review processes and the costs involved should have been addressed by ensuring adequate resources for the tribunal and court to undertake the reviews promptly and procedural changes to streamline the process.


Critics of the present system have worked hard to develop an excellent alternative to the system of indefinite mandatory detention of asylum seekers.[27] The priority now is for the same hard work to be done to develop an alternative processing system that meets the requirements of human rights, natural justice, accuracy and efficiency. The present system is unacceptable in principle and a failure in fact.


Temporary protection visas


The temporary protection visa system should be abandoned for recognised refugees. It traumatises those subject to the scheme by subjecting them to continued insecurity. I have already discussed that.


In addition to these humanitarian considerations the policy is simply not in Australia’s interests. Until temporary protection visas were introduced in 1999, Australian Governments since federation had been committed to permanent settlement of immigrants. They explicitly did not want significant numbers of short-term migrant workers and still do not. They sought permanent commitment from those who came across the seas seeking new lives in this country so that the newcomers would become part of the Australian community, throwing in their lots with the rest of us for mutual advancement. All that changed in October 1999. Now we have people here for periods of years who are insecure, traumatized, denied assistance to learn English, accorded a discriminatory status that inhibits their integration into the broader community, left unsupported by and worried about their spouses and children. Self evidently this is not in Australia’s interests.


The priority in changing the temporary visa system is to permit family reunion. The forced separation of families even for a period of three years, which is Labor policy, is unacceptable. Indefinite separation through a series of rolling temporary visas, which is the Government policy, is intolerable. Recognised refugees should be entitled to bring to Australia their spouses, their children and, where they have dependent parents, then those parents too. This is not “opening the floodgates” to uncontrolled migration of large numbers of people. It is simply a humane way to permit those closest and most dependent family members to be re-united in this country.


Off-shore responses


Finally priority should be given to better responses to refugee needs outside Australia. One of the factors that have contributed to stopping the flow of boats has been a greater commitment to action further back along the line of refugee movement. Stronger regional cooperation to stop people smuggling has been the principal focus of Australian Government activity but it should be only one element of a better, more integrated response that prevents the need for refugee movement in the first place.


The conditions of refugees in the countries to which they first flee are often harsh. Often they are subjected to persecution and discrimination once again. They are often denied legal status and protection. They can be accommodated in camps in the most appalling conditions. They often have little choice but to move on, to seek protection elsewhere, in countries further away, like Australia. Australia should apply all its diplomatic and political skill towards ensuring that refugees are received and treated properly and their human rights are respected in the countries to which they first flee. It should put dollars behind this effort, increasing its financial support for the United Nations High Commissioner for Refugees, which manages the camps, beyond a token amount to something substantial. It should also increase its own refugee intake from the camps so that refugees have a real prospect of orderly re-settlement and do not feel the same pressure to move on through unsafe, unorthodox means.


The best way to resolve refugee problems, of course, is to prevent the circumstances that force people to flee in the first place. People do not become refugees by choice. They are driven from their homes by situations beyond their control: persecution and war. There are more refugees now than ever before, the result of a decade of genocide, human rights violations and violence. Only enhanced international efforts by the United Nations and the international community generally will promote effective resolution of present refugee problems and the prevention of new ones. Australia should give high priority to preventive work, addressing the causes of refugee flows and not merely the consequences. That will require not only greater efforts by Australian Governments but greater awareness, understanding and commitment by the Australian people.


Too often, unfortunately, we have been taken by surprise by developments even in our own region, unaware of what has been happening and ignorant of the historical, political and cultural contexts in which events occur. We require a serious commitment to educating Australians about our region. We need to demonstrate political and financial commitment to the well-being of our near and not so near neighbours. As we learned painfully through the Bali bombing, events in our region and the wider world can have a profound effect on us. We need to anticipate events and not merely react to them.




I have sought today to identify priorities for the next year. In doing so I have sought to contribute to moving the debate along. As I have said we cannot continue to fight the battles of a year ago. New and more urgent issues confront us.


Boats containing asylum seekers have stopped coming to Australia, at least for the present. But that does not mean that Australians need worry no longer about refugees. Although the issues have changed over the last year, they have not gone away. We face questions as complex and challenges as difficult as we did a year ago but they are different questions and new challenges. What has not changed is the intransigence of the Australian Government in the face of great human need. Nor has there been much change in the enthusiasm with which large numbers of our fellow Australians support it. Changing that remains our greatest challenge.

[1] Quoted in Frank Brennan SJ Developing just refugee policies Southern Highlands Rural Australians for Refugees Public Meeting Bowral NSW 25 August 2002 p 4.

[2] Australian Security Intelligence Organisation Annual Report 2001-02 ASIO Canberra 2002 p 34.

[3] The Coroner reported on 13 December 2002 and found no wrongdoing by Navy or Customs personnel: Inquest into the deaths of Nurjan Husseini and Fatimeh Husseini Record on investigation into death 13 December 2002.

[4] The Hon Philip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs, Ministerial statement House of Representatives 3 December 2002.

[5] The Hon Alexander Downer, Minister for Foreign Affairs and Trade, House of Representatives 4 December 2002.

[6] Figures contained in or derived from the Ministerial statement of The Hon Philip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs, House of Representatives 3 December 2002.

[7] Justice P N Bhagwati Mission to Australia 24 May to 2 June 2002: Human rights and immigration detention in Australia.

[8] Report of the Working Group on Arbitrary Detention Visit to Australia 24 October 2002 UN document E/CN.4/2003/8/Add.2.

[9] Human Rights Commissioner A Report on Visits to Immigration Detention Facilities by the Human Rights Commissioner 2001 Human Rights and Equal Opportunity Commission October 2002.

[10] Many submissions to the inquiry have been posted on the Commission’s website at .

[12] Convention relating to the Status of Refugees Article 31.1.

[13] R Mann Temporary protection visa holders in Queensland Multicultural Affairs Queensland, Department of Premier and Cabinet Brisbane 2001; Dr Fethi Mansouri and Melek Bagdas Politics of Social Exclusion: Refugees on temporary protection visas in Victoria Deakin University Melbourne 2002.

[14] The research was reported by the NSW Commissioner for Children and Young People in her submission to the HREOC inquiry on children in detention: .

[15] Dr Fethi Mansouri and Melek Bagdas Politics of Social Exclusion: Refugees on temporary protection visas in Victoria Deakin University Melbourne 2002 p 6.

[16] Frank Brennan SJ Developing just refugee policies Southern Highlands Rural Australians for Refugees Public Meeting Bowral NSW 25 August 2002 p 5.


[19] Human Rights and Equal Opportunity Commission For those who’ve come across the seas: detention of unauthorised arrivals Sydney 1998; Justice for Asylum Seekers on behalf of the Refugee Council of Australia Alternative approaches to asylum seekers: Reception and Transitional Processing System June 2002 ; Rural Australians for Refugees Ten point plan;  and Chris Sidoti Refugee policy: is there a way out of this mess Racial Respect Seminar Canberra 21 February 2002 .

[20] The Hon Simon Crean MP and Julia Gillard MP Protecting Australia and Protecting the Australian Way: Labor's Policy on Asylum Seekers and Refugees ALP Policy Paper 008 5 December 2002.

[21] The Hon Philip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs, Ministerial statement House of Representatives 3 December 2002.

[23] Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1009.

[24] Human Rights Commissioner Immigration detention 1998-99 review Human Rights and Equal Opportunity Commission Sydney 1999.

[25] Human Rights and Equal Opportunity Commission For those who’ve come across the seas: detention of unauthorised arrivals Sydney 1998 p 254-6 and recommendation R16.1.

[26] Convention relating to the Status of Refugees 1951 and Protocol relating to the Status of Refugees 1967.

[27] See footnote 19.