Throughout the latter half of 2009, the Australian Labor Party introduced several Senate bills to reform the Australian immigration system, particularly policies regarding refugees and asylum seekers, which have revived political debate on the future of Australia’s detention system. The current system has been characterized by Senator Chris Evans, Minister for Immigration, as “one of the toughest and most sophisticated border security regimes in the world.” Consequently, it has also been the subject of enduring criticism. For years, opponents, including the Australian Human Rights Commission, Amnesty International, and numerous Australian community legal centers, have challenged policies such as mandatory detention and arbitrary enforcement, as well as legislative privative clauses restricting judicial review for refugees and asylum seekers.

Coincidentally, the Labor Party – the same political faction that enacted the 1992 policy of mandatory detentions for all unlawful entrants – introducted the latest Migration Amendment (Immigration Detention Reform) Bill. Under the 1992 policy, all persons arriving on the shores of Australia without prearranged visas are subject to indefinite detention pending adjudication of their claims. At the time, it was argued that mandatory detentions would serve to more rigorously ensure border security and deter unauthorized entry into Australia. However, the ruling Labor Party is now seeking to strike a balance between the protection of public security and individual human rights.

Mandatory detentions

The government policy of mandatory detention was enacted to stem the tide of refugee arrivals and applications for protection visas. Beginning in the 1970s, refugees from South Asia increasingly landed on Australia’s shores without consent. The Labor Party implemented mandatory detention as a “humane deterrence” to future unauthorized asylum seekers, making the protection visa process as unattractive as possible. However, given that detention in an Australian immigration facility, even indefinitely, is often an improvement from the conditions that asylum seekers are fleeing, the policy has not had the desired effect. In fact, the rates of refugee arrivals steadily increased over the last two decades.

Despite the failure of the detention system to reduce on-shore protection visa requests, the policy was maintained under the National-Liberal Party Coalition government. Rather than frame the policy as a deterrent, the Coalition defended detentions as a means of protecting Australian national security by giving immigration officials the authority to properly identify all unauthorized arrivals. In a minority report on the Detention Reform Bill, Senators from the Liberal Party have concluded that the detention system is essential to protecting Australia from dangerous or “potentially problematic non-citizens.”

“Key Immigration Detention Values”

In July 2008, the Labor government, led by current Prime Minister Kevin Rudd, announced a new immigration platform, New Directives in Detention, based on seven core principles. While these Key Immigration Detention Values reassert the necessity of mandatory detention in the pursuit of vigorous border security, the core premise of this new vision is a softening of the policy itself, with important exclusionary principles that restrict its implementation. For example, children, and in some cases their families, would no longer be subject to mandatory detention. Informal practices such as “indefinite or otherwise arbitrary” detentions would similarly be inadmissible. Importantly, all detentions would be subject to regular review to ensure adequate conditions and the preservation of the “human dignity” of detainees.

At the time Senator Evans stated, “Labor rejects the notion that dehumanizing and punishing unauthorized arrivals with long-term detention is an effective or civilized response.” He argued that lengthy and indefinite detentions would not serve as practical deterrents for those fleeing more tumultuous circumstances, such as asylum seekers. This new direction aligns with goals outlined by the UN Office of the High Commissioner for Human Rights regarding arbitrary detentions, freedom of migration, and the treatment of children. Despite this new philosophy, very few principles of the ad hoc system have been enshrined in legal statutes.

The Labor Party has therefore been working to draft legislative reform in accordance with the New Directives. The informal administrative practice has, since 2008, been to detain asylum seekers only for initial identity, health, and security screening and then issue bridging visas to low-risk individuals whereby they may live in Australia pending decisions on their refugee claims. However, those posing a security risk or who fail to meet the definition of a refugee and cannot prove a credible fear of discrimination, persecution, or violence upon return to their home country can be removed from Australia.

Pursuing legislative reform

While Australia has an obligation to protect asylum seekers under various international treaties, such as the International Covenant on Civil and Political Rights, it is not required to assimilate them into Australian society. The result has been indefinite detentions, as individuals may exceed the allotted quotas or fail to meet the conditions for refugee status, yet face potential human rights violations if returned to their home countries. For the government of Australia, asylum seekers are a sensitive concern given that nearly one-third of refugees worldwide reside in the Asian Pacific, according to the UN High Commissioner for Refugees.

The Australian Parliament has taken many measures aimed at reducing the burdens placed upon individuals seeking asylum in Australia while balancing the veritable need for secure borders to counter the challenges of the 21st century. In August, a Parliamentary committee recommended improvements in the condition of immigration detention facilities in an effort to minimize hardships during lengthy detention periods. In September the Senate passed the Abolishing Detention Debt Bill which eliminated the policy of charging asylum seekers for the time spent in detention facilities.

The Complementary Protection Bill, introduced in September by the Labor Party, addresses Australia’s responsibilities to asylum seekers who may not qualify as refugees yet face persecution or other detrimental circumstances in their home countries. This bill is purportedly framed to align Australian policy with several international humanitarian treaties such as the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child. In 2008, Akram Al Masri, an asylum seeker from the Gaza Strip, was murdered outside a magistrate court in Gaza after his protection claim was denied and he was removed from Australia. Paul Boyan of the Woomera Lawyers Group assisted Mr. Al Masri while he was in detention in Australia. After hearing of the killing, Mr. Boyan remarked, “As with most of them they came here looking to get away from the persecution and hopefully their wives and children could join them. That’s what [Al Masri] wanted, that’s what he was hoping for. It’s horrible.”

Mr. Jack Smit of Project Safecom told ABC Radio that efforts were being undertaken to persuade Minister of Immigration Chris Evans to re-examine Mr. Al Masri’s case and have him returned to Australia. He said, “It’s a tragic story that could have been prevented if we were a bit more humane to asylum seekers who have a case.”

Codifying detention values

The Immigration Detention Reform Bill, introduced to the Senate in June 2009, seeks to place extensive focus on a risk-analysis approach to detentions. In other words, detention of unlawful non-citizens will depend almost exclusively on the threat these individuals may pose to the Australian community. Inherently, the bill retains the practice of mandatory detention, but it no longer broadly applies to the practice of entire groups, such as asylum seekers. Though the bill is an extension of current polices under the Rudd government, its impact is important in that it will be binding on future administrations and therefore will ensure continuity of current administrative polices.

Under the bill, the purpose of detention is to “manage the risks to the Australian community” and “resolve the non-citizen’s immigration status.” It further asserts that detention is to be a “measure of last resort,” to be applied for the “shortest practicable time.” It further states that initial detention is required for assessment of health, identity, and potential risk of all unlawful entrants; however, extended detention is restricted to those individuals who pose an “unacceptable risk to Australian community” or who have violated immigration conditions.

The bill enumerates discretionary authority to authorized immigration officers to issue temporary community access permission, whereby they may grant leave to detainees who would pose minimal community risk to Australia. This clause is an especially innovative proposal that could greatly reduce the hardship of detention and foster a more peaceful compliance with detention center regulations. Detainees will have more incentive to remain in good standing and comply with their immigration detention requirements under this stipulation.

The response

While opponents of mandatory detention have largely welcomed the symbolism of the bill, some critics have voiced their concern that the bill does not go far enough to legislatively enact the Labor government’s administrative platform in its entirety. Future governments, according to Amnesty International, will not be bound to all of the current government reforms unless there is full legislative regulation. Of the seven Detention Values, the proposed bill does not address those dealing with the conditions of detention centers nor the treatment of detainees. Therefore, in the absence of legislation in this regard, the standards within centers can be arbitrary and disconnected. Ms. Rowena Irish of the Immigration Advice and Rights Center stated that it would be preferable “to see the principles clearly enunciated within the legislation itself.”

Australia’s Department of Immigration and Citizenship (DIAC) responded in a statement that stressed the government’s commitment to implementing all of the seven Detention Values. Predicting that the Immigration Detention Reform bill will ultimately pass the Senate, DIAC further argued that the bill “will ensure increased clarity, fairness, and consistency in responding to unlawful non-citizens.”

Australian Lawyers for Human Rights (ALHR) and the Australian Human Rights Commission both contend there are legitimate concerns that “unacceptable risk” can be applied in a broad manner rather than on an individual basis. ALHR warned, “The removal of an individual’s liberty is serious and should be constrained. Setting up broad classifications of individuals who should continue to be detained could be open to abuse.”

On the other hand, DIAC has argued that risk-assessment strategies are an “essential component of strong border control and [an] important element in ensuring the integrity of Australia’s immigration program.” The government is tasked with balancing the need for humane treatment of individuals with the responsibility of protecting the national security of Australia and the well-being of its citizens. The Immigration Detention Reform Bill provides such balance, according to DIAC.

The Liberal Party has contended that the current version of the bill goes too far in altering an effective system that protects Australia’s national security. Senators Guy Barnett, Mary Jo Fisher, and Russell Trood examined the bill and presented a Senate report outlining the party’s concerns. The report states,” Liberal senators take the view that many of the measures contained in the Bill are likely to serve to undermine the integrity of Australia’s border security regime. In light of this danger, Liberal senators are not persuaded that a compelling case for reform has been made.”

The Senate Standing Committee on Legal and Constitutional Affairs, which issued its final report on the bill on 20 August 2009, made several important recommendations in regard to a possible amended version, though it supported the general principles of the intended reformations. Notably, the Committee recommended that the bill be expanded “to more closely reflect its adoption of the Immigration Detention Values.” The Committee also suggested that requests from detainees for Temporary Community Access Permission be considered. Additionally, it was stressed that the “best interests of the child should be a primary consideration in the placement of the child’s immediate family as well as the placement of the child.”

Towards continuity

The administrative implementation of the New Directives in Detention policy has reconstituted the Australian immigration system in practice by the Labor government under Kevin Rudd. The emphasis placed on the conditions of detainees, timely adjudication of claims, and less imposing detention regimes is more aligned with the goals of the High Commissioner for Human Rights in regard to detention, migration, and the rights of children, as well as the spirit of international humanitarian law. The pending bill before the Australian Senate has been proposed as a means of ensuring binding regulations for future governments.

However, the current bill proposal does not fully give legislative effect to current government policies and is therefore in jeopardy of enabling a lapse in progress and a return to the detrimental policies of the past. Under the guidance of recommendations by various human rights and refugee advocacy groups, as well as Australia’s Green Party and the Committee on Legal and Constitutional Affairs, the bill can substantively reform the entire Australian immigration apparatus ensuring an unambiguous break from policies of past governments that have undermined the human rights of thousands of individuals seeking asylum within the borders of Australia. Though the Rudd government has espoused a pivotal denunciation of Australia’s failed immigration regime, legislative reform has yet to enunciate a clear departure from the legacy of an oppressive detention policy.