Alexander W. Nicholas
Australians for Just Refugee Programs
The right to liberty is a fundamental right, recognised in all major
human rights instruments,
both at global and regional levels. The right to seek asylum is, equally, recognised as a basic human
right. The act of seeking asylum can therefore not be considered an offence or a crime. Consideration should
be given to the fact that asylum-seekers may already have suffered some form of persecution or other hardship in
their countryof origin and should be protected against any form of harsh treatment.
As a general rule, asylum-seekers should not be detained.
When I began my internship with Amnesty International Australia I was appalled to discover that Australia is alone among Western countries in having mandatory non-reviewable detention of asylum seekers. A Parliamentary review on the detention practices of 19 countries in 1994 found that a majority of countries initially detained unauthorised arrivals, but that many countries then released detainees once there identity was established, usually with regular reporting conditions and after a surety had been paid. Countries with similar legal systems to Australia (Canada, the United Kingdom, the United States and New Zealand) do not apply mandatory detention. While asylum detention only affects a small fraction of those seeking asylum in Australia each year, it has the most serious implications for Australia's commitments under human rights standards that are recognised by 142 countries. Arthur C. Helton, the director of the Refugee Project, Lawyers Committee for Human Rights in New York, argues that the automatic detention of aliens infringes basic obligations under the 1951 Convention and its amended 1967 Protocol Relating to the Status of Refugees. "Detention as a migration deterrence device applied on a categorical basis can violate both treaty and customary international law prohibitions against prolonged arbitrary detention."
Australia currently has an offshore refugee humanitarian program, and an onshore refugee program, with a combined intake of approximately 12,000 people per annum. The government insists on giving priority to those ‘languishing’ in refugee camps overseas. Their basis for such a priority is that those 5000 boat people arriving on our shores each year of late are cheating the system and avoiding the queue. The Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) has admitted to the flawed nature of such simplification of our refugee intake. Their 1994 Annual Report stated that "People were in countries where conditions are changing constantly and access is difficult for Australian migration officials". DIMIA does not have a single Australian staff member stationed in countries such as Iran, and has only recently acquired one in Iraq. This throws serious doubt over the concept of a functional 'queue' in the region. Neither Pakistan nor Indonesia (countries on the route of the illegal trade of asylum seekers to Australia) are signatories to the 1951 Refugee Convention. Thus, unlike Australia, they are under no legal obligation to accept refugees. By simply turning these people away we have been criticised with 'burden-shifting' rather than 'burden-sharing'. Indeed, Article 31 of the Refugee Convention prohibits the punishment of asylum seekers for illegal entry. The Convention does not speak of queues or provide for permits to escape; it imposes obligations on countries that have signed the Refugee Convention to receive and protect refugees. There are no strict guidelines on the manner in which people must flee persecution.
This paper is primarily concerned with asylum seekers who enter Australia unlawfully (that is, without a valid visa) and are detained in one of six privately operated immigration detention centres. DIMIA stated that at 2 November 2001, there were 2,736 people in immigration detention with about 40% of them in the Woomera facility in South Australia. The conditions of detention may be acceptable over the short term, but when detention becomes prolonged it violates Australia's human rights commitments. Those detained often spend months, sometimes years, locked up. Despite the Convention on the Rights of the Child (CROC) and DIMIA's own guidelines stipulating that children and other vulnerable people should only be detained in exceptional circumstances - this remains common practice.
Since October 1999, if their application is successful, these people are granted a three year temporary protection visa (TPV) with limited entitlements. These people are not permitted to have their families join them. This is with a view to them returning home when circumstances deem that reasonable under the terms of the Refugee definition. It has been argued that this is tantamount to creating a 'second-class' refugee.
Arthur Helton stresses that although detention as a deterrent may be politically and publicly popular, it is of uncertain effect. An Australian Institute of Criminology Report (AIC) in 1989 concluded that "lengthy incarceration places an unnecessary financial burden on the Australian community, and is deleterious on those incarcerated and cannot be justified in human terms."
In Australia the practice of detention has to be seen in the context of increasingly restrictive entry and immigration policies. Ours is an immigration policy based on elements of control and, as with the European and American experience, there has been a shift from the influx of economic migrants in the 1970's. This has resulted in a blurring of the categories of asylum seekers and other migrants. The challenge is to unlink asylum and migration issues so that each can be addressed in its own right. There is a need to develop differentiated policies to deal with asylum seekers in need of international protection and other aliens seeking entry. The border control issues may vary according to the country's position and border requirements. Yet the challenge remains the same - to generate the appropriate kinds of policy responses that comply with legal and moral obligations, guarantee protection for those who are in need of it and also respond to the concerns of the public.
It is important to remember that in our endeavours to formulate policy, we remain mindful of the lives that these policies impact. These are real people. All should be afforded the respect and support that Australia is privileged enough to be able to provide. Many are genuine refugees. Others may be seeking a better life for themselves and their families. Such action should not be condemned. It is after all an enduring aspect of all humanity. We could perhaps learn from the lead of the African nations whose 'African Protocol' represents an adaptation of the Refugee Convention to embrace an economic class of refugee. Despite many African nations now questioning both this generous view of who qualify as refugees and their ability to respond to it, it represents foresight and a sympathetic view of the changing nature of forced people movement.
Under questioning Mr Philip Ruddock, the Minister for Immigration, Multicultural and Indigenous Affairs, raised concerns over security, health issues and the risk of asylum seekers absconding during determination proceedings. The Minister suggested that these concerns justified the use of detention in asylum proceedings. Yet Australia is the only country that deems it necessary to enforce a mandatory, non-reviewable regime. When audited by the Australian National Audit Office, DIMIA claimed that "the differences in detention policy between Australia and these other countries relate primarily to geography, and to historical and political factors." The fact remains that detention as a migration deterrence device applied on a categorical basis can violate both treaty and customary international law. Mr Ruddock claimed that Canada was beginning to emulate our policies. Further to this, he recently stated that - "What we are seeing in Britain is a desire to emulate our approach in all its facets...If to copy is a sincere form of flattery, we are seeing a government in the UK putting in place arrangements that mirror our own". It is not accurate to claim that any of these countries are emulating Australia's controversial stance. Mr Ruddock also criticised Sweden's liberal policy on the grounds of a lack of security and compromising health issues. Yet it is a fundamental right set out in Article 3 of the Universal Declaration of Human Rights: "Everyone has the right to life, liberty and security of person", and in Article 9: "No one shall be subjected to arbitrary arrest, detention or exile". Under international law refugees are afforded the same protection as aliens. The only permissible grounds for detention of aliens are that the individual might abscond or for reasons of public safety.
I argue that mandatory and indeterminate detention, without effective control by the courts or justification particular to an individual person, is not an appropriate response to those seeking our protection. The policy of mandatory detention of most unauthorised arrivals breaches international human rights standards. These standards permit detention only where necessary and require that the individual can challenge the lawfulness of his or her detention in the courts.
On 24 July 2001, the Minister stated that: "My concern, which has always been that people should be available for processing and available for removal, might be able to be addressed if you had a system in which you could clearly identify where people were if they were free in the community". There are many viable alternatives to a policy of mandatory detention of asylum seekers, alternatives that incorporate established elements of effective policy and have been successfully trialed or already form part of the refugee policy of other Western countries. I will now look at the evolution of immigration detention in the United States, Canada, the United Kingdom and Sweden. Sudden increases in asylum seekers in the 1980s saw detention become an issue in each of these countries, but each has dealt with the phenomenon in quite different ways. The Australian government alone has chosen to entrench a policy of mandatory detention.
Despite the fact that the United States Immigration and Naturalisation Service (INS) has 18,500 detention spaces available, the US is at the forefront of trialing alternative programs to mandatory detention. Prior to 1954, asylum seekers and immigrants in the US were screened and held, if necessary, at the Ellis Island immigration inspection and control centre in New York Harbour. The reform of this program, and subsequent abandonment of detention by the INS in 1954, was heralded as "one more step forward toward humane administration of the immigration laws". The US authorities have approached the issue of detention in a systematic manner, trying alternatives such as the INS Pilot Parole Project. In order to determine whether asylum seekers were being unnecessarily detained, the Parole Project was established in 1990. Agreed requirements were that individuals report to the local INS office monthly, appear for all immigration hearings, and appear for deportation if ultimately excluded. The project concluded in October 1991 and was shown to be a successful alternative to detention. Carefully administered, working with community and government agencies, it prevented unnecessary detention of asylum seekers and proved much cheaper than maintaining detention facilities. The INS review found that concerns over asylum seekers absconding proved unfounded. It found high rates of compliance by represented asylum applicants in terms of meeting monthly reporting requirements: 503 reported while 35 failed to report (93 per cent compliance with INS reports) and a 95 per cent compliance rate regarding appearances while on parole with 42 appearances in the immigration court and two non-appearances. Helton concluded that the Program 'demonstrates that interests of immigration control can be reconciled in a workable fashion with the human rights of refugees'.
Another progressive program trialed by the INS was the Appearance Assistance Program (AAP) in 1997. It represented a different kind of answer by the INS to the dilemma of how to allocate scarce detention resources. Instead of the traditional approach of focusing on whom to detain, the AAP focuses INS attention on when to detain. The alternative approach begins with the observation that peoples' willingness to attend hearings and comply with terms of community supervision changes over time. Thus the focus is to maximise release and community supervision at the beginning of a person's case, when they have an incentive to appear at their hearing, and maximise detention at the moment that the person loses his or her claim. Under the alternative approach, those with legitimate claims will have greater opportunity to prepare and will never spend time in detention. At the same time, more of those who lose will be deported. On March 31 2000, the last day of program operations, 91% of the 153 AAP intensive participants had appeared for all of their required hearings, compared to 71% (401 participants) for the comparison groups that faced no risk of re-detention. The program proved close supervision to be a practical possibility, even in the complex neighbourhoods of New York. This was primarily because of the role that a community sponsor, known as a guarantor, plays. When a detained asylum seeker met the criteria (community ties and a guarantor) the AAP would recommend release from custody, without bond, conditional upon complying with the programs requirements. The INS had discretion to approve or deny the recommendation and violation of supervision requirements could result in recommendations for re-detention. Even among asylum seekers apprehended at airports as they enter the country for the first time, it was found that more than half have ties to local communities in the United States sufficient to make supervision viable. The image of the asylum seeker arriving with no contacts in the country is accurate only in a minority of cases. The results of the AAP make a compelling case for community supervision as an alternative to detention. It uses proven selection criteria and supervision techniques to obtain voluntary compliance so long as the risk of absconding does not become too great. It was found to increase the efficiency of the expensive detention system and, more importantly, those seeking our protection would, in many cases, be able to avoid the pain of detention altogether. In Australia, the 'Inquiry into Detention Practices', a submission to the Joint Standing Committee by the Department of Immigration and Ethnic Affairs (1993), also asserted that the "timing of release" should be a central concern in reforming our immigration detention policy.
The immigration policies of Canada and Australia have taken similar paths. As with most Western countries, they experienced increases in refugee and asylum applications during the 1980's. Interestingly, though both countries share a common public law tradition, there is a divergence in their regulation and control of refugee claims and illegal immigration. In 1967 Canada transferred from the discretionary administrative model (that prevails in Australia) to an adjudicative model. This system recognises a right to entry for purposes of determination and allows access to welfare benefits and freedom in the community while awaiting determination. Refugee claimants in Australia are provided with no incidental benefits such as welfare benefits, employment permits or medical care. The Minister claims that Canada is on the way to passing a similar refugee protection system as in Australia. This claim is flawed when it comes to detention. The new Canadian Bill, C-11, complies with Conclusion 44 of the UN High Commissioner for Refugees’ Executive Committee which recognises a state's right to temporarily detain an asylum seeker in order "to verify his or her identity or to protect national security and public order". The Bill also provides for frequent detention reviews and complies with Article 37 of the Convention on the Rights of the Child. The Canadian law does comply with Canadian international commitments and with International Human Rights Standards. Australia defended its controversial stance in Geneva in December 2001. Australia proudly played a central role in the 1951 UN Refugee Convention. We need to once again embrace that role with the support of an unprecedented 142 nations.
Britain receives approximately 100,000 asylum seekers a year. Recently, they have undoubtedly tightened their asylum application process. Yet the 'emulation' to which Mr Ruddock alludes is lost on some of his counterparts. The British Home Secretary, David Blunkett, said the new measures would "send a message to the rest of the world that Britain is not open to abuse but nor is it a fortress Britain". The Blair government has offered incentives for asylum seekers to live in state-run centres. These are referred to as detention centres, but resemble hostels and the inmates are simply obliged to spend each night there. A new welfare system has been provided to cover food, clothing and government services. In order to identify those in the community they have introduced an ID smart-card that includes a photograph and fingerprints. Amnesty International lodged strong criticism concerning arbitrary detention of asylum seekers in Rochester Prison Kent in January 1997. In many respects the response of the British government has been favourable.
Sweden can be usefully compared to Australia because the two countries receive roughly the same number of asylum seekers each year. In 1999 out of 11,231 asylum applications approximately one third were from Iraq. The Swedish model operates on the premise that it is the role of the state to make the detention process (if at all necessary) as humane as possible for people that have been through a traumatic experience. In Sweden the four detention centres are state run and house a maximum of 120 people. In Australia, Woomera Detention Centre alone has room for 2000. The Swedish model of detaining asylum seekers was reformed in 1997. All asylum seekers who arrive in Sweden without documentation are detained only until their identification has been investigated and verified (a period lasting from two weeks to two months) and not for the entire duration of the determination process. While they become integrated into Swedish society asylum seekers are required to stay in a designated municipality. The Swedish system focuses on the needs of people who have already suffered some form of persecution or other hardship in their country of origin. The Swedish administration recognises that these people need to be protected against any form of harsh treatment.
Australia has a sophisticated system in place for determining whether or not people meet the Refugee definition. Yet it is the rigidity of this system, and in this particular argument, the nature of mandatory detention, that may fail the very people it is designed to protect. This paper has shown that there are alternatives. Those explored included the US examples of a program of conditional release with reporting conditions as endorsed by the INS Pilot Parole Project and versions of a system of bond whereby an individual in the community takes responsibility for those released as in the Appearance Assistance Program. This program maintained a focus on the timing of release, a focus reinforced by the official Australian view of the Department of Immigration and Ethnic Affairs 1993 'Inquiry into Detention Practices'. Other alternatives that were analysed include the relatively liberal procedures adopted in Canada and Sweden and the more 'open' detention centres of the United Kingdom.
Australia has not given international human rights treaty provisions the force of law, although it has ratified them. In other words, the rights enshrined in these treaties have generally not been implemented or incorporated into domestic law. As a result, Australia's commitments under international human rights treaties are usually not enforceable. We must realise that the failure to affirm human rights values for any one category of person is a failure of the whole system of mutual obligations and respect through which decent, pluralistic, democratic life is conducted. The future management of refugee flows is a complex and challenging human rights concern throughout the world. There is a need for all nations to confront the widespread human rights violations that lead to refugee movements in the first place. There exists an equal need to provide international protection to those people seeking it under the definition of the 1951 Refugee Convention.
I am committed to the notion that a dialogue between governments, NGOs, the relevant international agencies and refugees themselves should be promoted. In this way, issues and problems can be analysed and positive solutions proposed - solutions enshrined in a respect for human rights and for the institution of asylum.
In researching this paper, interviews were conducted with the Hon. Philip Ruddock, Minister for Immigration, Multicultural and Indigenous Affairs, detention centre officers and refugees. The author is thankful for the guidance and support of Professor Elaine Thompson at the School of Politics and International Relations, the University of New South Wales, and also for assistance from Dr Graham Thom, Coordinator for the Refugee Team, Amnesty International Australia and for the use of their extensive resources. The opinions expressed are solely those of the author.
 UN High Commissioner for Refugees, Guideline on detention of Asylum Seekers (1996), 3.
 Don Mcmaster, in his scathing indictment of refugee policy, Asylum Seekers: Australia's response to refugees, highlights what he terms the "highly political and contentious situation" in which detention, for all practical purposes, has been unreviewable in the courts since 1992 (2001), 67.
 Parliamentary review by the Joint Standing Committee on Migration, 'Asylum, Border Control and Detention', February 1994.
 Helton in Adelman (ed) Refugee Policy, 'Making Refugee Detention Policy', 14.
 Department of Immigration and Multicultural Affairs Annual Report (1994).
 Olsson, Hans, Amnesty International refugee officer, Sydney Morning Herald, Dec. 5 (2001).
 Enfield, M., 'Detention, Justice and Compassion' in Crock (ed), Protection or Punishment (1993), 44.
 DIMIA Fact Sheet, November 2001 (available from DIMIA website: [https://www.immi.gov.au]). See also Those who've come across the seas: Detention of unauthorised arrivals, a Human Rights and Equal Opportunity Commission inquiry into the detention of unauthorised arrivals in Australia, 1998.
 Helton, supra note 4, at 14.
De Mayo, C. and Philipa McIntosh, Blueprints for a Parole System in Crock (ed) Protection or Punishment (1993), 145.
 Enfield, 'Detention, Justice and Compassion', in Crock (ed) Protection or Punishment (1993), 45.
 Interview with Philip Ruddock - who was appointed Minister for Immigration and Multicultural Affairs in the first Howard Ministry in 1996 - conducted by A.W. Nicholas, 30th Oct 2001. The interview was conducted on the eve of Federal elections. The Australian government was re-elected, and Ruddock's portfolio was maintained.
 Australian National Audit Office, The Management of Boat People, (1998), 31.
 Sydney Morning Herald, Dec. 5 (2001), 6.
 The Universal Declaration of Human Rights (1948) is usually regarded as the foundation of international human rights law.
 AFP (UNHCR Refugee News) July 24th 2001
 Helton in Adelman (ed) Refugee Policy, 254.
 New York Times, 13th November 1954, 20.
 Helton, supra note 4, at 17.
 Stone, Christopher, 'Supervised release as an Alternative to Detention in Removal Proceedings: Some Promising results of a Demonstration Project', Georgetown Immigration Law Journal (2000).
 Department of Immigration and Ethnic Affairs 'The Official View', in Crock (ed) Protection or Punishment (1993), 129.
 McMaster, supra note 2, at 117.
 Adelman et al (ed) Immigration and Refugee Policy- Australia and Canada Compared (1994), 303.
 EXCOM Conclusion, 44.
 Article 37 of the Convention on the Rights of the Child provides an explicit prohibition on the use of capital punishment for minors.
 Sydney Morning Herald, Dec 5 (2001), 6.
 McMaster supra note 2, at 101,
 Mares, Peter Borderline: Australia's treatment of refugees and asylum seekers (2001), 195.
 Stagoll, Eva, (Member of the AI National Refugee Team), Refugees in Australia - An Update. [https://www.amnesty.org.au/airesources/index-37.html]
 Piper, M., 'Detention Oversas: Comparative Practices', in Crock (ed) Protection or Punishment (1993), 122.
 The 'Alternative Detention Model', endorsed by the Human Rights and Equal Opportunity Commission and the 'Integrated Community Release Model' proposed by Grant Mitchell are further examples of more flexible and appropriate detention models.
 The Vienna Convention on Treaties, Article 26, stresses "carrying out one's obligations in good faith". Australia needs to re-commit to this agreement.
 Hughes and Liebaut, Detention of Asylum Seekers in Europe: Analysis and Perspectives (1998), 3.
Adelman, H., et al, Immigration and Refugee Policy: Australia and Canada Compared, 2 Vols, Melbourne University Press, 1994.
Amnesty International, 'A Comparative Report on Australian and Canadian Refugee Law', 2001.
Amnesty International, 'Australia, A Continuing Shame: The mandatory detention of asylum-seekers', AI Index, June 1998.
Amnesty International, 'The Migration Legislation Amendment (Immigration Detainees) Bill 2001', 2001.
Amnesty International, 'Who are refugees?', April 2001.
Australian National Audit Office, The Management of Boat People, Commonwealth of Australia, 1998.
Casella, Alexander, 'Asylum, Immigration and Refugees: Out of Control', The World Today, August/September 2001.
Centre for Refugee Research, 'Asylum Seekers - Mandatory Detention: UNSW Centre for Refugee Research Policy Position', [https://www.crr.unsw.edu.au/CRRdetentionpolicy.doc]
De Mayo, C. and Philipa McIntosh, 'Blueprints for a Parole System' in Crock (ed) Protection or Punishment : The Detention of Asylum Seekers in Australia, The Federation Press, Sydney, 1993.
Department of Immigration and Ethnic Affairs, 'The Official View', in Mary Crock (ed), Protection or Punishment: The Detention of Asylum Seekers in Australia, The Federation Press, Sydney, 1993.
Department of Immigration and Multicultural Affairs (DIMA), Annual Report (1994).
Department of Immigration, Multicultural and Indigenous Affairs website: [https://www.immi.gov.au]
Enfield, M., 'Detention Justice and Compassion' in Mary Crock (ed), Protection or Punishment: The Detention of Asylum Seekers in Australia, The Federation Press, Sydney, 1993.
Helton, A.C., 'Making Refugee Detention Policy More Rational and Compatible with International Human Rights Standards: Reforming Alien Detention Policy in the United States - A Case Study', Migration Monitor, October 1993, pp13-18.
Human Rights and Equal Opportunity Commission, Those who've come across the seas: Detention of unauthorised arrivals, Commonwealth of Australia, 1998.
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Kremmer, Christopher, Sydney Morning Herald, Dec. 5 (2001)
Mares, Peter, Borderline: Australia's treatment of refugees and asylum seekers, UNSW Press, 2001.
McMaster, Don, Asylum Seekers: Australia's Response to Refugees, Melbourne University Press, 2001.
Piper, Margaret, 'Detention Overseas: Comparative Practices', in Mary Crock (ed), Protection or Punishment: The Detention of Asylum Seekers in Australia, The Federation Press, Sydney, 1993.
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Stone, Christopher, 'Supervised release as an Alternative to Detention in Removal Proceedings: Some Promising results of a Demonstration Project', Georgetown Immigration Law Journal, 2000
Fourteen years ago a twelve year old Australian boy of Greek and British lineage travelled through Egypt, Sudan and Kenya with his family. A dawn journey through the heart of Cairo was to haunt and enliven him as he grew. He graduated from the University of Sydney with a Bachelor of Arts: the Arab World, Islam and the Middle East.
He has recently completed his Master of Arts in the School of Politics and International Relations at the University of New South Wales, Sydney, gaining a distinction average in such courses as International Law, Crisis Diplomacy and Issues in Public Policy. He completed an internship with the Refugee Team for Amnesty International Australia, and is now a Research Officer with Australians for Just Refugee Programs.
A friend once said - "If only one person could save the world". I believe one person can; that person is the subject of this composition, that person is you, that person is within all of us. It is in our hands.
Alexander W. Nicholas
|Paper presented at the International Conference "The Refugee Convention, Where to from Here?" convened by the Centre for Refugee Research (Sydney, December 2001).|
|This article is published in both Mots Pluriels and the Australian Journal of Human Rights (AJHR)|