A fair go?
How the Abbott government orchestrated a Clayton’s withdrawal from the Refugees Convention

Image: Christmas Island Immigration Detention Centre

The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (the “Asylum Legacy Act”) was passed in the lower house and later, by a narrow margin, by the senate. It is complex legislation.

The government’s justification for it rests in part on the Abbott government’s favourite lie: that boat people are “illegal”. The Explanatory Memorandum includes the comment that “the measures are a continuation of the Government‘s protection reform agenda and make it clear that there will not be permanent protection for those who travel to Australia illegally”.

The rhetoric of “illegals”, coupled with renaming the department “Immigration and Border Protection”, has been used skilfully but dishonestly by Tony Abbott and Scott Morrison to convey a key dog-whistle message: that boat people are criminals from whom we need to be protected. It is the crucial lie that makes it possible for Australia to reward the party that promises the greater cruelty to asylum seekers. Unless we are really a country of people who would willingly mistreat innocent human beings simply because they have come asking for protection from persecution: as often as not, fleeing the same extremism we are fighting in the Middle East.

The Asylum Legacy Act (as it is now that it has passed the senate) has a number of striking features. It deals with the backlog of refugee cases that built up because the Gillard government simply stopped processing asylum claims after it revived the Pacific Solution.

Do you think we value the ideal of a fair go?  Well, not in this context. A key element of the Act is that it excludes the rules of natural justice. And it seeks to prevent the courts from reviewing decisions made in asylum claims. This is a point that needs a little elaboration.

The treatment of asylum seekers who arrive by boat has been one of the most divisive political issues in Australia’s recent political history. It is worth knowing a few facts. First, asylum seekers arrive in Australia by two paths. They may come by plane or by boat.

Those who come by plane must have travel documents and a visa to enter Australia; if not, then they are put on a plane back to their point of embarkation, at the expense of the airline that brought them in. Asylum seekers who arrive by plane typically have a short-term visa (study, tourism, business) but when they clear passport control in Australia they apply for asylum. When their original visa expires (typically, in a matter of months) they are allowed to remain in the community on a bridging visa, while their asylum claim is resolved. About 30 per cent of this group are ultimately accepted as refugees.

Those who come by boat suffer several disadvantages. First, they come from countries that make it difficult or impossible for them to get travel documents. Second, they come from countries where it is practically impossible for them to get a visa to enter Australia. They come to Australia by boat because they can’t come by plane. Typically, these people travel to Malaysia or Indonesia. They do not pass through countries that have signed the Refugees Convention. They get a one-month visa on arrival in Indonesia, so their position is very precarious when that visa expires. From that time, they are liable to be jailed, or sent back to the country that has been persecuting them, if they are found. Asylum seekers who get to Indonesia live in perpetual fear of detection. In Indonesia, asylum seekers who are assessed as refugees may wait ten or 20 years before they are offered a place in a safe country. In the meantime, they cannot get jobs and their kids cannot go to school, for fear of detection. 

Not surprisingly, some of them – those with initiative and courage – place themselves in the hands of people smugglers, commit themselves to a dangerous boat trip and end up in Australia.

Over the past 20 years, more than 90 per cent of boat people have ultimately been assessed by Australia as refugees legally entitled to protection. The tragic irony of their position is that they are the focus of political attack, while the larger number of plane arrivals create hardly a ripple of concern. But boat people are far more likely to be genuine refugees.

Make no mistake: refugee status assessment is a life-or-death question. And the decisions are going to be made quickly: on a special “fast-track” system. But now there is no need for natural justice, and the courts are not allowed to supervise the minister’s enormous powers.

Most property developers would be horrified if planning decisions were made like this, and were not capable of being corrected in the courts. And they only have money at stake, not their lives.

The Asylum Legacy Act has removed all reference to the Refugees Convention from the Migration Act. This is a Clayton’s withdrawal from the Refugees Convention. We purport to introduce into the test for refugee status something equivalent to the Refugee Convention test, but the Act now provides that the minister can return a person to their country of origin even if this would breach our international obligations. Let’s be clear about this: the minister can return a person to their country of origin even if that means the person will be killed or persecuted on their return.

Temporary Protection Visas (TPVs) have been reintroduced. TPVs have been controversial. They have two key conditions. First, they last only three years, so at the end of three years the refugee has to prove again that they are still a refugee. This reduces the incentive to knuckle down and create a future in Australia. After all, why go to the bother of mastering English, building a business, and so on if you may have to leave after three years?

Second, they prohibit family reunion. So, if a man gets to Australia, proves that he is a refugee, and wants to see his wife and children again, he will not be allowed to. If he leaves Australia to meet up with them briefly in another country, he is not allowed back into Australia. If they want to get back together with him as a family, the only way they can do that is by using a people smuggler! TPVs that forbid family reunion create a powerful incentive for women and children to get on boats.

But isn’t that what the Abbott government is so keen to prevent? It’s hard to know when to believe them.

Julian Burnside
Julian Burnside is a barrister based in Melbourne. @JulianBurnside

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