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easing mandatory detention? « Previous | |Next »
March 24, 2005

Are we seeing the beginnings of a more compassionate approach to those asylum seekers who come to Australia's shores without authority? Though the vast majority of whom have been found to be refugees the tough policy of border protection remains firmly locked in.

But are there signs of changes in the treatment of those asylum seekers who are still detained? What of those rejected applicants awaiting removal who are in Australia's detention centres, but who have no realistic prospect of being sent to any other country?

Two events have opened up Australia's mandatory detention policy to questioning once the fears eased, and it was realized that the illegal flood of migrants into the country was not happening.

First, the Rau affair disclosed that an Australian citizen could be placed in effective solitary confinement because they suffered from mental incapacity. That is deemed to be wrong, and the harshness of the Department of Immigration treatment an Australian citizen as an illegal immigrant placed the Howard Government on the back foot.

Is it legal to lock up an Australian citizen in this way under the Migration Act?

Secondly, a 2004 High Court ruling found that stateless people can be locked up for the rest of their lives in mandatory detention. As Carmen Lawrence says the High Court ruled that this indefinite detention was lawful:

The Court determined that a stateless person, who has committed no offence against any law of Australia, and who has requested deportation following the failure of his application for refugee status, "could be detained here indefinitely, and if necessary for life, if no foreign country were willing to receive him".

That is seen to be untenable. Those who are stateless can be held indefinitely in detention centres under the laws Parliament passed. The finger can be pointed directly and squarely at Parliament on this issue. And because of executive dominance, it can be pointed at the Howard Government.

It is the Government who continues to keep them in maximum security without public scrutiny; who threatens them with deportation; who offers the stateless a choice between staying or going that ignores the possibility that the stateless may be genuinely terrified of retribution in their homeland.

So we have two pressure points building around mandatory detention. Hence the recent political shift that has taken place in the way the Australian state governs the stranger or alien as the Other.

The shift is that a bridging visa will now allow long-term, failed asylum seekers to live in the community, rather than detention centres, until the time is right for them to be deported to their country of origin. These are for detainees who have exhausted all legal avenues of appeal, but cannot be removed from Australia.

So why has the shift taken place in the tough line? Bill Leak has a suggestion:


Leak implies that the emotional template in the community is softening towards the detainees, now that the boats have stopped arriving. It was not from a concern for the protection of fundamental human rights in Australia, or from Australia's international treaty obligations.

The bridging visa is a small step. How about the next step being an amnesty for those refugees on temporary protection visas? What about Australia doing something about the 50 asylum seekers on the Pacific island of Nauru?And the 38 Vietnamese detained on Christmas Island for 20 months. These detainees are denied effective access to legal help.

Is not this indefinite detention also wrong?

| Posted by Gary Sauer-Thompson at 2:20 PM | | Comments (0)