Court of Conscience Issue 13, 2019 Boats and borders: Australia’s response to and asylum seekers Court of Conscience Issue 13, 2019

Boats and borders: Australia’s response to refugees and asylum seekers

Court of Conscience respectfully acknowledges the Bedegal, Gadigal and the Ngunnawal Peoples as the custodians and protectors of the lands where each campus of UNSW is located.

Front cover: Iranian-Kurdish Behrouz Boochani. Boochani is a writer, journalist and Associate Professor at UNSW, and was held on Manus Island from 2013 until its closure in 2017 (Jonas Gratzer) Editorial team

Jacob Lancaster Calum Brunton Brian Wu Contents Editor-in-Chief Editor Editor Jacob Lancaster is a fifth year Calum Brunton is a second year Arts/Law Brian is a second year Commerce/ Science/Law student whose caffeine student who enjoys cycling and walking Law student with an interest in addiction is best understood with in the mountains. In his spare time he learning new languages as a means reference to his TSA approved, travel- can be found in the kitchen perfecting his of gaining an insight into different sized espresso machine. homemade chilli oil or locked in a staring cultures. Having retained around half contest with the unread pile of books at of his French vocabulary from high Beatriz Linsao the end of his bed. school and able to name more than Managing Editor ten types of Italian pasta, his next Beatriz Linsao is a fourth year Arts/Law Glenda Foo linguistic challenge is to try to master student and just your average girl. She Editor all the legal terminology and generous plays Christmas songs three months Glenda Foo is a third year Commerce/ scattering of Latin phrases that inhabit too early and always plans hikes that Law student. When not daydreaming his mountain of law textbooks. she never goes on. One day she hopes about how she could save the world, to have a plant that lives for more than she enjoys experimenting with new two weeks. recipes and critically examining ones in UNSW Law Society the restaurants and cafes she visits. Phoebe Saxon Sophie Berton Managing Editor Drew Gillespie Social Justice Vice-President Phoebe Saxon is a final year Juris Editor Doctor student. When not fretting about Drew Gillespie is a second year Arts/ Natasha Hartanto whether a comma is italicised or not, Law student who enjoys boogying, Fletcher O’Connor she enjoys practising her Spanish, nitpicking grammatical errors, Presidents reading multigenerational family sagas contemplating distributive justice and pickling various vegetables to and watching sunsets. He has been reduce food waste. planning on moving to New York since Introduction Scrutinising government practices he was 10 and reading the New York Michael Tanazefti Times since he was in Year 10. Managing Editor 1 Editorial 63 Data quality and the law of Michael Tanazefti is a fifth year Arts/ Rachel Hurwitz Jacob Lancaster protection in Australia Law student. He takes pride in the Editor 7 A brief primer on Australia’s treatment Regina Jefferies fact that he’s never run a marathon, Rachel Hurwitz is a second year however is slowly accepting the fact Psychology/Law student. She enjoys of refugees and asylum seekers 69 The amended secrecy provisions of that a future career in law may change watching true crime shows almost Court of Conscience Editorial Team the Act that. In his spare time he enjoys as much as she loves exploring 13 Timeline of Australia’s refugee policies Sophie Whittaker debating the usefulness of the oxford new cities. comma, and catching up on sleep. Court of Conscience Editorial Team 77 Deterring asylum seeking in Australia Melanie Ling Dr Antje Missbach and Katharine Tang Editor Rethinking the popular narrative Assoc Prof Wayne Palmer Managing Editor Melanie is a penultimate year Arts/ Katharine Tang is a fifth year Arts/ Law student. In her spare time, Law student. She loves experimenting Melanie enjoys reading reviews 19 Whose island home? Tension between the government and with digital art, watching esports, and of lengthy rail journeys. She pays Ingrid Matthews and the courts binging on ice cream. When she is not particular attention to pit stops and doing those things, she is probably trains bearing fancy names. Prof James Arvanitakis running around the house annoying 27 Making migration law 85 Strategic litigation, offshore detention her dogs. Cherry Tang Dr Eve Lester and the Medevac Bill Editor Sagang Chung Cherry Tang is a third year Criminology/ 37 Vanquishing asylum seekers from Anna Talbot and Editor and Social Media Strategist Law student who doesn’t judge people Australia’s borders Adj Prof George Newhouse Sagang Chung is a final year based on race, age or gender, but on Prof Linda Briskman 91 Reforming judicial review since Tampa Juris Doctor student. When she spelling, grammar and punctuation. isn’t studying, she is an avid food 43 Imitation as flattery Jack Zhou photographer. She manages an Marie Veinberg Stephen Phillips 97 Rethinking the character power as it Instagram food account showcasing Editor relates to refugees and asylum seekers Sydney’s vibrant and diverse food Marie Veinberg is a third year Science/ scene. Law student that lives in fear of AI’s Increasing support to refugees and in Australia inevitable takeover, and yet, is willing to asylum seekers Dr Jason Donnelly Annabel Rigby accept her cyber overlords if they can Editor and Social Media Strategist finally make a programme that does her Annabel Rigby is a third year AGLC for her. 51 An asylum seeker’s access to Medicare The need for statutory reform International Studies/Law student and associated health services while who is thrilled by the fact that her Lea Voss awaiting determination of a Protection 105 A ‘legacy’ of uncertainty compulsive perfectionist qualities Editor have finally become a subject of Lea-Theresa Voss is a Master of Visa application in Australia Sanjay Alapakkam praise rather than collective sighs and Laws student all the way from Danielle Munro and Niamh Joyce 113 Reimagining the protection response eye-rolls. In her spare time, she enjoys Germany/Austria—she can’t decide 57 Community, belonging and the to irregular maritime arrivals colour-coordinating her study notes which she identifies with more. She and crafting aesthetically pleasing hopes to work in international law irregular migration Jeswynn Yogaratnam poké bowls. before the world overheats. Violet Roumeliotis Content warning

This journal contains articles about sexual assault, mental health issues, self-harm, and suicide which may be confronting to some readers.

Support Services for Victims of Sexual Mental Health Support Services Assault and other Crimes

NSW Rape Crisis Centre provides a 24/7 Lifeline, call 13 11 14 or telephone and online counselling services to visit https://www.lifeline.org.au/ victims of sexual assault in NSW. Call 1800 424 017 or Mensline, call 1300 789 978 or visit nswrapecrisis.com.au visit https://mensline.org.au/

NSW Victims Services provides information Kids Helpline, call 1800 551 800 or and support services to victims of crime visit https://www.kidshelpline.com.au/ in NSW. For the Victims Access Line Beyondblue, call 1300 224 636 or call 1800 633 063 visit https://www.beyondblue.org.au/ For the Aboriginal Contact Line call 1800 019 123

Sexual Assault Counselling Australia provides counselling, information and referral services to victims of sexual assault in Australia. Call 1800 211 028 or visit sexualassaultcounselling.org.au

1800 Respect (National Sexual Assault, Domestic Family Violence Counselling Service) Call 1800 737 732 or visit https://www.1800respect.org.au/ Editorial Boats and borders: Australia’s response to refugees and asylum seekers

Jacob Lancaster

i Introduction refugee definition enshrined in art 1A(2) of the Painting by Abbas Alaboudi Refugee Convention,3 our politicians focus Welcome to the 13th Issue of Court of instead on a claimant’s mode of arrival.4 At a Conscience. This year’s thematic considers time when refugees and asylum seekers are Australia’s treatment of refugees and asylum treated with suspicion and cast offshore, we seekers. It is a timely and sobering reminder must remember their humanity and our obli- that Australia is failing many of those whom it gations under international law.5 is bound to protect. This topic was selected By way of example, on 4 July 2019, the for two reasons: first, because Australia’s cruel Government introduced the Migration Legis- and inhumane treatment of irregular asylum lation Amendment (Regional Processing seekers focuses more on discouraging people Cohort) Bill 2019 (Cth) (‘Regional Process- smugglers and less on upholding our obliga- ing Bill’). If passed as law, it will permanently tions under international law;1 and second, bar those asylum seekers who attempted to because human rights are universal and come to Australia by boat, and were taken to inalienable,2 and should not be enjoyed only by a regional processing country after 19 July some. We must overcome our apathy to those 2013, from applying for an Australian visa.6 It we turn away from our borders and detain is difficult to square with art 31 of the Refugee offshore in conditions that offend human Convention, which prohibits State signato- rights, human dignity, and human conscience. ries from imposing penalties on refugees on account of their illegal entry or presence.7 It ‘Stop the boats!’ also fails to acknowledge that it is not illegal, The challenge ahead lies in discrediting the under international law, to seek asylum.8 three-word slogan, ‘Stop the Boats’, that Nevertheless, the Bill is ostensibly compatible has come to characterise Australia’s stance with international human rights law because, toward asylum seekers attempting to enter according to the Government, this ‘differential Australia by sea. Rather than attempting treatment is for a legitimate purpose … that is to distinguish claims on the basis of the reasonable and proportionate in the circum-

Court of Conscience Issue 13, 2019 1 stances’.9 The Regional Processing Bill was academics, legal professionals, and students. Increasing support to refugees and Constitution, although it is more likely to be introduced on the same day as the Migration A close reading of each text reveals nuanced asylum seekers constitutionally valid than its predecessor. Amendment (Repairing Medical Transfers) perspectives covering five areas: ‘Rethinking The next two articles address an issue that is The consequences that flow from failing to Bill 2019 (Cth) which, if passed, will remove the Popular Narrative’, ‘Increasing Support to often overlooked, being how we can increase hold our officials to account is clearly evident an important medical transfer pathway for Refugees and Asylum Seekers’, ‘Scrutinising support to refugees and asylum seekers in the article written by Dr Antje Missbach and asylum seekers in regional processing coun- Government Practices’, ‘Tension Between living in Australia. Danielle Munro and Niamh Assoc Prof Wayne Palmer, titled ‘Deterring tries to be transferred to Australia for assess- the Government and the Courts’, and ‘The Joyce, in ‘An Asylum Seeker’s Access to Asylum Seeking in Australia: Bribing Indo- ment and treatment.10 Need for Statutory Reform’. Medicare and Associated Health Services nesian Smugglers to Return Asylum Seekers While Awaiting Determination of a Protection to ’. In this piece, Dr Missbach and Reframing the refugee crisis Rethinking the popular narrative Visa Application in Australia’, paint a labyrin- Dr Palmer draw our attention to allegations Issue 13, titled ‘Boats and Borders: Austra- The first suite of articles challenges us to thine picture of Medicare access for Protec- levelled by Indonesia against Australia that lia’s Response to Refugees and Asylum rethink the popular narrative that is propa- tion Visa applicants, and highlight the effects Australian Border Force officials bribed Indo- Seekers’ attempts to overcome our apathy gated by our politicians and media outlets of this process on their physical and psycho- nesian people smugglers to turnback a vessel, by humanising these issues, which are about refugees and asylum seekers. In logical health. called ‘the Andika’, heading for New Zealand. too often framed as distant and removed. ‘Whose Island Home? Art and Australian In ‘Community, Belonging and the Irregu- The authors also discuss how Australia may Our emotional detachment is no accident: Refugee Law’, Ingrid Matthews and Prof lar Migration’, Violet Roumeliotis takes us away have violated domestic and international law, the visual framing of refugees in the media James Arvanitakis provide an insightful, from the black letter of the law, and forces us and how this may both jeopardise diplomatic as threats to our national sovereignty and structuralist account of British colonialism to consider the importance of human connec- relationships with our geographical neigh- security has directly led to their dehumani- and Australian coloniality, and extend this tion. In doing so, Roumeliotis explains how we bours in the Asia Pacific and encourage other sation.11 There are few images which depict narrative to explain the indefinite offshore can better integrate irregular migrants by boat countries to adopt a similar approach. asylum seekers with clearly recognisable detention of asylum seekers who seek to within our community, and draws attention to facial features,12 owing to government poli- enter Australia by boat. a social dimension that is little discussed. Tension between the government and cies that prohibit reporters from engaging Dr Eve Lester, in ‘Making Migration the courts with, or photographing the faces of, detain- Law: Courting our Conscience’, instead ties Scrutinising government practices The following two papers highlight the ees.13 Clearly then, the refugee crisis must be the concept of mandatory detention to the Changing pace, we have three articles that tension between the Government and the reframed — not as a political issue, but as Euro-centric concept of absolute sovereignty critically examine current government prac- courts in the context of Australia’s oppres- a humanitarian one that demands an equally which emerged during the nineteenth century tices around refugees and asylum seekers. In sive treatment of irregular asylum seekers. In compassionate response.14 as a response to ‘a political and economic ‘Data Quality and the Law of Refugee Protec- ‘Strategic Litigation, Offshore Detention and This year, Court of Conscience has desire to regulate race and labour’. The tion in Australia’, Regina Jefferies examines the Medevac Bill’, Anna Talbot and Adj Prof encouraged greater activism over this significance of this piece lies in Dr Lester’s the Department of Home Affair’s poor data George Newhouse discuss how litigators, problem. For the first time, we published rigorous analysis of government rhetoric collection practices from an information doctors, caseworkers and other members of weekly brochures on our Facebook page surrounding the (Cth), systems perspective. Poor data quality directly the community pushed against the cruelty of which canvassed some of the pressing and how it can be used to justify and perpet- undermines our ability to hold the Department the Minister to refuse urgent medical care to problems confronting refugees and asylum uate social constructs that impact those who of Home Affairs, and the Australian Border children and adults living in offshore deten- seekers. We were also fortunate to screen are most vulnerable. Force, to account for their decisions. This is tion. The stories of those who were initially Simon Kurian’s critically acclaimed film, In ‘Vanquishing Asylum Seekers from significant because, as Jefferies explains, refused treatment are distressing, especially ‘Stop the Boats’, which was followed by a Australia’s Borders: Creating Visibility for asylum seekers who arrive in Australia by air, since many of their health conditions are the panel with the director, Mr Kurian, and two Justice’, Prof Linda Briskman argues that our and seek protection at or before immigration direct result of living in these centres. experts from the Kaldor Centre for Interna- retreat from complying with international treaty clearance at airports, are unable to seek judi- Jack Zhou, in ‘Reforming Judicial Review tional Refugee Law, Dr Claire Higgins and obligations has ceded space to nationalistic cial review if their application for rejection is since Tampa: Attitudes, Policy and Impli- Prof Guy Goodwin-Gill, to whom we are political responses focused on security. In this rejected during the initial screening process cations’, discusses how the scope for judi- incredibly grateful. context, the normalisation and enactment of by Australian Border Force officials. cial review of migration decisions has been rights denying measures, once considered Our view of government practices is whittled down by a series of amendments ii Overview of Issue 13 exceptional, has pushed asylum seekers off no doubt obscured by the harsh secrecy to the Migration Act 1958 (Cth) following the the precipice of public consciousness. offences under the Australian Border Force Tampa crisis. According to Zhou, the Howard This Issue begins with two articles prepared The impact of government rhetoric also Act 2015 (Cth). The constitutionality of these Government introduced privative clauses in by the Court of Conscience Editorial Team, features in Stephen Phillips’ article, ‘Imitation provisions, both as they were enacted in 2015 an attempt to curtail the availability of judi- titled ‘A Brief Primer on Australia’s Treatment as Flattery: The Spread of Australia’s Asylum and amended in 2017, is discussed by Sophie cial review and, when that failed, introduced of Refugees and Asylum Seekers’ and ‘Time- Seeker Rhetoric and Policy to Europe’. Phil- Whittaker in ‘The Amended Secrecy Provi- offshore detention as a means to ouster the line of Australia’s Refugee Policies’ to assist lips discusses how Australia’s preoccupation sions of the Australian Border Force Act: An jurisdiction of the courts. readers who are unfamiliar with the Australian with stopping people smugglers, coupled with Improvement in Protection for Refugee Whis- refugee law and policy landscape. In addi- mass migration in 2015, has influenced a turn tle-Blowers or Just Another Policy Blunder?’. The need for statutory reform tion to the preparatory materials prepared in European public discourse that reflects Whittaker concludes that the amended legis- The last suite of articles highlights the need by the Court of Conscience Editorial Team, less a focus on human rights than a desire to lation continues to encroach on the freedom for statutory reform from a mix of doctrinal, this Issue features 14 articles written by impose stricter controls on migration flows. of political communication implied in our law reform, and theoretical perspectives. In

2 Jacob Lancaster, Editorial Court of Conscience Issue 13, 2019 3 ‘Rethinking the Character Power as it Relates iii Concluding comments to Refugees and Asylum Seekers in Australia’, Dr Jason Donnelly discusses the legal implica- Australia’s contempt for its legal obligations to tions of the new Ministerial Direction 79,15 which asylum seekers who arrive by boat is signif- provides for the cancellation, refusal or revo- icant, as measures such as boat turnbacks, cation of visas if an applicant does not satisfy regional processing and mandatory detention the character test. According to Dr Donnelly, demonstrate.16 We must hold our politicians to Direction 79 must be reworked because the account for snubbing the obligations we volun- principles espoused in this document are not tarily assumed towards refugees and asylum correct as a matter of law and relegate Austra- seekers when we signed the Refugee Conven- lia’s non-refoulement obligations to a second- tion. The media, too, needs to recognise the ary position, beneath the protection of the important role it plays in shaping public and Australian community. political opinion. Australian mastheads should In ‘A ‘Legacy’ of Uncertainty: The Need to think twice before painting irregular migrants in Abolish Temporary Protection Visas’, Sanjay broad strokes as threats to our sovereignty or Alapakkam explains the human cost of Tempo- national security,17 and must provide the public rary Protection Visas granted to refugees who with timely access to information about govern- attempted to enter Australia by boat between ment practices (to the maximum extent permit- August 2012 and July 2013. Alapakkam also ted by law). By improving the quality of media traces the political developments that led to their reporting, the public will be better able to eval- introduction, abolishment, and re-introduction, uate the claims, laws and policies of Australian and proposes how these refugees could be governments — and hold them to account.18 better integrated within our communities. Finally, in ‘Reimagining the Protection Jacob Lancaster is a final year student Response to Irregular Maritime Arrivals: A at UNSW Sydney studying a Bachelor of Science (Physiology) and Bachelor of Principle-Based Regulation with a Human Laws (Hons). Jacob currently works as Security Approach’, Jeswynn Yogaratnam a paralegal at a commercial law firm, a presents a cross-disciplinary and theoretical research assistant at UNSW, and is the Editor-in-Chief of this publication. The account of irregular arrivals intercepted at sea. views expressed in this editorial are the A group of protesters from Refugee Yogaratnam argues that we must reimagine author’s own and do not necessarily Action Collective march outside our protection obligations to asylum seekers reflect the views of his employers or Villawood Detention Centre. UNSW Law Society. Western Sydney, 15 April 2006 based on human security, which can be oper- (Sergio Dionisio/AAP Image) ationalised through principle-based (rather than rule-based) regulation.

References (2019) 13 UNSW Law Society Court (2019) 13 UNSW Law Society Court of Conscience (forthcoming October of Conscience (forthcoming October 1 See Sara Dehm and Max 2019) (on file with editors). 2019) (on file with editors) for an Walden, ‘Refugee Policy: A Cruel 5 See, eg, Linda Briskman, explanation as to how it has been Bipartisanship’ in Anika Gauja et al ‘Vanquishing Asylum Seekers ostensibly reconciled with art 31. (eds), Double Disillusion: The 2016 from Australia’s Borders: Creating 8 Senate Committee Review Australian Federal Election (Australian Visibility for Justice’ (2019) 13 UNSW of Regional Processing Bill (n 7) 3 National University Press, 2018) 593, Law Society Court of Conscience (Georgina Costello), 8 (Carolyn Graydon). 595-6. (forthcoming October 2019) (on file 9 Explanatory Memorandum 2 See, eg, Universal with editors). to Regional Processing Bill (n 6) 25. Declaration of Human Rights, GA Res 6 Explanatory Memorandum, 10 Commonwealth, 217A (III), UN GAOR, UN Doc A/810 (10 Migration Legislation Amendment Parliamentary Debates, House of December 1948) Preamble. (Regional Processing Cohort) Bill 2019 Representatives, 4 July 2019, 296 3 Convention Relating to (Cth) 2 (‘Explanatory Memorandum to (, Minister for Home the Status of Refugees, opened for Regional Processing Bill’). Affairs). See also Anna Talbot and signature 28 July 1951, 189 UNTS 137 7 Evidence to Senate Legal George Newhouse, ‘Strategic Litigation, (entered into force 22 April 1954) read and Constitutional Affairs Legislation Offshore Detention and the Medevac together with the Protocol Relating to Committee, Parliament of Australia, Bill’ (2019) 13 UNSW Law Society the Status of Refugees, opened for Canberra, 22 August 2019, 3–5 Court of Conscience (forthcoming signature 31 January 1967, 606 UNTS (Georgina Costello), 8 (Carolyn October 2019) (on file with editors) for 267 (entered into force 4 October 1967) Graydon) (‘Senate Committee Review a discussion on the developments that (‘Refugee Convention’). of Regional Processing Bill’). See led to the Medevac Bill. 4 See Sanjay Alapakkam, also Ingrid Matthews and James 11 Roland Bleiker et al, ‘A ‘Legacy’ of Uncertainty: The Need Arvanitakis, ‘Whose Island Home? ‘The Visual Dehumanisation of to Abolish Temporary Protection Visas’ Art and Australian Refugee Law’ Refugees’ (2013) 48(4) Australian

Court of Conscience Issue 13, 2019 5 Introduction Journal of Political Science 398, 399. 14 See Jeswynn Yogaratnam, 16 Dehm and Walden (n 1) 593. See also Briskman (n 5). ‘Reimagining the Protection Response 17 See Ethical Journalism A brief primer on 12 Bleiker et al (n 11) 406. to Irregular Maritime Arrivals: A Network, ‘Moving Stories: International 13 ‘The Story of Our Times Principle-Based Regulation with a Review of How Media Cover Migration’ the Government Doesn’t Want Told’, Human Security Approach’ (2019) (Report, 2015) 7, which notes that ‘In Media Watch (Australian Broadcasting 13 UNSW Law Society Court of Australia the media in a country built Australia’s treatment Corporation, 2018) ; Department of (Cth), Direction No 79: Visa Refusal seen a rise in racism directed at new of refugees and Immigration and Citizenship, ‘Deed of and Cancellation under s 501 and arrivals’. Agreement: Media Access’ (Undated) Revocation of a Mandatory Cancellation 18 Ibid. . 2019) (‘Direction 79’). asylum seekers

Court of Conscience Editorial Team

i What is the difference between residence as a result of such events, is refugees and asylum seekers? unable or, owing to such fear, is unwilling to return to it.4 Asylum seekers An asylum seeker is a person seeking According to the UNHCR Handbook: protection under international law.1 Not every Recognition of his refugee status does not asylum seeker will be found to be a refugee; therefore make him a refugee but declares however, every refugee has once been an him to be one. He does not become a asylum seeker. 2 refugee because of recognition, but is recognized because he is a refugee.5 Refugees Refugees are asylum seekers who have Economic migrants been declared to be refugees under the In contrast to refugees and asylum seekers, 1951 Refugee Convention and 1967 Protocol economic migrants leave their country (collectively, the ‘Refugee Convention’).3 The for financial reasons (such as for a better test for refugee status is set out in art 1A(2) life) rather than for international protection of the Refugee Convention, which defines a from persecution.6 refugee as a person who: owing to well-founded fear of being ii How does Australia determine persecuted for reasons of race, religion, refugee status? nationality, membership of a particular social group or political opinion, is outside As a signatory to the Refugee Convention, the country of his nationality and is unable Australia has incorporated many of its obli- or, owing to such fear, is unwilling to avail gations into the Migration Act 1958 (Cth) himself of the protection of that country; (‘Migration Act’). However, contrary to art 42 or who, not having a nationality and being of the Refugee Convention, it has qualified the outside the country of his former habitual circumstances in which persecution will be

6 Jacob Lancaster, Editorial Court of Conscience Issue 13, 2019 7 established.7 Australia has also codified the and 1 January 2014 were not taken to Manus refugee definition for applications made on Island and Nauru for offshore processing. or after 16 December 2014 under s 5H, and These applicants are subject to ‘fast track’ further defined the ‘particular social group’ processing,20 which involves an expedited ground under s 5L.8 review of each refugee status claim and Australia has different systems in place limited avenues for appeal.21 for processing Protection Visa applications, depending on the asylum seeker’s mode iii Australia’s policy on asylum seekers of entry. and refugees

Onshore processing — How much does Australia spend arrival with a valid visa on offshore asylum seekers and An asylum seeker arriving with a valid visa refugees? (eg student or tourist visa), usually by plane, The Refugee Council of Australia estimates has their claim for protection assessed that Australia spends $573,000 a year onshore, in Australia.9 These asylum seekers per asylum seeker in offshore detention can apply for a Permanent Protection Visa, compared to $346,000 per person in onshore which grants them the right to live and work detention.22 At only $10,221 per person, it as a permanent resident.10 costs significantly less for asylum seekers to An asylum seeker whose refugee status live in the community on a Bridging Visa.23 is to be assessed onshore must first lodge a claim for protection with the Department of What access do asylum seekers have Home Affairs.11 A Department official assesses to welfare benefits? the claim on the basis of the asylum seeker’s If an asylum seeker is living in the community reasons for seeking refuge in Australia.12 If the while their Protection Visa claim is processed, claim is approved, the asylum seeker is granted they will have access to benefits worth up to refugee status.13 If the claim is rejected, the 89% of the Newstart Centrelink benefit.24 applicant has a three-level avenue of appeal: These benefits are accessed through two first, to the Migration and Refugee Division government support schemes: the Asylum Asylum seekers arriving by boat are of the Administrative Appeals Tribunal (MRD- Seeker Assistance Scheme and the Commu- escorted by Australian navy boats AAT); second, to the courts; and finally, to the nity Assistance Support Program.25 Whilst operating under the Border Protection 14 Command. Flying Fish Cove, Minister. This is the standard process for asylum seekers detained onshore can receive , 16 August 2012 refugee status determination.15 a small weekly allowance for daily expenses, (Scott Fisher/AAP Image) asylum seekers detained in offshore facilities Offshore processing — have no access to any welfare benefits.26 If arrival without a valid visa their Protection Visa is approved, an asylum Asylum seekers who arrive by boat, without seeker has access to the same Centrelink a valid visa, are either turned back or forci- benefits as other Australians.27 bly transported to have their refugee status assessed at an offshore processing facility.16 How does Australia’s intake of Asylum seekers who arrive without a valid visa refugees compare to other countries? cannot apply for Permanent Protection Visas, Of the 2.3 million refugees recognised in but can apply for a Temporary Protection Visa 2018, Australia hosted 56,993 refugees, or a Safe Haven Enterprise Visa, which last for ranking 45th in comparison to other coun- three and five years respectively.17 tries.28 Despite settling relatively few refu- Asylum seekers who arrived without a gees, Australia has a comparatively gener- valid visa, on or after 1 January 2014, are also ous resettlement program. In 2018, Australia subject to the standard process of refugee resettled 12,700 refugees, placing it third status determination.18 However, their claims worldwide, behind Canada and the United are processed offshore and they will not be States.29 Despite this, less than 10% of global settled in Australia.19 resettlement needs were met in 2018.30

Fast-track processing Asylum seekers who arrived in Australia without a valid visa between 13 August 2012

Court of Conscience Issue 13, 2019 9 References 8 See Migration and Maritime 19 ‘Offshore Processing: Powers Legislation Amendment An Overview’ (n 16). 1 Janet Phillips, ‘Asylum (Resolving the Asylum Legacy 20 ‘Refugee Status Seekers and Refugees: What are the Caseload) Act 2014 (Cth). Determination in Australia’ (n 11). Facts?’ (Research Paper, Parliamentary 9 ‘Australia’s Refugee 21 Andrew and Renata Kaldor Library, Parliament of Australia, 2 March Policy: An Overview’, Andrew and Centre for International Refugee 2015) 3; ‘What’s the Difference between Renata Kaldor Centre for International Law, ‘Fast Track’ Refugee Status a Refugee and an Asylum Seeker?’, Refugee Law (Factsheet, 1 April 2019) Determination (Research Brief, April (Web Page, 24 . Research%20Brief_Fast%20 difference/>. 10 Ibid. track_final.pdf>; ‘Fast Tracking 2 Ibid. 11 ‘Refugee Status Statistics’, Refugee Council of 3 Convention Relating to Determination in Australia’, Andrew Australia, (Web Page, 17 May 2019) the Status of Refugees, opened for and Renata Kaldor Centre for . (entered into force 22 April 1954) read 1 February 2019) . of Australia (Web Page, 8 April 2019) signature 31 January 1967, 606 UNTS 12 Ibid. . UNHCR, Handbook on Procedures 15 Ibid. 23 Ibid. and Criteria for Determining Refugee 16 ‘Offshore Processing: An 24 ‘Asylum Seeker Financial Status under the 1951 Convention and Overview’, Andrew and Renata Kaldor Support’, Asylum Seeker Resource the 1967 Protocol, UN Doc HCR/IP/4/ Centre for International Refugee Law Centre (Web Page) . 4 Refugee Convention (n 3) offshore-processing-overview>. 25 Ibid. art 1A(2). 17 Ibid. 26 Ibid. 5 UNHCR Handbook (n 3) [28]. 18 ‘Asylum Seekers and 27 Ibid. 6 ‘What’s the Difference Refugees Guide’, Australian Human 28 UNHCR, Global Trends: between a Refugee and an Asylum Rights Commission, (Web Page, Forced Displacement in 2018 (Report, Seeker?’ (n 1). 10 January 2014) . Iranian refugee interacting with local children on Manus Island (Jonas Gratzer)

Court of Conscience Issue 13, 2019 11 Timeline of Introduction Australia’s refugee policies

Court of Conscience Editorial Team

i 1950s–60s ii 1970s–90s MV Tampa (Remi Jouan/Wikimedia Commons) World War Two and the Refugee During this period, maritime asylum seekers Convention arriving in Australia were mostly from Indo- The 1951 Refugee Convention1 was adopted China following various wars and regime by the United Nations in 1951 to address the changes in the region. Vietnamese asylum displacement of millions of European refu- seekers constituted the majority of boat gees during World War Two (‘WWII’).2 arrivals between 1969–1982,8 before a In 1967, the Protocol Relating to the ‘second wave’ of asylum seekers from the Status of Refugees (the ‘Protocol’)3 expanded broader spread of Cambodia, Southern the 1951 Refugee Convention’s applica- China and Vietnam arrived during the 1980s– tion beyond Europeans displaced by WWII.4 mid 1990s.9 Australia ratified the Protocol in 1975, but never entirely incorporated its obligations The end of the White Australia Policy under the Protocol into domestic legislation Before 1973, Australia’s refugee policy was not such as the Migration Act 1958 (Cth).5 distinguished from its immigration policy (the Currently, there are 148 State signatories White Australia Policy) embedded in the Immi- to one or both of these instruments.6 gration Restriction Act 1901 (Cth).10 Movement towards the abolition of the White Australia The origins of offshore processing Policy began in 1966 and was completed by In the 1960s, Australia set up its first offshore the Whitlam Government in 1973.11 refugee processing centre (the Salasia Camp) on Manus Island, , The development of Australia’s to process thousands of refugees fleeing refugee policy from Indonesia, which was planning a mili- Following a 1976 inquiry by the Senate tary takeover of West New Guinea.7 Standing Committee on Foreign Affairs and Defence into the possibility of an Australian

Court of Conscience Issue 13, 2019 13 refugee policy, the Government declared rised’ arrivals).24 The aimed it adopted a ‘zero tolerance’ stance towards target of 1,250 refugees would not be met a formal refugee policy and determination to further deter ‘unauthorised’ maritime arriv- maritime arrival asylum seekers.33 Operation and only 531 refugees had been resettled procedure in 1977.12 als by introducing offshore detention centres Sovereign Borders involved a more milita- under the deal so far.44 By 1979, the suggestion of deten- to assess their visa claims. The Government rised approach to intercepting and turning In return for the US resettling refugees tion centres for asylum seekers arriving by also excised thousands of islands from boats back.34 The new policy also created the from Manus Island and Nauru, Australia was boat was raised, although the Government Australia’s migration zone to prevent asylum Australian Border Force, removed govern- reportedly to accept dozens of Central Amer- refused to pursue this due to unfavourable seekers who reached those islands by boat ment funded legal aid for asylum seekers ican Refugees and two Rwandans accused public opinion and perceived impracticality.13 from applying for visas.25 arriving by boat, and reintroduced the tempo- of mass murder in the US. However, as of However, by 1989, after settling another rary protection regime but without the possi- June 2019, only those two Rwandans have wave of South-East Asian boat arrivals, the Late 2000s–2010: The abolition of bility of permanent resettlement in Australia.35 been resettled in Australia.45 Australian Government’s asylum seeker the Pacific Solution, the closing and The processing centres on Manus Island policy became increasingly restrictive.14 One reopening of Manus Island and Nauru and Christmas Island were closed in October The closure of the Manus Island element of the Government’s refugee policy In 2008, the newly elected Rudd Government 2017 and October 2018, respectively.36 detention centre was the introduction of a ‘planned system’ dismantled the Pacific Solution and declared In April 2016, the Supreme Court of Papua to prevent immigration intakes from being a more compassionate approach to the treat- Resettlement deal with New Zealand New Guinea held that the detention of asylum ‘undermined by unplanned (unauthorised) ment of asylum seekers.26 The Rudd Govern- Australia has repeatedly rejected a stand- seekers on Manus Island violated the country’s arrivals’ who may not actually require inter- ment abolished the temporary protection ing New Zealand offer to resettle 150 refu- constitutional right to personal liberty.46 As a national protection.15 Another element of the regime, and closed the detention centres on gees.37 Home Affairs Minister Peter Dutton result, the Manus Island detention centre was Government’s refugee policy in the 1990s Manus Island and Nauru, but continued to has argued that accepting the deal would closed in October 2017.47 Hundreds of detain- was the introduction of mandatory deten- process asylum seekers on Christmas Island.27 encourage more maritime arrival asylum ees refused to leave the centre due to concerns tion by the 1992 Migration Reform Act (Cth) Following the closure of Manus Island seekers to use New Zealand as a backdoor over the safety of their new accommodation (‘Reform Act’).16 Under the Reform Act (which and Nauru, the number of boat arrivals entry option into Australia. As of July this arrangements.48 After vital services such as remains in force), all non-citizens without a increased 100-fold, far beyond the capacity year, Minister Dutton indicated that Australia electricity, water and healthcare were shut valid licence are detained while their visa of Christmas Island.28 In response to public may accept the resettlement deal ‘when and down, Papua New Guinean authorities force- claim is processed.17 scrutiny and political pressure, the Govern- if’ doing so will not encourage boat arrivals.38 fully removed the remaining asylum seekers.49 ment reoriented its asylum seeker policy in iii Late 1990s–mid 2000s 2010 by increasing Australia’s refugee intake, Resettlement deal with the United Medevac Bill allowing the removal of asylum seekers to States (US) In February this year, the Medevac Bill was 1999 any country, introducing a ‘no advantage’ In November 2016, Australia announced a passed,50 allowing asylum seekers requiring In 1999, the Government introduced Tempo- policy for asylum seekers arriving by boat deal with the US which would resettle 1250 urgent medical assistance to be temporar- rary Protection Visas. It also enacted people (compared to those waiting in camps), and refugees from Manus Island and Nauru.39 In a ily transferred to Australia upon the recom- smuggling offences, and gave itself powers reopening the Manus Island and Nauru leaked 2017 phone call between US President mendation of medical professionals.51 After to search ships at sea and detain asylum detention facilities.29 This policy shift effec- Donald Trump and former Australian Prime passing the Bill, the Government announced seekers.18 At around the same time, a ‘third tively reinstated the Pacific Solution.30 Minister Malcolm Turnbull, President Trump it would reopen Christmas Island, where it wave’ of maritime asylum seekers from the emphasised that the US retains discretion as would treat asylum seekers requiring medical Middle East began arriving in Australia.19 iv 2010s to whether it honours this target.40 treatment.52 However, the Government later These refugees fled primarily from the Taliban In September 2017, a small group of announced that Christmas Island would in Afghanistan and Saddam Hussein’s regime 2011: Malaysian transfer deal refugees were resettled in the US under again be closed less than four months after in post-Gulf War Iraq.20 In July 2011, the signed this deal.41 However, the US has rejected its reopening.53 This July, Minister Dutton a transfer agreement with Malaysia whereby 300, primarily Iranian, refugees,42 despite introduced a new Bill to Parliament to repeal The Tampa Incident and the 800 asylum seekers would be transferred the Iranian refugees comprising the largest the Medevac legislation.54 At the time of Pacific Solution from Australia to Malaysia in return for population of refugees on Manus Island.43 In writing, the lower house has voted in favour On 29 August 2001, a Norwegian vessel, MV Australia’s commitment to resettle 4000 refu- June 2019, Minister Dutton declared that the of the repeal.55 Tampa, arrived near Christmas Island carrying gees from Malaysia.31 The High Court held 430 people it had rescued earlier from a sinking the agreement to be invalid as it would leave fishing boat.21 The refugees on MV Tampa asylum seekers without legal protection from References Status of Refugees, opened for Australia’s Refugee Policy (University of were mainly from Afghanistan.22 Australia tried persecution, in contravention of the Migration signature 31 January 1967, 606 UNTS New South Wales Press, 2017) 12. 1 Convention Relating to 267 (entered into force 4 October 1967) 6 UNHCR, States Parties to turn the Tampa away and deployed military Act. Nevertheless, the Government pledged the Status of Refugees, opened for 4 Khalid Koser, The Lowy to the 1951 Convention Relating to force to board the ship and prevent it from to resettle 4000 refugees from Malaysia, as signature 28 July 1951, 189 UNTS 137 Institute, ‘Australia and the 1951 the Status of Refugees and the 1967 approaching Christmas Island.23 promised, albeit using part of its existing (entered into force 22 April 1954). Refugee Convention’ (Analysis, April Protocol (Report, 2015) . harsh laws directed at asylum seekers who Domestic policy of Refugees and Its 1967 Protocol’ University of (Web Page, 27 7 Stefan Armbruster, ‘Fifty (Report, September 2011) 1 . com/refugee_law/australia>; Claire Australia’s First Manus Camp Offered by the Government as ‘unlawful’ or ‘unautho- Operation Sovereign Borders, under which 3 Protocol Relating to the Higgins, Asylum by Boat: Origins of PNG Citizenship’, SBS News (online at

14 Court of Conscience, Timeline of Australia’s refugee policies Court of Conscience Issue 13, 2019 15 25 September 2018) . camp-offered-png-citizenship#toc- 2019) . news/a-history-of-australia-s-offshore- 42 Eryk Bagshaw, ‘US Rejects 8 Janet Phillips and Harriet detention-policy>. 300 Refugees from Manus and Nauru popular narrative Spinks, ‘Boat Arrivals in Australia 27 McKay (n 25) 25–6. for Resettlement in US’, Sydney Since 1976’ (Research Paper, 28 Ibid 26. Morning Herald (online, June 16 2019) Parliamentary Library, Parliament of 29 Ibid. . 10 Barry York, Social Policy Resettlement to Australia: What are the 43 ‘Recent Changes in Group, ‘Australia and Refugees, Facts?’ (Research Paper, Parliamentary Australian Refugee Policy’ (n 36). 1901-2002: An Annotated Chronology Library, Parliament of Australia, 7 44 Bagshaw (n 42). Based on Official Sources’ (Chronology, September 2016). 45 Ibid. See also Michael Parliamentary Library, Parliament of 32 Ibid citing Plaintiff M70/2011 Koziol, ‘Australia Accepted Accused Australia, 16 June 2003) 2, 15. v Minister for Immigration and Rwandan Murderers as Part of US 11 Ibid. Citizenship; Plaintiff M106 of 2011 v “People Swap” Deal: Report’, Sydney 12 Higgins (n 5) 12–13. Minister for Immigration and Citizenship Morning Herald (online, May 16 2019) 13 Ibid 69–71. (2011) 244 CLR 144 and Press Office < https://www.smh.com.au/politics/ 14 Ibid 8. for The Hon Julia Gillard MP, ‘Transcript federal/australia-accepted-accused- 15 Ibid 51. of Joint Press Conference, Canberra’ rwandan-murderers-as-part-of-us- 16 York (n 10) 4. (13 October 2011). people-swap-deal-report-20190516- 17 ‘Australia’s Detention 33 Baker (n 26). p51nyt.html>. Policies’, Refugee Council of 34 ‘Australia’s Asylum 46 See Namah v Pato (2016) Australia, (Web Page, 17 May 2016) Policies’, Refugee Council of Australia SC1497 (Supreme Court of Papua New . . Australian Refugee Policy’ (n 36). 19 Phillips and Spinks (n 8). 35 ‘A Short History of Australian 48 Ibid. 20 Ibid Refugee Policy’, Refugee Council 49 Ibid. 21 York (n 10) 54. of Australia (28 December 2018) 50 Home Affairs Legislation 22 ‘’, Defining . Bill 2018 (Cth). nma.gov.au/defining-moments/ 36 ‘Recent Changes in 51 ‘Medevac Bill: The Facts’, resources/tampa-affair>. Australian Refugee Policy’, Refugee Refugee Council of Australia (Web 23 Linda Briskman and Victoria Council of Australia (7 July 2018) Page, 1 March 2019) . Responsibilities: Australia’s Asylum- recent-changes-australian-refugee- 52 Rosemary Bolger, ‘Christmas seeker Policy at Home and Abroad’ policy/9/>; Baker (n 61). Island Detention Centre to Close, Just in Juliet Pietsch and Marshall Clark 37 Ibid. Months after Reopening’, SBS News (eds), Migration and Integration in 38 Max Koslowski, ‘Dutton May (online, 2 April 2019) . 24 York (n 10) 54–5. www.smh.com.au/politics/federal/ 53 Ibid. 25 Ibid; Fiona McKay, dutton-likely-to-accept-new-zealand- 54 Migration Amendment ‘A Return to the ‘Pacific Solution’ refugee-offer-but-not-right-now- (Repairing Medical Transfers) Bill 2019 (2013) 44 Forced Migration Review 20190724-p52aae.html?fbclid=IwAR1g5hso- (Cth). 24, 25; Linda Briskman and Victoria Y2twyi2l5OZM0XEPx_y7Oxjzb_ 55 ‘Government’s Bid to Repeal Mason, ‘Abrogating Human Rights NKP5aaIhGeBM4hP1ZUqfb6UI>. Medevac Legislation Passes First Responsibilities: Australia’s Asylum- 39 ‘Recent Changes in Hurdle’, SBS News (online, 25 July seeker Policy at Home and Abroad’ Australian Refugee Policy’ (n 36). 2019) . Europe, Southeast Asia and Australia: Andrew and Renata Kaldor Centre for A Comparative Perspective (Amsterdam International Refugee Law (Factsheet, University Press, 2015) 139. 10 April 2019) 1

16 Court of Conscience, Timeline of Australia’s refugee policies Whose island home? Rethinking the popular narrative Art and Australian refugee law

Ingrid Matthews and Prof James Arvanitakis

i Introduction place the foundational myth terra nullius at Sunrise over Aleppo (Luke Cornish) the intersection of law and culture, contrast- It is a truth too rarely acknowledged that ing the role of colonial artists in furthering there is no evidence to support the claim imperialism, with the ideal of art as a medium that refugees are a national security threat if for truth, and law as a vehicle for justice. they arrive by boat to seek asylum. Asylum seekers entering the Australian migration ii International and domestic law zone by boat are not an invading force, nor are they ‘preparing, planning, assisting in or The extent to which Australians endorse fostering the doing of a terrorist act’.1 Seeking detention of asylum seekers arriving by boat asylum is a human right.2 is both contested and subject to dramatic In Australia, accounts of how refugees shifts over time.4 Here, we proceed from came to be falsely conflated with national the position that whether or not Australians security typically begin with the 2001 ‘Tampa believe or support this rhetorical nexus Affair’.3 We argue that a longer timeframe linking refugees to national security, it is not reveals socio-cultural norms, founded in founded in fact.5 British colonialism and Australian coloniality, The universal right to seek asylum is that offer a fuller explanation for the biparti- codified in the Convention Relating to the san support of indefinite offshore detention. Status of Refugees (‘Refugee Convention’).6 We begin with the political narrative that The Menzies government ratified it in 1954 is used to rationalise ever-harsher laws and and passed the Migration Act in 1958. The allay concerns about human rights violations. Act has been amended over 100 times,7 This is followed by a brief survey of island which is often an indicator of highly politi- prisons since 1788, sketching a history of cised subjects. In particular, the politicisation banishment and isolation as punishment, to of transport mode, is reflected in gradations ask: is this how offshore detention is allowed of language. What are ‘unauthorised mari- to continue? To explore this possibility, we time arrivals’ in law8 are called ‘illegal arrivals’

Court of Conscience Issue 13, 2019 19 by ministerial direction9 and even ‘illegals’ in gian-flagged ship that rescued 433 Afghan In this context, the camps on Manus and this context is 400 Aboriginal Nation pass- public discourse. refugees off the Western Australian coast. Nauru are not ‘a new low’ as is sometimes ports issued to refugees on Manus Island.26 People who seek asylum after arriving by The then-Howard Government ordered SAS claimed, but a contemporary iteration of boat are now excluded from our refugee reset- troops to forcibly transfer those rescued to the foundational structure of the Australian iv Terra nullius tlement program, while our political leaders call a naval troop carrier and transported them state, the island prison. Having established Australia the ‘most successful’ multicultural/ to detention camps on the remote Pacific its penal colony at Warrane (now Circular Despite being set aside by our highest court migrant country in the world.10 The public are island of Nauru. A habeas corpus appli- Quay) in 1788, the British authorities created in 1992,27 Australian cultural life retains multi- also assured that our government is ‘absolutely cation initially succeeded, handed down second-tier island prisons for control of ple manifestations of terra nullius mythol- confident’ of meeting international obligations.11 on 11 September 2001 (Australian time).17 specific populations within the first year. In ogy. One example is the way colonial artists How does this add up? Together, our domestic The government successfully appealed to the harbour, a punishment site was set up depicted First Peoples in the landscape as law and political rhetoric operate to authorise the Full Court of the Federal Court, and a final on Mat-te-wan-ye (later Pinchgut Island, now ‘noble savages’, a reductionist rendering that and rationalise practices that prima facie violate attempt to see the initial order upheld by the Fort Denison). Another penal colony was worked in tandem with scientific racism to international law. We suggest the ‘confidence’ High Court also failed.18 built in the lands of the Palawa Peoples (then rationalise colonial violence. 28 our political leaders proclaim turns on the Analysing the case history, Head Van Diemen’s Land, later Tasmania), and off In Picturing Imperial Power, Tobin exam- wording of two Refugee Convention articles. observes that: Tasmania yet another was set up on Langer- ines the role of art at the intersection of visual First, the Refugee Convention proscribes as the Full Court deliberated, government rareroune (now Sarah Island). culture and political power.29 Building on penalties for unauthorised entry (no visa) for leaders and media commentators applied As the colonisers spread out in what this, Macneil found a significant presence of those who come ‘directly from a territory intense pressure to the judges, arguing Professor Megan Davis, a Cobble Cobble Aboriginal people at first contact by colonial where their life or freedom was threatened’.12 that the terrible events in the United woman, calls ‘the pattern of killing that was era artists was followed by their near absence In Australia — an island far from the violence States on 11 September 2001 made it the political economy of Australian settle- by the mid-nineteenth century. In this way, that causes people to flee, including wars essential for the government to wield ment’, 22 the convict population declined. The colonial art sits alongside the physical world in which we participate — asylum seekers wider powers. The Commonwealth Solic- island prison model shifted and was turned of dispossession by force and its intellectuali- coming by boat tend to arrive via other terri- itor-General, David Bennett QC, told the on First Peoples: Cape Barren for Palawa who sation, the evolutionary paradigm that posited tories.13 Secondly, article 33(2) qualifies the court that North J’s decision could restrict survived the Tasmanian genocide; ‘lock hospi- Aboriginal people and their culture would prohibition on refoulement where ‘there are the government’s ability to avoid such tals’ on Dorre and Bernier islands off the West ‘disappear’.30 The Cornwall Chronicle, report- reasonable grounds for regarding [a refugee] disasters as the attack on the World Trade Australian coast; the eugenicist practices ing on works by colonial artist Robert Dowling as a danger to the security of the country’. Center. In the media, Defence Minister that created a population of over 50 different in March 1857 illustrates this worldview: ‘[s] Here, narratives that frame refugees arriving Peter Reith insisted that, if North’s ruling language groups on Palm Island, Queensland. uch works of art as these become more valu- by boat as a terror threat are used to maintain stood, it would open the floodgates for The colonisers hailed from island homes able with age, even now these must be looked claims about abiding by international law. terrorists to enter the country on refugee ravaged by waves of invasion and a culture upon as historical paintings, of the primitive Meanwhile, consecutive United Nations boats. Without offering a skerrick of defined by violence. In contrast, some 350 state of society in these colonies, banished by reports have found that Australia violates the evidence, a junior minister, Peter Slipper, distinct First Peoples, who maintained the light and progress of civilisation’.31 rights of asylum seekers and refugees, such claimed there was ‘an undeniable linkage international relations across the biggest The move to federation was specifically as ‘to be free from torture or cruel, inhuman between illegals and terrorists.19 island on earth, had ‘invented society’, their buoyed by a nationalist mood of celebrat- or degrading treatment’.14 These findings are ‘culture based on peace’.23 The impossibly ing white settlers’ triumph over a land and not contested by the government, but rather In a decision Head describes as having cruel and traumatic act of banishing survi- her people, reflected in the work of colonial justified: ‘[t]he most humanitarian, the most ‘rewarded the government for thumbing its vors of violence to island prisons was done artists: ‘This exclusion of Aboriginal people decent, the most compassionate thing you nose at the legal process’,20 the High Court then — by colonial authorities who arrived by from the conceptualisation of the Australian can do is stop these boats’.15 found the application had been ‘overtaken boat — to First Peoples, and is done now by nation reflects the effectiveness with which a This type of justification relies on an essen- by events’. 21 Australian authorities to refugees who arrive visual discourse of ‘Australia’ painted Aborig- tially utilitarian calculus. It says that the horrors Offshore detention is not, however, by boat. inal people out of existence’.32 of offshore detention for the few are neces- merely a 9/11 politic. From ‘secondary’ It is an Anglo-Australian weltanschau- The colonial artist then ‘painted in’ white sary for the security of the many — a ‘greater punishment of convicts, banishing First ung that directs the fate of asylum seekers frontiersmen. Chillingly, Lehman has found good’ that hypothetically extends to deterring Peoples in aid of ‘manifest destiny’ mythol- in boats at our borders. While the Common- ‘there is a repeated absence of Aboriginal refugees from boarding unseaworthy vessels ogy, and ‘offshore detention’ today, the wealth of Australia is a direct descendant presence in Tasmania’ where even artists and potentially drowning. Yet this ‘security’ is island prison is a prototype of the imperial of British imperialism and asserts a singu- who painted Aboriginal people into main- achieved by real life ‘turnbacks’, which involve ethno-state. On this view, the island prison lar sovereignty, the law of the land and its land scenes would omit Aboriginal people towing boats into international waters, an action sits on a continuum from British colonial- sovereign custodians were not willed out of from Tasmanian landscapes.33 Here again likely to cause deaths at sea and in breach of ism to Australian coloniality, from 1770 to existence by imperial force.24 As Professor the artist reflects the acts of his compadres: the maritime duty to render assistance.16 the present. The model is marked by brutal Irene Watson of the Tanganekald, Meintangk even today, Tasmania is notorious for the structural violence and the epistemic dishon- Boandik First Nations writes: ‘First Nations most brutal forms of penality and its geno- iii Island prisons esty of formalism. Presumption of innocence have grown from ancient treaties amongst cidal ‘Black Line’.34 and habeas corpus are discarded, by guber- themselves; those treaties acknowledge the These themes are taken up by Austra- As mentioned, the refugee-terror nexus natorial fiat in the colonies, and by the Parlia- ancient borders we care for and within which lian artist Danie Mellor. In Maba-l-Bala Rugy is usually traced to MV Tampa, a Norwe- ment and courts today. we belong.’25 One fascinating illustration in (Of Power in Darkness),35 Mellor juxtaposes

20 Ingrid Matthews and Prof James Arvanitakis, Whose island home Court of Conscience Issue 13, 2019 21 the coloured presence of Aboriginal people artist and their art in our world are not simply within a blue-and-white imperialist landscape an aesthetic intervention — art and artists that politically and artistically attempted present us with dimensions that no other to eradicate them, thereby reuniting First medium possesses. To complete this paper, Peoples with their lands. we present three such dimensions. The line from colonial to contemporary The first is art as a mirror, reflecting our displacement can also be seen in the work of failings and triumphs, or who we are in visual Australian street artist Luke Cornish (ELK), who terms. Syria is not only far removed from most uses stencil art to highlight the plight of refugees Australian lives, it is a conflict with genera- and to remind us of the fragility of memory.36 tional roots, understood by Syrian migrants In The Sea, Cornish reminds audiences of the here, but not by our elected leaders who lack plight of displaced persons in conflict zones. the skill, will or political capital to effect an While victims of war and catastrophe, from intervention. In The Sea, Cornish presents a Syria or Yemen, scroll regularly across our series of burnt out buildings which confront screens, most touch our thoughts for a very us with more than the war in Syria — they short time. We may feel simultaneously sad reflect the failing of our political system and and lucky to be living in Australia: comfortable, futility of still, after all these years, trying to safe and secure. How do the narratives offered present war as a solution.38 by the political leadership, messages that A second dimension is that art confronts promotes refugees as terrorists, take root in our forgetfulness. While we struggle not to the public mind in this context? More recently, lurch from distraction to distraction, artists Cornish has been the subject of controversy act as an external conscience, never permit- for his ‘Not Welcome to Bondi’ mural depict- ting us to forget. Like Picasso’s Guernica,39 the ing 24 Australian Border Force officers stand- images Cornish presents are designed to ing in a line to represent the 24 suicides that represent the humanity of those who are other- have occurred in Australian detention facilities wise too easily removed from our memories. since 2010 — a mural that faced a conservative Beyond being a mirror on the world, the backlash and was eventually defaced.37 final dimension is art turning its lens into Just as quickly as images of war and ourselves. From the way Mellor replaces First Dora (Luke Cornish) destruction appear, they disappear. The Peoples into colonial portrayals of Australian starving children that captured our attention flora to Cornish creating and curating images are replaced with an emerging conflict, a new of refugees who stare relentlessly back at disaster in another part of the world, perhaps viewers, we are compelled to think about one we cannot locate on a map. Our atten- ourselves: whether our own fortune, our own tion shifts and we see a decontextualised families, or our own culpability in maintaining horror, not knowing the history, background a colonial system is constructed on invasion or reasons for what is going on. and maintained by exclusion. Picasso proclaimed that ‘painting is not v The art of memory done to decorate apartments. It is an instru- ment of war’.40 But art can also be an inter- If the colonial artist erases First Peoples from vention, one that leaders rarely mobilise, and depictions of their lands, the law underwrites their sponsors do not care to underwrite. that removal by force. Similarly, law provides This is because art and artists expose the a set of tools to counter regimes that perpet- best and the darkest elements of our society, uate exclusion and persecution; while the and the failings that lead to conflict, loss and work of artists can provide alternative entry- displacement. At the same time, art at its points to public engagement with complex best is integral to celebrations of community histories that transcend the boundaries of and to communicating empathy, a medium the legal fraternity. that transcends the rigidity of institutions and This becomes critical in our contem- restores our humanity. porary society, where the apparent perma- nency of institutional cruelty meets a fragile vi Conclusion and fracturing human memory. In a world of distractions, our memories can disap- This article seeks to shed light on how pear very quickly. The important role of the Australia’s offshore detention regime has

Court of Conscience Issue 13, 2019 23 been allowed to continue, as well as offer Ingrid Matthews is a sessional 20 Michael Head, Scott Aboard Sail Boat’. ABC Far North Case of Lest We Remember?’, some hope for bringing it to an end, from a academic and PhD student at the Mann and Ingrid Matthews, Law in (online, 17 July 2019) . lest-we-remember-25663>. ble, suggesting the need for multi-variant and and Society. Her doctoral research Vadarlis v MIMA & Ors (High Court 27 Mabo v Queensland [No 2] 35 This work hangs at the uses critical discourse analysis to of Australia, M93/2001 Trans 625, (1992) 175 CLR 1. National Gallery of Canada in the less conventional viewpoints. The horror of make visible the changing politics Gaudron, Gummow and Hayne JJ, 27 28 See Kevin R Muller, ‘Pelts ‘Indigenous Art’ category. on island prisons estab- of constitutional recognition of First November 2001) (Gaudron J). and Power, Mohawks and Myth: 36 The Sea, exhibition by Luke lished by Australia on Manus and Nauru is Nations People. 22 Megan Davis, ‘Gesture Benjamin West’s Portrait of Guy Cornish, Lock Up Gallery, Newcastle, Politics’, The Monthly (Web Page, Johnson’ (2005) 40(1) Winterthur New South Wales (2018). . white Australian hegemony of fear and isola- Professor at the University of Wyoming december/1448888400/megan-davis/ Imperial Power: Colonial Subjects in 37 Shannon Molloy, on a Fulbright Fellowship. He will gesture-politics>. Eighteenth-Century British Painting ‘Controversial Mural at Bondi Beach tion that is constitutive of the nation state. return to his substantive position at 23 Bruce Pascoe (Keynote, (Duke University Press, 1999). by Artist Luke Cornish Defaced after This is why we must look beyond the law Western Sydney University in late 2020 Lowitja Institute International 30 Roderick Peter Macneil, Council Voted to Keep It’, News. of the coloniser to the law of the land, and as a lecturer in the Humanities and a Indigenous Health and Wellbeing ‘Blackedout: The Representation of com.au (online, 7 Aug 2019) . Peoples, Colonialism, and International Stephen Gilchrist, ‘Depictions of 38 The Sea (n 38). References 8 Migration Act 1958 (Cth) of International Protection for the Law: Raw Law (Routledge, 2014). Aboriginal People in Colonial Australian 39 Guernica, Pablo Picasso s 5AA, as amended by Migration UNHCR Global Consultations, 25 Irene Watson, ‘Professor Art: Settler and Unsettling Narratives in (1881) . (Cth) s 102.1(1). Arrivals and Other Measures) Act 2013 14 Convention against Torture Nations’ Perspectives at the Centre’, Art Bulletin of Victoria 34. 40 Quoted in Alex 2 Universal Declaration of (Cth) sch 1 s 8. and Other Cruel, Inhuman or Degrading ABC Indigenous (online, 9 July 2019) 32 Macneil (n 30) 1. Danchev, ‘Picasso’s Politics’, Human Rights, GA Res 217A (III), UN 9 Emma Griffiths, ‘Immigration Treatment or Punishment, opened for

24 Ingrid Matthews and Prof James Arvanitakis, Whose island home Court of Conscience Issue 13, 2019 25 Making migration law Rethinking the popular narrative Courting our conscience

Dr Eve Lester

In May 1992, I was representing members of a Cambodians had already endured). However, Protesters from Whistleblowers, group of about 30 Cambodian asylum seekers the legislation distinguished between what Activisits and Citizens Alliance block who sought their release from detention in the was called ‘application custody’, which was entry to Australian Border Force headquarters. The group supports Federal Court of Australia. They were among limited to 273 days, and ‘custody’, which was refugees detained on Manus Island. a cohort of 389 so-called ‘boat people’ who not. According to the legislative formula, the Melbourne, 10 November 2017 had arrived in Australia over the preceding clock stopped on ‘application custody’, but (Tracey Nearmy/AAP Image) few years.1 Two days before the hearing, and not custody, every time progressing a claim without notice to the applicants or to us as was out of the Immigration Department’s their representatives, Migration Amendment hands (for example, if the detainee exercised Bill 1992 (Cth) was introduced into Parliament. appeal rights). Thus, detention could be With bipartisan support, it passed both Houses much more prolonged, and possibly indefi- that same evening. Specifically designed to nite. Indeed, some of this cohort would be stymie the case before the Federal Court, the held in ‘application custody’ for less than legislation provided that ‘boat people’ must 273 days but would not be released from be detained and that a court was not to order ‘custody’ until 1995. their release from custody.2 This mandatory How could legislation with such ramifi- detention framework was, the Act said, in ‘the cations pass so effortlessly onto the statute national interest’.3 books? How could the High Court uphold the The significance of this legislative framing constitutional validity of legislation that is so was in the silence it created. Detention was manifestly oppressive? What is it about migra- by operation of law. There was no actual deci- tion lawmaking that enables responses such sion to detain. Because mandatory deten- as this to unsolicited migration seem think- tion was decision-less, there was nothing able? These are the questions that animate my for a court to review. The Bill suggested that book, Making Migration Law: The Foreigner, detention was to last for a limited time — Sovereignty and the Case of Australia (‘Making 273 days (or about nine months) (not count- Migration Law’).4 In other words, I ask: How ing the more than two years detention the have we got into this mess? For, wherever one

Court of Conscience Issue 13, 2019 27 stands on the political spectrum, few would sixteenth and eighteenth centuries, which Australia all relied on the following proposi- teenth Amendment style due process right deny we are in a mess. And, if we do not makes visible that the foreigner in early inter- tion attributed to Vattel: was defeated for fear that it may give such understand how we got into it, we stand little national law was a figure of privilege and It is an accepted maxim of international rights to people of ‘undesirable races or of chance of being able to navigate our way out power — a European insider, aligned with the law, that every sovereign nation has the undesirable antecedents’.15 Even a weaker of it, legally or politically. sovereign and sovereign interests.7 Above all, power, as inherent in sovereignty, and proposal providing that people should not be This article provides an overview of the he was either an imperialist, conquering and essential to self-preservation, to forbid deprived of life, liberty or property, without approach I take in the book and offers some claiming the coastlines of the New World, or the entrance of foreigners within its due process of law was rejected. As one of my key findings and conclusions. First, it an intra-European foreigner, whose mobility dominions, or to admit them only in such delegate put it in defence of the doctrine explores how we have inherited the (highly was enabled and authorised by international cases and upon such conditions as it of responsible governance, Australia was contestable) claim that there is an absolute law, whether as trader or exile. That is why may see fit to prescribe.11 far too civilised to need to entrench a due sovereign right to exclude and condition he had rights. And that is why these early process right in its constitution: the entry and stay of aliens, which I term texts disclose no references to the idea of Yet, none of the aforementioned courts saw Why should these words be inserted? ‘absolute sovereignty’.5 Second, it uses ‘absolute sovereignty’. Instead, the foreign- fit to consider the implications of a tempering They would be a reflection on our civilisa- the example of mandatory detention, one er’s treatment in early international law was proviso in the same paragraph ‘not [to] refuse tion. Have any of the colonies of Austra- of two case studies analysed in the book,6 informed by considerations such as neces- human assistance to those whom tempest or lia ever attempted to deprive any person to show how we use that inheritance in sity, humanity, hospitality and tolerance. In necessity obliged to approach their frontiers’.12 of life, liberty, or property without due contemporary practice. This pairing enables contrast to the ‘foreigner’, it was the ‘barbar- Elsewhere, Vattel qualified his position on the process of law? I repeat that the inser- us to think about the past in order to illumi- ian’ of early international law who was the sovereign power to exclude with a rhetorical tion of these words would be a reflection nate what contemporary lawmakers do and outsider, a non-European made subject to question: ‘can it be necessary to add, that the of our civilisation. People would say — why they do it. It makes visible how deeply the law yet unworthy of its protection; subju- owner of the territory ought, in this instance, ‘Pretty things these states of Australia; ingrained ‘absolute sovereignty’ has become gated rather than outlawed. to respect the duties of humanity?’13 they have to be prevented by a provi- as a system of thought and practice. What These qualifications were overlooked by sion in the Constitution from doing the we see is that the emergence of an interna- ii The 19th century: a changing a judiciary in lockstep with the legislative and grossest injustices.’16 tional human rights framework and the end of migratory landscape societal expectations of white settler soci- the White Australia immigration policy were eties, which were unapologetically doing In 1901, when debating the two Bills that were not harbingers of a new dawn in migration A changing migratory landscape and politi- all that they could to keep out non-Euro- foundational to the White Australia policy (the lawmaking, despite having been events of cal-economic conditions in the nineteenth peans. So, although we cannot forget that Immigration Restriction Bill 1901 (Cth) and great historical moment. century marked a shift in how the figure of the the foreigner in the work of Vattel and his the Pacific Island Labourers Bill 1901 (Cth)), foreigner was conceptualised.8 A new kind of predecessor publicists was a European, we the new legislature embarked on the task i Early international law and foreigner — a (presumptively) hostile non-Eu- can also see that the courts had hewn the with full confidence in the (absolute) scope of the foreigner ropean ‘barbarian’ outsider — was now on the doctrine of ‘absolute sovereignty’ out of a the aliens and immigration powers that had move. It was this shift and a desire, particu- body of international law in a way that over- been described as a ‘handsome new year’s From its earliest conceptions (European) larly in white settler societies, to regulate the looked that dazzling array of rights that had gift for a new nation’.17 During that debate, international legal theory contemplated the mobility and labour of non-Europeans such been conferred on the (European) foreigner. Isaac Isaacs, MP (later Attorney-General, foreigner’s mobility in rights terms; rights to as the Chinese that prompted the common Chief Justice of the High Court and then set forth and travel, to sojourn, to hospitality, to law innovation of ‘absolute sovereignty’. iii The 20th century constitutional Governor-General), proposed incorporat- trade, and to share in common property. Free So, its emergence was neither historically entrenchment ing an ‘instant power in any emergency to movement rights all found voice in the work accidental nor juridically inevitable. exclude any person whom this country thinks of early international jurists, including rights What becomes clear is that ‘absolute Upon the Federation of Australia in 1901, is undesirable’.18 One MP admonished him of passage, the right to leave one’s country, sovereignty’ as a claim emerged because ‘absolute sovereignty’ was constitution- for making a proposal that was ‘despotic’.19 the right of asylum, and (perhaps most striking of a political and economic desire to regu- alised in what was described at the time as The response of the future Chief Justice was for the modern international lawyer) the right late race and labour. And, no sooner had it the ‘freest Constitution in the world’.14 Given candid and un-defensive: ‘if we are going to to enter and reside in the territory of another appeared than the courts began treating it as expression through the inclusion of plenary offer a reproach to a measure because it is state. Likewise, the right of necessity played a ‘settled’ common law doctrine that was ‘not powers in the Commonwealth Constitu- despotic, we must not forget that without a a significant and evolving role in shaping how open to controversy’9 even though, as we will tion — powers to make laws with respect to despotic provision we cannot do what we international law framed and conditioned see, it relied on selective and instrumentalist aliens and naturalisation, and immigration want at all’.20 the foreigner’s stay. By any measure, it is readings of early international legal theory.10 and emigration — it thus became even more a dazzling array of rights. But who was the deeply entrenched. iv Mid century: curtailing ‘naked and foreigner in this early international legal para- A judiciary in lockstep uninhibited’ powers digm? And why did he (a pronoun I use advis- In the second half of the nineteenth century, No debate and no due process right edly) enjoy such rights? particular (instrumentalist) readings of early So uncontroversial had these powers of In 1958, migration law in Australia underwent In Chapter 2 of the book I examine the international law by the courts overlooked exclusion been during the Constitutional a major overhaul. The notorious dictation test, seminal international legal texts of Francisco significant qualifications to the power of Conventions that they engendered no whereby an ‘undesirable’ migrant could be de Vitoria, Hugo Grotius, Samuel Pufen- the sovereign. The Privy Council, the US debate. Indeed, the only debate on immi- excluded if they failed a dictation test of 50 dorf and Emmerich de Vattel between the Supreme Court and later the High Court of gration arose when a proposal for a Four- words in a European language of the immi-

28 Dr Eve Lester, Making migration law Court of Conscience Issue 13, 2019 29 gration officer’s choice, was abolished.21 In addition to the right to apply for a writ of scrutiny. Like the ‘barbarians’ of early inter- In his Second Reading Speech, the However, the reform agenda was broader, habeas corpus or injunctive relief, he added, national law, it enabled ‘boat people’ to be Minister self-presented as the epitome of covering deportation and detention powers. the Bill would ‘[go] further’, also providing treated as subject to the law but unworthy moral restraint, and his Government and In his Second Reading Speech,22 then for ‘reasonable facilities for obtaining legal of its protection; subjugated but, as the High his Department as models of good gover- Minister for Immigration Alexander Downer advice and taking legal proceedings’.27 Court would later remind us, not outlaws.32 nance. He claimed ‘no wish’ on the part of Sr did something that seems astonishing Perhaps the most striking example of the As readers will recall, mandatory deten- the Government ‘to keep people in custody now, given current authoritarian approaches reforms that the Minister outlined was the tion as it was originally formulated occurred indefinitely’. Indeed, he ‘could not expect to unsolicited migration: he resolved to place establishment of detention centres, which he by operation of law, and the legislation Parliament to support such a suggestion’. To legislative limits on his own powers by subject- characterised as a ‘humanistic innovation’.28 sought to place such detention beyond the this end, he asserted that custody would be ing them to judicial scrutiny. In doing so, he Describing as ‘undesirable’ what we now call scrutiny of the courts. My analysis in the for a ‘limited period’, being the 273 days (or highlighted the Minister’s ‘solemn responsi- co-mingling (that is, detaining immigration book of the parliamentary debates around about nine months) referred to earlier, and bility’ to ‘wield’ powers he recognised to be detainees in prisons together with convicted this first legislative framing of mandatory implied that processing of their claims would ‘arbitrary’ in a manner that preserved national criminals), particularly because deportees detention, as well as the transcript, court file be completed much more quickly. security but was also ‘humane and just to ‘very often’ had a ‘blameless record’, he and judgment in the constitutional challenge Additionally, the Minister positioned the individuals concerned’ — powers that declared that there was ‘a compelling case’ to it reveals the operation of parallel and himself as entitled to and capable of adjudg- he recognised were ‘capable of the gravest for reform in the treatment of people he mutually self-validating speech choices and ing the motives and behaviours of the ‘boat abuse’.23 With this in mind, he foreshadowed called ‘statutory offenders’. In making these techniques that are illuminating. On the one people’ and their lawyers. Indeed, he had the imposition on the Minister’s broad depor- reforms, Downer described his own experi- hand, a theme of (state) control and restraint described immigration lawyers in Cabinet tation powers of ‘important checks on his ence as a prisoner of war of the Japanese relies on two claims: that there is an abso- as ‘the worst kind of human beings’ he had authority’. Underscoring that his department for three years as a ‘comparable situation’. lute sovereign right to control borders, and ever encountered.36 He attributed delays in dealt ‘first and last’ with human beings and Gaols, he said, were ‘depressing places, that the state can be trusted to exercise that processing times to their ‘calculated tactics’,37 their future welfare, he opined: ‘as human especially when you are not in any true sense right responsibly. On the other hand, a theme thereby papering over governmental flaws and values change, so the law must change’.24 an offender’. It was on this basis that he of (asylum seeker) deviance and opportun- inefficiencies and the full implications of ‘appli- As to the arrest and detention of hailed the introduction of detention centres ism ascribes to so-called ‘boat people’ ille- cation custody’ and the ‘273 day rule’. The ‘suspected prohibited immigrants’, Downer as a welcome innovation out of which he was gality, lawlessness and impropriety, as well clock stopping formula was, he said, designed stated in the same speech that: ‘sure’ that ‘nothing but good will come’; an as volition. The speech choices and tech- as an ‘incentive for the parties involved in the [T]he present act empowers an officer innovation that, along with other ameliorating niques that give effect to these themes rein- process not to embark on tactics calculated to without warrant to arrest any person effects of the legislation, he believed would force the perception that complete control is delay the final processing of claims.’ reasonably supposed to be a prohib- ‘place Australia in advance of any other valid and necessary and that the silence of Working up his moral identity as a reluc- ited immigrant offending against this country in the world.’ decision-less detention is justified. Together tant jailer, the Minister re-emphasised that act. A moment’s thought will show the they underpin political and jurisprudential the Government had ‘no desire to keep these latent dangers here. Accordingly … the v The 1990s: mandatory detention pronouncements that regard the manda- people in custody longer than necessary’,38 Bill provides for a person so arrested to tory and non-reviewable detention of ‘boat thereby amplifying his repeated insistence be brought within 48 hours, or as soon In 2019, the Migration Act 1958 (Cth) that was people’ as an appropriate means of regulat- that he was doing only what was necessary as practicable afterwards, before a introduced by Sir Alick Downer is still in force ing entry into Australia. and that the detainees had only themselves prescribed authority, who must inquire in Australia. However, it has been amended so (or their lawyers) to blame for their continu- into whether there are reasonable many times that it is unrecognisable. Never- No debate and no due process right ing detention.39 This linguistic interplay, which grounds for supposing the person to be theless, in 1992 the substance of the safe- Bipartisan support for the Bill meant there juxtaposes institutional restraint with a projec- a prohibited immigrant. If the authority guards outlined in Downer’s Second Reading were speeches but no debate in the House of tion of deviance, constructed the ‘boat people’ finds such grounds, he will order contin- Speech remained in place; that is that deten- Representatives, and though the lack of due as responsible for their own detention; a tech- ued detention for a maximum period of tion was to be for a limited period of seven process was raised by the Australian Demo- nique that strategically inverted the foreigner seven days pending the Minister’s deci- days (or longer with the detainee’s consent), crats and Independent Senator Brian Harra- to sovereign power relation by presenting the sion as to deportation.25 and that detention was subject to review by dine in the course of debate in the Senate, deprivation of liberty as entirely within the an independent authority. However, for the it did not hold sway.33 Instead, parliamentar- control of those who were subject to it. Downer added further that ‘naked and unin- Cambodian ‘boat people’, whose situation ians offered a smorgasbord of immigration hibited’ powers of arrest (and detention) provided the setting for this piece, the Immi- metaphors and other rhetorical flourishes, Chu Kheng Lim: the High Court provided for in existing legislation had the gration Department had elected to detain designed to drive home the enormity of proceedings capacity to ‘cause great injustice’.26 Having them under a different provision.29 Designed the problem posed by ‘boat people’.34 The The ascription of responsibility and control declared a maximum period of seven days for stowaways, this other provision was oppressive consequences of the Bill were on the part of ‘boat people’ for any encounter detention pending a decision to deport, he intended to apply as a short-term measure.30 pitched as tough but necessary; rational and with Australia’s unscalable wall of ‘absolute then detailed ‘elaborate safeguards’ against Although its use was doubtful, and, the High restrained. In both Houses, ‘boat people’ sovereignty’ would prove central to the consti- such injustice, including retention of the Court would eventually conclude, unlawful,31 were maligned as queue-jumpers engag- tutional case that came before the High Court ‘overriding power of [the courts to order] a its value to the Immigration Department was ing in illegal conduct; as people ‘simply … in Chu Kheng Lim v Minister for Immigration, person’s release from custody if the court that it lacked the safeguards (and inconve- expecting to be allowed into the community’, Local Government and Ethnic Affairs (‘Lim’).40 finds that the deportation order is invalid.’ nience) of periodic review and independent not people who may need protection.35 As the transcript shows, in the course of

30 Dr Eve Lester, Making migration law Court of Conscience Issue 13, 2019 31 proceedings the Solicitor-General deployed vited migrant engages in an encounter with with alacrity the rhetorical force of repeti- absolute sovereignty at their peril. tion to impress upon the Court that manda- tory detention was the detainees’ choice.41 iv The 21st century: They were, he said, engaging in a voluntary mandatory detention activity, were voluntarily detained, had come voluntarily to Australia and were free volun- In his Second Reading Speech when introduc- tarily to depart at any time. A number of ing the mandatory detention Bill in 1992, Minis- judges seemed unimpressed by this discur- ter Hand acknowledged the ‘extraordinary sive strategy during the proceedings. But nature of the measures’, but reassured Parlia- the Solicitor-General pressed on. Indeed, he ment that the legislation was ‘only intended to cautioned the Court against being tempted to be an interim measure’.43 As we know, more look behind the facelessness of the legislative than 25 years later, mandatory detention is still scheme at the people affected as people: government policy and to date has survived The problem is, Your Honour, when one every challenge to its constitutional validity. gets close enough to these people as Even as it seems to be overshadowed by the people who have committed no offence, stridency of more recent responses to unso- who have a sincere desire to enter Austra- licited migration, it remains a keystone policy, lia, who have been detained for lengthy underpinning, for example, offshore process- periods, one can obscure the basic issue ing of ‘boat people’ on remote Pacific islands of … legislative power in respect of aliens and detention and turnaround policies imple- that we are dealing with here.42 mented on the high seas. Since August 2012, 4,177 people have In other words, the Solicitor-General argued been sent to and detained on Nauru or Manus that the humanity of the detainees should not Island, Papua New Guinea, as part of Austra- be permitted to obscure the ‘basic issue’; lia’s offshore processing arrangements.44 As the basic issue being power — an absolute of 26 March 2019, there were 359 people left sovereign power of exclusion. Conversely, it on Nauru and 547 left on Manus Island (915 would seem, ‘absolute sovereignty’ trumps people in total), with a further 953 of 1,246 Refugees waiting inside a hospital respect for those duties of humanity that medical transferees to Australia remaining at Lorengau on Manus Island Vattel viewed as so self-evident that he here.45 In addition to this, of the 1,285 people (Jonas Gratzer) scarcely thought them necessary to mention. in immigration detention as at 31 December 2018, 380 were ‘boat people’ mandatorily Lim: the High Court’s judgment detained in Australia, with a further 15,674 In its judgment and relying on the instrumen- having spent often long periods in immigration talist readings of Vattel by the nineteenth detention but now, pursuant to the exercise century Anglo-American courts that erased of a non-compellable ministerial discretion, the duties of humanity, the majority in Lim living in the community on short-term Bridging concluded that mandatory detention was Visas.46 Of these, 60.3 per cent (774 people) a lawful exercise of the sovereign right to had been detained for 183 days (six months) exclude embodied in the aliens power. The or more, and 22.2 per cent (285 people) had Court also concluded that the judiciary had no been detained for in excess of 730 days (or role in overseeing the detention because the two years).47 Thus we see that the policy of detention was not punitive. It was not punitive mandatory detention still enjoys bipartisan because the detainees could always leave. To support and continues to exact a grave human stay in detention was, therefore, their choice. toll. And, to date, it remains firmly embedded Furthermore, the Court concluded that the in contemporary jurisprudence. measure of mandatory detention was one that was reasonably capable of being seen as a vii Acknowledging an unedifying necessary and appropriate means of regulat- backstory ing entry; a measure that was found to be well within the same power — the same ‘despotic’ As I argue in Making Migration Law, if we are power — that had been innovated in the nine- to find a way out of this mess, we need to teenth century and was handsomely gifted to understand how we got into it. Importantly, we the nation in 1901. In other words, the unin- need to understand contemporary migration

Court of Conscience Issue 13, 2019 33 law as part of a longer, profoundly unedifying, resist ‘absolute sovereignty’ as an impen- References §94, bk II ch VIII §100. See also Sir (Brennan, Deane and Dawson JJ) and highly racialised jurisprudential tradition etrable claim; through which we resist the Robert Phillimore, Commentaries Upon (with whom Gaudron J, at 53, was in 1 Janet Phillips and Harriet International Law (Butterworths, 3rd ed, general agreement), 42–44 (Toohey J), embedded within the broader context of a assumptions that have authorised, upheld Spinks, ‘Boat Arrivals in Australia Since 1879) pt III ch X, 320. 64 (McHugh J). political economy of the movement of people. and normalised the claim of ‘absolute 1976’ (Research Paper, Parliamentary 12 Vattel (n 11) bk II ch VII §94. 32 Lim (1992) 176 CLR 1, 19 For it was in this context that the relation- sovereignty’; and through which we resist Library, Parliament of Australia, first 13 Ibid bk II ch VIII §100. (Brennan, Deane and Dawson JJ). published 25 June 2009, statistical 14 Commonwealth, 33 CPD, Senate, 5 May 1992, ship between the ‘sovereign’ and the figure the structural indifference to the duties of appendix updated 17 January 2017). Parliamentary Debates (‘CPD’), House 2235 (Sid Spindler, Brian Harradine), of the ‘foreigner’ was shaped into the claim humanity towards ‘boat people’ — those 2 Migration Act 1958 (Cth) ss of Representatives, 12 September 2240 (John Coulter). of ‘absolute sovereignty’ and respect for ‘barbarians’ at our border — that is embed- 54L, 54R (as at 6 May 1992; now s 183). 1901, 4826 (William Morris Hughes). 34 See Lester, Making Migration 3 Migration Act 1958 (Cth) 15 Constitutional Convention Law (n 4) 167–86. the duties of humanity was erased. Thus, by ded in the claim of ‘absolute sovereignty’. s 54R (as at 6 May 1992; now s 183). Debates, Melbourne, 2 March 1898, 35 See, eg, Lester, Making locating contemporary Australian migration What, then, are the possibilities? Can 4 Eve Lester, Making Migration 1752 (John Quick). Migration Law (n 4) 171. law within this longer trajectory, it becomes we think and do migration law in Australia Law: The Foreigner, Sovereignty and 16 Constitutional Convention 36 Neal Blewett, A Cabinet the Case of Australia (Cambridge Debates, Melbourne, 8 February 1898, Diary: A Personal Record of the First possible to track the way in which claims without feeling impelled to make a claim on University Press, 2018) (‘Making 688 (John Cockburn); John M Williams, Keating Government (Wakefield Press, of ‘absolute sovereignty’ came together as sovereignty in absolute terms? Can we turn Migration Law’). ‘Race, Citizenship and the Formation 1999) 43, 162. practice, doctrine and authority. Popular- ‘absolute sovereignty’ into a question — even 5 For a detailed explanation of of the Australian Constitution: Andrew 37 CPD, House of how I use the term, see ibid 14–17. Inglis Clark and the “14th Amendment”’ Representatives, 5 May 1992, 2370 ised by Prime Minister John Howard’s state- a problem — rather than treating it as a given? 6 See further Chapter 5, (1996) 42(1) Australian Journal of (Gerry Hand). ment that ‘we will decide who comes to this Can we rethink the unregulated or under-reg- ‘Mandatory Detention’. The second case Politics and History 10, 15. 38 Ibid 2370–3 (Gerry Hand). country and the circumstances in which they ulated space in which the claim of sovereignty study, discussed in Chapter 6, examines 17 CPD, House of 39 Ibid. 48 the policy of ‘planned destitution’, a Representatives, 2 October 1901, 5505 40 Chu Kheng Lim v Minister come’, it is this deeply entrenched ‘absolute resides as an accountable space; open to policy of social and economic exclusion (Edmund Barton). for Immigration, Local Government and sovereignty’ talk that today makes the policy meaningful scrutiny? If we could do this — whereby many people seeking asylum 18 CPD, House of Ethnic Affairs (High Court of Australia, of mandatory detention ‘thinkable’ and, for even try — would the way in which we talk are denied access to work rights and Representatives, 12 September 1901, M23/1992, 7 August 1992). social assistance: see also Eve Lester, 4846 (Isaac Isaacs). 41 Transcript of Proceedings, some, seem inevitable as an institutional and think about both unsolicited migrants and ‘Planned Destitution of People Seeking 19 CPD, House of Chu Kheng Lim v Minister for response to unsolicited migration. ourselves assume a different quality? Asylum: An “Act of Grace”?’, Right Representatives, 12 September 1901, Immigration, Local Government and Understanding ‘absolute sovereignty’ as As a first step, I suggest that we could Now (Opinion, 20 August 2018) 4846 (Hugh Mahon). Ethnic Affairs (High Court of Australia, . 4846–7 (Isaac Isaacs). 42 Lim Transcript (n 41) 76 re-evaluate how power and law are understood foreigner and the sovereign. We could court 7 These texts are discussed in 21 Immigration Restriction (Gavan Griffith QC). Chapter 2. Act 1901 (Cth) s 3(a), repealed under 43 Commonwealth, and used to mediate the relationship between our conscience by eschewing the totalising 8 Discussed in Chapter 3. Migration Act 1958 (Cth) sch 1 s 3. Parliamentary Debates, House of the foreigner and the sovereign. Making visible claim of ‘absolute sovereignty’ as the unan- 9 For a discussion of the 19th For a discussion, see Lester, Making Representatives, 5 May 1992, 2372–3 what we have inherited and how we use it swerable answer to unsolicited migration and century jurisprudence, see Chapter 3, Migration Law (n 4) 131–6. (Gerard Hand) (emphasis added). 94–107. 22 Commonwealth, 44 Offshore Processing impels ownership of the power relation that repudiating the inevitability of the structural 10 In this connection, two key Parliamentary Debates, House Statistics’, Refugee Council of Australia inheres in both ‘absolute sovereignty’s’ past violence of the border. Instead, the relation- sources of inspiration for this work are: of Representatives, 1 May 1958, (Web Page, 19 September 2019) and its present. It obliges us to pay attention ship between the foreigner and the sovereign Antony Anghie, Imperialism, Sovereignty 1396–1400 (Alexander Downer). . tion lawmakers and policymakers rely on and exchange, one that recognises and respects and James AR Nafziger, ‘The General 24 Ibid. 45 Ibid. perpetuate institutional practices that have, the duties of humanity. Recalling the dazzling Admission of Aliens under International 25 Ibid 1398 (Alexander 46 Department of Home Law’ (1983) 77(4) American Journal of Downer). Affairs, Immigration Detention and through the ostensible neutrality and restraint array of rights the foreigner enjoyed in early International Law 804. 26 Ibid. Community Statistics Summary of law and legal process, enabled them to international law, it is a reimagining that is not 11 Nishimura Ekiu v United 27 Ibid. (Report, 31 December 2018) 4, 8. grow accustomed to having at their disposal as radical as it may seem. States, 142 US 651, 659 (Gray J) 28 Ibid 1398–9 (Alexander 47 Ibid 11. (1892), citing Emmerich de Vattel, Downer). 48 John Howard, ‘An Address absolute power over the movement and activ- The Law of Nations; or, Principles 29 Migration Act 1958 (Cth) by Prime Minister John Howard’ ities of foreigners. It enables us to see that Dr Eve Lester is an Independent of the Law of Nature, Applied to the s 88 (as at 31 December 1989; now (Speech, Federal Election Campaign even though many of us are exercised by the Researcher and Consultant and an Conduct and Affairs of Nations and repealed). Launch, 28 October 2001). Associate Member of the Institute for of Sovereigns ed, tr Joseph Chitty 30 Ibid, s 88(1). dehumanising effects of these policies, the International Law and the Humanities, (Lawbook Exchange, 2005) bk II ch VII 31 Lim (1992) 176 CLR 1, 19–22 claim of ‘absolute sovereignty’ has become Melbourne Law School. She is the such a deeply ingrained system of thought author of Making Migration Law: The Foreigner, Sovereignty and the and practice that there is no political or juridi- Case of Australia (Cambridge University cal obligation to think about the people whose Press, 2018). lives are (knowingly) being shattered by it. We struggle to find purchase in our opposition to it because where absolute power is at work there is nothing to push against.

viii Where to from here?

I conclude the book with a provocation for a new conversation; one through which we

34 Dr Eve Lester, Making migration law Court of Conscience Issue 13, 2019 35 Vanquishing asylum Rethinking the popular narrative seekers from Australia’s borders Creating visibility for justice

Prof Linda Briskman

i Introduction ii Casting out A navy dingy approaches a wooden refugee vessel that is sinking in Banishing asylum seeker ‘boat people’ Mandatory detention in Australia, intro- waters off Christmas Island. Claims that asylum seekers were throwing from the nation state has been a corner- duced by the Labor government in 1992, is their children over the sides of the stone of Australian politics.1 This casting the foundation of asylum seeker subjuga- boat were found to be false. asunder is so normalised that the majority tion. This provision is condemned by human Christmas Island, 17 February 2002 (Australian Defence Video/AAP Image) of the population barely notices, or hardly rights organisations, the asylum seeker cares, with cruel politics, invisibility and advocacy movement, professional bodies apathy combining in a human rights-de- and refugees. Immigration detention is not nying combination. Regrettably, the global only a way of controlling borders and migra- increase in the volume of asylum seekers tion, a key policy plank of government, but has normalised, removing immigration of placing lawful asylum seekers out of the spaces of incarceration from the archetypal gaze of humanity, lest humanising rather list of exceptionality.2 than criminalising boat arrivals might weaken In 2016, I wrote for Court of Conscience the deterrence narrative. On a global scale, about resisting the silence that shrouds numbers of ‘unauthorised’ arrivals are rela- asylum seeker advocacy.3 This paper takes tively low in Australia, as vast sea borders a new turn by examining the binary of asylum create a natural barrier. Nonetheless, as seeker invisibility (desired by the state) and the Geneva-based research centre (Global visibility through both imagery and messag- Detention Project) posits, Australia has the ing. In doing so, I present examples of how most restrictive immigration control regime policies and practices are difficult to chal- in the world.4 lenge when hidden from public knowledge When immigration detention was and view. To set the scene for the paper, enshrined in legislation, it was unlikely that I first provide an overview of some of the the policy architects anticipated what would harsh ‘casting out’ policies. follow. The policy was such that all ‘unau- thorised’ asylum seekers, mainly boat arriv-

Court of Conscience Issue 13, 2019 37 als without valid visas, were to be detained able outside the realm of human connection. of Australia’s obligations under the 1951 cycle of silencing with advocates disinclined until granted refugee status or removed from Our online screens, social media sites such as Refugee Convention, particularly the prin- to speak their minds and talk from the heart. Australia.5 What began as detention in metro- Facebook and along with Instagram ciple of refoulment, which prohibits people In a less provocative ways and with a strong politan, rural and remote sites extended to networks remind us of the sheer velocity of being sent back to places of possible perse- and convincing evidence base, human rights distant island locations including Australia’s people on the move with the destruction of cution. Nor are they likely to be aware of how reporting presents information on harms that Indian Ocean Territory of Christmas Island nations, communities and peoples.12 Roland Australia violates other international norms have been inflicted on asylum seekers and and subsequently to the countries of Nauru Bleiker writes of the power of visual imagery in to which it subscribes, including the Conven- refugees, particularly in offshore sites. The and Papua New Guinea (Manus Island), the the global political arena, noting that ‘we live tion on the Rights of the Child, the Interna- vast array of factual and analytical docu- latter known as offshore processing centres. in a visual age’, with images of international tional Covenant on Civil and Political Rights ments from reputable organisations such as The indefinite nature of immigration deten- events shaping our understandings, including and the Convention against Torture. There Amnesty International, the Australian Human tion is frequently prolonged, with serious digital media.13 was inadequate publicity given to an early Rights Commission and United Nations mental health implications. Although manda- Imagery can be evocative in producing action of the re-elected conservative govern- agencies are unlikely to be perused other tory detention legislation remains in place, emotion. Take for example the global circula- ment, which opportunistically declared that it than by those who are already committed to policies have been devised that allow people tion of a 2015 image of three-year old Syrian had saved the lives of 41 Sri Lankan asylum asylum seeker justice; although the asylum to be released into either community deten- Kurd, Alan Kurdi, lying dead on a Turkish seekers at sea,16 but not enough lifesaving seeker social movement is robust, numbers tion (residence determination) or a Bridging beach, a child like any other. More recently, in it seems to fully hear out their claims before are not high enough to create a groundswell Visa E.6 These strategies have created addi- June 2019, the picture of a father and toddler returning them back to Sri Lanka. Sending of policy influence. tional problems including inadequate financial daughter broke compassionate hearts, back people without giving each person a For non-state actors who profit from support, lengthy periods before claims are with both lying face down in waters on the chance to fully present their claim includ- colluding with government, almost total invis- processed and flow-on effects such as disal- Mexican side of the Rio Grande. Particularly ing ‘fast-tracking’ has been criticised by the ibility about their detention activities is the lowing family reunion.7 As neither of the major poignant was the child lying still in her father’s Kaldor Centre for International Refugee Law norm unless their activities are exposed by political parties in Australia want people to lifeless protective embrace. Los Angeles which calls for compliance with Australia’s investigative journalists. Private corporations arrive by boat, an array of policies and legisla- Times journalist declared that: ‘Sometimes international legal commitments.17 conspire in a silent manner, no doubt because tion has been incrementally introduced for the an image is so powerful, it cuts through On mainland Australia, asylum seekers of commercial-in-confidence contractual purpose of deterrence.8 While it is beyond the almost any noise’, although others ques- are ‘less place based, less contained and arrangements. These include companies scope of this paper to provide a full descrip- tioned the benefit of disseminating through less spoken about’.18 With asylum seekers tasked to run detention prisons on behalf of tion of the harsh deterrent measures, it should social media the photograph that was first now more commonly in the community than government and others who provide services be noted that the most publicly criticised has published in Mexico by La Journada.14 detention, this is deceptively touted as a within, including health services that have been the so-called ‘Pacific Solution’, which Even though such images are power- humane approach. However, with the dimin- been exposed as manifestly inadequate. paradoxically is the most invisible. ful, they are few and far between. In the ishment of the previous safety net of the Non-governmental organisations have also Bacon et al. describe ‘Pacific Solution’ Australian context there are many factors Status Resolution Support Service (SRSS), uncritically co-operated with government, detention in the sovereign nations of Nauru that converge to hide asylum seekers many vulnerable asylum seekers are forced with their staff unable to speak out about and Papua New Guinea as marking the point from public view. Immigration detention in into destitution and at best reliant on charity, what they have witnessed.21 ‘at which Australia began moving away from remote sites is one way in which humanis- community goodwill or state government Sustained asylum seeker/refugee its international treaty obligations – to one of ing of asylum seekers has been restricted. intervention.19 Arising from this, interac- endeavours to expose practices and harms crude and pragmatic national politics based on When Christmas Island was a major deten- tion and connection are not easy to foster. are relatively new. Despite the transportation fear and vilification’.9 The trajectory of exclu- tion site, a four-hour plane trip from Perth Waiting for years for claims to be processed of asylum seekers offshore, the incarcerated sion includes the announcement by the Rudd and expensive fares and accommodation has a negative impact on personal wellbeing, have found ways to defy their concealment Labor government in July 2013, declaring that were prohibitive for people wishing to visit which does not bode well for a conventional in order to bring attention to their suffer- no asylum seeker who arrived by boat would asylum seekers and hear from them directly. social life, social interaction, community visi- ing and the policies that create anguish ever be given the chance to settle in Austra- With the advent of offshore detention, there bility and empathy. and despair. The refugee movement has lia.10 For the first time ever, Australia would be have been restrictions in place that prevent In attempts to create alternative visi- applauded asylum seeker voice including totally closed to those arriving by boat even people gaining visas to the countries in bilities, approaches are adopted through Manus Island detainee of six years, Behrooz when found to be refugees11 and has resulted question, including journalists. persuasive language and metaphor. Yet, Boochani, whose book No Friend but the in some asylum seekers and refugees remain- An additional means of purging asylum these may be subject to harsh rebuke by Mountains received national acclaim and ing immobilised in Nauru and on Manus Island, seekers from public view via distance is naval influential groups. One recent example is the awards.22 Boochani also produced a film with others resettled in the United States under interception at sea, including the 2001 Oper- criticism of well-respected author Thomas from within Manus, Chauka, Please Tell Us a ‘swap’ deal negotiated between Australia and ation Relex, reinvented in 2013 as the mili- Keneally. Executive Director of the Sydney the Time, filmed on his mobile phone, and the US, even further alienating asylum seekers tary-led Operation Sovereign Borders, which Institute Gerard Henderson condemned he regularly writes articles for media outlets. from the view of the Australian public. continues.15 Because of Australia’s vast sea Keneally for adopting the term ‘concentration Another man who was imprisoned on Manus borders and the secrecy of ‘national security’ camp’ for the asylum seeker/refugee camp, Island, Abdul Aziz Muhamat, is the winner iii The visibility/invisibility binary operations, the plights of those who have with his usage of this term seen by Hender- of an international human rights award and been intercepted and removed from Austra- son as ‘grossly inaccurate’.20 When criticism now resettled in Switzerland. In 2019, he At a global level, movement of asylum seekers lian waters are largely unknown. Further- is levelled at advocates who may be less spoke to the United Nations Human Rights and refuges has become increasingly observ- more, most people would not be aware emboldened than Keneally, it can create a Council of the humanitarian crisis on Manus

38 Prof Linda Briskman, Vanquishing asylum seekers from Australia’s borders Court of Conscience Issue 13, 2019 39 Island, particularly the spate of attempted and activity, including health, impoverish- suicides,23 a speech that entered the public ment and cultural damage.26 domain through sympathetic media outlets. Through making the invisible visible, As alluded to above, despite potential there is some optimism that asylum seekers/ transformation created through exposure and refugees and advocates can defeat govern- visibility, it is difficult to appeal to those other ment legitimacy in carrying out human than committed asylum seeker rights advo- rights abuses, creating change from the cates. The power and resources of govern- bottom up. The win at the 2019 federal elec- ment and sections of the media far exceed tion has enabled the federal government to those available to civil society. Government gloat about being election-victorious, but also uses imagery and narrative, including to running government does not give licence to promote the criminalising of asylum seekers state-sanctioned cruelty. We need to unravel through incarceration. Messages are initi- the discourse of national security, selectiv- ated by government and then disseminated ity of entry and the mythical queue to avoid through media sources. One example is the public manipulation by ‘thought control’. This fabricated Children Overboard affair in 2001, remains work in progress. when the Howard government deceptively This paper has discussed converging asserted that asylum seekers had thrown factors that create a climate of both tacit and their children into the sea to gain protection overt community acquiescence to ; images were released to support seeker policies, and the use of imagery this false contention. Another example is the to both contest and maintain the ongoing 2002 escape from Woomera detention facility human rights predicament. In concluding, in South Australia, where visuals of desper- it seems essential to centre efforts on the ate asylum seekers jumping over the contain- entrenched law pertaining to mandatory ment wire reached our television sets and detention and the harmful policies that follow produced fear. Through constant imaging and bring them more directly into public view. of the boat tragedy on Christmas Island in Governments and colluding non-state actors 2010, we saw on our televisions an asylum must be called to account as Ghassan Hage seeker boat crashing into rocks, killing 50 potently states when referring to ‘caging’ and Still image of Behrouz Boochani people – men, women, children. Instead its link to observable racism. He says: from Simon Kurian’s documentary, of engendering sympathy, the government Today, as we witness Aboriginal deaths ‘Stop the Boats’ (Simon Kurian) distorted compassion for political purposes, in custody, asylum seekers immolating declaring that subsequent harsh policies themselves for finding their caging intol- were designed to stop deaths at sea. The erable, people dying while trying to break asylum seeker boat is an effective visual, free from claustrophobic national borders with invasion and fear striking the hearts of behind which they are kept against their the populace and washing away humanitar- will, we also face the fact that the caging ian sentiments.24 of mainly black and brown people has become a racist technique of extermina- iv Restoring human rights and tion. Those responsible for legitimising human dignity and deploying such a technique need to be held accountable for the impact of The difficult problematic is how to rupture their actions.27 the asylum seeker system, within a context where Josh Lourensz warns: ‘Be prepared: Prof Linda Briskman holds the Kafka wasn’t writing fiction’.25 Margaret Whitlam Chair of Social Work at Western Sydney University. In his seminal work on Inhuman Rights, She conducts research, publishes and Winin Pereira speaks of how dissemination advocates for the rights of Indigenous of distorted information results in ‘thought peoples and asylum seekers, as well as working on challenging control’ that is effective because it is so Islamophobia. subtly carried out. The right to information, he argues, becomes a restricted right, with information not forthcoming even when requested, meaning that people are rarely informed of all the effects flowing from policy

Court of Conscience Issue 13, 2019 41 Rethinking the popular narrative References 9 Wendy Bacon et al, 19 Ibid 18. Protection Denied, Abuse Condoned: 20 Gerard Henderson, Imitation as flattery 1 Linda Briskman, ‘A Clash of Women on Nauru at Risk (Report, June ‘Concentration Camps? You Can’t Be Paradigms for Asylum Seekers: Border 2016) 20. Serious, Tom Keneally’, The Weekend Security and Human Security’ in Goh 10 ‘Offshore Processing Australian (online, 6 July 2019) 20 Bee Chen, Baden Offord and Rob Statistics’, Refugee Council of Australia . 365b>. Circularity: Mobility, Indigeneity, Race 11 Madeline Gleeson, Offshore: 21 Linda Briskman and Jane and Immigration in Settler-colonial Behind the Wire on Manus and Nauru Doe, ‘Social Work in Dark Places: policy to Europe Australia’ Studies in Social Justice (New South Publishing, 2016). Clash of Values in Offshore Immigration (forthcoming). 12 Soldatic (n 2). Detention’ (2016) 35(4) Social 3 Linda Briskman, ‘Resisting 13 Roland Bleiker, Visual Global Alternatives 73, 78. Silence: Asylum Seekers and Voices Politics (Routledge, 2018) 1. 22 Behrooz Boochani, No of Conscience’ (2016) 10 UNSW Law 14 Kate Linthicum, ‘A Photo Friend but the Mountains, tr Omid Society Court of Conscience 20. From the Rio Grande Captures the Tofighian (Picador, 2018). 4 See ‘Australia Immigration Tragic End for a Father and Daughter’, 23 Helen Davidson, ‘Former Detention’, Global Detention Los Angeles Times (online, 26 June Manus Island Detainee Tells UN Project (Web Page) . mexican-border-20190626-story.html>. . . . in Lynda Mannik (ed) Migration by Boat: 6 Ibid. 16 Simone Benson, ‘Australian Discourses of Trauma, Exclusion and Stephen Phillips 7 ‘Lives on Hold: Refugees Sea Patrol Helps Save 41’, Weekend Survival (Berghahn, 2016) 1, 4. and Asylum Seekers in the “Legacy Australian (online, 5 June 2019) 25 Lourensz (n 18) 17. Caseload”’, Australian Human Rights . 27 Ghassan Hage, ‘Caging refugees-and-asylum-seekers-legacy>. 17 Kaldor Centre for People to Dominate Them is a Sign of 8 Mary Anne Kenny and Lucy International Refugee Law, Principles Weakness, Not Power’, The Guardian, i Introduction: the Tampa Affair one particular minor party hung prominently Fiske, ‘Refugees and Asylum Seekers: for Australian Refugee Policy (Report, (online, 6 July 2019), . Press, 4th ed, 2014). (2019) 160 Arena Magazine 15, 18. In August 2001, the Australian Government, and federal politics in Australia, winning 22 a conservative coalition, was at risk of losing percent of the vote at the 1998 Queensland the election that was to be held later that state election6 and having a candidate elected year.1 The governing Liberal-National Coali- to the Senate at the 1998 federal election.7 Its tion had been trailing the opposition Labor leader, Pauline Hanson, had famously stated Party in opinion polls for most of the year, in in her maiden speech to Parliament on 10 particular due to general dissatisfaction with September 1996: ‘I will be called racist but, the government’s economic reforms and if I can invite whom I want into my home, then social policies.2 Three months later, following I should have the right to have a say in who an election that saw the Labor Party record comes into my country’.8 On 28 October 2001, its lowest share of the primary vote since less than two weeks before the election and in 1934,3 the Liberal-National Coalition was still reference to recent changes made to Austra- in power, and with an increased majority. lian border protection laws following the Boat people and the vulnerability of Tampa affair, then Australian Prime Minister Australia’s borders was a central theme John Howard expressed similar, now equally throughout the election campaign, which was famous, sentiments: dominated by the leaders of the Liberal-Na- National security is therefore about a tional Coalition and the Labor Party. The minor proper response to terrorism. It’s also parties ultimately played a relatively small role about having a far sighted, strong, well on polling day (none received higher than five thought out defence policy. It is also percent of the primary vote in the House of about having an uncompromising view Representatives,4 and none higher than seven about the fundamental right of this percent in the Senate)5 but the shadow of country to protect its borders. It’s about

42 Prof Linda Briskman, Vanquishing asylum seekers from Australia’s borders Court of Conscience Issue 13, 2019 43 this nation saying to the world we are a tion Zone) Act 2001 (Cth) allowed for the exci- generous open-hearted people taking sion of certain offshore territories (including more refugees on a per capita basis than Christmas Island) from Australia for migration any nation except Canada, we have a purposes, meaning that persons entering proud record of welcoming people from Australia in such territories were considered 140 different nations. But we will decide not to have entered Australia for the purpose of who comes to this country and the applying for a visa, thus leaving them outside circumstances in which they come.9 of Australia’s refugee protection system and without access to Australian tribunals.15 Under Howard would have been well aware that the Pacific Solution, those asylum seekers the One Nation Party had the potential to intercepted by Australian naval operations split the conservative vote, and in particular were transferred to processing facilities on that support for One Nation could damage Manus Island (Papua New Guinea) and Nauru, the support of the Coalition partner, the where they were detained while they awaited National Party. One Nation might not have processing and repatriation or resettlement. been in government, but its populist agenda The Pacific Solution has continued in was highly capable of shaping the response various forms for the majority of the years of the major parties on potentially divisive since its inception and has been the subject issues, such as asylum seeker boat arrivals of sustained critique from the United Nations, and border protection, that stirred feelings of human rights organisations, scholars and protectionist nationalism in elements of the other experts, all of whom point to its failure to Australian electorate.10 comply with international human rights law.16 Returning to August 2001, this approach Of particular concern is the use of mandatory of the Australian government to border secu- detention, which has been repeatedly found rity was demonstrated when a boat carrying by the United Nations Human Rights Commit- 438 asylum seekers became stranded in inter- tee to be in breach of art 9(1) of the ICCPR,17 national waters approximately 140 kilome- as well as the increased risk of refoulement18 tres north of Christmas Island.11 The asylum that this policy entails. International pressure seekers were rescued by MV Tampa, a Norwe- has not dissuaded Australia from its course of Former Australian Prime Minister John gian freighter. Following the rescue, the captain action, nor has domestic pressure by a range Howard speaking on the removal of of the Tampa set course for Christmas Island to of non-governmental organisations, experts, 438 refugees from the MV Tampa freight ship. Melbourne, 3 September safely offload the asylum seekers. The Austra- and even from some within the government’s 2001 (Julian Smith/AAP Image) lian government refused the Tampa permission own ranks. The policy enjoys the support of to enter Australian territorial waters, claiming both major political parties, and even the one that the Australian government had no respon- short-lived attempt to relax the policy, by a sibility to the asylum seekers as the rescue Labor government in 2008, ‘did not abandon had occurred outside of Australia’s designated the policy completely, however, maintaining search and rescue region.12 Ultimately the the legislative provisions underpinning the asylum seekers were offloaded onto an Austra- strategy’.19 Domestically, boat arrivals remain lian naval vessel and transferred to Nauru, a politically divisive issue, and notions of where most of them were held in detention human rights appear to have little currency. camps as part of what would become known Paradoxically, Australia continues to pride as Australia’s ‘Pacific Solution’.13 itself on its strong commitment to human rights and was in 2017 elected uncontested ii Entry prevention and deterrence: to the United Nations Human Rights Council, the Pacific solution an indication, according to then Australian Foreign Minister Julie Bishop, that Australia Australia’s Pacific Solution was targeted at is seen as a ‘principle and pragmatic voice unauthorised boat arrivals and included three when it comes to human rights’.20 key elements: one, the excision of territory for immigration purposes; two, the interdic- iii Transfer of language and of policy: tion of asylum seekers arriving by boat; and from Australia to Europe three, the establishment of processing facil- ities in countries in the Pacific region.14 The It seems odd that a country can detain highly Migration Amendment (Excision from Migra- vulnerable people, including children, on

Court of Conscience Issue 13, 2019 45 remote Pacific islands in conditions that have of rights have become more commonplace. committees, expert bodies, working groups producing improvements in the human condi- been condemned by the United Nations,21 In June 2018, the European Council, made and roundtables have spawned a prolifera- tion’. 34 A human rights regime that creates or whilst simultaneously receiving the blessing up of the leaders of the EU member states, tion of treaties, declarations, recommenda- enables division fails to achieve its fundamen- of the international community to take up a declared the following: tions and other documents. At a time when tal purpose, and an exhaustive re-evaluation key role in an inter-governmental body that In order to definitively break the business the language of human rights is being chal- of the human rights project’s present state is is ‘responsible for strengthening the promo- model of the smugglers, thus preventing lenged and overshadowed by that of border needed before its future can be reimagined. tion and protection of human rights around tragic loss of life, it is necessary to eliminate control, human rights language finds itself in Lessons learnt from the Australian context the globe and for addressing situations of the incentive to embark on perilous jour- a struggle to remain relevant. The language can help to rebuild an approach to human human rights violations and make recom- neys. This requires a new approach based of law has permeated the language of rights rights that is relevant in the prevailing secu- mendations on them’.22 In the European on shared or complementary actions among to the point that for many this language has rity-driven climate, and can empower those context, rather than being chastised for its the Member States to the disembarkation of become difficult to penetrate. Koskenniemi in various parts of the world to work towards refusal to honour its international obligations, those who are saved in Search And Rescue refers to a ‘process of endless narration’32 that safer and more sustainable paths to protection Australia’s approach is being lauded through operations. In that context, the European brings with it a risk that ‘the domination of the for asylum seekers than those that currently imitation, that most sincere form of flattery. Council calls on the Council and the Commis- Western academy will see to it that the stories exist, or are being contemplated. Language focused on ‘stopping the boats’ sion to swiftly explore the concept of regional everyone hears will perpetuate precisely the and ‘breaking the people smuggler’s busi- disembarkation platforms, in close coopera- kinds of hierarchy that rights-languages on Stephen Phillips is a Doctoral ness model’ that is very familiar to Australian tion with relevant third countries as well as its best days was expected to dismantle’.33 Researcher at the Institute for Human Rights at Åbo Akademi University, ears began to emerge in Europe following the UNHCR and IOM. Such platforms should Nevertheless, even such a critical assess- Finland. His research examines large influx of asylum seekers to that conti- operate distinguishing individual situations, ment of the language of human rights allows state responses to forced migration, nent in 2015.23 At the regional level, Frontex, in full respect of international law and without scope for the possibility that the message is specifically the prevention of access 29 to asylum. Stephen has previously the EU agency responsible for the EU’s exter- creating a pull factor. sound, and that the failure can be found in worked in casework and advocacy nal borders, describes its tasks in the follow- Here the language of rights is relegated the delivery. According to Falk, ‘the power of roles in both the government and ing terms: ‘Frontex, the European Border and to a secondary position, not even explicitly rights needs to motivate its varied constituen- non-government sectors with asylum seekers in Australia and with victims of Coast Guard Agency, promotes, coordinates identified but (presumably) included under cies by both the urgencies of its cause and the forced displacement in Colombia. and develops European border manage- the broader notion of ‘international law’. genuine, although not assured, possibilities of ment in line with the EU fundamental rights Rather than a focus on protection, there is charter and the concept of Integrated Border a preference to remove incentives for move- Management’.24 The agency’s executive ment, encapsulated in the idea of ‘regional References 9 John Howard, ‘Election John Chesterman and Lisa Hill, The director, Fabrice Leggeri, stresses that ‘[f] disembarkation platforms’ in third countries Speech’ (Speech, Federal Liberal Party Politics of Human Rights in Australia 1 The 2001 Australian Campaign Launch, 28 October 2001). (Cambridge University Press, 2009). undamental rights are integrated into Frontex that draw a clear parallel to Australia’s Pacific federal election was ultimately held 10 On the impact of One 17 International Covenant operations from their inception, ensuring that Solution.30 Whilst overall Europe appears still on 10 November 2001. Nation on Australian immigration on Civil and Political Rights, opened all those fleeing war and persecution are to be clinging to notions of human rights and 2 Clive Bean and Ian policy in this period, see James Jupp, for signature 19 December 1966, 25 McAllister, ‘From Impossibility to From White Australia to Woomera: 999 UNTS 171 (entered into force able to apply for international protection’. dignity in its response to asylum seekers, it is Certainty: Explaining the Coalition’s The Story of Australian Immigration 23 March 1976) art 9(1) (‘ICCPR’). This language remains milder than that of showing clear intent of replicating Australian Victory in 2001’, in John Warhurst (Cambridge University Press, 2nd ed, UN Human Rights Committee cases the Australian government, which describes policies that have inflicted high levels of harm and Marian Simms (eds), 2001: 2007) 120–36. addressing Australia’s mandatory The Centenary Election (University 11 The ‘Tampa Affair’, as detention policy include: Human Rights its own response to unwanted migration by to asylum seekers through their preference of Queensland Press, 2002) 271. the subsequent course of events Committee, Views: Communication boat, Operation Sovereign Borders, as a ‘a for punishment and deterrence over protec- 3 Stephen Barber and Sue has become known, has been No 560/1993, 59th sess, UN Doc military led border security operation’ aimed tion and dignity. Johnson, ‘Federal Election Results described and discussed at length CCPR/C/59/D/560/1993 (3 April 1997) 1901–2014’ (Parliamentary Library, by many authors: see, eg, David Marr (‘A v Australia’); and Human Rights at ‘protecting Australia’s borders, combating 2014) 29–55. and Marian Wilkinson, Dark Victory Committee, Views: Communication people smuggling in our region, and prevent- iv Conclusion: the failure and future 4 Ibid 55. (Allen & Unwin, 2004). No.1069/2002, 79th sess, UN Doc ing people from risking their lives at sea’.26 of human rights 5 Ibid 97. 12 David Stuart, Ambassador CCPR/C/79/D/1069/2002 (29 October 6 Gerard Newman, ‘1998 and Deputy Permanent Representative 2003) (‘Bakhtiyari and Bakhtiyari v Nevertheless, Australian inspired language Queensland Election’ (Parliamentary of Australia to the United Nations, Australia’). and rhetoric has gradually begun to emerge The core human rights message, as enshrined Library) . 1951, 189 UNTS 150 (entered into force ‘European Migrant Crisis’, the European inalienable rights of all members of the human cib9899/99CIB02#INTRO> 13 David Marr and Marian 22 April 1954) and its Protocol Relating Commission, the EU’s executive, phrased its family is the foundation of freedom, justice 7 Barber and Johnson (n 3) 96. Wilkinson, Dark Victory (Allen and to the Status of Refugees, opened for 31 8 Commonwealth, Unwin, 2004) 134–44. signature 31 January 1967, 606 UNTS response in terms of the perceived need ‘to and peace in the world’. This message, as Parliamentary Debates, House of 14 Mary Crock, Ben Saul and 267 (entered into force 4 October 1967) try to halt the human misery created by those a starting point, seems no less relevant now Representatives, 10 September Azadeh Dastyari, Future Seekers II: states that: No Contracting State shall who exploit migrants’,27 choosing to frame than it was in 1948. The message is clear, 1996, 3862 (Pauline Hanson) Refugees and Irregular Migration in expel or return (‘refouler’) a refugee in . (UNSW Press, 2006); Louise Chappell, Convention against Torture and Other

46 Stephen Phillips, Imitation as flattery Court of Conscience Issue 13, 2019 47 Cruel, Inhuman or Degrading Treatment AUS/CO/5 (11 July 2017); Human Agenda on Migration (Research or Punishment, opened for signature Rights Committee, Concluding Report No COM(2015) 240, 13 May Increasing support 10 December 1984, 1465 UNTS 85 Observations on the Sixth Periodic 2015) 2 . to refugees and person to another State where there Rights Council’, United Nations Human 28 Ibid. are substantial grounds for believing Rights Council (Web Page) . 28 June 2018’ (Press Release, asylum seekers refoulement is also grounded in a range 23 For a contemporary 29 June 2018) . of Human Rights and Fundamental Union’ (Policy Brief No 332, Centre for 30 On diffusion of asylum Freedoms, opened for signature European Policy Studies, September seeker policy see Ghezelbash (n 19); 4 November 1950, 213 UNTS 222 2015). David Scott FitzGerald, Refuge Beyond (entered into force 3 September 1953) 24 ‘Origin and Tasks’, Frontex: Reach: How Rich Democracies Repel art 3. European Border and Coast Guard Asylum Seekers (Oxford University 19 Daniel Ghezelbash, Refuge Agency (Web Page) . 31 Universal Declaration of World (Cambridge University Press, 25 ‘Foreword’, Frontex: Human Rights, GA Res 217A (III), UN 2018) 113. European Border and Coast Guard GAOR, UN Doc A/810 (10 December 20 ‘Australia “A Principle and Agency (Web Page) . 32 Martti Koskenniemi, Human Rights”: Bishop’, RN Breakfast 26 ‘Operation Sovereign ‘Foreword: History of Human Rights as (ABC Radio National, 17 October 2017) Borders’, Department of Home Affairs Political Intervention in the Present’, . Tuomisaari (eds), Revisiting the Origins pragmatic-voice-when-it-comes-to- 27 European Commission, of Human Rights (Cambridge University human-rights/9056922>. Communication from the Commission Press, 2015) ix, xviii. 21 See, eg, Committee on to the European Parliament, the 33 Ibid. Economic, Social and Cultural Rights, Council, the European Economic 34 Richard A Falk, Achieving Concluding Observations on the Fifth and Social Committee and the Human Rights (Routledge, 2009) 38. Periodic Report of Australia, E/C.12/ Committee of the Regions: A European

48 Stephen Phillips, Imitation as flattery An asylum seeker’s access Increasing to support refugees and asylum seekers to Medicare and associated health services while awaiting determination of a Protection Visa application in Australia

Danielle Munro and Niamh Joyce

i Introduction If a person is subsequently granted a Protec- General Pracitionner Katherine tion Visa, they have the status of an Australian Lazaroo treats an asylum seeker’s The right to access Medicare while waiting permanent resident and have access to Medi- child at the Asylum Seeker Resource Centre in Footscray. Melbourne, for a decision to be made on an application care and other services. 17 May 2002 (Julian Smith/AAP Image) for a Permanent Protection Visa (subclass After lodging an application for a Protec- 866) (‘Protection Visa’) is governed by legis- tion Visa, the applicant will be issued a Bridg- lation and is dependent on the conditions of ing Visa which is a temporary visa and allows the Bridging Visa the applicant holds. the applicant to remain lawfully in Australia The requirements for access to Medicare while awaiting a decision on the application. differ for asylum seekers who have applied It is during the lengthy wait for the Protec- for a Temporary Protection Visa (subclass tion Visa application to be processed (and, 785) or Safe Haven Enterprise Visa (subclass if necessary, the appeal process) that appli- 790), which are the Protection Visa classes cants are in need of medical care. Yet, many available for unauthorised maritime arrivals. are prevented from accessing Medicare due This paper discusses the situation for asylum to conditions placed on their Bridging Visas. seekers who passed through immigration The Department of Home Affairs (‘DHA’) clearance when arriving in Australia and have has reported that during 2017–18, there applied for the Permanent Protection Visa. were 27,931 valid Protection Visa appli- The criteria for a Protection Visa is that a cations lodged,3 yet only 1,425 Protection person meets the definition of a refugee or satis- Visas were granted during that period.4 fies the complementary protections.1 This visa The DHA has chosen not to publish process- is only available for people currently in Australia ing times, however, based on the author’s who have arrived and entered Australia lawfully experiences, Protection Visa applicants can (ie arrived in Australia with a valid visa, such as a be waiting for two to five years for a decision, Tourist (subclass 600) or Student Visa (subclass and even longer if the applicant needs to lodge 500)). This Protection Visa is different to the visas an application for merits review and possibly available to people who have arrived irregularly.2 also for judicial review. There are long lasting

Court of Conscience Issue 13, 2019 51 psychological effects on visa applicants compelling need to work (ie they are demon- Protection Visa flowchart waiting this length of time without having strably in financial hardship).12 access to Medicare and the authors argue Case Study 2: Duc arrived in Australia on At time of lodging application that all people that have applied for a Protec- a Tourist Visa and remained for many years for a Protection Visa (866) tion Visa should be given access to Medicare after it had expired. While he was ‘unlawful’ from the time the application is submitted. (ie holding no visa), he applied for a Protection Visa, and was subsequently granted a Bridg- ii Legal requirements to access Medicare ing Visa C, with no right to work. He needed to apply for permission to work by demonstrat- If in Australia, not If on a substantive If in immigration in immigration If on a Bridging Visa The Health Insurance Act 1973 (Cth) defines ing financial hardship. This required him to If on a Bridging Visa E visa (a visa other than detention detention, and A or C 5 a Bridging Visa) who is eligible for Medicare. There are only provide copies of bank statements in Australia without a valid visa limited classes of people who are able to and his home country as well as receipts and access Medicare without being a perma- evidence of his expenses. He also needed to nent resident or an Australian Citizen.6 This include details of why his friends and family includes a person in Australia who has could not financially support him. applied for a permanent visa and currently If a person makes a valid application for Can only be granted a Automatically granted holds a Bridging Visa with the ‘right to work’.7 a Protection Visa while on a Bridging Visa E, Bridging Visa E Automatically granted a a Bridging Visa C they will be granted a Bridging Visa E with no (need to satisfy delay Bridging Visa A with work (need to demonstrate a criteria and compelling compelling need to work iii Conditions attached to Bridging Visas right to work.13 They can apply for the right rights need to work in order to in order to be granted to work, but they must show that they have obtain work rights) work rights) Whether the visa applicant has the right to work both a compelling need to work (ie they are while on their Bridging Visa depends on the demonstrably in financial hardship), and that Figure 1: Flowchart of the class of class of Bridging Visa (A through to F) held and they have an acceptable reason for the delay Bridging Visa which will be granted to a Protection Visa applicant the conditions attached to the Bridging Visa.8 in applying for the Protection Visa.14 The class of Bridging Visa granted to a Case Study 3: Parvesh and Diya are a Protection Visa applicant is determined by the couple who were on a Bridging Visa E while tion. After lodging an application for a Protec- A closer look at Case Study 4: Chelsea had applicant’s visa status at the time of lodging the pursuing a complicated skilled visa matter, tion Visa, she was released into the commu- a well-founded fear of harm at the hands of application.9 That is, whether or not a Protec- which was unsuccessful. They then lodged nity on a Bridging Visa E. As a person who had police, medical staff and others in her country tion Visa applicant is able to access Medicare an application for a Protection Visa. As they been homeless for so long, she did not have a of origin, and she had no reason to believe that while awaiting a decision depends on their were already on a Bridging Visa E, they were bank account or identity documents. She also her experience would be different in Australia. immigration status before they applied. It is granted another Bridging Visa E in associa- had a number of serious health conditions She had suffered trauma regarding this, and not, for instance, based on need, strength of tion with the Protection Visa application. which had been untreated. Yet she remained on this basis did not engage with authorities in their visa application, or any health-related The couple then fell pregnant in Austra- ineligible for Medicare or work rights. Australia. Yet, none of these were considered claims for protection. lia, and had to pay for private health insur- A pressing need for healthcare is not a an acceptable or ‘reasonable’ explanation for If a person makes a valid application for a ance (out of their savings) for the pregnancy factor considered by the DHA in the applica- her delay in applying for the Protection Visa. Protection Visa while on a substantive visa (a and birth-related healthcare costs. Even after tion to grant work rights or access to Medicare. The reason the Department imposes no visa other than a Bridging Visa), then they will they ran out of money, they continued to work rights on Protection Visa applicants, and be granted a Bridging Visa A with permission to be ineligible for work rights or access to Reasons for delay for Bridging Visa the considerations to be weighed in making work and will therefore be eligible for Medicare.10 Medicare, because they do not meet the E holders the decision above, relate to the policy goal Case Study 1: Mohammed arrived in ‘delay’ criteria. When considering whether or not a Bridg- of encouraging people to genuinely and Australia to study from Indonesia. While If a person makes a valid application for a ing Visa E should be granted with the right continuously engage with the Department studying he came out to his family as gay Protection Visa (subclass 866) while in immi- to work, addressing the additional criteria and regularise their status.19 and became fearful of returning to Indone- gration detention, they may be granted a Bridg- relating to ‘reasons for delay’ often present a A closer look into Case Study 3: Parvesh sia. Just before his Student Visa expired, he ing Visa E to permit them to live in the commu- serious obstacle for asylum seekers needing and Diya pursued a Skilled Visa application applied for a Protection Visa. He was subse- nity while their application for protection is to work (and access Medicare). and requested the Minister to intervene. While quently granted a Bridging Visa A, allowing processed. It is mandatory under Department Department Policy states that it is very awaiting the outcome, the couple were granted him to work and access Medicare while he policy that in these circumstances the condi- unlikely that a person who has remained in a Bridging Visa E. Over four years passed awaited a decision from the DHA. tion ‘no right to work’ be attached to the Bridg- the community unlawfully for a long time, or between the date they originally lodged their If a person makes a valid application for ing Visa E.15 They can apply for the right to work only applied for a Protection Visa when they application and the final refusal. They had never a Protection Visa while not holding a valid (and therefore access to Medicare) by demon- became located by the Department will have been unlawful, and had always complied with visa (that is, they are ‘unlawful’) and are not strating both a compelling need to work and an acceptable reason for delay.17 It is only all visa requirements. As they did not apply for in immigration detention, they will be granted an acceptable reason for delay in application.16 if circumstances change in the applicant’s protection immediately upon arrival to Austra- a Bridging Visa C with no right to work.11 Case Study 4: Chelsea was unlawful and home country, which is then made the basis lia, they were deemed to have ‘unreasonably’ However, they will be able to apply for the homeless in Australia for a number of years, for their protection claims that will then be delayed in their Protection Visa application, right to work if they can show that they have a before being detained by immigration deten- considered an acceptable reason for delay.18 and therefore did not meet the ‘delay’ criteria.

52 Danielle Munro and Niamh Joyce, An asylum seeker’s access to Medicare and associated health services Court of Conscience Issue 13, 2019 53 A lack of understanding of the immigration tions, depend on doctors arranging for phar- vi Conclusion Danielle Munro and Niamh Joyce are processes, limited English, and a trauma-based maceutical companies to provide compas- Solicitors/Registered Migration Agents at the HIV/AIDS Legal Centre (“HALC”). response, including inaction, are common and sionate access to medication. This is not To a Protection Visa applicant, the importance of Both have previous experience in refugee not unexpected experiences of asylum seekers. guaranteed and there is always the risk that having access to Medicare and healthcare cannot law and a particular interest in assisting A closer look at Case Study 2: Duc it was it will end. be understated. Protection Visa applicants are a clients who have experienced trauma or are members of the LGBTQIA commu- only while on a Bridging Visa C, and after particularly vulnerable group in need of care and nity. HALC is a specialist community applying successfully for work rights, that v The health of asylum seekers and the assistance, and should not be excluded from legal centre funded to assist people in he became eligible for Medicare. Due to the long-term effects of not having involvement in society during the application NSW with HIV or Hepatitis-related legal and migration matters. HALC frequently fact that he was unlawful in Australia for an medical care process. The processing times for Protection represents asylum seekers in their appli- extended period of time and living in insecure Visas are at record lengths and during this time, cations for a Protection Visa, and is one housing, he had no valid identity documents. The effect of not having access to Medi- the applicant waits with uncertainty and added of the only community legal centres who fully represent asylum seekers, including Due to the nature of his visa application, his care during the long process of applying for stress. If an applicant is unable to engage with in appeals to the High Court. Migration Agent advised him not to contact protection can be long lasting. A person’s medical services during the application process his embassy to apply for a new passport. medical condition can be part of their claims then they will be in a worse physical and psycho- Disclaimer: This article is not construed as legal advice. The law Without the appropriate identity documents, for protection, yet they are required to survive logical condition than when they first made the and regulations referenced in this article are current at the time of writing. A person seeking advice on Bridging Visas should he was still unable to obtain a Medicare card. without Medicare while their application is application and may also be less likely to engage contact a Registered Migration Agent for advice specific to their This situation is made more complex considered. An applicant’s medical condition with the services after the grant of the visa. circumstances. The names used in this article are aliases. because the DHA no longer provide ‘Immi- is not even considered in an application in Cards’ (a form of identity document) to order to be eligible for Medicare. References 10 Ibid reg 2.01, sch 1 reg 1301 case reviewed through judicial review or Protection Visa applicants. Extensive medical and community service 11 Ibid. ministerial intervention. 1 Under the Migration Act 12 Ibid reg 1.08. Financial Hardship 21 Section 7 of the Health literature finds that people from refugee back- 1958 (Cth) which implemented Australia’s is not defined in the Migration Regulations. (Fees) Determination 2019 (No 1) (ACT) iv State and territory laws and policies grounds experience significantly higher rates commitment to the Convention Relating to Department of Home Affairs Policy states provides asylum seekers with full medical on asylum seekers accessing medical of poor health, including mental health.24 The the Status of Refugees, opened for signature that ‘a person can be taken to be in financial care including pathology, diagnostic, 28 July 1951, 189 UNTS 137 (entered into hardship if the cost of reasonable living pharmaceutical and outpatient services treatment without expense reasons for this include both poor access to force 22 April 1954) read together with the expenses exceeds their ability to pay for in ACT public hospitals free of charge. health services before coming to Australia, Protocol Relating to the Status of Refugees, them’ and applicants are required to include An asylum seeker is defined in the Health States and territories in Australia have begun to violence and other harms, and lack of access opened for signature 31 January 1967, 606 supporting information about the person’s (Fees) Determination 2018 (No 1) (ACT) UNTS 267 (entered into force 4 October financial circumstances: ‘PAMS – Regulations as a person who has an application for fill the gaps made by federal legislative require- to services once in Australia. 1967), the Convention against Torture – Sch2 Bridging Visas – Visa Application and protection which is being assessed by the ments for Medicare and have enacted legisla- The Australian Medical Association also and Other Cruel, Inhuman or Degrading Related Procedures – Compelling Need to Commonwealth Government or, if they tions to guarantee healthcare to asylum seekers highlights that asylum seekers are at high risk Treatment or Punishment, opened for Work’ (Policy Document). have been refused by the Commonwealth, signature 10 December 1984, 1465 UNTS 13 Ibid regs 2.01, 2.07. a person who is an applicant for judicial regardless of the individual’s Medicare status. of mental health issues, including psycholog- 85 (entered into force 26 June 1987), the 14 Ibid reg 1.08; Department of review in the courts. This does not Tasmania enacted legislation,20 and the Austra- ical disorders such as ‘post-traumatic stress International Covenant on Civil and Political Home Affairs, ‘PAM3: Act - Compliance extend to those awaiting a decision on an lia Capital Territory enacted subordinate legis- disorder, anxiety, [and] depression’.25 Rights, opened for signature 16 December and Case Resolution - Program Visas - application for ministerial intervention. 21 1966, 999 UNTS 171 (entered into force 23 Bridging E Visas – Grant of Further BVE 22 Queensland Health, ‘Refugee lation, to ensure that asylum seekers without Health concerns for Case Study 4: Chelsea March 1976), and the Convention on the Without Condition 8101’ (Policy Document) Health and Wellbeing: A Policy and Medicare can receive free medical treatment. developed significant mental health and drug and Rights of the Child, opened for signature 20 (‘Grant of Further BVE’). Action Plan for Queensland 2017–2020’ The Queensland Government has a policy alcohol use issues, as well as being diagnosed November 1989, 1577 UNTS 3 (entered into 15 Migration Regulations (Policy Document, April 2017) . seekers are not charged in Queensland ment with health and other support services, as Visas (subclass 785) or Safe Haven 16 Ibid sch 2 reg 050.212(8)(b)–(c). 23 NSW Health, ‘Medicare public health services.22 well as trauma responses has made her remain Enterprise Visa (subclass 790) which are 17 Department of Home Affairs Ineligible and Reciprocal Health available to ‘unauthorised maritime arrivals’ (n 14). Agreement: Classification and Charging’ Whereas, here in New South Wales, there hesitant to seek health care and support. (people who have arrived in Australia but 18 Ibid. (Policy Directive No PD2016_055, is no legislation, subordinate legislation or Having to wait several years for the grant have not passed immigration clearance). 19 Department of Home Affairs, 1 December 2016) 24. . without Medicare. Thus, an asylum seeker Medicare, the right to work or ability to access people who have applied for a Temporary Visas – BVE 050, Protection Visa Applicants 24 Australian Medical Association, without Medicare is required to pay for their medical services without large expense Protection Visa (subclass 785) or Safe and Condition 8101’ (Policy Document). ‘Health Care of Asylum Seekers and medical treatment unless they are covered means that an individual is at a high risk of Haven Enterprise Visa (subclass 790): 20 In Tasmania, the Health (Fees) Refugees — 2011. Revised 2015’ (Position Department of Home Affairs, Onshore Regulations 2017 (Tas) s 9(2) states that a Statement, 23 Dec 2015) ; Peta Masters et al, ‘Health 2018 (Report, 30 June 2018) . Medicare-ineligible asylum seeker to a Australian Hospital’ (2018) 47(5) Australian on the assistance of charities. For asylum that newly granted Permanent Protection Visa 4 Ibid. person who has applied for a Protection Journal of General Practice, 305; Kevin 5 Health Insurance Act 1973 Visa and whose application has not Pottie, ‘Prevalence of Selected Preventable seekers with a chronic illness requiring daily holders, when they finally do have access (Cth) s 10. been withdrawn or finally determined and Treatable Diseases among Government- medication, not having access to the Phar- to Medicare, are likely in significantly worse 6 Ibid ss 3(1), 10. in accordance with the Migration Act Assisted Refugees: Implications for Primary maceutical Benefits Scheme is costly and a health, and may require more health services 7 Ibid s 3(1). 1958 (Cth) and who is not permitted to Care Providers’ (2007) 53(11) Canadian 8 Migration Regulations 1994 (Cth) engage in work in Australia or entitled Family Physician 1928. barrier to efficient treatment. Without funds than what they may have needed at the onset regs 2.05(1)-(2) (‘Migration Regulations’). to Medicare. This does not include 25 Australian Medical or the right to work, applicants in these situa- of their visa application. 9 Ibid regs 2.01, 2.07. applicants who are seeking to have their Association (n 24).

54 Danielle Munro and Niamh Joyce, An asylum seeker’s access to Medicare and associated health services Court of Conscience Issue 13, 2019 55 Community, Increasing to support refugees and asylum seekers belonging and the irregular migration

Violet Roumeliotis

The movement and migration of people is growing number of people around the world SSI’s Community Kitchen one of the most pressing issues of our time. being displaced from their countries of origin.2 (Settlement Services International) It has gone to the top of the political agenda The Universal Declaration of Human globally at the United Nations, regionally in Rights recognises the right all people have places like the European Union and domesti- to seek asylum from persecution.3 While cally in countries including Australia. grounded in this declaration, the Refugee Political and public policy debates are Convention4 takes this concept further by concentrated mainly on the people who stipulating that refugees should not be penal- move irregularly across borders. ‘Migrant ised for their irregular entry or stay provided caravans’ attempting to enter the United they are ‘coming directly from a territory States, those crossing the Mediterranean where their life or freedom was threatened’5 to Europe and the arrival of people by boat and ‘show good cause for their irregular entry to Australia are all recent examples of irreg- or presence.’6 ular migration that have generated heated Australia is a signatory to the Refugee debates. Governments and their leaders Convention, but makes a distinction between have choices in how they respond to and people who seek asylum by plane and those develop public policy for irregular migration. who do so by boat. Both major political Civil society organisations also have choices parties in Australia are in general agreement in how they respond to policy and how they on the key measures to discourage ‘unau- deliver services to irregular migrants. thorised boat arrivals’, including mandatory Since 2001, both major parties in Austra- detention, offshore processing and the intro- lia have introduced deterrence measures in duction of temporary, rather than permanent response to several waves of irregular migra- visas — even for those people who have tion by people seeking asylum in Australia been found to be legally entitled to Austra- by boat.1 A look at the international context lia’s protection.7 In her analysis, Phillips shows more western countries resorting to also highlights the sheer volume of recent a deterrence framework in response to the changes to government policy concerning

Court of Conscience Issue 13, 2019 57 people seeking asylum, which showcases for ways they could contribute. They offered the complexity and ever-changing nature of skills like singing or haircutting. They began working in this space.8 to rebuild their sense of worth and purpose. Around 30,000 people came to Australia Through interactions with volunteers and by boat between August 2012 and January community groups, we also saw people 2014.9 As a result of government policy during improving their ‘language and cultural knowl- this period, this cohort has faced a number of edge’ — another important building block different rules and has no pathway to perma- towards fully participating in economic, nent protection in Australia.10 social and cultural life.14 My organisation, Settlement Services We also began to hear stories of women International (‘SSI’), is a community organisa- and children who had few reasons or oppor- tion that has, for almost seven years, provided tunities to get out into the community and support to the people who sought asylum connect with other people, which was having under various Australian government programs a detrimental impact on their physical and in this area. As a values-driven organisation, emotional wellbeing. we have a social compact with the community, Therefore, in 2014, we launched Play- not just our funders. This means we have had time — a weekly playgroup where mothers to find a way to put our values of social justice, seeking asylum could connect with other compassion and respect into practice without families. The playgroup offered parents new conflicting with our contractual arrangements ways to connect with their children and feel a — and to do this in a way that actually comple- part of a community, which was particularly ments and adds value to these services. beneficial for families with limited family or Unlike refugees who are settled in Austra- social support. Health and social services lia as part of our humanitarian intake, people outreached to Playtime so over time, we saw who arrive as irregular migrants by boat are the wellbeing of women and their young chil- rarely considered when we talk of ‘integra- dren improve as their social bonds grew. tion’. While these irregular migrants do not But there was only so much we could do have a pathway to permanent residency, the by reinvesting in these value-adding initiatives. key markers of integration — employment, There were broader issues that required a Saman Khaladj started his own housing, education and health11 — are just as response from outside our sector, and we iden- business, supported by the SSI Ignite important for these individuals and families tified the need for greater systems of advocacy. Small Business Start-ups initiative (Settlement Services International) while they are living on our shores. Building At that time, people seeking asylum were social connections is a critical step on the not entitled to transport concessions.15 This pathway to achieving these outcomes. meant that in order to travel to appointments Up until December 2014, people who or new areas of the community, they had arrived by boat did not have the right to to allocate a portion of their limited income work in Australia.12 Financial barriers also towards a full travel fare. restricted their capacity to study, so SSI’s Mobility is instrumental for people to challenge was to create an environment in participate more fully in society. In 2015, which people could get out into the commu- then-NSW Premier Mike Baird recognised nity and have the opportunity to build social this need and championed a travel conces- bridges, bonds and links.13 sion initiative for people seeking asylum. In In 2012, we launched Community Kitchen unveiling the initiative, he said: ‘[b]eing unable — a fortnightly event where all SSI clients to travel creates social isolation which leads were invited to join community groups and to deteriorating mental and physical health.’16 volunteers for a free lunch. Since then, we’ve The travel concessions allowed people served more than 19,000 meals. Commu- seeking asylum to use more of their limited nity Kitchen is so much more than a lunch. financial support to cover basic living It is a welcoming, safe space where people expenses. It was a critical step that enabled in vulnerable situations can connect with people to participate more fully in the members of the wider community, along with community, which in turn helped them feel individuals and families who are in similar more at home in Australia. circumstances to their own. In 2017, the NSW government once again Over time, people who had originally stepped up with an important initiative to come to the kitchen as guests began to look support the ability of people seeking asylum

Court of Conscience Issue 13, 2019 59 to participate in education. They extended people new to our country establish a sense fee-free TAFE places to this cohort.17 Prior to of belonging, which is essential for their Scrutinising this, people seeking asylum were considered wellbeing. Regardless of their visa status, international students, which meant they newcomers deserve to feel connected to were effectively barred from studying due to their community, to feel included and to feel government high costs. like they belong for however long they call This cohort of people seeking asylum Australia home. still live in a precarious position with no practices certainty of remaining in Australia in the long- Violet Roumeliotis is a social term. Through activities like those outlined entrepreneur with an extensive not-for-profit career characterised by above, my hope is that we have helped these collaboration, growth, adaption and newcomers participate more meaningfully in innovation. In her time as Settlement the economic, social and cultural aspects of Services International CEO, she has identified service gaps for people from our communities. migrant and refugee backgrounds As a country, we have control over how and invested in tailored initiatives that we welcome and include people. We can help capitalise on their unique strengths.

References the Status of Refugees, opened for 13 Ager and Strang (n 11) 181. signature 31 January 1967, 606 UNTS 14 Ibid 182. 1 Janet Phillips, ‘A 267 (entered into force 4 October 1967) 15 Gabrielle Chan, ‘NSW Gives Comparison of Coalition and Labor (‘Refugee Convention’). Asylum Seekers Travel Concessions Government Asylum Policies in 5 Ibid art 31(1). ‘to Help the Vulnerable’’, The Guardian Australia Since 2001’ (Research 6 Ibid. (online, 26 June 2015) . Hansen and Nikolas F Tan, ‘The End International Refugee Law (Web 16 NSW Department of Premier of the Deterrence Paradigm? Future Page, April 2019) 1 . your-government/the-premier/media- 3 Universal Declaration of 10 Ibid. releases-from-the-premier/transport- Human Rights, GA Res 217A (III), UN 11 Alastair Ager and Alison concessions-for-asylum-seekers/>. GAOR, UN Doc A/810 (10 December Strang, ‘Understanding Integration: 17 NSW Government, ‘Fee-Free 1948) art 14. A Conceptual Framework’ (2008) 21(2) Training for Asylum Seekers and 4 Convention Relating to Journal of Refugee Studies 166, 173. Refugees’ Smart and Skilled (Blog the Status of Refugees, opened for 12 Holly Woodcroft, Lucy Post, 23 November 2016) .

60 Violet Roumeliotis, Community, belonging and the irregular migration Data quality and Scrutinising government practices the law of refugee protection in Australia

Regina Jefferies

Australia’s policies towards asylum seekers reported that only 10 people had arrived at Qantas Airbus A330-303 (VH-QPF) who arrive in the country by air and seek an international airport and claimed asylum at Perth International Airport protection at or before ‘immigration clear- in the first three months of the financial year (mailer_diablo/Wikimedia Commons) ance’1 at airports have been largely over- in 2017 through 2018.6 shadowed by debates over offshore deten- However, a recent decision by the DHA tion, processing, and interdiction policies. under the Freedom of Information Act 1982 Immigration clearance is a physical zone, (Cth) (‘FOI Act’) indicates that statistics previ- in these cases, at an airport, that every ously provided to Parliament by the DIBP, passenger must pass through before being now part of the DHA, are likely deficient. On allowed to enter Australia. Yet, even when 6 February 2019, the DHA issued a decision asylum seekers who arrive by plane do under the FOI refusing access to the ‘number receive Parliamentary or media attention, it of individuals who have made protection relates generally to the backlog of individu- claims before, or at, immigration clearance als who have successfully passed through at airports since 2008’,7 because the agency immigration clearance and subsequently asserted that it did ‘not hold existing docu- lodged an asylum application.2 A glance at ments as falling in the scope of the request’.8 data provided by the Department of Home After conducting an internal review, the DHA Affairs (‘DHA’) in Senate Estimates3 and other confirmed that: contexts4 seems to suggest that the lack of referrals for persons seeking to engage focus on travellers seeking protection at or Australia’s protection claims are in fact before immigration clearance at airports finds recorded in the relevant system under at least some support in the smaller number one of two separate codes. One of these of individuals applying for protection at codes is specific to Refugee Claims, the Australian airports, relative to maritime arriv- other is for Manual Referrals/Reason als.5 In October 2017, in response to a ques- Unknown. A very low number of referrals tion by Senator Kim Carr, the Department of have been recorded under the code for Immigration and Border Protection (‘DIBP’) Refugee Claims and as there is no distinct

Court of Conscience Issue 13, 2019 63 way of determining which of the Manual and, though Australia has formally removed ii Data quality Second, ABF officials must evaluate Referrals may have related to protec- the obligation of non-refoulement from whether an individual’s reason for visiting tion claims, the total number of persons consideration in the context of the removal of This section examines the DHA data collec- Australia aligns with the purpose of their visa raising protection claims at Australia’s ‘unlawful non-citizens’,17 Australian policy still tion processes, having regard to the data to determine whether the individual should be borders remains undetermined.9 recognises and seeks to implement the obli- quality dimension of completeness.27 Data ‘immigration cleared.’37 Where an individual gation for non-citizens seeking protection at completeness, or the ‘extent to which data seeks to enter Australia to apply for asylum, In other words, although the DHA records the airport.18 The framework includes, but is are of sufficient breadth, depth, and scope their visa may be cancelled. Thus, the reason referrals for persons seeking protection at not limited to, the creation of Protection Visas for the task at hand’, depends upon the for visa cancellation is highly relevant to a deter- Australian airports, poor data collection and complementary protection for individu- contextual dimensions of the task.28 In exam- mination as to whether the individual was prop- practices mean that the ‘total number of als to whom Australia owes protection obli- ining whether the DHA can be said to comply erly evaluated by the DHA for potential protec- persons raising protection claims at Austra- gations.19 The Australian approach to border with domestic and international legal obliga- tion claims, as well as whether the individual lia’s borders remains undetermined’.10 control constrains and significantly impacts tions towards asylum seekers, the context was given the opportunity to lodge an applica- This article explores the legal compli- the protection framework, manifesting in a includes legal obligations which must inform tion for such protection. However, according to ance consequences of poor data quality complex, multi-agency effort of deterring data collection. Where the data do not reflect the DHA, ‘[d]epartmental systems are unable to through an information systems lens. Data asylum seekers while insisting that those that context, data deficiencies may result.29 aggregate data by reason for cancellation deci- quality can be defined as ‘fitness for use’11 in need of protection pursue a process of According to the DHA: sion’.38 As a result, the DHA cannot accurately and encompasses a variety of character- refugee resettlement. The Australian Border The purpose of entry screening is to track whether it is complying with the obligation istics,12 including accuracy, completeness, Force (‘ABF’), formed in 2015 by combining determine whether a non-citizen should to provide an individual whose visa has been and currency.13 Data lacking any of these the DIBP and the Australian Customs and remain in Australia, pending an assess- cancelled at the airport with the opportunity to dimensions can have a significant impact Border Protection Service (‘ACBPS’), sits at ment against Australia’s protection obli- lodge a protection application. In other words, on data quality. This article explores the the centre of the deterrence framework as gations, on account of the reasons the the data collected does not appropriately reflect impact of the data quality dimension of the operational enforcement arm of the DHA. non-citizen has presented for why they the context of the task of compliance with the completeness in the context of the DHA’s The ABF approaches the border as a ‘strate- cannot return to their home country or DHA’s legal obligations. operations targeting asylum seekers who gic national asset, a complex continuum that country of usual residence.30 arrive at Australian airports from abroad. The encompasses the physical border, [] offshore iii Transparency and accountability piece begins by situating asylum seekers operations, and [] activities in Australian Data may also be incomplete where values within the border continuum and Protection maritime and air domains’.20 are missing because the values were not Quality data are critical to administrative Visa legal and policy framework. The work A substantial legal and informational included, though they should have been spec- policy formation, implementation, and legal then describes aspects of the DHA’s current framework sustains the border continuum, ified.31 In the entry screening process, ABF compliance. Poor data quality not only data collection process and examines how beginning with the requirement to obtain a officials record data at several key intervals ‘compromises decision-making’,39 it ‘may the current process fails to attain the data visa for travel to Australia.21 When an interna- — two of which are examined here. First, offi- be the single biggest hindrance to develop- quality characteristic of completeness.14 The tional traveller arrives at an Australian airport cials record an ‘inward movement and refer- ing sound strategy’.40 Since at least 2005, article concludes with an examination of the with a valid visa, they must pass through ral’32 for every traveller who claims protection the DHA, ABF, and predecessor agencies legal consequences of poor data quality, ‘immigration clearance’ before being allowed at an airport. Second, officials record whether have consistently failed to implement sound as well as a call for increased transparency to enter Australia.22 If the traveller seeks a visa has been cancelled in immigration record keeping and data quality practices.41 and accountability so that Parliament and protection at, or before passing through, clearance.33 Information obtained through FOI The department has repeatedly acknowl- the Australian public may accurately judge immigration clearance, they are referred to a and provided by the DHA in Senate Estimates edged these failures, stating in 2016 that: the DHA’s compliance with international and secondary immigration area for a review of reveals critical problems with both points of These issues aren’t new and have been domestic legal obligations. whether the purpose of their visa ‘aligns with collection regarding contextual dimensions of highlighted in various reviews over the [their] intention for entry to Australia’.23 Where the data and missing values. last decade resulting in: i Entry screening and the Department of the ABF official finds that the individual has First, in the Decision on Internal Review, • Poor decision making and advice to Home Affairs data collection practices come to Australia to seek asylum, rather than the DHA confirms that ‘referrals for [individuals] key stakeholders or for individuals; for the purpose of their visa (eg work, study), seeking to engage Australia’s protection claims • Failure to comply with legislative Australia has undertaken a number of inter- their visa may be cancelled and the immi- are in fact recorded in the relevant system under requirements due to poor information national legal obligations in relation to refu- gration clearance is refused.24 If the traveller one of two separate codes. One of these codes and records managements policies, gees and asylum seekers by becoming party has been refused immigration clearance, the is specific to Refugee Claims, the other is for systems and practices; [and] to the 1951 Refugee Convention and 1967 ABF official conducts a second interview to Manual Referrals/Reason Unknown.’34 Yet, • Failure to deliver on strategic objec- Protocol.15 Foremost among those obliga- determine whether the individual should be protection claims may be recorded as a referral tives and priorities (risk and crisis tions is the fundamental obligation of non-re- ‘screened-in’ and allowed to lodge a Tempo- under either code and ‘there is no distinct way management).42 foulement, or the requirement not to return rary Protection Visa application.25 There is no of determining which of the Manual Referrals an individual to a place where they might mechanism for judicial review of the screen- may have related to protection claims...’35 As These endemic problems have signifi- be persecuted or subjected to other serious ing decision, which means that an individ- the data are likely missing values and cannot cant consequences, not only for questions harm.16 The domestic framework intended to ual ‘screened-out’ faces rapid removal from be said to be complete, ‘the total number of related to legal compliance,43 but for assess- give effect to these obligations can be found Australia, without regard to the non-refoule- [individuals] raising protection claims at Austra- ing whether the DHA has actually provided primarily within the Migration Act of 1958 ment obligation.26 lia’s borders remains undetermined.’36 accurate and complete information to Parlia-

64 Regina Jefferies, Data quality and the law of refugee protection in Australia Court of Conscience Issue 13, 2019 65 ment and to the Australian public as part of Regina Jefferies is a Scientia PhD 23 Department of Home 34 Department of Home Affairs, New Guinea: Contract Management of the democratic process. Without a complete Scholar and Teaching Fellow at the Affairs, Protection Claims at the Border ‘Number of Protection Claims Before or Garrison Support and Welfare Services University of New South Wales, (Procedural Instruction, 21 November at Immigration Clearance’ (FOI Decision (Report No 32 2016–17, 17 January understanding of the number of individu- and an Affiliate of the Kaldor Centre 2018) 12 (‘Procedural Instruction’). on Internal Review, 27 May 2019) (copy 2017); Australian National Audit Office, als who have sought protection at Austra- for International Refugee Law. She 24 Ibid 13. on file with author) 3. The Australian Border Force’s Use of lian airports, or how many individuals have has worked as a Consultant for the 25 Individuals refused 35 Ibid. Statutory Powers (Report No 39 2016– Washington Regional Office of UNHCR immigration clearance at airports 36 Ibid. 17, 27 February 2017). ‘Despite two had their visas cancelled due to raising a and previously held the position of (‘unlawful air arrivals’) may only 37 Procedural Instruction high-profile, unlawful detention cases, protection claim – Australia cannot be said Visiting Assistant Professor at the request a Temporary Protection Visa (n 23) 12. which occurred in 2005, Immigration to comply with its international and domestic University of Minnesota Law School, (TPV) or Safe-Haven Enterprise Visa 38 Evidence to Senate, 22 May had not developed adequate control where she taught in the Detainee (SHEV): Department of Home Affairs, 2018 (n 33) in response to Question on mechanisms to reduce the risk of legal obligations. Failing this basic test not Rights Clinic and helped to lead a Procedural Instruction (n 23) 14; Notice No 54, Portfolio Question No future systemic failures of process.’: only imperils vulnerable individuals in need of team of lawyers in challenging the Migration Regulations 1994 (Cth) BE18/100. RAND Corporation, Assessment of international protection, it imperils the rela- Trump Travel Ban. sch 1 pt 4 item 1401(3)(d). 39 Redman, ‘The Impact of the Consolidation of the Australian 26 Migration Act 1958 (Cth) Poor Data Quality’ (n 13) 81. Customs and Border Protection tionship between agency accountability and s 197C. 40 Ibid. Service (ACBPS) with the Department Parliamentary oversight. 27 Redman, ‘The Impact of 41 Australian National of Immigration and Border Protection Poor Data Quality’ (n 14) 80. See also Audit Office, The Integration of the (DIBP) (Document No RR-1713-AUS, Redman, Data Quality (n 13). Department of Immigration and Border 2016) x. 28 Richard Y Wang and Diane Protection and the Australian Customs 42 Australian National Audit References gov.au/channels/Operation-Sovereign- 15 Convention Relating to the M Strong, ‘Beyond Accuracy: What and Border Protection Service (Report Office, Integration of DIBP and ACBPS Borders/releases/operation-sovereign- Status of Refugees, opened for signature Data Quality Means to Data Consumers’ No 45 of 2017–2018, 6 June 2018) (n 41). 1 Migration Act 1958 (Cth) borders-monthly-update-may-2019>. 28 July 1951, 189 UNTS 137 (entered (1996) 12(4) Journal of Management 29 (‘Integration of DIBP and ACBPS’) 43 The Australian National s 172. 6 The data was reported to into force 22 April 1954) (‘1951 Conven- Information Systems 5, 32. citing seven audit reports that have Audit Office notes that the agency has 2 ‘Onshore protection is be current as at 30 September 2017: tion’); Protocol Relating to the Status 29 ‘Data deficiencies are identified issues with record keeping, acknowledged these serious problems: people who have come to Australia Evidence to Senate, 23 October 2017 of Refugees, opened for signature 31 defined as ‘the inconsistencies between including: Australian National Audit The department is aware of the record on another substantive visa and then (n 3). January 1967, 606 UNTS 267 (entered the view of a real-world system that Office, Individual Management Services keeping issues. A November 2016 subsequently applied for protection 7 The full request sought: into force 4 October 1967) (‘1967 can be inferred from a representing Provided to People in Immigration submission to the Executive Committee in Australia’: Evidence to Senate (1) The number of individuals who have Protocol’). See also Convention Against information system and the view that Detention (Report No 21 2012–13, 11 entitled Records and Information Action Standing Committee on Legal and made protection claims before, or at, Torture and Other Cruel, Inhuman or can be obtained by directly observing February 2013); Australian National Plan 2016–20 stated: ‘Since 2006 at Constitutional Affairs, Parliament of immigration clearance at airports since Degrading Treatment or Punishment, the real-world system’: ibid 7, citing Audit Office, Management of the Cape least 17 reviews of various aspects of Australia, Canberra, 8 April 2019, 68 2008, broken down by fiscal year; opened for signature 10 December 1984, Yair Wand and Richard Y Wang, Class Patrol Boat Program (Report records and information management (Luke Mansfield). (2) The number of those individuals 1465 UNTS 85 (entered into force 26 ‘Anchoring Data Quality Dimensions in No 13 2014–15, 16 December 2014); (IM) have been completed, all of 3 Evidence to Senate Standing granted Protection Visas since 2008, June 1987) art 3 (‘CAT’); International Ontological Foundations’ (1996) 39(11) Australian National Audit Office, which identify significant scope for Committee on Legal and Constitutional broken down by fiscal year; and the Covenant on Civil and Political Rights, Communications of the ACM 86. Verifying Identity in the Citizenship improvement. An assessment of the Affairs, Parliament of Australia, individual’s country of origin and airport opened for signature 16 December 1966, 30 Department of Immigration Program (Report No 47 2014–15, 10 collective review recommendations Canberra, 23 October 2017 (‘Evidence where the claim was made: Department 999 UNTS 171 (entered into force 23 and Citizenship (n 18) 4. June 2015); Australian National Audit confirms a consistent theme throughout to Senate, 23 October 2017’). of Home Affairs, Number of Protection March 1976) art 7 (‘ICCPR’); Convention 31 Scannapieco, Missier and Office, Managing Compliance with Visa each; a lack of sustained follow 4 44 persons applied for a Claims Before or At Immigration on the Rights of the Child, opened for Batini (n 11) 8. Conditions (Report No 13 2015–16, 10 through, which in turn has left the Protection Visa after being refused Clearance (FOI Request, 28 November signature 20 November 1989, 1577 32 Department of Home Affairs, June 2015); Australian National Audit Department’s IM in a critically poor immigration clearance in 2013-2014, 2018) (copy on file with author). UNTS 3 (entered into force 2 September Procedural Instruction (n 23) 10. Office, Offshore Processing Centres state.’ Australian National Audit Office, 34 persons applied for a Protection 8 Department of Home Affairs, 1990) art 37 (‘CRC’); Convention on 33 Evidence to Senate Standing in Nauru and Papua New Guinea: Integration of DIBP and ACBPS (n 41) Visa after being refused immigration Number of Protection Claims Before the Right of Persons with Disabilities, Committee on Legal and Constitutional Procurement of Garrison Support and 29, citing Department of Immigration clearance in 2014-2015, and 40 or At Immigration Clearance (FOI opened for signature 30 March 2007, Affairs, Parliament of Australia, Welfare Services (Report No 16 2016– and Border Protection, Submission persons applied for a Protection Decision, 6 February 2019) (copy on 2515 UNTS 3 (entered into force 3 May Canberra, 22 May 2018, 167 (Christine 17, 13 September 2016); Australian to Executive Committee, Records Visa after being refused immigration file with author). 2008) art 15 (‘CRPD’). Dacey) (‘Evidence to Senate, 22 May National Audit Office, Offshore and Information Action Plan 2016–20 clearance in 2015-2016: Department 9 Department of Home Affairs, 16 1951 Convention (n 15) art 33. 2018’); Procedural Instruction (n 25) 13. Processing Centres in Nauru and Papua (November 2016) (emphasis added). of Immigration and Border Protection, Number of Protection Claims Before or 17 Migration Act 1958 (Cth) s ‘Statistics for Unauthorised Air Arrivals’ At Immigration Clearance (FOI Decision 197C. Despite this legislative provision, (FOI Response, 2017) 1 (copy on file on Internal Review, 27 May 2019) (copy the Australian Government recognises with author). on file with author). its international legal obligation of 5 In 2018, the ABF provided 10 Ibid. non-refoulement: Department of Home a table of boat interceptions that 11 Monica Scannapieco, Paolo Affairs, ‘The Administration of the confirmed 37 ‘takebacks’ for Financial Missier and Carlo Batini, ‘Data Quality Immigration Program’ (Background Year 2016–2017 and 29 ‘takebacks’ for at a Glance’ (2005) 14(14) Datenbank- Paper, 2nd ed, April 2019) 10. Financial Year 2017–2018: Evidence Spektrum 6, 7, citing Richard Y Wang, 18 Department of Immigration to Senate Standing Committee on ‘A Product Perspective on Total Data and Citizenship, Entry Screening Legal and Constitutional Affairs, Quality Management’ (1998) 41(2) Guidelines (August 2013) 5. Parliament of Australia, Canberra, Communications of the ACM 58. 19 Migration Act 1958 (Cth) ss 21–24 May 2018, 4; ‘[T]he Australian 12 Ibid 6. 35(a) and 36(2)(aa). Government intercepted a maritime 13 Thomas C Redman, 20 Department of Immigration people smuggling venture from Sri ‘The Impact of Poor Data Quality on and Border Protection, Strategy 2020 Lanka with 20 Sri Lankan nationals the Typical Enterprise’ (1998) 41(2) (2015) 2. on-board. None of the potential Communications of the ACM 79, 80 21 Migration Act 1958 (Cth) illegal immigrants or crew aboard the (‘The Impact of Poor Data Quality’). s 4(2): ‘To advance its object, this vessel engaged Australia’s protection See also Thomas C Redman, Data Act provides for visas permitting obligations, and all 20 people were Quality: The Field Guide (Digital Press, non-citizens to enter or remain in successfully returned to Sri Lanka in 2001) (‘Data Quality’). Data are multi- Australia and the Parliament intends that close cooperation with the Sri Lankan dimensional, and the four dimensions this Act be the only source of the right of Government’: Australian Border Force, mentioned here are not exclusive: Scan- non-citizens to so enter or remain.’ ‘Operation Sovereign Borders Monthly napieco, Missier and Batini (n 11) 6. 22 Department of Home Affairs, Update: May 2019’ (Media Release, 14 Redman, ‘The Impact of Annual Report 2017–18 (Report, 2018) 12 June 2019)

66 Regina Jefferies, Data quality and the law of refugee protection in Australia Court of Conscience Issue 13, 2019 67 The amended Scrutinising government practices secrecy provisions of the Australian Border Force Act An improvement in protection for refugee whistle-blowers or just another policy blunder?

Sophie Whittaker

In recent times, the Australian government’s the necessary improvements brought about Still image from Simon Kurian’s refugee policy has been the subject of harsh by the 2017 amendments, the current legis- documentary, ‘Stop the Boats’. public and academic scrutiny.1 Offshore lation leaves much to be desired. Therefore, Manus Island (Simon Kurian) processing, mandatory detention and the concerns remain in relation to those wishing separation of refugee families, has led to to speak out about the abject failure that is harrowing consequences for those seeking Australia’s callous refugee policies. refuge on Australian shores. Australia’s refugees have found themselves trapped in i The evolution of the Australian a web of abhorrent and punitive measures, Border Force Act but the lived experience of these refugees has been largely hidden from public view.2 Part 6 of the ABFA commenced on 1 July This is somewhat due to refugee whis- 2015,5 and outlines the relevant secrecy tle-blowers being subject to the secrecy and disclosure provisions. Section 42 of the provisions of the Australian Border Force original Act made it an offence, punishable Act 2015 (Cth) (‘ABFA’) since 2015,3 impos- by 2 years’ imprisonment, for an ‘entrusted ing stringent conditions on the recording and person’6 to ‘[make] a record of, or [disclose], disclosure of specified information. In 2017, [protected] information’, where ‘protected this legislation was amended in an attempt information’ was any information obtained to improve the accountability and transpar- by a person in their capacity as an entrusted ency of our government,4 and re-evaluate person.7 This provision was highly controver- the ruthless provisions applicable to whis- sial,8 and scholars and the community alike tle-blowers. This essay will consider whether expressed concerns relating to its breadth the amended legislation has, in form and in and chilling effect on public interest disclo- substance, improved protection for refugee sures. Subject to limited exceptions,9 the whistle-blowers, by critically examining both law criminalised the unauthorised disclosure laws within a framework of constitutional of any information obtained by an officer or validity. Whilst this analysis demonstrates contractor of the Department of Immigration

Court of Conscience Issue 13, 2019 69 and Border Protection (‘DIBP’) in their course into force on 31 October 2017.17 However, the punishable by 2 years’ imprisonment, for an The government defended the validity of of duty. The law regulated the disclosure of changes relevant to this essay were enacted ‘entrusted person’ to disclose ‘protected infor- its secrecy offence, referring to the various information with the potential to harm essen- retrospectively and thus said to commence mation’, the legislation conceivably burdened exceptions in the Act.35 However, as Bevitt tial public interests such as national security, on 1 July 2015. the implied freedom of political communica- posits, these exceptions create an unclear, defence and public safety, as well as informa- tion and satisfied the first limb of the test.25 ineffective and patchwork protective frame- tion unlikely to have an adverse effect on such ii Framework for constitutional validity Exposing the practical effects of government work for potential whistle-blowers.36 They interests – which may have instead been in policies, that are arguably morally repugnant fail to ensure that information caught by the public interest to disclose. For example, In various decisions the High Court has or in breach of international obligations, is a the secrecy offence that is not reasonably information about the abhorrent treatment acknowledged that a freedom of political form of political expression.26 Restricting such likely to harm an essential public interest, of refugees by Australian government agen- communication can be implied from the conduct, as s 42 did, effectively burdened the can be disclosed without fear of reprisal. cies and the living conditions experienced Constitution.18 This freedom is not abso- freedom, where: For example, s 42(2)(c) of the ABFA permits in Australia’s mandatory detention centres. lute, but rather acts to fetter the legislative Representative government requires disclosure where it is required or authorised Such concerns culminated in the filing of a power of the Commonwealth.19 The Consti- there to be a free flow of information to by law. This exception indirectly incorporates constitutional challenge to section 42 of the tution necessarily protects the freedom of enable the community to be informed and relies on the application of the Public ABFA by Doctors for Refugees in 2016, on communication between people concerning about the performance of their repre- Interest Disclosure Act (‘PIDA’),37 otherwise the basis that the law unduly restricted the government or political matters, to the extent sentatives and to communicate … about known as Australia’s whistle-blower legisla- implied freedom of political communication.10 necessary to uphold the accountability and governmental matters so as to make an tion.38 However, this exception also estab- In response to this challenge, the Secretary of transparency of Australia’s representative informed choice at elections. 27 lishes a lacuna in the law, whereby some the DIBP made a determination,11 to exclude democracy. Where a law is not compatible forms of conduct will be considered offensive health practitioners from the application of with the implied freedom, it will generally be The second limb would also likely have under s 42 of the ABFA yet fall outside the the secrecy provisions.12 Doctors for Refu- invalid. The test to determine whether a provi- been satisfied. In the absence of an objects scope of protection under the PIDA,39 render- gees remained concerned that the blanket sion impermissibly burdens the freedom has provision, it appears that the ‘legitimate ing it ineffective to overcome the ABFA provi- provisions applied too broadly to non-health been set out by the High Court in a number end’ served by the secrecy provisions, was sions.40 Section 48 further permits disclosure professionals, including teachers, charity of cases,20 and was most recently amended either the protection of national security, or where it is necessary to prevent or lessen a personnel and social workers,13 and sought in the case of Brown v Tasmania.21 A law will the maintenance of the efficient operation serious threat to the life or health of an indi- to continue their proceedings. On 9 August be incompatible with the implied freedom of of Australia’s border protection activities.28 vidual. On its face, this exclusion appears 2017, the Australian Government introduced political communication and hence be invalid These purposes are not directed, nor do they applicable to potential refugee whistle-blow- a Bill,14 which sought to amend the secrecy where it effectively burdens the freedom in operate, to adversely impinge upon repre- ers speaking out about the problematic provisions, particularly by introducing a new its terms, operation or effect; and where its sentative government, and thus are compati- conditions in Australia’s offshore detention category of information called ‘Immigration purpose is illegitimate, in the sense that it ble with the implied freedom.29 centres; however, this exception imposes a and Border Protection Information’ (‘IBP is incompatible with the maintenance of the Turning to proportionality, it is this third high threshold test and places the onus on Information’),15 defined as information the constitutionally prescribed system of repre- limb of the test that would have inevitably whistle-blowers to prove that the requisite disclosure of which would or could reason- sentative and responsible government; and/ threatened the validity of the original s 42 degree of seriousness has been met.41 ably be expected to:16 or where the law is not reasonably appro- offence. The use of secrecy provisions in the Using proportionality as a tool of analy- • prejudice the security, defence or priate and adapted to advance that object sensitive context of border force operations is sis,42 it is evident that the original s 42 offence international relations of Australia; in a manner that is compatible with the and was warranted at the time; however, the was disproportionate, and unjustifiably • prejudice the prevention, detection maintenance of the prescribed system of disputable proportionality of these provisions infringed on the implied freedom of political or investigation of, or the conduct of government.22 This third limb involves a test raised red flags.30 The broad scope of the defi- communication. The scope of the offence proceedings relating to, an offence of proportionality to determine whether the nition of ‘protected information’ coupled with was far too broad, and the exceptions too or a contravention of a civil penalty restriction which the provision imposes on the the expansive class of persons falling within narrow to mitigate the onerous restrictions provision; freedom is justified.23 This involves an inquiry the definition of an ‘entrusted person’, eluci- placed upon DIBP workers. • prejudice the protection of public into whether the law is suitable, necessary dates the operational overreach of the legis- health, or endanger the life or and adequate in its balance.24 Both the orig- lation. In Bennett v President, Human Rights iv A critical examination of the safety of an individual or group of inal s 42 offence and the amended provi- Equal Opportunity Commission,31 a blanket amended section 42 individuals; sion, as detailed above, will now be critically secrecy provision similar to the original s • found an action by a person (other examined within this framework. 42 offence,32 was held to be constitutionally In assessing the amended offence provision than the Commonwealth) for breach invalid by the Federal Court. Finn J was of the within the constitutional validity framework, it of a duty of confidence; iii A critical examination of the opinion that a catch-all provision, that did not is evident that the legislation still encroaches • cause competitive detriment to a original section 42 differentiate between the types of information upon the implied freedom of political person; or protected or the consequences of disclosure, communication, however, it does so to a far • information of a kind prescribed in an In assessing the original s 42 offence against was disproportionate to the purpose it aimed lesser extent than the original offence. The instrument under subsection (7). the constitutional validity framework, it is to achieve. 33 This line of reasoning, along- legislation strikes a more desirable balance evident that the legislation unjustifiably side the reasoning of the High Court in recent between the gravitas of the purpose served The amending legislation, incorporating this encroached upon the implied freedom of polit- times,34 suggests that an unqualified prohibi- by the legislation and the extent of its impo- definition and other changes, formally came ical communication. By making it an offence, tion will not be compatible with the freedom. sition on the implied freedom of political

70 Sophie Whittaker, The amended secrecy provisions of the Australian Border Force Act Court of Conscience Issue 13, 2019 71 communication.43 Adopting the same anal- with the principles of government openness ysis as above for the amended secrecy and accountability.52 Thus, the ALRC recom- offence, it is similarly likely to satisfy the first mended that such laws and penalties only be and second limbs of the test for compatibil- implemented in instances where disclosure ity. Again, it is the proportionality limb that could harm an essential public interest,53 for sparks the greatest debate. example where the disclosure of information The amended s 42 is suitable, as it is ratio- does, or is reasonably likely to: nally connected to its purpose.44 The Second a. Damage the security, defence Reading Speech sets out the purpose of the or international relations of the amended provisions as being to prevent the Commonwealth; unauthorised disclosure of information that b. Prejudice the prevention, detection, could harm the national or public interest.45 investigation, prosecution or punish- The amended text of the legislation is directly ment of criminal offences; in pursuit of this purpose, as the definition of c. Endanger the life or physical safety ‘IBP Information’ confines offending conduct of any person; or to that which could potentially harm the d. Prejudice the protection of public public interest. safety.54 A burdening measure will only be neces- sary if there is no other reasonably practica- Paragraphs (a)–(c) in the definition of ‘IBP Infor- ble means of achieving the same objective mation’ broadly correlate to these interests. while having a less restrictive effect on the Paragraph (a) whilst similar, is arguably harsher freedom.46 In the instance of the amended than necessary in its operation. In the highly legislation (and its predecessor), it is argu- controversial and volatile context of offshore able that s 70 of the Crimes Act 1914 (Cth) processing, one can envisage certain disclo- renders the s 42 offence unnecessary as it sures in the public interest which could well prohibits: prejudice the international relations of Australia [A] Commonwealth officer, [to] [publish] or within the international community — particu- [communicate] … any fact or document larly those with countries critical of our refugee which comes to his or her knowledge, or policies.55 Absent a definition, damage to inter- Still image from Simon Kurian’s into his or her passion, by virtue of being national relations, also contemplates intangible documentary, ‘Stop the Boats’. a Commonwealth officer, and which it is or speculative damage, such as the loss of trust Manus Island (Simon Kurian) his or her duty not to disclose.47 or confidence in the Australian government or damage to Australia’s reputation. The lower Section 70 has been held to be constitution- threshold of ‘could reasonably be expected to’ ally valid,48 and its jurisdiction overlaps with in this context also goes against the recom- that of s 42. Whether it does in fact achieve mendations of the ALRC,56 as it potentially the same object is however debatable, as it criminalises the unauthorised disclosure of is less targeted in its operation than the information where there is only a reasonable ABFA provisions.49 possibility, not a reasonable likelihood of preju- Whether the law is also adequate in its dice or damage.57 Paragraphs (d) and (e) mani- balance, requires an in-depth critique of the festly exceed the ALRC’s robust framework. amended provisions.50 There is no doubt that The broad application of paragraphs (d) and (e) the definition of ‘IBP Information’ narrows the lack sufficient justification to impose criminal scope of the offence, tailoring it to the record- sanctions. For example, it is unclear how the ing and/or disclosure of information which effect of disclosure on the competitive position could harm the public interest. However, diffi- of a private entity relates to essential public culties with the amended provisions remain. interest concerns. While it is legitimate to Firstly, the new definition of ‘IBP Informa- protect against competitive detriment flowing tion’ is framed in a manner inconsistent with from the disclosure of confidential information, other Commonwealth secrecy provisions. In this is typically achieved via the application of its report, Secrecy Laws and Open Govern- civil law and contractual obligations relating to ment in Australia,51 the ALRC recognised confidentiality.58 For border protection workers that secrecy laws exposing government to be held to a more onerous standard than that employees to criminal liability, like those which applies to other government workers, contained in the amended Act, sit uneasily suggests disproportionality of the law.

Court of Conscience Issue 13, 2019 73 Of further relevance are the deeming v Concluding remarks com/border-force-act-entrenches- 2015 (Cth) para D, as amended considered the validity of restrictions provisions in s 42(1A) of the ABFA, which secrecy-around-australias-asylum- by Determination of Immigration on disclosures by public servants. seeker-regime-44136>; Ellen Moore, and Border Protection Workers – The relevant regulation prohibited make it an offence to disclose certain infor- This essay evinces how the recent amendment Musood Darwish and Alison Pert, Amendment No. 1 2016 (Cth). the disclosure of information where it mation if the person was reckless as to to the secrecy provisions of the ABFA, has Submission No 109 to Australian Law 13 Bianca Hall, ‘A Huge Win was reasonably foreseeable that the whether (among other things) the informa- resulted in an improvement to the protection Reform Commission, Freedoms Inquiry for Doctors: Turnbull Government disclosure could be prejudicial to the (September 2015). Backs Down on Gag Laws for Doctors effective working of government. tion had a security classification. The law offered to refugee whistle-blowers. The law, 9 First ABFA Compilation (n on Nauru and Manus’, The Sydney The Court found that upholding the fails to provide an avenue to challenge the whilst refined in its scope, operation and prac- 7) ss 42–9. Subsection 42(2) provides Morning Herald (online, 20 October effective working of government was a appropriateness of a security classification tical effect, is an example of legislative draft- that the offence does not apply if: “(a) 2016) . 32 For example, the case person’s employment or service as an 14 Australian Border Force discussed reg 7(13) of the Public that the information was not subject to such political communications, the amended offence entrusted person; or (c) the making Amendment (Protected Information) Bill Service Regulation 1999 (Cth). a classification.59 Section 4(7) of the ABFA, too, remains uncertain and in some respects of the record or disclosure is required 2017 (Cth). 33 Bennett v HREOC (n 32) 359: also confers the Minister with discretion to overly broad failing to rule out the possibility of or authorised by or under a law of the 15 The new category of ‘The dimensions of the control [the law] Commonwealth, a State or a Territory; ‘Immigration and Border Protection imposes impedes quite unreasonably prescribe new categories of information as a constitutional challenge. The amended legis- or (d) the making of the record or information’ was to replace the the possible flow of information to falling within the scope of the offence. This lation has ameliorated some of the concerns its disclosure is required by an order repealed definition of ‘protected the community — information which, could effectively be used to prevent the predecessor invoked in relation to information or direction of a court or tribunal.” A information’ in the original ABFA (n 3). without possibly prejudicing the defendant bears an evidential burden 16 Australian Border Force interests of the Commonwealth, could lawful disclosure of information, particularly of public interest reaching the public sphere but in relation to a matter listed above, Amendment (Protected Information) Bill only serve to enlarge the public’s in the highly controversial context of refugee remains a deterrent for those wishing to speak in accordance with s 13.3(3) of the 2017 (Cth) sch 1 cl 1. knowledge and understanding of the policy. The concerns raised above in relation out about the abject failure that is Australia’s Schedule to the Criminal Code Act 17 ABFA 2017 Amendment (n 4). operation, practices and policies of the 1995 (Cth). Sections 43, 44, 45, 47, 18 Australian Constitution executive government’. to the exceptions to the original s 42, also draconian refugee policies. 48 and 49 set out circumstances in ss 7, 24. See, eg, Australian Capital 34 Coleman v Power (n 20) 54 remain relevant. which use and disclosure of protected Television Pty Ltd v Commonwealth (McHugh J). There is no doubt that the amended legis- Sophie Whittaker is a final year information is permitted, in particular (1992) 177 CLR 106; Nationwide News 35 ‘Secrecy Provisions of the where: the recording or disclosure Pty Ltd v Wills (1992) 177 CLR 1; Australian Border Force Act’ (Media lation is more likely to satisfy the proportional- Bachelor of Laws (Honours) student at the University of Wollongong. After is for the purposes of the Australian Theophanous v Herald & Weekly Times Release, Department of Immigration ity test, and thus be found to be constitutionally completing a semester abroad at the Border Force Act 2015 (Cth) or the Law Ltd (1994) 182 CLR 104. and Border Protection and Australian valid. Where potential refugee whistle-blow- University of Copenhagen, Denmark Enforcement Integrity Commissioner Act 19 Lange v Australian Border Force, 7 July 2015). and taking International Migration Law 2006 (Cth) (s 43); the person has written Broadcasting Corporation (1997) 189 36 Bevitt (n 8) 264. ers were once ‘gagged’ by the operation of authorisation from the Secretary of the CLR 520, 560 (‘Lange v ABC’). 37 Public Interest Disclosure 60 as a subject, she developed a keen the s 42 offence, the amended legislation interest in the comparable refugee Department to disclose information, or 20 Ibid 567; Coleman v Power Act 2013 (Cth) (‘PIDA’): the PIDA has ameliorated many of the concerns held policies of Western countries that are a class of information, to certain bodies (2004) 220 CLR 1, 51 (‘Coleman v exempts, from civil or criminal and persons in Australia, including Power’); McCloy v New South Wales sanction, those who make disclosures by the individuals and groups at the coalface often unfavourable to those who are most vulnerable in our global society. government agencies and police, for (2015) 257 CLR 178, 193–5 [2] (‘McCloy about disclosable conduct such as of Australia’s refugee policies. Despite no one This was the impetus to produce two certain purposes (s 44); the person v NSW’). maladministration or corruption. actually having been charged with an offence major works in the area of refugee law. has written authorisation from the 21 (2017) 261 CLR 328, 363–4 38 Ibid ss 10, 26, 29, 31, 69. Secretary of the Department to disclose [104], 375–6 [156], 416 [277], 478 [481] 39 For example, the PIDA only under either iteration of the s 42 offence, the Despite this, Sophie’s primary research and career interest is in the area of information, or a class of information, to (Keifel CJ, Bell and Keane JJ) (‘Brown v covers disclosures made by ‘public breadth and ambiguity of the legislation, still criminal law. a foreign country, agency or authority of Tasmania’). officials’ — public servants and their creates uncertainty, and the aforementioned a foreign country, or public international 22 Ibid 363–4 [104] (Kiefel contracted services providers, but organisation, that has entered into an CJ, Bell J and Keane J), 375–6 [156] does not include consultants and loose ends of the legislation validates residual agreement with the Commonwealth or (Gageler J), 416 [277] (Nettle J). their employees: see PIDA (n 38) ss concerns as to its constitutional validity. one of its agencies, for certain purposes 23 McCloy v New South Wales 30, 69. In contrast, the definition of (s 45); the disclosure is in accordance (n 20) 213 [68] (French CJ, Kiefel, Bell ‘immigration and protection worker’ with consent given by the person or and Keane JJ), 232 [131] (Gageler J). under the ABFA covers these body to whom the information relates 24 Ibid 194–5 (French CJ, categories of persons: see s 4. The References 3 Australian Border Force Act of Immigration and Border Protection, (s 47); an entrusted person reasonably Kiefel, Bell and Keane JJ). See also PIDA also generally requires an initial 2015 (Cth) (‘ABFA’) pt 6. and who are designated in writing by believes it is necessary to prevent or Brown v Tasmania (n 21) 416–9. disclosure to be made internally to a 1 See, eg, ‘Australia: Appalling 4 Australian Border Force the Secretary of the Department or the lessen a serious threat to the life or 25 Moore, Darwish and Pert superior within a government agency: Abuse, Neglect of Refugees on Nauru’, Amendment (Protected Information) Act Australian Border Force Commissioner: health of an individual (s 48); or the (n 8) 8. see PIDA (n 38) ss 26, 31. External Amnesty International (Web Page, 20 2017 (Cth) (‘ABFA 2017 Amendment’). at s 4(1) (definition of ‘entrusted information has already been lawfully 26 Levy v State of Victoria disclosure can only be made after August 2016) ; Waleed Committee, Parliament of Australia, of ‘protected information’), 42(1), as for Refugees’, Fitzroy Legal Centre 28 Commonwealth, response was inadequate, and the Aly, ‘Australia’s Poisonous Refugee Australian Border Force Amendment repealed by Australian Border Force (Web Page, 27 July 2016) ; Sarah Whyte and Uma 1204–5 (Peter Dutton, Minister for is a substantial or imminent danger to com/2016/10/27/opinion/australias-poi- 6 An ‘entrusted person’ was Compilation’). Patel, ‘Doctors to Launch High Court Immigration and Border Protection); the health and safety of the individual. sonous-refugee-policy.html>. (and still is) defined in section 4(1) 8 See, eg, Nicole Bevitt, Challenge against Detention Secrecy Commonwealth, Parliamentary This is a high threshold for a person to 2 Thomas Albrecht, ‘Australia’s of the ABFA (n 3) to include various ‘The Australian Border Force Act 2015 Laws’, ABC News (online, 27 July 2016) Debates, House of Representatives, overcome in making a public interest Refugee Policy is a Failure. This is officials in the Australian Border Force, (Cth) Secrecy Provisions: Borderline . 29 See R v Goreng-Goreng Force Act’ (2015) 14 Law Society of com/commentisfree/2017/oct/02/ inter alia, people who are engaged around Australia’s Asylum Seeker 11 ABFA (n 3) s 4(f)(iii). (2008) 2 ACTLR 238, 247 (‘Goreng- New South Wales Journal 78, 79; our-refugee-policy-is-a-failure-this-is- as consultants or contractors to Regime’ The Conversation (online, 12 Determination of Immigration Goreng’). In that case, the Supreme Stephanie Szkilnik, ‘Secrecy and not-the-time-to-shirk-responsibility>. perform services for the Department 2 July 2015)

74 Sophie Whittaker, The amended secrecy provisions of the Australian Border Force Act Court of Conscience Issue 13, 2019 75 Scrutinising government practices Force Act 2015 (Cth) Protecting Our 46 Unions NSW (n 45) 596, [44] Legislation Committee, Parliament Borders from Free Speech’ (2016) 21(1) (French CJ, Hayne, Crennan, Kiefel and of Australia, Australian Border Force Deterring asylum Media and Arts Law Review 64, 72; Bell JJ). Amendment (Protected Information) Councils for Civil Liberties, Submission 47 Crimes Act 1914 (Cth) Bill 2017 (Cth) (28 August 2017) 3. No 142 to the Australian Law Reform s 70(1).This section prohibits a Damage to international relations, Commission, Freedoms Inquiry (18 Commonwealth officer from publishing also contemplates intangible or seeking in Australia October 2015) 21. or communicating, except to some speculative damage, such as the loss 41 Moore, Darwish and Pert person to whom he or she is authorised of trust or confidence in the Australia’s (n 8) 5. The exception for recording to publish or communicate, any fact or government or damage to Australia’s or disclosing information related to document which comes to his or her reputation. the affairs of a person or body if that knowledge, or into his or her passion, 56 Australian Law Reform Bribing Indonesian smugglers person has consented to disclosure by virtue of being a Commonwealth Commission (n 52) 9 rec 5–1. (ABFA (n 3) s 47), may also be officer, and which it is his or her duty 57 Attorney-General’s to return asylum seekers to particularly relevant for refugee whistle- not to disclose, commits an offence. Department v Cockcroft (1986) 10 FCR blowers. Where this could provide an The penalty for this offence is 2 years’ 180, 190. alternate avenue for disclosure, the imprisonment. 58 UNSW Kaldor Centre for Indonesia information to be disclosed must be 48 Goreng-Goreng (n 29) 247. International Refugee Law, Submission limited to that individual’s personal 49 Note that the general No 12 to the Senate Legal and information. Therefore, information guidance for the drafting of secrecy Constitutional Affairs Legislation about the widespread health issues and provisions as per the ALRC’s Committee, Australian Border Force poor conditions in detention centres recommendations, in their report Amendment (Protected Information) Bill cannot be disclosed under these Secrecy Laws and Open Government 2017 (Cth) (1 September 2017) 3–4. exceptions, despite being of significant in Australia, explained below also 59 See ABFA s 4(5), 42(1A). public and political interest. presents an obvious and compelling The deeming of information with a 42 Tajjour v New South Wales alternative to the standard adopted in security classification as requiring (2014) 254 CLR 508, 550. the amended ABFA Act. protection, without any consideration 43 McCloy v NSW (n 20) 193–5 50 Brown v Tasmania (n 21) of the content of the information, [2]; Susan Kiefel, ‘Proportionality: A 464–5 [430]. whether it has been correctly classified Rule of Reason’ (2012) 23 Public Law 51 Australian Law Reform or whether it is, in fact, information Dr Antje Missbach and Review 85, 90–1. Commission, Secrecy Laws and Open the disclosure of which would, or is Assoc Prof Wayne Palmer 44 Unions NSW v New South Government in Australia (Report No reasonably likely to, harm essential Wales (2013) 252 CLR 530, 556–60 112, 2010). public interests remains a ‘blanket [44]-[60] (‘Unions NSW’). 52 Ibid 44 [2.12]. provision’: see Australian Human Rights 45 Commonwealth, 53 Ibid 13 rec 9–3. For example Commission, Submission No 13 to Parliamentary Debates, House of where the disclosure of information the Senate Legal and Constitutional Representatives, 9 August 2017, 7821–3 does, or is reasonably likely to: damage Affairs Legislation Committee, (Peter Dutton, Minister for Immigration the security, defence or international Australian Border Force Amendment and Border Protection); Explanatory relations of the Commonwealth; (Protected Information) Bill 2017 (Cth) i Overview activities.2 They view irregular border cross- Memorandum, Australian Border Force prejudice the prevention, detection, (1 September 2017) 24–6. Amendment (Protected Information) Bill investigation, prosecution or 60 Paul Karp and Ben Doherty, ings narrowly as transnational organised 2017 (Cth) 4. Both make clear that the punishment of criminal offences; ‘Australia Should Urgently Improve Since 2001, successive Australian govern- crimes, neglecting the fact that such cross- Bill seeks to protect certain information endanger the life or physical safety of Whistleblower Protection, UN Expert ments have increasingly used unilateral and ings enable foreigners’ claims to a basic from unauthorised disclosure that would any person; or prejudice the protection Says’, The Guardian (online, 18 October 3 harm the national or public interest, of public safety. 2016) . 1 government. Legal and Constitutional Affairs right to apply for asylum. Amongst many other behalf the government bankrolls expensive measures, the Australian government uses anti-asylum measures to reduce the number mandatory detention and offshore process- of ‘illegal maritime arrivals’.4 Measures to ing in third countries, such as Nauru and deter entry ignore legal status like ‘refugee’ Papua New Guinea, to deter asylum seekers or ‘person at risk of harm in their country of from attempting to enter the country by sea citizenship’, as they are solely concerned without a valid visa. Turning back asylum with whether a person holds a valid visa or seeker boats in the Indian Ocean is deemed not. Some critics argue that the expenses to be another effective means to discour- of offshore detention and other related age future claimants. This and other border border protection measures are not value for protection measures extend well beyond money.5 Furthermore, international non-gov- Australia’s internationally recognised borders, ernment organisations, such as Amnesty reaching into neighbouring transit countries, International, and various United Nations such as Indonesia and Malaysia, and even bodies have continually criticised Australia further away, to countries of origin for asylum for abusing the human rights of asylum seek- seekers, including Sri Lanka and Vietnam. ers.6 On occasion, too, neighbouring coun- Australian government policies tend tries have also spoken out against Australia’s to frame the purpose of preventing asylum unilateralism as negatively impacting their seekers from reaching Australia by sea as region. As early as January 2014, Indonesia’s disrupting and deterring people smuggling Minister for Foreign Affairs, Marty Natale-

76 Sophie Whittaker, The amended secrecy provisions of the Australian Border Force Act Court of Conscience Issue 13, 2019 77 gawa, had again labelled Australia’s policies nesian government, Australia has continued ‘not a solution’ to the movement of asylum to turn back boats regardless.14 seekers through the region, in response to On 5 May 2015, 20 months after the reports that the Australian government had Australian government recommenced the turned back boats carrying asylum seekers ‘turnback’ of asylum seeker vessels, an within Indonesia’s territorial waters.7 asylum seeker boat named the Andika set To complement the raft of scholarly and sail from Indonesia’s Pelabuhan Ratu on policy studies that assume the state is always Java’s coast.15 The 65 asylum seekers and an inhibitor of people smuggling, this article six Indonesian transporters were destined for also examines the rarely discussed role of the distant New Zealand. Normally, the final states as smugglers themselves. Gener- destination was one of Australia’s remote ally, people-smuggling is defined as a crime islands, such as Christmas Island. This time, against the state, because the primary victim however, the asylum seeker boat intended to is deemed to be the state whose immigration risk the longer journey, as Christmas Island laws are violated. But this narrow understand- had been excised from Australia’s migration ing ignores the possibility that states can and zone and applications for asylum were thus do facilitate crimes against other states. Here, no longer an option there.16 we discuss one such case in which the Austra- After almost two weeks at sea, on 17 May lian government paid six Indonesian smug- 2015, two Australian Border Force vessels glers to return to Indonesia with 65 asylum intercepted the Andika in international waters seekers.8 In the discussion and analysis that near Timor-Leste.17 At first, the Andika’s boat follow, we also draw attention to how the turn- crew objected to being stopped in interna- back may have violated international as well tional waters so far from Australia. They as domestic laws in Australia and in the neigh- explained that the Andika was an Indone- bouring country of Indonesia. We conclude sia-flagged vessel, over which the Australian that Australia’s turnback in this instance is not government had no authority. According to a deterrence model to be adopted by other international law, the Indonesian government, sought-after destination countries for asylum as the flag state, should have had exclusive seekers in the Global North. jurisdiction.18 Regardless, the Australian Sri Lankan asylum seekers on their Border Force boarded the Andika to warn way to New Zealand by boat were ii Return to sender the crew and asylum seekers that they could intercepted by Indonesian Marine Police. Waters off Tanjungpinang, not enter Australian territory without a valid Riau Islands province, Indonesia, In September 2013, the Australian government visa or complete set of documents. For the 11 July 2011 (Syaifullah/AAP Image) established Operation Sovereign Borders to next five days, the Australian Border Force disrupt and deter people smuggling by inter- shadowed the Andika as it continued on its cept asylum seeker boats at sea.9 The joint planned sea journey to another desirable agency taskforce is military-led, and has destination for the asylum seekers.19 reportedly pushed or towed back at least 36 On 22 May 2015, another Australian boats to Indonesia, Vietnam and Sri Lanka.10 authority, the HMAS Wollongong, stopped In the forced returns to Indonesia, the Austra- the Andika.20 Given that the Australian lian Navy claimed to have only escorted boats government has not released the coordi- back to the edges of Indonesia’s territorial nates, it remains unclear as to whether the waters — 12 nautical miles from the coast boat was in Indonesian waters as the Andi- and from an area over which states exercise ka’s crew claimed.21 The Indonesian captain sovereignty, as recognised at international was ordered to return to Indonesia, which law.11 Indonesian authorities often claim to he refused to do, but after long discussions, have no prior knowledge of the returns, and he agreed to reroute the Andika to Australia. that the Australian government only notifies The next day, the Andika anchored at Austra- them days after the forced returns — if at lia’s Green Hill Island near Darwin, where all.12 Amongst other negative consequences, Australian officials then boarded to interview this lack of coordination risks the safety of and photograph the asylum seekers. The the asylum seekers or crew, especially those processing did not result in the much-ex- who in need of urgent medical attention when pected assessment of asylum claims.22 the Australian authorities first intercept their It was here on Greenhill Island that the boat.13 Despite strong protests from the Indo- Australian officials allegedly paid the crew so

Court of Conscience Issue 13, 2019 79 that they would more readily return to Indo- lian officials directed and otherwise arranged of officials, such as officers of the Australian countries in the Indo-Pacific region might nesia.23 The asylum seekers claimed that the the crime by providing material assistance, Secret Intelligence Service, who were report- follow suit and adopt the Australian prac- captain accepted a ‘thick white envelope’, including two boats, fuel, maps, and a GPS.31 edly involved, enjoy immunity from liability tice to some extent, which would result in and that the other crew were ‘very happy’ They had directed the boat captain and crew under Australian law.38 Likewise, there seems even weaker protections for maritime asylum –– so much so that they began ‘joking with to land at identified points in Rote Island, to be little appetite in Indonesia to reopen the seekers and refugees in the region. For the Australian officers, whereas beforehand rather than an official entry spot where Indo- case, as the Indonesian government does example, during the Andaman Sea Crisis in they had seemed frightened and nervous’.24 nesian authorities could have registered the not deem it a priority and its officials are busy May 2015, Malaysia, Thailand and Indonesia According to the captain and his crew, the arrivals, as required by Indonesian law.32 Effec- with other policy problems. all carried out pushbacks against Rohingya Australian authorities had initially promised tively, the Australian government bankrolled asylum seekers fleeing until interna- to facilitate a return to the edges of Indone- the crime against Indonesia, even paying iv State, illegality and a new generation tional criticism became too strong.44 sian waters near Java, but the destination the captain and crew to commit it. Although of bordering practices In conclusion, the unilateral policies was changed to Rote Island in East Nusa Australia was certainly complicit, the Indone- pursued by the Australian government under Tenggara, the remote east of the Indonesian sian court ignored the inconvenient fact that Putting aside the Andika case and taking its Operation Sovereign Borders have threat- archipelago.25 The boat crew were disap- another state could commit the transnational a wider look at the advancement of global ened to undermine the fragile regional collab- pointed, but they were in a weak position to organised crime of people smuggling.33 bordering practices by states, it becomes oration between states and the already weak resist the change in plan, largely because the At international law, the Australian offi- apparent that bordering practices to deter protection spaces for asylum seekers. Pursu- Australian Border Force had taken control of cials may have also breached the UN Protocol asylum seekers are becoming more diver- ing its own interests at a neighbour’s expense their vessel, and they had already accepted against the Smuggling of Migrants by Land, sified and are not always legal. There is a will not only weaken Australia’s diplomatic payment to return to Indonesia. 26 Sea and Air (‘Smuggling Protocol’),34 which growing body of literature that focuses on relations, but also severely undermine inter- Early the next morning on 31 May, the requires ratifying states, such as Australia and different kinds of interceptions, concentrat- national trust in Australia’s adherence to Australian Border Force divided the boat Indonesia, to adequately punish smugglers ing in particular on uni-, bi- and multilateral the rule of law. In this regard, Australia can crew and asylum seekers more or less equally for endangering the safety of their migrant initiatives to combat people smuggling and be deemed to be playing with fire by setting between two new boats — the Jasmine and and refugee passengers. In turning back block access to asylum.39 Interceptions are dangerous precedents that might then be the Kanak.27 Ten Australian vessels then Andika’s asylum seekers, Australian authori- often used to prevent unauthorised arriv- copied by other states beyond the region. escorted the boats to the edge of Indonesian ties clearly put lives at risk, as the crew and als of vessels and their passengers, but waters, not far from Rote Island. The Austra- passengers ended up abandoning one of the are only permissible in certain situations as Antje Missbach is a Senior Lecturer lian Border Force left the boats there, but Australia-provided boats and overcrowded outlined in international law.40 When called to at the School of Social Sciences at Monash University, Australia and a before reaching the destination the Jasmine the other because of insufficient fuel. The account, governments in destination coun- Senior Research Fellow at the Arnold ran out of fuel, so everyone overcrowded the turnback might have fallen through the cracks tries, such as Australia, are known to ‘quar- Bergstraesser Institute in Freiburg, Kanak for the final stretch. A few hours later, of national law in Indonesia, and it is unlikely antine domestic law and policy from [their] Germany. Her research interests include the socio-legal dimensions of that boat struck a reef off the southeast coast that the Australian legal system will ever adju- international legal obligations’, for example, forced migration in Southeast Asia, of Rote Island, and asylum seekers who dicate the issue. Regardless, the UN Smug- by attempting to prevent the use of interna- border regimes, asylum policies and could swim abandoned the shipwreck by gling Protocol contains a safeguard clause tional law when assessing the legality of their refugee protection in the Asia-Pacific, 28 41 as well as diaspora politics and long- making their own way to the closest beach. which clearly stipulates that states ought to interception activities. They also selectively distance nationalism. She is the author The others, including women and children, ‘ensure the safety and humane treatment of choose articles under international law to of Troubled Transit: Asylum Seekers relied on locals, who had not been alerted by the persons on board’.35 justify their interception activities while ignor- Stuck in Indonesia (ISEAS, 2015) and 42 Politics and Conflict in Indonesia: any government authorities, for rescue from Over four years later, it seems unlikely that ing obligations in others. The Role of the Acehnese Diaspora the stricken vessel. either government will conduct further investi- Although the number of boats reaching (Routledge, 2011). Once onshore, the crew, who feared being gations with the view to punish the Australian Australia has substantially decreased since Wayne Palmer is an Associate arrested for people smuggling fled, leaving officials. In Australia, there is a lack of polit- the start of Operation Sovereign Borders, the Professor in the Department of behind the confused, frightened and angry ical will to investigate the events fully, as the direct and indirect costs of interceptions and International Relations at Bina asylum seekers, who gathered in the local government continues to shield its anti-peo- returns of asylum seeker boats remain high Nusantara University, Indonesia. His research projects focus on village head’s house. Four hours later, the ple smuggling activities from any public –– not only in financial terms, but in human policy processes in Indonesia, with police arrested the crew, and seven months scrutiny. The Australian Senate published an costs and even political terms.43 Unilateral a particular focus on anti-people later the Rote Ndao District Court convicted Interim Report in 2016, but has since aban- action might bring quick results in prevent- smuggling law and policy and institutional capacity to enforcement them for attempting to smuggle asylum doned the inquiry with the following technical ing people smuggling, but cannot guarantee migrant rights. He is the author of seekers from Indonesia to New Zealand.29 justification: ‘[a]t the dissolution of the Senate long-term success. In addition to the unsus- Indonesia’s Overseas Migration and the House of Representatives on 9 May tainability of these methods in the long-term, Programme (Brill, 2016), which provides the first detailed, critical iii Breaches of international and 2016 for a general election on 2 July 2016, the they might result in unwanted impacts. For analysis of the way in which the domestic law parliamentary committees of the 44th Parlia- example, the nature of the Australia-Indonesia programme is managed and how it fits ment ceased to exist’.36 Therefore, inquiries relationship in seeking to combat and prevent with other developments within the Indonesian government. At the trial of the captain and his crew, the that were not completed have lapsed and people smuggling marks this risk very clearly, judges ignored the supporting roles played by submissions cannot be received.37 as unannounced and unapproved turnbacks Australian agencies in the smuggling of asylum Even if future Australian governments could jeopardise Canberra’s diplomatic rela- seekers from Australia to Indonesia.30 Austra- decide to punish the crime, certain categories tions with Jakarta. More drastically, other

80 Dr Antje Missbach and Assoc Prof Wayne Palmer, Deterring asylum seeking in Australia Court of Conscience Issue 13, 2019 81 References Cash or Other Inducements by the dants Marthen Karaeng, Medi Ampow, Commonwealth of Australia in Exchange Yapi Aponno, Indra Reza Rumambi, Tension between 1 Migration Act 1958 (Cth) for the Turn Back of Asylum Seeker Stevan Ivan Janny Worotitjan (Rote and the Migration Regulations 1994 Boats (Interim Report, May 2016). Ndao District Court) 14 January 2016 (Cth). For a comprehensive overview, 9 Department of Home 30 Legal Decision No 37/Pid. see Jane McAdam and Fiona Chong, Affairs (n 3). See also Australian Sus/2015/PN.Rno with defendant the government and Refugees: Why Seeking Asylum Is Border Force, ‘Fact Sheet: Operational Yohanis Humiang (Rote Ndao District Legal and Australia’s Policies Are Not Update 30 September 2013’ (Web Court) 14 January 2016; Legal Decision (UNSW Press, 2014). Page, 30 September 2013) . Stevan Ivan Janny Worotitjan (Rote gov.au>. See also Susan Kneebone, 10 ‘Statistics’, Asylum Insight Ndao District Court) 14 January 2016 ‘Australia as a Powerbroker on Refugee (Web Page, 27 August 2019) . 32 Ibid 32. 33(1) Refuge: Canada’s Journal on 11 United Nations Convention 33 Legal Decision No 37/Pid. Refugees 29. on the Law of the Sea, signed 10 Sus/2015/PN.Rno with defendant 3 Universal Declaration of December 1982, 1833 UNTS 397 Yohanis Humiang (Rote Ndao District Human Rights, GA Res 217A (III), UN (entered into force 16 November 1994) Court) 14 January 2016; Legal Decision GAOR, UN Doc A/810 (10 December (‘UNCLOS’). For an inquiry about No 38/Pid.Sus/2015/PN.Rno with 1948) art 14. Australian incursions into Indonesia’s defendants Marthen Karaeng, Medi 4 According to a report 12-mile zone and related breaches of Ampow, Yapi Aponno, Indra Reza by UNICEF and Save the Children, Indonesia’s sovereignty, see Australian Rumambi, Stevan Ivan Janny Worotitjan the Australian Government has Senate, Breaches of Indonesian (Rote Ndao District Court) 14 January spent almost $10 billion on offshore Territorial Waters (Report, 2014). 2016. processing, mandatory detention and 12 Kate Lamb and Oliver 34 Protocol Against the other border protection policies since Laughland: ‘Australian Navy Went Smuggling of Migrants by Land, 2013: UNICEF and Save the Children, into Indonesian Waters “Too Easily” Sea and Air, Supplementing the At What Cost? The Human, Economic and “Often’”, The Guardian (online, United Nations Convention Against and Strategic Cost of Australia’s Asylum 14 February 2014) . 2004) art 6 (‘Smuggling Protocol’). Statistics’, Refugee Council of Australia 13 See Amnesty International, 35 Ibid art 9(1)(a). (Web Page, 27 September 2019) By Hook or By Crook: Australia’s Abuse 36 Senate Standing (‘Offshore 14 Jewel Topsfield, ‘Indonesia 37 ‘Payment of Cash or Other Processing Statistics’). Protests Boat Push-Back Policy After Inducements by the Commonwealth 5 Refugee Council of Australia, Asylum Seekers Found Stranded’, The of Australia in Exchange for the 2018–19 Federal Budget: What It Sydney Morning Herald (online, 27 Turn Back of Asylum Seeker Boats’, Means for Refugees and People November 2015). Parliament of Australia (Web Page) Seeking Humanitarian Protection 15 Amnesty International (n8) 14. . Policies, Labels Counter-Terrorism 42, 1 March 2004). 38 Amnesty International Measures “Regressive” and Says 17 Amnesty International (n8) 15. (n 8) 33. Global Response to Terrorist Groups 18 UNCLOS (n 12). 39 David Scott FitzGerald: “Shameful”’, ABC News (online, 25 19 Amnesty International (n 8) 3. Refuge beyond Reach: How Rich February 2015) ; ‘Scathing UN 23 Ibid. The Interception of Vessels on the Report Slams Australia as Refugees 24 Ibid. High Seas, Contemporary Challenges on Manus Abandoned to Danger’, 25 Legal Decision No 37/Pid. to the Legal Order of the Oceans (Web Sus/2015/PN.Rno with defendant (Hart Publishing, 2013). Page, 10 November 2017) . No 38/Pid.Sus/2015/PN.Rno with defen- Operation Sovereign Borders and 7 ‘Indonesia Warns Anew on dants Marthen Karaeng, Medi Ampow, International Law’ (2014) 32 Australian Boat Turnbacks’, SBS News (online, 7 Yapi Aponno, Indra Reza Rumambi, Yearbook of International Law 33, 64 January 2014) . 26 Amnesty International (n 8) 4. Statistics’ (n 5); UNICEF and Save the 8 See Amnesty International, 27 Ibid 20. Children (n 4). By Hook or By Crook: Australia’s Abuse 28 Ibid 21. 44 ‘Turning Back Boats’, of Asylum-Seekers at Sea (Report, 28 29 Legal Decision No 37/Pid. Kaldor Centre for International Refugee October 2015) 14. See also Senate Sus/2015/PN.Rno with defendant Law (Web Page, 26 February 2015) Standing Committees on Legal and Yohanis Humiang (Rote Ndao District . Australia, Inquiry into the Payment of No 38/Pid.Sus/2015/PN.Rno with defen-

82 Dr Antje Missbach and Assoc Prof Wayne Palmer, Deterring asylum seeking in Australia Strategic litigation, courts the and government the between Tension offshore detention and the Medevac Bill

Anna Talbot and Adj Prof George Newhouse

2018 saw a flood of litigation in the Federal i Legal background: onshore duty of Surgical theatre of Lorengau Court of Australia, on behalf of children care and Plaintiff M68/2015 Hospital on Manus Island. and adults living in offshore detention who Manus Island, 29 October 2017 (Amnesty International/AAP Image) required urgent medical care. Starting with a The duty of care in onshore immigration single case brought by the National Justice detention is well established in Australian Project (NJP) in February 2017,1 by the end of law. While the High Court has repeatedly 2018 over 50 injunctions had been filed in the found that indefinite immigration detention is Federal Court by lawyers across Australia, all permitted,4 the Commonwealth continues to founded in tort law and the Minister for Home be bound by its duty of care to detainees.5 Affairs’ duty of care.2 In February 2016, however, in the case of Lawyers sought and uniformly obtained Plaintiff M68/2015 v Minister for Immigration urgent interlocutory mandatory injunctions and Border Protection, a majority of the High to force the Minister to bring the applicants Court found that Nauru was detaining people to places where they could get the urgent offshore, not Australia.6 This finding raised medical care that they needed. This litigation questions as to whether Australia owed the has led to the evacuation of hundreds of indi- same duty of care to those it had sent offshore. viduals from Nauru and Papua New Guinea In light of this decision, a strategic approach (PNG) to Australia over the last 12 months was essential in taking the next step to ensur- for their own or their family members’ urgent ing accountability for offshore processing. medical treatment.3 Ultimately, this strate- gic approach to developing the duty of care ii Plaintiff S99/2016 was the foundation of the successful Kids Off Nauru campaign and historical legislative This wave of tort-based litigation was based change: the Medevac Bill. This article traces on the ground-breaking work done by the NJP the experience of two lawyers from the NJP in the case of Plaintiff S99/2016 v Minister for as the crisis unfolded and reflects on its Immigration and Border Protection (‘Plaintiff ongoing legacy. S99/2016’).7 In that case, a young refugee on

Court of Conscience Issue 13, 2019 85 Nauru (S99) had been raped while she was in March 2018,15 and then DJA18 as litigation by Russell Kennedy, Bromberg J found that Around this time, children and teenag- having what appeared to be an epileptic fit. It representative for DIZ18 v Minister for Home the very environment on Nauru stifled chil- ers started attempting suicide and self-harm was not possible to diagnose the fits on Nauru, Affairs (‘DJA18’) in June 2018.16 dren’s development, as children are not ‘able to at alarming rates. Children started dousing as they did not have the necessary equipment, AYX18 was a 10-year-old boy at the time undertake the anticipated tasks of adolescence themselves in petrol and trying to set them- but S99 had been suffering from them since the application was filed. He had been sepa- associated with preparing for independence selves alight.35 Others took whatever pills her teenage years. As a result of that rape, she rated from his father, who had been flown and adulthood’, thereby stifling the applicant’s they could find, or cut themselves repeated- became pregnant and required a termination. to Australia for medical treatment. The boy development, despite him being ‘identified as ly.36 Psychosis started to emerge in children Due to her complex health needs, doctors required an operation, which his mother bright’.21 Further, he found that ‘the applicant’s and teenagers.37 There were no facilities on recommended that she be brought to Australia would not consent to him undergoing in continued residence on Nauru is a causative Nauru that could manage these conditions, urgently to undergo the procedure. Nauru, due to the history of deaths following and contributing factor in his mental illness and yet the Minister continued to resist trans- Instead, the Minister took her to PNG. operations in the only hospital there. Doctors substantial risk of self-harm’.22 fers.38 It appeared to be only a matter of time Having taken steps to facilitate the neces- on Nauru recommended that the boy be Médecins Sans Frontières (‘MSF’) before this crisis level of mental illness in sary medical treatment (the termination) for brought to Australia for the operation. provided independent mental health treat- children would be lethal. S99, Bromberg J found that the Minister had Soon after that recommendation was ment on Nauru between November 2017 NJP quickly developed effective ways to a duty to ensure that medical treatment was rejected, the boy attempted suicide twice, and October 2018. Its report — titled ‘Indef- work with people offshore and close relation- provided safely and legally. His Honour went by taking tablets and attempting to stran- inite Despair’23 — details some key factors ships within the sector. Suddenly lawyers’ on to find that she could not receive a safe gle himself with a curtain. He also had to in the decline in mental health MSF doctors phones were full of photos of critically ill and or legal termination in PNG, where abortions have a knife forcibly taken from him. Perram witnessed while they were on Nauru: the injured children and their medical records, remained illegal and a couple had recently J granted the injunction sought so the boy long and indefinite nature of the detention;24 sent to us by their parents as evidence, gath- been prosecuted for procuring one.8 He could get the care he so urgently needed.17 widespread experiences of violence and/ ered to prove that our clients needed urgent granted the requested injunction preventing DJA18, brought by Maurice Blackburn or harassment in Nauru (including sexual care. The Asylum Seeker Resource Centre the Minister from procuring the termination Lawyers, was the case of a two-year-old violence), often exacerbating feelings of triaged the cases and helped NJP gather there. This was the first case that found a child with suspected herpes encephalitis, helplessness and historical trauma;25 rejec- evidence. The Human Rights Law Centre duty of care was owed to refugees or asylum ‘a serious and life-threatening neurological tion letters for resettlement in the USA came on board to help train other lawyers in seekers who had been taken to Nauru or condition’.18 Instead of following the medical started being received in May;26 and the how to run these cases. PNG by the Australian government. recommendation that the child be flown tragic death of a well-respected young man The situation continued to deteriorate. from Nauru to Australia for treatment, the in June 2018.27 Five cases were filed in August when there iii The first suite of 2018 cases Minister chose to take her and her mother to Resignation Syndrome (also known as were still over 100 children on Nauru.39 Nine PNG, where the Minister argued she could Pervasive Refusal Syndrome or Traumatic were filed in September,40 then 17 in Octo- Because the legal strategy was novel, the get adequate treatment. Her father was not Refusal Syndrome) started emerging at about ber.41 The strategy was working. NJP moved slowly to build on the precedent permitted to travel with them, even though this time, the condition underlying two of The court cases were just the tip of the set in Plaintiff S99/2016. It commenced a he was the only family member with English the four cases NJP filed in July 2018.28 This iceberg: for every case filed, the NJP acted number of cases, largely focusing on chil- language skills. Instead, he was left in Nauru. Syndrome, previously only seen in foreign for triple that number to secure urgent dren suffering from severe psychiatric or Medical evidence was clear that any delay countries, saw children stop eating, drinking, medical transfer (although in many of these other health problems. FRX17 was the first, in treatment could lead to severe, life-long talking and getting out of bed. As the Syndrome cases, we were only days, hours and some- brought in December 2017.9 complications. Murphy J granted orders that progresses, sufferers experience wasting and times minutes away from filing). All of these FRX17 was a case of a young girl, ‘not required the transfer of the child, her mother give up on showering and toileting themselves. people, or a member of their family, had been yet a teenager’,10 who attempted suicide on and her father to Australia within 48 hours.19 All of these symptoms were seen in children on at imminent risk of permanent harm or death 9 December 2017 by taking an overdose of Nauru. It can quickly become life-threatening if they did not get the treatment the doctors medication, and continued to experience iv Emerging mental health crisis or cause permanent disability.29 said they urgently needed. Many were hospi- suicidal ideation.11 Eleven days later, the NJP In DWE18, an adolescent was diagnosed talised for weeks or months when they finally filed in the Federal Court, seeking an inter- In June and July, children and adolescents with Resignation Syndrome.30 Her food and arrived in Australia. locutory injunction which would force the on Nauru started exhibiting increasingly fluid intake was so low she required hospi- At the same time that these injunctions Minister to provide her with urgent psychi- dangerous symptoms of mental illness. In talisation for rehydration in Nauru.31 Expert were being fought and won, the sector was atric care. Murphy J considered that the July 2018, NJP alone filed four separate medical evidence indicated that she needed looking for a better way. The cases were balance of convenience, in view of evidence cases in the Federal Court seeking urgent urgent inpatient treatment for Major Depres- attracting significant media attention, the showing a child of extreme suicide risk, medical care for severely ill children and sive Disorder and Resignation Syndrome, and Australian Medical Association and doctors strongly supported the granting of the injunc- teenagers. Two additional applications were was at risk of developing kidney failure, perma- were raising their voices and it was becom- tion.12 His Honour was not persuaded by the made by other firms that month. A crisis was nent cardiac and/or neurological damage if ing clear that the Minister’s resistance Minister’s argument that the injunction would quickly unfolding. she did not receive treatment.32 Nauru Hospi- was not sustainable. The ‘Kids Off Nauru’ ‘potentially impinge upon the conduct of We have no insight into why the cases tal did not have the necessary facilities, such campaign gathered momentum under the foreign affairs’, given it did not lead evidence escalated so rapidly. The judgments and as EEG or child and adolescent psychiatric leadership of the Asylum Seeker Resource to this end.13 Requests for an expedited research, however, give some indication. experts and facilities, to monitor and treat Centre, Refugee Council of Australia and trial were not granted,14 given the imminent In BAF18 as litigation representative for her.33 Robertson J made orders that the girl World Vision Australia. The final children left suicide risk. FRX17 was followed by AYX18 BAG18 v Minister for Home Affairs,20 brought be transferred to Australia for treatment.34 Nauru in February this year.42

86 Anna Talbot and Adj Prof George Newhouse, Strategic litigation, offshore detention and the Medevac Bill Court of Conscience Issue 13, 2019 87 v Medevac Bill vi Ongoing challenges

As the pressure built to take action, indepen- Within days of the Medevac Bill passing both dent Dr Kerryn Phelps was elected to Parlia- Houses of Parliament, the Nauruan Govern- ment. The fallout from the change in leader- ment introduced regulations banning tele- ship also saw Julia Banks leave the Liberal medicine.50 This had the effect of making the Party to sit as an independent. Suddenly the Medevac process more difficult to use in Nauru; Government was in minority and there was meaning that it is generally only possible for a critical mass of support for legislation that doctors to review medical records to prepare would streamline the medical transfer process. their reports, rather than interview patients via The Kids Off Nauru campaign and the telephone or video conference. The issue was Medevac Bill negotiation saw doctors, considered by the Court recently, in the case lawyers, caseworkers and others in the of CCA19 v Secretary, Department of Home sector collaborating in previously unseen Affairs,51 with the Secretary arguing that only ways. While the lawyers continued to fight the assessments by telephone or video confer- Minister in court, doctors and other organ- ence would be adequate to meet the require- isations worked with MPs and the media to ments of the amended Act.52 Bromberg J explain the nature of the health crisis, the disagreed, finding that a review on the papers urgency of the situation and to correct circu- was sufficient.53 lating misinformation. The Medevac Bill was The health crisis continues. Despite all of passed into law in February 2019, against the the evidence of its need and the massive waste wishes of the Government of the day.43 of resources forced by the Minister’s intran- This legislation brings access to essential sigence prior to its passage,54 the Minister medical care into a medical, rather than legal, continues to promise to repeal the Medevac framework. Under the amendment, if two treat- Bill.55 At the time of writing, the Minister had ing doctors believe that the applicant should presented a Bill for this purpose to Parlia- be transferred from an offshore processing ment.56 This would reintroduce politics into country to Australia for medical or psychiatric life-or-death decisions currently being made assessment or treatment, the Minister must by doctors under Medevac. Regardless of the Medical area treatment at the facilitate transfer except in specific circum- fate of this Bill, however, there is now an army detention centre on Manus Island. stances.44 The Minister can only refuse transfer of lawyers around Australia with the expertise Manus Island, 21 March 2014 45 (Eoin Blackwell/AAP Image) if he believes that transfer is not necessary, to challenge the Minister when he withholds the individual could be prejudicial to security life-saving care. The Minister’s intransigence under the Australian Secret Intelligence Organ- has trained us all well. isation Act 1979 (Cth) (‘ASIO Act’),46 or the Minister knows that the person has a substan- Anna Talbot is the Legal Practice tial criminal record as defined in the Act.47 If the Manager and Senior Solicitor of the National Justice Project. Minister rejects the application for the former reason, the application is assessed by an inde- George Newhouse is an Adjunct pendent panel of doctors.48 If the panel recom- Professor of Law at Macquarie University and Director of the National mends a transfer, the Minister can refuse it if Justice Project. they believe that transfer could be prejudicial to security under the ASIO Act.49

References (‘AYX18’); DCQ18 v Minister for 176 CLR 1, 27–8 (Brennan, Deane and Home Affairs [2018] FCA 918; DRB18 Dawson JJ); Al-Kateb v Godwin (2004) 1 AKM17 v Minister for v Minister for Home Affairs [2018] 219 CLR 562, 581 [31] (McHugh J). Immigration and Border Protection (filed FCA 1163. 5 See, eg, Behrooz v 1 February 2017) FCA NSD124/2017. 3 The NJP alone was Secretary, Department of Immigration This case was discontinued. The first responsible for approximately 150 and Multicultural and Indigenous judgment for one of these matters transfers from Nauru and Papua Affairs (2004) 219 CLR 486; Secretary, can be found in FRX17 as litigation New Guinea to Australia. We ran Department of Immigration and representative for FRM17 v Minister approximately a quarter of the Multicultural and Indigenous Affairs for Immigration and Border Protection cases filed. v Mastipour (2004) 207 ALR 83; S v (2018) 262 FCR 1 (‘FRX17’). 4 See, eg, Chu Kheng Lim Secretary, Department of Immigration 2 See, eg, AYX18 v Minister v Minister for Immigration, Local and Multicultural and Indigenous Affairs for Home Affairs [2018] FCA 283 Government and Ethnic Affairs (1992) (2005) 143 FCR 217; SBEG v Secretary,

Court of Conscience Issue 13, 2019 89 Tension between the government and the courts the and government the between Tension Department of Immigration and Set Herself Alight’, The Guardian feb/28/last-four-refugee-children-leave- Citizenship [No. 2] (2012) 292 ALR 29. (online, 23 August 2018) . Reforming judicial 6 (2016) 257 CLR 42, 67 theguardian.com/australia-news/2018/ 43 Brett Worthington, ‘Senate (French CJ, Kiefel and Nettle JJ). aug/23/nauru-self-harm-contagion- Passes Controversial Refugee 7 (2016) 243 FCR 17 (‘Plaintiff as-12-year-old-refugee-tries-to-set- Evacuation Bill, Scott Morrison Says S99/2016’). herself-alight>; Siobhán O’Grady, New Laws ‘Weaken Our Borders’’ review since Tampa 8 Ibid [287], [290]-[294]. ‘Children in Australia’s Offshore Migrant ABC News (online, 13 February 2019) 9 FRX17 (n 1). Center are so Distraught, Some Have . 12 Ibid 23 [70] (Murphy J). . 47 Ibid sub-s (c). 17 AYX18 (n 2) [30] (Perram J). 36 Indefinite Despair (n 23) 27. 48 Ibid s 198F. 18 DJA18 (n 16) 6 [1] (Murphy J). 37 Kate Aubusson, ‘‘Terrifying’ 49 Ibid sub-s (5). 19 Ibid 10 [18], 21 [66] (Murphy J). Symptoms: Nauru Medical Records 50 Health Practitioners 20 (2018) 162 ALD 115. Expose Delays in Transfers for (Telemedicine Prohibition) Regulations 21 Ibid 122 [34] (Bromberg J). Treatment’, The Sydney Morning Herald 2019 (Republic of Nauru) 22 February, 22 Ibid 127 [51] (Bromberg J). (online, 20 October 2018) . 53 Ibid 15–16 [45] (Bromberg J). Processing on Nauru (Report, 38 Each case that the NJP 54 Each injunction matter December 2018) (‘Indefinite Despair’). brought to court followed weeks required the use of valuable court time, 24 Ibid 5. or months of engaging with the plus two legal teams, often involving 25 Ibid 21. Department of Home Affairs to request senior counsel. In the 2017-18 financial 26 Ibid 10, 34. transfers for our clients. year, the Commonwealth had spent Jack Zhou 27 Ibid 10. 39 See, eg, EHW18 v Minister $275,000 fighting requests for transfer. 28 DWE18 as litigation for Home Affairs (filed 30 August 2018) It is estimated that costs in the 2018-19 representative for DWD18 v Minister for FCA VID1070/2018; EFL18 by her financial year will be significantly higher: Home Affairs [2018] FCA 1121 (‘DWE18’); litigation guardian EFN18 v Minister for Helen Davidson, ‘Australia Spent DLZ18 by her litigation representative Home Affairs (filed 17 August 2018) $275,000 Fighting Requests for Urgent DMA18 v Minister for Home Affairs (filed FCA VID1007/2018. Medical Transfers of Asylum Seekers’, 4 July 2018) FCA NSD1183/2018, cited 40 See, eg, EQQ18 v Minister The Guardian (online, 29 September in FRM17 v Minister for Home Affairs for Immigration, Citizenship and 2018) < https://www.theguardian.com/ [2019] FCAFC 148. Multicultural Affairs (filed 10 September australia-news/2018/sep/29/australia- In the flurry of legal and political activity reductions as a result of various legislative 29 Karl Sallin et al, ‘Resignation 2018) FCA VID1115/2018; ETH18 by spent-320000-fighting-requests-for- Syndrome: Catatonia? Culture-Bound?’ her litigation representative ETI18 v urgent-medical-transfers-of-asylum- surrounding the Tampa crisis, the Migration amendments. Judicial review is only a way (2016) 10 Frontiers in Behavioural Minister for Home Affairs (filed 13 seekers>. Given the practice of the Legislation Amendment (Judicial Review) Act of vetting administrative errors, and is not a Neuroscience. See also extracts from September 2018) FCA NSD1695/2018; Minister of often consenting to transfers 2001 (Cth) was pushed through Parliament — process for reconsidering a migration decision. medical assessments describing EWK18 v Minister for Home Affairs immediately prior to the court hearing, symptoms and risks in DWE18. (filed 21 September 2018) FCA or consenting to or not opposing the one of a series of amendments to the Migra- It is an important mechanism in the context of 30 DWE18 (n 28) 4, 6. VID1212/2018. Federal Court’s orders, this expenditure tion Act 1958 (Cth) (‘Migration Act’) passed in migration, primarily in addressing decisions 31 Ibid 5. 41 FCC18 v Minister appears wasteful. See EWR18 v direct response to the crisis.1 It formed a major made by ministers or officers which fall short 32 Ibid 8. for Immigration Citizenship and Minister for Home Affairs [2018] FCA 2 33 Ibid 6. Multicultural Affairs (filed 3 October 1460, [58] (Thawley J) on this point. attempt to reduce the scope of judicial review of constitutional or legislative boundaries. 34 Ibid 10. 2018) FCA VID1263/2018; FDI18 v 55 Helen Davidson, ‘Medevac available for migrants, refugees and asylum Judicial review also plays a role in Austra- 35 See, Ben Doherty, ‘Refugee Minister for Home Affairs (filed 4 Law Repeal a Priority, Coalition Says, seekers. This article will survey the attempts to lia’s detention policy for refugees arriving Girl at Risk of Suicide to be Moved October 2018) FCA VID1274/2018; as Self-Harm Rises Among Refugees’, from Nauru to Australia after Court FBO18 as litigation representative for The Guardian (online, 22 May 2019) eliminate and curtail judicial review in the wake by boat. Its restriction, according to Brian Action’, The Guardian (online, 7 July FBN18 v Minister for Home Affairs . eignty precipitating legislative attacks on judi- ICCPR, which guarantees detained persons to-australia-after-court-action>; Ben for Resettlement in US’ The Guardian 56 Migration Amendment cial review, which was perceived as obstructing ‘an entitlement to bring proceedings before a Doherty, ‘Nauru Self-Harm ‘Contagion’ (online, 28 February 2019)

90 Anna Talbot and Adj Prof George Newhouse, Strategic litigation, offshore detention and the Medevac Bill Court of Conscience Issue 13, 2019 91 dormant until the Tampa crisis. Interest in the their stay in Australia, especially given Bill revitalised, and it received royal assent that one-third to one-half of all appli- in September 2001.6 The intent, outlined by cants withdraw from legal proceedings Minister for Immigration Philip Ruddock, was before hearing.15 based on giv[ing] legislative effect to the govern- The discussion over the abuse of courts ment’s longstanding commitment to reflected a fear of unauthorised migrants introduce legislation that in migration being able to stay in Australia. According to matters will restrict access to judicial Alan Freckelton, it represented a fixation on review in all but exceptional circum- border security as ‘a necessary element of stances. This commitment was made in a government’s sovereignty.’16 The result has light of the extensive merits review rights been an anxiety over ‘absolute control’17 over in the migration legislation and concerns borders and migration: about the growing cost and incidence of Images which convey this run from the migration litigation and the associated Statue of Liberty to crack SAS troops board- delays in removal of non-citizens with no ing the MV Tampa. In the law, the strong links right to remain in Australia.7 between migration provisions and the notion of sovereignty have lead to courts showing The government claimed that this would not remarkable deference to executives in areas restrict access to courts, but only expand of immigration rule making …18 the conditions for the legality of a migration Moreover, Sharon Pickering has high- decision. The amendment introduced ‘priva- lighted the ‘criminalisation’ of refugees as a tive decision clauses’ into the Migration Act.8 product of these discussions. Media repre- Almost all migration decisions under the Act sentation of refugees throughout this period were turned into a privative clause decision.9 heightened many of the issues generally in A decision made under the auspices of the terms of a ‘problem’.19 Using coverage from Act (either directly or through regulations) — the Sydney Morning Herald and other publi- with the narrow exceptions provided by ss cations throughout the late-1990s, Pickering 474(4)–(5) — would be ‘final and conclusive’ argues that portrayals of refugees during this Australian Aarmy patrols near the MV and cannot be subject to any sort of judicial period were underpinned by perceptions of Tampa. Christmas Island, 3 September review or challenge.10 ‘deviancy’.20 To that end, judicial review was 2001 (Dita Alangkara/AAP Image) One of the debates leading up to the seen as ‘aiding and abetting’ the deviant November 2001 election was built upon behaviour of refugees, through undermining concerns of border security,11 fomenting government policy and creating a threat to tensions between the courts and the govern- national sovereignty.21 Courts were unfavour- ment. The attitude that courts were unjustifi- ably characterised as obstructionist, with the ably interfering with tribunal decisions formed costs and resources associated with judicial a key justification for the attacks on judicial and administrative review perceived as a review.12 However, the actual outcomes of burdensome expense to tax payers.22 those reviews did not bear that interpreta- tion.13 The High Court had, in reality, cautioned iii Aftermath against ‘overzealous’ judicial scrutiny; of 32 applications in the 11 months before 31 May In 2003, the new privative clause provisions 2000, 26 were refused, three discontinued were considered by the High Court in Plain- and only three resulted in orders.14 tiff S157/2002.23 The plaintiff was refused a Concerns about ‘abuses’ of the Austra- Protection Visa by the Refugee Review Tribu- lian migration system featured in the rheto- nal. He argued that the tribunal’s decision ric of the government discourse surrounding was a breach of natural justice and that the migrants. A prevailing view was that admin- restriction under s 474 of the Migration Act istrative and legal institutions were being was inconsistent with s 75(v) of the Consti- abused by migrants seeking unmeritorious tution, where the High Court retains original judicial review. Philip Ruddock stated jurisdiction over matters where review ‘is it is hard not to conclude that there is sought against an officer of the Common- a substantial number who are using the wealth’. 24 Instead, the Court found a ‘jurisdic- legal process primarily in order to extend tional error’ in the decision, meaning that it

Court of Conscience Issue 13, 2019 93 was not a decision ‘made under [the Migra- tions of what exactly constitutes a ‘juris- Tribunal),44 the Federal Court and eventually outside of s 198AHA of the Migration Act. tion Act].’25 Privative clauses did not apply to dictional error’. Denis O’Brien argues that the High Court, but this would be unavailable Justice Gordon’s dissent also highlighted that decisions made ‘purporting to be under the ‘the privative clause… has not achieved its to an offshore refugee. However, the case the government should not escape account- Act’, that is, a decision involving a jurisdic- intended effect’ but ‘merely had the effect Plaintiff M61/2010E; Plaintiff M69/2010 found ability in regards to their offshore detention tional error.26 This reading would make judi- of returning judicial review in the area to the that offshore entry persons whose claims regime: ‘the fact that the place of detention is cial review possible only if the decision was complexity associated with the preroga- were considered by the Australian govern- outside Australia does not mean that legisla- erroneous and outside the decision-maker’s tive writs and the language of jurisdictional ment can still challenge and have their claims tive power is relevantly unconstrained’.50 jurisdiction, where it could not be defined as error’. 36 Numerous cases have considered reviewed under s 75 of the Constitution.45 a privative clause decision. Parliament could this issue, attempting to define what is and is The government’s attempt to restrict judicial v Conclusion not completely extricate itself from judicial not a ‘jurisdictional error’.37 review was once again resisted. review. While the High Court did not find s However, there remains a significant Nevertheless, by 2013 all unauthorised Despite repeated attempts, judicial review 474 inconsistent with the Constitution, they concern that judicial review may be unavail- refugee arrivals were sent offshore to Nauru relating to migrant decisions has resisted nevertheless retained judicial review, reserv- able for refugees placed in offshore detention. or Papua New Guinea for processing without substantial erosion. The institution itself has ing it for cases of ‘jurisdictional error’.27 Although privative clauses and other restric- any prospect of settling in Australia, fulfilling been marked by a series of tensions between Further reforms to judicial review appeared tions to judicial review have been resisted, its original purpose as a ‘shield against the the courts and the government, becoming a in the following years. With the Migration Liti- the High Court’s original jurisdiction to hear possible intervention of Australian courts’.46 target of legislative attack once the issue of gation Reform Act 2005 (Cth), the Federal these matters is confined to a function by ‘an While the government has settled into the refugees enters political debate. Through- Circuit Court (then the Federal Magistrates officer of the Commonwealth’.38 Throughout current offshore regime at the cost of much out the Tampa crisis, judicial review found Court) was given the power to exercise judi- the Tampa crisis, the government ensured human suffering, the legality of that regime itself a feature of increasingly polarised polit- cial review on the bulk of migration cases.28 that the asylum seekers’ vessel could not has been challenged. Over 2016–2017, two ical discourse, shored up by anxieties over The Federal Circuit Court’s jurisdiction over have contact with a migration official, but cases were heard before the High Court national sovereignty, border security, and the these matters is the same as the jurisdiction instead dispatched SAS troops to intercept concerning the lawfulness of the detention purported abuse of courts by ‘deviant’ refu- conferred upon the High Court under s 75(v) them. The troops had no ‘relevant statutory of refugees: Plaintiff M68/2015 involved a gees. Amongst the Coalition’s major amend- of the Constitution, but with exceptions laid or common law duties under the Migration detainee in Nauru,47 and Plaintiff S195/2016, ments to the Migration Act, the introduction out in s 476A of the Migration Act.29 Through- Act … [t]he supervisory jurisdiction of the which began as a class action by refugees on of privative clauses intended to effectively out these reforms, Parliament attempted to High Court under s 75(v) of the Constitution Manus Island but was ultimately heard on a sidestep constitutional judicial review. When reframe s 486A of the Migration Act to include was not relevant in their instance’.39 This single plaintiff.48 this strategy proved unsuccessful, offshore absolute time limits for judicial review appli- method of depriving judicial review would While both decisions ruled against the detention would eventually form a key mech- cations.30 This was later found constitutionally form a major rationale for the Pacific Solution applicants and upheld the legality of offshore anism for the continued deprivation of judi- invalid by the High Court in Bodruddaza.31 In and subsequent offshore processing policies processing, Plaintiff M68/2015 highlighted cial review for refugees and migrants. response, the Migration Legislation Amend- — according to Duncan Kerr, ‘the Howard the limitations of the Government’s power to ment Act [No. 1] 2009 (Cth) enacted a 35-day government’s strategy of avoiding judicial detain refugees in Nauru and Manus Island.49 Jack Zhou is a second year Bachelor time limit with discretion to seek an order from review by keeping officers of the Common- The majority emphasised that the govern- of Arts/Laws student at UNSW. the High Court to extend the time limit.32 wealth away from possible legal engagement ment could not detain a person for purposes More recently, the Migration Amendment with refugee claimants was fundamental to (Clarification of Jurisdiction) Bill 2018 (Cth) has the offshore process regime’.40 To that effect, attempted to clarify the grounds for judicial Nauru and Manus Island were established as References 7 Commonwealth, Parliamentary of bipartisan governmental mistrust of review, after claims that the terms under pt 8 offshore detention facilities. Christmas Island Debates, House of Representatives, 26 the role performed by courts in reviewing 33 1 Helen Pringle and Elaine September 2001, 31559 (Philip Ruddock). migration decisions.’: Ronald Sackville, were unduly ambiguous. The Bill provides was removed from the Australian migration Thompson, ‘The Tampa Affair and 8 Migration Act 1958 (Cth) pt 8, ‘Judicial Review of Migration Decisions: that purported non-privative clause deci- zone through the Migration Amendment the Role of the Australian Parliament’ as amended by Migration Legislation An Institution in Peril?’ (2000) 23(3) sions (ie decisions affected by jurisdictional (Excision from Migration Zone) Act 2001 (2002) 13 Public Law Review Amendment (Judicial Review) Act 2001 University of New South Wales Law 41 128, 136. (Cth) sch 1 item 7. Journal 190, 196. error) are ‘reviewable by the Federal Circuit (Cth), meaning that a refugee who arrives at 2 Brian Opeskin, ‘Managing 9 Migration Act 1958 (Cth) s 13 Ibid 200. Court’. 34 It has been said this will ‘ensure that Australia via Christmas Island — or another International Migration in Australia: 474(2). 14 Ibid; Minister for Immigration applicants seeking judicial review of migration offshore territory — is treated as an ‘offshore Human Rights and the “Last Major 10 Ibid s 474(1)(a). and Ethnic Affairs v Wu Shan Liang Redoubt of Unfettered National 11 For an examination of the (1996) 185 CLR 259, 272. decisions would have substantially the same entry person’. Sovereignty”’ (2012) 46(3) International role of border security in the Coalition’s 15 Commonwealth, rights as applicants seeking judicial review In 2008, Christmas Island became the Migration Review 551, 564. campaign and ultimate victory, see Ian Parliamentary Debates, House of of most other Commonwealth administrative primary area for processing an ‘offshore 3 International Covenant on McAllister, ‘Border Protection, the 2001 Representatives, 26 September 2001, 35 42 Civil and Political Rights, opened for Australian Election and the Coalition 31560 (Philip Ruddock). decisions’. However, as of April 2019, the Bill entry person’. Such a person cannot signature [16 December 1966], 999 Victory’ (2003) 38(3) Australian Journal 16 Alan Freckleton, has lapsed in the Parliament. receive a Protection Visa nor make a valid UNTS 171 (entered into force 23 March of Political Science 445. Administrative Decision-Making in application for one unless the Minister 1976) (‘ICCPR’). 12 These attacks on judicial Australian Migration Law (ANU Press, 4 Opeskin (n 2) 575. review were also bipartisan: according 1st ed, 2015) 222. iv Implications for offshore detention decides it is in the public interest to allow 5 Migration Legislation to Ronald Sackville QC, ‘the current and 17 Ibid. it.43 Hypothetically, the process of refugee Amendment (Judicial Review) Bill 1998 proposed restrictions on judicial review 18 Catherine Dauvergne, Far from eliminating judicial review, the addi- determination for an onshore claimant can (Cth). reflect dissatisfaction by successive ‘Challenges to Sovereignty: Migration 6 Migration Legislation governments, from both sides of politics, Laws for the 21st Century’ (Working tion of privative clauses and the results of be reviewed by the Administrative Appeals Amendment (Judicial Review) Act 2001 with the workings of judicial review of Paper No 92, 13th Commonwealth subsequent cases have instead raised ques- Tribunal (before 2015, the Refugee Review (Cth). migration decisions… there is a pattern Law Conference, April 2003) 2 quoted

94 Jack Zhou, Reforming judicial review since Tampa Court of Conscience Issue 13, 2019 95 Tension between the government and the courts the and government the between Tension in Alan Freckleton, Administrative 35 Australian Human Rights 44 The Refugee Review Tribunal Decision-Making in Australian Migration Commission, Submission No 1 to and Migration Review Tribunal were Rethinking the Law (ANU Press, 1st ed, 2015) 223. Senate Legal and Constitutional Affairs amalgamated into a division under the 19 Sharon Pickering, Refugees Legislation Committee, Parliament of Administrative Appeals Tribunal in 2015. & State Crime (Federation Press, 1st Australia, Inquiry into the Migration 45 Plaintiff M61/2010E v ed, 2005) 22. Amendment (Clarification of Jurisdiction) Commonwealth of Australia; Plaintiff character power as 20 Ibid 23-32. Bill 2018 (Cth) (4 April 2018) 3. M69 of 2010 v Commonwealth of 21 Ibid 39-45. 36 Denis O’Brien, ‘Controlling Australia (2010) 243 CLR 319, 345-347 22 Ibid. Migration Litigation’ (Conference Paper, [51], [57]-[58] (French CJ, Gummow, 23 Plaintiff S157/2002 v Australian Institute of Administrative Hayne, Heydon, Crennan, Kiefel, Bell it relates to refugees Commonwealth (2003) 211 CLR 476 Law National Administrative Law JJ). See also John McMillan, Regulating (‘Plaintiff S157/2002’). Forum, 7 August 2009) 37. Migration Litigation After Plaintiff M61 24 Ibid 482 [5] (Gleeson CJ). 37 See, eg, Hossain v Minister (Report, 2011), 11-14. 25 Ibid 506 [76] (Gaudron, for Immigration and Border Protection 46 Kerr (n 39) 66. and asylum seekers McHugh, Gummow, Kirby and Hayne JJ). [2018] HCA 34. 47 Plaintiff M68/2015 v Minister 26 Ibid 505-507 [74]–[78] 38 Australian Constitution for Immigration and Border Protection (Gaudron, McHugh, Gummow, Kirby s 75(v). (2016) 257 CLR 42 (‘Plaintiff M68/2015’). and Hayne JJ). 39 Duncan Kerr, ‘The Red 48 Plaintiff S195/2016 v in Australia 27 Ibid 508 [83]. Queen’s Law: Judicial Review and Minister for Immigration and Border 28 Migration Litigation Reform Offshore Processing after Plaintiff Protection (2017) 261 CLR 622 Act 2005 (Cth) sch 1 item 17. S157/2001’ (2007) 9 UTS Law Review (‘Plaintiff S195/2016’). See Amy 29 Migration Act 1958 (Cth) s 57, 65. Maguire, ‘High Court challenge to 476A. 40 Ibid. offshore immigration detention power 30 Migration Litigation Reform 41 Migration Act 1958 (Cth) fails’, The Conversation (online, 17 Act 2005 (Cth) sch item 30. s 5(1), as amended by Migration August 2017) . (Gleeson CJ, Gummow, Kirby, Hayne, a large offshore detention facility began 49 See Plaintiff M68/2015 Dr Jason Donnelly Heydon and Crennan JJ) (‘Bodruddaza’). operating on Christmas Island in 2008 (n 47) 71 [46] (French CJ, Kiefel and 32 Migration Legislation – it formally closed in 2018: Michael Nettle JJ). Amy Maguire argues that Amendment Act (No. 1) 2009 (Cth) sch Koziol, ‘After 10 years, the notorious the High Court decisions in Plaintiff 2 item 6. Christmas Island detention centre has S195/2016 give a ‘broader conception of 33 Minister for Immigration and quietly closed’, The Sydney Morning executive government power in relation Border Protection v ARJ17 (2017) 250 Herald (online, 4 October 2018) . 4 UNSW Law Journal Forum 1–12. Services (Cth), Bills Digest (Digest No 8 43 Migration Act 1958 (Cth) 50 Plaintiff M68/2015 (n 47) 163 of 2018-2019, 13 August 2018) 13. ss 46A(1)-(2). [390] (Gordon J). Under a web of provisions in the Migration Act In accordance with s 501(1) of the Migra- 1958 (Cth) (‘Migration Act’),1 both the Minister for tion Act, the Minister or their delegate may Home Affairs and the Minister for Immigration, refuse to grant a visa to a non-citizen if that Citizenship, Migrant Services and Multicultural person does not satisfy the decision-maker Affairs have significant legal power to either that he or she passes the character test. cancel or refuse a visa to refugees and asylum Similarly, pursuant to s 501(2) of the Migra- seekers on character grounds. In making char- tion Act, either the Minister or their delegate acter decisions, although not bound by minis- may cancel a visa that has been granted to terial policy,2 the relevant Minister often applies a person if the decision-maker reasonably considerations reflected in the New Ministerial suspects that the non-citizen does not pass Direction No 79 (‘Direction 79’).3 the character test and the person does not This paper argues that Direction 79 satisfy the Minister that the person passes requires significant changes to better advance the character test. Decisions made under the fundamental rights of both refugees and ss 501(1)–(2) of the Migration Act require asylum seekers in Australia.4 Presently, relevant the rules of procedural fairness to be both considerations reflected in Direction 79 give far observed and applied. too much weight to the protection of the Austra- Under s 501(3) of the Migration Act, the lian community at the expense of safeguarding Minister may either refuse to grant a visa to a and promoting the human rights of non-citizens person or cancel a visa that has been granted in Australia.5 This paper further argues that a to a person if the decision-maker reasonably number of considerations, as currently reflected suspects that the non-citizen does not pass in Direction 79, are likely to reflect policy princi- the character test and the decision-maker is ples that do not accord with the Migration Act. otherwise satisfied that the refusal or cancel- Therefore, such policy principles need to be lation is in the national interest. Critically, urgently removed from Direction 79. where decisions are made in accordance

96 Jack Zhou, Reforming judicial review since Tampa Court of Conscience Issue 13, 2019 97 with s 501(3) of the Migration Act, the rules A person may otherwise fail the charac- of procedural fairness do not apply. Only the ter test for reasons associated with: Minister, acting personally, can make a deci- • committing offences in immigration sion pursuant to s 501(3) of the Migration Act. detention or escape from immigra- Pursuant to s 501(3A) of the Migration tion detention;12 Act, the Minister must cancel a visa that has • having an association with a criminal been granted to a person if the Minister is organisation;13 satisfied that the non-citizen has: • offences related to trafficking in • been sentenced to death, been persons;14 sentenced to imprisonment for life, • crimes related to genocide;15 been sentenced to a term of impris- • crimes against humanity;16 onment of 12 months or more;6 or • offences concerning torture or • a court in Australia or a foreign slavery;17 country has either convicted the • crimes that involve matters of serious person of one or more sexually based international concern;18 offences involving a child or found • having regard to either the person’s the person guilty of such an offence, past and present criminal conduct or found a charge against the person or the person’s past and present proved for such an offence, even if general conduct, the person is not of the person was discharged without a good character; and19 conviction,7 and • sexually based offences involving a • the person is serving a sentence of child.20 imprisonment, on a full-time basis in • where there is a risk that a person a custodial institution, for an offence would engage in various forms of against a law of the Commonwealth, adverse conduct in Australia,21 a State or a Territory (‘mandatory • the person has been assessed by cancellation decision’).8 the Australian Security Intelligence Organisation to be directly or indi- A non-citizen can seek revocation of a rectly a risk to security,22 Minister for Home Affairs, Peter Dutton mandatory cancellation decision made under • it being reasonable to infer that a (Glenn Hunt/AAP Image) s 501(3A) of the Migration Act.9 Where a dele- non-citizen presents a risk to the gate exercises statutory power by reference Australian community or a segment to ss 501(1)–(2) and 501CA(4) of the Migration of that community by reason of being Act, they are bound to apply relevant princi- the subject of an Interpol notice that ples espoused in Direction 79.10 is in force.23 Section 501(6) of the Migration Act prescribes a detailed range of jurisdictional facts Where delegates apply Direction 79, they are which mandates when a person is taken not to required to have regard to primary consid- pass the character test. For example, pursuant erations related to the protection of the to s 501(6)(a), a person does not pass the char- Australian community, expectations of the acter test if that person has a ‘substantial crim- Australian community and the best interests inal record’. A person has a substantial crim- of children affected by a character related inal record if the person has been sentenced decision.24 Delegates must also have regard to death, sentenced to imprisonment for life, to other considerations such as interna- sentenced to a term of imprisonment of 12 tional non-refoulement obligations (in certain months or more, the person has been acquitted cases), impact on family members in Austra- of an offence on the grounds of unsoundness of lia, impact on victims and impact on Austra- mind or insanity (and as a result the person has lian business interests.25 been detained in a facility or institution), or the Having detailed, in summary, the rele- person has been found by a court to not be fit to vant statutory regime related to the character plead in relation to an offence and the court has power in the Migration Act,26 the balance of nonetheless found that on the evidence avail- this paper explores various shortcomings with able the person committed the offence and as a numerous policy principles reflected inDirec - result, the person has been detained in a facility tion 79. As will be demonstrated, significant or institution.11 reform is required in relation to Direction 79.

Court of Conscience Issue 13, 2019 99 iii Difficulty one: taking the relevant 2. The non-citizen is able to make a In Viane,35 the Full Court of the Federal officer’s duty to remove (as soon as reasonably considerations into account valid application for a Protection Visa Court of Australia interpreted s 501CA(4) practicable) an unlawful non-citizen pursuant in the future. of the Migration Act to mean that a deci- to s 198 arises ‘irrespective of whether there In accordance with cl 8(4) of Direction 79, 3. There are three fundamental difficul- sion-maker has an obligation to consider has been an assessment, according to law, primary considerations should generally be ties with this policy principle. matters that carry significant weight or of Australia’s non-refoulement obligations in given greater weight than the other consid- significance to satisfy the decision-maker to respect of the non-citizen’.42 erations. Critically, the effect of this policy First, despite the fact that a non-citizen may revoke a mandatory cancellation decision.36 Thus, ‘if the Minister did not exercise one of principle is to mandate that non-refoulement advance claims that give rise to international If a non-refoulement claim is ‘seriously his discretionary powers to grant the non-citi- obligations should generally be given less non-refoulement obligations in the context and substantively advanced’37 by a non-cit- zen a visa’, the effect of s 198 (when read with weight than the primary considerations. of a character case, there is judicial authority izen in the context of a case that concerns section 197C of the Migration Act) ‘appears to In other words, at a lower level of abstrac- that those claims need not be considered by s 501CA(4) of the Migration Act, it is likely be that the non-citizen would be required to be tion, this means that the primary consider- the decision-maker.29 As such, non-citizens that such a representation would need to be removed from Australia regardless of Austra- ation related to protection of the Australian could potentially lose a powerful discretionary considered by the decision-maker (regard- lia’s international non-refoulement obliga- community is generally given greater weight consideration (as related to non-refoulement less of an opposite conclusion being reflected tions’.43 Indefinite detention is not a possibility.44 than considerations related to Australia’s obligations) being taken into account in deter- in cl 14.1(4) of Direction 79); this is because non-refoulement obligations. mining whether their visa should be cancelled, the advancement of a clearly expressed vi Conclusion It is contended that the consideration refused or a mandatory cancellation decision non-refoulement claim is likely to be charac- related to non-refoulement obligations should revoked on character grounds.30 terised as a ‘significant matter’. To contend Direction 79 formally commenced in Austra- be treated as a primary consideration for the Secondly, the apparent lack of necessity to otherwise would be a failure to conform to lia on 28 February 2019. Despite the relatively purposes of Direction 79. After all, non-re- consider non-refoulement claims (advanced in the statute.38 ‘The statutory requirement for recent nature of this ministerial direction,45 it is foulement obligations concern serious consid- the context of character cases) may directly or the Minister to invite representations must clear that relevant principles espoused in this erations related to a threat to a person’s life or indirectly contribute to the non-citizen remain- lead to the conclusion that if representations significant policy document are arguably not liberty, involving significant physical harass- ing in immigration detention for a substantial are made as to significant matters then the correct as a matter of law. Critically, a matter ment, significant physical ill-treatment, signif- period of time.31 If consideration of a non-citi- Minister must consider whether to revoke the of significant concern, various of the impugned icant ill-treatment, significant economic hard- zen’s non-refoulement claims are deferred until original cancellation and do so by consider- policy principles identified in this paper have ship (that threatens the person’s capacity to he or she lodges an onshore Protection Visa ing the representations as to those matters’.39 the potential to adversely impact the rights of subsist), denial of access to basic services application in the future (after their character refugees and asylum seekers in Australia.46 (where the denial threatens the person’s case is decided unfavourably), the non-citizen v Difficulty three: status of indefinite Serious and urgent reform to Direction capacity to subsist) and denial of capacity to will be required to remain in immigration deten- immigration detention 79 is required. Non-refoulement obligations, earn a livelihood of any kind (whether the denial tion for a substantial period of time until their when raised in character cases, should always threatens the person’s capacity to subsist).27 Protection Visa claims are assessed.32 Clauses 10.1(6), 12.1(6) and 14.1(6) of Direc- be treated as primary considerations by the It seems unthinkable that in circumstances Had a compelling non-refoulement claim tion 79 outline that: relevant decision-maker. The nature of such a where a non-citizen has a well-founded fear been considered in the context of a character Given that Australia will not return a person consideration, being non-refoulement obliga- of facing serious harm if they are returned to case decided under s 501 of the Migration to their country of origin if to do so would tions, inherently raises matters of international their home country, that such a consideration Act, the non-citizen may have been granted be inconsistent with its international concern that are significant and important. is generally given less weight than the primary a visa, not had their visa cancelled or been non-refoulement obligations, the operation Where a non-citizen raises a non-re- considerations reflected in Direction 79. successful in having a mandatory cancel- of sections 189 and 196 of the Act means foulement claim in the context of their character However, as Colvin J confirmed in Suleiman,28 lation decision revoked (thus avoiding the that, if the person’s Protection Visa were case, there should be a mandatory obligation ‘absent some factor that takes the case out necessity for continued immigration deten- cancelled, they would face the prospect of to consider such a claim (regardless of whether of that which pertains “generally”’, primary tion as an unlawful non-citizen in Australia). indefinite immigration detention. the non-citizen may make a future onshore considerations are to be given greater weight. As Bromberg and Mortimer JJ make plain Protection Visa application). Such a proposal in BCR16,33 in determining a character case It appears that this policy principle is argu- could potentially reduce the time non-citizens iv Difficulty two: deferral of under s 501 of the Migration Act, the Minister ably not correct as a matter of law.40 This spend in Australian immigration detention and decision-making is able to give greater weight to a small risk policy principle appears to indicate that if a otherwise expressly demonstrate that Australia of persecution than is otherwise permitted non-citizen’s Protection Visa is cancelled, takes its non-refoulement obligations seriously. Clauses 10.1(4), 12.1(4) and 14.1(4) of Direction where a decision-maker formally considers a the non-citizen faces the prospect of indefi- Finally, if a non-citizen’s Protection Visa 79 mandate that it is unnecessary for delegates Protection Visa application.34 nite immigration detention in Australia (on the has been refused on character grounds, it is to determine whether non-refoulement obliga- Thirdly, it is fairly arguable that cl 14.1(4) assumption that Australia will not remove the clear that they are required to be removed tions are owed to a non-citizen for the purposes of Direction 79 is inconsistent with the stat- non-citizen to his or her home country). from Australia in accordance with s 198 of the of determining whether their visa should be utory regime mandated by s 501CA(4) of the The preceding policy principle appears to Migration Act. In those circumstances, given cancelled, refused or a mandatory cancellation Migration Act. Pursuant to s 501CA(4)(b)(ii), squarely conflict with s 197C(1) of theMigra - the statutory effect of s 197C of the Migra- decision revoked in circumstances where: a decision-maker has a statutory power to tion Act, which makes plain that it is irrelevant tion Act, the non-citizen does not face the 1. The non-citizen makes claims which revoke a mandatory cancellation decision if whether Australia has non-refoulement obli- prospect of indefinite immigration detention may give rise to international non-re- satisfied ‘that there is another reason why the gations in respect of an unlawful non-citizen.41 in Australia (but faces likely refoulement). As foulement obligations; and original decision should be revoked’. Further, under s 197C(2) of the Migration Act, an such, this state of affairs should be correctly

100 Dr Jason Donnelly, Rethinking the character power as it relates to refugees and asylum seekers in Australia Court of Conscience Issue 13, 2019 101 reflected in ministerial policy (so that deci- Dr Jason Donnelly is the Course sion-makers, many of whom are not legally Convenor of the Graduate Diploma The need for in Australian Migration Law program trained, fully understand the legal implica- at Western Sydney University, where tions of cancelling, refusing or affirming a he is also a Senior Lecturer within mandatory cancellation decision made to the the School of Law. Dr Donnelly has statutory reform appeared in some of Australia’s detriment of a non-citizen). leading immigration cases, published Although refugees and asylum seekers widely in Australian public law, and may have committed serious criminal offences has assisted several Commonwealth parliamentary inquiries in the area of in Australia or overseas, the complexity of Australian migration law. a person’s criminality must be considered Dr Jason Donnelly, BA (Macq), against the backdrop of a non-citizen’s pros- LLB (Hons 1 & Uni Medal) (UWS), GDLP (College of Law), Ph.D. (UNSW), pect of facing serious harm overseas and the Senior Lecturer (WSU), Barrister of the historical basis upon which Protection Visa Supreme Court of New South Wales claims are advanced.47 Presently, Direction 79 and High Court of Australia. is failing non-citizens who are either refugees or asylum seekers in Australia.

References 19 Ibid s 501(6)(c). 35 Viane v Minister for 20 Ibid s 501(6)(e). Immigration and Border Protection 1 Migration Act 1958 (Cth) 21 Ibid s 501(6)(d). Under this (2018) 162 ALD 13 (‘Viane’). ss 499–503A (‘Migration Act’). provision, adverse conduct includes 36 Ibid 27 [68], 28 [72], 28–29 2 Bochenski v Minister for harassing, molesting, intimidating or [75]–[76]. Immigration and Border Protection stalking another person in Australia, 37 Omar v Minister for Home (2017) 250 FCR 209, 214 [30] vilifying a segment of the Australian Affairs [2019] FCA 279 [46]. (‘Bochenski’). community, or inciting discord in the 38 Viane (n 35) [75]. 3 Minister for Immigration, Australian community or in a segment 39 Ibid. Citizenship and Multicultural Affairs of that community. 40 PRHR v Minister for (Cth), Direction No 79: Visa Refusal 22 Ibid s 501(6)(g). Immigration and Border Protection and Cancellation under s 501 23 Ibid s 501(6)(h). (Migration) [2017] AATA 2782 [109], and Revocation of a Mandatory 24 Direction 79 (n 3) cl 9. [141]–[155]. Cancellation of a Visa under s 501CA 25 Ibid cl 10. 41 DMH16 v Minister for (28 February 2019) (‘Direction 79’). 26 See also Jason Donnelly, Immigration and Border Protection 4 See also Arjen Leerkes et ‘Tale of Two Characters: The (2017) 253 FCR 576 (‘DMH16’). al, ‘Civic Stratification and Crime: A Paradoxical Application of the 42 AQM18 v Minister for Comparison of Asylum Migrants with Character Test between Visa Holders Immigration and Border Protection Different Legal Statuses’ (2018) 69(1) and Applicants for Australian [2019] FCAFC 27 [17] (‘AQM18’). Crime, Law and Social Change 41, Citizenship’ (2018) 25 Australian 43 DMH16 (n 41); KLQF v where the authors argue that ‘social Journal of Administrative Law 104. Minister for Home Affairs (Migration) exclusion actually contributes to certain 27 Migration Act (n 1) s 5J(5). [2019] AATA 933 [261]. crime issues, and that the chances 28 Suleiman v Minister for 44 AQM18 (n 42) [25]. of such issues occurring decrease Immigration and Border Protection 45 Direction 79 replaced when asylum migrants are more fully [2018] FCA 594 [23] (‘Suleiman’). Direction 65: Direction 79 (n 3) cl 2. integrated, ie given similar rights as 29 Ali v Minister for Immigration There is considerable overlap of content citizens, rather than being excluded’: and Border Protection [2018] FCA between the new and old ministerial at 63. 650; Greene v Assistant Minister for direction. Notably, relevant clauses of 5 Peter Billings, ‘Getting Home Affairs [2018] FCA 919; Turay Direction 79, analysed in this paper, Rid of Risky Foreigners: Promoting v Assistant Minister for Home Affairs were also reflected in Direction 65. Community Protection at the Expense [2018] FCA 1487. 46 YNQY v Minister for of Administrative Justice?’ (2019) 47(2) 30 Cf BCR16 v Minister for Immigration and Border Protection Federal Law Review 231. Immigration and Border Protection [2017] FCA 1466 [1] (Mortimer J). 6 Migration Act (n 1) s 501(3A) [2017] FCAFC 96 [48]–[49] (‘BCR16’). 47 See Robyn Creyke and (a)(i). 31 Oppressive delays have John McMillan, ‘Administrative 7 Ibid s 501(3A)(a)(ii). been a feature of administrative Justice: The Concept Emerges’ in 8 Ibid s 501(3A)(b). processes with 153 days as the Robyn Creyke and John McMillan 9 Ibid s 501CA(4). average processing period for (eds), Administrative Justice: The Core 10 Ibid s 499(2A); Bochenski (n challenges to mandatory visa and the Fringe (Australian Institute 2) [62], [65], [78]. cancellation: Martin v Minister for of Administrative Law, 1999) 1, 3–4, 11 Migration Act (n 1) ss 501(6) Immigration and Border Protection who refer to administrative justice (a), 501(7). [2017] FCA 1 [11] (Katzmann J); as a philosophy that the rights and 12 Ibid s 501(6)(aa). Commonwealth Ombudsman, The interests of individuals should be 13 Ibid s 501(6)(b). Administration of Section 501 of the safeguarded properly in administrative 14 Ibid s 501(6)(ba). Migration Act 1958 (Report No 8, 21 decision-making. 15 Ibid. December 2016), 3 [1.4], 16 Ibid. 32 Migration Act (n 1) s 189(1). 17 Ibid. 33 BCR16 (n 30). 18 Ibid. 34 Ibid [49].

102 Dr Jason Donnelly, Rethinking the character power as it relates to refugees and asylum seekers in Australia A ‘legacy’ of uncertainty reform statutory for need The The need to abolish Temporary Protection Visas

Sanjay Alapakkam

i Introduction number of people who undertook this journey Farina, South Australian Outback exceeded 20,000. In 2008, the Rudd Govern- (Adrianbutera/Wikimedia Commons) People seeking asylum, and refugees who ment abolished the Temporary Protection have arrived in Australia by unauthorised Visa system that was implemented by the boats have faced a sustained campaign Howard Government, and allowed people of dehumanisation consisting of divisive, seeking asylum by boat to apply for Perma- often hateful rhetoric and harsher policies, nent Protection Visas. However, the exten- which has shaped a considerable amount sion of permanent protection to this category of 21st century Australia’s response to ‘boat of applicants was once again removed under people’. The introduction of Temporary the Abbott Government, which reintroduced Protection Visas has played a significant role Temporary Protection Visas as one of many in entrenching uncertainty, socio-economic elements of an overarching policy to deter stagnation and isolation in the lives of refu- people seeking asylum from embarking on a gees. They are one of many mechanisms journey to reach Australia. which, by design and in practice, alienate This article will explore the experiences boat arrivals and seek to delegitimise their of those who are subject to the newest itera- claims for protection. tion of the temporary protection policy which The erratic legislative and regulatory was designed specifically for the approxi- changes in the form of offering permanent mately 30,000 people1 who reached Austra- protection to refugees arriving by boat or lia’s migration zone unauthorised by sea.2 withholding permanent protection and, in its The Migration and Maritime Powers Legis- place, offering temporary protection, were lation Amendment (Resolving the Asylum enacted by consecutive governments in their Legacy Caseload) Act 2014 (Cth) targeted attempts to address the influx of people arriv- people seeking asylum who arrived by an ing in Australia by unauthorised maritime unauthorised maritime vessel between 13 vessels for the purpose of seeking asylum. The August 2012 and 19 July 2013,3 who have situation escalated in 2012 when the recorded subsequently been termed the Legacy Case-

Court of Conscience Issue 13, 2019 105 load (‘LC’).4 The LC cohort was expanded Permanent Protection Visa or a Temporary Number of people attampting to to include asylum seekers who arrived until Protection Visa, is that they must satisfy s 5H reach Australia via boat 1 January 2014; and now LC applicants fall of the Migration Act which defines a refugee within the definition of a fast track applicant as a person, if they have a nationality, who ‘is under s 5 of the Migration Act 1958 (Cth) outside the country of his or her nationality (‘Migration Act’).5 In the first instance, fast and, owing to a well-founded fear of perse- track applicants are only eligible to apply for cution, is unable or unwilling to avail himself a Temporary Protection Visa (subclass 785) or herself of the protection of that country’.12 (‘TPV’). The human cost of temporary protec- The first limb of the definition of a well- tion warrants further examination of its oper- founded fear of persecution requires a fear ation and impact, as well as an exploration of of persecution for at least one of five conven- a possible transition to permanent protection tion reasons: race, religion, nationality, polit- for fast track refugees. ical opinion or their membership of a partic- Fast track applicants may include ular social group.13 There must also be a real people arriving by air and claiming asylum chance that, if the applicant were returned at an airport prior to immigration clearance. to the receiving country, that they would However, in light of the hyper-politicisa- be persecuted, in all areas of the receiving tion of people arriving by boat, and the fact country, for at least one of those reasons.14 that this article is exploring factors driving governmental policies, boats and planes Popular views: ‘the right way’ in will be used as proxies to illustrate the stark Political discourse and popular debates on Figure 1: A timeline of the number of contrast in their treatment and to critically the humanitarian intake have focused on people who attempted to reach Australia via boat every year and major policies examine the government’s proposed raison boat arrivals taking the ‘backdoor’ route surrounding unauthorised maritime d’être for the current Temporary Protection into Australia,15 which is also reflected in arrivals, in the years 1999–2019.24 Visa regime. protection policies that differentiate between people seeking asylum based on their mode groups of people must meet the definition of that changes in TPVs was not the main causal ii Papers, boats and planes of reaching Australia. Those favouring plane a refugee.21 The added references, by polit- factor in the number of people attempting arrivals often cite security considerations ical figures, to boat arrivals as ‘economic to reach Australia by boat as seen through Available visas for boat arrivals such as the fact that those arriving by plane migrants’ implicitly misrepresents boat arriv- a general comparison of the two factors One’s mode of arrival to Australia as a person must have a valid visa which they would have als as raising unmeritorious asylum claims over the time period between 1999 to 2019. seeking asylum is determinative of his or been granted only after fulfilling a series of based on their mode of arrival, despite the Specifically, the current version of temporary her fate. The options for fast track appli- tests including health and character checks,16 fact that out of all finalised applications protection was enacted only after the sharp cants are the three-year TPV and the five- unlike people arriving by boat who are yet for ‘Illegal Maritime Arrivals’, almost 70% decline in the number of arrivals per year. year Safe Haven Enterprise Visa (subclass to be cleared. The self-selection method resulted in visa grants.22 More importantly, the current iteration 790) (‘SHEV’).6 The concept of tempo- of boat arrivals amounting to a perceived of temporary protection is only available for rary protection was initially pushed by One infringement of Australia’s sovereignty, as Rationale of deterrence fast track refugees and hence, TPVs and Nation Party leader Pauline Hanson in 1998, well as concerns about the riskier nature of Deterring people from coming by boat to SHEVs would not affect people arriving after who proposed that all refugees be given only the journey by boat also serve to juxtapose Australia has been and continues to be one 1 January 2014.25 However, if misinformation temporary visas,7 and then implemented by the two groups.17 of the main justifications provided by Austra- is considered to be a main ‘pull factor’ for the Howard Government in October 1999 On the other hand, discriminating lian governments for the implementation of boat arrivals, then a change in any migration to apply to those arriving in Australia unau- between those seeking asylum on the basis harsher policies against boat arrivals.23 This policy could theoretically be misrepresented thorised and by boat; which has partly been of their method of arrival is contrary to art article is not exploring the validity of justifi- by people smugglers to desperate people attributed to electoral anxiety stemming 31(1) of the 1951 Convention Relating to the cations to achieve deterrence but rather the seeking asylum. Therefore, any causal link from the Queensland Coalition government Status of Refugees (‘Refugee Convention’),18 causal link that appears to be drawn between between temporary protection and deter- facing major swings towards One Nation at a and hence contrary to the views of the inter- the appropriateness of temporary protection rence26 is tenuous at best. The Morrison state level.8 The TPV was then abolished by national community, at least nominally. The for fast track refugees and the proposed government demonstrated a similar atti- the Rudd Government in 2008,9 but subse- contrast between the categories of appli- purpose of achieving deterrence. tude towards the Home Affairs Legislation quently re-introduced alongside its 5-year cants is also firmly entrenched through the While decreases in the annual number Amendment (Miscellaneous Measures) Act variant by the Abbott Government in 2014.10 rhetoric espoused by politicians and polit- of boat arrivals appear to correlate with 2018 (Cth),27 where panic was expressed out People seeking asylum who arrive in ical commentators, that is heavily charac- the implementation of temporary protec- of concern that people smugglers would be Australia with a valid visa, such as a student terised by negative terminology such as tion, periods of change involving tempo- able to sell a pathway to Australia through visa, and following immigration clearance, ‘queue jumpers’ and ‘economic migrants’.19 rary protection policies have generally been Medevac,28 despite the fact that the legislation can apply for an onshore Permanent Protec- The contrasting treatment of boat and plane accompanied by significant reform in migra- applies only to people seeking asylum who tion Visa (subclass 866).11 A common require- arrivals, which creates a ‘two-class system tion laws and policies more broadly. The are already detained in the ‘regional process- ment for applicants, whether they apply for a for refugees’20 obscures the fact that both timing of the relevant reforms also indicates ing’ centres in Nauru or Manus Island,29 and

106 Sanjay Alapakkam, A ‘legacy’ of uncertainty Court of Conscience Issue 13, 2019 107 that people who arrive to Australia today In reality, this would be difficult for most ing family members ‘travelling to Australia … the Kaldor Centre for International Refugee would either be turned back or ‘taken back’.30 refugees because of the onerous require- in the expectation of being granted a Protec- Law, that the solution enables ‘families to The legitimacy of the deterrence rationale is ments, along with any mental or functional tion Visa’. 51 rebuild their lives together, in a safe and further eroded by the fact that the system impairments, and the innate risk of isola- Subject to strict requirements, TPV stable environment’.57 In Canada, people is punitive in design against those arriving tion. The LC refugees’ ability to subsist is and SHEV holders may travel to another found to be eligible for protection can apply by boat which contradicts art 31(1) of the adversely affected by the short-term nature country, except the one from which they seek for permanent protection.58 Once attaining Refugee Convention which prohibits the use of temporary protection, which limits oppor- protection, on compassionate or compel- permanent residence, one may, subject to of penalties against refugees on the basis of tunities to establish and grow their skills and/ ling circumstances, such as meeting their limitations, sponsor family members who are their ‘illegal entry or presence’.31 or businesses, fosters employers’ potential close relatives.52 However, given the lengthy overseas if they lodge an application within negative biases due to the uncertain nature assessment processes as well as the real the one-year window that commences from iii Need for change of their future residency status,43 and limits likelihood that a refugee who is granted a the day that the resident refugee was granted their access to support services for labour visa here would have to obtain a temporary protection.59 Furthermore, an abolition of the Uncertainty as to future residency market integration.44 The shorter length of visa multiple times before having a chance Temporary Protection Visa, and the concur- In order to stay in Australia past the expiry of TPVs and SHEVs is also a barrier to one’s to attain a permanent visa that could provide rent introduction of a realistic pathway their visa, holders of TPVs must either apply ability to expand their social networks,45 a pathway for family reunion, it could be to family reunification would be pivotal to and be granted a TPV again,32 or apply for which is a key factor determining one’s many years before LC refugees are given the the long term empowerment of refugees in and be granted a SHEV.33 This would require chances to pursue higher skilled and higher chance to live with their family again. their journey of ‘realis[ing] their potential’ an assessment of the applicant’s protection paying jobs. and becoming ‘contributing members of claims which would involve them once again The lack of certainty inhibits refugees’ iv The way forward Australian society’.60 proving that they meet the definition of a ability to ‘plan for the future’ and escalates refugee under s 5H,34 in light of more recent socio-economic disadvantage and psycho- TPVs were last abolished in 2008 under the v Conclusion information about their country of origin. logical issues which would actually add Rudd Government which viewed them as Philip Ruddock, the architect of the first further pressure on the state and commu- causing suffering amongst refugees and inef- TPVs and SHEVs amount to a punitive iteration of TPVs,35 was initially opposed to nity groups.46 Overall, temporary protection fectual in stemming the influx of boats.53 TPV measure against refugees by subject- Hanson’s proposal for a blanket replacement status, combined with the adverse mental holders were transitioned to a permanent ing them to perpetual uncertainty, limiting of the humanitarian program with tempo- health issues of refugees and asylum seekers counterpart.54 The main method of alleviat- upward social mobility, maintaining their rary visas for all refugees, stating that it was can ‘hinder their socio-economic integra- ing some of the structural disadvantages and long-term separation from their families, unconscionable, ‘totally unacceptable’ and tion’,47 and place them at risk of isolation and difficulties faced by LC refugees is to transi- and cultivating a risk of ongoing isolation. would lead to uncertainty for refugees.36 financial stagnation. tion them to a form of permanent residency These are factors which would have to be Reapplication for protection can place given that the difficulties they faced were endured in conjunction with a given refugee’s a refugee in limbo and act as an imped- Family reunion magnified, when compared with the holders existing trauma and fear of being returned iment to one’s ability to start afresh and to People classified as ‘Illegal Maritime Arriv- of the onshore Protection Visa (subclass to the source of their persecution. Further- attain a sense of stability as a result of the als’ would need to hold a permanent visa 866) based on key indicators such as mental more, the permanent and temporary protec- temporary protection system giving rise to in order to be able to sponsor one or more health and employment prospects.55 Reform tion dichotomy creates an artificial divide an ever-present risk of being denied a subse- family members to arrive to Australia under may involve expanding the eligible class of between plane arrivals and boat arrivals by quent visa.37 Aside from existing psychologi- Direction 80 cl 8(1)(g),48 a Ministerial Direc- persons for the 866 visa to include LC appli- requiring similar standards to be met for an cal impairments stemming from experiences tion signed by Minister for Immigration, cants, in combination with exempting LC assessment of eligibility, with punitive effects of persecution or of fleeing their homes, refu- Citizenship and Multicultural Affairs, David refugees and people seeking asylum from on the latter who simultaneously possess gees granted temporary protection, when Coleman, which dealt with matters includ- the caps set under s 39 of the Migration Act greater vulnerabilities and have relatively compared to those who have permanent ing but not limited to, the possibility of family for the 866 visa in order to facilitate a tran- high rates of meritorious claims. It is impera- protection status, have higher rates of PTSD reunification by way of visa holders being sition from temporary to permanent protec- tive that the possible means of transitioning and other mental health conditions.38 The LC able to bring family members to Australia tion. An alternative may involve the creation temporary protection recipients and appli- refugees’ temporary status is a causal factor from another country. As a result, holders of of a new visa for LC refugees upon further cants to permanent protection are explored, for greater rates and seriousness of their TPVs and SHEVs are precluded from being consultation with key stakeholders such as and that the implementation of such a mental and functional impairment.39 eligible for family reunification. Given the the Migration Institute of Australia and migra- change is expedited, lest we prolong the pain One may be able to transition from a state of perpetual limbo in which LC refugees tion agents in general, relevant community of those who sought our helping hand in an SHEV to a non-Protection Visa such as a are placed, they may face adverse social and legal centres, and support organisations. hour of need. family or skilled visa,40 provided that during psychological issues,49 which could be exac- There also needs to be a reasonable process the SHEV’s five-year term, the holder worked erbated by limiting refugees’ sense of belong- for permitting LC refugees to access family Sanjay Alapakkam is a third year or studied in a regional area for 3.5 years, ing. Furthermore, s 91WB states that one reunion,56 as the current process, even for Commerce/Law student at UNSW. meets relevant skill requirements and has not cannot apply for a protection merely because Permanent Protection Visa holders does not accessed social security payments for the they are a member of the same family as offer a realistic pathway for family reunion as entirety of their SHEV.41 There may also be someone who has already been granted a it places applicants on an indefinite waiting English language standards, depending on Protection Visa.50 This is also designed to be list. Regardless of the ultimate approach the subsequent visa for which they apply.42 a part of the deterrence model; disincentivis- taken, it is essential, as recommended by

108 Sanjay Alapakkam, A ‘legacy’ of uncertainty Court of Conscience Issue 13, 2019 109 References unauthorised maritime arrival, was mainland-australia-are-economic- 2017) ; About_Parliament/Parliamentary_ Refugees, 19012002: An Annotated Citizenship and Multicultural Affairs 1 Commonwealth, into Australia, and held a visa that Shalailah Medhora, ‘“Nope, Nope, Departments/Parliamentary_Library/ Chronology Based on Official Sources’ (Cth), Direction No 80: Order for Parliamentary Debates, House of was in effect on their last entry into Nope”: Tony Abbott Says Australia pubs/rp/rp1718/Australian_refugee_ (Chronologies Online, Parliamentary Considering and Disposing of Family Representatives, 25 September 2014, Australia, among other requirements. Will Take No Rohingya Refugees’, law_and_policy#_Toc489967337>; Library, Parliament of Australia, 16 Visa Applications Under s47 and 51 of 10545 (Scott Morrison, Minister for 12 Migration Act (n 2) s 5H(1)(a); The Guardian (online, 21 May 2015) Chris Bowen, ‘No Advantage June 2003) 6 ; Klaus Neumann, aph.gov.au/parlInfo/search/display/ Refugeess6>. 50 Migration Act (n 2) ss 36(2) 5AA(1)–(2) (‘Migration Act’) (setting out, to a well-founded fear of persecution, “Queue Jumpers’ and ‘Boat People’: display.w3p;query=Id:%22media/ 36 See Michael Leach, (c), 91WB, cited in Savitri Taylor, inter alia, the meaning of ‘unauthorised is unable or unwilling to return to it’: the Way we Talk About Refugees Began pressrel/2060961%22>. ‘“Disturbing Practices”: Dehumanising ‘Refugee Family Reunion: What Might maritime arrival’). Migration Act (n 2) s 5H(1)(b). in 1977’, The Guardian (online, 5 June 25 Mary Crock and Kate Bones, Asylum Seekers in the Refugee “Crisis” Have Been’ (2018) 43(3) Alternative Law 3 Explanatory Memorandum, 13 Ibid s 5J(1)(a). 2015) . International Law 522, 541; Migration 37 UNHCR, Fact Sheet on the sch 8 item 8570. (Cth) 8, Attachment A 12 (‘Explanatory of Asylum Seeker Transfer to New 20 Don McMaster, Temporary Act (n 2) s 5. Protection Australia’s So-called ‘Legacy 53 Chris Evans, ‘Failed Politics Memorandum Legacy Caseload’). Zealand’, The Guardian (online, Protection Visas: The Bastard Child 26 Explanatory Memorandum Caseload’ Asylum Seekers (Factsheet, and Cheap Politics Offer No Solutions’ 4 Migration and Maritime 16 October 2018) . parlinfo.aph.gov.au/parlInfo/download/ (Resolving the Asylum Legacy oct/16/scott-morrison-raises- Association Conference, 29 September Amendment (Miscellaneous Measures) 38 Shakeh Momartin et al, media/pressrel/WGVW6/upload_binary/ Caseload) Act 2014 (Cth) (‘Legacy prospect-of-asylum-seeker-transfer- – 1 October 2004) 5 ; Alex Reilly, ‘How aph.gov.au/parlInfo/download/media/ 28 Stephanie Borys, ‘Peter of Refugees with Temporary Versus pdf#search=%22media/pressrel/WGV 25 September 2014 (n 1) 10545 (Scott the Next Australian Government Can pressrel/US1F6/upload_binary/us1f63. Dutton Says Boat Arrivals Will Permanent Protection Visas’ (2006) W6%22> cited in Phillips, ‘A Morrison, Minister for Immigration and Balance Security and Compassion for pdf;fileType=application%2Fpdf#search Rise Following Court Decision 185(7) Medical Journal of Australia 357, Comparison of Coalition and Labor Border Protection). Asylum Seekers’, The Conversation =%22media/pressrel/US1F6%22>. on Medevac’, ABC News (online, 360; See also Jane McAdam and Fiona Government Asylum Policies in 5 See Migration Act (n 2) (online, 5 March 2019) . Experts (NewSouth Publishing, 2019). 55 McMahon (n 43) 13. sch 2 pts 785, 790. security-and-compassion-for-asylum- Caseload: Report on Processing Status 29 Home Affairs Legislation 39 Momartin (n 38) 359. 56 UNHCR (n 37) 5. 7 Pauline Hanson’s One seekers-110713>. and Outcomes (Report, May 2019) 5 Amendment (Miscellaneous Measures) 40 Parliamentary Debates 25 57 Kaldor Centre for Nation, Immigration, Population and 16 Heba Kassoua, ‘“Clear . under s 198E(2)(a) as a person who is (c); Migration Regulations (n 32) reg Refugee Policy (Report, 14 June 2019) 8 Janet Phillips, ‘Temporary Says’, SBS Arabic24 (online, 26 23 ‘The introduction of TPVs either in a regional processing country 2.06AAB(2) cited in Crock and Bones (n 13 (‘Kaldor Centre www.aph.gov.au/binaries/library/ chinese-nationals-who-arrive-air-are- people from making dangerous of ‘relevant transitory person’ prevents reg 2.06AAB(1). Principles’). pubs/rn/2003-04/04rn51.pdf>; Linda most-nationalities-who-seek>. voyages (by boat) to Australia.’: those attempting to reach Australia 43 Tadgh McMahon, Working 58 Immigration, Refugees Briskman, Susie Latham and Chris 17 Adrienne Millbank, ‘Boat Explanatory Memorandum Legacy by an unauthorised maritime vessel it Out: A Rapid Review of the Evidence and Citizenship, ‘Claiming Asylum in Goddard, Human Rights Overboard: People, Illegal Migration and Asylum Caseload (n 3) 6. See also ‘Our Plan following the commencement of this Around Employment Among Refugees Canada – What Happens’ Government Seeking Asylum in Australia (Scribe Seekers: In Perspective’ (Current Issues to Protect Our Borders to Keep Act, from being able to rely on this and Temporary Protection Visa Holders of Canada (Web Page, 11 April Publications, 2008) 61–2. Brief No 13, Parliamentary Library, Australians Safe’, Liberal Party of legislation as a pathway to being in the Australian Labour Market 2019) ; Rosie 30 See Harriet Spinks, ‘Boat 44 Ibid. incanadawhathappens.html>. Protection Visas’ (Press Release, Parliamentary_Library/Publications_ Lewis, ‘Morrison Turns Up Heat on “Turnbacks” in Australia: A Quick 45 Ibid 14. 59 Immigration and Refugee 13 May 2008) 1 ; ibid. ALP’s Border Policy’, The Australian Guide to the Statistics Since 2001’ 46 William Maley, ‘Refugee Protection Regulations, SOR/2002-227, aph.gov.au/parlInfo/search/display/ 18 Convention Relating to (online, 14 January 2019) ; Janet Phillips, signature 28 July 1951, 189 UNTS 137 morrison-takes-the-attack-to-shorten- of Australia, 20 July 2018) . library/prspub/5351070/upload_ and Godfried Engbersen, ‘The Impor- (Web Page, 19 June 2019) . tance of Resources and Security in the www.canada.ca/en/immigration- Series 2016–17, Parliamentary Library, signature 31 January 1967, 606 UNTS Janet Phillips and Harriet Spinks, 31 Refugees Convention (n 18) Socio-Economic Integration of Refu- refugees-citizenship/corporate/ Parliament of Australia, 2 February 267 (entered into force 4 October ‘Boat Arrivals in Australia Since 1976’ art 31(1); Crock and Bones (n 25) 542 gees. A Study on the Impact of Length publications-manuals/operational- 2017) 12 . pubs/rp/rp1314/AsylumPolicies> Enterprise Visas (SHEV)’, Kaldor parliament/parliamentary_departments/ Regulations’). Groups in the Netherlands’ (2014) 15(3) 60 Kaldor Centre Principles (‘Comparison of Coalition and Labor Centre for International Refugee Law parliamentary_library/pubs/rp/rp1314/ 33 Ibid sch 1 pt 1404(3). Journal of International Migration and (n 57) 23 (emphasis added). Government Asylum Policies’). (Factsheet, April 2019) 3 ; 34 Migration Act (n 2) s 5H. Integration 431, 436. 10 Legacy Caseload Act (n 4) kaldorcentre.unsw.edu.au/publication/ Phillips, ‘Comparison of Coalition and sch 2 pt 785. temporary-protection-visas>. Labor Government Asylum Policies’ 11 The subclass 866 visa falls 19 See Fergus Hunter, ‘Scott (n 9); Elibritt Karlsen and Janet under the broader category of Class Morrison Claims Asylum Seekers Brought Phillips, ‘Developments in Australian XA visas as defined by the Migration to Mainland Australia are Economic Refugee Law and Policy: the Abbott Regulations 1994 (Cth) cl 2.01 item 2. Migrants’, Sydney Morning Herald and Turnbull Coalition Governments According to cl 1401(3) an application (online, 28 July 2014)

110 Sanjay Alapakkam, A ‘legacy’ of uncertainty Court of Conscience Issue 13, 2019 111 Reimagining the reform statutory for need The protection response to irregular maritime arrivals A principle-based regulation with a human security approach

Jeswynn Yogaratnam

i Introduction thorised maritime arrivals’ and more recently Asylum seeker Raj from Sri Lanka. ‘illegal immigrants’.4 I find these terms inappro- Manus Island, 28 November 2017 History does not repeat itself, priate and will proceed to use the term ‘irregu- (AAP Image/Supplied by World Vision/ 1 Nick Ralph) but it does rhyme. lar arrivals’ throughout this paper. Mark Twain When I visited the APOD, I recall that those who arrived by boat were identified by In 2013 I visited a place called the Darwin their boat registration number. I was granted Lodge or also known as an Alternative Place access to visit a Rohingya family based on of Detention (‘APOD’). This is a place of deten- a social visitation policy at the time. When tion located onshore in Darwin, Australia. The the family arrived at the reception hall of the reason I am referring to the APOD is because it APOD, they interacted with each other in sets the scene to the human security concerns, Bahasa Malaysia. I noted that they must have from onshore to offshore processing centres, been in transit in Malaysia for a few years. of many asylum seekers who choose to arrive This is because when I visited Malaysia peri- in Australia in an unregulated way. odically, I met with Rohingya families similar According to a report by the Australian to the ADOP family. These families alleged Human Rights Commission, the APOD was being persecuted in Myanmar. Some of used to detain unaccompanied minors and the families who fled to Malaysia registered families with children who were mostly irregu- their refugee status determination (‘RSD’) lar maritime arrivals attempting to seek asylum application with the local United Nations in Australia.2 The term ‘irregular maritime High Commissioner for Refugees (‘UNHCR’) arrivals’ in this paper refers to a non-citizen office. However, the significant waiting period or an ‘unlawful non-citizen’ under s 46A(1) of and Malaysia being a non- Refugee Conven- the Migration Act 1958 (Cth) (‘Migration Act’) tion5 state meant that many of the Rohingya who seeks asylum in Australia after 12 August were in a state of indefinite transit. Over time, 2012.3 In Australia this classification of people they became proficient in the local language. seeking asylum has been referred to as ‘unau- The uncertainty of the RSD outcome and

Court of Conscience Issue 13, 2019 113 opportunities to resettle in a state that is a mental health trap.8 As such, we need to call no longer viable to maintain the status quo In the case of the Australian Govern- signatory to the Refugee Convention led it out for what it is. It is human security at on protection obligations for those affected ment’s offshore regional processing arrange- some Rohingya to make arrangements with crisis perpetuated by rule-based regulations by forced migration.12 The note of caution ments, the evidence-base informs us that the people smugglers. These arrangements that are failing to protect the human security by Volker Türk can equally be applied to the regional processing centres have presented were for the purposes of making their way needs of irregular arrivals. Simply put, rule- status quo of human security concerns faced irregular arrivals with insurmountable to Refugee Convention signatory states like based regulations are a prescriptive way by irregular arrivals who are kept in detention. psychological harm and other health security Australia and New Zealand. of regulating whereas principle-based regu- It is also no longer viable. Triggs emphasised concerns.18 The recent Home Affairs Legis- During my visit to the APOD, I gained lations are normative in nature. The former that it is critical to remember in this context lation Amendment (Miscellaneous Measures) more out of the social visit than expected. This can be a set of rigid rules whereas the latter that ‘these aren’t statistics and they’re not Act 2019 (Cth) (commonly referred to as the was partly because we conversed in Bahasa may be based on dynamic principles that just legal principles or abstract ideas ... ‘Medevac’ law) highlights the consequences Malaysia and did not need an interpreter. have a flexible approach taking into account You’re actually dealing with human beings.’13 of placing irregular arrivals in places where I believe this direct form of communication put responsiveness and priorities. Triggs states that ‘it’s almost in our DNA in health security is not at par with Australian them at ease and lifted the inhibitions about the The example below by Burgemeestre, Australia to react negatively to those who standards.19 Indeed, the Medevac law is a purpose of my social visit. My observation at Hulstijn and Tan illustrates the difference arrive in the country in a way that the Govern- way forward in attempting to expedite trans- the end of the meeting was that, for the family, between rule-based regulations and princi- ment describes as illegal.’14 She noted that fers of irregular arrivals to mainland Austra- speaking freely about their life in the Rakhine ple-based regulations: ‘the idea that our borders are insecure goes lia to respond to the health risks of those State of Myanmar prior to the alleged perse- Rule-based regulation prescribes in detail to the very heart of Australians’ sense of our transferred to Nauru or Manus Island. But cution and during the alleged fear from perse- how to behave: ‘On Dutch highways the own security and our own nationhood’.15 as a rule-based regulation it presents similar cution, had therapeutic value, if not a tempo- speed limit is 120 km/hour’. In princi- It is my opinion that the human secu- challenges to other immigration rules. It is rary relief from an emotional burden they often ple-based regulation norms are formu- rity approach responds to the observation weighed down by layers of discretionary suffer in silence with. Their grim nervous look lated as guidelines; the exact implementa- by Triggs when it comes to treating irregular administrative decision-making processes to at the beginning of our meeting turned to broad tion is left to the subject of the norm: ‘Drive arrivals like human beings. This is because the point that, at first instance, the Minister of smiles at the end of our one-hour of social responsibly when it is snowing’.9 the human security approach addresses the Home Affairs can exercise ministerial powers engagement. They talked about their human vulnerability of the individual and may facilitate to overturn the decision of the doctors. security while they were in detention and when The human security concerns of the Rohingya a therapeutic and trauma-informed response Although the Medevac law provides for a fleeing from persecution in Myanmar. For the family and the principle-based regulatory when making policy for irregular arrivals. specialist panel to review the decision of the purposes of this paper, human security refers approach are central to the ‘reimagining’ of an In addition, the human security approach Minister that circumvents the court process, to factors that have an impact on the safety alternative way forward. The first part of the may also expose the common national secu- the whole administrative review process and vulnerability of irregular arrivals while in article explains the ‘reimagining’ of the protec- rity and border security crisis to be in fact a could delay the urgency of the request by up detention onshore in Australia and offshore in tion approach to irregular arrivals based on the crisis of the ruling political community. This to ten days for a transfer to take place after regional processing centres.6 To the Rohingya concept of human security. The second part was noted by Bilgic in the European context, the panel has reviewed the matter.20 The delay family, their human security while in detention explains the reason for applying the human where irregular arrivals are synonymised can exacerbate the health condition of the was about their right to access healthcare, security concept when dealing with irregular with notions of national security or border patient who urgently requires medical treat- the right to education for their children, their arrivals. The third part qualifies the concept by security crisis.16 The lack of solidarity, the ment not available at the regional processing personal security, the security of their commu- reference to the scholarship of Taylor Owen.10 fear-mongering about irregular arrivals, the jurisdiction. This could lead to the Medevac nity within a detention setting, their right to The final part is a summary to an interdisciplin- panic on the scourge of people smuggling legislation failing to achieve its intended work and their right to culture (for example ary analysis that explains the operationalisa- and the call for more rule-based regulations purpose, that is, to expedite transfers based language, dietary preferences, dress code, tion of the concept through John Braithwaite’s draws political solidarity further away from on medical opinions. The argument here is and significant cultural calendar events). Their theory of principle-based regulation.11 It practical responsibility-sharing solutions as not about the merit of Medevac law but the dream was to be granted refugee status and explains the need for a dynamic approach as part of domestic, regional and international regulatory regime in which it operates, that resettle in Australia. opposed to a rigid rule-based prescription cooperation. As a result, it enables the ruling is, a rule-based regulatory approach. Having The story signifies that even if history when responding to the human security needs political community, for example in Austra- said that, anecdotal evidence from certain does not repeat itself in the way in which of irregular arrivals. The article sets out a high- lia, to fall into a state of disconnect with the not-for-profit organisations involved in the people may choose to seek asylum, it does level interdisciplinary study on the intersection human security needs of irregular arrivals. referral of patients from the regional process- rhyme with the consequences of seeking of political science on human security with The disconnect leads to commitments that ing centres acknowledge that most decisions asylum in an ‘unregulated’ way: the conse- immigration law and policy in Australia in rela- implement ‘hard-headed’ measures similar to by doctors are not challenged and where it is quence being that asylum seekers are forced tion to irregular arrivals in detention onshore those found in Operation Sovereign Borders, called for review, the decision of the indepen- to seek refuge from ‘refuge’. The place of and offshore. exacerbating the need for asylum seekers to dent panel is usually adhered to. refuge, that is, a Refugee Convention state, seek refuge from ‘refuge’.17 This observation The recent laudable decision by the becomes a reason to seek an alternative ii The untenable status quo does not displace the importance of state Federal Court of Australia in CCA19 v place of refuge because of their human secu- compels a need to ‘reimagine’ sovereignty and the security of the state, but Secretary, Department of Home Affairs21 rity concerns. The prolonged, and in some protection approaches instead highlights the need to embed a form (the ‘Medevac case’) demonstrates that the cases indefinite lengths of time in detention of principle-based regulation that works in courts are willing to uphold the Medevac in regional processing centres, transforms Volker Türk noted that we have reached a tandem with state sovereignty and national law by looking at the intent and purpose of their deemed ‘safe’7 place of refuge to a scale of such global significance that it is security concerns. the law, as well as allowing for assessment

114 Jeswynn Yogaratnam, Reimagining the protection response to irregular maritime arrivals Court of Conscience Issue 13, 2019 115 by doctors, even remotely. But the process cipal focus is on people both as individuals of undergoing such a legal challenge under- and as communal groups. It is security-ori- mines the purpose of transfers under the law ented in that ‘the focus is on freedom from as the focus on legal-administrative techni- fear, danger and threat.’27 Simply put, human calities simply adds to the delays. Further- security ‘is a response to the urge to know more, the decision has led to lobbying by the what one should care about, what is in one’s current Home Affairs Minister, Peter Dutton, power to do, and what crises are looming.’28 to repeal the Medevac law.22 The act of the For the purposes of this article, it sets the government repealing laws that have been premise on the relevance of human security upheld by the courts for the benefit of irregu- to policymakers on matters relating to irreg- lar arrivals is well precedented. One example ular arrivals. For example, in the case of the is the High Court case commonly referred death of Hamid Khazaei that occurred while to as the Malaysian Solution Case,23 where being detained at Manus Island in 2014, it the majority upheld the need for the Minister was reported that the coroner found ‘signif- to consider the ‘relevant human rights stan- icant flaws’ in the process of getting Mr dards’ before the asylum seekers were trans- Khazaei off Manus Island, including a ‘lack ferred to another jurisdiction for offshore of a documented approval process that immigration processing. After the decision, resulted in a missed opportunity to transfer the Government repealed the then s 198(A) him on a commercial flight to Port Moresby (3)(a)(iv) of the Migration Act. That section on 25 August’. set out the relevant human rights standards In that case, an urgent transfer request that a Minister needs to consider in the deci- from a doctor did not proceed as expected. sion-making process when declaring the Instead, an immigration official queried the transfer of irregular arrivals to an offshore decision and asked to clarify the reason jurisdiction. The point being, we need an medication could not be sent to the detention alternative approach that does not dwell on centre. The immigration officer then referred rule-based regulations but instead priori- the request to a superior who did not read tises a principle-based regulatory response, the referral until the next day. By then, Mr especially when dealing with human security Khazaei’s condition had ‘deteriorated signifi- Still image from Simon Kurian’s needs of asylum seekers. cantly’ and doctors advised that his transfer documentary, ‘Stop the Boats’. was ‘very urgent’.29 Manus Island (Simon Kurian) iii Why the human security approach? In such a case, dealing with physical and mental health risks could have been Ogata noted that ‘the concept of human avoided if the inclusion of principles regu- security presents a useful entry point to the lating human security on healthcare policy central issue of security of the people because was core to the policymaking when transfer- by focusing on the people who are the very ring asylum seekers offshore. It may shift the victims of today’s security threats, you come zero-sum game of the Operation Sovereign closer to identifying their protective needs’.24 Borders policy that attempts to offset the This form of assessment of security reveals detriment suffered by irregular arrivals trans- the ‘social, economic and political factors that ferred offshore with the benefit gained by promote or endanger their security’.25 While the Australian Government from zero boats Ogata’s observations refer to people who arriving in Australia. A principle-based regu- are displaced due to internal conflicts within lation grounded by medical opinions should the state, the statement resonates to the lack determine the next cause of action. Evidently, of attention given to human security assess- the rule-based regulation causes delays, ment of the socio-economic conditions that not only because of the bulwark of bureau- affect the lives of irregular arrivals, especially cracy involved but also due to the self-con- in offshore regional processing centres. This flicted exercise of ministerial discretion. is because if such an assessment was carried This self-conflict arises out of two primary out, it may be that the regional processing reasons: one, to avoid disparaging remarks centres in Nauru and Manus Island be deemed of the local healthcare system in the regional unsuitable for the irregular arrivals. 26 processing jurisdiction as part of state diplo- In a summary, the human security macy; and two, to maintain the impression approach is ‘human-centred’ in that its prin- that the regional processing regime works.

Court of Conscience Issue 13, 2019 117 iv The proposed human security approach v Enabling human security to be track regulatory mechanism or a bypass from of the independent panel. The benefits of such operationalised through principle- rule-based regulations requiring ministerial an independent body will not only depoliti- A snapshot to the human security based regulation approval. Instead, the next cause of action is cise the decision-making process but uphold approach by Owen predicated by the responsible entity making the fundamental principles regulating the Owen explains human security to be the Why principle-based regulation? a decision based on: one, the principle on the professional body responsible for conducting ‘protection of the vital core of all human lives Braithwaite highlights that ‘[t]he big problems patient’s best interests; and two, the sever- medical assessments and making the medical from critical and pervasive environmental, facing states would require creative regula- ity to human security in question assessed. recommendations. Such decision-making economic, food health and political threats.’30 tory solutions.’35 There is no doubt that the Both assessments are made based on guide- enables principles from the ethical norms on He explains that ‘critical’ attaches ‘urgency’ offshore regional processing policy is a big lines or protocols that govern the profes- the best interest of the patient within the codes, to the concept, that ‘pervasive’ attaches problem for Australia. As such, we need to sional body of the responsible entity. This guidelines and policies by the Medical Board ‘scale’ and that ‘vital core’ attaches ‘survival’ look for creative regulatory solutions because means that the response to human security of Australia to be part of the broader regional to the definition.31 Therefore, any type of harm as Braithwaite observed when referring to needs will no longer require authorisation processing risk management policy on health has the possibility of being a human security rule-based regulations: from a government minister. Instead, the security of irregular arrivals.39 threat but it does not become an insecu- …traditions of excellence within the body that governs the security in question rity unless it has an objectively determined disciplines were narrowing their capac- will have authority to make the responsive vi Conclusion degree of urgency and is of a wide scale that ity to deliver creative solutions to these decision. Regarding the Medevac case, the threatens the life of the individual. big problems. If these creative solutions Kaldor Centre for International Refugee Law This article sets out the essence of reimagining Owen’s approach suggests that the were to have a chance of arriving, regu- succinctly describes the high level process the protection approaches applying the human severity ‘bar’ should be set as a political line, lation could not continue to be thought and structure as follows: security approach through a principle-based meaning that international organisations, as an inelastic thing of law. Rather it An independent Medical Evacuation regulation. It is important to note that this national governments, experts and NGOs had to be seen as a multilevel dynamic Response Team [‘MER’] has been estab- paper is part of a broader theme under the UN would determine what would be included as process in which many actors play a part lished to oversee the triage of people in Global Compact on Refugees 2018 (‘GCR’). a human security threat at a given time in a and have varying capacities and means offshore processing countries who are Much of the reimagining of human security particular region.32 Therefore, the boundaries of intervention.36 in need of medical treatment. The group within the regional processing centres can are determined by political priority, capa- is composed of a number of non-gov- be extended to the proposals for international bility and will. This means that the primary Braithwaite’s regulatory theory which is ernmental organisations, who will work cooperation outlined in the GCR. The parallels responsibility for ensuring human security based on responsiveness places an ‘empha- directly with medical professionals. It to the people-centred40 as part of the human falls on the national government. However, sis on flexibility and the complementarity of also includes caseworkers, counsellors security concept and the GCR make the reim- Owen cautions that ‘if threats crossing the regulatory instruments rather than following and lawyers.38 aging outlined in this paper a plausible way human security threshold are caused by the a preset sequence of responses.’37 Based on forward in the spirit of Trigg’s reminder that we Government or if the Government are unable the earlier discussion of the Medevac law, it While the current position of the Medevac law are dealing human beings.41 to protect against them, the international appears that the Medevac law operates on would still require the MER to gain approval community should act.’33 a preset sequence of responses, from the from the Minister, the principle-based regula- Jeswynn Yogaratnam is a PhD Owen analyses human security from opinion of the two medical doctors to the tory approach would not. It does not require candidate at the Australian National University with an interdisciplinary the perspective of a threshold-based defini- administrative processes involved. This may amending the Medevac law but instead draft- research focus in international tion, based on severity. According to Owen, affect the efficiency of responsiveness when ing the operational policy framework from the refugee law, political science and human security can be both analytically dealing with cases of urgency and severity. provisions that currently authorises the powers regulatory theory. useful and relevant to policy if the thresh- old-based definition of human security is How can the principle-based applied. The importance of this approach regulation be operationalised? References 4 Australian Human Rights 7 On the issue of a ‘safe’ is that it looks at the consequence while The short answer to this question is to attach Commission, 2010 Immigration place, reference can be made to s 74 34 1 A quote attributed to Detention in Darwin (Report, 2010) of the Maritime Powers Act 2013 (Cth) paying attention to the cause. The chal- principle-based regulations to the rules or Samuel Clemens also known as . Protection & Anor [2015] HCA 1, 51-53. Rhymes’, Huffington Post (online, 5 Convention Relating to This case dealt with issues relating to that this challenge can be addressed by a to the human security in question. The 19 January 2017) . 1954) read together with the Protocol them to a ‘safe’ place. on setting guidelines on severity is out of ble entity regulating the human security in 2 Irregular arrivals include Relating to the Status of Refugees, 8 In June 2017, the Supreme scope for purposes of this paper but suffice question takes a responsive approach and those who have been either opened for signature 31 January Court of Victoria approved a $70 to say that the Hamid Khazaie case is worth applies the fast-track regulatory mechanism. apprehended and detained by the 1967, 606 UNTS 267 (entered into million settlement in the Manus Island Australian maritime authority when their force 4 October 1967) (‘Refugee class action against the Australian examining as a case study when developing For example, in the Medevac case, once the vessel was interdicted at sea within the Convention’). Government. The class action guidelines that deal with health and medical responsible entity from the Medical Evacua- contiguous zone or apprehended at any 6 Jeswynn Yogaratnam, represented 1,923 detainees who needs as a part of the human security policy tion Response Team decides to transfer the of the migration excised zones under ‘A People-Centred Refugee Approach: were detained at Manus Island the s 5 of the Migration Act 1958 (Cth). Revisiting UNDP’s Human Security Detention Centre. The allegations in for irregular arrivals at offshore regional patient from the regional processing country 3 Migration Act 1958 (Cth) s Concept’ (2017) 11 UNSW Law Society the class action were, inter alia, that processing centres. to Australia, the decision authorises a fast- 46A(1) (‘Migration Act’). Court of Conscience 58, 62. detainees suffered serious physical

118 Jeswynn Yogaratnam, Reimagining the protection response to irregular maritime arrivals Court of Conscience Issue 13, 2019 119 and psychological injuries as a result of on Asylum Seekers in August 2012 Subsequently, the Australian Newman and Joanne van Selm (eds), 39 See also ‘Codes, Guidelines College of Physicians. DEHAG was the conditions in which they were held also known as a the Houston Report Government repealed, inter alia, the Refugees and Forced Displacement: and Policies’, Medical Board of tasked with advising the immigration at the Manus Island Detention Centre: — see Angus Houston, Paris Aristotle provisions of the Migration Act which International Security, Human Australia (Web Page, 1 August 2019) department about health and mental ‘Manus Island Detention Centre Class and Michael L’Estrange, Expert Panel the majority relied on, in particular Vulnerability, and the State (United . Note in detention. It was eventually Page, 6 September 2017) . Seekers (Report, August 2012); Peter decision-making process. See Plaintiff Applications (Australian National Advisory Group (‘DEHAG’). DEHAG of detainees and the poor access to 9 Brigitte Burgemeestre, Billings, ‘Irregular Maritime Migration M70/201 (n 23). See also Kate Ogg, ‘A University Press, 2017) 117, xxviii. comprised of representatives of the health care services. Although DEHAG Joris Hulstijn and Yao-Hua Tan, and the Pacific Solution Mark II: Sometimes Dangerous Convergence: 36 Ibid. Australian Psychological Society, was an independent entity it was ‘Rule-Based versus Principle-Based Back to the Future for Refugee Law Refugee Law, Human Rights Law and 37 Ibid xxxii. Royal Australian College of General operating under an immigration rule- Regulatory Compliance’ (Conference and Policy in Australia?’ (2013) 20 the Meaning of ‘Effective Protection’’ 38 Kaldor Centre for Practitioners, Royal Australian and based regulatory model which caused Paper, Legal Knowledge and International Journal on Minority and (2013) 12 Macquarie Law Journal 109. International Refugee Law, ‘The New Zealand College of Psychiatrists, the tension when the professional Information Systems JURIX 2009: Legal Group Rights 279. 27 Ramesh Thakur and Edward Medevac Law: Medical Transfers Australian Medical Association, Royal bodies were applying the principle that Knowledge and Information Systems,16 18 Ibid 8. See also the decision Newman, ‘Introduction: Non-Traditional from Offshore Processing to Australia’ College of Nursing Australia, Federation governed their professional bodies December 2009). of the Supreme Court of Justice of Security in Asia’, in Ramesh Thakur (Factsheet, 5 March 2019) . paediatrician from the Royal Australian a Proposal for a Threshold-Based Affairs and Immigrations (SC1497, SCA Perspectives (United Nations University Definition’ (2004) 35(3) Security No 84 of 2013) that led to the order to Press, 2004) 1, 4. Dialogue 373. close down the Manus Island Detention 28 Ibid 52. 11 John Braithwaite, ‘Types Centre. 29 Asylum seeker Hamid of Responsiveness’ in Peter Drahos 19 The Medevac legislation Khazaei contracted a leg infection in (ed), Regulatory Theory: Foundations enables the non-citizen in the regional the Manus Island detention centre and Applications (Australian National processing country to be transferred to and was declared brain dead within a University Press, 2017) 117. Australia if the transfer is recommended fortnight. He died after series of clinical 12 Volker Türk, ‘Prospects for by two treating doctors who share the errors and delays, including a lack of Responsibility Sharing in the Refugee opinion that the transfer is necessary antibiotics and a doctor’s request for an Context’ (2016) 4(3) Journal on because of the need for treatment or urgent transfer denied by immigration Migration and Human Security 45, 46. further assessment. official. Coroner found the Government 13 Jane Hutcheon, ‘Gillian 20 Note that the Minister had not met its responsibility to provide Triggs Says She’s Been ‘Radicalised’ in reserves the right to veto the decision comparable health care to Australian the Job as Human Rights Commission to transfer a patient to Australia standards, with the Manus Island clinic President’, ABC News (online, 23 on security grounds and this is not below benchmark: Josh Robertson, June 2017) . reasonably believes the person would (online, 30 July 2018) . Security Perspective on Migration: 22 ‘Dutton ready to repeal 30 Taylor Owen, ‘Human A Compass in the Perfect Storm’ asylum seeker medevac laws’, SBS Security: Conflict, Critique and (Inaugural lecture Prince Claus Chair in News (online, 3 July 2019) . Dialogue 373, 382, citing Commission 5, citing Nicholas De Genova, ‘The 23 Plaintiff M106/2011 by his on Human Security, Human Security – Border of Europe and the European litigation Guardian, Plaintiff M70/2011 v Now (Final Report, 2002). Question’ in Nicholas De Genova (ed), Minister of Immigration and Citizenship 31 Taylor Owen, ‘The Uncertain The Borders of “Europe”: Autonomy of [2011] HCA 32 (‘Plaintiff M70/2011’). Future of Human Security in the Migration, Tactics of Bordering (Duke See also Kate Ogg, ‘A Sometimes UN’ (2008) 59(1) International Social University Press, 2017) 1. Dangerous Convergence: Refugee Law, Science Journal 113, 127 . Morrison when he was the then 24 Sadako Ogata, ‘State 32 Ibid. Minister of Immigration and Border Security – Human Security’ (Fridjof 33 Ibid. Security. It is a paramilitary border Nansen Memorial Lecture, UN House, 34 Note, critics like Roland security operation that commenced Tokyo, 12 December 2001) 10 . also states that ‘one possible remedy and border protection. The operation 25 Ibid. for the expansiveness and vagueness is setup with the objectives of, inter 26 An assessment process of human security is to redefine alia, turning back boats en route to was part of the transfer assessment the concept in much narrower and Australia with people attempting to requirement in the past. In the more precise terms, so that it might seek asylum in an unregulated way; Malaysian Solution Case the majority offer a better guide for research and increasing the capacity of off-shore upheld the need for the Minister to and policymaking’: Roland Paris, processing centres. It was a response consider the relevant human rights ‘Paradigm Shift or Hot Air?’ (2001) to the increase of boat arrivals at the standards before the irregular arrivals 26(2) International Security 87. See time. The policy was implemented are transferred to another jurisdiction also Astri Suhrke, ‘Human Security and following the Report of the Expert Panel for offshore immigration processing. the Protection of Refugees’ in Edward

120 Jeswynn Yogaratnam, Reimagining the protection response to irregular maritime arrivals Court of Conscience Issue 13, 2019 121 Court of Conscience Issue 13, October 2019

Boats and borders: Australia’s response to refugees and asylum seekers

ISSN 1839-7204

Editor-in-Chief Jacob Lancaster

Managing Editors Beatriz Linsao Phoebe Saxon Michael Tanazefti Katharine Tang

Editors Sagang Chung Annabel Rigby Calum Brunton Glenda Foo Drew Gillespie Rachel Hurwitz Melanie Ling Cherry Tang Marie Veinberg Lea Voss Brian Wu

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Design Alexander Tanazefti

Court of Conscience is published annually by the UNSW Law Society unswlawsoc.org

Note: The images featured in this publication were selected by the Editorial Team and not the authors. No opinion should be attributed to the authors in respect of these images or their use. Court of Conscience Issue 13, 2019

Boats and borders: Australia’s response to refugees and asylum seekers