Court of Conscience Issue 13, 2019 Boats and borders: Australia’s response to refugees and asylum seekers Front cover: Iranian-Kurdish asylum seeker 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) 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. Editorial team
Jacob Lancaster Calum Brunton Brian Wu 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 he was 10 and reading the New York Michael Tanazefti Times since he was in Year 10. Managing Editor Michael Tanazefti is a fifth year Arts/ Rachel Hurwitz Law student. He takes pride in the Editor 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 that a future career in law may change watching true crime shows almost that. In his spare time he enjoys as much as she loves exploring debating the usefulness of the oxford new cities. comma, and catching up on sleep. Melanie Ling Katharine Tang Editor 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 with digital art, watching esports, and of lengthy rail journeys. She pays binging on ice cream. When she is not particular attention to pit stops and doing those things, she is probably trains bearing fancy names. running around the house annoying her dogs. Cherry Tang Editor Sagang Chung Cherry Tang is a third year Criminology/ Editor and Social Media Strategist Law student who doesn’t judge people Sagang Chung is a final year based on race, age or gender, but on Juris Doctor student. When she spelling, grammar and punctuation. isn’t studying, she is an avid food photographer. She manages an Marie Veinberg Instagram food account showcasing Editor Sydney’s vibrant and diverse food Marie Veinberg is a third year Science/ scene. Law student that lives in fear of AI’s inevitable takeover, and yet, is willing to 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. International Studies/Law student who is thrilled by the fact that her Lea Voss compulsive perfectionist qualities Editor have finally become a subject of Lea-Theresa Voss is a Master of praise rather than collective sighs and Laws student all the way from eye-rolls. In her spare time, she enjoys Germany/Austria—she can’t decide colour-coordinating her study notes which she identifies with more. She and crafting aesthetically pleasing hopes to work in international law poké bowls. before the world overheats. Contents
Introduction Scrutinising government practices
1 Editorial 63 Data quality and the law of refugee Jacob Lancaster protection in Australia 7 A brief primer on Australia’s treatment Regina Jefferies of refugees and asylum seekers 69 The amended secrecy provisions of Court of Conscience Editorial Team the Australian Border Force Act 13 Timeline of Australia’s refugee policies Sophie Whittaker Court of Conscience Editorial Team 77 Deterring asylum seeking in Australia Dr Antje Missbach and Rethinking the popular narrative Assoc Prof Wayne Palmer
19 Whose island home? Tension between the government and Ingrid Matthews and the courts Prof James Arvanitakis 27 Making migration law 85 Strategic litigation, offshore detention Dr Eve Lester and the Medevac Bill 37 Vanquishing asylum seekers from Anna Talbot and Australia’s borders Adj Prof George Newhouse Prof Linda Briskman 91 Reforming judicial review since Tampa 43 Imitation as flattery Jack Zhou Stephen Phillips 97 Rethinking the character power as it relates to refugees and asylum seekers Increasing support to refugees and in Australia asylum seekers Dr Jason Donnelly
51 An asylum seeker’s access to Medicare The need for statutory reform and associated health services while awaiting determination of a Protection 105 A ‘legacy’ of uncertainty Visa application in Australia Sanjay Alapakkam Danielle Munro and Niamh Joyce 113 Reimagining the protection response 57 Community, belonging and the to irregular maritime arrivals irregular migration Jeswynn Yogaratnam 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
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1800 Respect (National Sexual Assault, Domestic Family Violence Counselling Service) Call 1800 737 732 or visit https://www.1800respect.org.au/ Painting by Abbas Alaboudi 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 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. introduced on the same day as the Migration A close reading of each text reveals nuanced Amendment (Repairing Medical Transfers) perspectives covering five areas: ‘Rethinking Bill 2019 (Cth) which, if passed, will remove the Popular Narrative’, ‘Increasing Support to an important medical transfer pathway for Refugees and Asylum Seekers’, ‘Scrutinising asylum seekers in regional processing coun- Government Practices’, ‘Tension Between tries to be transferred to Australia for assess- the Government and the Courts’, and ‘The ment and treatment.10 Need for Statutory Reform’.
Reframing the refugee crisis Rethinking the popular narrative Issue 13, titled ‘Boats and Borders: Austra- The first suite of articles challenges us to lia’s Response to Refugees and Asylum rethink the popular narrative that is propa- Seekers’ attempts to overcome our apathy gated by our politicians and media outlets by humanising these issues, which are about refugees and asylum seekers. In too often framed as distant and removed. ‘Whose Island Home? Art and Australian Our emotional detachment is no accident: Refugee Law’, Ingrid Matthews and Prof the visual framing of refugees in the media James Arvanitakis provide an insightful, as threats to our national sovereignty and structuralist account of British colonialism security has directly led to their dehumani- and Australian coloniality, and extend this sation.11 There are few images which depict narrative to explain the indefinite offshore asylum seekers with clearly recognisable detention of asylum seekers who seek to facial features,12 owing to government poli- enter Australia by boat. cies that prohibit reporters from engaging Dr Eve Lester, in ‘Making Migration with, or photographing the faces of, detain- Law: Courting our Conscience’, instead ties ees.13 Clearly then, the refugee crisis must be the concept of mandatory detention to the reframed — not as a political issue, but as Euro-centric concept of absolute sovereignty a humanitarian one that demands an equally which emerged during the nineteenth century compassionate response.14 as a response to ‘a political and economic This year, Court of Conscience has desire to regulate race and labour’. The encouraged greater activism over this significance of this piece lies in Dr Lester’s problem. For the first time, we published rigorous analysis of government rhetoric weekly brochures on our Facebook page surrounding the Migration Act 1958 (Cth), which canvassed some of the pressing and how it can be used to justify and perpet- problems confronting refugees and asylum uate social constructs that impact those who seekers. We were also fortunate to screen are most vulnerable. Simon Kurian’s critically acclaimed film, In ‘Vanquishing Asylum Seekers from ‘Stop the Boats’, which was followed by a Australia’s Borders: Creating Visibility for panel with the director, Mr Kurian, and two Justice’, Prof Linda Briskman argues that our experts from the Kaldor Centre for Interna- retreat from complying with international treaty tional Refugee Law, Dr Claire Higgins and obligations has ceded space to nationalistic Prof Guy Goodwin-Gill, to whom we are political responses focused on security. In this incredibly grateful. context, the normalisation and enactment of rights denying measures, once considered ii Overview of Issue 13 exceptional, has pushed asylum seekers off the precipice of public consciousness. This Issue begins with two articles prepared The impact of government rhetoric also by the Court of Conscience Editorial Team, features in Stephen Phillips’ article, ‘Imitation titled ‘A Brief Primer on Australia’s Treatment as Flattery: The Spread of Australia’s Asylum of Refugees and Asylum Seekers’ and ‘Time- Seeker Rhetoric and Policy to Europe’. Phil- line of Australia’s Refugee Policies’ to assist lips discusses how Australia’s preoccupation readers who are unfamiliar with the Australian with stopping people smugglers, coupled with refugee law and policy landscape. In addi- mass migration in 2015, has influenced a turn tion to the preparatory materials prepared in European public discourse that reflects by the Court of Conscience Editorial Team, less a focus on human rights than a desire to this Issue features 14 articles written by impose stricter controls on migration flows.
2 Jacob Lancaster, Editorial Increasing support to refugees and Constitution, although it is more likely to be asylum seekers constitutionally valid than its predecessor. The next two articles address an issue that is The consequences that flow from failing to often overlooked, being how we can increase hold our officials to account is clearly evident support to refugees and asylum seekers in the article written by Dr Antje Missbach and living in Australia. Danielle Munro and Niamh Assoc Prof Wayne Palmer, titled ‘Deterring Joyce, in ‘An Asylum Seeker’s Access to Asylum Seeking in Australia: Bribing Indo- Medicare and Associated Health Services nesian Smugglers to Return Asylum Seekers While Awaiting Determination of a Protection to Indonesia’. In this piece, Dr Missbach and Visa Application in Australia’, paint a labyrin- Dr Palmer draw our attention to allegations thine picture of Medicare access for Protec- levelled by Indonesia against Australia that tion Visa applicants, and highlight the effects Australian Border Force officials bribed Indo- of this process on their physical and psycho- nesian people smugglers to turnback a vessel, logical health. called ‘the Andika’, heading for New Zealand. In ‘Community, Belonging and the Irregu- The authors also discuss how Australia may lar Migration’, Violet Roumeliotis takes us away have violated domestic and international law, from the black letter of the law, and forces us and how this may both jeopardise diplomatic to consider the importance of human connec- relationships with our geographical neigh- tion. In doing so, Roumeliotis explains how we bours in the Asia Pacific and encourage other can better integrate irregular migrants by boat countries to adopt a similar approach. within our community, and draws attention to a social dimension that is little discussed. Tension between the government and the courts Scrutinising government practices The following two papers highlight the Changing pace, we have three articles that tension between the Government and the critically examine current government prac- courts in the context of Australia’s oppres- tices around refugees and asylum seekers. In sive treatment of irregular asylum seekers. In ‘Data Quality and the Law of Refugee Protec- ‘Strategic Litigation, Offshore Detention and tion in Australia’, Regina Jefferies examines the Medevac Bill’, Anna Talbot and Adj Prof the Department of Home Affair’s poor data George Newhouse discuss how litigators, collection practices from an information doctors, caseworkers and other members of systems perspective. Poor data quality directly the community pushed against the cruelty of undermines our ability to hold the Department the Minister to refuse urgent medical care to of Home Affairs, and the Australian Border children and adults living in offshore deten- Force, to account for their decisions. This is tion. The stories of those who were initially significant because, as Jefferies explains, refused treatment are distressing, especially asylum seekers who arrive in Australia by air, since many of their health conditions are the and seek protection at or before immigration direct result of living in these centres. clearance at airports, are unable to seek judi- Jack Zhou, in ‘Reforming Judicial Review cial review if their application for rejection is since Tampa: Attitudes, Policy and Impli- rejected during the initial screening process cations’, discusses how the scope for judi- by Australian Border Force officials. cial review of migration decisions has been Our view of government practices is whittled down by a series of amendments no doubt obscured by the harsh secrecy to the Migration Act 1958 (Cth) following the offences under the Australian Border Force Tampa crisis. According to Zhou, the Howard Act 2015 (Cth). The constitutionality of these Government introduced privative clauses in provisions, both as they were enacted in 2015 an attempt to curtail the availability of judi- and amended in 2017, is discussed by Sophie cial review and, when that failed, introduced Whittaker in ‘The Amended Secrecy Provi- offshore detention as a means to ouster the sions of the Australian Border Force Act: An jurisdiction of the courts. Improvement in Protection for Refugee Whis- tle-Blowers or Just Another Policy Blunder?’. The need for statutory reform Whittaker concludes that the amended legis- The last suite of articles highlights the need lation continues to encroach on the freedom for statutory reform from a mix of doctrinal, of political communication implied in our law reform, and theoretical perspectives. In
Court of Conscience Issue 13, 2019 3 A group of protesters from Refugee Action Collective march outside Villawood Detention Centre. Western Sydney, 15 April 2006 (Sergio Dionisio/AAP Image) ‘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 Yogaratnam argues that we must reimagine author’s own and do not necessarily our protection obligations to asylum seekers reflect the views of his employers or UNSW Law Society. based on human security, which can be oper- 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 (Peter Dutton, 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 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 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 Corporation, 2018)
6 Jacob Lancaster, Editorial A brief primer on Introduction Australia’s treatment of refugees and 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
Court of Conscience Issue 13, 2019 7 Asylum seekers arriving by boat are escorted by Australian navy boats operating under the Border Protection Command. Flying Fish Cove, Christmas Island, 16 August 2012 (Scott Fisher/AAP Image) 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 of the Administrative Appeals Tribunal (MRD- Seeker Assistance Scheme and the Commu- AAT); second, to the courts; and finally, to the nity Assistance Support Program.25 Whilst Minister.14 This is the standard process for asylum seekers detained onshore can receive refugee status determination.15 a small weekly allowance for daily expenses, 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 Iranian refugee interacting with local children on Manus Island (Jonas Gratzer) 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 Amnesty International (Web Page, 24
Court of Conscience Issue 13, 2019 11 MV Tampa (Remi Jouan/Wikimedia Commons) Timeline of Introduction Australia’s refugee policies
Court of Conscience Editorial Team
i 1950s–60s ii 1970s–90s
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, Papua New Guinea, 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 Pacific Solution aimed a formal refugee policy and determination to further deter ‘unauthorised’ maritime arriv- procedure in 1977.12 als by introducing offshore detention centres By 1979, the suggestion of deten- to assess their visa claims. The Government tion centres for asylum seekers arriving by also excised thousands of islands from boat was raised, although the Government Australia’s migration zone to prevent asylum refused to pursue this due to unfavourable seekers who reached those islands by boat public opinion and perceived impracticality.13 from applying for visas.25 However, by 1989, after settling another wave of South-East Asian boat arrivals, the Late 2000s–2010: The abolition of Australian Government’s asylum seeker the Pacific Solution, the closing and policy became increasingly restrictive.14 One reopening of Manus Island and Nauru element of the Government’s refugee policy In 2008, the newly elected Rudd Government was the introduction of a ‘planned system’ dismantled the Pacific Solution and declared to prevent immigration intakes from being a more compassionate approach to the treat- ‘undermined by unplanned (unauthorised) ment of asylum seekers.26 The Rudd Govern- arrivals’ who may not actually require inter- ment abolished the temporary protection national protection.15 Another element of the regime, and closed the detention centres on Government’s refugee policy in the 1990s Manus Island and Nauru, but continued to was the introduction of mandatory deten- process asylum seekers on Christmas Island.27 tion by the 1992 Migration Reform Act (Cth) Following the closure of Manus Island (‘Reform Act’).16 Under the Reform Act (which and Nauru, the number of boat arrivals remains in force), all non-citizens without a increased 100-fold, far beyond the capacity valid licence are detained while their visa of Christmas Island.28 In response to public claim is processed.17 scrutiny and political pressure, the Govern- ment reoriented its asylum seeker policy in iii Late 1990s–mid 2000s 2010 by increasing Australia’s refugee intake, allowing the removal of asylum seekers to 1999 any country, introducing a ‘no advantage’ In 1999, the Government introduced Tempo- policy for asylum seekers arriving by boat rary Protection Visas. It also enacted people (compared to those waiting in camps), and smuggling offences, and gave itself powers reopening the Manus Island and Nauru to search ships at sea and detain asylum detention facilities.29 This policy shift effec- seekers.18 At around the same time, a ‘third tively reinstated the Pacific Solution.30 wave’ of maritime asylum seekers from the Middle East began arriving in Australia.19 iv 2010s These refugees fled primarily from the Taliban in Afghanistan and Saddam Hussein’s regime 2011: Malaysian transfer deal in post-Gulf War Iraq.20 In July 2011, the Gillard Government signed a transfer agreement with Malaysia whereby The Tampa Incident and the 800 asylum seekers would be transferred Pacific Solution from Australia to Malaysia in return for On 29 August 2001, a Norwegian vessel, MV Australia’s commitment to resettle 4000 refu- 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 were mainly from Afghanistan.22 Australia tried persecution, in contravention of the Migration to turn the Tampa away and deployed military Act. Nevertheless, the Government pledged force to board the ship and prevent it from to resettle 4000 refugees from Malaysia, as approaching Christmas Island.23 promised, albeit using part of its existing Following the Tampa incident, Australia Humanitarian Programme quota.32 introduced the ‘Pacific Solution’, a swathe of harsh laws directed at asylum seekers who Domestic policy entered Australia without a visa (referred to In 2013, the Coalition Government introduced by the Government as ‘unlawful’ or ‘unautho- Operation Sovereign Borders, under which
14 Court of Conscience, Timeline of Australia’s refugee policies it adopted a ‘zero tolerance’ stance towards target of 1,250 refugees would not be met maritime arrival asylum seekers.33 Operation and only 531 refugees had been resettled Sovereign Borders involved a more milita- under the deal so far.44 rised approach to intercepting and turning In return for the US resettling refugees boats back.34 The new policy also created the from Manus Island and Nauru, Australia was Australian Border Force, removed govern- reportedly to accept dozens of Central Amer- ment funded legal aid for asylum seekers ican Refugees and two Rwandans accused arriving by boat, and reintroduced the tempo- of mass murder in the US. However, as of rary protection regime but without the possi- June 2019, only those two Rwandans have bility of permanent resettlement in Australia.35 been resettled in Australia.45 The processing centres on Manus Island and Christmas Island were closed in October The closure of the Manus Island 2017 and October 2018, respectively.36 detention centre In April 2016, the Supreme Court of Papua Resettlement deal with New Zealand New Guinea held that the detention of asylum Australia has repeatedly rejected a stand- seekers on Manus Island violated the country’s ing New Zealand offer to resettle 150 refu- constitutional right to personal liberty.46 As a gees.37 Home Affairs Minister Peter Dutton result, the Manus Island detention centre was has argued that accepting the deal would closed in October 2017.47 Hundreds of detain- encourage more maritime arrival asylum ees refused to leave the centre due to concerns seekers to use New Zealand as a backdoor over the safety of their new accommodation entry option into Australia. As of July this arrangements.48 After vital services such as year, Minister Dutton indicated that Australia electricity, water and healthcare were shut may accept the resettlement deal ‘when and down, Papua New Guinean authorities force- if’ doing so will not encourage boat arrivals.38 fully removed the remaining asylum seekers.49
Resettlement deal with the United Medevac Bill States (US) In February this year, the Medevac Bill was In November 2016, Australia announced a passed,50 allowing asylum seekers requiring deal with the US which would resettle 1250 urgent medical assistance to be temporar- refugees from Manus Island and Nauru.39 In a ily transferred to Australia upon the recom- leaked 2017 phone call between US President mendation of medical professionals.51 After Donald Trump and former Australian Prime passing the Bill, the Government announced Minister Malcolm Turnbull, President Trump it would reopen Christmas Island, where it emphasised that the US retains discretion as would treat asylum seekers requiring medical to whether it honours this target.40 treatment.52 However, the Government later In September 2017, a small group of announced that Christmas Island would refugees were resettled in the US under again be closed less than four months after this deal.41 However, the US has rejected its reopening.53 This July, Minister Dutton 300, primarily Iranian, refugees,42 despite introduced a new Bill to Parliament to repeal the Iranian refugees comprising the largest the Medevac legislation.54 At the time of population of refugees on Manus Island.43 In writing, the lower house has voted in favour June 2019, Minister Dutton declared that the of the repeal.55
References Status of Refugees, opened for Australia’s Refugee Policy (University of 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 the Status of Refugees, opened for 4 Khalid Koser, The Lowy to the 1951 Convention Relating to signature 28 July 1951, 189 UNTS 137 Institute, ‘Australia and the 1951 the Status of Refugees and the 1967 (entered into force 22 April 1954). Refugee Convention’ (Analysis, April Protocol (Report, 2015)
Court of Conscience Issue 13, 2019 15 25 September 2018) 16 Court of Conscience, Timeline of Australia’s refugee policies Rethinking the popular narrative Sunrise over Aleppo (Luke Cornish) 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 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 public discourse. refugees off the Western Australian coast. People who seek asylum after arriving by The then-Howard Government ordered SAS boat are now excluded from our refugee reset- troops to forcibly transfer those rescued to tlement program, while our political leaders call a naval troop carrier and transported them Australia the ‘most successful’ multicultural/ to detention camps on the remote Pacific migrant country in the world.10 The public are island of Nauru. A habeas corpus appli- also assured that our government is ‘absolutely cation initially succeeded, handed down confident’ of meeting international obligations.11 on 11 September 2001 (Australian time).17 How does this add up? Together, our domestic The government successfully appealed to law and political rhetoric operate to authorise the Full Court of the Federal Court, and a final and rationalise practices that prima facie violate attempt to see the initial order upheld by the international law. We suggest the ‘confidence’ High Court also failed.18 our political leaders proclaim turns on the Analysing the case history, Head wording of two Refugee Convention articles. observes that: First, the Refugee Convention proscribes as the Full Court deliberated, government penalties for unauthorised entry (no visa) for leaders and media commentators applied those who come ‘directly from a territory intense pressure to the judges, arguing where their life or freedom was threatened’.12 that the terrible events in the United In Australia — an island far from the violence States on 11 September 2001 made it that causes people to flee, including wars essential for the government to wield in which we participate — asylum seekers wider powers. The Commonwealth Solic- coming by boat tend to arrive via other terri- itor-General, David Bennett QC, told the tories.13 Secondly, article 33(2) qualifies the court that North J’s decision could restrict prohibition on refoulement where ‘there are the government’s ability to avoid such reasonable grounds for regarding [a refugee] disasters as the attack on the World Trade as a danger to the security of the country’. Center. In the media, Defence Minister Here, narratives that frame refugees arriving Peter Reith insisted that, if North’s ruling by boat as a terror threat are used to maintain stood, it would open the floodgates for claims about abiding by international law. terrorists to enter the country on refugee Meanwhile, consecutive United Nations boats. Without offering a skerrick of reports have found that Australia violates the evidence, a junior minister, Peter Slipper, rights of asylum seekers and refugees, such claimed there was ‘an undeniable linkage as ‘to be free from torture or cruel, inhuman between illegals and terrorists.19 or degrading treatment’.14 These findings are not contested by the government, but rather In a decision Head describes as having justified: ‘[t]he most humanitarian, the most ‘rewarded the government for thumbing its decent, the most compassionate thing you nose at the legal process’,20 the High Court can do is stop these boats’.15 found the application had been ‘overtaken This type of justification relies on an essen- by events’. 21 tially utilitarian calculus. It says that the horrors Offshore detention is not, however, of offshore detention for the few are neces- merely a 9/11 politic. From ‘secondary’ sary for the security of the many — a ‘greater punishment of convicts, banishing First good’ that hypothetically extends to deterring Peoples in aid of ‘manifest destiny’ mythol- refugees from boarding unseaworthy vessels ogy, and ‘offshore detention’ today, the and potentially drowning. Yet this ‘security’ is island prison is a prototype of the imperial achieved by real life ‘turnbacks’, which involve ethno-state. On this view, the island prison towing boats into international waters, an action sits on a continuum from British colonial- likely to cause deaths at sea and in breach of ism to Australian coloniality, from 1770 to the maritime duty to render assistance.16 the present. The model is marked by brutal structural violence and the epistemic dishon- iii Island prisons esty of formalism. Presumption of innocence and habeas corpus are discarded, by guber- As mentioned, the refugee-terror nexus natorial fiat in the colonies, and by the Parlia- is usually traced to MV Tampa, a Norwe- ment and courts today. 20 Ingrid Matthews and Prof James Arvanitakis, Whose island home In this context, the camps on Manus and this context is 400 Aboriginal Nation pass- Nauru are not ‘a new low’ as is sometimes ports issued to refugees on Manus Island.26 claimed, but a contemporary iteration of the foundational structure of the Australian iv Terra nullius state, the island prison. Having established its penal colony at Warrane (now Circular Despite being set aside by our highest court Quay) in 1788, the British authorities created in 1992,27 Australian cultural life retains multi- second-tier island prisons for control of ple manifestations of terra nullius mythol- specific populations within the first year. In ogy. One example is the way colonial artists the harbour, a punishment site was set up depicted First Peoples in the landscape as on Mat-te-wan-ye (later Pinchgut Island, now ‘noble savages’, a reductionist rendering that Fort Denison). Another penal colony was worked in tandem with scientific racism to built in the lands of the Palawa Peoples (then rationalise colonial violence. 28 Van Diemen’s Land, later Tasmania), and off In Picturing Imperial Power, Tobin exam- Tasmania yet another was set up on Langer- ines the role of art at the intersection of visual rareroune (now Sarah Island). culture and political power.29 Building on As the colonisers spread out in what this, Macneil found a significant presence of Professor Megan Davis, a Cobble Cobble Aboriginal people at first contact by colonial woman, calls ‘the pattern of killing that was era artists was followed by their near absence the political economy of Australian settle- by the mid-nineteenth century. In this way, ment’, 22 the convict population declined. The colonial art sits alongside the physical world island prison model shifted and was turned of dispossession by force and its intellectuali- on First Peoples: Cape Barren for Palawa who sation, the evolutionary paradigm that posited survived the Tasmanian genocide; ‘lock hospi- Aboriginal people and their culture would tals’ on Dorre and Bernier islands off the West ‘disappear’.30 The Cornwall Chronicle, report- Australian coast; the eugenicist practices ing on works by colonial artist Robert Dowling that created a population of over 50 different in March 1857 illustrates this worldview: ‘[s] language groups on Palm Island, Queensland. uch works of art as these become more valu- The colonisers hailed from island homes able with age, even now these must be looked ravaged by waves of invasion and a culture upon as historical paintings, of the primitive defined by violence. In contrast, some 350 state of society in these colonies, banished by distinct First Peoples, who maintained the light and progress of civilisation’.31 international relations across the biggest The move to federation was specifically island on earth, had ‘invented society’, their buoyed by a nationalist mood of celebrat- ‘culture based on peace’.23 The impossibly ing white settlers’ triumph over a land and cruel and traumatic act of banishing survi- her people, reflected in the work of colonial vors of violence to island prisons was done artists: ‘This exclusion of Aboriginal people then — by colonial authorities who arrived by from the conceptualisation of the Australian boat — to First Peoples, and is done now by nation reflects the effectiveness with which a Australian authorities to refugees who arrive visual discourse of ‘Australia’ painted Aborig- by boat. inal people out of existence’.32 It is an Anglo-Australian weltanschau- The colonial artist then ‘painted in’ white ung that directs the fate of asylum seekers frontiersmen. Chillingly, Lehman has found in boats at our borders. While the Common- ‘there is a repeated absence of Aboriginal wealth of Australia is a direct descendant presence in Tasmania’ where even artists of British imperialism and asserts a singu- who painted Aboriginal people into main- lar sovereignty, the law of the land and its land scenes would omit Aboriginal people sovereign custodians were not willed out of from Tasmanian landscapes.33 Here again existence by imperial force.24 As Professor the artist reflects the acts of his compadres: Irene Watson of the Tanganekald, Meintangk even today, Tasmania is notorious for the Boandik First Nations writes: ‘First Nations most brutal forms of penality and its geno- have grown from ancient treaties amongst cidal ‘Black Line’.34 themselves; those treaties acknowledge the These themes are taken up by Austra- ancient borders we care for and within which lian artist Danie Mellor. In Maba-l-Bala Rugy we belong.’25 One fascinating illustration in (Of Power in Darkness),35 Mellor juxtaposes Court of Conscience Issue 13, 2019 21 Dora (Luke Cornish) 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 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 some hope for bringing it to an end, from a academic and PhD student at the Western Sydney University (WSU) number of different angles. We do this not School of Law, and research officer least because the problem seems intracta- at the WSU Institute for Culture ble, suggesting the need for multi-variant and and Society. Her doctoral research uses critical discourse analysis to less conventional viewpoints. The horror of make visible the changing politics indefinite detention on island prisons estab- of constitutional recognition of First lished by Australia on Manus and Nauru is Nations People. not only authorised by domestic law, it is Professor James Arvanitakis is legitimised by narratives that resonate a currently Milward L. Simpson Visiting white Australian hegemony of fear and isola- Professor at the University of Wyoming on a Fulbright Fellowship. He will tion that is constitutive of the nation state. return to his substantive position at This is why we must look beyond the law Western Sydney University in late 2020 of the coloniser to the law of the land, and as a lecturer in the Humanities and a member of the University’s Institute for beyond political culture to the arts, for hope Culture and Society. of a moral resolution. References 8 Migration Act 1958 (Cth) of International Protection for the s 5AA, as amended by Migration UNHCR Global Consultations, 1 Criminal Code Act 1995 Amendment (Unauthorised Maritime October 2001). (Cth) s 102.1(1). Arrivals and Other Measures) Act 2013 14 Convention against Torture 2 Universal Declaration of (Cth) sch 1 s 8. and Other Cruel, Inhuman or Degrading Human Rights, GA Res 217A (III), UN 9 Emma Griffiths, ‘Immigration Treatment or Punishment, opened for GAOR, UN Doc A/810 (10 December Minister Scott Morrison Defends Use signature 10 December 1984, 1465 1948) art 14(1). of Term ‘Illegal Arrivals’, Plays Down UNTS 85 (entered into force 26 June 3 See, eg, David Marr and PNG Police Incident’, ABC News 1987) arts 1, 3, 16; Juan E Méndez, Marian Wilkinson, Dark Victory (Allen (online, 22 October 2013) 24 Ingrid Matthews and Prof James Arvanitakis, Whose island home 20 Michael Head, Scott Aboard Sail Boat’. ABC Far North Case of Lest We Remember?’, Mann and Ingrid Matthews, Law in (online, 17 July 2019) Court of Conscience Issue 13, 2019 25 Protesters from Whistleblowers, Activisits and Citizens Alliance block entry to Australian Border Force headquarters. The group supports refugees detained on Manus Island. Melbourne, 10 November 2017 (Tracey Nearmy/AAP Image) 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, group of about 30 Cambodian asylum seekers the legislation distinguished between what who sought their release from detention in the was called ‘application custody’, which was Federal Court of Australia. They were among limited to 273 days, and ‘custody’, which was a cohort of 389 so-called ‘boat people’ who not. According to the legislative formula, the had arrived in Australia over the preceding clock stopped on ‘application custody’, but 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 deny we are in a mess. And, if we do not makes visible that the foreigner in early inter- understand how we got into it, we stand little national law was a figure of privilege and chance of being able to navigate our way out power — a European insider, aligned with the of it, legally or politically. sovereign and sovereign interests.7 Above all, This article provides an overview of the he was either an imperialist, conquering and approach I take in the book and offers some claiming the coastlines of the New World, or of my key findings and conclusions. First, it an intra-European foreigner, whose mobility explores how we have inherited the (highly was enabled and authorised by international contestable) claim that there is an absolute law, whether as trader or exile. That is why sovereign right to exclude and condition he had rights. And that is why these early the entry and stay of aliens, which I term texts disclose no references to the idea of ‘absolute sovereignty’.5 Second, it uses ‘absolute sovereignty’. Instead, the foreign- the example of mandatory detention, one er’s treatment in early international law was of two case studies analysed in the book,6 informed by considerations such as neces- to show how we use that inheritance in sity, humanity, hospitality and tolerance. In contemporary practice. This pairing enables contrast to the ‘foreigner’, it was the ‘barbar- us to think about the past in order to illumi- ian’ of early international law who was the nate what contemporary lawmakers do and outsider, a non-European made subject to why they do it. It makes visible how deeply the law yet unworthy of its protection; subju- ingrained ‘absolute sovereignty’ has become gated rather than outlawed. as a system of thought and practice. What we see is that the emergence of an interna- ii The 19th century: a changing tional human rights framework and the end of migratory landscape the White Australia immigration policy were not harbingers of a new dawn in migration A changing migratory landscape and politi- lawmaking, despite having been events of cal-economic conditions in the nineteenth great historical moment. century marked a shift in how the figure of the foreigner was conceptualised.8 A new kind of i Early international law and foreigner — a (presumptively) hostile non-Eu- the foreigner ropean ‘barbarian’ outsider — was now on the move. It was this shift and a desire, particu- From its earliest conceptions (European) larly in white settler societies, to regulate the international legal theory contemplated the mobility and labour of non-Europeans such foreigner’s mobility in rights terms; rights to as the Chinese that prompted the common set forth and travel, to sojourn, to hospitality, to law innovation of ‘absolute sovereignty’. trade, and to share in common property. Free So, its emergence was neither historically movement rights all found voice in the work accidental nor juridically inevitable. of early international jurists, including rights What becomes clear is that ‘absolute of passage, the right to leave one’s country, sovereignty’ as a claim emerged because the right of asylum, and (perhaps most striking of a political and economic desire to regu- for the modern international lawyer) the right late race and labour. And, no sooner had it to enter and reside in the territory of another appeared than the courts began treating it as state. Likewise, the right of necessity played a ‘settled’ common law doctrine that was ‘not a significant and evolving role in shaping how open to controversy’9 even though, as we will international law framed and conditioned see, it relied on selective and instrumentalist the foreigner’s stay. By any measure, it is readings of early international legal theory.10 a dazzling array of rights. But who was the foreigner in this early international legal para- A judiciary in lockstep digm? And why did he (a pronoun I use advis- In the second half of the nineteenth century, edly) enjoy such rights? particular (instrumentalist) readings of early In Chapter 2 of the book I examine the international law by the courts overlooked seminal international legal texts of Francisco significant qualifications to the power of de Vitoria, Hugo Grotius, Samuel Pufen- the sovereign. The Privy Council, the US dorf and Emmerich de Vattel between the Supreme Court and later the High Court of 28 Dr Eve Lester, Making migration law Australia all relied on the following proposi- teenth Amendment style due process right tion attributed to Vattel: was defeated for fear that it may give such It is an accepted maxim of international rights to people of ‘undesirable races or of law, that every sovereign nation has the undesirable antecedents’.15 Even a weaker power, as inherent in sovereignty, and proposal providing that people should not be essential to self-preservation, to forbid deprived of life, liberty or property, without the entrance of foreigners within its due process of law was rejected. As one dominions, or to admit them only in such delegate put it in defence of the doctrine cases and upon such conditions as it of responsible governance, Australia was may see fit to prescribe.11 far too civilised to need to entrench a due process right in its constitution: Yet, none of the aforementioned courts saw Why should these words be inserted? fit to consider the implications of a tempering They would be a reflection on our civilisa- proviso in the same paragraph ‘not [to] refuse tion. Have any of the colonies of Austra- human assistance to those whom tempest or lia ever attempted to deprive any person necessity obliged to approach their frontiers’.12 of life, liberty, or property without due Elsewhere, Vattel qualified his position on the process of law? I repeat that the inser- sovereign power to exclude with a rhetorical tion of these words would be a reflection question: ‘can it be necessary to add, that the of our civilisation. People would say — owner of the territory ought, in this instance, ‘Pretty things these states of Australia; to respect the duties of humanity?’13 they have to be prevented by a provi- These qualifications were overlooked by sion in the Constitution from doing the a judiciary in lockstep with the legislative and grossest injustices.’16 societal expectations of white settler soci- eties, which were unapologetically doing In 1901, when debating the two Bills that were all that they could to keep out non-Euro- foundational to the White Australia policy (the peans. So, although we cannot forget that Immigration Restriction Bill 1901 (Cth) and the foreigner in the work of Vattel and his the Pacific Island Labourers Bill 1901 (Cth)), predecessor publicists was a European, we the new legislature embarked on the task can also see that the courts had hewn the with full confidence in the (absolute) scope of doctrine of ‘absolute sovereignty’ out of a the aliens and immigration powers that had body of international law in a way that over- been described as a ‘handsome new year’s looked that dazzling array of rights that had gift for a new nation’.17 During that debate, been conferred on the (European) foreigner. Isaac Isaacs, MP (later Attorney-General, Chief Justice of the High Court and then iii The 20th century constitutional Governor-General), proposed incorporat- entrenchment ing an ‘instant power in any emergency to exclude any person whom this country thinks Upon the Federation of Australia in 1901, is undesirable’.18 One MP admonished him ‘absolute sovereignty’ was constitution- for making a proposal that was ‘despotic’.19 alised in what was described at the time as The response of the future Chief Justice was the ‘freest Constitution in the world’.14 Given candid and un-defensive: ‘if we are going to expression through the inclusion of plenary offer a reproach to a measure because it is powers in the Commonwealth Constitu- despotic, we must not forget that without a tion — powers to make laws with respect to despotic provision we cannot do what we aliens and naturalisation, and immigration want at all’.20 and emigration — it thus became even more deeply entrenched. iv Mid century: curtailing ‘naked and uninhibited’ powers No debate and no due process right So uncontroversial had these powers of In 1958, migration law in Australia underwent exclusion been during the Constitutional a major overhaul. The notorious dictation test, Conventions that they engendered no whereby an ‘undesirable’ migrant could be debate. Indeed, the only debate on immi- excluded if they failed a dictation test of 50 gration arose when a proposal for a Four- words in a European language of the immi- 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 However, the reform agenda was broader, habeas corpus or injunctive relief, he added, covering deportation and detention powers. the Bill would ‘[go] further’, also providing In his Second Reading Speech,22 then for ‘reasonable facilities for obtaining legal Minister for Immigration Alexander Downer advice and taking legal proceedings’.27 Sr did something that seems astonishing Perhaps the most striking example of the now, given current authoritarian approaches reforms that the Minister outlined was the to unsolicited migration: he resolved to place establishment of detention centres, which he legislative limits on his own powers by subject- characterised as a ‘humanistic innovation’.28 ing them to judicial scrutiny. In doing so, he Describing as ‘undesirable’ what we now call highlighted the Minister’s ‘solemn responsi- co-mingling (that is, detaining immigration bility’ to ‘wield’ powers he recognised to be detainees in prisons together with convicted ‘arbitrary’ in a manner that preserved national criminals), particularly because deportees security but was also ‘humane and just to ‘very often’ had a ‘blameless record’, he the individuals concerned’ — powers that declared that there was ‘a compelling case’ he recognised were ‘capable of the gravest for reform in the treatment of people he abuse’.23 With this in mind, he foreshadowed called ‘statutory offenders’. In making these the imposition on the Minister’s broad depor- reforms, Downer described his own experi- tation powers of ‘important checks on his ence as a prisoner of war of the Japanese authority’. Underscoring that his department for three years as a ‘comparable situation’. dealt ‘first and last’ with human beings and Gaols, he said, were ‘depressing places, their future welfare, he opined: ‘as human especially when you are not in any true sense values change, so the law must change’.24 an offender’. It was on this basis that he As to the arrest and detention of hailed the introduction of detention centres ‘suspected prohibited immigrants’, Downer as a welcome innovation out of which he was stated in the same speech that: ‘sure’ that ‘nothing but good will come’; an [T]he present act empowers an officer innovation that, along with other ameliorating without warrant to arrest any person effects of the legislation, he believed would reasonably supposed to be a prohib- ‘place Australia in advance of any other ited immigrant offending against this country in the world.’ act. A moment’s thought will show the latent dangers here. Accordingly … the v The 1990s: mandatory detention Bill provides for a person so arrested to be brought within 48 hours, or as soon In 2019, the Migration Act 1958 (Cth) that was as practicable afterwards, before a introduced by Sir Alick Downer is still in force prescribed authority, who must inquire in Australia. However, it has been amended so into whether there are reasonable many times that it is unrecognisable. Never- grounds for supposing the person to be theless, in 1992 the substance of the safe- a prohibited immigrant. If the authority guards outlined in Downer’s Second Reading finds such grounds, he will order contin- Speech remained in place; that is that deten- ued detention for a maximum period of tion was to be for a limited period of seven seven days pending the Minister’s deci- days (or longer with the detainee’s consent), sion as to deportation.25 and that detention was subject to review by an independent authority. However, for the Downer added further that ‘naked and unin- Cambodian ‘boat people’, whose situation hibited’ powers of arrest (and detention) provided the setting for this piece, the Immi- provided for in existing legislation had the gration Department had elected to detain capacity to ‘cause great injustice’.26 Having them under a different provision.29 Designed declared a maximum period of seven days for stowaways, this other provision was detention pending a decision to deport, he intended to apply as a short-term measure.30 then detailed ‘elaborate safeguards’ against Although its use was doubtful, and, the High such injustice, including retention of the Court would eventually conclude, unlawful,31 ‘overriding power of [the courts to order] a its value to the Immigration Department was person’s release from custody if the court that it lacked the safeguards (and inconve- finds that the deportation order is invalid.’ nience) of periodic review and independent 30 Dr Eve Lester, Making migration law scrutiny. Like the ‘barbarians’ of early inter- In his Second Reading Speech, the national law, it enabled ‘boat people’ to be Minister self-presented as the epitome of treated as subject to the law but unworthy moral restraint, and his Government and of its protection; subjugated but, as the High his Department as models of good gover- Court would later remind us, not outlaws.32 nance. He claimed ‘no wish’ on the part of As readers will recall, mandatory deten- the Government ‘to keep people in custody tion as it was originally formulated occurred indefinitely’. Indeed, he ‘could not expect by operation of law, and the legislation Parliament to support such a suggestion’. To sought to place such detention beyond the this end, he asserted that custody would be scrutiny of the courts. My analysis in the for a ‘limited period’, being the 273 days (or book of the parliamentary debates around about nine months) referred to earlier, and this first legislative framing of mandatory implied that processing of their claims would detention, as well as the transcript, court file be completed much more quickly. and judgment in the constitutional challenge Additionally, the Minister positioned to it reveals the operation of parallel and himself as entitled to and capable of adjudg- mutually self-validating speech choices and ing the motives and behaviours of the ‘boat techniques that are illuminating. On the one people’ and their lawyers. Indeed, he had hand, a theme of (state) control and restraint described immigration lawyers in Cabinet relies on two claims: that there is an abso- as ‘the worst kind of human beings’ he had lute sovereign right to control borders, and ever encountered.36 He attributed delays in that the state can be trusted to exercise that processing times to their ‘calculated tactics’,37 right responsibly. On the other hand, a theme thereby papering over governmental flaws and of (asylum seeker) deviance and opportun- inefficiencies and the full implications of ‘appli- ism ascribes to so-called ‘boat people’ ille- cation custody’ and the ‘273 day rule’. The gality, lawlessness and impropriety, as well clock stopping formula was, he said, designed as volition. The speech choices and tech- as an ‘incentive for the parties involved in the niques that give effect to these themes rein- process not to embark on tactics calculated to force the perception that complete control is delay the final processing of claims.’ valid and necessary and that the silence of Working up his moral identity as a reluc- decision-less detention is justified. Together tant jailer, the Minister re-emphasised that they underpin political and jurisprudential the Government had ‘no desire to keep these pronouncements that regard the manda- people in custody longer than necessary’,38 tory and non-reviewable detention of ‘boat thereby amplifying his repeated insistence people’ as an appropriate means of regulat- that he was doing only what was necessary ing entry into Australia. and that the detainees had only themselves (or their lawyers) to blame for their continu- No debate and no due process right ing detention.39 This linguistic interplay, which Bipartisan support for the Bill meant there juxtaposes institutional restraint with a projec- were speeches but no debate in the House of tion of deviance, constructed the ‘boat people’ Representatives, and though the lack of due as responsible for their own detention; a tech- process was raised by the Australian Demo- nique that strategically inverted the foreigner crats and Independent Senator Brian Harra- to sovereign power relation by presenting the dine in the course of debate in the Senate, deprivation of liberty as entirely within the it did not hold sway.33 Instead, parliamentar- control of those who were subject to it. ians offered a smorgasbord of immigration metaphors and other rhetorical flourishes, Chu Kheng Lim: the High Court designed to drive home the enormity of proceedings the problem posed by ‘boat people’.34 The The ascription of responsibility and control oppressive consequences of the Bill were on the part of ‘boat people’ for any encounter pitched as tough but necessary; rational and with Australia’s unscalable wall of ‘absolute restrained. In both Houses, ‘boat people’ sovereignty’ would prove central to the consti- were maligned as queue-jumpers engag- tutional case that came before the High Court ing in illegal conduct; as people ‘simply … in Chu Kheng Lim v Minister for Immigration, expecting to be allowed into the community’, Local Government and Ethnic Affairs (‘Lim’).40 not people who may need protection.35 As the transcript shows, in the course of Court of Conscience Issue 13, 2019 31 Refugees waiting inside a hospital at Lorengau on Manus Island (Jonas Gratzer) 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 respect for those duties of humanity that medical transferees to Australia remaining Vattel viewed as so self-evident that he here.45 In addition to this, of the 1,285 people 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- and highly racialised jurisprudential tradition etrable claim; through which we resist the embedded within the broader context of a assumptions that have authorised, upheld political economy of the movement of people. and normalised the claim of ‘absolute For it was in this context that the relation- sovereignty’; and through which we resist ship between the ‘sovereign’ and the figure the structural indifference to the duties of of the ‘foreigner’ was shaped into the claim humanity towards ‘boat people’ — those of ‘absolute sovereignty’ and respect for ‘barbarians’ at our border — that is embed- the duties of humanity was erased. Thus, by ded in the claim of ‘absolute sovereignty’. locating contemporary Australian migration What, then, are the possibilities? Can law within this longer trajectory, it becomes we think and do migration law in Australia possible to track the way in which claims without feeling impelled to make a claim on of ‘absolute sovereignty’ came together as sovereignty in absolute terms? Can we turn practice, doctrine and authority. Popular- ‘absolute sovereignty’ into a question — even ised by Prime Minister John Howard’s state- a problem — rather than treating it as a given? ment that ‘we will decide who comes to this Can we rethink the unregulated or under-reg- country and the circumstances in which they ulated space in which the claim of sovereignty come’,48 it is this deeply entrenched ‘absolute resides as an accountable space; open to sovereignty’ talk that today makes the policy meaningful scrutiny? If we could do this — of mandatory detention ‘thinkable’ and, for even try — would the way in which we talk some, seem inevitable as an institutional and think about both unsolicited migrants and response to unsolicited migration. ourselves assume a different quality? Understanding ‘absolute sovereignty’ as As a first step, I suggest that we could an idea or claim, not an unassailable or inevi- engage more consciously with the dynamic table truth, enables us to notice and critically potential of the relationship between the re-evaluate how power and law are understood foreigner and the sovereign. We could court and used to mediate the relationship between our conscience by eschewing the totalising the foreigner and the sovereign. Making visible claim of ‘absolute sovereignty’ as the unan- what we have inherited and how we use it swerable answer to unsolicited migration and impels ownership of the power relation that repudiating the inevitability of the structural inheres in both ‘absolute sovereignty’s’ past violence of the border. Instead, the relation- and its present. It obliges us to pay attention ship between the foreigner and the sovereign to what happens when contemporary migra- would be (re)imagined as one of vitality and tion lawmakers and policymakers rely on and exchange, one that recognises and respects perpetuate institutional practices that have, the duties of humanity. Recalling the dazzling through the ostensible neutrality and restraint array of rights the foreigner enjoyed in early of law and legal process, enabled them to international law, it is a reimagining that is not grow accustomed to having at their disposal as radical as it may seem. absolute power over the movement and activ- ities of foreigners. It enables us to see that Dr Eve Lester is an Independent even though many of us are exercised by the Researcher and Consultant and an Associate Member of the Institute for dehumanising effects of these policies, the International Law and the Humanities, 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 References §94, bk II ch VIII §100. See also Sir (Brennan, Deane and Dawson JJ) 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), Spinks, ‘Boat Arrivals in Australia Since 1879) pt III ch X, 320. 64 (McHugh J). 1976’ (Research Paper, Parliamentary 12 Vattel (n 11) bk II ch VII §94. 32 Lim (1992) 176 CLR 1, 19 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, appendix updated 17 January 2017). Parliamentary Debates (‘CPD’), House 2235 (Sid Spindler, Brian Harradine), 2 Migration Act 1958 (Cth) ss of Representatives, 12 September 2240 (John Coulter). 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. s 54R (as at 6 May 1992; now s 183). Debates, Melbourne, 2 March 1898, 35 See, eg, Lester, Making 4 Eve Lester, Making Migration 1752 (John Quick). Migration Law (n 4) 171. 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 University Press, 2018) (‘Making 688 (John Cockburn); John M Williams, Keating Government (Wakefield Press, Migration Law’). ‘Race, Citizenship and the Formation 1999) 43, 162. 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 6 See further Chapter 5, (1996) 42(1) Australian Journal of (Gerry Hand). ‘Mandatory Detention’. The second case Politics and History 10, 15. 38 Ibid 2370–3 (Gerry Hand). study, discussed in Chapter 6, examines 17 CPD, House of 39 Ibid. the policy of ‘planned destitution’, a Representatives, 2 October 1901, 5505 40 Chu Kheng Lim v Minister policy of social and economic exclusion (Edmund Barton). for Immigration, Local Government and whereby many people seeking asylum 18 CPD, House of Ethnic Affairs (High Court of Australia, 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, ‘Planned Destitution of People Seeking 19 CPD, House of Chu Kheng Lim v Minister for Asylum: An “Act of Grace”?’, Right Representatives, 12 September 1901, Immigration, Local Government and Now (Opinion, 20 August 2018) 4846 (Hugh Mahon). Ethnic Affairs (High Court of Australia, Court of Conscience Issue 13, 2019 35 A navy dingy approaches a wooden refugee vessel that is sinking in waters off Christmas Island. Claims that asylum seekers were throwing their children over the sides of the boat were found to be false. Christmas Island, 17 February 2002 (Australian Defence Video/AAP Image) Vanquishing asylum Rethinking the popular narrative seekers from Australia’s borders Creating visibility for justice Prof Linda Briskman i Introduction ii Casting out Banishing asylum seeker ‘boat people’ Mandatory detention in Australia, intro- from the nation state has been a corner- duced by the Labor government in 1992, is stone of Australian politics.1 This casting the foundation of asylum seeker subjuga- asunder is so normalised that the majority tion. This provision is condemned by human 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. until granted refugee status or removed from Our online screens, social media sites such as Australia.5 What began as detention in metro- Facebook and Twitter along with Instagram politan, rural and remote sites extended to networks remind us of the sheer velocity of distant island locations including Australia’s people on the move with the destruction of Indian Ocean Territory of Christmas Island nations, communities and peoples.12 Roland and subsequently to the countries of Nauru Bleiker writes of the power of visual imagery in and Papua New Guinea (Manus Island), the the global political arena, noting that ‘we live latter known as offshore processing centres. in a visual age’, with images of international The indefinite nature of immigration deten- events shaping our understandings, including tion is frequently prolonged, with serious digital media.13 mental health implications. Although manda- Imagery can be evocative in producing tory detention legislation remains in place, emotion. Take for example the global circula- policies have been devised that allow people tion of a 2015 image of three-year old Syrian to be released into either community deten- Kurd, Alan Kurdi, lying dead on a Turkish tion (residence determination) or a Bridging beach, a child like any other. More recently, in Visa E.6 These strategies have created addi- June 2019, the picture of a father and toddler tional problems including inadequate financial daughter broke compassionate hearts, support, lengthy periods before claims are with both lying face down in waters on the processed and flow-on effects such as disal- Mexican side of the Rio Grande. Particularly lowing family reunion.7 As neither of the major poignant was the child lying still in her father’s political parties in Australia want people to lifeless protective embrace. Los Angeles arrive by boat, an array of policies and legisla- Times journalist declared that: ‘Sometimes tion has been incrementally introduced for the an image is so powerful, it cuts through purpose of deterrence.8 While it is beyond the almost any noise’, although others ques- scope of this paper to provide a full descrip- tioned the benefit of disseminating through tion of the harsh deterrent measures, it should social media the photograph that was first be noted that the most publicly criticised has published in Mexico by La Journada.14 been the so-called ‘Pacific Solution’, which Even though such images are power- paradoxically is the most invisible. ful, they are few and far between. In the Bacon et al. describe ‘Pacific Solution’ Australian context there are many factors detention in the sovereign nations of Nauru that converge to hide asylum seekers and Papua New Guinea as marking the point from public view. Immigration detention in ‘at which Australia began moving away from remote sites is one way in which humanis- its international treaty obligations – to one of ing of asylum seekers has been restricted. crude and pragmatic national politics based on When Christmas Island was a major deten- fear and vilification’.9 The trajectory of exclu- tion site, a four-hour plane trip from Perth sion includes the announcement by the Rudd and expensive fares and accommodation Labor government in July 2013, declaring that were prohibitive for people wishing to visit no asylum seeker who arrived by boat would asylum seekers and hear from them directly. ever be given the chance to settle in Austra- With the advent of offshore detention, there lia.10 For the first time ever, Australia would be have been restrictions in place that prevent totally closed to those arriving by boat even people gaining visas to the countries in when found to be refugees11 and has resulted question, including journalists. in some asylum seekers and refugees remain- An additional means of purging asylum ing immobilised in Nauru and on Manus Island, seekers from public view via distance is naval with others resettled in the United States under interception at sea, including the 2001 Oper- a ‘swap’ deal negotiated between Australia and ation Relex, reinvented in 2013 as the mili- the US, even further alienating asylum seekers tary-led Operation Sovereign Borders, which from the view of the Australian public. continues.15 Because of Australia’s vast sea borders and the secrecy of ‘national security’ iii The visibility/invisibility binary operations, the plights of those who have been intercepted and removed from Austra- At a global level, movement of asylum seekers lian waters are largely unknown. Further- and refuges has become increasingly observ- more, most people would not be aware 38 Prof Linda Briskman, Vanquishing asylum seekers from Australia’s borders of Australia’s obligations under the 1951 cycle of silencing with advocates disinclined Refugee Convention, particularly the prin- to speak their minds and talk from the heart. ciple of refoulment, which prohibits people In a less provocative ways and with a strong being sent back to places of possible perse- and convincing evidence base, human rights cution. Nor are they likely to be aware of how reporting presents information on harms that Australia violates other international norms have been inflicted on asylum seekers and to which it subscribes, including the Conven- refugees, particularly in offshore sites. The tion on the Rights of the Child, the Interna- vast array of factual and analytical docu- tional Covenant on Civil and Political Rights ments from reputable organisations such as and the Convention against Torture. There Amnesty International, the Australian Human was inadequate publicity given to an early Rights Commission and United Nations action of the re-elected conservative govern- agencies are unlikely to be perused other ment, which opportunistically declared that it than by those who are already committed to had saved the lives of 41 Sri Lankan asylum asylum seeker justice; although the asylum seekers at sea,16 but not enough lifesaving seeker social movement is robust, numbers it seems to fully hear out their claims before are not high enough to create a groundswell returning them back to Sri Lanka. Sending of policy influence. back people without giving each person a For non-state actors who profit from chance to fully present their claim includ- colluding with government, almost total invis- ing ‘fast-tracking’ has been criticised by the ibility about their detention activities is the Kaldor Centre for International Refugee Law norm unless their activities are exposed by which calls for compliance with Australia’s investigative journalists. Private corporations international legal commitments.17 conspire in a silent manner, no doubt because On mainland Australia, asylum seekers of commercial-in-confidence contractual are ‘less place based, less contained and arrangements. These include companies less spoken about’.18 With asylum seekers tasked to run detention prisons on behalf of now more commonly in the community than government and others who provide services detention, this is deceptively touted as a within, including health services that have humane approach. However, with the dimin- been exposed as manifestly inadequate. ishment of the previous safety net of the Non-governmental organisations have also Status Resolution Support Service (SRSS), uncritically co-operated with government, many vulnerable asylum seekers are forced with their staff unable to speak out about into destitution and at best reliant on charity, what they have witnessed.21 community goodwill or state government Sustained asylum seeker/refugee intervention.19 Arising from this, interac- endeavours to expose practices and harms tion and connection are not easy to foster. are relatively new. Despite the transportation Waiting for years for claims to be processed of asylum seekers offshore, the incarcerated has a negative impact on personal wellbeing, have found ways to defy their concealment which does not bode well for a conventional in order to bring attention to their suffer- social life, social interaction, community visi- ing and the policies that create anguish bility and empathy. and despair. The refugee movement has In attempts to create alternative visi- applauded asylum seeker voice including bilities, approaches are adopted through Manus Island detainee of six years, Behrooz persuasive language and metaphor. Yet, Boochani, whose book No Friend but the these may be subject to harsh rebuke by Mountains received national acclaim and influential groups. One recent example is the awards.22 Boochani also produced a film criticism of well-respected author Thomas from within Manus, Chauka, Please Tell Us Keneally. Executive Director of the Sydney the Time, filmed on his mobile phone, and Institute Gerard Henderson condemned he regularly writes articles for media outlets. Keneally for adopting the term ‘concentration Another man who was imprisoned on Manus camp’ for the asylum seeker/refugee camp, Island, Abdul Aziz Muhamat, is the winner with his usage of this term seen by Hender- of an international human rights award and son as ‘grossly inaccurate’.20 When criticism now resettled in Switzerland. In 2019, he is levelled at advocates who may be less spoke to the United Nations Human Rights emboldened than Keneally, it can create a Council of the humanitarian crisis on Manus Court of Conscience Issue 13, 2019 39 Still image of Behrouz Boochani from Simon Kurian’s documentary, ‘Stop the Boats’ (Simon Kurian) 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 asylum in Australia; 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 people – men, women, children. Instead its link to observable racism. He says: of engendering sympathy, the government Today, as we witness Aboriginal deaths 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 References 9 Wendy Bacon et al, 19 Ibid 18. Protection Denied, Abuse Condoned: 20 Gerard Henderson, 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 42 Prof Linda Briskman, Vanquishing asylum seekers from Australia’s borders Imitation as flattery Rethinking the popular narrative The spread of Australia’s asylum seeker rhetoric and policy to Europe Stephen Phillips i Introduction: the Tampa Affair one particular minor party hung prominently and emerging challenges to in the background. In 1998, the One Nation human rights Party, a right-wing nationalist populist party, had emerged as a genuine force in both state 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 Court of Conscience Issue 13, 2019 43 Former Australian Prime Minister John Howard speaking on the removal of 438 refugees from the MV Tampa freight ship. Melbourne, 3 September 2001 (Julian Smith/AAP Image) 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 gian freighter. Following the rescue, the captain action, nor has domestic pressure by a range of the Tampa set course for Christmas Island to of non-governmental organisations, experts, safely offload the asylum seekers. The Austra- and even from some within the government’s 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. been condemned by the United Nations,21 In June 2018, the European Council, made whilst simultaneously receiving the blessing up of the leaders of the EU member states, of the international community to take up a declared the following: key role in an inter-governmental body that In order to definitively break the business is ‘responsible for strengthening the promo- model of the smugglers, thus preventing tion and protection of human rights around tragic loss of life, it is necessary to eliminate the globe and for addressing situations of the incentive to embark on perilous jour- human rights violations and make recom- neys. This requires a new approach based mendations on them’.22 In the European on shared or complementary actions among context, rather than being chastised for its the Member States to the disembarkation of refusal to honour its international obligations, those who are saved in Search And Rescue Australia’s approach is being lauded through operations. In that context, the European imitation, that most sincere form of flattery. Council calls on the Council and the Commis- Language focused on ‘stopping the boats’ sion to swiftly explore the concept of regional and ‘breaking the people smuggler’s busi- disembarkation platforms, in close coopera- ness model’ that is very familiar to Australian tion with relevant third countries as well as ears began to emerge in Europe following the UNHCR and IOM. Such platforms should large influx of asylum seekers to that conti- operate distinguishing individual situations, nent in 2015.23 At the regional level, Frontex, in full respect of international law and without the EU agency responsible for the EU’s exter- creating a pull factor.29 nal borders, describes its tasks in the follow- Here the language of rights is relegated ing terms: ‘Frontex, the European Border and to a secondary position, not even explicitly Coast Guard Agency, promotes, coordinates identified but (presumably) included under and develops European border manage- the broader notion of ‘international law’. 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 director, Fabrice Leggeri, stresses that ‘[f] disembarkation platforms’ in third countries undamental rights are integrated into Frontex that draw a clear parallel to Australia’s Pacific operations from their inception, ensuring that Solution.30 Whilst overall Europe appears still all those fleeing war and persecution are to be clinging to notions of human rights and able to apply for international protection’.25 dignity in its response to asylum seekers, it is This language remains milder than that of showing clear intent of replicating Australian the Australian government, which describes policies that have inflicted high levels of harm its own response to unwanted migration by to asylum seekers through their preference boat, Operation Sovereign Borders, as a ‘a for punishment and deterrence over protec- military led border security operation’ aimed tion and dignity. at ‘protecting Australia’s borders, combating people smuggling in our region, and prevent- iv Conclusion: the failure and future ing people from risking their lives at sea’.26 of human rights Nevertheless, Australian inspired language and rhetoric has gradually begun to emerge The core human rights message, as enshrined at the European Union’s upper levels. In May in the UDHR, claims that ‘the recognition of 2015, just a few months into the so-called the inherent dignity and of the equal and ‘European Migrant Crisis’, the European inalienable rights of all members of the human Commission, the EU’s executive, phrased its family is the foundation of freedom, justice response in terms of the perceived need ‘to and peace in the world’.31 This message, as try to halt the human misery created by those a starting point, seems no less relevant now who exploit migrants’,27 choosing to frame than it was in 1948. The message is clear, the issue both in terms of the need to combat digestible, and seemingly requires little by the actions of people smugglers as well as way of elaboration or explanation. In spite ‘the duty to protect those in need’.28 More of this apparent simplicity, since 1948 a recently, statements that set a clear border language of human rights has developed that control agenda that is less grounded in ideas has become the domain of experts. Select 46 Stephen Phillips, Imitation as flattery committees, expert bodies, working groups producing improvements in the human condi- and roundtables have spawned a prolifera- tion’. 34 A human rights regime that creates or tion of treaties, declarations, recommenda- enables division fails to achieve its fundamen- tions and other documents. At a time when tal purpose, and an exhaustive re-evaluation the language of human rights is being chal- of the human rights project’s present state is lenged and overshadowed by that of border needed before its future can be reimagined. control, human rights language finds itself in Lessons learnt from the Australian context a struggle to remain relevant. The language can help to rebuild an approach to human of law has permeated the language of rights rights that is relevant in the prevailing secu- to the point that for many this language has rity-driven climate, and can empower those become difficult to penetrate. Koskenniemi in various parts of the world to work towards refers to a ‘process of endless narration’32 that safer and more sustainable paths to protection brings with it a risk that ‘the domination of the for asylum seekers than those that currently Western academy will see to it that the stories exist, or are being contemplated. everyone hears will perpetuate precisely the kinds of hierarchy that rights-languages on Stephen Phillips is a Doctoral its best days was expected to dismantle’.33 Researcher at the Institute for Human Rights at Åbo Akademi University, Nevertheless, even such a critical assess- Finland. His research examines ment of the language of human rights allows state responses to forced migration, scope for the possibility that the message is specifically the prevention of access to asylum. Stephen has previously sound, and that the failure can be found in worked in casework and advocacy the delivery. According to Falk, ‘the power of roles in both the government and rights needs to motivate its varied constituen- non-government sectors with asylum seekers in Australia and with victims of cies by both the urgencies of its cause and the forced displacement in Colombia. genuine, although not assured, possibilities of References 9 John Howard, ‘Election John Chesterman and Lisa Hill, The Speech’ (Speech, Federal Liberal Party Politics of Human Rights in Australia 1 The 2001 Australian Campaign Launch, 28 October 2001). (Cambridge University Press, 2009). federal election was ultimately held 10 On the impact of One 17 International Covenant on 10 November 2001. Nation on Australian immigration on Civil and Political Rights, opened 2 Clive Bean and Ian policy in this period, see James Jupp, for signature 19 December 1966, McAllister, ‘From Impossibility to From White Australia to Woomera: 999 UNTS 171 (entered into force Certainty: Explaining the Coalition’s The Story of Australian Immigration 23 March 1976) art 9(1) (‘ICCPR’). Victory in 2001’, in John Warhurst (Cambridge University Press, 2nd ed, UN Human Rights Committee cases 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 of Queensland Press, 2002) 271. the subsequent course of events Committee, Views: Communication 3 Stephen Barber and Sue has become known, has been No 560/1993, 59th sess, UN Doc 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 2014) 29–55. and Marian Wilkinson, Dark Victory Committee, Views: Communication 4 Ibid 55. (Allen & Unwin, 2004). No.1069/2002, 79th sess, UN Doc 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 Queensland Election’ (Parliamentary of Australia to the United Nations, Australia’). Library) 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 10 December 1984, 1465 UNTS 85 Observations on the Sixth Periodic 2015) 2 48 Stephen Phillips, Imitation as flattery Increasing support to refugees and asylum seekers General Pracitionner Katherine Lazaroo treats an asylum seeker’s child at the Asylum Seeker Resource Centre in Footscray. Melbourne, 17 May 2002 (Julian Smith/AAP Image) 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- tion Visa, they have the status of an Australian The right to access Medicare while waiting permanent resident and have access to Medi- for a decision to be made on an application care and other services. 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- 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 that all people that have applied for a Protec- a Tourist Visa and remained for many years 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- The Health Insurance Act 1973 (Cth) defines ing financial hardship. This required him to who is eligible for Medicare.5 There are only provide copies of bank statements in Australia 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 holds a Bridging Visa with the ‘right to work’.7 a Protection Visa while on a Bridging Visa E, they will be granted a Bridging Visa E with no iii Conditions attached to Bridging Visas right to work.13 They can apply for the right to work, but they must show that they have 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 class of Bridging Visa (A through to F) held and they have an acceptable reason for the delay 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 applicant’s visa status at the time of lodging the pursuing a complicated skilled visa matter, application.9 That is, whether or not a Protec- which was unsuccessful. They then lodged tion Visa applicant is able to access Medicare an application for a Protection Visa. As they while awaiting a decision depends on their were already on a Bridging Visa E, they were immigration status before they applied. It is granted another Bridging Visa E in associa- not, for instance, based on need, strength of tion with the Protection Visa application. their visa application, or any health-related The couple then fell pregnant in Austra- claims for protection. lia, and had to pay for private health insur- If a person makes a valid application for a ance (out of their savings) for the pregnancy Protection Visa while on a substantive visa (a and birth-related healthcare costs. Even after visa other than a Bridging Visa), then they will they ran out of money, they continued to be granted a Bridging Visa A with permission to be ineligible for work rights or access to work and will therefore be eligible for Medicare.10 Medicare, because they do not meet the Case Study 1: Mohammed arrived in ‘delay’ criteria. Australia to study from Indonesia. While If a person makes a valid application for a studying he came out to his family as gay Protection Visa (subclass 866) while in immi- and became fearful of returning to Indone- gration detention, they may be granted a Bridg- sia. Just before his Student Visa expired, he ing Visa E to permit them to live in the commu- applied for a Protection Visa. He was subse- nity while their application for protection is quently granted a Bridging Visa A, allowing processed. It is mandatory under Department him to work and access Medicare while he policy that in these circumstances the condi- awaited a decision from the DHA. tion ‘no right to work’ be attached to the Bridg- If a person makes a valid application for ing Visa E.15 They can apply for the right to work a Protection Visa while not holding a valid (and therefore access to Medicare) by demon- visa (that is, they are ‘unlawful’) and are not strating both a compelling need to work and in immigration detention, they will be granted an acceptable reason for delay in application.16 a Bridging Visa C with no right to work.11 Case Study 4: Chelsea was unlawful and However, they will be able to apply for the homeless in Australia for a number of years, right to work if they can show that they have a before being detained by immigration deten- 52 Danielle Munro and Niamh Joyce, An asylum seeker’s access to Medicare and associated health services Protection Visa flowchart At time of lodging application for a Protection Visa (866) If in Australia, not If on a substantive If in immigration in immigration If on a Bridging Visa If on a Bridging Visa E visa (a visa other than detention detention, and A or C a Bridging Visa) without a valid visa Can only be granted a Automatically granted Bridging Visa E Automatically granted a a Bridging Visa C (need to satisfy delay Bridging Visa A with work (need to demonstrate a criteria and compelling rights compelling need to work need to work in order to in order to be granted obtain work rights) work rights) Figure 1: Flowchart of the class of Bridging Visa which will be granted to a Protection Visa applicant tion. After lodging an application for a Protec- A closer look at Case Study 4: Chelsea had tion Visa, she was released into the commu- a well-founded fear of harm at the hands of nity on a Bridging Visa E. As a person who had police, medical staff and others in her country been homeless for so long, she did not have a of origin, and she had no reason to believe that bank account or identity documents. She also her experience would be different in Australia. had a number of serious health conditions She had suffered trauma regarding this, and which had been untreated. Yet she remained on this basis did not engage with authorities in ineligible for Medicare or work rights. Australia. Yet, none of these were considered A pressing need for healthcare is not a an acceptable or ‘reasonable’ explanation for factor considered by the DHA in the applica- her delay in applying for the Protection Visa. tion to grant work rights or access to Medicare. The reason the Department imposes no work rights on Protection Visa applicants, and Reasons for delay for Bridging Visa the considerations to be weighed in making E holders the decision above, relate to the policy goal When considering whether or not a Bridg- of encouraging people to genuinely and ing Visa E should be granted with the right continuously engage with the Department to work, addressing the additional criteria and regularise their status.19 relating to ‘reasons for delay’ often present a A closer look into Case Study 3: Parvesh serious obstacle for asylum seekers needing and Diya pursued a Skilled Visa application to work (and access Medicare). and requested the Minister to intervene. While Department Policy states that it is very awaiting the outcome, the couple were granted unlikely that a person who has remained in a Bridging Visa E. Over four years passed the community unlawfully for a long time, or between the date they originally lodged their only applied for a Protection Visa when they application and the final refusal. They had never became located by the Department will have been unlawful, and had always complied with an acceptable reason for delay.17 It is only all visa requirements. As they did not apply for if circumstances change in the applicant’s protection immediately upon arrival to Austra- home country, which is then made the basis lia, they were deemed to have ‘unreasonably’ for their protection claims that will then be delayed in their Protection Visa application, considered an acceptable reason for delay.18 and therefore did not meet the ‘delay’ criteria. Court of Conscience Issue 13, 2019 53 A lack of understanding of the immigration tions, depend on doctors arranging for phar- processes, limited English, and a trauma-based maceutical companies to provide compas- response, including inaction, are common and sionate access to medication. This is not not unexpected experiences of asylum seekers. guaranteed and there is always the risk that A closer look at Case Study 2: Duc it was it will end. only while on a Bridging Visa C, and after applying successfully for work rights, that v The health of asylum seekers and the he became eligible for Medicare. Due to the long-term effects of not having fact that he was unlawful in Australia for an medical care extended period of time and living in insecure housing, he had no valid identity documents. The effect of not having access to Medi- Due to the nature of his visa application, his care during the long process of applying for Migration Agent advised him not to contact protection can be long lasting. A person’s his embassy to apply for a new passport. medical condition can be part of their claims Without the appropriate identity documents, for protection, yet they are required to survive he was still unable to obtain a Medicare card. without Medicare while their application is This situation is made more complex considered. An applicant’s medical condition 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. Protection Visa applicants. Extensive medical and community service literature finds that people from refugee back- iv State and territory laws and policies grounds experience significantly higher rates on asylum seekers accessing medical of poor health, including mental health.24 The treatment without expense reasons for this include both poor access to health services before coming to Australia, States and territories in Australia have begun to violence and other harms, and lack of access fill the gaps made by federal legislative require- to services once in Australia. ments for Medicare and have enacted legisla- The Australian Medical Association also tions to guarantee healthcare to asylum seekers highlights that asylum seekers are at high risk regardless of the individual’s Medicare status. of mental health issues, including psycholog- Tasmania enacted legislation,20 and the Austra- ical disorders such as ‘post-traumatic stress lia Capital Territory enacted subordinate legis- disorder, anxiety, [and] depression’.25 lation,21 to ensure that asylum seekers without Health concerns for Case Study 4: Chelsea Medicare can receive free medical treatment. developed significant mental health and drug and The Queensland Government has a policy alcohol use issues, as well as being diagnosed which states that Medicare ineligible asylum with HIV. Her extended periods of disengage- seekers are not charged in Queensland ment with health and other support services, as public health services.22 well as trauma responses has made her remain Whereas, here in New South Wales, there hesitant to seek health care and support. is no legislation, subordinate legislation or Having to wait several years for the grant policy ensuring access to health services of a Protection Visa, all the while being denied without Medicare. Thus, an asylum seeker Medicare, the right to work or ability to access without Medicare is required to pay for their medical services without large expense medical treatment unless they are covered means that an individual is at a high risk of by the Asylum Seeker Assistance Scheme or being in a worse health condition than when if the applicant is in immigration detention.23 they had first made the visa application. Without access to Medicare, an asylum For Australia to assess an individual seeker is reliant on individual doctors’ discre- as a refugee, but in the process deny them tion in not charging for their services, or access to work rights and Medicare, means on the assistance of charities. For asylum that newly granted Permanent Protection Visa seekers with a chronic illness requiring daily holders, when they finally do have access medication, not having access to the Phar- to Medicare, are likely in significantly worse maceutical Benefits Scheme is costly and a health, and may require more health services barrier to efficient treatment. Without funds than what they may have needed at the onset or the right to work, applicants in these situa- of their visa application. 54 Danielle Munro and Niamh Joyce, An asylum seeker’s access to Medicare and associated health services vi Conclusion Danielle Munro and Niamh Joyce are Solicitors/Registered Migration Agents at the HIV/AIDS Legal Centre (“HALC”). To a Protection Visa applicant, the importance of Both have previous experience in refugee having access to Medicare and healthcare cannot law and a particular interest in assisting be understated. Protection Visa applicants are a clients who have experienced trauma or are members of the LGBTQIA commu- particularly vulnerable group in need of care and nity. HALC is a specialist community assistance, and should not be excluded from legal centre funded to assist people in involvement in society during the application NSW with HIV or Hepatitis-related legal and migration matters. HALC frequently process. The processing times for Protection represents asylum seekers in their appli- Visas are at record lengths and during this time, cations for a Protection Visa, and is one the applicant waits with uncertainty and added of the only community legal centres who fully represent asylum seekers, including stress. If an applicant is unable to engage with in appeals to the High Court. medical services during the application process then they will be in a worse physical and psycho- Disclaimer: This article is not construed as legal advice. The law 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 application and may also be less likely to engage contact a Registered Migration Agent for advice specific to their with the services after the grant of the visa. circumstances. The names used in this article are aliases. References 10 Ibid reg 2.01, sch 1 reg 1301 case reviewed through judicial review or 11 Ibid. ministerial intervention. 1 Under the Migration Act 12 Ibid reg 1.08. Financial Hardship 21 Section 7 of the Health 1958 (Cth) which implemented Australia’s is not defined in the Migration Regulations. (Fees) Determination 2019 (No 1) (ACT) commitment to the Convention Relating to Department of Home Affairs Policy states provides asylum seekers with full medical 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 force 22 April 1954) read together with the expenses exceeds their ability to pay for in ACT public hospitals free of charge. Protocol Relating to the Status of Refugees, them’ and applicants are required to include An asylum seeker is defined in the Health 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 1967), the Convention against Torture – Sch2 Bridging Visas – Visa Application and protection which is being assessed by the and Other Cruel, Inhuman or Degrading Related Procedures – Compelling Need to Commonwealth Government or, if they 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 85 (entered into force 26 June 1987), the 14 Ibid reg 1.08; Department of review in the courts. This does not International Covenant on Civil and Political Home Affairs, ‘PAM3: Act - Compliance extend to those awaiting a decision on an Rights, opened for signature 16 December and Case Resolution - Program Visas - application for ministerial intervention. 1966, 999 UNTS 171 (entered into force 23 Bridging E Visas – Grant of Further BVE 22 Queensland Health, ‘Refugee March 1976), and the Convention on the Without Condition 8101’ (Policy Document) Health and Wellbeing: A Policy and Rights of the Child, opened for signature 20 (‘Grant of Further BVE’). Action Plan for Queensland 2017–2020’ November 1989, 1577 UNTS 3 (entered into 15 Migration Regulations (Policy Document, April 2017) Court of Conscience Issue 13, 2019 55 SSI’s Community Kitchen (Settlement Services International) 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 one of the most pressing issues of our time. being displaced from their countries of origin.2 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 Saman Khaladj started his own business, supported by the SSI Ignite Small Business Start-ups initiative (Settlement Services International) 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 housing, education and health11 — are just as response from outside our sector, and we iden- important for these individuals and families tified the need for greater systems of advocacy. 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 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 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 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) 60 Violet Roumeliotis, Community, belonging and the irregular migration Scrutinising government practices Qantas Airbus A330-303 (VH-QPF) at Perth International Airport (mailer_diablo/Wikimedia Commons) 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 who arrive in the country by air and seek an international airport and claimed asylum protection at or before ‘immigration clear- in the first three months of the financial year 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 Referrals may have related to protec- the obligation of non-refoulement from tion claims, the total number of persons consideration in the context of the removal of raising protection claims at Australia’s ‘unlawful non-citizens’,17 Australian policy still borders remains undetermined.9 recognises and seeks to implement the obli- gation for non-citizens seeking protection at In other words, although the DHA records the airport.18 The framework includes, but is referrals for persons seeking protection at not limited to, the creation of Protection Visas Australian airports, poor data collection and complementary protection for individu- practices mean that the ‘total number of als to whom Australia owes protection obli- persons raising protection claims at Austra- gations.19 The Australian approach to border lia’s borders remains undetermined’.10 control constrains and significantly impacts This article explores the legal compli- the protection framework, manifesting in a ance consequences of poor data quality complex, multi-agency effort of deterring through an information systems lens. Data asylum seekers while insisting that those quality can be defined as ‘fitness for use’11 in need of protection pursue a process of and encompasses a variety of character- refugee resettlement. The Australian Border istics,12 including accuracy, completeness, Force (‘ABF’), formed in 2015 by combining and currency.13 Data lacking any of these the DIBP and the Australian Customs and dimensions can have a significant impact Border Protection Service (‘ACBPS’), sits at on data quality. This article explores the the centre of the deterrence framework as impact of the data quality dimension of the operational enforcement arm of the DHA. completeness in the context of the DHA’s The ABF approaches the border as a ‘strate- operations targeting asylum seekers who gic national asset, a complex continuum that arrive at Australian airports from abroad. The encompasses the physical border, [] offshore piece begins by situating asylum seekers operations, and [] activities in Australian within the border continuum and Protection maritime and air domains’.20 Visa legal and policy framework. The work A substantial legal and informational then describes aspects of the DHA’s current framework sustains the border continuum, data collection process and examines how beginning with the requirement to obtain a the current process fails to attain the data visa for travel to Australia.21 When an interna- quality characteristic of completeness.14 The tional traveller arrives at an Australian airport article concludes with an examination of the with a valid visa, they must pass through legal consequences of poor data quality, ‘immigration clearance’ before being allowed as well as a call for increased transparency to enter Australia.22 If the traveller seeks and accountability so that Parliament and protection at, or before passing through, the Australian public may accurately judge immigration clearance, they are referred to a the DHA’s compliance with international and secondary immigration area for a review of domestic legal obligations. whether the purpose of their visa ‘aligns with [their] intention for entry to Australia’.23 Where i Entry screening and the Department of the ABF official finds that the individual has Home Affairs data collection practices come to Australia to seek asylum, rather than for the purpose of their visa (eg work, study), Australia has undertaken a number of inter- their visa may be cancelled and the immi- national legal obligations in relation to refu- gration clearance is refused.24 If the traveller gees and asylum seekers by becoming party has been refused immigration clearance, the to the 1951 Refugee Convention and 1967 ABF official conducts a second interview to Protocol.15 Foremost among those obliga- determine whether the individual should be tions is the fundamental obligation of non-re- ‘screened-in’ and allowed to lodge a Tempo- foulement, or the requirement not to return rary Protection Visa application.25 There is no an individual to a place where they might mechanism for judicial review of the screen- be persecuted or subjected to other serious ing decision, which means that an individ- harm.16 The domestic framework intended to ual ‘screened-out’ faces rapid removal from give effect to these obligations can be found Australia, without regard to the non-refoule- primarily within the Migration Act of 1958 ment obligation.26 64 Regina Jefferies, Data quality and the law of refugee protection in Australia ii Data quality Second, ABF officials must evaluate whether an individual’s reason for visiting This section examines the DHA data collec- Australia aligns with the purpose of their visa tion processes, having regard to the data to determine whether the individual should be quality dimension of completeness.27 Data ‘immigration cleared.’37 Where an individual completeness, or the ‘extent to which data seeks to enter Australia to apply for asylum, are of sufficient breadth, depth, and scope their visa may be cancelled. Thus, the reason for the task at hand’, depends upon the for visa cancellation is highly relevant to a deter- contextual dimensions of the task.28 In exam- mination as to whether the individual was prop- ining whether the DHA can be said to comply erly evaluated by the DHA for potential protec- with domestic and international legal obliga- tion claims, as well as whether the individual tions towards asylum seekers, the context was given the opportunity to lodge an applica- includes legal obligations which must inform tion for such protection. However, according to data collection. Where the data do not reflect the DHA, ‘[d]epartmental systems are unable to that context, data deficiencies may result.29 aggregate data by reason for cancellation deci- According to the DHA: sion’.38 As a result, the DHA cannot accurately The purpose of entry screening is to track whether it is complying with the obligation determine whether a non-citizen should to provide an individual whose visa has been remain in Australia, pending an assess- cancelled at the airport with the opportunity to ment against Australia’s protection obli- lodge a protection application. In other words, gations, on account of the reasons the the data collected does not appropriately reflect non-citizen has presented for why they the context of the task of compliance with the cannot return to their home country or DHA’s legal obligations. country of usual residence.30 iii Transparency and accountability Data may also be incomplete where values are missing because the values were not Quality data are critical to administrative included, though they should have been spec- policy formation, implementation, and legal ified.31 In the entry screening process, ABF compliance. Poor data quality not only officials record data at several key intervals ‘compromises decision-making’,39 it ‘may — two of which are examined here. First, offi- be the single biggest hindrance to develop- cials record an ‘inward movement and refer- ing sound strategy’.40 Since at least 2005, ral’32 for every traveller who claims protection the DHA, ABF, and predecessor agencies at an airport. Second, officials record whether have consistently failed to implement sound a visa has been cancelled in immigration record keeping and data quality practices.41 clearance.33 Information obtained through FOI The department has repeatedly acknowl- and provided by the DHA in Senate Estimates edged these failures, stating in 2016 that: reveals critical problems with both points of These issues aren’t new and have been collection regarding contextual dimensions of highlighted in various reviews over the the data and missing values. last decade resulting in: First, in the Decision on Internal Review, • Poor decision making and advice to the DHA confirms that ‘referrals for [individuals] key stakeholders or for individuals; seeking to engage Australia’s protection claims • Failure to comply with legislative are in fact recorded in the relevant system under requirements due to poor information one of two separate codes. One of these codes and records managements policies, is specific to Refugee Claims, the other is for systems and practices; [and] Manual Referrals/Reason Unknown.’34 Yet, • Failure to deliver on strategic objec- protection claims may be recorded as a referral tives and priorities (risk and crisis under either code and ‘there is no distinct way management).42 of determining which of the Manual Referrals may have related to protection claims...’35 As These endemic problems have signifi- the data are likely missing values and cannot cant consequences, not only for questions be said to be complete, ‘the total number of related to legal compliance,43 but for assess- [individuals] raising protection claims at Austra- ing whether the DHA has actually provided lia’s borders remains undetermined.’36 accurate and complete information to Parlia- Court of Conscience Issue 13, 2019 65 ment and to the Australian public as part of Regina Jefferies is a Scientia PhD the democratic process. Without a complete Scholar and Teaching Fellow at the University of New South Wales, understanding of the number of individu- and an Affiliate of the Kaldor Centre als who have sought protection at Austra- for International Refugee Law. She lian airports, or how many individuals have has worked as a Consultant for the Washington Regional Office of UNHCR had their visas cancelled due to raising a and previously held the position of protection claim – Australia cannot be said Visiting Assistant Professor at the to comply with its international and domestic University of Minnesota Law School, where she taught in the Detainee legal obligations. Failing this basic test not Rights Clinic and helped to lead a only imperils vulnerable individuals in need of team of lawyers in challenging the international protection, it imperils the rela- Trump Travel Ban. tionship between agency accountability and Parliamentary oversight. References gov.au/channels/Operation-Sovereign- 15 Convention Relating to the Borders/releases/operation-sovereign- Status of Refugees, opened for signature 1 Migration Act 1958 (Cth) borders-monthly-update-may-2019>. 28 July 1951, 189 UNTS 137 (entered s 172. 6 The data was reported to into force 22 April 1954) (‘1951 Conven- 2 ‘Onshore protection is be current as at 30 September 2017: tion’); Protocol Relating to the Status people who have come to Australia Evidence to Senate, 23 October 2017 of Refugees, opened for signature 31 on another substantive visa and then (n 3). January 1967, 606 UNTS 267 (entered subsequently applied for protection 7 The full request sought: into force 4 October 1967) (‘1967 in Australia’: Evidence to Senate (1) The number of individuals who have Protocol’). See also Convention Against Standing Committee on Legal and made protection claims before, or at, Torture and Other Cruel, Inhuman or Constitutional Affairs, Parliament of immigration clearance at airports since Degrading Treatment or Punishment, Australia, Canberra, 8 April 2019, 68 2008, broken down by fiscal year; opened for signature 10 December 1984, (Luke Mansfield). (2) The number of those individuals 1465 UNTS 85 (entered into force 26 3 Evidence to Senate Standing granted Protection Visas since 2008, June 1987) art 3 (‘CAT’); International Committee on Legal and Constitutional broken down by fiscal year; and the Covenant on Civil and Political Rights, Affairs, Parliament of Australia, individual’s country of origin and airport opened for signature 16 December 1966, Canberra, 23 October 2017 (‘Evidence where the claim was made: Department 999 UNTS 171 (entered into force 23 to Senate, 23 October 2017’). of Home Affairs, Number of Protection March 1976) art 7 (‘ICCPR’); Convention 4 44 persons applied for a Claims Before or At Immigration on the Rights of the Child, opened for Protection Visa after being refused Clearance (FOI Request, 28 November signature 20 November 1989, 1577 immigration clearance in 2013-2014, 2018) (copy on file with author). UNTS 3 (entered into force 2 September 34 persons applied for a Protection 8 Department of Home Affairs, 1990) art 37 (‘CRC’); Convention on Visa after being refused immigration Number of Protection Claims Before the Right of Persons with Disabilities, clearance in 2014-2015, and 40 or At Immigration Clearance (FOI opened for signature 30 March 2007, persons applied for a Protection Decision, 6 February 2019) (copy on 2515 UNTS 3 (entered into force 3 May Visa after being refused immigration file with author). 2008) art 15 (‘CRPD’). clearance in 2015-2016: Department 9 Department of Home Affairs, 16 1951 Convention (n 15) art 33. 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 23 Department of Home 34 Department of Home Affairs, New Guinea: Contract Management of Affairs, Protection Claims at the Border ‘Number of Protection Claims Before or Garrison Support and Welfare Services (Procedural Instruction, 21 November at Immigration Clearance’ (FOI Decision (Report No 32 2016–17, 17 January 2018) 12 (‘Procedural Instruction’). on Internal Review, 27 May 2019) (copy 2017); Australian National Audit Office, 24 Ibid 13. on file with author) 3. The Australian Border Force’s Use of 25 Individuals refused 35 Ibid. Statutory Powers (Report No 39 2016– immigration clearance at airports 36 Ibid. 17, 27 February 2017). ‘Despite two (‘unlawful air arrivals’) may only 37 Procedural Instruction high-profile, unlawful detention cases, request a Temporary Protection Visa (n 23) 12. which occurred in 2005, Immigration (TPV) or Safe-Haven Enterprise Visa 38 Evidence to Senate, 22 May had not developed adequate control (SHEV): Department of Home Affairs, 2018 (n 33) in response to Question on mechanisms to reduce the risk of Procedural Instruction (n 23) 14; Notice No 54, Portfolio Question No future systemic failures of process.’: Migration Regulations 1994 (Cth) BE18/100. RAND Corporation, Assessment of 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 s 197C. 40 Ibid. Service (ACBPS) with the Department 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 M Strong, ‘Beyond Accuracy: What and Border Protection Service (Report Office, Integration of DIBP and ACBPS Data Quality Means to Data Consumers’ No 45 of 2017–2018, 6 June 2018) (n 41). (1996) 12(4) Journal of Management 29 (‘Integration of DIBP and ACBPS’) 43 The Australian National Information Systems 5, 32. citing seven audit reports that have Audit Office notes that the agency has 29 ‘Data deficiencies are identified issues with record keeping, acknowledged these serious problems: defined as ‘the inconsistencies between including: Australian National Audit The department is aware of the record the view of a real-world system that Office, Individual Management Services keeping issues. A November 2016 can be inferred from a representing Provided to People in Immigration submission to the Executive Committee information system and the view that Detention (Report No 21 2012–13, 11 entitled Records and Information Action can be obtained by directly observing February 2013); Australian National Plan 2016–20 stated: ‘Since 2006 at the real-world system’: ibid 7, citing Audit Office, Management of the Cape least 17 reviews of various aspects of Yair Wand and Richard Y Wang, Class Patrol Boat Program (Report records and information management ‘Anchoring Data Quality Dimensions in No 13 2014–15, 16 December 2014); (IM) have been completed, all of Ontological Foundations’ (1996) 39(11) Australian National Audit Office, which identify significant scope for Communications of the ACM 86. Verifying Identity in the Citizenship improvement. An assessment of the 30 Department of Immigration Program (Report No 47 2014–15, 10 collective review recommendations and Citizenship (n 18) 4. June 2015); Australian National Audit confirms a consistent theme throughout 31 Scannapieco, Missier and Office, Managing Compliance with Visa each; a lack of sustained follow Batini (n 11) 8. Conditions (Report No 13 2015–16, 10 through, which in turn has left the 32 Department of Home Affairs, June 2015); Australian National Audit Department’s IM in a critically poor Procedural Instruction (n 23) 10. Office, Offshore Processing Centres state.’ Australian National Audit Office, 33 Evidence to Senate Standing in Nauru and Papua New Guinea: Integration of DIBP and ACBPS (n 41) Committee on Legal and Constitutional Procurement of Garrison Support and 29, citing Department of Immigration Affairs, Parliament of Australia, Welfare Services (Report No 16 2016– and Border Protection, Submission Canberra, 22 May 2018, 167 (Christine 17, 13 September 2016); Australian to Executive Committee, Records Dacey) (‘Evidence to Senate, 22 May National Audit Office, Offshore and Information Action Plan 2016–20 2018’); Procedural Instruction (n 25) 13. Processing Centres in Nauru and Papua (November 2016) (emphasis added). Court of Conscience Issue 13, 2019 67 Still image from Simon Kurian’s documentary, ‘Stop the Boats’. Manus Island (Simon Kurian) 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 refugee policy has been the subject of harsh by the 2017 amendments, the current legis- public and academic scrutiny.1 Offshore lation leaves much to be desired. Therefore, 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 of duty. The law regulated the disclosure of changes relevant to this essay were enacted information with the potential to harm essen- retrospectively and thus said to commence tial public interests such as national security, on 1 July 2015. defence and public safety, as well as informa- tion unlikely to have an adverse effect on such ii Framework for constitutional validity interests – which may have instead been in the public interest to disclose. For example, In various decisions the High Court has information about the abhorrent treatment acknowledged that a freedom of political of refugees by Australian government agen- communication can be implied from the cies and the living conditions experienced Constitution.18 This freedom is not abso- in Australia’s mandatory detention centres. lute, but rather acts to fetter the legislative Such concerns culminated in the filing of a power of the Commonwealth.19 The Consti- constitutional challenge to section 42 of the tution necessarily protects the freedom of ABFA by Doctors for Refugees in 2016, on communication between people concerning the basis that the law unduly restricted the government or political matters, to the extent implied freedom of political communication.10 necessary to uphold the accountability and In response to this challenge, the Secretary of transparency of Australia’s representative the DIBP made a determination,11 to exclude democracy. Where a law is not compatible health practitioners from the application of with the implied freedom, it will generally be the secrecy provisions.12 Doctors for Refu- invalid. The test to determine whether a provi- gees remained concerned that the blanket sion impermissibly burdens the freedom has provisions applied too broadly to non-health been set out by the High Court in a number professionals, including teachers, charity of cases,20 and was most recently amended personnel and social workers,13 and sought in the case of Brown v Tasmania.21 A law will to continue their proceedings. On 9 August be incompatible with the implied freedom of 2017, the Australian Government introduced political communication and hence be invalid a Bill,14 which sought to amend the secrecy where it effectively burdens the freedom in provisions, particularly by introducing a new its terms, operation or effect; and where its category of information called ‘Immigration purpose is illegitimate, in the sense that it and Border Protection Information’ (‘IBP is incompatible with the maintenance of the Information’),15 defined as information the constitutionally prescribed system of repre- disclosure of which would or could reason- sentative and responsible government; and/ ably be expected to:16 or where the law is not reasonably appro- • prejudice the security, defence or priate and adapted to advance that object international relations of Australia; in a manner that is compatible with the • prejudice the prevention, detection maintenance of the prescribed system of or investigation of, or the conduct of government.22 This third limb involves a test proceedings relating to, an offence of proportionality to determine whether the or a contravention of a civil penalty restriction which the provision imposes on the provision; freedom is justified.23 This involves an inquiry • prejudice the protection of public into whether the law is suitable, necessary health, or endanger the life or and adequate in its balance.24 Both the orig- safety of an individual or group of inal s 42 offence and the amended provi- individuals; sion, as detailed above, will now be critically • found an action by a person (other examined within this framework. than the Commonwealth) for breach of a duty of confidence; iii A critical examination of the • cause competitive detriment to a original section 42 person; or • information of a kind prescribed in an In assessing the original s 42 offence against instrument under subsection (7). the constitutional validity framework, it is evident that the legislation unjustifiably The amending legislation, incorporating this encroached upon the implied freedom of polit- definition and other changes, formally came ical communication. By making it an offence, 70 Sophie Whittaker, The amended secrecy provisions of the Australian Border Force Act punishable by 2 years’ imprisonment, for an The government defended the validity of ‘entrusted person’ to disclose ‘protected infor- its secrecy offence, referring to the various mation’, the legislation conceivably burdened exceptions in the Act.35 However, as Bevitt the implied freedom of political communica- posits, these exceptions create an unclear, tion and satisfied the first limb of the test.25 ineffective and patchwork protective frame- Exposing the practical effects of government work for potential whistle-blowers.36 They policies, that are arguably morally repugnant fail to ensure that information caught by or in breach of international obligations, is a the secrecy offence that is not reasonably form of political expression.26 Restricting such likely to harm an essential public interest, conduct, as s 42 did, effectively burdened the can be disclosed without fear of reprisal. freedom, where: For example, s 42(2)(c) of the ABFA permits Representative government requires disclosure where it is required or authorised there to be a free flow of information to by law. This exception indirectly incorporates enable the community to be informed and relies on the application of the Public about the performance of their repre- Interest Disclosure Act (‘PIDA’),37 otherwise sentatives and to communicate … about known as Australia’s whistle-blower legisla- governmental matters so as to make an tion.38 However, this exception also estab- informed choice at elections. 27 lishes a lacuna in the law, whereby some forms of conduct will be considered offensive The second limb would also likely have under s 42 of the ABFA yet fall outside the been satisfied. In the absence of an objects scope of protection under the PIDA,39 render- provision, it appears that the ‘legitimate ing it ineffective to overcome the ABFA provi- end’ served by the secrecy provisions, was sions.40 Section 48 further permits disclosure either the protection of national security, or where it is necessary to prevent or lessen a the maintenance of the efficient operation serious threat to the life or health of an indi- of Australia’s border protection activities.28 vidual. On its face, this exclusion appears These purposes are not directed, nor do they applicable to potential refugee whistle-blow- operate, to adversely impinge upon repre- ers speaking out about the problematic sentative government, and thus are compati- conditions in Australia’s offshore detention ble with the implied freedom.29 centres; however, this exception imposes a Turning to proportionality, it is this third high threshold test and places the onus on limb of the test that would have inevitably whistle-blowers to prove that the requisite threatened the validity of the original s 42 degree of seriousness has been met.41 offence. The use of secrecy provisions in the Using proportionality as a tool of analy- sensitive context of border force operations is sis,42 it is evident that the original s 42 offence and was warranted at the time; however, the was disproportionate, and unjustifiably disputable proportionality of these provisions infringed on the implied freedom of political raised red flags.30 The broad scope of the defi- communication. The scope of the offence nition of ‘protected information’ coupled with was far too broad, and the exceptions too the expansive class of persons falling within narrow to mitigate the onerous restrictions the definition of an ‘entrusted person’, eluci- placed upon DIBP workers. dates the operational overreach of the legis- lation. In Bennett v President, Human Rights iv A critical examination of the Equal Opportunity Commission,31 a blanket amended section 42 secrecy provision similar to the original s 42 offence,32 was held to be constitutionally In assessing the amended offence provision invalid by the Federal Court. Finn J was of the within the constitutional validity framework, it opinion that a catch-all provision, that did not is evident that the legislation still encroaches differentiate between the types of information upon the implied freedom of political protected or the consequences of disclosure, communication, however, it does so to a far was disproportionate to the purpose it aimed lesser extent than the original offence. The to achieve. 33 This line of reasoning, along- legislation strikes a more desirable balance side the reasoning of the High Court in recent between the gravitas of the purpose served times,34 suggests that an unqualified prohibi- by the legislation and the extent of its impo- tion will not be compatible with the freedom. sition on the implied freedom of political Court of Conscience Issue 13, 2019 71 Still image from Simon Kurian’s documentary, ‘Stop the Boats’. Manus Island (Simon Kurian) 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- into his or her passion, by virtue of being national relations, also contemplates intangible a Commonwealth officer, and which it is or speculative damage, such as the loss of trust 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 provisions in s 42(1A) of the ABFA, which make it an offence to disclose certain infor- This essay evinces how the recent amendment mation if the person was reckless as to to the secrecy provisions of the ABFA, has whether (among other things) the informa- resulted in an improvement to the protection tion had a security classification. The law offered to refugee whistle-blowers. The law, fails to provide an avenue to challenge the whilst refined in its scope, operation and prac- appropriateness of a security classification tical effect, is an example of legislative draft- and consider the content of the information, ing that leaves much to be desired. Where the and is unclear as to what steps a person original s 42 offence was likely invalid on the would need to take to satisfy themselves grounds that it curtailed the implied freedom of that the information was not subject to such political communications, the amended offence a classification.59 Section 4(7) of the ABFA, too, remains uncertain and in some respects also confers the Minister with discretion to overly broad failing to rule out the possibility of prescribe new categories of information as a constitutional challenge. The amended legis- falling within the scope of the offence. This lation has ameliorated some of the concerns its could effectively be used to prevent the predecessor invoked in relation to information lawful disclosure of information, particularly of public interest reaching the public sphere but in the highly controversial context of refugee remains a deterrent for those wishing to speak policy. The concerns raised above in relation out about the abject failure that is Australia’s to the exceptions to the original s 42, also draconian refugee policies. remain relevant. There is no doubt that the amended legis- Sophie Whittaker is a final year lation is more likely to satisfy the proportional- Bachelor of Laws (Honours) student at the University of Wollongong. After ity test, and thus be found to be constitutionally completing a semester abroad at the valid. Where potential refugee whistle-blow- University of Copenhagen, Denmark ers were once ‘gagged’ by the operation of and taking International Migration Law 60 as a subject, she developed a keen the s 42 offence, the amended legislation interest in the comparable refugee has ameliorated many of the concerns held policies of Western countries that are by the individuals and groups at the coalface often unfavourable to those who are most vulnerable in our global society. of Australia’s refugee policies. Despite no one This was the impetus to produce two actually having been charged with an offence major works in the area of refugee law. under either iteration of the s 42 offence, the Despite this, Sophie’s primary research and career interest is in the area of breadth and ambiguity of the legislation, still criminal law. creates uncertainty, and the aforementioned loose ends of the legislation validates residual concerns as to its constitutional validity. References 3 Australian Border Force Act of Immigration and Border Protection, 2015 (Cth) (‘ABFA’) pt 6. and who are designated in writing by 1 See, eg, ‘Australia: Appalling 4 Australian Border Force the Secretary of the Department or the Abuse, Neglect of Refugees on Nauru’, Amendment (Protected Information) Act Australian Border Force Commissioner: Amnesty International (Web Page, 20 2017 (Cth) (‘ABFA 2017 Amendment’). at s 4(1) (definition of ‘entrusted August 2016) 74 Sophie Whittaker, The amended secrecy provisions of the Australian Border Force Act com/border-force-act-entrenches- 2015 (Cth) para D, as amended considered the validity of restrictions 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 Musood Darwish and Alison Pert, Amendment No. 1 2016 (Cth). the disclosure of information where it Submission No 109 to Australian Law 13 Bianca Hall, ‘A Huge Win was reasonably foreseeable that the 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. 9 First ABFA Compilation (n on Nauru and Manus’, The Sydney The Court found that upholding the 7) ss 42–9. Subsection 42(2) provides Morning Herald (online, 20 October effective working of government was a that the offence does not apply if: “(a) 2016) Court of Conscience Issue 13, 2019 75 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 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 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 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 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 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 Review 85, 90–1. Commission, Secrecy Laws and Open the disclosure of which would, or is 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) 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, 2017 (Cth) 4. Both make clear that the punishment of criminal offences; ‘Australia Should Urgently Improve Bill seeks to protect certain information endanger the life or physical safety of Whistleblower Protection, UN Expert from unauthorised disclosure that would any person; or prejudice the protection Says’, The Guardian (online, 18 October harm the national or public interest, of public safety. 2016) 76 Sophie Whittaker, The amended secrecy provisions of the Australian Border Force Act Deterring asylum Scrutinising government practices seeking in Australia Bribing Indonesian smugglers to return asylum seekers to Indonesia Dr Antje Missbach and Assoc Prof Wayne Palmer i Overview activities.2 They view irregular border cross- ings narrowly as transnational organised Since 2001, successive Australian govern- crimes, neglecting the fact that such cross- ments have increasingly used unilateral and ings enable foreigners’ claims to a basic bilateral migration and border protection poli- human right: asylum.3 Such perceptions cies to prevent refugees and migrants from have garnered substantial political support reaching Australia, where they have the legal from the Australian electorate, on whose right to apply for asylum.1 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- Court of Conscience Issue 13, 2019 77 Sri Lankan asylum seekers on their way to New Zealand by boat were intercepted by Indonesian Marine Police. Waters off Tanjungpinang, Riau Islands province, Indonesia, 11 July 2011 (Syaifullah/AAP Image) 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 Border Force boarded the Andika to warn ii Return to sender the crew and asylum seekers that they could not enter Australian territory without a valid In September 2013, the Australian government visa or complete set of documents. For the 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 nesia.23 The asylum seekers claimed that the the crime by providing material assistance, captain accepted a ‘thick white envelope’, including two boats, fuel, maps, and a GPS.31 and that the other crew were ‘very happy’ They had directed the boat captain and crew –– so much so that they began ‘joking with to land at identified points in Rote Island, the Australian officers, whereas beforehand rather than an official entry spot where Indo- they had seemed frightened and nervous’.24 nesian authorities could have registered the According to the captain and his crew, the arrivals, as required by Indonesian law.32 Effec- Australian authorities had initially promised tively, the Australian government bankrolled to facilitate a return to the edges of Indone- the crime against Indonesia, even paying sian waters near Java, but the destination the captain and crew to commit it. Although was changed to Rote Island in East Nusa Australia was certainly complicit, the Indone- Tenggara, the remote east of the Indonesian sian court ignored the inconvenient fact that archipelago.25 The boat crew were disap- another state could commit the transnational pointed, but they were in a weak position to organised crime of people smuggling.33 resist the change in plan, largely because the At international law, the Australian offi- Australian Border Force had taken control of cials may have also breached the UN Protocol their vessel, and they had already accepted against the Smuggling of Migrants by Land, payment to return to Indonesia. 26 Sea and Air (‘Smuggling Protocol’),34 which Early the next morning on 31 May, the requires ratifying states, such as Australia and Australian Border Force divided the boat Indonesia, to adequately punish smugglers crew and asylum seekers more or less equally for endangering the safety of their migrant between two new boats — the Jasmine and and refugee passengers. In turning back the Kanak.27 Ten Australian vessels then Andika’s asylum seekers, Australian authori- escorted the boats to the edge of Indonesian ties clearly put lives at risk, as the crew and waters, not far from Rote Island. The Austra- passengers ended up abandoning one of the lian Border Force left the boats there, but Australia-provided boats and overcrowded before reaching the destination the Jasmine the other because of insufficient fuel. The ran out of fuel, so everyone overcrowded the turnback might have fallen through the cracks Kanak for the final stretch. A few hours later, of national law in Indonesia, and it is unlikely that boat struck a reef off the southeast coast that the Australian legal system will ever adju- of Rote Island, and asylum seekers who dicate the issue. Regardless, the UN Smug- could swim abandoned the shipwreck by gling Protocol contains a safeguard clause making their own way to the closest beach.28 which clearly stipulates that states ought to The others, including women and children, ‘ensure the safety and humane treatment of relied on locals, who had not been alerted by the persons on board’.35 any government authorities, for rescue from Over four years later, it seems unlikely that the stricken vessel. either government will conduct further investi- Once onshore, the crew, who feared being gations with the view to punish the Australian arrested for people smuggling fled, leaving officials. In Australia, there is a lack of polit- behind the confused, frightened and angry ical will to investigate the events fully, as the asylum seekers, who gathered in the local government continues to shield its anti-peo- village head’s house. Four hours later, the ple smuggling activities from any public police arrested the crew, and seven months scrutiny. The Australian Senate published an later the Rote Ndao District Court convicted Interim Report in 2016, but has since aban- them for attempting to smuggle asylum doned the inquiry with the following technical seekers from Indonesia to New Zealand.29 justification: ‘[a]t the dissolution of the Senate and the House of Representatives on 9 May iii Breaches of international and 2016 for a general election on 2 July 2016, the domestic law parliamentary committees of the 44th Parlia- ment ceased to exist’.36 Therefore, inquiries At the trial of the captain and his crew, the that were not completed have lapsed and judges ignored the supporting roles played by submissions cannot be received.37 Australian agencies in the smuggling of asylum Even if future Australian governments seekers from Australia to Indonesia.30 Austra- decide to punish the crime, certain categories 80 Dr Antje Missbach and Assoc Prof Wayne Palmer, Deterring asylum seeking in Australia of officials, such as officers of the Australian countries in the Indo-Pacific region might Secret Intelligence Service, who were report- follow suit and adopt the Australian prac- edly involved, enjoy immunity from liability tice to some extent, which would result in under Australian law.38 Likewise, there seems even weaker protections for maritime asylum to be little appetite in Indonesia to reopen the seekers and refugees in the region. For case, as the Indonesian government does example, during the Andaman Sea Crisis in not deem it a priority and its officials are busy May 2015, Malaysia, Thailand and Indonesia with other policy problems. all carried out pushbacks against Rohingya asylum seekers fleeing Myanmar until interna- iv State, illegality and a new generation tional criticism became too strong.44 of bordering practices In conclusion, the unilateral policies pursued by the Australian government under Putting aside the Andika case and taking its Operation Sovereign Borders have threat- a wider look at the advancement of global ened to undermine the fragile regional collab- bordering practices by states, it becomes oration between states and the already weak apparent that bordering practices to deter protection spaces for asylum seekers. Pursu- asylum seekers are becoming more diver- ing its own interests at a neighbour’s expense sified and are not always legal. There is a will not only weaken Australia’s diplomatic growing body of literature that focuses on relations, but also severely undermine inter- different kinds of interceptions, concentrat- national trust in Australia’s adherence to ing in particular on uni-, bi- and multilateral the rule of law. In this regard, Australia can initiatives to combat people smuggling and be deemed to be playing with fire by setting block access to asylum.39 Interceptions are dangerous precedents that might then be often used to prevent unauthorised arriv- copied by other states beyond the region. als of vessels and their passengers, but are only permissible in certain situations as Antje Missbach is a Senior Lecturer outlined in international law.40 When called to at the School of Social Sciences at Monash University, Australia and a account, governments in destination coun- Senior Research Fellow at the Arnold tries, such as Australia, are known to ‘quar- Bergstraesser Institute in Freiburg, antine domestic law and policy from [their] Germany. Her research interests include the socio-legal dimensions of international legal obligations’, for example, forced migration in Southeast Asia, by attempting to prevent the use of interna- border regimes, asylum policies and tional law when assessing the legality of their refugee protection in the Asia-Pacific, 41 as well as diaspora politics and long- interception activities. They also selectively distance nationalism. She is the author choose articles under international law to of Troubled Transit: Asylum Seekers justify their interception activities while ignor- Stuck in Indonesia (ISEAS, 2015) and 42 Politics and Conflict in Indonesia: ing obligations in others. The Role of the Acehnese Diaspora Although the number of boats reaching (Routledge, 2011). Australia has substantially decreased since Wayne Palmer is an Associate the start of Operation Sovereign Borders, the Professor in the Department of direct and indirect costs of interceptions and International Relations at Bina returns of asylum seeker boats remain high Nusantara University, Indonesia. His research projects focus on –– not only in financial terms, but in human policy processes in Indonesia, with costs and even political terms.43 Unilateral a particular focus on anti-people action might bring quick results in prevent- smuggling law and policy and institutional capacity to enforcement ing people smuggling, but cannot guarantee migrant rights. He is the author of long-term success. In addition to the unsus- Indonesia’s Overseas Migration tainability of these methods in the long-term, Programme (Brill, 2016), which provides the first detailed, critical they might result in unwanted impacts. For analysis of the way in which the example, the nature of the Australia-Indonesia programme is managed and how it fits relationship in seeking to combat and prevent with other developments within the Indonesian government. people smuggling marks this risk very clearly, as unannounced and unapproved turnbacks could jeopardise Canberra’s diplomatic rela- tions with Jakarta. More drastically, other 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, 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 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) 82 Dr Antje Missbach and Assoc Prof Wayne Palmer, Deterring asylum seeking in Australia Tension between the government and the courts Surgical theatre of Lorengau Hospital on Manus Island. Manus Island, 29 October 2017 (Amnesty International/AAP Image) 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 Court of Australia, on behalf of children care and Plaintiff M68/2015 and adults living in offshore detention who 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 having what appeared to be an epileptic fit. It representative for DIZ18 v Minister for Home was not possible to diagnose the fits on Nauru, Affairs (‘DJA18’) in June 2018.16 as they did not have the necessary equipment, AYX18 was a 10-year-old boy at the time but S99 had been suffering from them since the application was filed. He had been sepa- her teenage years. As a result of that rape, she rated from his father, who had been flown became pregnant and required a termination. to Australia for medical treatment. The boy Due to her complex health needs, doctors required an operation, which his mother recommended that she be brought to Australia would not consent to him undergoing in urgently to undergo the procedure. Nauru, due to the history of deaths following Instead, the Minister took her to PNG. operations in the only hospital there. Doctors Having taken steps to facilitate the neces- on Nauru recommended that the boy be sary medical treatment (the termination) for brought to Australia for the operation. S99, Bromberg J found that the Minister had Soon after that recommendation was a duty to ensure that medical treatment was rejected, the boy attempted suicide twice, provided safely and legally. His Honour went by taking tablets and attempting to stran- on to find that she could not receive a safe gle himself with a curtain. He also had to or legal termination in PNG, where abortions have a knife forcibly taken from him. Perram remained illegal and a couple had recently J granted the injunction sought so the boy been prosecuted for procuring one.8 He could get the care he so urgently needed.17 granted the requested injunction preventing DJA18, brought by Maurice Blackburn the Minister from procuring the termination Lawyers, was the case of a two-year-old there. This was the first case that found a child with suspected herpes encephalitis, duty of care was owed to refugees or asylum ‘a serious and life-threatening neurological seekers who had been taken to Nauru or condition’.18 Instead of following the medical PNG by the Australian government. recommendation that the child be flown from Nauru to Australia for treatment, the iii The first suite of 2018 cases Minister chose to take her and her mother to PNG, where the Minister argued she could Because the legal strategy was novel, the get adequate treatment. Her father was not NJP moved slowly to build on the precedent permitted to travel with them, even though set in Plaintiff S99/2016. It commenced a he was the only family member with English number of cases, largely focusing on chil- language skills. Instead, he was left in Nauru. dren suffering from severe psychiatric or Medical evidence was clear that any delay other health problems. FRX17 was the first, in treatment could lead to severe, life-long brought in December 2017.9 complications. Murphy J granted orders that FRX17 was a case of a young girl, ‘not required the transfer of the child, her mother yet a teenager’,10 who attempted suicide on and her father to Australia within 48 hours.19 9 December 2017 by taking an overdose of medication, and continued to experience iv Emerging mental health crisis suicidal ideation.11 Eleven days later, the NJP filed in the Federal Court, seeking an inter- In June and July, children and adolescents locutory injunction which would force the on Nauru started exhibiting increasingly Minister to provide her with urgent psychi- dangerous symptoms of mental illness. In atric care. Murphy J considered that the July 2018, NJP alone filed four separate balance of convenience, in view of evidence cases in the Federal Court seeking urgent showing a child of extreme suicide risk, medical care for severely ill children and strongly supported the granting of the injunc- teenagers. Two additional applications were tion.12 His Honour was not persuaded by the made by other firms that month. A crisis was Minister’s argument that the injunction would quickly unfolding. ‘potentially impinge upon the conduct of We have no insight into why the cases foreign affairs’, given it did not lead evidence escalated so rapidly. The judgments and to this end.13 Requests for an expedited research, however, give some indication. trial were not granted,14 given the imminent In BAF18 as litigation representative for suicide risk. FRX17 was followed by AYX18 BAG18 v Minister for Home Affairs,20 brought 86 Anna Talbot and Adj Prof George Newhouse, Strategic litigation, offshore detention and the Medevac Bill by Russell Kennedy, Bromberg J found that Around this time, children and teenag- the very environment on Nauru stifled chil- ers started attempting suicide and self-harm dren’s development, as children are not ‘able to at alarming rates. Children started dousing undertake the anticipated tasks of adolescence themselves in petrol and trying to set them- associated with preparing for independence selves alight.35 Others took whatever pills and adulthood’, thereby stifling the applicant’s they could find, or cut themselves repeated- development, despite him being ‘identified as ly.36 Psychosis started to emerge in children bright’.21 Further, he found that ‘the applicant’s and teenagers.37 There were no facilities on continued residence on Nauru is a causative Nauru that could manage these conditions, and contributing factor in his mental illness and yet the Minister continued to resist trans- substantial risk of self-harm’.22 fers.38 It appeared to be only a matter of time Médecins Sans Frontières (‘MSF’) before this crisis level of mental illness in provided independent mental health treat- children would be lethal. ment on Nauru between November 2017 NJP quickly developed effective ways to and October 2018. Its report — titled ‘Indef- work with people offshore and close relation- inite Despair’23 — details some key factors ships within the sector. Suddenly lawyers’ in the decline in mental health MSF doctors phones were full of photos of critically ill and witnessed while they were on Nauru: the injured children and their medical records, long and indefinite nature of the detention;24 sent to us by their parents as evidence, gath- widespread experiences of violence and/ ered to prove that our clients needed urgent or harassment in Nauru (including sexual care. The Asylum Seeker Resource Centre violence), often exacerbating feelings of triaged the cases and helped NJP gather helplessness and historical trauma;25 rejec- evidence. The Human Rights Law Centre tion letters for resettlement in the USA came on board to help train other lawyers in started being received in May;26 and the how to run these cases. tragic death of a well-respected young man The situation continued to deteriorate. in June 2018.27 Five cases were filed in August when there Resignation Syndrome (also known as were still over 100 children on Nauru.39 Nine Pervasive Refusal Syndrome or Traumatic were filed in September,40 then 17 in Octo- Refusal Syndrome) started emerging at about ber.41 The strategy was working. this time, the condition underlying two of The court cases were just the tip of the the four cases NJP filed in July 2018.28 This iceberg: for every case filed, the NJP acted Syndrome, previously only seen in foreign for triple that number to secure urgent countries, saw children stop eating, drinking, medical transfer (although in many of these talking and getting out of bed. As the Syndrome cases, we were only days, hours and some- progresses, sufferers experience wasting and times minutes away from filing). All of these give up on showering and toileting themselves. people, or a member of their family, had been All of these symptoms were seen in children on at imminent risk of permanent harm or death Nauru. It can quickly become life-threatening if they did not get the treatment the doctors or cause permanent disability.29 said they urgently needed. Many were hospi- In DWE18, an adolescent was diagnosed talised for weeks or months when they finally with Resignation Syndrome.30 Her food and arrived in Australia. fluid intake was so low she required hospi- At the same time that these injunctions talisation for rehydration in Nauru.31 Expert were being fought and won, the sector was medical evidence indicated that she needed looking for a better way. The cases were urgent inpatient treatment for Major Depres- attracting significant media attention, the sive Disorder and Resignation Syndrome, and Australian Medical Association and doctors was at risk of developing kidney failure, perma- were raising their voices and it was becom- nent cardiac and/or neurological damage if ing clear that the Minister’s resistance she did not receive treatment.32 Nauru Hospi- was not sustainable. The ‘Kids Off Nauru’ tal did not have the necessary facilities, such campaign gathered momentum under the as EEG or child and adolescent psychiatric leadership of the Asylum Seeker Resource experts and facilities, to monitor and treat Centre, Refugee Council of Australia and her.33 Robertson J made orders that the girl World Vision Australia. The final children left be transferred to Australia for treatment.34 Nauru in February this year.42 Court of Conscience Issue 13, 2019 87 Medical area treatment at the detention centre on Manus Island. Manus Island, 21 March 2014 (Eoin Blackwell/AAP Image) 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 facilitate transfer except in specific circum- fate of this Bill, however, there is now an army stances.44 The Minister can only refuse transfer of lawyers around Australia with the expertise if he believes that transfer is not necessary,45 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 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) 90 Anna Talbot and Adj Prof George Newhouse, Strategic litigation, offshore detention and the Medevac Bill Reforming judicial courts the and government the between Tension review since Tampa Attitudes, policy and implications Jack Zhou In the flurry of legal and political activity reductions as a result of various legislative surrounding the Tampa crisis, the Migration amendments. Judicial review is only a way Legislation Amendment (Judicial Review) Act of vetting administrative errors, and is not a 2001 (Cth) was pushed through Parliament — process for reconsidering a migration decision. one of a series of amendments to the Migra- It is an important mechanism in the context of tion Act 1958 (Cth) (‘Migration Act’) passed in migration, primarily in addressing decisions direct response to the crisis.1 It formed a major made by ministers or officers which fall short attempt to reduce the scope of judicial review of constitutional or legislative boundaries.2 available for migrants, refugees and asylum Judicial review also plays a role in Austra- seekers. This article will survey the attempts to lia’s detention policy for refugees arriving eliminate and curtail judicial review in the wake by boat. Its restriction, according to Brian of the Tampa crisis. It will also examine the Opeskin, has prevented detained refugees rhetoric on border security and national sover- from seeking recourse, breaching art 9(4) of the eignty precipitating legislative attacks on judi- ICCPR,3 which guarantees detained persons cial review, which was perceived as obstructing ‘an entitlement to bring proceedings before a government policy, overburdening the courts, court to allow it to decide on the lawfulness and at too great an expense for taxpayers. Its of the detention and to order release’.4 Despite consequences and implications for offshore attempts to curtail it, judicial review is still detention will also be discussed, particularly entrenched in s 75 of the Constitution. the introduction of offshore processing — outside domestic Australian jurisdiction — as ii Attitudes and reform a means to avoid judicial review. Since 1998, parliamentary debates over i The importance of judicial review how to deal with the perceived financial and administrative burden of migrant litigation The reach and scope of judicial review in rela- led to the Migration Legislation Amendment tion to migration decisions has faced dramatic (Judicial Review) Bill 1998,5 which remained Court of Conscience Issue 13, 2019 91 Australian Aarmy patrols near the MV Tampa. Christmas Island, 3 September 2001 (Dita Alangkara/AAP Image) 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 and cannot be subject to any sort of judicial period were underpinned by perceptions of review or challenge.10 ‘deviancy’.20 To that end, judicial review was 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- tion Act].’25 Privative clauses did not apply to dictional error’. Denis O’Brien argues that decisions made ‘purporting to be under the ‘the privative clause… has not achieved its Act’, that is, a decision involving a jurisdic- intended effect’ but ‘merely had the effect tional error.26 This reading would make judi- of returning judicial review in the area to the cial review possible only if the decision was complexity associated with the preroga- erroneous and outside the decision-maker’s tive writs and the language of jurisdictional jurisdiction, where it could not be defined as error’. 36 Numerous cases have considered a privative clause decision. Parliament could this issue, attempting to define what is and is not completely extricate itself from judicial not a ‘jurisdictional error’.37 review. While the High Court did not find s However, there remains a significant 474 inconsistent with the Constitution, they concern that judicial review may be unavail- nevertheless retained judicial review, reserv- able for refugees placed in offshore detention. ing it for cases of ‘jurisdictional error’.27 Although privative clauses and other restric- Further reforms to judicial review appeared tions to judicial review have been resisted, in the following years. With the Migration Liti- the High Court’s original jurisdiction to hear gation Reform Act 2005 (Cth), the Federal these matters is confined to a function by ‘an Circuit Court (then the Federal Magistrates officer of the Commonwealth’.38 Throughout Court) was given the power to exercise judi- the Tampa crisis, the government ensured cial review on the bulk of migration cases.28 that the asylum seekers’ vessel could not The Federal Circuit Court’s jurisdiction over have contact with a migration official, but these matters is the same as the jurisdiction instead dispatched SAS troops to intercept conferred upon the High Court under s 75(v) them. The troops had no ‘relevant statutory of the Constitution, but with exceptions laid or common law duties under the Migration out in s 476A of the Migration Act.29 Through- Act … [t]he supervisory jurisdiction of the out these reforms, Parliament attempted to High Court under s 75(v) of the Constitution reframe s 486A of the Migration Act to include was not relevant in their instance’.39 This absolute time limits for judicial review appli- method of depriving judicial review would cations.30 This was later found constitutionally form a major rationale for the Pacific Solution invalid by the High Court in Bodruddaza.31 In and subsequent offshore processing policies response, the Migration Legislation Amend- — according to Duncan Kerr, ‘the Howard ment Act [No. 1] 2009 (Cth) enacted a 35-day government’s strategy of avoiding judicial time limit with discretion to seek an order from review by keeping officers of the Common- the High Court to extend the time limit.32 wealth away from possible legal engagement 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 review, after claims that the terms under pt 8 offshore detention facilities. Christmas Island were unduly ambiguous.33 The Bill provides was removed from the Australian migration that purported non-privative clause deci- zone through the Migration Amendment sions (ie decisions affected by jurisdictional (Excision from Migration Zone) Act 2001 error) are ‘reviewable by the Federal Circuit (Cth),41 meaning that a refugee who arrives at Court’. 34 It has been said this will ‘ensure that Australia via Christmas Island — or another applicants seeking judicial review of migration offshore territory — is treated as an ‘offshore decisions would have substantially the same entry person’. rights as applicants seeking judicial review In 2008, Christmas Island became the of most other Commonwealth administrative primary area for processing an ‘offshore decisions’.35 However, as of April 2019, the Bill entry person’.42 Such a person cannot has lapsed in the Parliament. receive a Protection Visa nor make a valid application for one unless the Minister iv Implications for offshore detention decides it is in the public interest to allow it.43 Hypothetically, the process of refugee Far from eliminating judicial review, the addi- determination for an onshore claimant can tion of privative clauses and the results of be reviewed by the Administrative Appeals subsequent cases have instead raised ques- Tribunal (before 2015, the Refugee Review 94 Jack Zhou, Reforming judicial review since Tampa Tribunal),44 the Federal Court and eventually outside of s 198AHA of the Migration Act. the High Court, but this would be unavailable Justice Gordon’s dissent also highlighted that to an offshore refugee. However, the case the government should not escape account- Plaintiff M61/2010E; Plaintiff M69/2010 found ability in regards to their offshore detention that offshore entry persons whose claims regime: ‘the fact that the place of detention is were considered by the Australian govern- outside Australia does not mean that legisla- ment can still challenge and have their claims tive power is relevantly unconstrained’.50 reviewed under s 75 of the Constitution.45 The government’s attempt to restrict judicial v Conclusion review was once again resisted. Nevertheless, by 2013 all unauthorised Despite repeated attempts, judicial review refugee arrivals were sent offshore to Nauru relating to migrant decisions has resisted or Papua New Guinea for processing without substantial erosion. The institution itself has any prospect of settling in Australia, fulfilling been marked by a series of tensions between its original purpose as a ‘shield against the the courts and the government, becoming a possible intervention of Australian courts’.46 target of legislative attack once the issue of While the government has settled into the refugees enters political debate. Through- current offshore regime at the cost of much out the Tampa crisis, judicial review found human suffering, the legality of that regime itself a feature of increasingly polarised polit- has been challenged. Over 2016–2017, two ical discourse, shored up by anxieties over cases were heard before the High Court national sovereignty, border security, and the concerning the lawfulness of the detention purported abuse of courts by ‘deviant’ refu- of refugees: Plaintiff M68/2015 involved a gees. Amongst the Coalition’s major amend- detainee in Nauru,47 and Plaintiff S195/2016, ments to the Migration Act, the introduction which began as a class action by refugees on of privative clauses intended to effectively Manus Island but was ultimately heard on a sidestep constitutional judicial review. When single plaintiff.48 this strategy proved unsuccessful, offshore While both decisions ruled against the detention would eventually form a key mech- applicants and upheld the legality of offshore anism for the continued deprivation of judi- processing, Plaintiff M68/2015 highlighted cial review for refugees and migrants. the limitations of the Government’s power to detain refugees in Nauru and Manus Island.49 Jack Zhou is a second year Bachelor The majority emphasised that the govern- of Arts/Laws student at UNSW. ment could not detain a person for purposes References 7 Commonwealth, Parliamentary of bipartisan governmental mistrust of Debates, House of Representatives, 26 the role performed by courts in reviewing 1 Helen Pringle and Elaine September 2001, 31559 (Philip Ruddock). migration decisions.’: Ronald Sackville, Thompson, ‘The Tampa Affair and 8 Migration Act 1958 (Cth) pt 8, ‘Judicial Review of Migration Decisions: the Role of the Australian Parliament’ as amended by Migration Legislation An Institution in Peril?’ (2000) 23(3) (2002) 13 Public Law Review Amendment (Judicial Review) Act 2001 University of New South Wales Law 128, 136. (Cth) sch 1 item 7. Journal 190, 196. 2 Brian Opeskin, ‘Managing 9 Migration Act 1958 (Cth) s 13 Ibid 200. International Migration in Australia: 474(2). 14 Ibid; Minister for Immigration 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. Sovereignty”’ (2012) 46(3) International role of border security in the Coalition’s 15 Commonwealth, Migration Review 551, 564. campaign and ultimate victory, see Ian Parliamentary Debates, House of 3 International Covenant on McAllister, ‘Border Protection, the 2001 Representatives, 26 September 2001, Civil and Political Rights, opened for Australian Election and the Coalition 31560 (Philip Ruddock). signature [16 December 1966], 999 Victory’ (2003) 38(3) Australian Journal 16 Alan Freckleton, UNTS 171 (entered into force 23 March of Political Science 445. Administrative Decision-Making in 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. 5 Migration Legislation to Ronald Sackville QC, ‘the current and 17 Ibid. Amendment (Judicial Review) Bill 1998 proposed restrictions on judicial review 18 Catherine Dauvergne, (Cth). reflect dissatisfaction by successive ‘Challenges to Sovereignty: Migration 6 Migration Legislation governments, from both sides of politics, Laws for the 21st Century’ (Working Amendment (Judicial Review) Act 2001 with the workings of judicial review of Paper No 92, 13th Commonwealth (Cth). migration decisions… there is a pattern Law Conference, April 2003) 2 quoted Court of Conscience Issue 13, 2019 95 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 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 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 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. 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 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) 96 Jack Zhou, Reforming judicial review since Tampa Rethinking the courts the and government the between Tension character power as it relates to refugees and asylum seekers in Australia Dr Jason Donnelly i Introduction ii Relevant statutory regime 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 Court of Conscience Issue 13, 2019 97 Minister for Home Affairs, Peter Dutton (Glenn Hunt/AAP Image) 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 mandatory cancellation decision made under • it being reasonable to infer that a 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 considerations into account valid application for a Protection Visa in the future. In accordance with cl 8(4) of Direction 79, 3. There are three fundamental difficul- primary considerations should generally be ties with this policy principle. given greater weight than the other consid- erations. Critically, the effect of this policy First, despite the fact that a non-citizen may principle is to mandate that non-refoulement advance claims that give rise to international obligations should generally be given less non-refoulement obligations in the context weight than the primary considerations. of a character case, there is judicial authority In other words, at a lower level of abstrac- that those claims need not be considered by tion, this means that the primary consider- the decision-maker.29 As such, non-citizens ation related to protection of the Australian could potentially lose a powerful discretionary community is generally given greater weight consideration (as related to non-refoulement than considerations related to Australia’s obligations) being taken into account in deter- non-refoulement obligations. mining whether their visa should be cancelled, It is contended that the consideration refused or a mandatory cancellation decision related to non-refoulement obligations should revoked on character grounds.30 be treated as a primary consideration for the Secondly, the apparent lack of necessity to purposes of Direction 79. After all, non-re- consider non-refoulement claims (advanced in foulement obligations concern serious consid- the context of character cases) may directly or erations related to a threat to a person’s life or indirectly contribute to the non-citizen remain- liberty, involving significant physical harass- ing in immigration detention for a substantial ment, significant physical ill-treatment, signif- period of time.31 If consideration of a non-citi- icant ill-treatment, significant economic hard- zen’s non-refoulement claims are deferred until ship (that threatens the person’s capacity to he or she lodges an onshore Protection Visa subsist), denial of access to basic services application in the future (after their character (where the denial threatens the person’s case is decided unfavourably), the non-citizen capacity to subsist) and denial of capacity to will be required to remain in immigration deten- earn a livelihood of any kind (whether the denial tion for a substantial period of time until their threatens the person’s capacity to subsist).27 Protection Visa claims are assessed.32 It seems unthinkable that in circumstances Had a compelling non-refoulement claim where a non-citizen has a well-founded fear been considered in the context of a character of facing serious harm if they are returned to case decided under s 501 of the Migration their home country, that such a consideration Act, the non-citizen may have been granted is generally given less weight than the primary a visa, not had their visa cancelled or been considerations reflected in Direction 79. successful in having a mandatory cancel- However, as Colvin J confirmed in Suleiman,28 lation decision revoked (thus avoiding the ‘absent some factor that takes the case out necessity for continued immigration deten- of that which pertains “generally”’, primary tion as an unlawful non-citizen in Australia). considerations are to be given greater weight. As Bromberg and Mortimer JJ make plain in BCR16,33 in determining a character case iv Difficulty two: deferral of under s 501 of the Migration Act, the Minister decision-making is able to give greater weight to a small risk of persecution than is otherwise permitted Clauses 10.1(4), 12.1(4) and 14.1(4) of Direction where a decision-maker formally considers a 79 mandate that it is unnecessary for delegates Protection Visa application.34 to determine whether non-refoulement obliga- Thirdly, it is fairly arguable that cl 14.1(4) tions are owed to a non-citizen for the purposes of Direction 79 is inconsistent with the stat- of determining whether their visa should be utory regime mandated by s 501CA(4) of the cancelled, refused or a mandatory cancellation Migration Act. Pursuant to s 501CA(4)(b)(ii), decision revoked in circumstances where: a decision-maker has a statutory power to 1. The non-citizen makes claims which revoke a mandatory cancellation decision if may give rise to international non-re- satisfied ‘that there is another reason why the foulement obligations; and original decision should be revoked’. 100 Dr Jason Donnelly, Rethinking the character power as it relates to refugees and asylum seekers in Australia In Viane,35 the Full Court of the Federal officer’s duty to remove (as soon as reasonably Court of Australia interpreted s 501CA(4) practicable) an unlawful non-citizen pursuant of the Migration Act to mean that a deci- to s 198 arises ‘irrespective of whether there sion-maker has an obligation to consider has been an assessment, according to law, matters that carry significant weight or of Australia’s non-refoulement obligations in significance to satisfy the decision-maker to respect of the non-citizen’.42 revoke a mandatory cancellation decision.36 Thus, ‘if the Minister did not exercise one of If a non-refoulement claim is ‘seriously his discretionary powers to grant the non-citi- and substantively advanced’37 by a non-cit- zen a visa’, the effect of s 198 (when read with izen in the context of a case that concerns section 197C of the Migration Act) ‘appears to s 501CA(4) of the Migration Act, it is likely be that the non-citizen would be required to be that such a representation would need to be removed from Australia regardless of Austra- considered by the decision-maker (regard- lia’s international non-refoulement obliga- less of an opposite conclusion being reflected tions’.43 Indefinite detention is not a possibility.44 in cl 14.1(4) of Direction 79); this is because the advancement of a clearly expressed vi Conclusion non-refoulement claim is likely to be charac- terised as a ‘significant matter’. To contend Direction 79 formally commenced in Austra- otherwise would be a failure to conform to lia on 28 February 2019. Despite the relatively the statute.38 ‘The statutory requirement for recent nature of this ministerial direction,45 it is the Minister to invite representations must clear that relevant principles espoused in this lead to the conclusion that if representations significant policy document are arguably not are made as to significant matters then the correct as a matter of law. Critically, a matter Minister must consider whether to revoke the of significant concern, various of the impugned original cancellation and do so by consider- policy principles identified in this paper have ing the representations as to those matters’.39 the potential to adversely impact the rights of refugees and asylum seekers in Australia.46 v Difficulty three: status of indefinite Serious and urgent reform to Direction immigration detention 79 is required. Non-refoulement obligations, when raised in character cases, should always Clauses 10.1(6), 12.1(6) and 14.1(6) of Direc- be treated as primary considerations by the tion 79 outline that: relevant decision-maker. The nature of such a Given that Australia will not return a person consideration, being non-refoulement obliga- to their country of origin if to do so would tions, inherently raises matters of international be inconsistent with its international concern that are significant and important. non-refoulement obligations, the operation Where a non-citizen raises a non-re- of sections 189 and 196 of the Act means foulement claim in the context of their character that, if the person’s Protection Visa were case, there should be a mandatory obligation cancelled, they would face the prospect of to consider such a claim (regardless of whether indefinite immigration detention. the non-citizen may make a future onshore Protection Visa application). Such a proposal It appears that this policy principle is argu- could potentially reduce the time non-citizens ably not correct as a matter of law.40 This spend in Australian immigration detention and policy principle appears to indicate that if a otherwise expressly demonstrate that Australia non-citizen’s Protection Visa is cancelled, takes its non-refoulement obligations seriously. the non-citizen faces the prospect of indefi- Finally, if a non-citizen’s Protection Visa nite immigration detention in Australia (on the has been refused on character grounds, it is assumption that Australia will not remove the clear that they are required to be removed non-citizen to his or her home country). from Australia in accordance with s 198 of the The preceding policy principle appears to Migration Act. In those circumstances, given squarely conflict with s 197C(1) of theMigra - the statutory effect of s 197C of the Migra- tion Act, which makes plain that it is irrelevant tion Act, the non-citizen does not face the whether Australia has non-refoulement obli- prospect of indefinite immigration detention gations in respect of an unlawful non-citizen.41 in Australia (but faces likely refoulement). As Further, under s 197C(2) of the Migration Act, an such, this state of affairs should be correctly 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 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 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 The need for statutory reform Farina, South Australian Outback (Adrianbutera/Wikimedia Commons) 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 exceeded 20,000. In 2008, the Rudd Govern- 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 to include asylum seekers who arrived until Protection Visa, is that they must satisfy s 5H 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 contrast in their treatment and to critically the humanitarian intake have focused on examine the government’s proposed raison boat arrivals taking the ‘backdoor’ route d’être for the current Temporary Protection into Australia,15 which is also reflected in Visa regime. protection policies that differentiate between people seeking asylum based on their mode ii Papers, boats and planes of reaching Australia. Those favouring plane arrivals often cite security considerations Available visas for boat arrivals such as the fact that those arriving by plane One’s mode of arrival to Australia as a person must have a valid visa which they would have seeking asylum is determinative of his or been granted only after fulfilling a series of her fate. The options for fast track appli- tests including health and character checks,16 cants are the three-year TPV and the five- unlike people arriving by boat who are yet year Safe Haven Enterprise Visa (subclass to be cleared. The self-selection method 790) (‘SHEV’).6 The concept of tempo- of boat arrivals amounting to a perceived rary protection was initially pushed by One infringement of Australia’s sovereignty, as Nation Party leader Pauline Hanson in 1998, well as concerns about the riskier nature of who proposed that all refugees be given only the journey by boat also serve to juxtapose temporary visas,7 and then implemented by the two groups.17 the Howard Government in October 1999 On the other hand, discriminating to apply to those arriving in Australia unau- between those seeking asylum on the basis thorised and by boat; which has partly been of their method of arrival is contrary to art attributed to electoral anxiety stemming 31(1) of the 1951 Convention Relating to the from the Queensland Coalition government Status of Refugees (‘Refugee Convention’),18 facing major swings towards One Nation at a and hence contrary to the views of the inter- state level.8 The TPV was then abolished by national community, at least nominally. The the Rudd Government in 2008,9 but subse- contrast between the categories of appli- quently re-introduced alongside its 5-year cants is also firmly entrenched through the variant by the Abbott Government in 2014.10 rhetoric espoused by politicians and polit- People seeking asylum who arrive in ical commentators, that is heavily charac- Australia with a valid visa, such as a student terised by negative terminology such as visa, and following immigration clearance, ‘queue jumpers’ and ‘economic migrants’.19 can apply for an onshore Permanent Protec- The contrasting treatment of boat and plane tion Visa (subclass 866).11 A common require- arrivals, which creates a ‘two-class system ment for applicants, whether they apply for a for refugees’20 obscures the fact that both 106 Sanjay Alapakkam, A ‘legacy’ of uncertainty Number of people attampting to reach Australia via boat Figure 1: A timeline of the number of people who attempted to reach Australia via boat every year and major policies surrounding unauthorised maritime arrivals, in the years 1999–2019.24 groups of people must meet the definition of that changes in TPVs was not the main causal a refugee.21 The added references, by polit- factor in the number of people attempting ical figures, to boat arrivals as ‘economic to reach Australia by boat as seen through migrants’ implicitly misrepresents boat arriv- a general comparison of the two factors als as raising unmeritorious asylum claims over the time period between 1999 to 2019. based on their mode of arrival, despite the Specifically, the current version of temporary fact that out of all finalised applications protection was enacted only after the sharp for ‘Illegal Maritime Arrivals’, almost 70% decline in the number of arrivals per year. resulted in visa grants.22 More importantly, the current iteration of temporary protection is only available for Rationale of deterrence fast track refugees and hence, TPVs and Deterring people from coming by boat to SHEVs would not affect people arriving after Australia has been and continues to be one 1 January 2014.25 However, if misinformation of the main justifications provided by Austra- is considered to be a main ‘pull factor’ for lian governments for the implementation of boat arrivals, then a change in any migration harsher policies against boat arrivals.23 This policy could theoretically be misrepresented article is not exploring the validity of justifi- by people smugglers to desperate people cations to achieve deterrence but rather the seeking asylum. Therefore, any causal link causal link that appears to be drawn between between temporary protection and deter- the appropriateness of temporary protection rence26 is tenuous at best. The Morrison for fast track refugees and the proposed government demonstrated a similar atti- purpose of achieving deterrence. tude towards the Home Affairs Legislation While decreases in the annual number Amendment (Miscellaneous Measures) Act of boat arrivals appear to correlate with 2018 (Cth),27 where panic was expressed out the implementation of temporary protec- of concern that people smugglers would be tion, periods of change involving tempo- able to sell a pathway to Australia through rary protection policies have generally been Medevac,28 despite the fact that the legislation accompanied by significant reform in migra- applies only to people seeking asylum who tion laws and policies more broadly. The are already detained in the ‘regional process- timing of the relevant reforms also indicates ing’ centres in Nauru or Manus Island,29 and Court of Conscience Issue 13, 2019 107 that people who arrive to Australia today In reality, this would be difficult for most would either be turned back or ‘taken back’.30 refugees because of the onerous require- The legitimacy of the deterrence rationale is ments, along with any mental or functional further eroded by the fact that the system impairments, and the innate risk of isola- is punitive in design against those arriving tion. The LC refugees’ ability to subsist is by boat which contradicts art 31(1) of the adversely affected by the short-term nature Refugee Convention which prohibits the use of temporary protection, which limits oppor- of penalties against refugees on the basis of tunities to establish and grow their skills and/ their ‘illegal entry or presence’.31 or businesses, fosters employers’ potential negative biases due to the uncertain nature iii Need for change of their future residency status,43 and limits their access to support services for labour Uncertainty as to future residency market integration.44 The shorter length of In order to stay in Australia past the expiry of TPVs and SHEVs is also a barrier to one’s their visa, holders of TPVs must either apply ability to expand their social networks,45 and be granted a TPV again,32 or apply for which is a key factor determining one’s and be granted a SHEV.33 This would require chances to pursue higher skilled and higher an assessment of the applicant’s protection paying jobs. claims which would involve them once again The lack of certainty inhibits refugees’ 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- information about their country of origin. logical issues which would actually add Philip Ruddock, the architect of the first further pressure on the state and commu- iteration of TPVs,35 was initially opposed to nity groups.46 Overall, temporary protection Hanson’s proposal for a blanket replacement status, combined with the adverse mental of the humanitarian program with tempo- health issues of refugees and asylum seekers rary visas for all refugees, stating that it was can ‘hinder their socio-economic integra- unconscionable, ‘totally unacceptable’ and tion’,47 and place them at risk of isolation and would lead to uncertainty for refugees.36 financial stagnation. Reapplication for protection can place a refugee in limbo and act as an imped- Family reunion iment to one’s ability to start afresh and to People classified as ‘Illegal Maritime Arriv- attain a sense of stability as a result of the als’ would need to hold a permanent visa temporary protection system giving rise to in order to be able to sponsor one or more an ever-present risk of being denied a subse- family members to arrive to Australia under quent visa.37 Aside from existing psychologi- Direction 80 cl 8(1)(g),48 a Ministerial Direc- cal impairments stemming from experiences tion signed by Minister for Immigration, of persecution or of fleeing their homes, refu- Citizenship and Multicultural Affairs, David gees granted temporary protection, when Coleman, which dealt with matters includ- compared to those who have permanent ing but not limited to, the possibility of family protection status, have higher rates of PTSD reunification by way of visa holders being and other mental health conditions.38 The LC able to bring family members to Australia refugees’ temporary status is a causal factor from another country. As a result, holders of for greater rates and seriousness of their TPVs and SHEVs are precluded from being mental and functional impairment.39 eligible for family reunification. Given the One may be able to transition from a state of perpetual limbo in which LC refugees SHEV to a non-Protection Visa such as a are placed, they may face adverse social and family or skilled visa,40 provided that during psychological issues,49 which could be exac- the SHEV’s five-year term, the holder worked erbated by limiting refugees’ sense of belong- or studied in a regional area for 3.5 years, ing. Furthermore, s 91WB states that one meets relevant skill requirements and has not cannot apply for a protection merely because accessed social security payments for the they are a member of the same family as entirety of their SHEV.41 There may also be someone who has already been granted a English language standards, depending on Protection Visa.50 This is also designed to be the subsequent visa for which they apply.42 a part of the deterrence model; disincentivis- 108 Sanjay Alapakkam, A ‘legacy’ of uncertainty ing family members ‘travelling to Australia … the Kaldor Centre for International Refugee in the expectation of being granted a Protec- Law, that the solution enables ‘families to tion Visa’. 51 rebuild their lives together, in a safe and Subject to strict requirements, TPV stable environment’.57 In Canada, people and SHEV holders may travel to another found to be eligible for protection can apply country, except the one from which they seek for permanent protection.58 Once attaining protection, on compassionate or compel- permanent residence, one may, subject to ling circumstances, such as meeting their limitations, sponsor family members who are close relatives.52 However, given the lengthy overseas if they lodge an application within assessment processes as well as the real the one-year window that commences from likelihood that a refugee who is granted a the day that the resident refugee was granted visa here would have to obtain a temporary protection.59 Furthermore, an abolition of the visa multiple times before having a chance Temporary Protection Visa, and the concur- to attain a permanent visa that could provide rent introduction of a realistic pathway a pathway for family reunion, it could be to family reunification would be pivotal to many years before LC refugees are given the the long term empowerment of refugees in chance to live with their family again. their journey of ‘realis[ing] their potential’ and becoming ‘contributing members of iv The way forward Australian society’.60 TPVs were last abolished in 2008 under the v Conclusion Rudd Government which viewed them as causing suffering amongst refugees and inef- TPVs and SHEVs amount to a punitive fectual in stemming the influx of boats.53 TPV measure against refugees by subject- holders were transitioned to a permanent ing them to perpetual uncertainty, limiting counterpart.54 The main method of alleviat- upward social mobility, maintaining their ing some of the structural disadvantages and long-term separation from their families, difficulties faced by LC refugees is to transi- and cultivating a risk of ongoing isolation. tion them to a form of permanent residency These are factors which would have to be given that the difficulties they faced were endured in conjunction with a given refugee’s magnified, when compared with the holders existing trauma and fear of being returned of the onshore Protection Visa (subclass to the source of their persecution. Further- 866) based on key indicators such as mental more, the permanent and temporary protec- health and employment prospects.55 Reform tion dichotomy creates an artificial divide may involve expanding the eligible class of between plane arrivals and boat arrivals by persons for the 866 visa to include LC appli- requiring similar standards to be met for an cants, in combination with exempting LC assessment of eligibility, with punitive effects refugees and people seeking asylum from on the latter who simultaneously possess the caps set under s 39 of the Migration Act greater vulnerabilities and have relatively for the 866 visa in order to facilitate a tran- high rates of meritorious claims. It is impera- sition from temporary to permanent protec- tive that the possible means of transitioning tion. An alternative may involve the creation temporary protection recipients and appli- of a new visa for LC refugees upon further cants to permanent protection are explored, consultation with key stakeholders such as and that the implementation of such a the Migration Institute of Australia and migra- change is expedited, lest we prolong the pain tion agents in general, relevant community of those who sought our helping hand in an legal centres, and support organisations. hour of need. There also needs to be a reasonable process for permitting LC refugees to access family Sanjay Alapakkam is a third year reunion,56 as the current process, even for Commerce/Law student at UNSW. Permanent Protection Visa holders does not offer a realistic pathway for family reunion as it places applicants on an indefinite waiting list. Regardless of the ultimate approach taken, it is essential, as recommended by Court of Conscience Issue 13, 2019 109 References unauthorised maritime arrival, was mainland-australia-are-economic- immigration cleared on their last entry migrants-20140728-3copy.html>; 1 Commonwealth, into Australia, and held a visa that Shalailah Medhora, ‘“Nope, Nope, Parliamentary Debates, House of was in effect on their last entry into Nope”: Tony Abbott Says Australia Representatives, 25 September 2014, Australia, among other requirements. Will Take No Rohingya Refugees’, 10545 (Scott Morrison, Minister for 12 Migration Act (n 2) s 5H(1)(a); The Guardian (online, 21 May 2015) Immigration and Border Protection) Where the applicant is stateless, he or 110 Sanjay Alapakkam, A ‘legacy’ of uncertainty 2017) Court of Conscience Issue 13, 2019 111 Asylum seeker Raj from Sri Lanka. Manus Island, 28 November 2017 (AAP Image/Supplied by World Vision/ Nick Ralph) 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 ‘illegal immigrants’.4 I find these terms inappro- History does not repeat itself, priate and will proceed to use the term ‘irregu- but it does rhyme.1 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 signatory to the Refugee Convention led it out for what it is. It is human security at some Rohingya to make arrangements with crisis perpetuated by rule-based regulations people smugglers. These arrangements that are failing to protect the human security were for the purposes of making their way needs of irregular arrivals. Simply put, rule- to Refugee Convention signatory states like based regulations are a prescriptive way Australia and New Zealand. of regulating whereas principle-based regu- During my visit to the APOD, I gained lations are normative in nature. The former more out of the social visit than expected. This can be a set of rigid rules whereas the latter was partly because we conversed in Bahasa may be based on dynamic principles that Malaysia and did not need an interpreter. have a flexible approach taking into account I believe this direct form of communication put responsiveness and priorities. them at ease and lifted the inhibitions about the The example below by Burgemeestre, purpose of my social visit. My observation at Hulstijn and Tan illustrates the difference the end of the meeting was that, for the family, between rule-based regulations and princi- speaking freely about their life in the Rakhine ple-based regulations: State of Myanmar prior to the alleged perse- Rule-based regulation prescribes in detail cution and during the alleged fear from perse- how to behave: ‘On Dutch highways the cution, had therapeutic value, if not a tempo- speed limit is 120 km/hour’. In princi- rary relief from an emotional burden they often ple-based regulation norms are formu- suffer in silence with. Their grim nervous look lated as guidelines; the exact implementa- at the beginning of our meeting turned to broad tion is left to the subject of the norm: ‘Drive smiles at the end of our one-hour of social responsibly when it is snowing’.9 engagement. They talked about their human security while they were in detention and when The human security concerns of the Rohingya fleeing from persecution in Myanmar. For the family and the principle-based regulatory purposes of this paper, human security refers approach are central to the ‘reimagining’ of an to factors that have an impact on the safety alternative way forward. The first part of the and vulnerability of irregular arrivals while in article explains the ‘reimagining’ of the protec- detention onshore in Australia and offshore in tion approach to irregular arrivals based on the regional processing centres.6 To the Rohingya concept of human security. The second part family, their human security while in detention explains the reason for applying the human was about their right to access healthcare, security concept when dealing with irregular the right to education for their children, their arrivals. The third part qualifies the concept by personal security, the security of their commu- reference to the scholarship of Taylor Owen.10 nity within a detention setting, their right to The final part is a summary to an interdisciplin- work and their right to culture (for example ary analysis that explains the operationalisa- language, dietary preferences, dress code, tion of the concept through John Braithwaite’s and significant cultural calendar events). Their theory of principle-based regulation.11 It dream was to be granted refugee status and explains the need for a dynamic approach as resettle in Australia. opposed to a rigid rule-based prescription The story signifies that even if history when responding to the human security needs does not repeat itself in the way in which of irregular arrivals. The article sets out a high- people may choose to seek asylum, it does level interdisciplinary study on the intersection rhyme with the consequences of seeking of political science on human security with asylum in an ‘unregulated’ way: the conse- immigration law and policy in Australia in rela- quence being that asylum seekers are forced tion to irregular arrivals in detention onshore to seek refuge from ‘refuge’. The place of and offshore. refuge, that is, a Refugee Convention state, becomes a reason to seek an alternative ii The untenable status quo place of refuge because of their human secu- compels a need to ‘reimagine’ rity concerns. The prolonged, and in some protection approaches cases indefinite lengths of time in detention in regional processing centres, transforms Volker Türk noted that we have reached a their deemed ‘safe’7 place of refuge to a scale of such global significance that it is 114 Jeswynn Yogaratnam, Reimagining the protection response to irregular maritime arrivals no longer viable to maintain the status quo In the case of the Australian Govern- on protection obligations for those affected ment’s offshore regional processing arrange- by forced migration.12 The note of caution ments, the evidence-base informs us that the by Volker Türk can equally be applied to the regional processing centres have presented status quo of human security concerns faced irregular arrivals with insurmountable by irregular arrivals who are kept in detention. psychological harm and other health security It is also no longer viable. Triggs emphasised concerns.18 The recent Home Affairs Legis- that it is critical to remember in this context lation Amendment (Miscellaneous Measures) that ‘these aren’t statistics and they’re not Act 2019 (Cth) (commonly referred to as the just legal principles or abstract ideas ... ‘Medevac’ law) highlights the consequences You’re actually dealing with human beings.’13 of placing irregular arrivals in places where Triggs states that ‘it’s almost in our DNA in health security is not at par with Australian Australia to react negatively to those who standards.19 Indeed, the Medevac law is a arrive in the country in a way that the Govern- way forward in attempting to expedite trans- ment describes as illegal.’14 She noted that fers of irregular arrivals to mainland Austra- ‘the idea that our borders are insecure goes lia to respond to the health risks of those to the very heart of Australians’ sense of our transferred to Nauru or Manus Island. But own security and our own nationhood’.15 as a rule-based regulation it presents similar It is my opinion that the human secu- challenges to other immigration rules. It is rity approach responds to the observation weighed down by layers of discretionary by Triggs when it comes to treating irregular administrative decision-making processes to arrivals like human beings. This is because the point that, at first instance, the Minister of the human security approach addresses the Home Affairs can exercise ministerial powers vulnerability of the individual and may facilitate to overturn the decision of the doctors. a therapeutic and trauma-informed response Although the Medevac law provides for a when making policy for irregular arrivals. specialist panel to review the decision of the In addition, the human security approach Minister that circumvents the court process, may also expose the common national secu- the whole administrative review process rity and border security crisis to be in fact a could delay the urgency of the request by up crisis of the ruling political community. This to ten days for a transfer to take place after was noted by Bilgic in the European context, the panel has reviewed the matter.20 The delay where irregular arrivals are synonymised can exacerbate the health condition of the with notions of national security or border patient who urgently requires medical treat- security crisis.16 The lack of solidarity, the ment not available at the regional processing fear-mongering about irregular arrivals, the jurisdiction. This could lead to the Medevac panic on the scourge of people smuggling legislation failing to achieve its intended and the call for more rule-based regulations purpose, that is, to expedite transfers based draws political solidarity further away from on medical opinions. The argument here is practical responsibility-sharing solutions as not about the merit of Medevac law but the part of domestic, regional and international regulatory regime in which it operates, that cooperation. As a result, it enables the ruling is, a rule-based regulatory approach. Having political community, for example in Austra- said that, anecdotal evidence from certain lia, to fall into a state of disconnect with the not-for-profit organisations involved in the human security needs of irregular arrivals. referral of patients from the regional process- The disconnect leads to commitments that ing centres acknowledge that most decisions implement ‘hard-headed’ measures similar to by doctors are not challenged and where it is those found in Operation Sovereign Borders, called for review, the decision of the indepen- exacerbating the need for asylum seekers to dent panel is usually adhered to. seek refuge from ‘refuge’.17 This observation The recent laudable decision by the does not displace the importance of state Federal Court of Australia in CCA19 v sovereignty and the security of the state, but Secretary, Department of Home Affairs21 instead highlights the need to embed a form (the ‘Medevac case’) demonstrates that the of principle-based regulation that works in courts are willing to uphold the Medevac tandem with state sovereignty and national law by looking at the intent and purpose of security concerns. the law, as well as allowing for assessment Court of Conscience Issue 13, 2019 115 Still image from Simon Kurian’s documentary, ‘Stop the Boats’. Manus Island (Simon Kurian) 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- needs of asylum seekers. cantly’ and doctors advised that his transfer was ‘very urgent’.29 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 operationalised through principle- A snapshot to the human security based regulation approach by Owen Owen explains human security to be the Why principle-based regulation? ‘protection of the vital core of all human lives Braithwaite highlights that ‘[t]he big problems from critical and pervasive environmental, facing states would require creative regula- economic, food health and political threats.’30 tory solutions.’35 There is no doubt that the He explains that ‘critical’ attaches ‘urgency’ offshore regional processing policy is a big to the concept, that ‘pervasive’ attaches problem for Australia. As such, we need to ‘scale’ and that ‘vital core’ attaches ‘survival’ look for creative regulatory solutions because to the definition.31 Therefore, any type of harm as Braithwaite observed when referring to has the possibility of being a human security rule-based regulations: threat but it does not become an insecu- …traditions of excellence within the rity unless it has an objectively determined disciplines were narrowing their capac- degree of urgency and is of a wide scale that ity to deliver creative solutions to these threatens the life of the individual. big problems. If these creative solutions Owen’s approach suggests that the were to have a chance of arriving, regu- severity ‘bar’ should be set as a political line, lation could not continue to be thought meaning that international organisations, as an inelastic thing of law. Rather it national governments, experts and NGOs had to be seen as a multilevel dynamic would determine what would be included as process in which many actors play a part a human security threat at a given time in a and have varying capacities and means particular region.32 Therefore, the boundaries of intervention.36 are determined by political priority, capa- bility and will. This means that the primary Braithwaite’s regulatory theory which is responsibility for ensuring human security based on responsiveness places an ‘empha- falls on the national government. However, sis on flexibility and the complementarity of Owen cautions that ‘if threats crossing the regulatory instruments rather than following human security threshold are caused by the a preset sequence of responses.’37 Based on Government or if the Government are unable the earlier discussion of the Medevac law, it to protect against them, the international appears that the Medevac law operates on community should act.’33 a preset sequence of responses, from the Owen analyses human security from opinion of the two medical doctors to the the perspective of a threshold-based defini- administrative processes involved. This may tion, based on severity. According to Owen, affect the efficiency of responsiveness when human security can be both analytically dealing with cases of urgency and severity. 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? is that it looks at the consequence while The short answer to this question is to attach paying attention to the cause.34 The chal- principle-based regulations to the rules or lenge with this approach is the assessment create independent, principle-based regu- on the subjective nature of severity. I believe lations that have a responsive mechanism that this challenge can be addressed by a to the human security in question. The principle-based regulatory approach that principle-based regulatory regime is oper- sets guidelines on severity. The discussion ationalised or triggered once the responsi- on setting guidelines on severity is out of ble entity regulating the human security in scope for purposes of this paper but suffice question takes a responsive approach and to say that the Hamid Khazaie case is worth applies the fast-track regulatory mechanism. examining as a case study when developing For example, in the Medevac case, once the guidelines that deal with health and medical responsible entity from the Medical Evacua- needs as a part of the human security policy tion Response Team decides to transfer the for irregular arrivals at offshore regional patient from the regional processing country processing centres. to Australia, the decision authorises a fast- 118 Jeswynn Yogaratnam, Reimagining the protection response to irregular maritime arrivals track regulatory mechanism or a bypass from of the independent panel. The benefits of such rule-based regulations requiring ministerial an independent body will not only depoliti- approval. Instead, the next cause of action is cise the decision-making process but uphold predicated by the responsible entity making the fundamental principles regulating the a decision based on: one, the principle on the professional body responsible for conducting patient’s best interests; and two, the sever- medical assessments and making the medical ity to human security in question assessed. recommendations. Such decision-making Both assessments are made based on guide- enables principles from the ethical norms on lines or protocols that govern the profes- the best interest of the patient within the codes, sional body of the responsible entity. This guidelines and policies by the Medical Board means that the response to human security of Australia to be part of the broader regional needs will no longer require authorisation processing risk management policy on health from a government minister. Instead, the security of irregular arrivals.39 body that governs the security in question will have authority to make the responsive vi Conclusion decision. Regarding the Medevac case, the Kaldor Centre for International Refugee Law This article sets out the essence of reimagining succinctly describes the high level process the protection approaches applying the human and structure as follows: security approach through a principle-based An independent Medical Evacuation regulation. It is important to note that this Response Team [‘MER’] has been estab- paper is part of a broader theme under the UN lished to oversee the triage of people in Global Compact on Refugees 2018 (‘GCR’). offshore processing countries who are Much of the reimagining of human security in need of medical treatment. The group within the regional processing centres can is composed of a number of non-gov- be extended to the proposals for international ernmental organisations, who will work cooperation outlined in the GCR. The parallels directly with medical professionals. It to the people-centred40 as part of the human also includes caseworkers, counsellors security concept and the GCR make the reim- and lawyers.38 aging outlined in this paper a plausible way forward in the spirit of Trigg’s reminder that we While the current position of the Medevac law are dealing human beings.41 would still require the MER to gain approval from the Minister, the principle-based regula- Jeswynn Yogaratnam is a PhD tory approach would not. It does not require candidate at the Australian National University with an interdisciplinary amending the Medevac law but instead draft- research focus in international ing the operational policy framework from the refugee law, political science and provisions that currently authorises the powers regulatory theory. References 4 Australian Human Rights 7 On the issue of a ‘safe’ Commission, 2010 Immigration place, reference can be made to s 74 1 A quote attributed to Detention in Darwin (Report, 2010) of the Maritime Powers Act 2013 (Cth) Samuel Clemens also known as Court of Conscience Issue 13, 2019 119 and psychological injuries as a result of on Asylum Seekers in August 2012 Subsequently, the Australian the conditions in which they were held also known as a the Houston Report Government repealed, inter alia, the at the Manus Island Detention Centre: — see Angus Houston, Paris Aristotle provisions of the Migration Act which ‘Manus Island Detention Centre Class and Michael L’Estrange, Expert Panel the majority relied on, in particular Action’, Supreme Court of Victoria (Web on Asylum Seekers, Department of s198(A)(3)(a), which dealt with the Page, 6 September 2017) 120 Jeswynn Yogaratnam, Reimagining the protection response to irregular maritime arrivals Newman and Joanne van Selm (eds), 39 See also ‘Codes, Guidelines College of Physicians. DEHAG was Refugees and Forced Displacement: and Policies’, Medical Board of tasked with advising the immigration International Security, Human Australia (Web Page, 1 August 2019) department about health and mental Vulnerability, and the State (United 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 Printing Carbon8 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