tag:theconversation.com,2011:/ca/topics/migration-act-1645/articlesMigration Act – The Conversation2022-02-16T09:26:05Ztag:theconversation.com,2011:article/1771572022-02-16T09:26:05Z2022-02-16T09:26:05ZGovernment’s bid for an enhanced ‘character test’ is unnecessary - and unlikely to pass before the election anyway<p>The <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_LEGislation/Bills_Search_Results/Result?bId=r6816">Migration Amendment (Strengthening the Character Test) Bill</a> will pass the House of Representatives by the end of this week. The bill would enhance the immigration minister’s powers to cancel the visas of people convicted of certain crimes. </p>
<p>This bill was debated and rejected twice previously, in 2019 and again in October 2021. This week, the government introduced it for a third time. Prime Minister Scott Morrison anticipated Labor would reject it again and accused the opposition of being “<a href="https://www.abc.net.au/news/2022-02-15/scott-morrison-accuses-labor-protecting-criminals-deportation/100831402?utm_source=sfmc%e2%80%8b%e2%80%8b&utm_medium=email%e2%80%8b%e2%80%8b&utm_campaign=abc_news_newsmail_pm_sfmc%e2%80%8b%e2%80%8b&utm_term=%e2%80%8b&utm_id=1816815%e2%80%8b%e2%80%8b&sfmc_id=240969590">on the side of criminals</a>”.</p>
<p>This time around, though, Labor has confirmed it <a href="https://www.smh.com.au/politics/federal/labor-gives-way-in-stand-off-with-scott-morrison-on-deporting-criminals-20220216-p59wx7.html?fbclid=IwAR0qEWlP1zCUj-CnUB5EvrcULAX7mEf8277_ihuIYT_UNyk5kZk2I-iLysE">will not oppose the bill</a> in the House of Representatives. </p>
<p>The bill will now progress to a Senate inquiry or debate and then a vote in the Senate. This means it is highly unlikely to be passed into law before the upcoming election. The Senate has only <a href="https://www.theguardian.com/australia-news/2022/feb/16/labor-will-not-oppose-visa-cancellation-character-test-bill-kristina-keneally-says">two sitting days left</a>, in budget week in late March.</p>
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<h2>What is the proposed legislation?</h2>
<p>Under the Migration Act, Australia’s immigration minister has discretion and powers so broad they have been termed “<a href="https://theconversation.com/why-one-man-with-god-like-powers-decides-if-novak-djokovic-can-stay-or-go-174773">God-like</a>”. The act, first passed in 1958, has been amended multiple times since the Tampa crisis of 2001 to progressively enhance the Commonwealth’s capacity to pursue its border protection and related policies. </p>
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Read more:
<a href="https://theconversation.com/australian-politics-explainer-the-mv-tampa-and-the-transformation-of-asylum-seeker-policy-74078">Australian politics explainer: the MV Tampa and the transformation of asylum-seeker policy</a>
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<p>In 2014, Morrison, who was then immigration minister, introduced amendments to section 501 of the <a href="https://www.legislation.gov.au/Details/C2021C00357/Html/Volume_2#_Toc86999638">Migration Act</a>, which strengthened the minister’s capacity to refuse or cancel a visa on character grounds. The amendments also introduced mandatory visa cancellation in cases where non-citizens were sentenced to 12 months or more imprisonment, or convicted of sexual crimes involving a child. </p>
<p>The parliament passed those amendments, substantially boosting the minister’s already very broad discretion. This is clear in the dramatic increase in the number of <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/CharacterTest/Report">visas cancelled under section 501</a> - from 76 cancellations in 2013-14 to 983 cancellations in 2015-16. This week, Morrison told Ben Fordham on 2GB radio the government has used these powers to expel 4,000 people from Australia since the last election. </p>
<p>The Migration Amendment (Strengthening the Character Test) Bill was drafted in 2018 to further tighten the character test. These latest proposed amendments confirm that a non-citizen would fail the character test if convicted of designated offences, including those </p>
<ul>
<li>involving violence or use of weapons </li>
<li>punishable by imprisonment for two years</li>
<li>involving violence in foreign countries that would constitute crimes if committed in Australia. </li>
</ul>
<p>In other words, these amendments would enable the minister to expel someone convicted of a designated crime, even if they did not receive a custodial sentence. </p>
<p>The latest introduction of these proposed amendments was foreshadowed in October 2021. Immigration Minister Alex Hawke said the government would continue to push for the bill’s passage so it could protect Australians “from foreign criminals”. </p>
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<p>Hawke says the amendments address a gap by ensuring visa cancellation in cases where people are convicted of crimes but receive a <a href="https://www.abc.net.au/news/2021-10-19/migration-laws-visa-cancellation-refusal-character-test-bill/100549524">reduced sentence</a>, for example following a guilty plea. </p>
<p>On 2GB this week, Morrison went further, claiming judges are deliberately handing down reduced sentences to ensure non-citizen offenders do not fail the character test. Hawke, on <a href="https://www.abc.net.au/radionational/programs/drive/rn-drive-(ep-katie-hamann)/13755844">ABC Radio</a>, also criticised lawyers for representing non-citizens accused of crimes: </p>
<blockquote>
<p>Lawyers are part of the problem in this system. They go and represent some pretty serious criminals. These are not Australians. These are not people who should have a right to be in Australia.</p>
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<p>These are quite striking attacks, particularly on the <a href="https://austbar.asn.au/policy/the-judiciary#:%7E:text=Under%20Australia's%20Constitution%2C%20our%20judiciary,the%20parliament%20or%20the%20executive.">independence of the judiciary</a> - a fundamental principle of the separation of powers. The government is claiming the amendments are required to limit the significance of sentencing in the visa outcomes of offenders. However, the vast weight of expertise, as offered to inquiries into these amendments, <a href="https://twitter.com/sangpillai/status/1493837970209574914">does not support</a> their necessity.</p>
<p>At no stage in this debate has the government provided evidence that the claimed loophole in the law is actually preventing the deportation of violent non-citizen offenders.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/why-one-man-with-god-like-powers-decides-if-novak-djokovic-can-stay-or-go-174773">Why one man with 'god-like' powers decides if Novak Djokovic can stay or go</a>
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<h2>Why reintroduce this bill now?</h2>
<p>The government is aware this bill is most unlikely to pass the Senate during this parliamentary term. The timing of the public and parliamentary debate, then, seems aimed at wedging Labor on national security. </p>
<p>Indeed, Morrison has <a href="https://www.abc.net.au/news/2022-02-15/scott-morrison-accuses-labor-protecting-criminals-deportation/100831402?utm_source=sfmc%e2%80%8b%e2%80%8b&utm_medium=email%e2%80%8b%e2%80%8b&utm_campaign=abc_news_newsmail_pm_sfmc%e2%80%8b%e2%80%8b&utm_term=%e2%80%8b&utm_id=1816815%e2%80%8b%e2%80%8b&sfmc_id=240969590">accused</a> Opposition Leader Anthony Albanese and Shadow Immigration Minister Kristina Keneally of wanting to keep convicted domestic violence offenders in the country “because the judge gave them a soft sentence”.</p>
<p>Morrison also told John Laws on 2GB that Labor was “soft” on keeping Australia safe: </p>
<blockquote>
<p>You know, I don’t flinch on these things. But Labor, they baulk. They baulked on turning boats back. They baulked on the Pacific Solution. They baulked on all of these things. They baulked on defence spending. They baulk on all of these issues. They, they want to appease when it comes to China, the Chinese Government […]</p>
</blockquote>
<p>Keneally rejected this characterisation. She said the minister’s powers are already broad enough to cancel the visa of anyone who is a risk to Australian society.</p>
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<h2>Why is Labor allowing the bill through the House?</h2>
<p>When the Senate Legal and Constitutional Affairs Legislation Committee examined the proposed character test amendments, the Labor senators on the committee issued a <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/CharacterTest/Report">dissenting report</a>. They opposed the passage of the bill in its drafted form. Until this week, Labor refused to support the bill, partly because it feared the further expansion of deportation powers would inflame <a href="https://www.smh.com.au/politics/federal/labor-gives-way-in-stand-off-with-scott-morrison-on-deporting-criminals-20220216-p59wx7.html?fbclid=IwAR0qEWlP1zCUj-CnUB5EvrcULAX7mEf8277_ihuIYT_UNyk5kZk2I-iLysE">tensions with New Zealand</a> on that issue.</p>
<p>So, has Labor shifted course because it now supports the proposed bill? Labor Senator Murray Watt was asked on <a href="https://iview.abc.net.au/show/afternoon-briefing">ABC’s Afternoon Briefing</a> if he could see the bill passing into law:</p>
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<p>We have said that we will support the legislation in the House so that it can get to the Senate and we can consider amendments the government is now making or talking about making… The reality is that the only reason this is coming out of the woodwork now is because government is desperate to find wedges; the government did this last week with the religious discrimination bill before it blew up in their face.</p>
</blockquote>
<p>Keneally similarly referred to <a href="https://www.smh.com.au/politics/federal/labor-gives-way-in-stand-off-with-scott-morrison-on-deporting-criminals-20220216-p59wx7.html?fbclid=IwAR0qEWlP1zCUj-CnUB5EvrcULAX7mEf8277_ihuIYT_UNyk5kZk2I-iLysE">potential amendments</a> at the Senate committee stage to explain the opposition’s about-face.</p>
<p>Labor’s approach echoes the strategy it recently took in relation to the Religious Discrimination Bill. Labor joined with Liberal defectors and crossbenchers to pass that bill in the House - with amendments. The government then chose to <a href="https://theconversation.com/morrison-draws-on-bible-story-to-explain-refusal-to-compromise-on-religious-discrimination-package-177043">pull the bill from the Senate</a> rather than seek to pass it with those changes.</p>
<p>In both cases, the opposition’s strategy seems clear - moving a bill through the house when it is unlikely to pass the Senate takes the sting out of public debates on religious freedom or national security. </p>
<p>But in legal terms, this approach fails to engage with the substance of the proposed legislation. The question remains as to why the immigration minister needs any greater power than he already holds.</p><img src="https://counter.theconversation.com/content/177157/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amy Maguire does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The government’s proposal to strengthen the “character test”, which allows it to cancel the visas of people convicted of certain crimes, is unnecessary given the minister’s already vast powers.Amy Maguire, Associate Professor in Human Rights and International Law, University of NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1575832021-03-30T09:35:26Z2021-03-30T09:35:26ZNew Zealanders have a right to be angry when Australia deports a 15-year-old<figure><img src="https://images.theconversation.com/files/391628/original/file-20210325-23-1oinedk.jpg?ixlib=rb-1.1.0&rect=668%2C0%2C3256%2C1754&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock/Chris Tefme</span></span></figcaption></figure><p>Recent <a href="https://www.stuff.co.nz/national/politics/300253182/kiwi-teenager-first-minor-to-be-deported-to-new-zealand-from-australia">reports</a> about the deportation of a 15-year-old from Australia to New Zealand have reignited a <a href="https://www.theguardian.com/australia-news/2021/mar/18/deportation-of-a-minor-how-a-corrosive-policy-sank-cosy-relations-between-australia-and-new-zealand">dispute</a> between the two countries about the proper management of offenders who have been born overseas. </p>
<p>The reports came at the time Australia’s former Home Affairs Minister Peter Dutton described the program of deporting non-citizens with a criminal conviction as “<a href="https://www.theguardian.com/australia-news/2021/mar/15/minor-deported-to-new-zealand-under-australian-program-peter-dutton-described-as-taking-the-trash-out">taking the trash out</a>”.</p>
<p>It later <a href="https://www.stuff.co.nz/national/politics/124620409/australia-deported-detained-15yearold-to-new-zealand-at-his-request">emerged</a> the Department of Home Affairs said the youth had requested deportation, although it added he would have been removed anyway. </p>
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<h2>The character test</h2>
<p>For some years we have researched the experiences of Kiwis deported from Australia under the now infamous provisions of the <a href="https://www.legislation.gov.au/Details/C2020C00333">Australian Migration Act</a>. These provisions authorise the relevant minister to order a deportation on “character” grounds, defined in the legislation.</p>
<p>We <a href="https://theconversation.com/why-new-zealanders-are-feeling-the-hard-edge-of-australias-deportation-policy-99447">explained before</a> that the principal provision authorising the deportations is <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ma1958118/s501.html">section 501 of the Act</a>. That is why the deportees often refer to themselves as “501s”.</p>
<p>There is an even more slippery provision in the Act, <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ma1958118/s116.html">section 116</a>. Under that provision, the minister can deport a person if he or she regards them as someone who would or might be a risk to the health, safety or good order of the Australian community or a segment of the community. </p>
<p>We return to the risk assessment exercise below. What is clear is that these deportations have torn families apart. Imagine arriving in a country with a few hundred dollars, lacking knowledge of the complexities of navigating the systems you are forced to engage with just to survive. </p>
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<h2>Feeling overwhelmed</h2>
<p>Through our <a href="https://theconversation.com/why-new-zealanders-are-feeling-the-hard-edge-of-australias-deportation-policy-99447">studies</a> we encountered adults who have experienced this. When they arrive in a new country, with new rules, new systems, many reported feeling overwhelmed, leading some to experience homelessness, serious mental health breakdowns and for some, suicide.</p>
<p>Unsurprisingly, adults deported to a country where they may have no family, no attachments and no contacts will struggle psychologically, emotionally and financially.</p>
<p>Many of them have lived in Australia for several years, and many arrived in Australia as babies. New Zealand is not their home.</p>
<p>Imagine how much worse this would be for children cut off from their home, their family, friends and the only life they have ever known. How are children expected to manage their way through systems that have crushed the spirit of their adult counterparts?</p>
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<strong>
Read more:
<a href="https://theconversation.com/why-new-zealanders-are-feeling-the-hard-edge-of-australias-deportation-policy-99447">Why New Zealanders are feeling the hard edge of Australia's deportation policy</a>
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<h2>No risk assessment</h2>
<p>Our <a href="https://theconversation.com/why-new-zealanders-are-feeling-the-hard-edge-of-australias-deportation-policy-99447">research</a> found many of the people detained under Australian immigration legislation were removed from the Australian state they were living in prior to detention and deportation.</p>
<p>This meant they were deprived access to family life (a human right) even before they were deported. Many are advised that instead of languishing in detention they can appeal their deportation once they are in New Zealand, but this can be very expensive and, practically, is very difficult to do. </p>
<p>As we have also <a href="https://theconversation.com/why-new-zealanders-are-feeling-the-hard-edge-of-australias-deportation-policy-99447">previously observed</a>, there is no indication that the risk assessment implicit in section 116 has been conducted by professionals (such as forensic psychologists) who are properly qualified in assessing risk.</p>
<p>Instead, the deportation of people on character grounds is said to be proven by the fact of prior conviction. The corrective or even redemptive effect of imprisonment is ignored.</p>
<p>It turns out that “paying your debt to society” is not complete once you have left an Australian prison if you have foreign citizenship.</p>
<p>In various <a href="https://minister.homeaffairs.gov.au/peterdutton/Pages/Visa-cancellations-for-serious-crimes.aspx">media releases</a> and <a href="https://minister.homeaffairs.gov.au/peterdutton/Pages/2017/nterview-with-triple-m-hot-breakfast.aspx">interviews</a>, Peter Dutton has indicated sections 116 and 501 are important to ensure Australia is safe from people who have committed murder or rape.</p>
<p>But they only made up 8% of <a href="https://www.homeaffairs.gov.au/research-and-statistics/statistics/visa-statistics/visa-cancellation">visa cancellations</a> in 1 July 2019 to 30 June 2020. The majority were drug (23%) and assault (17%) offences.</p>
<h2>Will they re-offend?</h2>
<p>A cursory glance at the <a href="https://www.aic.gov.au/publications/tandi/tandi530">research</a> shows recidivism rates are not uniform across offenders.</p>
<p>There is a vast body of research demonstrating the risk of reoffending can be objectively measured using techniques developed by forensic psychologists over many decades.</p>
<p>Yet this scientific work is routinely ignored and instead people are being deported on the basis they will continue criminal activity. </p>
<p>Broadly, these deportations reflect the growth of actuarial justice: the classification and management of groups of people on the basis of their presumed danger.</p>
<p>The risk presented by an individual is not researched or even analysed, it is simply removed.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/overhaul-of-nz-womens-prison-system-highlights-the-risk-and-doubt-surrounding-use-of-force-on-inmates-156848">Overhaul of NZ women's prison system highlights the risk and doubt surrounding use of force on inmates</a>
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<p>There is ample evidence of the harm these deportations produce, and limited evidence or risk of recidivism in allowing people who have paid their debt to society to stay in Australia.</p>
<p>We are instead risking serious and lasting damage to our dear relationship with our friends in New Zealand.</p>
<p>UK researchers Bill Hebenton and Toby Seddon <a href="https://academic.oup.com/bjc/article-abstract/49/3/343/350202" title="From Dangerousness to Precaution: Managing Sexual and Violent Offenders in an Insecure and Uncertain Age">observed in 2009</a> that “the limitless pursuit of security can end up subverting security and justice in deeply damaging ways”.</p>
<p>This seems like a pretty good example of this phenomenon.</p><img src="https://counter.theconversation.com/content/157583/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Deportations of non-citizens living in Australia not only tear families apart, they ignore the fact a person has already paid for their crime.Patrick Keyzer, Dean of Law, Australian Catholic UniversityIan Coyle, Adjunct Professor, School of Psychology and Public Health, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/736772017-03-02T03:47:51Z2017-03-02T03:47:51ZAustralia has kept disabled migrant children out for decades – it’s time we gave them protection instead<p>Assistant Immigration Minister Alex Hawke <a href="http://www.sbs.com.au/news/article/2017/02/24/deportation-order-reconsidered-eleventh-hour-bangladeshi-teen">recently intervened</a> to allow a 16-year-old girl with autism spectrum disorder, who had been ordered to leave Australia, to stay in the country. </p>
<p>Sumaya Bhuiyan had been living in Australia for eight years, but was rejected for permanent residency in 2013. Her mother, a practising doctor in Sydney, <a href="http://www.smh.com.au/national/health/girl-with-autism-to-be-deported-after-failing-immigration-health-checks-20170223-gujz9h.html">told newspapers</a> the immigration department had found Sumaya’s “moderate developmental delay” would be a burden to taxpayers.</p>
<p>Hawke’s personal intervention followed media coverage of the situation and a <a href="https://www.change.org/p/department-of-immigration-and-border-protection-please-do-not-deport-daughter-of-2-full-time-doctors-because-of-her-developmental-delay">change.org petition</a> that received nearly 38,000 signatures.</p>
<p>This isn’t the first time a minister intervened to prevent deportation of a family who have a dependent with a disability. In 2015, a Bangladeshi couple - also two doctors - with an autistic son had their <a href="http://www.sbs.com.au/news/thefeed/article/2016/08/25/its-completely-inappropriate-australian-immigration-deporting-people-disabilities">application to stay in Australia</a> approved. </p>
<p>For two years the Banik family exhausted all other avenues against the rejection of their autistic son for permanent residency. Their only recourse was to appeal directly to the immigration minister to intervene on compassionate grounds. After a widespread public appeal, Peter Dutton decided to let them stay. </p>
<p>Australia’s immigration laws require migrants to be screened for medical conditions. This is to prove they will not be a “burden” on the community, specifically its health services. Children are most affected by this policy, as <a href="http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=mig/disability/report.htm">costs are calculated over a lifetime</a>.</p>
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<img alt="" src="https://images.theconversation.com/files/72462/original/image-20150219-24243-1bacr5f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/72462/original/image-20150219-24243-1bacr5f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=849&fit=crop&dpr=1 600w, https://images.theconversation.com/files/72462/original/image-20150219-24243-1bacr5f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=849&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/72462/original/image-20150219-24243-1bacr5f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=849&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/72462/original/image-20150219-24243-1bacr5f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1066&fit=crop&dpr=1 754w, https://images.theconversation.com/files/72462/original/image-20150219-24243-1bacr5f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1066&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/72462/original/image-20150219-24243-1bacr5f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1066&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="attribution"><a class="source" href="https://www.humanrights.gov.au/sites/default/files/CI-PIC-6.jpg">Australia is causing significant mental harm to children in detention.</a></span>
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<p>For someone found to be “burdensome”, the outcome isn’t always as positive as for Sumaya and the Baniks. A <a href="http://www.sbs.com.au/news/thefeed/article/2016/08/25/its-completely-inappropriate-australian-immigration-deporting-people-disabilities">dozen or so families</a> or their disabled members are deported from Australia every year. </p>
<h2>Australian policies</h2>
<p>Democracies have a long history of excluding people deemed undesirable as migrants. Those considered to have mental or physical disabilities are targeted most forcefully. </p>
<p>Australia has done little to ameliorate restrictions on disability in immigration policy. This is despite a 2010 parliamentary inquiry into the issue that recommended several changes to loosen them.</p>
<p>The chair of the Joint Standing Committee on Migration <a>said at the time</a>:</p>
<blockquote>
<p>Australia needs a modern migration health assessment, with scope to positively recognise individual or overall family contributions to Australia and that takes into consideration development of contemporary medicine and social attitudes.</p>
</blockquote>
<p>The Migration Act was amended in 1958 to remove restrictions based on race. But the health clause excluding people with disabilities remained. Despite ratifying the <a href="https://www.humanrights.gov.au/our-work/disability-rights/international/united-nations-convention-rights-persons-disabilities">UN Convention on the Rights of Persons with Disabilities</a>, the government ensured the Migration Act remained exempt from its own <a href="http://www.humanrights.gov.au/our-work/disability-rights/guides/brief-guide-disability-discrimination-act">1992 Disability Discrimination Act</a>.</p>
<p>This means immigration is effectively quarantined from these national and international human rights instruments. The result is often that all able-bodied family members will receive permission to migrate to Australia, or gain permission to stay if they are already here, while a disabled child is refused. Families are either broken up or forced to leave. </p>
<p>The public has little awareness of this issue, due in part to the secrecy surrounding the formulation of migration criteria and policy.</p>
<p>The truly tragic dimensions of the issue were exposed most forcefully in the case of <a href="http://www.abc.net.au/news/2003-03-24/man-set-himself-alight-over-visa-rejection-fears/1822542">Sharaz Kiane in 2001</a>. Kiane set himself on fire outside Parliament House in Canberra in protest of the government refusing him a visa. This seems to have been based on the fact his 10-year-old daughter had disabilities that required expensive medical treatment. </p>
<p>Kiane died of his injuries. An <a href="http://www.ombudsman.gov.au/__data/assets/pdf_file/0018/26253/investigation_2001_07.pdf">Ombudsman’s report described</a> the history of Kiane’s case as “one of administrative ineptitude and of broken promises”.</p>
<h2>A history of exclusion</h2>
<p>My research has <a href="https://academic.oup.com/hwj/article-lookup/doi/10.1093/hwj/dbw021">explored stories of families</a> who gave up their disabled children in the period after the second world war. They often did this under duress to forge new lives in countries like Australia, the US and Canada. </p>
<p>They were known as Displaced Persons, mainly of eastern European origin. Most had survived Nazi concentration camps and forced labour schemes. Displaced Persons’ migration to the few western countries available for resettlement was complicated by the requirements of various migration schemes. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/158862/original/image-20170301-19783-1jmgqq2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/158862/original/image-20170301-19783-1jmgqq2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/158862/original/image-20170301-19783-1jmgqq2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=603&fit=crop&dpr=1 600w, https://images.theconversation.com/files/158862/original/image-20170301-19783-1jmgqq2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=603&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/158862/original/image-20170301-19783-1jmgqq2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=603&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/158862/original/image-20170301-19783-1jmgqq2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=758&fit=crop&dpr=1 754w, https://images.theconversation.com/files/158862/original/image-20170301-19783-1jmgqq2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=758&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/158862/original/image-20170301-19783-1jmgqq2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=758&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Displaced Persons’ migration to the few western countries available for resettlement was complicated by the requirements of various migration schemes.</span>
<span class="attribution"><a class="source" href="https://upload.wikimedia.org/wikipedia/commons/a/ae/Displaced_Persons_and_Refugees_in_Germany_BU6638.jpg">Wikimedia Commons</a></span>
</figcaption>
</figure>
<p>These were largely created to satisfy the labour demands of postwar economies. Physical fitness for manual work was the <a href="https://books.google.com.au/books/about/In_War_s_Wake.html?id=q9pzIcE4ig4C&redir_esc=y">most important factor</a> in assessing potential migrants for countries like Australia and Canada. Single, able-bodied men were therefore most desirable.</p>
<p>In family units, dependants were not allowed to outnumber breadwinners. Despite the proclaimed motives of rescue and humanitarianism towards Nazism’s victims, western migrant selection missions carefully checked each displaced person for traces of physical or mental damage. They excluded anyone who didn’t meet the strict requirements.</p>
<p>Many survivors of concentration camps and Nazi forced labour were rejected, as were the elderly and handicapped. A mass check of more than 100,000 displaced persons in 1948, for example, revealed <a href="http://www.worldcat.org/title/international-refugee-organization-a-specialized-agency-of-the-united-nations-its-history-and-work-1946-1952/oclc/2019210">half of them were still suffering</a> from the effects of malnutrition and hardship. </p>
<p>Children who were disabled were also categorically rejected, often forcing parents with other children to make drastic decisions. Moral pressure by allied welfare workers to institutionalise disabled children contributed to children being left behind in Europe by families who emigrated.</p>
<p>The break-up of families is a relatively well-known consequence of Nazi Germany’s policies of forced labour, population transfers and liquidations. There has been far less recognition of the ways western governments furthered these separations through immigration policies that ignored postwar humanitarian ideals.</p>
<h2>What now for Australia?</h2>
<p>An irony is while Australia is actively excluding those classified as a burden because of their disability, it is disabling people by its policy of offshore detention. </p>
<p>As has been widely documented, children detained in Australia’s remote offshore detention centres <a href="https://www.theguardian.com/australia-news/ng-interactive/2016/aug/10/the-nauru-files-the-lives-of-asylum-seekers-in-detention-detailed-in-a-unique-database-interactive">suffer from sexual and physical assault</a>. Some have self–harmed or threatened suicide. </p>
<p>Research also shows that <a href="https://theconversation.com/detained-children-risk-life-long-physical-and-mental-harm-37510">children who spend time in immigration detention</a> are often plagued by nightmares, anxiety, depression and poor concentration. They may suffer from post traumatic stress disorder for many years after the experience.</p>
<p>The protection of children is often hailed as the strongest evidence of a civilised society. This claim cannot, at present, be held by Australia if its most vulnerable members – children who are refugees and who might require first-world care because they are disabled – are being actively discriminated against in the name of an impoverished calculus of burden, cost and contribution.</p><img src="https://counter.theconversation.com/content/73677/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ruth Balint does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There has been little recognition of how western governments furthered separation of families with disabled children, through immigration policies that ignored postwar humanitarian ideals.Ruth Balint, Senior Lecturer in History, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/684752016-11-13T19:06:20Z2016-11-13T19:06:20ZTurnbull’s asylum seeker ban violates Australia’s human rights obligations<p>The Federal Government has taken its first steps towards banning asylum seekers and refugees who attempt to reach Australia by boat from ever entering the country.</p>
<p>The Coalition introduced its <a href="http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5754">bill</a> to change the Migration Act in the House of Representatives on November 8, claiming the legislation is compatible with Australia’s international human rights obligations.</p>
<p>That claim doesn’t stand up to scrutiny. If passed, this bill will be in direct contravention of the <a href="http://www.unhcr.org/en-au/1951-refugee-convention.html">Refugee Convention</a> and Australia’s other international obligations. Here are the reasons why.</p>
<p>The people who will be affected by this law are predominantly asylum seekers who came to Australia by boat and have been assessed as refugees in an offshore detention centre. There’s no dispute that these people are genuinely in need of international protection.</p>
<p>There is no visa available for people travelling to Australia to seek asylum. Nor is there an orderly international queue for recognised refugees. For most refugees, the chances of being resettled are extremely low. This makes their travel to Australia in search of protection without a visa understandable. </p>
<p>The drafters of the Refugee Convention foresaw this dilemma. This is why Article 31 exists. Article 31 prohibits states from imposing penalties on refugees who illegally enter or stay in a country if they come directly from a place where their life or freedom was threatened.</p>
<p>Even if a refugee travels through or spends time in a transit country, they’re considered as having “come directly” so long as they weren’t granted protection in that intermediate country. This is the case for most asylum seekers who come to Australia by boat. </p>
<p>Prime Minister Malcolm Turnbull and his Coalition colleagues have been unequivocal in saying the ban is designed to operate as a <a href="http://www.abc.net.au/news/2016-10-30/manus-nauru-refugees-asylum-seekers-to-be-banned-turnbull-says/7978228">penalty for unlawful entry</a>. In doing so, the government is trying to deter asylum seekers from exercising their right to seek asylum.</p>
<p>There is no question the impact will be punitive. The bill does not provide a sunset clause or any other expiration date, so the prohibition will be permanent. The government states that the ban will apply even after an asylum seeker is settled in, or is offered citizenship of, another country. </p>
<p>If this bill comes into force, it will be in direct contravention of Article 31 of the Refugee Convention.</p>
<p>It’s worth reflecting on the fact that some of the refugees who will be affected by this bill were taken by Australia, against their will, to countries in which at least some have suffered serious human rights violations. </p>
<p>International law prohibits countries from returning asylum seekers to persecution. A country must also not transfer, deport or send an asylum seeker to a place where she or he will face torture or inhumane or degrading treatment.</p>
<p>Australia is arguably in violation of this obligation, having exposed at least some asylum seekers to precisely such treatment. The UN Special Rapporteur on Torture <a href="http://www.abc.net.au/worldtoday/content/2015/s4193756.htm">made this assessment</a> in relation to Australia’s offshore detention centre on Manus Island. The allegations of <a href="https://www.theguardian.com/australia-news/2016/aug/10/the-nauru-files-2000-leaked-reports-reveal-scale-of-abuse-of-children-in-australian-offshore-detention">physical and sexual assaults</a> on Nauru suggest that some refugees may have suffered inhuman and degrading treatment there, too.</p>
<p>Australia should be seeking to remedy its breaches of international law by bringing refugees to Australia, not exacerbating them with further violations.</p>
<p><strong>Removing the right to family life</strong></p>
<p>The government acknowledges that this legislation could result in families being permanently separated. This contravenes Australia’s obligations to respect the right to family life.</p>
<p>Australia has signed treaties that prohibit arbitrary interference in a person’s family. This includes recognising that family is the “natural and fundamental” group unit in society, and should be protected. </p>
<p>Australia has also committed to ensuring the best interests of a child are a primary consideration. The government does not deny that the bill may violate all of these obligations. </p>
<p>The single justification offered by the government is that Immigration Minister Peter Dutton and his ministerial successors will be able to exercise discretion to lift the ban, where he or she thinks it “is in the public interest to do so”. The bill says nothing about the meaning of “public interest”, let alone the consideration of international human rights obligations as part of that assessment.</p>
<p>The amorphous “public interest” test is largely a discretionary one, and not amenable to judicial scrutiny. Australia won’t satisfy its international obligations with an optional, discretionary measure. Such broad discretion is also not conducive to transparent public administration.</p>
<p>The potential for ministerial benevolence is small comfort to the people this bill will affect, and who could well be permanently separated from loved ones.</p>
<p><strong>Indefinite detention</strong></p>
<p>There is no clarity about what will happen to the refugees already living in offshore detention or in Australia (for example, those receiving medical treatment in Australia) who can’t be sent to a third country because no resettlement option can be found. With no valid visa, indefinite immigration detention is a genuine possibility.</p>
<p>The United Nations has found on numerous occasions that Australia’s system of indefinite detention violates the right to freedom from arbitrary detention. The Refugee Convention makes it clear that prolonged detention is illegal under international law.</p>
<p><strong>Discrimination</strong></p>
<p>The government acknowledges that singling out a particular group for a permanent ban could violate their right to equal protection under international law and freedom from discrimination. The government seeks to defend this on the basis that the differential treatment is for “a legitimate purpose”, is based on relevant and objective criteria, and is reasonable and proportionate.</p>
<p>This is wrong. A policy that violates refugee and human rights law cannot meet these requirements. </p>
<p>In short, this bill does nothing to ease the global refugee crisis and represents a further rejection of Australia’s international obligations.</p><img src="https://counter.theconversation.com/content/68475/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Foster receives funding from the Australian Research Council. She also undertakes consultancy work with the United Nations High Commissioner for Refugees. </span></em></p>The Federal Government’s proposal to permanently ban asylum seekers and refugees who come to Australia by boat is in direct contravention of the Refugee Convention.Michelle Foster, Professor, Melbourne Law School, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/468702015-08-31T03:37:43Z2015-08-31T03:37:43ZOperation Fortitude: it’s not just clumsy wording that should worry us<p>The news that the newly formed Australian Border Force (ABF) was partnering Victoria Police and other agencies to mount a <a href="http://newsroom.border.gov.au/releases/abf-joining-inter-agency-outfit-to-target-crime-in-melbourne-cbd">special operation</a> in Melbourne’s CBD sparked an immediate <a href="http://www.abc.net.au/news/2015-08-28/timeline-of-how-operation-fortitude-unravelled/6733252">storm of protest</a> on Friday. Protesters equated the prospect of officers checking the immigration status of “any individual we cross paths with” to the tactics of a police state. </p>
<p>The public outcry forced the <a href="http://www.abc.net.au/news/2015-08-28/operation-fortitude-cancelled/6733008">cancellation</a> of the operation and sent Immigration Minister <a href="http://www.abc.net.au/news/2015-08-30/peter-duttons-office-received-border-force-press-release/6735584">Peter Dutton</a> and Prime Minister <a href="http://www.smh.com.au/federal-politics/political-news/prime-minister-tony-abbott-says-border-force-operation-fortitude-was-a-mistake-20150829-gjammd.html">Tony Abbott</a> ducking for cover.</p>
<p>What seems to have prompted less debate is the <a href="http://newsroom.border.gov.au/releases/clarifying-statement-on-operation-fortitude">“clarification”</a> issued the same day. This press release openly acknowledged that not dissimilar multi-agency operations were mounted routinely in Victoria and elsewhere.</p>
<h2>How do immigration compliance operations work?</h2>
<p>Many Australians would be surprised to know that both police and immigration officers possess wide powers under Section 188 of the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/">Migration Act</a>. Officers can “require a person whom the officer knows or reasonably suspects is a non-citizen” to present either a personal identifier or evidence of being lawfully present. If, as a result, the officer suspects that the person is an unlawful non-citizen, Section 189 requires them to take that person into custody.</p>
<p>Several years ago I conducted <a href="http://artsonline.monash.edu.au/thebordercrossingobservatory/research-agenda/internal-border-control/migration-policing/">research</a> into the methods by which unlawful non-citizens were detected in NSW. Immigration compliance officers told me they would act on specific notifications about suspected non-citizens. These persons were identified through the (subtly named) <a href="http://www.directory.gov.au/directory?ea0_lf99_120.&organizationalUnit&b977d03c-0641-4a70-b35d-81605048af9e">Dob-In Line</a>, or via inter-agency data-matching exercises. </p>
<p>The officers would also raid particular workplaces that were identified as “high risk” through more generalised forms of intelligence analysis. In addition, they would occasionally participate in joint operations in which police or other regulatory agencies would take the lead with compliance checks relating to taxi licences, drivers’ licences or other professional accreditation.</p>
<p>Any individuals identified in these processes who were thought to be non-citizens were referred to immigration officers. In this way, immigration enforcement has “piggy-backed” on the powers of other agencies to initiate such encounters.</p>
<p>Police can also instigate checks themselves via the Immigration Status Service (ISS). The ISS database was established following the scandals surrounding the deportation of <a href="http://www.ombudsman.gov.au/files/investigation_2005_03.pdf">Vivian Solon</a> and the detention of <a href="http://www.border.gov.au/ReportsandPublications/Documents/reviews-and-inquiries/palmer-report.pdf">Cornelia Rau</a> and other overseas-born Australian citizens. </p>
<p>These events revealed that immigration authorities were acting on “referrals” from police with remarkably little scrutiny. Rather than scaling back their enforcement efforts (although deportations and removals did dip for several years following the inquiries into these enforcement “mistakes”), the main response was to invest in improved information technology, including the ISS. This meant an individual’s legal status could be more reliably determined before initiating enforcement action.</p>
<h2>Who can be checked and when?</h2>
<p>Police I spoke with reported a wide range of contexts in which immigration checks might be conducted. These could occur as part of criminal investigations or during vehicle or pedestrian stops, which they claimed would always be initially for a police-related purpose. </p>
<p>In the case of street stops, markers such as language, possession of foreign documents, outward appearance and seeming to be “out of place” were the reasons stated for making opportunistic immigration checks. </p>
<p>The data provided to me on the first 20 months of the ISS’ operation revealed NSW Police was by far the biggest user of the system. Victoria Police came a distant second. </p>
<p>Just over one in ten immigration status checks made via the system confirmed the individual to be unlawfully present. So, nearly 90% of checks were made on lawfully present individuals, including citizens.</p>
<p>This amount of “collateral damage” from immigration checks highlights another example of curious wording from the now-notorious ABF press release. It stated that Operation Fortitude was designed to promote “a secure and cohesive society”. </p>
<p>Many of the police checks reported above were possibly conducted without the knowledge of the person concerned. But where individuals are explicitly referred to immigration authorities, or where non-citizens are aware their immigration status may be checked – in an increasing range of circumstances which includes attempting to access employment, education, medical care and other essential services – there is enormous potential for negative impacts on feelings of secure belonging. </p>
<p>Community workers interviewed in my NSW study gave examples of individuals and families who were confused about their legal status and therefore fearful of approaching authorities for assistance.</p>
<h2>What made Operation Fortitude different?</h2>
<p>What made the bungled Operation Fortitude stand out from these more surreptitious border enforcement efforts was the audacity with which the ABF announced it. Normally, press releases are issued after, rather than before, joint operations or compliance raids. Often these releases have the apparent purpose of reporting how many unlawful non-citizens were detected.</p>
<p>Friday’s announcement was also notable for the curious claim that this operation was a “first” – seemingly a cause of excitement and celebration for the fledgling ABF, but a routine occurrence for more seasoned immigration compliance officers – and for its apparent breadth. </p>
<p>The operation was aimed at “people travelling to, from and around the CBD”, rather than the foreign-born restaurant workers, taxi drivers and fruit pickers whose targeting by immigration authorities is regularly presented as TV infotainment on the aptly named <a href="https://au.tv.yahoo.com/plus7/border-security/">Border Force</a>.</p>
<p>Coupled with the sweeping legal powers described above, when a government deliberately <a href="https://theconversation.com/tracing-the-far-reaching-changes-in-immigration-and-border-protection-36427">creates a uniformed branch</a> from what was previously an administrative agency, gives it an aggressive name and appoints a <a href="https://en.wikipedia.org/wiki/Roman_Quaedvlieg">former police officer</a> to lead it, it is hardly surprising if its members consider they have the green light to present a threatening image to the public. </p>
<p>The issuing of a press release before the operation – although ridiculed in the media as effectively giving the game away – is consistent with the misguided deterrent-based thinking that dominates offshore border control. Strategies of general deterrence rely on “talking up” the threat of detection, not necessarily to those who might be detected in a particular operation, but to all others who fall into the targeted risk category. </p>
<p>How this can be presented as a recipe for social cohesion is another question that both state police and the ABF need to answer.</p><img src="https://counter.theconversation.com/content/46870/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Leanne Weber receives funding from the Australian Research Council.</span></em></p>While the Australian Border Force’s Operation Fortitude caused an outcry, people might be surprised at the extent of official powers to check their immigration status in a range of circumstances.Leanne Weber, ARC Future Fellow in Internal Border Policing, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/38542011-10-17T03:40:11Z2011-10-17T03:40:11ZGillard’s political migration: one step forward, two steps back<figure><img src="https://images.theconversation.com/files/4538/original/kiss.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Julia Gillard and Kevin Rudd celebrated the government's carbon tax success, but she doesn't have much reason to celebrate.</span> <span class="attribution"><span class="source">AAP/Alan Porritt</span></span></figcaption></figure><p>Last week demonstrated how fast fortunes may change in politics. Just as the government thought it could get onto the front foot, it <a href="http://theconversation.com/asylum-seekers-to-be-processed-onshore-as-pm-weighs-up-a-long-week-in-politics-3833">experienced a significant setback</a> by not being able to make changes to the Migration Act. </p>
<p>The government had a win in parliament when it <a href="http://www.smh.com.au/environment/climate-change/carbon-bills-have-passed-but-its-not-over-yet-20111013-1lmi5.html">passed its carbon tax</a> through the lower house. The achievement was accompanied by government members embracing one another when the result was announced. </p>
<p>The highlight of the celebrations was <em>that</em> kiss between Julia Gillard and Kevin Rudd.</p>
<h2>Political shift </h2>
<p>Frivolity aside, the passing of the carbon tax hinted to a shift in the political debate. </p>
<p>For the first time since taking office, the Gillard government appeared as though it was capable of passing controversial bills and getting on with the job of governing. Claims that this government was simply “treading water” until the next election were also weakened. </p>
<p>It looked as though the government had reclaimed the political agenda. With the carbon tax through the House of Representatives, the government could seek to brand it as a dead issue to take the heat out of the debate. </p>
<p>The government’s success may also have muddied the waters for the opposition’s attacks on the government. </p>
<h2>Opposition danger</h2>
<p>Indeed, with the bills now passed, Tony Abbott could fall into a trap similar to the one Kim Beazley fell into after the GST debate. </p>
<p>The promise of “rolling back” the GST by Beazley appeared to become more of a problem for Labor than an asset as the Howard government of the time <a href="http://www.abc.net.au/pm/stories/s32167.htm">claimed it would be</a> almost impossible to “unscramble the egg” and dismantle the GST.</p>
<p>Tony Abbott’s promise to discard the carbon tax appears to be facing similar attacks by the government. And, if the issue becomes less important to voters (as the government believes it will), then the opposition leader may appear to be obsessed with old news. </p>
<p>Indeed, focussing on this issue could become a liability rather than a strength for Mr Abbott.</p>
<h2>Migration Act failure</h2>
<p>But just as the Gillard government was about to enjoy its victory, it experienced a loss when it failed to <a href="http://theconversation.com/a-cynical-migration-bill-ignores-australias-international-obligations-3803">make changes to the Migration Act</a>.</p>
<p>The implications of the <a href="http://theconversation.com/malaysia-solution-high-court-ruling-explained-3154">recent decision by the High Court</a> which stopped off-shore processing has given the government limited space to move on this matter.</p>
<p>The failure to change the Act means that asylum seekers must be processed on-shore - a consequence applauded by some of the government’s friends, as well as opponents.</p>
<p>But many see the current system as promoting the people-smuggling trade. There are also concerns that the current system may see an influx of asylum seekers making a voyage to Australia. </p>
<p>The government’s inability to change the Act has been a boon for the opposition. </p>
<h2>Weak government</h2>
<p><a href="http://www.abc.net.au/news/2011-10-17/labor-vote-jumps-in-nielsen-poll/3574194/?site=sydney">Leaks from cabinet meetings</a> this week also show how the government itself is grappling with dealing with this issue. </p>
<p>This contributes to the broader narrative, promoted by the opposition, that the government is weak and unable to govern effectively.</p>
<p>The problem for the government is that on-shore processing is a major concern to many voters, especially in outer-metropolitan areas. These are precisely the areas that Labor needs supporting it if it is to keep government at the next election. </p>
<p>But by being unable to make changes, the government has opened another front on which it will be attacked. </p>
<p>This is, of course, just as it thought it could move forward after the exhausting carbon tax debate.</p>
<p>Gillard’s prime ministership appeared to have turned the corner when the carbon tax bills were passed. </p>
<p>But failing to change the Migration Act has poured fuel, rather than water, on the spot fires faced by the government.</p><img src="https://counter.theconversation.com/content/3854/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Zareh Ghazarian does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Last week demonstrated how fast fortunes may change in politics. Just as the government thought it could get onto the front foot, it experienced a significant setback by not being able to make changes…Zareh Ghazarian, Lecturer, School of Political and Social Inquiry, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/38332011-10-13T11:09:28Z2011-10-13T11:09:28ZAsylum seekers to be processed onshore as PM weighs up a long week in politics<figure><img src="https://images.theconversation.com/files/4473/original/Gillard_Bowen.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Julia Gillard and her Immigration Minister Chris Bowen haven't had the best of weeks.</span> <span class="attribution"><span class="source">AAP/Alan Porritt</span></span></figcaption></figure><p>The <a href="http://theconversation.com/explainer-the-facts-about-the-malaysian-solution-and-australias-international-obligations-1861">Malaysia Solution</a> isn’t quite dead, but its vital signs are certainly not good. With a steely look in her eye, and barely concealed anger, Julia Gillard blamed Opposition Leader Tony Abbott for “trashing the national interest” in refusing to vote for her <a href="http://theconversation.com/a-cynical-migration-bill-ignores-australias-international-obligations-3803">government’s amendments</a> to the Migration Act. Without those changes, the processing of asylum seekers will now be done onshore in Australia. </p>
<p>Of the cross-bench MPs, only Rob Oakeshott and Tony Windsor indicated they were willing to support the government. The Western Australian National MP Tony Crook <a href="http://www.abc.net.au/news/2011-10-13/crook-to-vote-against-asylum-bill/3559640">dealt the fatal blow</a>. After saying he was in principle willing to support offshore processing of asylum seekers, he turned his back on the Prime Minister, citing doubts over a lack of humanitarian protection in the Malaysia Solution. </p>
<h2>Bad tempered politics</h2>
<p>There had been a brief window of potential opportunity for Labor to introduce the bill, when indiscipline from Liberal frontbencher Sophie Mirabella <a href="http://andrewelder.blogspot.com/2011/10/passion-of-sophie-mirabella.html">saw her barred</a> from Parliament for 24 hours, for defying the rulings of Deputy Speaker Peter Slipper. But the Government decided not to take advantage of Mirabella’s temporary absence. Instead, the ALP locked themselves in a caucus meeting before agreeing to abandon the vote today, but leave the bill on the books, ready for resuscitation.</p>
<p>The Opposition is <a href="http://www.abc.net.au/news/2011-10-13/immigration-turn/3569858/?site=melbourne">accusing the government</a> of political cowardice and mendacity, and of being too scared to lose the vote.</p>
<p>The Migration Act amendments would have never passed the Senate anyway, given the balance of power held there by the Greens. </p>
<p>Effectively withdrawing the bill has allowed Labor to avoid the <a href="http://blogs.abc.net.au/antonygreen/2011/10/do-governments-have-to-resign-if-defeated-on-legislation.html">first defeat</a> in a House of Representatives vote by any Government in over 80 years. The last administration to face this ignominy was the Bruce-Page Coalition Government in 1929.</p>
<h2>What now for asylum seekers?</h2>
<p>The High Court ruling that offshore processing for asylum seekers is unlawful still stands. Sending people to Malaysia or re-establishing the Manus Island processing centre in Papua New Guinea is no-longer an option. </p>
<p>All asylum seeker claims will therefore continue to be <a href="http://www.hcourt.gov.au/assets/publications/judgment-summaries/2011/hca32-2011-08-31.pdf">processed in Australia</a> for the intermediate future. </p>
<p>This running political sore for the Government will thus continue to be exploited by the Opposition, which insists the Government returns to the Howard Government’s “Pacific Solution”, of sending asylum seekers to Nauru, although the legality, as well as the ultimate effectiveness of this option is now in doubt. </p>
<p>Labor’s Caucus is set to remain troubled by the issue, as the Left faction remains highly uncomfortable with offshore processing, which has long been <a href="http://theconversation.com/a-cynical-migration-bill-ignores-australias-international-obligations-3803">criticised by human rights lawyers</a> and activists, as well as the Greens. </p>
<h2>Labor recovery?</h2>
<p>All this comes just a day after the administration scored its most significant policy victory of this parliament when the Carbon Tax legislation <a href="http://www.smh.com.au/environment/climate-change/carbon-bills-have-passed-but-its-not-over-yet-20111013-1lmi5.html">was passed</a> in the House of Representatives.</p>
<p>Despite the setback on the Migration Act amendments, could the Carbon Tax’s almost guaranteed passage through the Senate, be a political catalyst for Labor’s electoral recovery? It’s the greatest policy reform finally achieved so far by the Government.</p>
<p>Labor has to start turning around its woeful performance in the polls, if there is even to be the faintest chance of re-election in 2013.</p>
<p>There had been a slight recovery in both Labor’s primary vote and two-party preferred vote in recent polling, although this has proved to be temporary. The <a href="http://blogs.crikey.com.au/pollytics/2011/09/28/wipeout/">gap in the polls</a> is still huge, and probably insurmountable for Labor. It currently ranges from 57.3%-42.7%.</p>
<h2>Carbon tax</h2>
<p>Once the carbon tax fully passes into law, and is implemented from mid-2012, the Government hopes the negative campaign by the Opposition and the various anti-carbon tax lobby groups will lose its impetus. </p>
<p>Tony Abbott will hardly relent on the carbon tax though, as he has invested so much political capital in opposing it. </p>
<p>Repealing it is sure to be the Coalition’s core campaign policy for the next election. </p>
<p>To distract from this, Labor will be hoping that by the 2013 election, the Australian economy will still enjoy relative economic prosperity, driven by the ongoing commodities boom. They can’t rely on this though, with growing concerns over a “hard landing” in China. Debt and inflation are growing there thanks to China’s overheated property market, potentially sparking a slowdown in China’s economy. This could <a href="http://www.abc.net.au/lateline/business/items/201110/s3338366.htm">easily plunge</a> a fragile international economy back into global recession. </p>
<h2>Election chances</h2>
<p>And that’s before you take into account the problem right on Julia Gillard’s front door - the underlying leadership tensions in Labor. Kevin Rudd’s <a href="http://theconversation.com/rudd-leads-labor-in-2012-dont-rule-it-out-3345">prominent presence</a> will continue to be stoked and exploited by the Opposition.</p>
<p>If Labor can overcome the potential stumbling block of <a href="http://theconversation.com/death-threats-are-a-sideshow-wilkies-pokies-plan-will-work-516">Andrew Wilkie’s pokie reform</a> legislation by May 2012, its minority Government would still be likely to survive a full term, to an election likely to be held sometime in August-October 2013. </p>
<p>But unless there is a dramatic improvement in the polls for Labor by then, it remains highly unlikely Julia Gillard will lead Labor to the next election.</p>
<h2>Abbott government</h2>
<p>While a lot can happen in politics over the next two years, Tony Abbott is likely to take the top job at the next election. </p>
<p>Should he become Prime Minister though, his stated “pledge in blood” to repeal the carbon tax will be far harder to achieve in reality, if the Greens retain the balance of power in the Senate, which is likely. </p>
<p>A <a href="http://www.aec.gov.au/Elections/australian_electoral_system/electoral_procedures/Double_Dissolution.htm">double dissolution</a> election, with a subsequent repeal of the carbon tax, <a href="http://blogs.abc.net.au/antonygreen/2011/09/can-the-coalition-win-control-of-the-senate-through-a-half-senate-election.html#more">would be possible</a> by 2015 at the earliest. </p>
<p>Business will generally be opposed to the economic disruption and uncertainty that repealing the carbon tax would bring. </p>
<p>And the Coalition would have <a href="http://www.smh.com.au/opinion/politics/carbon-bills-have-passed-but-its-not-over-yet-20111012-1ll40.html">the political challenge</a> of withdrawing at least $15.3 billion in the compensation measures associated with the carbon tax – which include extensive income tax cuts, increases to pensions and welfare payments, and subsidies and support to industry. </p>
<p>The vociferous political debate over the carbon tax is set to continue for a long while. </p>
<p>And after her long week in politics, Julia Gillard isn’t going to find life easier anytime soon.</p><img src="https://counter.theconversation.com/content/3833/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Craig Mark does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Malaysia Solution isn’t quite dead, but its vital signs are certainly not good. With a steely look in her eye, and barely concealed anger, Julia Gillard blamed Opposition Leader Tony Abbott for “trashing…Craig Mark, Associate Professor of International Studies, Kwansei Gakuin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/38032011-10-12T19:42:56Z2011-10-12T19:42:56ZA cynical Migration Bill ignores Australia’s international obligations<figure><img src="https://images.theconversation.com/files/4404/original/Malaysia_agreement_signing.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Without reform of the Migration Act, the governments plan for processing refugees offshore would be in tatters.</span> <span class="attribution"><span class="source">AFP/Saeed Khan</span></span></figcaption></figure><p>Later today the Australian Government plans to put the <a href="http://www.minister.immi.gov.au/media/media-releases/_pdf/migration-act-legislative-amendments.pdf">Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011</a> to a vote in the House of Representatives. Without it, the government’s controversial “<a href="http://theconversation.com/explainer-the-facts-about-the-malaysian-solution-and-australias-international-obligations-1861">Malaysian Solution</a>” is in tatters. So, what does this controversial Bill actually say?</p>
<p>It undermines several protections built into the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/">Migration Act 1958</a>, which, with Australia’s <a href="http://www.theage.com.au/national/thinking-outside-the-boxes-20110915-1kbqq.html">unique policies</a> of indefinite mandatory detention and offshore processing, are already <a href="http://www.law.monash.edu.au/castancentre/publications/immigration-detention-network.pdf">weak by international standards</a>.</p>
<h2>Rejecting international obligations</h2>
<p>The Bill would add a new “<a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s4aa.html">purpose</a>” to the Migration Act which would provide for <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/legis/cth/consol_act/ma1958118/s5.html#offshore_entry_person">offshore entry persons</a> to be taken from Australia to “a country designated by the Minister… as an offshore processing country.”</p>
<p>The “only condition” for such a designation would be “that the Minister thinks that it is in the national interest to designate the country to be an offshore processing country.” </p>
<p>The Minister’s decision “need not be determined by reference to the international obligations or domestic law of that country.” A more blatant rejection of Australia’s international obligations to protect refugees is hard to imagine. </p>
<h2>Slap in the face</h2>
<p>The Bill would also amend <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s36.html">sections</a> which say Australia has protection obligations under the Refugees Convention to certain non citizens – ie refugees. It would change the wording to “obligations in respect of” refugees. </p>
<p>This may sound like a fine distinction, but to an international lawyer it is a slap in the face. </p>
<p>No longer does the Australian Government accept that it has obligations to those fleeing persecution. It considers it merely has obligations which somehow vaguely relate to such people, which may or may not compel us to protect them in reality.</p>
<h2>Suspending natural justice</h2>
<p>The Bill specifies that the rules of <a href="http://www.ag.gov.au/www/agd/agd.nsf/Page/Securityvetting_Whataretheprinciplesofnaturaljustice">natural justice</a> do not apply to decisions regarding the designation of offshore processing countries.</p>
<p>Natural justice encompasses principles such as the right to a fair hearing and the right to challenge a government decision. In fact, natural justice is already denied by the Migration Act in respect of other kinds of decisions, such as <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/legis/cth/consol_act/ma1958118/s501.html?stem=0&synonyms=0&query=%2522natural%20justice%2522">cancellation of visas on character grounds</a> or the refusal of <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/legis/cth/consol_act/ma1958118/s500a.html?stem=0&synonyms=0&query=%2522safe%20haven%2522">temporary safe haven</a>. </p>
<p>These are decisions with serious consequences for those affected, and are precisely the types of decisions which should be subjected to the highest standards of fairness and justice, rather than the lowest.</p>
<h2>Reasonable force?</h2>
<p>The next little nugget from this Bill is an authorisation for officers (including soldiers) to use “necessary and reasonable” force in implementing the Government’s transfer policy.</p>
<p>Unfortunately, the victim of any unnecessary or unreasonable force shunted off to a third country is not likely to be in a strong position to take action against the authorities once removed.</p>
<p>Not content with a wholesale reworking of the protection regime in the Migration Act, the Bill also amends the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ioca1946337/">Immigration (Guardianship of Children) Act 1946</a> to ensure that the Minister’s obligations as <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ioca1946337/s6.html">legal guardian</a> of unaccompanied minors do not interfere with removal under the Migration Act.</p>
<h2>International obligations</h2>
<p>This Bill is cynical and antipathetic to Australia’s international obligations. </p>
<p>The Government’s justification (stated in the Bill itself) is that “people smuggling, and its undesirable consequences including the resulting loss of life at sea, are major regional problems that need to be addressed.”</p>
<p>Yet the sole criterion for the designation of an “offshore processing country,” it specifies, is the (Australian) national interest. The justification implies altruism; the Bill expresses only self interest. </p>
<p>A couple of vague (non-binding) references to international obligations were inserted after Opposition protests, although the Coalition’s stance <a href="http://www.smh.com.au/opinion/politics/suddenly-ruddock-is-a-human-rights-hero-20110908-1jzrn.html">overloaded irony detectors</a> everywhere. </p>
<h2>Onshore processing</h2>
<p>The defeat of this Bill (which seems <a href="http://www.aph.gov.au/Senate/committee/legcon_ctte/malaysia_agreement/report/report.pdf">certain in the Senate</a>, and is <a href="http://www.abc.net.au/local/stories/2011/10/12/3338724.htm">looking very likely</a> in the House), should not be lamented. </p>
<p>A return to onshore processing, despite the reported <a href="http://www.theage.com.au/opinion/politics/fearmongering-risks-undoing-our-proud-migrant-history-20110908-1jyva.html">hyperbolic warnings</a> of the Immigration Department, is unlikely to spell the end of society as we know it. Rather than merely “restoring power to the executive,” as the <a href="http://www.minister.immi.gov.au/media/cb/2011/cb171699.htm">Minister would have it</a>, the Bill would effectively rewrite the rules after the <a href="http://www.smh.com.au/opinion/politics/malaysia-solution-backfires-for-government-that-failed-to-do-its-homework-20110831-1jlg4.html">umpire’s decision</a> in the High Court. </p>
<p>It would in fact increase the power of the executive and allow it (once again) to interpret its international obligations extremely narrowly, if not sidestep them entirely.</p>
<p>If Australia is serious about the need for regional solutions and other reforms to the international system of refugee protection (and there is a <a href="http://www.aph.gov.au/library/pubs/rp/2000-01/01rp05.htm">case to be made</a> for this), the proper course is to advocate change at the international level, rather than to undermine the system through dubious bilateral arrangements and weaselly amendments to the Migration Act.</p><img src="https://counter.theconversation.com/content/3803/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Adam Fletcher does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Later today the Australian Government plans to put the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 to a vote in the House of Representatives. Without it, the government’s…Adam Fletcher, PhD Candidate, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/38362011-10-12T19:42:39Z2011-10-12T19:42:39ZHypocrisy over Bali teenager as Indonesian children remain in jail<figure><img src="https://images.theconversation.com/files/4421/original/Bali.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Australian Ambassador is doing everything he can for the Australian boy detained in Bali, but Indonesian children aren't so lucky.</span> <span class="attribution"><span class="source">AFP/Sonny Tumbelaka</span></span></figcaption></figure><p>This week the nation <a href="http://theconversation.com/bali-teenager-used-as-political-pawn-in-domestic-politics-3785">has been in an uproar</a> over the arrest of a 14 year old Australian boy in Indonesia, accused of buying drugs. </p>
<p>TV news reports discussed the terrible conditions of the prison, where youth offenders are generally held in the same cells as adults. But after intense diplomatic efforts it seems that if he’s if convicted it’s unlikely he will face the usual prison term and will instead be returned to Australia. </p>
<p>Even the Prime Minister was moved to call the boy and his father, to assure him the government was doing everything possible to help.</p>
<p>In the meantime, the boy is being held in a separate cell from adult offenders, and his father was allowed to sleep in an adjacent office. </p>
<h2>Indonesian children</h2>
<p>But there is no such care for Indonesian children incarcerated in Australia. As of June this year, the <a href="http://www.theaustralian.com.au/national-affairs/child-smugglers-concern-indonesia/story-fn59niix-1226073973982">Indonesian embassy estimated</a> there were about 25 Indonesian children being held in adult jails on people smuggling charges. </p>
<p>One child had a birth certificate showing he was just 14 years old. Another report says a boy claiming to be only 16, was detained in Hakea prison alongside convicted sex offenders. These children had not even been convicted yet and were awaiting trial. Surely they could have been held in community detention?</p>
<p>The lack of protection for kids seeking asylum is even worse. </p>
<h2>Best interests</h2>
<p>Today, the same politicians seeking to protect the 14 year old Australian boy in Indonesia will be voting on an amendment that will allow our government to deport children back to situations of danger and against their best interests.</p>
<p>The recent High Court case throwing out the Malaysian refugee swap arrangements also looked at the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ioca1946337/">Immigration Guardianship of Children Act</a>, and found that unaccompanied children could only be removed on written authority from the Minister for Immigration, which must not be against a child’s best interest. </p>
<p>The Gillard Government’s <a href="http://www.minister.immi.gov.au/media/media-releases/_pdf/migration-act-legislative-amendments.pdf">proposed amendment</a> to this Act removes the barrier of “best interest”, allowing for the deportation of unaccompanied children to places regardless of any potential danger to the child. </p>
<p>Given the community response over the jailing of one of our own children overseas, this is not something we would accept for Australian kids. It is repugnant that the Government thinks we are happy for them to endanger other people’s children.</p>
<h2>Immigration minister</h2>
<p>Advocates have long called for this Act to be amended, as it creates a direct conflict of interest for the immigration minister. Currently, he is both guardian, jailer and the deporter of children. </p>
<p>Under the Migration Act the minister has responsibilities to detain all unlawful non-citizens in the migration zone, and is the final arbiter of whether a person is granted a visa or should be returned to, for example, Afghanistan. </p>
<p>At the same time, under the Immigration Guardianship Act, the minister is the guardian of that same person if they are an unaccompanied minor, holding that child’s best interests at heart. </p>
<p>It is hard to see how returning an unaccompanied Hazara child back to ongoing conflict in Afghanistan could possibly be in any child’s best interests, yet that is what has happened to children in the recent past.</p>
<h2>Amending the act</h2>
<p>Since at least 2009 the Department of Immigration <a href="http://www.hreoc.gov.au/human_rights/immigration/idc2011_villawood_response.html">has agreed that</a> “the IGOC Act is outdated and not designed for the purpose for which it is now used.” </p>
<p>Two years later and still nothing has been done, yet it took only 1 month to lodge an amendment allowing for the deportation of children. </p>
<p>Changes to law to protect children involve years of waiting – changes to abuse children’s human rights takes merely days.</p>
<h2>Malaysian deal</h2>
<p>Many have argued that the Malaysian deal is humanitarian as it will stop people risking their lives on asylum boats. </p>
<p>However, as we know that Malaysia has deported asylum seekers back to countries where they have later disappeared, this may be a false justification. </p>
<p>Asylum seekers may not be risking their lives on the seas between Indonesia and Australia, but instead will be at risk of deportation to danger from Malaysia.</p>
<p>The government has argued we need these changes to protect our borders. But if we need to abuse the rights of children, then what is the value of the Australian way of life we are protecting?</p><img src="https://counter.theconversation.com/content/3836/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kate Gauthier is the chair of ChilOut - children out of immigration detention</span></em></p>This week the nation has been in an uproar over the arrest of a 14 year old Australian boy in Indonesia, accused of buying drugs. TV news reports discussed the terrible conditions of the prison, where…Kate Gauthier, Associate lecturer with the Migration Law Program, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.