The decision by the full bench of the High Court ruling the Gillard Government’s Malaysia Solution for dealing with asylum seekers who arrive by boat invalid creates a massive problem for the minority administration.
Not only has the Court blocked a deal whereby Australia would send 800 asylum seekers to Malaysia in return for accepting 4000 people certified as refugees, but it has thrown into question the legality of any off-shore processing of asylum seekers.
The Conversation asked leading barrister and refugee advocate Julian Burnside about the implications of the rulings.
Has the High Court forced the government to radically re-think the entire offshore asylum policy?
Yes. I think it would be a foolish government that didn’t re-think its policy in view of what the court said.
Is the High Court being “activist” here or did the government simply get it wrong?
I think the government has simply got it wrong. What the High Court has done is to remind the government that Australia is a signatory to a number of human rights conventions, including of course the Refugee Convention.
And having signed it, that introduces various obligations into our law and those obligations include, centrally, an obligation to protect people who seek asylum. What they [the High Court] have done is to spell out what those protections amount to.
Then they say, you are obliged to provide those protections, and if you decide to send people away without assessing whether they are refugees, then you must send them to a place where they will be similarly protected. It makes sense when you think about it.
What are the options for the government here if they want to continue with a policy of offshore processing?
They might try to legislate their way around it, although whether they can do that effectively is an interesting question. They might reconsider Manus island and Nauru although there are problems with that.
Manus island is a malarial island. One in three people there have got malaria. It is not really consistent with an obligation to protect people to send them to a place where they are likely to get malaria.
Nauru does not have the domestic laws that would enable a person to be confident that the protection they are due would be given to them. Last time what Australia did was effectively colonise Nauru and take over its organs of government, including its immigration office, so that it wasn’t really Nauru at all, it was an offshoot of Australia.
I think frankly that both major parties need to stand back, take a deep breath, and ask why it is that the Malaysian solution, or any other solution, was being put forward. And the reason it was being put forward was because we’ve got substantial overcrowding in detention centres, which leads to substantial mental health issues, which results in lip sewing and damage to property and so on.
Why do we actually need to lock people up indefinitely? The Malaysian arrangement had built into it a provision by which Malaysia said that it would only detain people transferred for a brief time on arrival for initial health and security checks then they would be released into the community with the right to work.
We could do that. We could say we will just detain people initially for health and security checks then release them into the community after say 30 days and allow them to work. The overcrowding would be resolved immediately, the spectacular cost of our detention system would be reduced dramatically.
The mental health issues would go away. Everything points to this.
The one objection that both major parties will point to in their desperation to appeal to our worst instincts is that this will produce a flood of refugees. There is nothing in our history to suggest that would happen.
People don’t come here because they think it is greatest place to live, they come here because they are terrified of being killed by the Taliban or whoever else. If it turns out that we don’t mistreat them as much in the future as we have in the past, I don’t think that is going to significantly increase the number of people who try and get to Australia.
In tandem with that, we’re spending about a thousand million dollars a year running a detention system that damages people. If people were held for only 30 days instead of for months and years that amount would probably be reduced to ten per cent.
That money could be used to fix things up in Indonesia where they are coming from, fix things up in the countries of origin which is causing them to leave in the first place. Frankly, I think it would be a whole lot better.
Don’t most asylum seekers turn out to be genuine refugees who are given visas eventually?
Most people who come here by boat tend to be genuine refugees. The figure is about 90 per cent. It depends on the make up of the cohort arriving, but it is a very high percentage.
By contrast, people who arrive by plane on a business or tourist visa, and then apply for asylum when they are in the country, they only get approved in about 20 per cent of cases. But they don’t get locked up.
They are left in the community after their first visa expires, they get a bridging visa while their protection claim is processed. They remain in the community for years on end and no-one gets upset about that. And most of them are not genuine refugees.
What is the point of locking up the people who are very likely to be genuine refugees when all you are doing is saying, ok, when eventually we recognise that you’re a refugee, and we release you into the community, you’ll be even more damaged than when you arrived and we did the damage. It is crazy.
And by the way, we get two or three times as many people arriving by plane as come by boat. No-one even notices that. And one of the reasons no-one even notices is that the numbers are so small that they are completely overwhelmed by the number of overstays, backpackers who come here for a good time and stay on. They don’t seem to be a problem in the community.
It is hard to see how increasing the numbers of refugees by four or five per cent is going to make much of a difference.
If an Abbott government is an elected, do you think it is reasonable to assume they would bring back the Nauru solution and temporary protection visas (TPVs) and so on?
It is pretty clear that they would because they have said they will. Whether the Nauru solution would work remains to be seen.
Let’s have a look at temporary protection visas. It starts from Abbott beating the drum about how we have to break the people smuggler’s business model. He can’t quite bring himself to say “We don’t want refugees” so what he says is we have to destroy the people who actually let refugees in.
His stated reason for that, and frankly I don’t believe him because he’s a hypocrite, for wanting to break the people smuggler’s business model, is that he doesn’t like the idea that people get on dangerous boats and might drown.
Well, temporary protection visas caused, directly caused, the deaths of 353 people on the 19th of October 2001 when the SIEV X went down. I say “directly caused” those deaths because one aspect of the temporary protection visa is that the holder of it is not entitled to family reunion. That was introduced by the party with family values as its central plank.
So here you have got men in the community in Australia on temporary protection visas, accepted as refugees, and their families are desperate to be reunited with them. But their families are not allowed to come here because of the type of visa the men are on.
So what do they do? They get on a boat. Of course they do. It is the only way they get back to being a family. Most of the people who drowned on the 19th of October 2001 were women and children trying to re-join their husbands and fathers who were already in Australia on TPVs.
Frankly, the deaths of those 353 are directly down to having TPVs.