tag:theconversation.com,2011:/id/topics/offshore-processing-4079/articlesOffshore processing – The Conversation2024-02-21T04:06:34Ztag:theconversation.com,2011:article/2239572024-02-21T04:06:34Z2024-02-21T04:06:34ZBy boat or by plane? If you’re seeking asylum in Australia, the outcome is similarly bleak<figure><img src="https://images.theconversation.com/files/576913/original/file-20240221-18-tl88st.jpg?ixlib=rb-1.1.0&rect=18%2C0%2C4071%2C2299&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-illustration/refugees-boat-floating-on-sea-341539700">Shutterstock</a></span></figcaption></figure><p>Last week, <a href="https://www.abc.net.au/news/2024-02-18/asylum-seekers-moved-to-nauru-mid-political-row/103481494">39 foreign nationals</a> arrived in a remote part of Western Australia by boat. This revived dormant debates about border security.</p>
<p>People without visas come to Australia by air and sea, though we only ever seem to hear about the latter. Unlike unauthorised air arrivals, unauthorised maritime arrivals (people without visas that arrive by boat without permission) are given high media visibility. This feeds a narrative that the country has lost control of its borders, which in turn creates a political problem for the government of the day. </p>
<p>But behind the headlines, what actually happens when people arrive in Australia without permission, whether by boat or by plane?</p>
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Read more:
<a href="https://theconversation.com/boat-arrivals-sent-to-nauru-and-sovereign-borders-commander-warns-against-politicising-the-issue-223822">Boat arrivals sent to Nauru, and Sovereign Borders commander warns against politicising the issue</a>
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<h2>What is Australia obligated to do?</h2>
<p>Anyone who’s not an Australian citizen is required to have authorisation in the form of a visa to enter and remain in the country. </p>
<p>What Australia can do to deal with unauthorised arrivals is limited by its international treaty obligations. The United Nations Refugee <a href="https://www.unhcr.org/au/about-unhcr/who-we-are/1951-refugee-convention">Convention</a> and <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/protocol-relating-status-refugees">Protocol</a> oblige Australia to refrain from sending “refugees” (as defined in those treaties) to places where they will face a real chance of persecution. </p>
<p>Under other treaties to which it is a party, Australia is also obliged to refrain from sending anyone, not just refugees, to places where they will face a real risk of certain serious human rights violations. </p>
<p>These treaty obligations are referred to as “non-refoulement” or protection obligations. People who claim the benefit of such protection obligations are called asylum seekers.</p>
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<h2>What happens to asylum seekers when they arrive?</h2>
<p>The processes for people arriving by boat or plane have similarities, but are slightly different.</p>
<p>Australian policy is for unauthorised air arrivals to be given a screening interview to ascertain whether they could be entitled to Australia’s protection under international law. If not, they are returned to their most recent country of departure. Those who are found to have a possible case are given access to the protection visa application process. </p>
<p>The protection visa is Australia’s main domestic mechanism for implementing its international protection obligations. People who initially entered Australia on a valid visa can also apply for a protection visa. Most applicants fall into this group. </p>
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Read more:
<a href="https://theconversation.com/who-counts-as-a-refugee-four-questions-to-understand-current-migration-debates-219735">Who counts as a refugee? Four questions to understand current migration debates</a>
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<p>Australia imposes penalties on airlines that bring non-citizens without valid visas here. It also posts its officials at overseas airports to help airlines identify people without visas so they can be refused boarding. As a result, there are <a href="https://www.homeaffairs.gov.au/foi/files/2022/fa-220600105-document-released-part-3.PDF">very few</a> unauthorised air arrivals to Australia.</p>
<p>Like people who come by plane, unauthorised maritime arrivals go through a screening process. </p>
<p>Those who are deemed not to be asylum seekers are returned to their most recent country of departure. This is usually, but not always, Indonesia. </p>
<p>Unless the responsible minister grants an exemption, unauthorised maritime arrivals who are found to have a possible asylum claim must be transferred to a regional processing country to have their asylum claims determined there. </p>
<h2>How has regional processing worked?</h2>
<p>Regional processing has a complicated history.</p>
<p>In late 2001, the Coalition government under John Howard entered arrangements with Nauru and Papua New Guinea (PNG) to take unauthorised maritime arrivals to those countries to process their asylum claims. Those arrangements were ended by Labor shortly after it won government in November 2007. </p>
<p>However, a resurgence of unauthorised maritime arrivals led the Gillard Labor government to enter a new set of arrangements with Nauru and PNG in late 2012. These allowed Australia to transfer unauthorised maritime arrivals to processing centres in those countries to have their asylum claims considered by their governments. </p>
<p>The 2012 arrangements left open the possibility that transferees who were found to be refugees might be resettled in Australia. However, when boats kept arriving, the Rudd Labor government decided to get even tougher. In 2013, it <a href="https://webarchive.nla.gov.au/awa/20130730234007/http://pandora.nla.gov.au/pan/79983/20130731-0937/www.pm.gov.au/press-office/transcript-joint-press-conference-2.html">announced</a> future unauthorised maritime arrivals would never be resettled in Australia.</p>
<p>After its election in September 2013, the Coalition government implemented Operation Sovereign Borders, which has been continued by the current Labor government. Many activities come under the Operation Sovereign Borders banner, including the interception of unauthorised maritime arrivals at sea by the Australian navy. Regional processing is now also characterised as being part of the program.</p>
<p>The regional processing arrangement with PNG <a href="https://web.archive.org/web/20220105030919/https:/minister.homeaffairs.gov.au/KarenAndrews/Pages/finalisation-of-the-regional-resettlement-arrangement.aspx">ceased</a> at the end of 2021. As of November 16 2023, there were still <a href="https://www.refugeecouncil.org.au/operation-sovereign-borders-offshore-detention-statistics/2/">64 transferees</a> remaining in PNG. However, the Australian government’s position is that responsibility for these people lies entirely with PNG and not with Australia.</p>
<p>Nauru is still a <a href="https://www.legislation.gov.au/Details/F2023L00093">regional processing country</a> but under a new agreement. At the time it was signed in late 2021, there hadn’t been any transfers for years. However, it was <a href="https://web.archive.org/web/20211218062006/https:/www.dfat.gov.au/geo/nauru/memorandum-understanding-between-republic-nauru-and-australia-enduring-regional-processing-capability-republic-nauru">considered important</a> to maintain an “enduring regional processing capacity” on Nauru as a deterrent to people smugglers. </p>
<p>As previously, the Nauruan government is responsible for processing the asylum claims of transferees and managing them until they depart Nauru or are permanently settled there. However, Australia has contracted and is <a href="https://www.homeaffairs.gov.au/foi/files/2023/fa-221201134-document-released.PDF">paying</a> the processing centre’s service providers.</p>
<p>On June 25 2023, it was reported there were <a href="https://www.theguardian.com/australia-news/2023/jun/25/last-refugee-on-nauru-evacuated-as-australian-government-says-offshore-processing-policy-remains">no transferees</a> remaining in Nauru. This did not mean that a durable solution had been found for everyone who had been transferred to Nauru up until that time. While some people had been resettled in third countries, others had simply been brought to Australia with the legal status of “transitory persons”. This status prevents them from applying for a visa to remain in Australia unless granted ministerial permission to do so. </p>
<p>Australia’s options for resettling this cohort are limited. It has at its disposal the remainder of <a href="https://www.theguardian.com/australia-news/2017/feb/01/white-house-australian-refugees-deal-resettle-extreme-vetting">1,250 refugee places</a> promised by the United States in November 2016 and <a href="https://www.theguardian.com/australia-news/2022/mar/24/australia-agrees-450-refugees-can-be-resettled-in-new-zealand-nine-years-after-deal-first-offered">450 refugee places</a> over three years promised by New Zealand in 2022. Even if all these places are used, hundreds of people will remain in limbo.</p>
<h2>What happens to last week’s arrivals?</h2>
<p>Since Operation Sovereign Borders began, boats have either been intercepted at sea or have managed to make landfall in Australia <a href="https://www.aph.gov.au/api/qon/downloadattachment?attachmentId=dc14c17a-6ca6-4082-8f77-c15a72b19314">every year</a> except 2021. </p>
<p>However, between the start of Operation Sovereign Borders and the end of August 2023, <a href="https://www.aph.gov.au/api/qon/downloadattachment?attachmentId=dc14c17a-6ca6-4082-8f77-c15a72b19314">only two</a> out of the 1,123 boat passengers involved to that point had ever been accepted for regional processing. Both cases were in 2014. </p>
<p>This statistic raised serious concerns about the reliability of the screening process as the people screened included many from known refugee producing countries. </p>
<p>Given this history, it was a little surprising when the Australian government transferred <a href="https://www.abc.net.au/news/2023-10-27/nauru-new-group-detained-processing-centre/103014910">11 unauthorised maritime arrivals</a> to Nauru in September 2023. A further 12 were transferred to Nauru in <a href="https://www.theguardian.com/australia-news/2023/nov/23/wa-border-force-custody-12-asylum-seekers-nauru">November 2023</a>. The 39 people found in Western Australia have just been transferred there too. </p>
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Read more:
<a href="https://theconversation.com/aus-nz-refugee-deal-is-a-bandage-on-a-failed-policy-its-time-to-end-offshore-processing-180241">Aus-NZ refugee deal is a bandage on a failed policy. It's time to end offshore processing</a>
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<p>It seems the screening process has been abandoned or has been vastly improved. While the most reliable way for Australia to meet its international protection obligations would be to give all unauthorised maritime arrivals access to its protection visa application process, giving them all access to regional processing is certainly better than sending them back to their country of departure. </p>
<p>However, resettlement in Nauru of those found to be refugees is not realistic. The country, which has a population of approximately 13,000 people, is only <a href="https://www.adaptation-undp.org/explore/asia-and-pacific/nauru#:%7E:text=Nauru%20is%20an%20isolated%2C%20uplifted,120%20and%20300%20metres%20wide.">2,200 hectares</a> in land area. To put this in context, Melbourne airport <a href="https://www.melbourneairport.com.au/corporate/master-plan">is larger</a> than Nauru. </p>
<p>There is no reason to believe it will be any easier to find third country resettlement for transferees in the future than it has been up to now. For most, the only way out of limbo will be to return home, as eight of those transferred to Nauru in September have <a href="https://www.theguardian.com/australia-news/2024/jan/22/australia-asylum-seekers-nauru-returned-home-country">already done</a>. Regional processing continues to be a policy failure for which vulnerable people will pay the price.</p><img src="https://counter.theconversation.com/content/223957/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Savitri Taylor has received funding from the Australian Research Council in the past. She is a member of the Committee of Management of Refugee Legal and a member of the Kim for Canberra party. Views expressed in this article are her own and not attributable to any organisations with she is associated.</span></em></p>With the arrival of 39 foreign nationals in Western Australia, debate around boat arrivals has been re-ignited. What happens if you come by plane instead?Savitri Taylor, Associate Professor, Law School, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2103782023-07-26T02:07:46Z2023-07-26T02:07:46ZOur cruel and costly offshore processing system was a failure. We have a better solution on asylum policy<p>It has been over a decade since Australia revived its offshore processing regime for asylum seekers, yet revelations of the policy’s human and financial failures keep coming. </p>
<p>Last weekend, the Nine newspapers <a href="https://www.smh.com.au/politics/federal/millions-of-dollars-in-detention-money-went-to-pacific-politicians-20230718-p5dp51.html?mc_cid=a65f9d8376&mc_eid=8883ffeb42">reported</a> that the Department of Home Affairs allegedly oversaw the payments of millions of taxpayer dollars to politicians in the Pacific through a chain of suspect contracts. </p>
<p>The Guardian also <a href="https://amp.theguardian.com/australia-news/2023/jul/22/morrison-government-png-asylum-seeker-deal-refugee?mc_cid=a65f9d8376&mc_eid=8883ffeb42">revealed</a> that the Morrison government had signed a “confidential bilateral agreement” with Papua New Guinea, which promised an undisclosed amount of money in return for welfare and support services for fewer than 80 refugees who remained trapped there. </p>
<p>In the wake of these reports, the Greens have <a href="https://www.theguardian.com/australia-news/2023/jul/25/peter-dutton-briefed-by-afp-on-bribery-investigation-before-contract-signed-with-probe-target">reiterated</a> their call for a royal commission into offshore processing, <a href="https://www.smh.com.au/politics/federal/minister-invokes-corruption-watchdog-over-offshore-detention-scandal-20230725-p5dr57.html">supported</a> by independent MP Zali Steggall. </p>
<p>These latest reports add to the <a href="https://www.kaldorcentre.unsw.edu.au/publication/policy-brief-11-cruel-costly-and-ineffective-failure-offshore-processing-australia">large amount of research</a> laying bare the human toll of offshore processing. </p>
<p>Offshore processing has had <a href="https://theconversation.com/why-europe-shouldnt-follow-australias-lead-on-asylum-seekers-90304">far-reaching consequences</a> beyond our region as well. In the United Kingdom, a similar policy is unfolding, modelled on Australia’s asylum practices. Prime Minister Rishi Sunak’s government has just passed <a href="https://bills.parliament.uk/bills/3429">legislation</a> that provides new powers to deport those who seek protection across the Channel. </p>
<p>As the number of people in need of protection grows every year, it is imperative that unlawful and unsustainable efforts to push the problem elsewhere be reversed. Bringing Australia’s offshore processing policy to an end is an important first step. </p>
<p>But Australia must also look ahead to the challenges and opportunities that forced migration will create in the coming decade. </p>
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<h2>Regional cooperation on asylum</h2>
<p>By the end of 2022, there were around 14 million displaced and/or stateless <a href="https://data.unhcr.org/en/documents/details/101659">people</a> in the Asia-Pacific region. This included seven million refugees, five million internally displaced people and 2.5 million stateless people. </p>
<p>Violence, conflict and persecution in Afghanistan and Myanmar have produced the largest number of displaced people. Of particular concern are the millions of Rohingya living in <a href="https://www.ohchr.org/en/press-releases/2023/06/bangladesh-un-experts-decry-devastating-second-round-rations-cuts-rohingya">extremely precarious conditions</a> in Bangladesh. </p>
<p>Australian policy seems premised on the idea that without strong border controls, all these people would set sail for our shores. The reality, though, is vastly different. </p>
<p>Indeed, since 1975, 90% of refugees displaced in the Asia-Pacific region have stayed as <a href="https://www.unhcr.org/sites/default/files/2023-06/global-trends-report-2022.pdf">close to home</a> as possible. </p>
<p>However, many lack basic rights to work, health care and education, and are at risk of destitution, detention or exploitation. This means that, without a concerted effort to improve protection for refugees in the region, we will likely see more people in search of their own solutions. </p>
<p>The challenges of displacement are global in nature, and its multi-layered causes mean there are no simple solutions. But we have a better chance of managing displacement with clear-eyed, collaborative and holistic responses, rather than unilateral policies aimed at deterrence and deflection.</p>
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Read more:
<a href="https://theconversation.com/rwanda-plan-is-in-legal-limbo-but-history-shows-such-migration-deals-are-unlikely-to-disappear-209354">Rwanda plan is in legal limbo, but history shows such migration deals are unlikely to disappear</a>
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<h2>What should Australia do?</h2>
<p>First, we need to move from a responsibility-shifting to a responsibility-sharing approach. </p>
<p>In recent years, our government has asked countries in the region for help in stopping people from trying to reach Australia. But our credibility and moral authority to promote constructive responses to the problem have been fundamentally undermined by policies such as offshore processing and turning back boats. </p>
<p>Above all, we need to listen, not lecture; to collaborate, not cajole. </p>
<p>By listening to other governments, as well as civil society and refugee-led organisations in the region, we will gain a better understanding of their perspectives and needs. </p>
<p>We need to take a “whole-of-society approach”, engaging a diverse set of stakeholders to meet the needs of asylum seekers collaboratively. The UN High Commissioner for Refugees has recently <a href="https://news.un.org/en/story/2023/07/1139047">emphasised</a> that countries must also take a “whole-of-route approach”, ensuring protection at every stage of an asylum seeker’s journey. </p>
<p>In the short term, Australia should work with governments in the region to help provide refugees and other displaced people with basic rights and protections. By improving conditions in these countries, we could reduce the need for onward travel to Australia. </p>
<p>There is considerable goodwill right now, with Indonesia, Malaysia, the Philippines and Thailand all signalling a desire to improve their legal frameworks in this area. <a href="https://www.fmreview.org/issue67/barbour">For instance</a>, Thailand is developing a new “national screening mechanism” to identify refugees, while the Philippines recently revised its systems for determining refugee and statelessness status and has pending legislation on a number of issues. </p>
<p>In return for governments in Southeast Asia adopting reforms, Australia should significantly increase the number of people it resettles from these countries and create other “<a href="https://www.kaldorcentre.unsw.edu.au/sites/kaldorcentre.unsw.edu.au/files/Complementary_Pathways_in_Refugee_Protection.pdf">complementary pathways</a>” to protection. We should also develop more strategic responses in acute crises, just as we did for people <a href="https://www.kaldorcentre.unsw.edu.au/ukraine-3-things-know-about-getting-refugees-safety">fleeing Ukraine</a> last year. </p>
<p>This would be a win–win. More people would be afforded protection in Australia through orderly programs, and those remaining in the region would have basic rights they currently lack. </p>
<p>We also need to engage in diplomatic efforts to encourage other countries in the region, such as New Zealand, Japan and South Korea, to increase their resettlement quotas. </p>
<p>And Australia should provide better resourcing to UNHCR, as well as to local networks and civil society initiatives, such as the Asia Pacific Refugee Rights Network and the Asia Pacific Network of Refugees. </p>
<p>This is not only the right thing to do, but would also be more effective and efficient than current approaches. It is in our national interest not to ignore or compound the consequences of unresolved displacement in our region. </p>
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Read more:
<a href="https://theconversation.com/amid-a-worsening-refugee-crisis-public-support-is-high-in-both-australia-and-nz-to-accept-more-rohingya-199504">Amid a worsening refugee crisis, public support is high in both Australia and NZ to accept more Rohingya</a>
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<h2>Achieving better protection outcomes</h2>
<p>Over the longer term, we should <a href="https://www.kaldorcentre.unsw.edu.au/publication/principles-australian-refugee-policy">promote</a> respect for human rights and the rule of law, increase our contributions to aid and development in the region, and work to reduce conflict and the negative effects of climate change. </p>
<p>These efforts could help ease the conditions that force people to leave their homes in search of safety. This could also improve conditions for the safe, dignified and sustainable return of those not in need of protection. </p>
<p>Finally, success should not only be measured by whether a state has ratified a particular refugee treaty or adopted national asylum legislation. Protection outcomes for real people are what matter. In other words, are the needs of displaced people and their host communities being met? </p>
<p>This is why we need to develop a more collaborative approach across the Asia-Pacific to ensure that displaced people can move on with their lives in safety and with dignity - whether that is in Australia or elsewhere in the region. </p>
<p>In so doing, we must ensure the concerns and voices of those most directly impacted are heard and addressed.</p><img src="https://counter.theconversation.com/content/210378/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jane McAdam AO receives funding from the Australian Research Council and has provided expert advice to a range of international bodies, including the United Nations High Commissioner for Refugees (UNHCR) and the International Organization for Migration (IOM). </span></em></p><p class="fine-print"><em><span>Brian Barbour is a senior refugee protection advisor for Act for Peace.</span></em></p><p class="fine-print"><em><span>Claire Higgins receives funding from the Australian Research Council.</span></em></p><p class="fine-print"><em><span>Daniel Ghezelbash receives funding from the Australian Research Council and the NSW Government. He is a member of the management committee of Refugee Advice and Casework Services and a Special Counsel at the National Justice Project.</span></em></p><p class="fine-print"><em><span>Madeline has provided advice to the Australian and UK governments about the international law implications of offshore processing. </span></em></p><p class="fine-print"><em><span>Tristan Harley receives funding from the Gerda Henkel Foundation and Act for Peace. He has previously worked as a consultant for the United Nations High Commissioner for Refugees, the Asia Pacific Refugee Rights Network and the Asia Pacific Network of Refugees.
</span></em></p>Helping our Southeast Asian neighbours make conditions better for refugees there will reduce the need for them to make dangerous journeys elsewhere.Jane McAdam, Scientia Professor and Director of the Kaldor Centre for International Refugee Law, UNSW SydneyBrian Barbour, PhD candidate, UNSW SydneyClaire Higgins, Senior Research Fellow, Kaldor Centre for International Refugee Law, UNSW SydneyDaniel Ghezelbash, Associate Professor and Deputy Director, Kaldor Centre for International Refugee Law, UNSW Law & Justice, UNSW Sydney, UNSW SydneyMadeline Gleeson, Senior Research Fellow, Andrew & Renata Kaldor Centre for International Refugee Law, UNSW SydneyTristan Harley, Senior Research Associate, Kaldor Centre for International Refugee Law, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1997632023-02-13T07:24:41Z2023-02-13T07:24:41ZChanges to temporary protection visas are a welcome development – and they won’t encourage people smugglers<p>Refugees in Australia on temporary protection visas (TPVs) and Safe Haven Enterprise Visas (SHEVs) now have a pathway to permanent protection, the <a href="https://twitter.com/andrewjgiles/status/1624882623708553216">federal government has confirmed today</a>.</p>
<p>The long-awaited <a href="https://theconversation.com/boat-arrivals-on-temporary-protection-visas-have-access-to-permanent-residency-199751">changes</a> will bring much-needed certainty to around 20,000 people who arrived in Australia before January 1 2014, and who were found to be refugees or at risk of serious human rights violations.</p>
<p>These people have endured years in limbo under a policy that <a href="https://www.kaldorcentre.unsw.edu.au/sites/kaldorcentre.unsw.edu.au/files/Research%20Brief_Fast%20track_final.pdf">research</a> has shown to be unfair, expensive, impractical, and inconsistent with our international obligations. </p>
<p>Temporary protection not only inflicts significant mental harm on asylum seekers, but also created a costly bureaucratic burden for the government. It’s also out of step with the practice of other countries, where temporary protection is reserved for exceptional circumstances.</p>
<p>The changes are a welcome development for people who have lived with uncertainty for a decade, providing them with an opportunity to rebuild their lives with a sense of security. The decision is also highly unlikely to encourage asylum seekers to try to reach Australia by boat. </p>
<p>Yet, the fate of thousands of other refugees and asylum seekers in limbo in Australia remains uncertain.</p>
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<h2>How did we get here?</h2>
<p>The Coalition announced in 2013 that the temporary protection regime would be <a href="https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F3414548%22;src1=sm1">reintroduced</a> as part of Operation Sovereign Borders.</p>
<p>It was deployed alongside <a href="https://www.kaldorcentre.unsw.edu.au/publication/turning-back-boats">boat pushbacks at sea</a> and offshore processing, with the goal of deterring asylum seekers from travelling by boat to Australia.</p>
<p>The temporary nature of such visas meant refugees had to have their protection claims reassessed every few years. This left refugees in a state of constant fear and anxiety, unsure if they would be allowed to remain in the country or be forced to leave.</p>
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Read more:
<a href="https://theconversation.com/the-trauma-of-life-in-limbo-for-refugees-and-asylum-seekers-in-immigration-detention-podcast-178942">The trauma of life in limbo for refugees and asylum seekers in immigration detention – podcast</a>
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<p>Those on SHEVs who met certain requirements relating to work and study in regional areas were – at least on paper – potentially eligible for other visas. But in practice, those requirements were beyond reach, with <a href="https://theconversation.com/boat-arrivals-on-temporary-protection-visas-have-access-to-permanent-residency-199751?utm_source=twitter&utm_medium=bylinetwitterbutton">only one person ever qualifying</a>.</p>
<p>The changes announced overnight mark a welcome development. But they don’t resolve the precarious fate of all those in the so-called “legacy caseload”. There’s more to do to bring fairness to thousands of other refugees and asylum seekers who remain tangled in Australia’s complex “fast-track” process. </p>
<h2>Permanent protection</h2>
<p>While the changes fall short of formally abolishing TPV and SHEV visas, people who currently hold such visas will now be able to apply for a “Resolution of Status Visa”. This will allow them to remain permanently in Australia, subject to character, health and security checks. </p>
<p>Permanent residency will provide access to a wide range of rights and benefits that have been out of reach. This includes a pathway to citizenship, access to social security and other benefits, the ability to travel abroad, and access to <a href="https://theconversation.com/education-is-a-human-right-but-for-most-asylum-seekers-in-australia-university-is-an-impossible-dream-174881">government subsidised higher education</a>.</p>
<p>After a decade of being separated from their families, such visa holders will now be able to sponsor family members to join them in Australia.</p>
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<p>The changes implement a promise the Albanese government took to the 2022 election, widely backed by the Australian public. <a href="https://www.kaldorcentre.unsw.edu.au/news/overwhelming-majority-australians-back-pathway-permanency-refugees-tpvs">Polling</a> by the Kaldor Centre for International Refugee Law, the Behavioural Insights Team, and Macquarie University showed three out of four Australian voters supported this pathway to permanency.</p>
<p>The Albanese government’s announcement of <a href="https://minister.homeaffairs.gov.au/AndrewGiles/Pages/permanent-pathway-for-tpv-holders.aspx">A$9.4 million of funding</a> for specialist legal service providers is also welcome. This will allow TPV and SHEV holders to access free legal assistance as they go through the visa application process.</p>
<h2>Who misses out?</h2>
<p>Regrettably, the changes fall short of an <a href="https://www.kaldorcentre.unsw.edu.au/publication/policy-brief-13-temporary-protection-visas-australia-reform-proposal">across-the-board solution</a> for all 31,000 people subject to the TPV and SHEV regime, called for by refugees, refugee-led organisations and other experts. </p>
<p>This means the approximately 12,000 people who hadn’t yet been issued a TPV or SHEV will continue to live in limbo.</p>
<p>This includes around 6,000 people who had their initial visa application refused, and who are seeking merits or judicial review of that decision. That process is set to continue, and the good news is that those who succeed at review and are granted a TPV or SHEV will now automatically be able to apply for a permanent visa.</p>
<p>However, a further 2,500 people who had their TPV or SHEV cancelled or refused are left out and expected to leave Australia. Anyone with a new credible claim may be able to request ministerial intervention. But this is a highly discretionary process and remains to be seen how willing the minister may be to exercise this power.</p>
<p>It’s concerning these people are left without a better process, given the <a href="https://www.kaldorcentre.unsw.edu.au/sites/kaldorcentre.unsw.edu.au/files/Research%20Brief_Fast%20track_final.pdf">well-documented</a> flaws in the so called “fast-track” process that was used to assess these claims. This means there’s a real risk that many people who had their initial claims refused may in fact have valid protection claims.</p>
<p>The changes also don’t apply to anyone who tried to reach Australia by boat after January 1 2014, including the <a href="https://www.kaldorcentre.unsw.edu.au/publication/medevac-law-medical-transfers-offshore-detention-australia">more than 1,000 people</a> transferred from offshore processing facilities to Australia for medical treatment.</p>
<p>The government’s position remains that these people will never be allowed to settle in Australia, and should pursue resettlement options abroad, including through Australia’s <a href="https://minister.homeaffairs.gov.au/KarenAndrews/Pages/australia-new-zealand-resettlement-arrangement.aspx">arrangements with New Zealand</a>.</p>
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Read more:
<a href="https://theconversation.com/aus-nz-refugee-deal-is-a-bandage-on-a-failed-policy-its-time-to-end-offshore-processing-180241">Aus-NZ refugee deal is a bandage on a failed policy. It's time to end offshore processing</a>
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<h2>It won’t encourage people smugglers</h2>
<p>The changes also don’t affect asylum seekers who may attempt to reach Australia by boat in the future. Boat pushbacks at sea and offshore processing arrangements with Nauru remain in place, as does the bar on such arrivals applying for protection visas in Australia.</p>
<p>What this means is that TPVs and SHEVs remain on the books for future arrivals and would be available if the minister were to decide to lift that bar in any given case.</p>
<p>This makes <a href="https://www.skynews.com.au/australia-news/politics/labor-faces-backlash-from-coalition-as-it-ends-temporary-protection-visas-and-offers-residency-to-19000-refugees/news-story/d0d52420511c87ed121884a7a83331c1">claims</a> that the changes could encourage asylum seekers to travel to Australia by boat completely baseless.</p>
<p>Prime Minister Anthony Albanese has expressed a <a href="https://twitter.com/AlboMP/status/1202020877103054848">commitment</a> to being strong on borders without being weak on humanity. Today’s announcement is a welcome first step in that direction, but there’s still a great deal left to be done to return a sense of humanity to Australia’s refugee policies. </p>
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<p><em>Refugees affected by the changes can access information about legal assistance <a href="https://www.refugeecouncil.org.au/information-about-end-of-tpvs-shevs/">here</a> and <a href="https://www.racs.org.au/tpv-shev-processing">here</a>.</em></p><img src="https://counter.theconversation.com/content/199763/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Daniel Ghezelbash receives funding from Australian Research Council. He is a member of the management committee of Refugee Advice and Casework Services and a Special Counsel at the National Justice Project. </span></em></p>But the fate of thousands of other refugees and asylum seekers in limbo in Australia remains uncertain.Daniel Ghezelbash, Associate Professor and Deputy Director, Kaldor Centre for International Refugee Law, UNSW Law & Justice, UNSW Sydney, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1836212022-05-27T05:57:36Z2022-05-27T05:57:36ZThe ‘Biloela family’ are going home – but what will Labor do with thousands of other asylum seekers in limbo in Australia?<p>The <a href="https://www.abc.net.au/news/2021-09-20/no-place-like-home-for-biloela-asylum-seeker-family/100450688">long-running case</a> of the “Biloela family” has taken a step forward, after the new Labor government confirmed they would be allowed to return home to Queensland.</p>
<p>Interim home affairs minister Jim Chalmers said on Friday the Nadesalingam family (also known as the Murugappan family) can finally go <a href="https://www.hometobilo.com/">home to Biloela</a> on bridging visas. </p>
<p>But their final immigration status is still outstanding. It’s yet to be seen if the immigration minister will choose to <a href="https://theconversation.com/why-one-man-with-god-like-powers-decides-if-novak-djokovic-can-stay-or-go-174773">exercise their discretion</a> to grant them permanent visas.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1530055375680319488"}"></div></p>
<p>So what are the other main policies we can expect from the newly elected government affecting thousands more asylum seekers and refugees in Australia? </p>
<h2>Biloela family’s long struggle to go home</h2>
<p>Tamil asylum seekers Kokilapathmapriya Nadesalingam (Priya) and Nadesalingam (Nades) Murugappan arrived in Australia seeking asylum by boat. Nades arrived in 2012 and Priya in 2013.</p>
<p>The couple met in the Australian community, married and had two children. The family lived in the town of Biloela, Queensland, where Nades worked in the local abattoir and Priya volunteered in the community.</p>
<p>In March 2018 the family were taken to Melbourne and put into into detention in after the parents’ refugee claims were refused by the government. The youngest daughter, Tharnicaa, never had the opportunity to have her refugee claims assessed.</p>
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Read more:
<a href="https://theconversation.com/how-the-biloela-tamil-family-deportation-case-highlights-the-failures-of-our-refugee-system-123685">How the Biloela Tamil family deportation case highlights the failures of our refugee system</a>
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<p>In August 2019 a last minute injunction saw the family’s attempted removal back to Sri Lanka stopped mid-flight, and they were taken to detention on Christmas Island where they stayed for almost two years.</p>
<p>In June 2021 three-year-old Tharnicaa <a href="https://theconversation.com/as-a-young-child-is-evacuated-from-detention-could-this-see-the-biloela-tamil-family-go-free-162289">was medically evacuated</a> to Perth after contracting pneumonia and sepsis. </p>
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<p>The family of four have since been living in Perth in community detention. This means they’re able to live in the community but have limited rights. For example, parents Priya and Nades can’t work, and the family haven’t been able to return back to Queensland due to conditions placed on their community release by the former immigration minister.</p>
<p>A <a href="https://www.hometobilo.com/">high-profile community campaign</a> led to an election commitment from both Kristina Kenneally, then shadow minister for home affairs, and then opposition leader Anthony Albanese to grant visas and allow the family to return to Biloela.</p>
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<h2>What now for asylum policy more broadly?</h2>
<p><strong>Temporary protection visas and fast track assessment</strong></p>
<p>People like the Nadesalingam family are part of a larger group of <a href="https://www.asyluminsight.com/the-legacy-caseload#:%7E:text=The%20term%20'legacy%20caseload'%20refers,boat%20before%201%20January%202014.">around 30,000 people</a> seeking asylum who arrived in Australia by boat between August 2012 and December 2013, known as the “legacy caseload”. People who were found to be refugees (<a href="https://www.homeaffairs.gov.au/research-and-stats/files/ima-legacy-caseload-april-2022.pdf">approximately 19,000</a>) were only granted temporary visas, which doesn’t allow them to settle permanently in Australia or sponsor close family members who are overseas. </p>
<p>Labor’s policy is to <a href="https://www.sbs.com.au/news/article/scott-morrison-makes-asylum-seeker-policy-new-battlefield-in-election-campaign/wklaekuvn">abolish temporary protection visas</a> and to grant permanent visas to those who’ve been found to be refugees. </p>
<p>Labor has also agreed to getting rid of the fast track system that was used to process cases from the legacy caseload, due to concerns around the <a href="https://theconversation.com/how-the-biloela-tamil-family-deportation-case-highlights-the-failures-of-our-refugee-system-123685">fairness of this system</a>, particularly for those who have been refused, like the Nadesalingam family.</p>
<p>However, Labor has no stated policy on what will happen for other people in the same situation as the Nadesalingams who have remained in Australia for the last 10 years. </p>
<p><strong>Interception, turnbacks and offshore processing</strong></p>
<p>The ALP’s policy is to maintain the previous policy of Operation Sovereign Borders, which includes the interception and turn back of people seeking asylum who come to Australia by boat.</p>
<p>A boat intercepted by Australian Border Force on the day of the election has already been turned back to Sri Lanka on the direction of Acting Prime Minister Richard Marles, after “<a href="https://www.abc.net.au/news/2022-05-24/labor-turns-back-election-day-asylum-seeker-boat-arrival/101095322">thorough screening</a>” of each persons’ protection status. </p>
<p>The ALP will also continue the previous government’s policy of <a href="https://www.theguardian.com/australia-news/2022/apr/19/factcheck-is-labors-policy-on-asylum-seekers-and-refugees-any-different-to-the-coalitions">offshore processing</a>.</p>
<p>There are still around <a href="https://www.refugeecouncil.org.au/our-letter-to-prime-minister-anthony-albanese/">1,400 people</a> who were sent to Nauru and Papua New Guinea in 2013 awaiting resolution of their cases. Some are eligible to be resettled in the United States and New Zealand. The ALP’s policy is to continue to seek resettlement in other countries and not allow them to settle in Australia.</p>
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<p><strong>Immigration detention</strong></p>
<p><a href="https://humanrights.gov.au/our-work/6-australias-immigration-detention-policy-and-practice">Australian law</a> provides for the mandatory detention of anyone who doesn’t have a visa. Once detained, it isn’t possible to seek review by an independent body or court. People are kept in detention until they are granted a visa or leave the country. Historically both <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1617/AsylumPolicies">Labor and the Coalition</a> have kept the same policy. </p>
<p>Australia’s immigration detention policy is among the <a href="https://www.refugeecouncil.org.au/detention-policies/">harshest in the world</a>. People can be detained for several years without a resolution of their case. This is especially true for people who cannot be returned to their country for fear of persecution or who cannot be sent anywhere because they’re stateless.</p>
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Read more:
<a href="https://theconversation.com/futile-and-cruel-plan-to-charge-fees-for-immigration-detention-has-no-redeeming-features-183035">'Futile and cruel': plan to charge fees for immigration detention has no redeeming features</a>
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<p>As of <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-28-february-2022.pdf">February 2022</a> the average time spent in detention was 689 days. Some people have been in immigration detention for <a href="https://www.refugeecouncil.org.au/what-we-have-learnt-from-the-responses-to-2021-22-additional-senate-estimates-questions-on-notice/">over 10 years</a>. </p>
<p>Labor’s policy platform <a href="https://alp.org.au/media/2594/2021-alp-national-platform-final-endorsed-platform.pdf">states</a> it will operate a “humane and risk based immigration detention policy”, and agrees that “detention that is indefinite or otherwise arbitrary is not acceptable and the length and conditions of detention […] will be subject to regular review”.</p>
<p>But without a commitment to legislative change to allow courts to review decisions to detain, the current practice seems unlikely to change. </p>
<p><strong>Expansion of the refugee and humanitarian program</strong></p>
<p>Labor’s policy is to increase Australia’s annual humanitarian intake from 13,750 to 27,000 per year.</p>
<p>It has also pledged to progressively increase the community sponsored refugee program from 1,500 to 5,000 per year. This program enables individuals, families, community networks and businesses to help sponsor refugees to resettle into Australia, allowing for even more refugee places.</p>
<p>While these policies are a welcome increase, refugee organisations in Australia are hopeful there can be more, particularly in view of the United Nations High Commissioner for Refugees’ (UNHCR) <a href="https://www.unhcr.org/en-au/news/press/2022/5/628a389e4/unhcr-ukraine-other-conflicts-push-forcibly-displaced-total-100-million.html">announcement</a> this week that the global number of forcibly displaced people has reached the staggering milestone of 100 million people.</p>
<p>The Greens and the teal independents have <a href="https://www.refugeecouncil.org.au/wp-content/uploads/2022/04/2022-Election-Policy-Comparison.pdf">voiced concerns</a> over Labor’s policy regarding Operation Sovereign Borders, detention and the refugee and humanitarian program. It will be interesting to see whether they can influence any change.</p>
<p>And there’s no doubt any changes Labor makes to refugee policy will be an area the opposition will be keen to exploit.</p><img src="https://counter.theconversation.com/content/183621/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mary Anne Kenny has previously received funding from the Australian Research Council and sitting fees from the Department of Home Affairs.</span></em></p>Beyond allowing one family to go ‘home to Bilo’, what else we can expect the new Labor government will do about thousands more asylum seekers and refugees?Mary Anne Kenny, Associate Professor, School of Law, Murdoch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1802412022-04-07T03:50:45Z2022-04-07T03:50:45ZAus-NZ refugee deal is a bandage on a failed policy. It’s time to end offshore processing<p>Australia has finally accepted New Zealand’s offer to settle some of the refugees from the <a href="https://www.kaldorcentre.unsw.edu.au/sites/kaldorcentre.unsw.edu.au/files/factsheet_offshore_processing_overview.pdf">offshore processing</a> regime – about nine years after it was first made in 2013.</p>
<p>The NZ deal will provide certainty for <a href="https://www.theguardian.com/australia-news/2022/mar/24/australia-agrees-450-refugees-can-be-resettled-in-new-zealand-nine-years-after-deal-first-offered">450 people</a> who have been in limbo, many for more than a decade.</p>
<p>But in the March 24 <a href="https://minister.homeaffairs.gov.au/KarenAndrews/Pages/australia-new-zealand-resettlement-arrangement.aspx">announcement</a>, Home Affairs Minister Karen Andrews made clear the deal does not change Australia’s <a href="https://www.sbs.com.au/news/article/australia-and-new-zealand-reach-refugee-resettlement-agreement/20vyv2d8w">hard-line approach</a>.</p>
<p>This makes the deal a bandage on a <a href="https://www.kaldorcentre.unsw.edu.au/sites/kaldorcentre.unsw.edu.au/files/Policy_Brief_11_Offshore_Processing.pdf">failed policy</a> that continues to haemorrhage cash, destroy lives and erode the international system for refugee protection.</p>
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Read more:
<a href="https://theconversation.com/morrison-government-finally-accepts-deal-with-new-zealand-to-resettle-refugees-179949">Morrison government finally accepts deal with New Zealand to resettle refugees</a>
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<h2>Who is – and isn’t – included in the NZ deal?</h2>
<p>The original offer, made by the then NZ Prime Minister John Key in 2013, was refused by the Australian government until now. The Coalition government claimed the deal could be a “<a href="https://www.theguardian.com/australia-news/2018/nov/01/decision-to-bring-children-from-nauru-an-admission-of-failure-by-government">pull factor</a>” for asylum seekers coming by boat to Australia. </p>
<p>Under the agreement, NZ will settle up to 150 of Australia’s “offshore processing” refugees per year for three years. These refugees arrived in Australia by sea between 2012 and 2014 and were sent to Nauru or Manus Island “offshore processing” detention centres. </p>
<p>The deal can include the <a href="https://www.homeaffairs.gov.au/about-us-subsite/files/population-and-number-of-people-resettled.pdf">112 people</a> who are in Nauru or those temporarily in Australia under offshore processing arrangements.</p>
<p>Some <a href="https://www.unhcr.org/en-au/news/press/2022/3/623a66584/unhcr-news-comment-on-the-australia-new-zealand-refugee-deal.html">1,100</a> people have been returned temporarily to Australia, mostly for medical treatment. They mostly live in the community with <a href="https://www.amnesty.org.au/potential-return-of-refugees-and-people-seeking-asylum-to-nauru-and-png-proof-of-policy-failure/">no support and insecure visa status</a> but some remain in detention.</p>
<p>Those already being considered for settlement to another country, such as the United States or Canada, aren’t eligible for the NZ program. </p>
<p>More than 100 men who remain in Papua New Guinea aren’t included in this deal.</p>
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<p>Under current known arrangements, people remaining in PNG could be <a href="https://www.theguardian.com/world/2022/mar/25/australia-new-zealand-refugee-deal-everything-we-know">referred</a> by the United Nations High Commissioner for Refugees to NZ through its regular refugee programme. </p>
<p>Even after the NZ and US options are exhausted, it’s estimated at least <a href="https://www.refugeecouncil.org.au/australians-welcome-nzs-generosity-to-refugees-in-offshore-processing/">500 refugees will be without a solution</a>.</p>
<p>And they’re not the only ones. There are some <a href="https://www.kaldorcentre.unsw.edu.au/sites/kaldorcentre.unsw.edu.au/files/Factsheet_Legacy%20Caseload_final.pdf">30,000 people</a> in what’s called the “legacy caseload” who arrived by sea between 2012 and 2014 and weren’t transferred to Nauru and PNG. They remain in Australia subject to harmful measures. They’re stuck in limbo on temporary visas, unable to reunify with family members, and receive <a href="https://humanrights.gov.au/about/news/urgent-call-government-protect-asylum-seekers-and-refugees">inadequate support</a> to secure housing or health care.</p>
<h2>Australia distorts the global refugee system</h2>
<p><a href="https://www.refworld.org/docid/51af82794.html">Australia has primary responsibility</a> for refugees who seek its protection. The Australian government has repeatedly tried and failed to find countries willing to settle refugees it refuses to protect. It reportedly offered multiple countries, from the Philippines to Kyrgyzstan, <a href="https://www.theguardian.com/australia-news/2018/may/08/australias-refugee-deal-a-farce-after-us-rejects-all-iranian-and-somali-asylum-seekers">millions of dollars</a> to settle refugees from Australia’s offshore camps – without success.</p>
<p>Resettlement to a third country is an important solution, available to less than 1% of refugees globally whose lives, liberty, safety, health or other fundamental rights are at risk <a href="https://www.unhcr.org/46f7c0ee2.html">in the country where they have sought refuge</a>. This isn’t the case for refugees seeking asylum in Australia, where there’s a well-established asylum system.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1485683266590060548"}"></div></p>
<p>It’s difficult to think of the NZ solution as “resettlement” in its true meaning.</p>
<p>Resettlement places are important to <a href="https://www.unhcr.org/en-au/news/press/2021/6/60d32ba44/un-refugee-agency-releases-2022-resettlement-needs.html">relieve pressure on developing countries</a> that host almost 90% of the world’s refugees. Conflicts in Syria, Yemen, Myanmar, South Sudan, Afghanistan, plus now Russia’s invasion of Ukraine, have created a need for resettlement in a third country for almost <a href="https://www.unhcr.org/en-au/news/press/2021/6/60d32ba44/un-refugee-agency-releases-2022-resettlement-needs.html">1.5 million</a> refugees worldwide. Resettlement has been disrupted over the last two years due to COVID, leaving even more people in urgent need.</p>
<p>Under these extraordinary “refugee deals” with the US and NZ, the Australian government is trying to solve a political problem of its own making at the expense of people in desperate need. </p>
<p>Like Australia, the US and NZ offer only a limited number of resettlement spots each year. When these spots go to Australia’s refugees, who are Australia’s responsibility, someone else misses out.</p>
<h2>Continuing damage</h2>
<p>This is Australia’s second go at offshore processing. Its first iteration, the “Pacific Solution”, lasted from 2001 until 2008. The second commenced in 2012 and continues.</p>
<p>Offshore processing remains costly. Australian taxpayers have spent, on average, around <a href="https://www.kaldorcentre.unsw.edu.au/sites/kaldorcentre.unsw.edu.au/files/Policy_Brief_11_Offshore_Processing.pdf#page=14&zoom=auto,-135,786">A$1 billion per year</a> to maintain offshore processing since 2014.</p>
<p>This is despite a dramatic drop in the number of people held in Nauru and PNG. At the peak in April 2014, Australia detained a total of 2,450 people. By December 2021, there were <a href="https://www.refugeecouncil.org.au/operation-sovereign-borders-offshore-detention-statistics/2/">219 people remaining offshore in Nauru and PNG</a>.</p>
<p>People transferred to Manus Island and Nauru suffered mandatory and indefinite detention in harsh conditions. Their treatment has been called out by the United Nations repeatedly as <a href="https://www.unhcr.org/en-au/united-nations-observations.htm">cruel and inhuman</a> and described by Amnesty International as <a href="https://www.rnz.co.nz/national/programmes/checkpoint/audio/2018835563/amnesty-international-celebrates-deal-for-nz-to-take-refugees">torture</a>.</p>
<p>The abuse of men, women and children in offshore processing centres has been thoroughly documented in a <a href="https://docs.wixstatic.com/ugd/b743d9_e4413cb72e1646d8bd3e8a8c9a466950.pdf">communiqué</a> to the International Criminal Court, <a href="https://bills.parliament.uk/publications/43063/documents/791#page=27&zoom=auto,-134,1">parliamentary inquiries</a> and domestic legal challenges.</p>
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<p>Australia’s offshore processing sets a bad regional precedent for <a href="https://humanrights.gov.au/sites/default/files/20160913_Pathways_to_Protection.pdf#page=20&zoom=page-fit,-625,841">refugee protection in Southeast Asia</a> and beyond.</p>
<p>The policy objective of using cruelty as a deterrent to “stop the boats” and “save lives at sea” didn’t work. If boats didn’t arrive, this was due to Australia’s <a href="https://www.kaldorcentre.unsw.edu.au/sites/kaldorcentre.unsw.edu.au/files/Policy_Brief_11_Offshore_Processing.pdf">interception and turnback of boats at sea</a>.</p>
<h2>What needs to change?</h2>
<p>Refugee policy can be <a href="https://www.kaldorcentre.unsw.edu.au/publication/principles-australian-refugee-policy">principled</a> and driven by compassion while protecting borders and respecting international law.</p>
<p>Australia should formally end offshore processing. The small number of people still held offshore in Nauru and PNG should be transferred back to Australia. </p>
<p>Everyone who has been subject to the policy since 2012 who doesn’t have a permanent solution could be offered settlement in Australia. This <a href="https://www.aph.gov.au/about_parliament/parliamentary_departments/parliamentary_library/pubs/bn/2012-2013/pacificsolution">occurred</a> in the first iteration of offshore processing and could happen again.</p>
<p>Money and lives can be saved.</p><img src="https://counter.theconversation.com/content/180241/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Natasha Yacoub is an international refugee law scholar and practitioner, having worked on refugee protection for two decades with the United Nations in conflict and peacetime settings. She is presently a researcher and doctoral candidate at UNSW. The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations.</span></em></p>Offshore processing is a failed policy that continues to haemorrhage cash, destroy lives and erode the international system for refugee protection.Natasha Yacoub, International refugee lawyer and scholar, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1721412021-12-07T07:43:42Z2021-12-07T07:43:42ZAustralia’s asylum policy has been a disaster. It’s deeply disturbing the UK wants to adopt it<p>Late last month, at least <a href="https://www.nytimes.com/2021/11/24/world/europe/migrants-boat-capsize-calais.html">27 people drowned</a> after their inflatable dinghy capsized while trying to cross the English Channel to the UK. The International Organization for Migration <a href="https://news.un.org/en/story/2021/11/1106562">has called it</a> the biggest single loss of life in the channel since data collection began in 2014. </p>
<p>While British Prime Minister Boris Johnson said he was “<a href="https://www.reuters.com/world/uk/uks-johnson-shocked-appalled-by-deaths-migrants-channel-2021-11-24/">shocked and appalled and deeply saddened</a>” by the tragedy, it will no doubt spur on efforts to rush through the country’s much-maligned <a href="https://bills.parliament.uk/bills/3023">Nationality and Borders Bill</a>. </p>
<p>This bill, which is being debated in the UK parliament again this week, seeks among other things to “<a href="https://publications.parliament.uk/pa/bills/cbill/58-02/0141/en/210141en.pdf">deter illegal entry into the United Kingdom</a>”.</p>
<p>The sense of urgency mounting around this issue does not sweep aside the need for reasoned and rational policymaking. In Australia, we have seen the damage caused by hurried and ill-conceived asylum policies. It is deeply disturbing to see the UK barrel down the same path. </p>
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<img alt="Protesters outside Downing Street" src="https://images.theconversation.com/files/435775/original/file-20211206-27-1a4icg0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/435775/original/file-20211206-27-1a4icg0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/435775/original/file-20211206-27-1a4icg0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/435775/original/file-20211206-27-1a4icg0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/435775/original/file-20211206-27-1a4icg0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/435775/original/file-20211206-27-1a4icg0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/435775/original/file-20211206-27-1a4icg0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&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="caption">Protesters outside Downing Street in London calling on the government to scrap the Nationalities and Borders Bill.</span>
<span class="attribution"><span class="source">Aaron Chown/PA</span></span>
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<h2>Flawed assumptions about Australia’s system</h2>
<p>Much of the UK’s proposed “solution” to channel crossings <a href="https://rli.blogs.sas.ac.uk/2021/10/20/the-nationality-and-borders-bill-lessons-from-australia-on-the-reinterpretation-of-persecution-and-protection/">borrows from Australia’s efforts</a> to “stop the boats” and deter people in need of protection from seeking (or finding) it here. </p>
<p>The UK proposal to “offshore” asylum seekers by <a href="https://www.independent.co.uk/news/uk/politics/priti-patel-albania-migrants-raab-b1959891.html">sending them to Albania</a> or some other country is modelled on Australia’s experience sending asylum seekers to the Pacific nations of Nauru and Papua New Guinea. </p>
<p>Given all we now know about the ramifications of offshore processing, it is astonishing the UK is seeking to replicate it. Offshore processing has been an <a href="https://www.kaldorcentre.unsw.edu.au/news/cruel-costly-and-ineffective-failure-offshore-processing-australia">unmitigated policy failure</a> here.</p>
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<a href="https://theconversation.com/uk-nationality-and-borders-bill-qanda-how-will-it-affect-migration-across-the-english-channel-164808">UK Nationality and Borders Bill Q&A: how will it affect migration across the English Channel?</a>
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<p>A group of Conservative MPs, including David Davis, have rightly challenged the humanity, feasibility and cost of the UK adopting Australian-style offshore processing. They have <a href="https://www.theguardian.com/politics/2021/nov/16/offshore-asylum-seekers-david-davis-scrap-plans">tabled an amendment</a> which would see offshore processing struck from the bill.</p>
<p>However, some other MPs have been led to believe the Australian model of offshore processing is “<a href="https://hansard.parliament.uk/commons/2021-11-22/debates/69973F3C-2383-4C12-AB0D-6BA1EBEDB7F8/ChannelCrossingsInSmallBoats">the best way to control illegal immigration</a>” and “<a href="https://hansard.parliament.uk/commons/2021-11-22/debates/11550422-37F6-497C-BCAF-2531ED2F012F/OralAnswersToQuestions">the single most important step any sovereign nation can take in protecting its own borders against illegal immigration</a>”. </p>
<p>One MP claimed that when offshore processing was introduced in Australia, the number of asylum seekers arriving by boat “<a href="https://hansard.parliament.uk/commons/2021-11-22/debates/11550422-37F6-497C-BCAF-2531ED2F012F/OralAnswersToQuestions">fell off a cliff straightaway</a>”. </p>
<p>Many of us watch these developments from afar with bewilderment. The UK government appears to be taking at face value claims by the Australian government that offshore processing was a success in stopping boat arrivals. </p>
<p>These claims do not stack up to scrutiny. They belie the government’s own data and are not supported by any independent source. </p>
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<img alt="A makeshift migrant camp in Calais, France." src="https://images.theconversation.com/files/435777/original/file-20211206-104971-417rqb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/435777/original/file-20211206-104971-417rqb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/435777/original/file-20211206-104971-417rqb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/435777/original/file-20211206-104971-417rqb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/435777/original/file-20211206-104971-417rqb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/435777/original/file-20211206-104971-417rqb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/435777/original/file-20211206-104971-417rqb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&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="caption">A makeshift migrant camp in Calais, France, across the English Channel from the UK.</span>
<span class="attribution"><span class="source">Rafael Yaghobzadeh/AP</span></span>
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<h2>Misleading evidence about Australia’s program</h2>
<p>In September, George Brandis, the Australian high commissioner to the UK, gave what we believe to be <a href="https://hansard.parliament.uk/commons/2021-09-23/debates/7ca593db-c83d-48c0-98ff-300ed88e15ce/NationalityAndBordersBill(ThirdSitting)">inaccurate and misleading evidence</a> about offshore processing to the UK parliamentary committee tasked with considering the bill. </p>
<p>My colleagues at the Kaldor Centre for International Refugee Law and I submitted to parliament <a href="https://www.kaldorcentre.unsw.edu.au/sites/kaldorcentre.unsw.edu.au/files/House_Commons_Nationality_Borders_%20Bill_October_2021.pdf">a point-by-point rebuttal</a> to this evidence, addressing just some of the errors and misrepresentations. </p>
<p>One of the most serious issues was the conflation of two very different policies – boat turnbacks and the offshore processing system. </p>
<p>“Offshore processing” involved sending asylum seekers from Australia to Nauru and PNG to have their claims processed there. Australia stopped transferring new arrivals offshore in 2014.</p>
<p>By contrast, the policy of boat turnbacks is ongoing, and has largely achieved its goal of deterring the arrival of people by sea. Since late 2013, the policy has involved intercepting asylum seekers at sea and sending them straight back to their countries of departure, without allowing them to apply for asylum. The <a href="https://www.refugeecouncil.org.au/wp-content/uploads/2021/03/UN-SR-Pushback-practices-and-their-impact-on-the-human-rights-of-migrants.pdf">humanitarian consequences of the turnback policy</a> can be dire, especially for those returned to persecution and serious human rights abuses. It is also contrary to international law.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1467552593618608130"}"></div></p>
<p>Brandis wrongly claimed that offshore processing and boat turnbacks were introduced at the same time. This gave the false impression that they are inseparable elements of a single approach to boat arrivals, the effectiveness of which can only be assessed holistically. </p>
<p>In fact, offshore processing was introduced in August 2012, a full year <em>before</em> boat turnbacks. During that year, boat arrivals continued to increase. In fact, <a href="https://www.aph.gov.au/about_parliament/parliamentary_departments/parliamentary_library/pubs/rp/rp1314/QG/BoatArrivals">more asylum seekers arrived in Australia by sea</a> than at any other time in history. </p>
<p>Indeed, just three months after the offshore processing policy was announced, the government was <a href="https://parlinfo.aph.gov.au/parlInfo/download/media/pressrel/2060961/upload_binary/2060961.pdf">already forced to admit</a> that more people had arrived by boat than could ever be accommodated offshore. </p>
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Read more:
<a href="https://theconversation.com/multibillion-dollar-strategy-with-no-end-in-sight-australias-enduring-offshore-processing-deal-with-nauru-168941">Multibillion-dollar strategy with no end in sight: Australia's 'enduring' offshore processing deal with Nauru</a>
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<h2>Exporting a cruel, inhumane and costly system</h2>
<p>The fact that offshore processing did not stop people travelling by boat to Australia should be sufficient to put an end to debate in the UK. But there are other reasons this Australian “model” should not be adopted elsewhere. </p>
<p>First, extreme cruelty is an inherent and unavoidable part of the system. </p>
<p>The <a href="https://www.unhcr.org/en-au/publications/legal/58362da34/submission-to-the-senate-legal-and-constitutional-affairs-committee-serious.html">UN High Commissioner for Refugees</a> and <a href="https://msf.org.au/sites/default/files/attachments/indefinite_despair_3.pdf">Médecins Sans Frontières</a> have found the rates of mental illness of asylum seekers and refugees in Nauru and PNG to be among the highest recorded in any surveyed population, and some of the worst they had ever encountered. </p>
<p>Paediatricians <a href="https://humanrights.gov.au/our-work/asylum-seekers-and-refugees/publications/health-and-well-being-children-immigration">reported</a> children transferred to Nauru were among the most traumatised they had ever seen. </p>
<p>In fact, the Australian government was eventually forced to evacuate all families back to Australia when previously healthy children developed a <a href="https://www.abc.net.au/news/2018-08-22/resignation-syndrome-and-why-is-it-affecting-refugee-children/10152444">rare psychiatric condition</a> known as traumatic withdrawal syndrome, or “resignation syndrome”. In the most serious stage of this condition, children enter an unconscious or comatose state. </p>
<p>No liberal democracy should entertain the possibility of inflicting such cruelty and suffering on human beings, let alone do it. </p>
<p>The Australian experience also shows that it is <a href="https://www.kaldorcentre.unsw.edu.au/sites/kaldorcentre.unsw.edu.au/files/Policy_Brief_11_Offshore_Processing.pdf">extraordinarily expensive</a> to implement offshore processing. </p>
<p>Costs continue to mount with each passing year, with the policy <a href="https://www.homeaffairs.gov.au/reports-and-pubs/budgets/2021-22-home-affairs-pbs-full.pdf">expected to cost more than A$800 million (£424 million) in the financial year 2021-22</a>, despite there being <a href="https://www.homeaffairs.gov.au/about-us-subsite/files/population-and-number-of-people-resettled.pdf">less than 230 people left offshore</a>. The cost to hold a single person offshore on Nauru is now <a href="https://www.theguardian.com/australia-news/2021/nov/07/cost-of-australia-holding-each-refugee-on-nauru-balloons-to-43m-a-year">believed to have risen to A$4.3 million (£2.28 million) each year</a>.</p>
<p>The UK government will need to account to taxpayers for billions of pounds spent on a policy that likely will not achieve its stated aims. </p>
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Read more:
<a href="https://theconversation.com/debunking-key-myths-about-britains-broken-asylum-system-172794">Debunking key myths about Britain's 'broken asylum system'</a>
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<p>The UK is also hanging its hat on a policy which may be ruled unlawful and never get off the ground. </p>
<p>In Australia, offshore processing has faced a constant barrage of legal challenges, many of which have forced the government to alter its policies or pay out <a href="https://www.abc.net.au/news/2017-09-06/manus-island-detainees-settlement-with-commonwealth/8876934">large sums in damages</a>. </p>
<p>In the UK, where human rights law limits government power, the legal obstacles will be even bigger.</p>
<p>The prospect of sending asylum seekers “offshore” might sound like a convenient solution in theory. But the reality of this policy in Australia has proven it to be difficult, ineffective, expensive, cruel and controversial.</p><img src="https://counter.theconversation.com/content/172141/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Madeline has previously provided oral and written evidence to the UK House of Commons on the proposal to introduce offshore processing. </span></em></p>The mounting urgency about asylum seekers trying to reach the UK by boat does not sweep aside the need for reasoned and rational policymaking.Madeline Gleeson, Senior Research Fellow, Andrew & Renata Kaldor Centre for International Refugee Law, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1689412021-10-03T19:00:07Z2021-10-03T19:00:07ZMultibillion-dollar strategy with no end in sight: Australia’s ‘enduring’ offshore processing deal with Nauru<figure><img src="https://images.theconversation.com/files/424138/original/file-20211001-13-1e0vw0w.jpg?ixlib=rb-1.1.0&rect=366%2C12%2C3645%2C2249&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Late last month, Home Affairs Minister Karen Andrews and the president of Nauru, Lionel Aingimea, quietly <a href="https://minister.homeaffairs.gov.au/KarenAndrews/Pages/maritime-people-smuggling.aspx">announced</a> they had signed a new agreement to establish an “enduring form” of offshore processing for asylum seekers taken to the Pacific island.</p>
<p>The text of the new agreement has not been made public. This is unsurprising. </p>
<p>All the publicly available information indicates Australia’s offshore processing strategy is an ongoing human rights — not to mention financial — <a href="https://www.unhcr.org/en-au/news/press/2021/7/60f558274/unhcr-statement-on-8-years-of-offshore-asylum-policy.html">disaster</a>. </p>
<p>The deliberate opaqueness is intended to make it difficult to hold the government to account for these human and other costs. This is, of course, all the more reason to subject the new deal with Nauru to intense scrutiny.</p>
<h2>Policies 20 years in the making</h2>
<p>In order to fully understand the new deal — and the ramifications of it — it is necessary to briefly recount 20 years of history. </p>
<p>In late August 2001, the Howard government impulsively refused to allow asylum seekers <a href="https://www.nma.gov.au/defining-moments/resources/tampa-affair">rescued at sea by the Tampa freighter</a> to disembark on Australian soil. This began policy-making on the run and led to the <a href="https://en.wikipedia.org/wiki/Pacific_Solution#:%7E:text=The%20Pacific%20Solution%20is%20the,land%20on%20the%20Australian%20mainland.">Pacific Solution Mark I</a>. </p>
<p>The governments of Nauru and Papua New Guinea were persuaded to enter into agreements allowing people attempting to reach Australia by boat to be detained in facilities on their territory while their protection claims were considered by Australian officials. </p>
<p>By the 2007 election, boat arrivals to Australia had dwindled substantially.</p>
<p>In February 2008, the newly elected Labor government closed down the facilities in Nauru and PNG. Within a year, boat arrivals had increased dramatically, causing the government to rethink its policy. </p>
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<img alt="" src="https://images.theconversation.com/files/424144/original/file-20211001-15-4u7zxu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/424144/original/file-20211001-15-4u7zxu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=382&fit=crop&dpr=1 600w, https://images.theconversation.com/files/424144/original/file-20211001-15-4u7zxu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=382&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/424144/original/file-20211001-15-4u7zxu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=382&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/424144/original/file-20211001-15-4u7zxu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=480&fit=crop&dpr=1 754w, https://images.theconversation.com/files/424144/original/file-20211001-15-4u7zxu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=480&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/424144/original/file-20211001-15-4u7zxu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=480&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="caption">Sri Lankan migrants bound for Australia after they were intercepted by the Indonesian navy in 2009.</span>
<span class="attribution"><span class="source">Irwin Fedriansyah/AP</span></span>
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<p>After a <a href="http://press-files.anu.edu.au/downloads/press/n7824/pdf/ch09.pdf">couple of false starts</a>, it signed new deals with Nauru and PNG in late 2012. An expert panel had <a href="https://www.kaldorcentre.unsw.edu.au/sites/kaldorcentre.unsw.edu.au/files/expert-panel-report.pdf">described</a> the new arrangements as a “necessary circuit breaker to the current surge in irregular migration to Australia”. </p>
<p>This was the <a href="http://www.refugeeaction.org.au/wp-content/uploads/2012/10/Pacific-Solution-II-fact-sheet.pdf">Pacific Solution Mark II</a>. In contrast to the first iteration, it provided for boat arrivals taken to Nauru and PNG to have protection claims considered under the laws and procedures of the host country. </p>
<p>Moreover, the processing facilities were supposedly run by the host countries, though in reality, the Australian government outsourced this to private companies.</p>
<p>Despite the new arrangements, the boat arrivals continued. And on July 19, 2013, the Rudd government took a hardline stance, <a href="https://webarchive.nla.gov.au/awa/20130730234007/http:/pandora.nla.gov.au/pan/79983/20130731-0937/www.pm.gov.au/press-office/transcript-joint-press-conference-2.html">announcing</a> any boat arrivals after that date would have “have no chance of being settled in Australia as refugees”. </p>
<h2>New draconian changes to the system</h2>
<p>The <a href="https://www.aph.gov.au/api/qon/downloadestimatesquestions/EstimatesQuestion-CommitteeId6-EstimatesRoundId11-PortfolioId20-QuestionNumber545">1,056</a> individuals who had been transferred to Nauru or PNG before July 19, 2013 were brought to Australia to be processed. </p>
<p>PNG <a href="https://www.dfat.gov.au/geo/papua-new-guinea/memorandum-of-understanding-between-the-government-of-the-independent-state-of-papua-new-guinea-and-the-government-of-austr">agreed</a> that asylum seekers arriving after this date could resettle there, if they were recognised as refugees.</p>
<p>Nauru made a more equivocal <a href="https://www.dfat.gov.au/geo/nauru/memorandum-of-understanding-between-the-republic-of-nauru-and-the-commonwealth-of-australia-relating-to-the-transfer-to-and">commitment</a> and has thus far only granted 20-year visas to those it recognises as refugees.</p>
<p>The Coalition then won the September 2013 federal election and implemented the military-led Operation Sovereign Borders policy. This involves turning back boat arrivals to transit countries (like Indonesia), or to their countries of origin. </p>
<p>The <a href="https://www.homeaffairs.gov.au/foi/files/2021/fa-210100105-fa210100899-document-released-pt1.PDF">cumulative count</a> of interceptions since then stands at 38 boats carrying 873 people. The most recent interception was in January 2020. </p>
<p>It should be noted these figures do not include the large number of interceptions undertaken at Australia’s request by transit countries and countries of origin. </p>
<p>What this means is the mere existence of the offshore processing system — even in the more draconian form in place after July 2013 — has not deterred people from attempting to reach Australia by boat. </p>
<p>Rather, the attempts have continued, but the interception activities of Australia and other countries have prevented them from succeeding.</p>
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<h2>No new asylum seekers in Nauru or PNG since 2014</h2>
<p>Australia acknowledges it has obligations under the <a href="http://www.austlii.edu.au/au/other/dfat/treaties/1954/5.html">UN Convention Relating to the Status of Refugees</a> — and other human rights treaties — to refrain from returning people to places where they face the risk of serious harm. </p>
<p>As a result, those intercepted at sea are given <a href="https://www.aph.gov.au/api/qon/downloadestimatesquestions/EstimatesQuestion-CommitteeId6-EstimatesRoundId10-PortfolioId20-QuestionNumber311">on-water screening interviews</a> for the purpose of identifying those with <em>prima facie</em> protection claims. </p>
<p>Those individuals are supposed to be taken to Nauru or PNG instead of being turned back or handed back. <a href="https://www.asyluminsight.com/savitri-taylor#.YVUDX5pBwtI">Concerningly</a>, of the 873 people intercepted since 2013, only two have passed these screenings: both in 2014. </p>
<p>This means no asylum seekers have been taken to either Nauru or PNG since 2014. Since then, Australia has spent years trying to find resettlement options in third countries for recognised refugees in Nauru and PNG, such as in <a href="https://www.aph.gov.au/api/qon/downloadestimatesquestions/EstimatesQuestion-CommitteeId6-EstimatesRoundId4-PortfolioId20-QuestionNumber152">Cambodia</a> and <a href="https://www.aph.gov.au/api/qon/downloadestimatesquestions/EstimatesQuestion-CommitteeId6-EstimatesRoundId11-PortfolioId20-QuestionNumber549">the US</a>.</p>
<p><a href="https://www.aph.gov.au/api/qon/downloadestimatesquestions/EstimatesQuestion-CommitteeId6-EstimatesRoundId11-PortfolioId20-QuestionNumber544">As of April 30</a>, 131 asylum seekers were still in PNG and 109 were in Nauru. </p>
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Read more:
<a href="https://theconversation.com/explainer-the-medevac-repeal-and-what-it-means-for-asylum-seekers-on-manus-island-and-nauru-128118">Explainer: the medevac repeal and what it means for asylum seekers on Manus Island and Nauru</a>
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<h2>A boon to the Nauruan government</h2>
<p>Australia has spent <a href="https://www.aph.gov.au/api/qon/downloadestimatesquestions/EstimatesQuestion-CommitteeId6-EstimatesRoundId11-PortfolioId20-QuestionNumber427">billions</a> on Pacific Solution Mark II with no end in sight.</p>
<p>As well as underwriting all the infrastructure and operational costs of the processing facilities, Australia made it worthwhile for Nauru and PNG to participate in the arrangements. </p>
<p>For one thing, it promised to ensure spillover benefits for the local economies by, for example, requiring contractors to hire local staff. In fact, in 2019–20, the processing facility in Nauru employed <a href="https://devpolicy.org/nauru-riches-to-rags-to-riches-20210412/">15% of the country’s entire workforce</a>.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1360001314172727297"}"></div></p>
<p>And from the beginning, Nauru has <a href="http://www.paclii.org/nr/legis/sub_leg/ia2014ir2014385.pdf">required</a> every transferee to hold a regional processing centre visa. This is a temporary visa which must be renewed every three months by the Australian government. </p>
<p>The visa fee each time is A$3,000, so that’s A$12,000 per transferee per year that Australia is required to pay the Nauruan government. </p>
<p>Where a transferee is found to be a person in need of protection, that visa <a href="http://www.paclii.org/nr/legis/sub_leg/ia2014irn4o2014511/">converts automatically</a> into a temporary settlement visa, which must be renewed every six months. The temporary settlement visa fee is A$3,000 per month — again paid by the Australian government. </p>
<p>In 2019-20, direct and indirect revenue from the processing facility made up <a href="https://devpolicy.org/nauru-riches-to-rags-to-riches-20210412/">58% of total Nauruan government revenue</a>. It is no wonder Nauru is on board with making an “enduring form” of offshore processing available to Australia.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/cruel-costly-and-ineffective-australias-offshore-processing-asylum-seeker-policy-turns-9-166014">Cruel, costly and ineffective: Australia's offshore processing asylum seeker policy turns 9</a>
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<h2>‘Not to use it, but to be willing to use it’</h2>
<p>In 2016, the PNG Supreme Court <a href="http://www.paclii.org/pg/cases/PGSC/2016/13.pdf">ruled</a> the detention of asylum seekers in the offshore processing facility was unconstitutional. Australia and PNG then <a href="https://parlinfo.aph.gov.au/parlInfo/download/committees/estimate/3a32f9b8-b53d-4251-a739-7e12e1fc506e/toc_pdf/Legal%20and%20Constitutional%20Affairs%20Legislation%20Committee_2017_10_23_5658_Official.pdf;fileType=application/pdf#search=%22committees/estimate/3a32f9b8-b53d-4251-a739-7e12e1fc506e/0001%22">agreed</a> to close the PNG facility in late 2017 and residents were moved to alternative accommodation. Australia is <a href="https://uploads.guim.co.uk/2017/10/29/Media_Release-Minister_Thomas_on_Closure_of_Manus_RPC.pdf">underwriting the costs</a>.</p>
<p>Australia decided, however, to maintain a processing facility in Nauru. Senator Jim Molan <a href="https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:%22committees/estimate/2c68087e-f913-401c-88da-f76e4cc7f2fc/0002%22">asked</a> Home Affairs Secretary Michael Pezzullo about this in Senate Estimates in February 2018, saying:</p>
<blockquote>
<p>So it’s more appropriate to say that we are not maintaining Nauru as an offshore processing centre; we are maintaining a relationship with the Nauru government.</p>
</blockquote>
<p>Pezzullo responded,</p>
<blockquote>
<p>the whole purpose is, as you would well recall, in fact not to have to use those facilities. But, as in all deterrents, you need to have an asset that is credible so that you are deterring future eventualities. So the whole point of it is actually not to use it but to be willing to use it. </p>
</blockquote>
<p>This is how we ended up where we are now, with a new deal with the Nauru government for an “enduring” — that is indefinitely maintained — offshore processing capability, at great cost to the Australian people.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/could-the-biden-administration-pressure-australia-to-adopt-more-humane-refugee-policies-153718">Could the Biden administration pressure Australia to adopt more humane refugee policies?</a>
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<p>Little has been made public about this new arrangement. We do know in December 2020, the incoming minister for immigration, Alex Hawke, was <a href="https://www.homeaffairs.gov.au/foi/files/2021/fa-210100105-fa210100899-document-released-pt1.PDF">told</a> the government was undertaking “a major procurement” for “enduring capability services”. </p>
<p>We also know a <a href="https://www.aph.gov.au/api/qon/downloadestimatesquestions/EstimatesQuestion-CommitteeId6-EstimatesRoundId11-PortfolioId20-QuestionNumber423">budget of A$731.2 million</a> has been appropriated for regional processing in 2021-22. </p>
<p>Of this, $187 million is for service provider fees and host government costs in PNG. Almost all of the remainder goes to Nauru, to ensure that, beyond hosting its current population of 109 transferees, it “stands ready to receive new arrivals”.</p><img src="https://counter.theconversation.com/content/168941/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Savitri Taylor receives funding from the Australian Research Council.
She is a member of the Committee of Management of Refugee Legal.
She is a member of the Kim for Canberra Party.
The views expressed in this article are her own.</span></em></p>Nauru is receiving hundreds of millions of dollars from Australia annually to house 109 asylum seekers. The real purpose, though, is to ‘stand ready to receive new arrivals’.Savitri Taylor, Associate Professor, Law School, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1660142021-08-12T01:04:39Z2021-08-12T01:04:39ZCruel, costly and ineffective: Australia’s offshore processing asylum seeker policy turns 9<p>This week marks nine years since Australia re-introduced a policy of offshore processing for asylum seekers arriving by boat. Nine long years of a cruel, costly and ineffective policy sustained by successive governments of both major parties, despite <a href="https://www.kaldorcentre.unsw.edu.au/sites/kaldorcentre.unsw.edu.au/files/Policy_Brief_11_Offshore_Processing.pdf">consistently failing to meet</a> any of its stated aims.</p>
<p>As we outline in a new Kaldor Centre policy brief, <a href="https://www.kaldorcentre.unsw.edu.au/sites/kaldorcentre.unsw.edu.au/files/Policy_Brief_11_Offshore_Processing.pdf">Cruel, costly and ineffective: the failure of offshore processing in Australia</a>, offshore processing does not “save lives”, “stop the boats” or “break the business model of people smugglers”. Nor is it a benign failure. </p>
<p>Beyond simply not doing what it sets out to do, offshore processing carries enormous costs. There are human costs, for the men, women and children subject to immense suffering, and even to some of the people tasked with implementing it.</p>
<p>It also carries diplomatic costs, as Australia’s international reputation is tarnished. Its relationship with Pacific neighbours in Nauru and Papua New Guinea grows increasingly strained with each passing year. Then there’s the ballooning economic costs for taxpayers, as <a href="https://www.theguardian.com/australia-news/2021/may/12/australia-will-spend-almost-34m-for-each-person-in-offshore-detention-budget-shows">billions are sunk in vain</a> into a disastrous policy failure. </p>
<p>That no Australian government in almost a decade has successfully brought this policy to a formal close is astonishing, and it demands interrogation.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/with-billions-more-allocated-to-immigration-detention-its-another-bleak-year-for-refugees-160783">With billions more allocated to immigration detention, it's another bleak year for refugees</a>
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<h2>Failing to meet its stated policy aims</h2>
<p>The government’s own data on the impact of offshore processing on boat arrivals is the starkest revelation of this policy’s failure. During its first year, <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1617/Quick_Guides/BoatTurnbacks">more people sought asylum in Australia by boat</a> than at any other time since boat arrivals were first recorded in the 1970s. Deaths at sea also <a href="https://www.monash.edu/__data/assets/pdf_file/0018/2523141/BOB-Research-Brief-18-_border-deaths-annual-report-2020_Final.pdf">continued at broadly comparable rates</a> to previous years. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1425563946153562119"}"></div></p>
<p>People continued to seek safety in Australia via maritime routes until they physically could not do so anymore. The 2013 launch of Operation Sovereign Borders, and the Abbott government’s commitment to intercepting and returning people trying to reach Australia by boat — no matter the legal and humanitarian consequences — effectively rendered it futile to try and reach Australia by sea.</p>
<p>Despite early suggestions offshore processing was a vital complement to this turning back of boats, there is no evidence that this is so.</p>
<p>In fact, while offshore processing has formally remained on foot, and popular rhetoric gives the impression that it is still a key part of the matrix of border security measures necessary to keep the boats “stopped”, Australia <a href="https://parlinfo.aph.gov.au/parlInfo/download/library/prspub/4129606/upload_binary/4129606.pdf">ceased transferring new arrivals offshore in 2014</a>.</p>
<p>Instead, Australian officials have gone to extraordinary lengths to intercept at sea and return <a href="https://www.aph.gov.au/api/qon/downloadestimatesquestions/EstimatesQuestion-CommitteeId6-EstimatesRoundId8-PortfolioId20-QuestionNumber203">hundreds of asylum seekers</a> in recent years. </p>
<p>What this means is that transfers offshore occurred for less than two years. The following seven years have been spent in a prolonged and costly policy bind, as successive Labor and Coalition governments have tried to find solutions outside Australia for people who should have been settled here long ago.</p>
<p>Meanwhile almost everyone still subject to this policy is back in Australia, having been either returned following a <a href="https://webarchive.nla.gov.au/awa/20130730234007/http://pandora.nla.gov.au/pan/79983/20130731-0937/www.pm.gov.au/press-office/transcript-joint-press-conference-2.html">policy change in July 2013</a> or medically evacuated amid <a href="https://www.kaldorcentre.unsw.edu.au/sites/kaldorcentre.unsw.edu.au/files/supplementarysubmission_medevac.pdf">spiralling health crises offshore</a> from 2017. </p>
<p>According to <a href="https://www.homeaffairs.gov.au/about-us-subsite/files/population-and-number-of-people-resettled.pdf">latest figures</a>, there are barely more than 100 asylum seekers left in each of Nauru and Papua New Guinea. The men and women in Nauru are living in the community. The men in Papua New Guinea are in the capital, Port Moresby, having been transferred there following the closure of the Manus Island detention centre in 2017. </p>
<h2>So why does this policy drag on?</h2>
<p>The reason given publicly for continuation of this policy — that offshore processing is necessary to prevent a resurgence of boat arrivals — has no demonstrated evidentiary basis. </p>
<p>When Australia previously sent asylum seekers offshore, under the Howard government, the majority of people processed offshore and found to be refugees were <a href="https://www.aph.gov.au/about_parliament/parliamentary_departments/parliamentary_library/pubs/bn/2012-2013/pacificsolution">settled in Australia</a>. </p>
<p>This fact did not prompt an increase in boat arrivals. More recently, there was no spike in boat arrivals when Australia announced that people offshore would be eligible for <a href="https://www.kaldorcentre.unsw.edu.au/publication/australia%E2%80%93united-states-resettlement-arrangement">resettlement in the United States</a>, or when almost everyone was <a href="https://www.theguardian.com/australia-news/ng-interactive/2020/dec/10/timeline-australia-offshore-immigration-detention-system-program-census-of-asylum-seekers-refugees">moved back to Australia</a>.</p>
<p>We have just over a thousand asylum seekers here in Australia, and a small number offshore, who have been put through significant trauma in a failed attempt to send a harsh deterrence message to others who might consider trying to reach Australia by boat. </p>
<p>They have been waiting years for a solution, when a simple one is available right now. </p>
<p>All should be permitted to settle permanently in Australia or another appropriate country, provided that alternative is voluntary. Serious consideration should be given to what reparation and rehabilitation Australia may owe the victims of offshore processing.</p>
<p>This deeply flawed policy must not be permitted to reach its ten-year mark.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/could-the-biden-administration-pressure-australia-to-adopt-more-humane-refugee-policies-153718">Could the Biden administration pressure Australia to adopt more humane refugee policies?</a>
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</em>
</p>
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<img src="https://counter.theconversation.com/content/166014/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Madeline is the author of 'Offshore: Behind the wire on Manus and Nauru' (NewSouth, 2016). She does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has not disclosed any relevant affiliations beyond her academic appointment.</span></em></p><p class="fine-print"><em><span>Natasha Yacoub is an international refugee law scholar and practitioner, having worked on refugee protection for two decades with the United Nations in conflict and peacetime settings. She is presently a researcher and doctoral candidate at UNSW. The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations.</span></em></p>That no Australian government in almost a decade has successfully brought this policy to a formal close is astonishing. In fact, Australia ceased transferring new arrivals offshore in 2014.Madeline Gleeson, Senior Research Fellow, Andrew & Renata Kaldor Centre for International Refugee Law, UNSW SydneyNatasha Yacoub, International refugee lawyer and scholar, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/640612016-08-17T23:59:53Z2016-08-17T23:59:53ZManus Island centre set to close – but where to for the detainees?<figure><img src="https://images.theconversation.com/files/134535/original/image-20160817-3597-cvbbft.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">People protesting offshore detention of asylum seekers interrupted Malcolm Turnbull's speech to CEDA on Wednesday.</span> <span class="attribution"><span class="source">AAP/Tracey Nearmy</span></span></figcaption></figure><p>The Manus Island Regional Processing Centre – one of the two key sites of Australia’s offshore immigration detention regime – <a href="http://www.minister.border.gov.au/peterdutton/Pages/MANUS-REGIONAL-PROCESSING-CENTRE.aspx">will close</a>. A date is not set, nor any arrangement confirmed for resettling the <a href="http://www.abc.net.au/news/2016-08-17/manus-island-to-close-png-prime-minister-confirms/7759810">854 men still detained</a> there.</p>
<p>In April 2016, the Papua New Guinea Supreme Court found the detention arrangement on Manus Island <a href="https://www.scribd.com/doc/310461159/PNG-Supreme-Court-Decision-on-Manus-Island">was unconstitutional</a>. PNG Prime Minister Peter O'Neill immediately <a href="http://www.abc.net.au/news/2016-04-27/png-pm-oneill-to-shut-manus-island-detention-centre/7364414">asked Australia to make alternative arrangements</a> for the detainees, implying <a href="https://theconversation.com/high-court-asked-to-declare-manus-detention-illegal-as-859-detainees-seek-their-day-in-court-58880">Australia is responsible</a> for what happens to them. </p>
<p>It has taken more than three months for the two governments to jointly announce the centre will close. But the detainees’ fate is now even more uncertain.</p>
<h2>Where will the detainees go?</h2>
<p>Australia’s immigration minister, Peter Dutton, <a href="http://www.minister.border.gov.au/peterdutton/Pages/MANUS-REGIONAL-PROCESSING-CENTRE.aspx">confirmed</a> “no-one” detained on Manus Island “will ever be settled in Australia”. Instead, the Australian government says the detainees must either resettle in PNG or return to their countries of origin.</p>
<p>Australia’s continued insistence that it will never resettle asylum seekers arriving by boat ignores practical realities. PNG is <a href="https://www.hrw.org/news/2015/07/15/australia/papua-new-guinea-pacific-non-solution">unable to provide a safe environment</a> for refugees. Australia has not made <a href="https://theconversation.com/if-not-manus-then-what-possible-alternatives-for-asylum-seekers-and-refugees-in-png-58514">any suitable third-party arrangement</a>. The “Cambodia solution” has been a <a href="http://www.smh.com.au/world/australias-cambodia-refugee-resettlement-plan-a-failure-20160403-gnx3jv.html">costly failure</a>: that impoverished country has been unable to provide social protections for refugees.</p>
<p>Of those whose claims have been processed – about half of those detained on Manus – <a href="http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1516/Quick_Guides/Offshore">98% have been confirmed as refugees</a>. The others await <a href="http://www.kaldorcentre.unsw.edu.au/publication/offshore-processing-refugee-status-determination-asylum-seekers-manus-island">proper processing</a> under the <a href="http://www.unhcr.org/3b66c2aa10">UN Refugee Convention</a>.</p>
<p>Australia’s argument that refugees and asylum seekers can go back to their country of origin risks their return to persecution. The <a href="http://www.unhcr.org/excom/scip/3ae68ccd10/note-non-refoulement-submitted-high-commissioner.html">prohibition on refoulement</a> – the return of refugees to the site of persecution – is the fundamental principle of international refugee law.</p>
<h2>What does human rights law demand?</h2>
<p>Asylum seekers arriving by boat are often characterised as “queue-jumpers”, trying to enter through “<a href="https://theconversation.com/australia-can-do-better-on-asian-boat-crisis-than-nope-nope-nope-42255">the back door</a>”. It bears repetition that, in fleeing persecution in their home countries, refugees are asserting their <a href="http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1415/AsylumFacts">legal right to seek asylum</a>.</p>
<p>International law does not give asylum seekers or refugees standing to hold countries accountable for human rights violations. Australia exploits this impunity to maintain practices that violate international law. </p>
<p>Yet despite their incapacity to bring claims against Australia, asylum seekers detained offshore are entitled to a range of universal rights and freedoms. These include:</p>
<ul>
<li><p>freedom from torture and inhuman or degrading treatment;</p></li>
<li><p>freedom from punitive detention;</p></li>
<li><p>judicial oversight of their detention;</p></li>
<li><p>freedom from forced deportation;</p></li>
<li><p>access to quality health care, education and work; and</p></li>
<li><p>special protection for the rights of children and families.</p></li>
</ul>
<p>Australia has demonstrated its willingness to <a href="https://theconversation.com/why-does-international-condemnation-on-human-rights-mean-so-little-to-australia-53814">ignore or reject international criticism</a> of its violation of these rights.</p>
<h2>A reorientation in asylum seeker policy?</h2>
<p>Only hours before the Manus centre closure was announced, protesters interrupted Prime Minister Malcolm Turnbull’s speech to CEDA. <a href="https://www.theguardian.com/australia-news/2016/aug/17/close-the-bloody-camps-protesters-disrupt-malcolm-turnbull-speech">They demanded</a>: </p>
<blockquote>
<p>For God’s sake, Malcolm, close the fucking camps.</p>
</blockquote>
<p><a href="https://www.facebook.com/events/266932076997739/">Rallies are planned</a> around Australia this month to call for an end to mandatory detention.</p>
<p>Pressure on the government is building from all quarters. Risking prosecution under <a href="http://www.abc.net.au/news/2015-05-28/barns-newhouse-detention-centre-secrecy-just-got-even-worse/6501086">anti-whistleblower legislation</a>, 103 current and former Manus Island and Nauru staff have publicly demanded closure of the centres. They argue the evidence is clear: Australia’s practice is <a href="https://www.theguardian.com/australia-news/2016/aug/17/this-is-critical-103-nauru-and-manus-staff-speak-out-their-letter-in-full">systematically breaking</a> those subject to it.</p>
<p>Following the leaking of the <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">Nauru files</a> this month, the UN High Commissioner for Refugees (UNHCR) <a href="https://www.theguardian.com/australia-news/2016/aug/10/nauru-files-widespread-condemnation-of-australian-government-by-un-and-others">has called for</a> the removal of all detainees to humane conditions. <a href="https://www.theguardian.com/australia-news/2016/aug/16/after-the-nauru-files-how-can-australia-go-about-ending-offshore-detention?CMP=share_btn_tw">Migration experts</a> argue the only humane option is to close the centres and process asylum claims in Australia.</p>
<p>Critics have <a href="http://www.smh.com.au/comment/how-did-we-become-so-indifferent-to-human-life-20160811-gqpxjj.html">noted the gulf</a> between political responses to the <a href="http://www.abc.net.au/4corners/stories/2016/07/25/4504895.htm">abuse scandal</a> in Northern Territory youth detention facilities – which immediately triggered a <a href="http://www.abc.net.au/news/2016-07-26/turnbull-calls-for-royal-commission-into-don-dale/7660164">royal commission</a> – and the <a href="http://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">2,116 reports</a> detailing abuse, assault, self-harm and inadequate living standards suffered by detainees on Nauru. </p>
<p>Key NGOs argue the <a href="https://www.childabuseroyalcommission.gov.au/">royal commission into institutional child sexual abuse</a> must <a href="http://www.acoss.org.au/media_release/royal-commission-must-examine-nauru-abuse/">extend its inquiry</a> to Nauru.</p>
<p>Is it possible that the announcement of the Manus centre’s closure indicates government acceptance that the offshore detention system is – as refugee <a href="https://www.asrc.org.au/campaigns/bringthemhere/">advocates</a> <a href="https://twitter.com/sarahinthesen8/status/765813653945716741">claim</a> – <a href="http://berkeleytravaux.com/persecution-detention-australias-broken-asylum-system/">broken</a>? </p>
<p>Is the government searching for an alternative to offshore detention as public outrage grows? If so, it seems certain it will never admit as much. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/134543/original/image-20160818-3608-1f4x9c3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/134543/original/image-20160818-3608-1f4x9c3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/134543/original/image-20160818-3608-1f4x9c3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/134543/original/image-20160818-3608-1f4x9c3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/134543/original/image-20160818-3608-1f4x9c3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/134543/original/image-20160818-3608-1f4x9c3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/134543/original/image-20160818-3608-1f4x9c3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Pressure on the government for a change in its asylum policy is building from all quarters.</span>
<span class="attribution"><span class="source">AAP/Eoin Blackwell</span></span>
</figcaption>
</figure>
<h2>What the Manus closure should mean for Nauru</h2>
<p>It is essential that Australia comes to acknowledge the harms it has inflicted on thousands of vulnerable people who have committed no crime. In the short term, though, the most urgent priority must be the proper processing and appropriate resettlement of those still detained on Manus Island and Nauru. </p>
<p>The Manus closure was perhaps inevitable once the Supreme Court found PNG lacked authority to detain asylum seekers transferred there by Australia. No such judgment has been forthcoming in Nauru, but evidence reveals the suffering of people detained there under Australia’s authority. </p>
<p>It will be impossible for Australia to maintain its hardline approach to refugees indefinitely while representing itself as a responsible <a href="https://theconversation.com/cast-adrift-australia-risks-its-international-standing-over-asylum-seeker-policies-63872">international citizen</a>.</p>
<p>The first step in a reorientation of asylum policy must be the abandonment of offshore processing. Until this occurs, Australia cannot take responsibility for a process that it has shaped, or its consequences.</p>
<p>The major parties are <a href="https://theconversation.com/spot-the-difference-labor-vs-the-coalition-on-asylum-seekers-45581">largely united</a> on refugee policy, although <a href="http://www.smh.com.au/federal-politics/political-news/labor-to-push-for-senate-inquiry-into-nauru-detention-centre-incident-report-leaks-20160813-gqs09e.html">cracks are appearing</a>. They are locked into practices that assume, despite a lack of evidence, offshore processing of some asylum seekers <a href="https://theconversation.com/theres-no-evidence-that-asylum-seeker-deterrence-policy-works-8367">deters others</a> others from attempting the journey. </p>
<p>The government also refuses to acknowledge that onshore processing of asylum claims is not a guaranteed path to permanent settlement in Australia. <a href="http://un.org.au/2016/02/05/detaining-asylum-seekers-and-refugees-in-offshore-detention-centres-subject-to-international-obligations-despite-high-court-decision/">Regionally focused</a> <a href="http://www.julianburnside.com.au/an-alternative-to-offshore-detention/">alternative strategies</a> have been <a href="http://www.abc.net.au/news/2016-08-17/manus-island-detention-centre-to-close,-is-nauru/7760480">proposed</a>. These ought to be negotiated among regional partners with the support of the UNHCR. </p>
<p>Mandatory offshore detention is not the only way to manage refugee flows. And it is clearly not the <a href="https://www.humanrights.gov.au/sites/default/files/document/publication/forgotten_children_2014.pdf">humane</a> or <a href="https://www.hrw.org/sites/default/files/world_report_download/wr2016_web.pdf">legal</a> response. </p>
<p>The announcement that the Manus centre will close provides an opportunity for Australia to assess alternatives. Political leaders could choose to open a new public dialogue to bring about reform. Whether they have the will to pursue such a process or not, they have the power to bring Australian law and practice into line with our international legal obligations.</p><img src="https://counter.theconversation.com/content/64061/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amy Maguire is a member of Amnesty International and Australian Lawyers for Human Rights. </span></em></p>It has taken more than three months for the Australian and PNG governments to jointly announce the Manus Island detention centre will close. But the detainees’ fate is now even more uncertain.Amy Maguire, Senior Lecturer in International Law, University of NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/637562016-08-10T05:11:02Z2016-08-10T05:11:02ZNauru abuse reports warrant urgent action to protect children in offshore detention<figure><img src="https://images.theconversation.com/files/133618/original/image-20160810-18037-eqzsv9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">What are Australia’s international obligations in relation to its offshore processing centres?</span> <span class="attribution"><span class="source">AAP/Mick Tsikas</span></span></figcaption></figure><p>The Guardian Australia has released more than <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">2,000 leaked incident reports</a> from Australia’s offshore processing centre on Nauru. These reports cover the period from May 2013 to October 2015. They document numerous incidents of child sexual abuse, assault and attempted self-harm.</p>
<p>These reports are the latest in a series of leaks that have shattered the veil of secrecy surrounding Australia’s offshore processing regime. They affirm what has been known for a long time: detention is no place for children, and we need alternatives to offshore processing.</p>
<p>With every major leak over the past few years, the same questions inevitably arise. If these incidents were reported, why were they not acted upon? What are Australia’s international obligations in relation to the offshore processing centres? And what should be done now?</p>
<h2>An inadequate framework to protect children</h2>
<p>In the period covered by the incident reports, the <a href="https://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/publications/forgotten-children-national-inquiry-children">Australian Human Rights Commission</a>, a <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Regional_processing_Nauru/Regional_processing_Nauru/Final_Report">Senate inquiry</a>, <a href="https://ama.com.au/ausmed/nauru-detention-unsafe-children-senate-inquiry">doctors</a> and the government’s own <a href="http://www.theguardian.com/world/interactive/2014/may/29/nauru-family-health-risks-report-in-full">physical and mental health subcommittee</a> expressly warned the Australian government of the risk of self-harm and abuse of children in offshore processing centres. </p>
<p>Experts have firmly recommended all children be removed from offshore detention. These calls have been ignored.</p>
<p>Several private companies are contracted to operate and provide services at the offshore processing centres in Nauru and on Manus Island. But the Australian Immigration Department maintains a tight hold over the operation of its offshore processing regime, and contractors who ran the Nauru centre in the period covered by the leaked reports had no power to remove children from detention. </p>
<p>Even since the centre <a href="https://theconversation.com/detainees-on-nauru-may-have-been-released-but-they-are-not-free-48648">became “open”</a> in October 2015, there has been very little contractors can do to protect the vulnerable people in their care from harm. In normal circumstances, the immediate priority in cases of child abuse is to remove children from their unsafe environment. </p>
<p>Given the lack of effective child protection services on Nauru, this would most likely require children be removed from the island altogether and provided with a safe and supportive environment in Australia. </p>
<p>The Australian government is resisting such an outcome. It holds firm to its policy that anyone who arrives by boat <a href="https://www.border.gov.au/about/operation-sovereign-borders/counter-people-smuggling-communication/english/in-australia">will never be resettled in Australia</a>. The possibility of children and other vulnerable people being accommodated in Australia until an alternative long-term solution can be found has never been considered.</p>
<p>In addition to removing children to safe environments, action needs to be taken to hold the perpetrators of abuse to account – whether they are Australian contractors, Nauruan citizens, or anyone else.</p>
<p>However, Nauru lacks adequate <a href="https://theconversation.com/protecting-children-from-abuse-in-detention-requires-more-than-mandatory-reporting-49048">legal and policy frameworks</a> to deal with child protection. There is no child protection agency or legislation in Nauru. </p>
<p>And the Nauruan police force does not have the capacity, experience or resources to prosecute incidents of child abuse. Of the 50 cases referred to the Nauruan police over the last three years, only <a href="http://www.abc.net.au/pm/content/2015/s4251724.htm">five charges have been laid</a>. Only two convictions have been recorded. Refugees on Nauru say this track record has discouraged many from reporting their abuse. </p>
<p>Ferrovial, the Spanish company that operates the processing centres on Nauru and Manus Island after buying 90% of Broadspectrum, this week signalled its intention not to bid for a new contract to continue operating the centres after February 2017.</p>
<p>International lawyers have warned Ferrovial that its employees could be held liable for <a href="https://www.theguardian.com/australia-news/2016/jul/25/ferrovial-staff-risk-prosecution-for-managing-australian-detention-camps">crimes against humanity</a>. Its intention not to renew its contract may signal it does not believe it can meet its contractual obligations in a manner consistent with its human rights obligations. </p>
<p>Ferrovial will remain entangled in Australia’s offshore processing regime longer than it had hoped, however. The Immigration Department has <a href="http://www.afr.com/business/ferrovial-forced-fo-run-nauru-manus-detention-centres-until-late-2017-20160805-gqlr2i">exercised its right</a> to extend Ferrovial’s contracts unilaterally, meaning it will have to remain in place until October 2017.</p>
<h2>Secrecy provisions need to be revisited</h2>
<p>The leaked incident reports also highlight yet again the need for transparency in Australia’s refugee policy. </p>
<p>The Guardian has published these reports because it believes Australians have the right to know more about the regime. The lack of access to Nauru and the <a href="https://theconversation.com/factcheck-could-a-whistleblower-go-public-without-fear-of-prosecution-under-the-border-force-act-44467">secrecy provisions</a> of the Australian Border Force Act have impeded public access to such information.</p>
<p>The reports also put enormous pressure on people working with asylum seekers and refugees offshore, who could face prison for sharing what they know about Australia’s policies with the public.</p>
<p>A new <a href="http://www.smh.com.au/federal-politics/political-news/doctors-launch-high-court-challenge-against-border-force-gag-laws-20160726-gqdre2.html">High Court challenge</a> will consider whether the Australian Border Force secrecy provisions infringe the implied right to freedom of political communication in the Constitution. This case could have important ramifications and may limit the government’s ability to silence whistleblowers who wish to raise matters of public interest. </p>
<p>As these files and the recent revelations about Northern Territory’s <a href="https://www.theguardian.com/australia-news/2016/jul/26/abu-ghraib-images-children-detention-australia-public-inquiry">Don Dale detention centre</a> highlight, access to information is crucial to holding people in power to account for their actions. </p>
<h2>What are Australia’s international obligations?</h2>
<p>As with each previous revelation of abuse offshore, these leaked files raise the crucial question of <a href="http://www.kaldorcentre.unsw.edu.au/publication/offshore-processing-australia%E2%80%99s-responsibility-asylum-seekers-and-refugees-nauru-and">who is responsible</a> for the asylum seekers and refugees in detention. </p>
<p>Successive Australian governments have avoided engaging with this question at all costs. Instead, they have dismissed everything that happens offshore as matters for Nauru and PNG alone. But the truth is Australia and each offshore processing country have duties to protect people from harm and ensure there is an appropriate response to all reported cases of abuse. </p>
<p>Australia’s obligations arise from its contracts with the companies it has recruited to operate the centres, its agreements with each offshore processing country, Australian law and international law. </p>
<p>At the end of the day, offshore processing is an entirely Australian creation, and the only country deciding where to hold people is Australia. The <a href="https://theconversation.com/glimmers-of-hope-for-detained-asylum-seekers-in-the-high-courts-nauru-decision-54036">lines of responsibility are clear</a>.</p>
<h2>Where to from here?</h2>
<p>The Australian government showed leadership in responding so swiftly to the reports of child abuse arising at Don Dale by announcing a <a href="https://theconversation.com/au/topics/don-dale-royal-commission">royal commission</a> to investigate the matter.</p>
<p>The damning evidence presented in these files, together with all the other evidence of harm already on the public record, is more than sufficient to warrant serious and immediate intervention. </p>
<p>It is incumbent on the government to show similar leadership and act in an equally swift manner in response to these latest revelations. A royal commission would be an appropriate first step.</p><img src="https://counter.theconversation.com/content/63756/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Khanh Hoang is a co-chair of the Refugee Rights Subcommittee of the Australian Lawyers for Human Rights.</span></em></p><p class="fine-print"><em><span>Madeline Gleeson 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>Leaked incident reports from the Nauru detention centre affirm what has been known for a long time: detention is no place for children, and we need alternatives to offshore processing.Khanh Hoang, Associate Lecturer, ANU College of Law – Migration Law Program, Australian National UniversityMadeline Gleeson, Research Associate, Andrew & Renata Kaldor Centre for International Refugee Law, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/602532016-06-12T19:40:57Z2016-06-12T19:40:57ZResettling refugees in Australia would not resume the people-smuggling trade<figure><img src="https://images.theconversation.com/files/124555/original/image-20160531-13807-134892e.jpg?ixlib=rb-1.1.0&rect=0%2C201%2C2281%2C1382&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">There is an unwavering, untested, bipartisan assertion on asylum seekers: no-one will be resettled in Australia, as that will encourage people smugglers.</span> <span class="attribution"><span class="source">AAP/Eoin Blackwell</span></span></figcaption></figure><p>In normal circumstances, <a href="http://www.smh.com.au/federal-politics/political-news/reza-barati-two-men-arrested-over-death-of-asylum-seeker-at-png-detention-centre-20140819-3dyf3.html">deaths of asylum seekers</a>, <a href="http://www.abc.net.au/news/2015-08-31/senate-inquiry-calls-for-children-to-be-removed-from-nauru/6738644">sexual assaults</a> on adults and children, and widespread <a href="https://www.crikey.com.au/2015/01/23/manus-island-a-mental-health-emergency-that-could-scar-a-generation/">severe mental illness</a> – including <a href="https://theconversation.com/self-immolation-incidents-on-nauru-are-acts-of-hopeful-despair-58791">self-harm</a> – attributable to the length and conditions of offshore detention would demand a reconsideration of the policies that allowed these events to occur. </p>
<p>And yet, the Australian government and the Labor opposition maintain an unwavering, untested, bipartisan <a href="http://www.malcolmturnbull.com.au/media/leaders-debate-at-the-national-press-club-canberra">assertion</a>: no-one will be resettled in Australia, as that will encourage people smugglers. </p>
<p>By extension, Australia <a href="http://www.theguardian.com/australia-news/2016/apr/29/turnbull-rejects-new-zealand-offer-to-take-150-refugees-from-detention">will not accept</a> New Zealand’s offer to resettle 150 refugees, as that will provide an equivalent incentive to the people-smuggling trade.</p>
<p>The <a href="http://www.aph.gov.au/binaries/library/pubs/bn/sp/boatarrivals.pdf">historical evidence</a> suggests the government’s fears are unfounded. People smuggling will not revive simply because refugees are resettled in Australia. There are good reasons to believe refugees currently stuck in offshore detention on Nauru and Manus Island can be relocated to Australia and New Zealand without this leading to a revival of boat traffic.</p>
<h2>A short history</h2>
<p>Offshore processing and turning back boats on the high seas were introduced in 2001 and again in 2013 in response to a growing number of boat arrivals.</p>
<p>Between 1999 and October 2001, more than 10,000 asylum seekers <a href="http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1516/Quick_Guides/BoatTurnbacks">arrived on Christmas Island by boat</a>. Between June 2011 and September 2013, <a href="http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1516/Quick_Guides/BoatTurnbacks">40,000 people arrived</a>. But when offshore processing and turnback policies were introduced, the boats stopped arriving in both periods within months.</p>
<p>But what happened to the asylum seekers detained offshore during the Howard government years?</p>
<p>From 2001 to 2008, of the 1,153 refugees and asylum seekers <a href="http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/2012-2013/PacificSolution#_Toc334509642">resettled from Nauru and Manus Island</a>, 705 went to Australia, 401 to New Zealand and 47 to other Western countries. Resettlement of all but 82 occurred under the Howard government, with most occurring from 2002 to 2004. A further 483 people were found not to be refugees and returned to their countries of origin.</p>
<p>The resettlements occurred without fanfare, while maintaining the official policy of offshore detention and processing, and boat turnbacks. From 2002 to 2007, 18 boats arrived with 288 asylum seekers. In addition, one boat was turned back with 14 passengers.</p>
<p><a href="http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1516/Quick_Guides/BoatTurnbacks">In 2008</a>, after the Rudd government dismantled the offshore processing and turnback policies, seven boats arrived with 161 asylum seekers. This number <a href="http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1516/Quick_Guides/BoatTurnbacks">spiked dramatically</a> from that time.</p>
<p>This analysis suggests the threat of offshore detention and processing and boat turnbacks is a clear deterrent to prevent people coming to Australia by boat. Importantly, the deterrent effect does not rely on a blanket ban on resettlement of refugees from Nauru and Manus Island to Australia and New Zealand.</p>
<h2>No long-term resettlement options</h2>
<p>Accept for the moment that offshore processing and boat turnbacks are necessary to deter asylum seekers from travelling by boat to Australia. </p>
<p>Accept that these policies stem an uncontrollable flow of humanitarian migration through Indonesia to Australia, prevent people drowning at sea and enable Australia to resettle more refugees through the UN High Commissioner for Refugees’ resettlement program.</p>
<p>The policy issue in 2001 and 2013 was the uncontrollable arrival of boats. But the issue now is where and when to resettle refugees and asylum seekers who have been sent to Manus Island and Nauru since the reintroduction of offshore processing. On this issue, there is no plan. </p>
<p>The government has made some <a href="http://www.abc.net.au/news/2016-05-27/first-refugees-sent-to-cambodia-under-$55m-deal-have-left/7452542">meagre efforts</a> to organise resettlement in Cambodia. It claims refugees are also free to <a href="http://www.abc.net.au/news/2014-12-16/png-to-resettle-50-manus-island-asylum-seekers/5969358">resettle in Papua New Guinea</a>. But nobody believes these are viable long-term solutions.</p>
<h2>No case for the hard line</h2>
<p>If this analysis of the incentives proves to be wrong, and it turns out that resettling refugees from Nauru and Manus Island in Australia and New Zealand does increase the number of asylum-seeker boats attempting to reach Australia, we know from the experiences of 2001 and 2013 that the combination of offshore detention and boat turnbacks is an extremely effective deterrent – one that can swiftly be reinstated.</p>
<p>In July 2013, the month Kevin Rudd <a href="https://theconversation.com/no-more-asylum-in-australia-for-those-arriving-by-boat-rudd-16238">announced</a> no asylum seeker arriving by boat would ever be resettled in Australia, 4,338 people <a href="http://www.aph.gov.au/DocumentStore.ashx?id=5fffbfa9-f782-4307-af2c-9d0125c602a4&subId=351269">arrived by boat in Australia</a>. After Rudd announced the new policy, the <a href="http://www.aph.gov.au/DocumentStore.ashx?id=5fffbfa9-f782-4307-af2c-9d0125c602a4&subId=351269">number dropped</a> to 1,650 in August and 861 in September. None of these asylum seekers ended up in Australia, instead being transferred to Nauru or Manus Island. </p>
<p>In October 2013, when the new Coalition government <a href="http://www.sbs.com.au/news/article/2013/09/19/factbox-operation-sovereign-borders">added a turnback policy</a> to offshore processing and resettlement, 346 people were <a href="http://www.aph.gov.au/DocumentStore.ashx?id=5fffbfa9-f782-4307-af2c-9d0125c602a4&subId=351269">intercepted and transferred</a> to Nauru or Manus Island. This dropped to 222 in November, then rose to 369 in December. And then, in the 31 months from January 2014 to the present, there has been just one boat with 158 passengers transferred to Nauru.</p>
<p>In addition, from January 2014 to July 2015, 20 boats were <a href="http://www.theguardian.com/australia-news/2015/aug/06/australia-turned-back-20-asylum-seeker-boats-with-633-people-in-past-18-months">intercepted and turned back</a> to Indonesia or other countries in the region, carrying a total of 633 passengers.</p>
<p>At any time offshore detention and processing have been in place, the number of boat arrivals has been very small. We can be confident that, if necessary, a vigorous reinstatement of regional processing and the turnback policy would once again “stop the boats”. </p>
<p>But at this time, in light of the ongoing and intensifying humanitarian crisis on Nauru and Manus Island, there is no case for maintaining the inflexible bipartisan line on resettlement.</p><img src="https://counter.theconversation.com/content/60253/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alex Reilly receives funding from Horticulture Innovation Australia. He is also a member of the board of the Refugee Advocacy Service of South Australia, a voluntary service providing free legal and migration advice to asylum seekers.</span></em></p>History suggests that resettling refugees on Nauru and Manus Island in Australia and New Zealand will not enliven people smuggling between Indonesia and Christmas Island.Alex Reilly, Deputy Dean and Director of the Public Law and Policy Research Unit, Adelaide Law School, University of AdelaideLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/589322016-05-16T19:55:33Z2016-05-16T19:55:33ZChanging the conversation can lead to a better way on asylum seekers<figure><img src="https://images.theconversation.com/files/122432/original/image-20160513-27212-1a7whu6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Australia’s arrangements with Papua New Guinea and Nauru have not secured sustainable, durable solutions for those asylum seekers found to be refugees.</span> <span class="attribution"><span class="source">AAP/Eoin Blackwell</span></span></figcaption></figure><p>Debates on Australia’s policies toward asylum seekers have made an early appearance in the 2016 election campaign. Several current and retiring Labor MPs, as well as some candidates, have <a href="http://www.theaustralian.com.au/federal-election-2016/federal-election-2016-asylum-divisions-derail-bill-shorten-pitch/news-story/b9185a402ba2a46cded10216e394f4ae">spoken out</a> against the party’s support for offshore processing and turning back asylum-seeker boats.</p>
<p>Both major parties <a href="https://theconversation.com/spot-the-difference-labor-vs-the-coalition-on-asylum-seekers-45581">support</a> offshore processing and boat turnbacks. But public opinion is not so clear-cut. And nor are the policy choices.</p>
<h2>The policy status quo</h2>
<p>The issues in this campaign are similar to those in 2013: the prospect of further boat arrivals and the reality of people held offshore.</p>
<p>But since the last election, a policy of turning boats around has not guaranteed the safety of those who have been returned. And it has been inconsistent with Australia’s <a href="http://www.kaldorcentre.unsw.edu.au/publication/maritime-interception-and-screening-asylum-seekers-sea">obligations</a> under <a href="http://www.kaldorcentre.unsw.edu.au/publication/paying-people-smugglers">international law</a>.</p>
<p>In the last three years, Australia’s arrangements with Papua New Guinea and Nauru have not secured sustainable, <a href="http://www.kaldorcentre.unsw.edu.au/publication/offshore-processing-australia%E2%80%99s-responsibility-asylum-seekers-and-refugees-nauru-and">durable solutions</a> for those found to be refugees. Some of the asylum seekers on Manus Island and Nauru have spent 1,000 days in detention, at a cost to their mental and physical health and at an <a href="http://www.kaldorcentre.unsw.edu.au/publication/commission-audit-report-cost-detention-and-processing">estimated cost of A$400,000</a> per person per year.</p>
<h2>Changing attitudes</h2>
<p><a href="http://politicsir.cass.anu.edu.au/research/projects/electoral-surveys/australian-election-study/publications/aes-trends">Surveys</a> consistently <a href="http://scanlonfoundation.org.au/wp-content/uploads/2015/10/2015-Mapping-Social-Cohesion-Report.pdf">show</a> that many Australians are in <a href="http://www.essentialvision.com.au/manus-island-detention-centre">favour</a> of restrictive asylum policy. A closer look, however, indicates that attitudes are not necessarily this straightforward. </p>
<p>There are strong <a href="http://jrs.oxfordjournals.org/content/25/1/113.short">misunderstandings</a> or <a href="http://www.foundationhouse.org.au/wp-content/uploads/2015/07/Public-attitudes-to-unauthorised-arrivals-in-Australia-Foundation-House-review-2015.pdf">myths</a> among Australians about asylum seekers. These are shaped by the language used in national political debate. </p>
<p>Voters are largely <a href="http://www.socialequity.unimelb.edu.au/wp-content/uploads/2016/03/MULLER-D-Islamisation-and-other-anxieties.pdf">unaware</a> that seeking asylum is <a href="http://www.kaldorcentre.unsw.edu.au/publication/debunking-myths">legal</a>, and that Australia has voluntarily committed to abide by international refugee law through signing the 1951 Refugee Convention.</p>
<p>This highlights the nexus between public opinion and policy in this field. A concern for community attitudes has underpinned Australian immigration policy since federation. Major reform has historically involved government efforts to secure public support. </p>
<p>Recent polling on the issue of <a href="http://www.essentialvision.com.au/asylum-seeker-babies">asylum seeker babies</a> and <a href="http://www.essentialvision.com.au/conditions-for-asylum-seekers">conditions</a> in <a href="http://www.essentialvision.com.au/conditions-in-detention-centres">offshore detention</a> shows public opinion is changeable. In recent <a href="http://www.socialequity.unimelb.edu.au/wp-content/uploads/2016/03/MULLER-D-Islamisation-and-other-anxieties.pdf">research</a>, many respondents who supported Australia’s treatment of asylum seekers said they did so because they were not aware of other policy options.</p>
<h2>So, what are the options?</h2>
<p>There is a wealth of <a href="http://www.kaldorcentre.unsw.edu.au/publication/regional-cooperation#framework">expert opinion</a> to draw from, as well as lessons from policies in place elsewhere. </p>
<p><a href="http://www.kaldorcentre.unsw.edu.au/publication/policy-brief-1-extraterritorial-processing-europe-regional-protection-answer-and-if-not">Various mechanisms</a> exist to expand humanitarian admission pathways, as well as other safe and legal avenues to access protection. Countries such as Brazil and the US, for example, have implemented procedures for <a href="http://www.kaldorcentre.unsw.edu.au/publication/incountry-processing-and-other-protected-entry-procedures">orderly departure</a>, which can allow certain people fleeing persecution in Syria or Central America to apply for protection without having to undertake a dangerous journey over land or sea. </p>
<p>The first step is to acknowledge that forced migration is an enduring phenomenon. Australia cannot unilaterally “fix” it. It requires a humane, lawful and co-operative policy approach.</p>
<p>An international perspective is essential to improving Australia’s asylum policy debate. The number of asylum seekers who arrive by boat has always paled in comparison with the numbers found elsewhere around the world. This is despite Australia spending <a href="http://idcoalition.org/publication/there-are-alternatives-revised-edition/">twice as much</a> detaining asylum seekers as comparable countries in Europe or North America. </p>
<p>The Australian government is taking several years to process the applications of almost 29,000 asylum seekers living in the community, due to various changes in the procedure for determining their claims. In Germany, where hundreds of thousands of people apply for asylum every year, authorities are taking between <a href="http://www.asylumineurope.org/reports/country/germany/asylum-procedure/procedures/regular-procedure">five to 11 months</a> to process applications for protection.</p>
<p>If they are to be humane and effective, Australia’s policies must take into account the availability of protection for asylum seekers within the region. Turning back boats has done little to tackle this – as the <a href="http://www.smh.com.au/national/reports-an-asylum-boat-has-approached-cocos-islands-20160503-gol00u.html">recent arrival</a> of a boat carrying suspected asylum seekers in the Cocos Islands demonstrates. </p>
<p>In the aftermath of the PNG Supreme Court decision declaring immigration detention on Manus Island to be illegal, offshore processing seems increasingly untenable. The <a href="http://unhcr.org.au/news/unhcr-calls-immediate-movement-refugees-asylum-seekers-humane-conditions/">need to find</a> alternatives that acknowledge Australia’s <a href="http://www.kaldorcentre.unsw.edu.au/publication/offshore-processing-australia%E2%80%99s-responsibility-asylum-seekers-and-refugees-nauru-and#obligations">responsibility</a> for the protection of those held offshore is apparent. This provides an opportunity to begin an informed conversation about how Australia can better respond to refugees.</p>
<p>Studies <a href="http://politicsir.cass.anu.edu.au/research/projects/electoral-surveys/australian-election-study/publications/aes-trends">show</a> that Australian voters are more concerned about issues such as health and education than the arrival of boats. That said, voters have considered the issue of refugees and asylum seekers to be <a href="http://politicsir.cass.anu.edu.au/research/projects/electoral-surveys/australian-election-study/publications/aes-trends">relatively important</a> during the election years of 2001, 2010 and 2013, when boat arrivals were at higher levels and a subject of political debate.</p>
<p>This year, there are fewer boats but still plenty of talk. Changing that conversation could make alternative policies possible.</p><img src="https://counter.theconversation.com/content/58932/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Claire Higgins has previously received funding from the National Archives of Australia, and is a member of Amnesty International. </span></em></p>Both major parties support offshore processing and boat turnbacks. But public opinion on asylum seekers is not so clear-cut. And nor are the policy alternatives.Claire Higgins, Research Associate, Andrew & Renata Kaldor Centre for International Refugee Law, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/588802016-05-05T02:06:12Z2016-05-05T02:06:12ZHigh Court asked to declare Manus detention illegal as 859 detainees seek their day in court<figure><img src="https://images.theconversation.com/files/121293/original/image-20160505-22761-huj2cy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Detainees on Manus Island are seeking an injunction to prevent their removal to Nauru or elsewhere until Australia's High Court hears their case.</span> <span class="attribution"><span class="source">AAP/Eoin Blackwell</span></span></figcaption></figure><p>A writ of summons <a href="http://www.abc.net.au/news/2016-05-04/manus-island-asylum-seekers-launch-legal-action-to-be-moved/7383972">was registered</a> in Australia’s High Court on Wednesday on behalf of 859 detainees at the Manus Island detention centre. This is a class action initiated against Australia, Papua New Guinea, the two countries’ immigration ministers, PNG’s attorney-general and the companies that administer the centre. </p>
<p>The detainees want the High Court to use its <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s75.html">original jurisdiction</a> in judicial review of their transfer to and detention on Manus Island. They seek an injunction to prevent their removal to Nauru or elsewhere until the court hears the matter. </p>
<h2>Recent background</h2>
<p>This action follows the <a href="https://www.scribd.com/doc/310461159/PNG-Supreme-Court-Decision-on-Manus-Island">PNG Supreme Court finding</a> that the detention on Manus Island is unconstitutional. The <a href="http://www.wipo.int/wipolex/en/text.jsp?file_id=199188">PNG Constitution</a> contains a Charter of Rights that strictly limits the circumstances under which people may be deprived of liberty. </p>
<p>As Australia forcibly transferred the detainees, they were not responsible for their own unlawful entry to PNG. Therefore, <a href="https://theconversation.com/png-court-decision-forces-australia-to-act-on-manus-island-detainees-58439">no constitutional exception</a> could permit their legal detention. </p>
<p>Following the Supreme Court decision, PNG Prime Minister Peter O'Neill announced the Manus Island centre would close. He <a href="http://www.abc.net.au/news/2016-04-27/png-pm-oneill-to-shut-manus-island-detention-centre/7364414">asked Australia</a> to “make alternative arrangements for the asylum seekers”. </p>
<p>O’Neill’s Australian counterpart, Malcolm Turnbull, said Australia would not accept the detainees. Australia’s immigration minister, Peter Dutton, described them as <a href="http://www.abc.net.au/news/2016-04-28/png-responsible-for-manus-island-asylum-seeker-dutton-says/7369032">PNG’s responsibility</a>.</p>
<h2>Basis for the claim</h2>
<p>The detainees argue their detention is illegal on international, constitutional, administrative and civil law grounds. They are asking the High Court to declare that their detention constitutes: </p>
<ul>
<li><p>forcible deportation, due to their expulsion from Australia and transfer to Manus Island, contrary to <a href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/InternationalCriminalCourt.aspx">international law</a>;</p></li>
<li><p>arbitrary and indefinite detention, due to Australia’s <a href="https://www.legislation.gov.au/Details/C2012A00113">“no advantage” principle</a>, in a country that <a href="https://www.humanrights.gov.au/submissions/examination-migration-regional-processing-package-legislation#fn78">lacks the legal safeguards or competence</a> to adequately protect or process asylum seekers;</p></li>
<li><p>torture (an <a href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx">international crime</a> that can never be excused), inhumane and degrading treatment;</p></li>
<li><p>rape and other crimes of <a href="http://www.theguardian.com/world/2013/jul/24/manus-island-rape-detainees">sexual violence</a>;</p></li>
<li><p>denial of fundamental human rights, particularly a <a href="http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx">fair hearing and legal representation</a>;</p></li>
<li><p>murder (notably the violent killing of <a href="http://www.theguardian.com/australia-news/reza-barati">Reza Barati</a> in February 2014), grievous bodily harm, assault and robbery; and</p></li>
<li><p>unlawful death, false imprisonment, trespass and negligence.</p></li>
</ul>
<h2>What are the detainees seeking?</h2>
<p>The detainees request relief via the ancient writ of <a href="http://www.austlii.edu.au/au/journals/MonashULawRw/2006/13.pdf">habeas corpus</a>. They want to be brought before the High Court so its judges can determine whether their detention is legal. </p>
<p>The detainees hope the court will then issue a writ of <a href="http://www.claytonutz.com/publications/edition/19_february_2015/20150219/two_wrongs_dont_always_make_a_writ.page">mandamus</a>. This would order the government to bring them to Australia to process their refugee claims. </p>
<p>Finally, the detainees seek a writ of <a href="http://www.arc.ag.gov.au/Publications/Reports/Documents/ARCReport50-FederalJudicialReviewinAustralia-2012.PDF">prohibition</a>, to prevent their transfer to any other place until the case has been decided and their claims assessed. </p>
<p>The detainees are seeking damages and costs. They may also take action in PNG for compensation. A PNG legal representative of many detainees estimates that <a href="http://www.smh.com.au/federal-politics/political-news/australian-government-faces-potential-claims-of-more-than-1-billion-after-manus-island-deal-implodes-20160428-goh5jq.html">up to A$1 billion</a> could be owed. </p>
<p>This action echoes <a href="https://theconversation.com/australias-global-reputation-at-stake-in-high-court-asylum-case-28951">earlier high-profile claims</a>, like the <a href="https://theconversation.com/julian-burnside-what-sort-of-country-are-we-48162">Tampa case</a>. In such cases, human rights lawyers seek to vindicate the rights of asylum seekers who lack access to Australian courts due to their forcible offshore detention. </p>
<p>Other advocates have sought the <a href="https://theconversation.com/will-the-international-criminal-court-prosecute-australia-for-crimes-against-humanity-33363">aid of international courts</a>. They argue Australia’s actions against asylum seekers who seek to arrive here by boat inflict <a href="http://andrewwilkie.org/project/un-adds-weight-to-case-against-government-at-the-hague/">crimes against humanity</a>.</p>
<p>The High Court will hear the application on May 23. </p>
<h2>Australia’s human rights problem</h2>
<p>Around half of those detained on Manus Island have already been assessed to be <a href="http://www.abc.net.au/news/2016-04-07/png-deems-under-half-of-manus-island-detainees-refugees/7308322">genuine refugees</a>. Yet most remain in detention, in part because their <a href="http://www.smh.com.au/federal-politics/political-news/desperate-refugees-arrested-trying-to-return-to-manus-island-centre-20160422-gocyg1.html">safety</a> is <a href="https://www.hrw.org/news/2015/07/15/australia/papua-new-guinea-pacific-non-solution">at risk</a> if they leave the centre.</p>
<p>The refugees would not face the same level of risk were they to be resettled in Australia. Yet PNG law has offered more substantial rights protection to them than Australian law. </p>
<p>The stark contrast between Australian and PNG law is in the relative degree of formal protection for human rights. Whereas PNG has a Charter of Rights enshrined in its Constitution, Australia lacks constitutional protection. Its government has <a href="https://theconversation.com/why-does-international-condemnation-on-human-rights-mean-so-little-to-australia-53814">rejected legislative protection</a> for human rights. </p>
<p>Though Australia professes deep commitment to human rights standards in its <a href="https://theconversation.com/on-the-ground-at-australias-universal-periodic-review-50525">foreign relations</a>, it refrains from entrenching these international norms domestically. This position reflects a cultural attitude that the Australian <a href="https://theconversation.com/gillian-triggs-how-the-fair-go-became-the-last-bulwark-for-australias-freedoms-49743">“fair go”</a> is sufficient protection against the excessive use of government power. </p>
<p>The experiences of Indigenous peoples in Australia before the law put the lie to this belief. And if adequate human rights protections are not the universal experience of people in Australia, what hope for asylum seekers who lack access to Australian courts and are <a href="http://www.theguardian.com/commentisfree/2015/jun/15/theres-no-legal-queue-and-three-other-facts-australians-get-wrong-about-asylum-seekers">demonised</a> in public discourse?</p>
<h2>Hope for success</h2>
<p>The most recent High Court action challenging Australia’s offshore detention arrangements in Nauru <a href="http://www.sbs.com.au/news/article/2016/02/03/high-court-throws-out-legal-challenge-australias-offshore-detention-policies">failed</a>. The court found the government was acting in accordance with its <a href="http://www.hcourt.gov.au/assets/publications/judgment-summaries/2016/hca-1-2016-02-03.pdf">constitutional and legislative powers</a>.</p>
<p>However, the majority of judges did regard Australia as <a href="https://theconversation.com/glimmers-of-hope-for-detained-asylum-seekers-in-the-high-courts-nauru-decision-54036">bearing at least some responsibility</a> for the detention of asylum seekers in Nauru. This may undermine the government’s argument that detainees on Manus Island are PNG’s sole responsibility.</p>
<p>This new action’s distinguishing feature is a request that the High Court use its universal jurisdiction for the first time. The detainees argue that Australia has no legal power to forcibly deport and arbitrarily and indefinitely detain asylum seekers in torturous, inhuman or degrading conditions without legal rights. </p>
<p>If the claim succeeds, it will entirely undermine Australia’s inhumane practices in relation to “those who come across the seas”. </p>
<hr>
<p><em>Amy Maguire thanks Jay Williams, barrister-at-law of Frederick Jordan Chambers, for providing the original writ of summons used to initiate this action in the High Court.</em></p><img src="https://counter.theconversation.com/content/58880/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amy Maguire is a member of Amnesty International and Australian Lawyers for Human Rights. </span></em></p>If a new High Court claim against Australia’s offshore detention regime succeeds, it will entirely undermine Australia’s inhumane practices in relation to “those who come across the seas”.Amy Maguire, Senior Lecturer in International Law, University of NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/588952016-05-04T11:37:29Z2016-05-04T11:37:29ZNothing seems able to make Nauru asylum seekers an issue<p>It is hard to credit that two asylum seekers in Nauru could set themselves alight on Australia’s watch and the stories receive, compared to much else, so little attention in our hyper media cycle.</p>
<p>One would think the death of an Iranian man last week and the self-immolation of a Somali woman would be huge news, putting a great deal of pressure on the government as we move towards the election to outline an exit plan for Nauru.</p>
<p>But in the campaign the future of those on Nauru will be something neither side will be anxious to talk about.</p>
<p>Manus Island hit the headlines recently when the Papua New Guinea government announced, following a judgment of its Supreme Court, that the centre there will close.</p>
<p>Australian and PNG officials are now in negotiations that Australia hopes will find a way to keep the centre going. In a Tuesday statement the two governments said they’d continue “to work together on a road map”, meeting “regularly in the coming weeks”, which suggests the matter is being pushed safely beyond the election.</p>
<p>The government and the opposition are bipartisan on offshore processing. When it arises, the issue plays in favour of the Coalition, but it is not one Malcolm Turnbull seems naturally comfortably with. For political reasons Labor obviously tries to avoid it. That means the government isn’t being held to serious account – despite efforts by the Greens – in the way it is on much more minor matters.</p>
<p>In her valedictory speech on Wednesday, Labor MP Melissa Parke described the present system as “a festering wound that is killing off people and eroding our national character and respect”. Some in Labor are deeply unhappy and a few have been recently vocal about the ALP’s approach, but most don’t want the boat rocked. </p>
<p>As for the Liberals, those who used to speak up for asylum seekers have either left the parliament or gone quiet.</p>
<p>Amid his Wednesday media round of budget questions Turnbull was asked whether he ever thought he’d be defending keeping people in a position where they were so desperate they were killing themselves.</p>
<p>Turnbull sympathised with “the mental anguish that many of them are in … we grieve for them”, before swinging into the mantra that to keep our borders secure, people who sought to come to Australia by boat couldn’t be allowed to settle here.</p>
<p>Pressed on their future, Turnbull said the people on Nauru could move around there (it is an open centre); those on Manus judged to be refugees could settle there. There were also third-country options, while non-refugees were being encouraged to go home.</p>
<p>There was a hint of blame, when he suggested many had been led to believe they could end up being admitted to Australia.</p>
<p>Immigration Minister Peter Dutton has taken up a shovel to lay blame, bluntly heaping it on the activity of advocates. In a Tuesday statement on the Somali woman, Dutton said it was “of grave concern” she would “resort to such an extreme act of self-harm”.</p>
<p>“I have previously expressed my frustration and anger at advocates and others who are in contact with those in regional processing centres and who are encouraging them to engage in behaviours they believe will pressure the government to bring them to Australia. These behaviours have intensified in recent times, and as we see, have now turned to extreme acts with terrible consequences.</p>
<p>"Advocates and others who proclaim to represent and support the interests of refugees and asylum seekers must hear a clear message that their activities and these behaviours must end.”</p>
<p>In parliament on Wednesday, the Greens’ Adam Bandt challenged Dutton with a highly provocative question. “Aren’t you just showing pure cowardice by blaming the advocates helping the vulnerable, instead of accepting responsibility for your actions?” Bandt asked, then added: “Can’t we do better than this Labor-Liberal policy of not drowning, but burning?”</p>
<p>It was Manager of Opposition Business Tony Burke who jumped up to declare this was deeply offensive to all MPs. Bandt had to withdraw his “burning” line.</p>
<p>Dutton’s allegation must be deeply offensive to many advocates. More to the point, it is a cop-out – responsibility for what has become, in academic jargon, one of those “wicked problems” has to lie with the government.</p>
<p>Desperation and apparently extensive mental health problems mean the situation on Nauru is only likely to get worse. Having people there indefinitely is not a viable proposition. A workable strategy is needed, which also keeps the Australian border secure.</p>
<p>One of the debates of the coming campaign should be the search for practical answers. But it is a debate the government and opposition are not prepared to have, and nor are the media willing or able to give them a hard enough time to force them into it.</p>
<p>It’s a case study in how interests and circumstances conspire to push some issues off-stage in an election.</p>
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It is hard to credit that two asylum seekers in Nauru could set themselves alight on Australia’s watch and the stories receive, compared to much else, so little attention in our hyper media cycle. One…Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/585982016-04-28T20:13:49Z2016-04-28T20:13:49ZGrattan on Friday: The Manus issue intrudes on carefully crafted pre-election scripts<p>It is a shocking truth that, for the most part, the politicians are leaving their humanity at home as they debate the future of the men on Manus Island.</p>
<p>They give little sense that they are talking about people who – whatever their particular motives in getting on boats – have been in a hellhole for years.</p>
<p>By contrast, there is an acute sense of the politicians, at least behind the scenes, weighing potential political advantage or danger as this new situation plays out unpredictably.</p>
<p>The government believes that while Papua New Guinea’s call for Australia to remove the asylum seekers – following its Supreme Court ruling that their detention is unconstitutional – creates a problem, having border protection in the news helps the Coalition.</p>
<p>Immigration Minister Peter Dutton hasn’t produced a solution, despite saying “we’ve been planning for this since late last year”. But he was instantly out of the blocks to capitalise on a handful of Labor parliamentarians saying the men should be brought to Australia.</p>
<p>Malcolm Turnbull repeated multiple times that the Manus men wouldn’t be coming here and declared “we cannot be misty-eyed” on border protection.</p>
<p>The opposition fears the politics – it is desperate to stick close to the government in supporting offshore processing. Bill Shorten proclaims Labor and the Liberals are on a “unity ticket” to defeat people smugglers. But Shorten, with mixed views in his party, also stresses Labor opposes “indefinite detention” and optimistically claims it would be more successful getting agreement to resettle people in third countries.</p>
<p>Late Thursday Turnbull spoke with PNG Prime Minister Peter O'Neill, reiterating Australia would not be accepting the asylum seekers. They agreed officials would work together; Australian officials will be in PNG next week.</p>
<p>Government sources expect an arm-wrestle between the two governments in a search for a way to keep the Manus centre functioning, with PNG using its leverage to extract money from Australia.</p>
<p>The stakes are high, with implications for the wider bilateral relationship.</p>
<p>For Australia, having to relocate the men would be very difficult. Dutton has ruled out Christmas Island. While Nauru has space, sending them into that community would invite trouble in an already trauma-ridden place. Other destinations are not in sight.</p>
<p>Whenever asylum issues erupt before an election, it’s ugly. This time it might remind the world Australia has an effective border policy, but it also exposes a harsh, defensive face.</p>
<p>Dutton’s claimed knowledge notwithstanding, the Manus story burst unexpectedly into the unofficial campaign. It highlights how suddenly new issues erupt in an election run up, especially when it is very long.</p>
<p>Turnbull is set to call the election in a week’s time – next Friday or at the weekend – giving eight weeks to polling day. Not only will this be an endurance test for Turnbull and Shorten, neither of whom have previously led in a campaign, but it will try the patience of many voters, who just want to get this contest behind them.</p>
<p>In the latest Essential poll, 40% approved of Turnbull calling the July 2 double-dissolution election, and 42% thought the Coalition the most likely to win. Only 28% opposed the early election, the same proportion as predicted a Labor victory.</p>
<p>The low expectation of Labor prevailing contrasts with the polls, which have been neck and neck. Essential has Labor leading 52-48%. But an analysis by Monash University’s Nick Economou of marginal seats state by state tells a different story, indicating what <a href="https://theconversation.com/state-by-state-its-still-malcolm-turnbulls-election-to-lose-58047">an uphill battle Labor faces</a>.</p>
<p>Economou writes: </p>
<blockquote>
<p>The swings against the Coalition occurring in the polls are in states with comparatively few seats or, in the case of Victoria, comparatively few marginal government seats. Queensland and NSW are the key battlegrounds and, so far, the polls are indicating that the Coalition vote is holding up.</p>
</blockquote>
<p>While Manus became the dramatic political story of the week, the campaigning was in full swing with major announcements from both sides.</p>
<p>The government awarded the A$50 billion submarine deal to the French, with an all-Adelaide build it hopes will firewall the Liberal South Australian seats. Just don’t expect an answer to the question of what premium the taxpayer will be hit for.</p>
<p>The submarines are bipartisan – in contrast to Labor’s announced climate policy, which will be at the centre of the political divide.</p>
<p>The opposition has committed to an ambitious target for emissions reduction but been cautious in the design of its two proposed emissions trading schemes, one specifically for the electricity sector.</p>
<p>Labor sources concede the policy is a risk, less for what’s actually in it but because it presses the rewind button to the Rudd-Gillard-Rudd era, a gift for negative advertising.</p>
<p>This might make it more politically chancy than Labor’s pledge to restrict negative gearing, which the government sees as a huge target. How the negative gearing initiative fares will depend substantially on whether Labor or the Coalition is more successful in defining the debate about winners and losers. The battleground on negative gearing is crowded: Turnbull this week was in hand-to-hand combat with the Grattan Institute over its analysis.</p>
<p>On Friday the announcement flow continues, with Turnbull launching a “smart cities plan” pointing to a need “to rethink the way our cities are planned, built and managed” that requires a partnership between all levels of government.</p>
<p>All this is preliminary to the main event before the election starter gun is fired – Tuesday’s budget.</p>
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<p class="fine-print"><em><span>Michelle Grattan 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>It is a shocking truth that, for the most part, the politicians are leaving their humanity at home as they debate the future of the men on Manus Island.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/585142016-04-27T23:37:05Z2016-04-27T23:37:05ZIf not Manus, then what? Possible alternatives for asylum seekers and refugees in PNG<figure><img src="https://images.theconversation.com/files/120354/original/image-20160427-30953-oqo77f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">There are no real alternatives for resettling the refugees on Manus Island elsewhere in the region.</span> <span class="attribution"><span class="source">AAP/Eoin Blackwell</span></span></figcaption></figure><p>Papua New Guinea Prime Minister Peter O’Neill <a href="https://twitter.com/StefArmbruster/status/725205443849555968">announced on Wednesday</a> that Australia’s offshore detention centre on Manus Island is to be closed. This decision follows the PNG Supreme Court’s <a href="https://www.scribd.com/doc/310461159/PNG-Supreme-Court-Decision-on-Manus-Island">landmark ruling</a> that the detention of asylum seekers and recognised refugees in the processing centre <a href="https://theconversation.com/png-court-decision-forces-australia-to-act-on-manus-island-detainees-58439">is unconstitutional</a>. </p>
<p>The Australian government has not yet indicated any change in policy in response. Following the court decision on Tuesday, Immigration Minister Peter Dutton <a href="http://www.minister.border.gov.au/peterdutton/2016/Pages/png-supreme-court-judgement.aspx">said</a> the ruling:</p>
<blockquote>
<p>… does not alter Australia’s border protection policies – they remain unchanged.</p>
</blockquote>
<p>Dutton <a href="http://www.minister.border.gov.au/peterdutton/2016/Pages/statement-pm-oneill.aspx">reiterated on Wednesday</a>:</p>
<blockquote>
<p>… people who have attempted to come illegally by boat and are now in the Manus facility will not be settled in Australia.</p>
</blockquote>
<p>So, if not Manus Island, what are the alternatives for the processing, detention and resettlement of the 900 men held in PNG?</p>
<h2>What now for these men?</h2>
<p>The solution is likely to be framed around the two different types of detainees on Manus Island. Around half are recognised refugees awaiting resettlement. The rest are asylum seekers awaiting processing.</p>
<p>Those who have been recognised as refugees could be taken out of detention and moved to an open facility or other community arrangement in mainland PNG. This would comply with the Supreme Court ruling. But, it would face practical difficulties and concerns.</p>
<p>First, there is significant evidence of hostility within the PNG community towards refugees and instances of threats and harm. There is a strong argument that Australia would be legally responsible should any such harm occur. The prospects of the successful resettlement of more than 400 refugees in PNG are therefore slim. </p>
<p>Second, there are no real alternatives for resettling these refugees elsewhere in the region. </p>
<p>Only <a href="http://www.abc.net.au/news/2016-03-09/cambodia-refugee-resettlement-program-labelled-an-expensive-joke/7231852">two refugees</a> have been resettled under the troubled Cambodia deal. It is highly unlikely that any significant proportion of the approximately 450 recognised refugees on Manus Island will be able to be resettled in Cambodia. This is particularly so given the Cambodian arrangement is based on refugees voluntarily choosing to go there. </p>
<p>Given many countries in the region are not signatories to the Refugee Convention or are otherwise unsuitable as a resettlement country, it is unlikely that the Australian government will be able to find any other country in Southeast Asia to accept them.</p>
<p>The alternatives for the asylum-seeker caseload – that is, those awaiting processing – are similarly problematic. It is doubtful the hundreds of male asylum seekers in PNG will simply be able to be transferred to Nauru. At its <a href="http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1516/Quick_Guides/Offshore#_Number_of_asylum">peak capacity</a>, Nauru held approximately 1,233 asylum seekers (in August 2014). It currently holds <a href="http://www.border.gov.au/ReportsandPublications/Documents/statistics/immigration-detention-statistics-31-mar-2016.pdf">468 detainees</a>. </p>
<p>Therefore the physical capacity may be available on Nauru for the Manus asylum seekers, but the current conditions mean it would be dangerous for such a transfer to take place. A refugee being held on Nauru is in a critical condition after setting himself on fire. There have been <a href="http://www.abc.net.au/news/2016-04-27/refugee-sets-himself-on-fire-in-nauru-protest/7363530">other reports</a> of self-harm by detainees on the island. </p>
<p>More generally, there are tensions on Nauru and serious medical and mental health issues that provide strong arguments against such a transfer.</p>
<p>The best alternative available would be to transfer the 450 asylum seekers from Manus Island to Australia’s Christmas Island for processing. This would still accord with the government’s position that “no boat arrival will be resettled in Australia”. This is because the transfer would be for processing only. </p>
<p>The Christmas Island centre certainly has a physical capacity to accept more detainees. However, it is also a fragile environment. Serious riots took place there in November 2015 and it appears to still be a place of <a href="http://www.abc.net.au/news/2016-01-11/christmas-island-detainee-claims-foul-conditions-november-riot/7080566">significant tension</a>. </p>
<p>Proper measures would therefore need to be taken to prepare the facility for such an intake. This move would also leave the other 450 or so recognised refugees in PNG in limbo.</p>
<h2>Broader implications</h2>
<p>The Australian government must face the uncomfortable truth that it is no longer possible to process or detain asylum seekers and refugees in other countries in the region.</p>
<p>In light of a looming election, neither side of politics is likely to warmly embrace this approach. But it is a reality Australian politicians must face head-on.</p>
<p>This reality is something the Australian electorate also appears to be gradually recognising. While a majority of the electorate supports a strict border policy, there are indications of a growing disquiet about the harshness of aspects of the Pacific Solution. This is evidenced by the groundswell of public opinion behind the <a href="http://www.theguardian.com/australia-news/2016/feb/10/let-them-stay-australia-backlash-267-asylum-seekers-island-detention-camps">#letthemstay campaign</a>, the <a href="http://www.abc.net.au/news/2016-02-03/risking-jail-time:-more-doctors-speak-out-about/7138142">medical community’s concerns</a> and the <a href="http://www.abc.net.au/news/2016-02-04/churches-offer-sanctuary-to-asylum-seekers/7138484">offer of sanctuary</a> by Australian churches. </p>
<p>Dealing with refugee flows in a fair and humane manner is part and parcel of being a democratic country in the affluent industrialised world. Sometimes there is simply no acceptable alternative to this.</p><img src="https://counter.theconversation.com/content/58514/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Maria O'Sullivan 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 Australian government must face the uncomfortable truth that it is no longer possible to process or detain asylum seekers and refugees in other countries in our region.Maria O'Sullivan, Senior Lecturer, Faculty of Law, and Associate, Castan Centre for Human Rights Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/585322016-04-27T13:13:54Z2016-04-27T13:13:54ZShades of Abbott as Turnbull government attacks on climate, digs in on asylum seekers<p>Malcolm Turnbull’s nose was out of joint when Tony Abbott said last month the Turnbull government would be running at the election on the Abbott government’s record.</p>
<p>Turnbull insisted that while there might be continuities there was plenty of change.</p>
<p>This week, however, it’s the continuity that’s striking.</p>
<p>Turnbull condemned Bill Shorten’s climate policy – with its emissions trading schemes (ETS) and ambitious emissions reduction target – as another tax, set to drive up the cost of energy and put a brake on the economy. A far cry from his one-time passion for an ETS.</p>
<p>On another front, faced with a demand from Papua New Guinea to remove asylum seekers from the Manus Island detention centre, the Turnbull government repeatedly declares the men will never come to Australia. It’s as strident as in Abbott’s day, yet it is known Turnbull is uneasy about the inhumanity of keeping people indefinitely on Manus and Nauru. </p>
<p>What was dubbed the “PNG solution” has book-ended a term of parliament.</p>
<p>Shortly before the 2013 election, then-prime minister Kevin Rudd forged a deal with PNG’s Peter O'Neill for Australia to send boat arrivals to Manus for processing. “People who come by boat now have no prospect of being resettled in Australia,” Rudd declared. “The rules have changed.”</p>
<p>It was designed as a king hit to try to neutralise an issue that had so damaged Labor. Though it couldn’t do that, the deal formed a building block in the Coalition government’s policy, which relied centrally on turning back boats.</p>
<p>But Manus inevitably became a blight, denying inmates’ human rights and embarrassing Australia internationally.</p>
<p>Almost three years after the deal, O'Neill, in the wake of this week’s PNG Supreme Court judgment finding the asylum seekers’ detention unconstitutional, has said the Manus centre will be closed.</p>
<p>Immediately after Tuesday’s judgment the Australian government tried to push the question of what next onto the PNG government. Now O'Neill has pushed it right back into Australia’s lap. Not that the government is willing to accept it.</p>
<p>In his Wednesday statement O'Neill said PNG would “immediately ask the Australian government to make alternative arrangements for the asylum seekers”.</p>
<p>He injected grievances – about both the Manus centre lingering and its going. “We did not anticipate the asylum seekers to be kept as long as they have at the Manus centre,” he said. On the other hand, the closure “will have a negative effect on the local economy on Manus”, and PNG would work with Australia “to seek to minimise damage to businesses and workers”.</p>
<p>O'Neill said PNG invited people judged to be “legitimate refugees” – more than half – to live in the country “only if they want to be a part of our society”. He pointedly noted that it was clear several did not want to settle in PNG.</p>
<p>It looks obvious that the Turnbull government will do everything possible to avoid taking responsibility for the Manus men.</p>
<p>Immigration Minister Peter Dutton said in response to O'Neill that the Australian government “will work with our PNG partners to address the issues” raised by the court judgment. But the government “has not resiled from its position that people who have attempted to come illegally by boat to Australia and who are now at the Manus facility will not be settled in Australia”.</p>
<p>The options now appear to be for the Australian government – which will be in caretaker mode within a fortnight – to intensify the hunt for third-country settlement places, or to attempt to persuade PNG to find a way to keep the Manus arrangement.</p>
<p>Despite the federal government refusing to give up on possible third-country deals, so far it has delivered only a farcical agreement with Cambodia.</p>
<p>Some government sources believe PNG might be swayed by more money into devising a solution that preserves Manus.</p>
<p>At the least, the government hopes the issue can be moved out beyond the election. Whether that will be possible remains to be seen.</p>
<p>Labor can’t give the government too much grief. While it says Dutton should get on a plane to PNG and sort things out, the opposition remains as committed as the Coalition to Manus. “It is of critical importance that the system of offshore processing as originally envisaged be maintained,” spokesman Richard Marles said. He suggested if he were minister he would be talking to PNG with a lot on the table.</p>
<p>The most logical and decent course would be to bring the Manus men to Australia, allowing those found to be refugees to stay, while at the same time stepping up strong border protection to prevent people smugglers taking advantage of the situation.</p>
<p>Apart from PNG trying to force his hand, Turnbull knows that there must eventually be a long-term solution for people on Manus, and those on Nauru too, where a young man this week set himself on fire.</p>
<p>But on the cusp of an election, he won’t take a backward step if he can avoid it. In an increasingly tight corner, fighting for votes, Turnbull is quite willing to don Abbott’s punching gloves, especially when the fight is on issues that have delivered for the Coalition in the past.</p>
<iframe src="https://www.podbean.com/media/player/783wy-5eced8?from=yiiadmin" data-link="https://www.podbean.com/media/player/783wy-5eced8?from=yiiadmin" height="100" width="100%" frameborder="0" scrolling="no" data-name="pb-iframe-player"></iframe><img src="https://counter.theconversation.com/content/58532/count.gif" alt="The Conversation" width="1" height="1" />
Malcolm Turnbull’s nose was out of joint when Tony Abbott said last month the Turnbull government would be running at the election on the Abbott government’s record. Turnbull insisted that while there…Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/584392016-04-27T02:18:48Z2016-04-27T02:18:48ZPNG court decision forces Australia to act on Manus Island detainees<figure><img src="https://images.theconversation.com/files/120195/original/image-20160426-1341-1mctnwz.jpg?ixlib=rb-1.1.0&rect=0%2C453%2C2385%2C1470&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The detention of people transferred from Australia has no valid basis in PNG law.</span> <span class="attribution"><span class="source">AAP/Eoin Blackwell</span></span></figcaption></figure><p>A five-judge panel of Papua New Guinea’s Supreme Court has <a href="https://www.scribd.com/doc/310461159/PNG-Supreme-Court-Decision-on-Manus-Island">held unanimously</a> that the detention of asylum seekers at the Australian-built detention facility on Manus Island is unconstitutional and illegal under PNG law. That detention must end immediately.</p>
<p>What is the background to this case? And what might the implications be for Australia’s offshore detention regime?</p>
<h2>Where did the case come from?</h2>
<p>PNG’s opposition leader, Belden Norman Namah, first launched a challenge to the legality of offshore processing in his country three years ago. PNG had recently signed <a href="http://www.kaldorcentre.unsw.edu.au/sites/default/files/MOU%201.pdf">an agreement</a> under which Australia’s Gillard government would transfer some 350 men, women and children to a detention facility on Manus Island.</p>
<p>The asylum seekers were ostensibly there to be processed, but even at that early stage something clearly was not right. At the fortified makeshift camp, facilities were inadequate and refugee processing was non-existent.</p>
<p>Children as young as seven were being held “illegally and indefinitely under inhumane conditions”, Namah said. He called on the PNG government to face up to court and respond to these charges directly.</p>
<p>From strong beginnings the case took a circuitous route to conclusion. As it became bogged down in procedural matters, PNG signed a <a href="http://www.kaldorcentre.unsw.edu.au/sites/default/files/australia-png-mou-2013.pdf">new agreement</a> with Australia. The original families and single men on Manus were replaced by a new cohort of nearly 1,000 adult men who had no prospect of resettlement in Australia. As the facts kept shifting, and the case evolved, detention times blew out. </p>
<p>The case barely made news in Australia. There was a brief flare of interest in mid-2014, when it came to light that Australian taxpayers were footing the bill for the PNG government’s legal costs – some A$370,000 to that date alone.</p>
<p>But a distracted public did not stop the case progressing. And, on Tuesday, the judgment finally came in.</p>
<h2>What comparisons can be made with Australian law and cases?</h2>
<p>The judgment in this case comes just 12 weeks after Australia’s High Court handed down <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2016/1.html">its judgment</a> in the matter of Plaintiff M68.</p>
<p>These cases invite obvious comparison. Both challenged key pillars of Australia’s offshore processing regime, examining the circumstances in which the offshore detention of asylum seekers may be lawful and appropriate. Both involved belated legislative changes, rushed through the respective parliaments after the cases had commenced, in apparent attempts to give retroactive legal coverage to conduct that might otherwise be unlawful.</p>
<p>Perhaps most crucially, both cases should have been decided years earlier, to avoid the undue hardship caused by detention on Nauru and Manus Island in the interim.</p>
<p>But the similarities end there.</p>
<p>The Australian judgment was touted as a win for its government. It was said to leave Australia free to transfer asylum seekers and refugees back to Nauru at its discretion (although in reality the outcome was <a href="http://theconversation.com/glimmers-of-hope-for-detained-asylum-seekers-in-the-high-courts-nauru-decision-54036">more nuanced</a> than that).</p>
<p>In contrast, the PNG judgment has been heralded as a win for Namah – and, more specifically, the 900 men who are still detained on Manus Island. This judgment does not allow business to continue as usual. Australia and PNG must change their policies to bring them into line with the law. </p>
<p>At the heart of the difference between these two outcomes is each country’s constitution – in particular the comprehensive charter of rights enshrined <a href="http://www.wipo.int/wipolex/en/text.jsp?file_id=199188">within that of PNG</a>. This charter guarantees to asylum seekers and refugees in PNG something they would not have in Australia: the right to be free.</p>
<p>The PNG Constitution <a href="http://www.wipo.int/wipolex/en/text.jsp?file_id=199188#LinkTarget_1812">provides that</a> “no person shall be deprived of his [or her] personal liberty”, unless restraint is necessary to achieve one of nine exceptional and enumerated purposes, each clearly set out.</p>
<p>In this case, the Supreme Court held that none of the exceptions applied – and that a tenth proposed by the government was invalid. Accordingly, the detention of people transferred from Australia has no valid basis in PNG law.</p>
<p>In Australia, where no such protections are constitutionally guaranteed, this case would probably have reached a very different outcome.</p>
<h2>What are the implications for PNG and Australia?</h2>
<p>This judgment is likely to have profound implications for Australia’s offshore processing regime in PNG, and the agreement as it stands between the countries.</p>
<p>PNG’s position is clearest: the government is bound by the judgment of its highest court. If it did wish to continue to detain people on Manus Island, it would need to pass a valid constitutional amendment to legislate around the court’s judgment. But this approach seems unlikely.</p>
<p>In March, PNG Prime Minister Peter O’Neill <a href="http://www.abc.net.au/news/2016-03-03/png-pm-calls-for-manus-island-centre-eventual-closure/7217774">acknowledged</a> the Manus Island detention centre had damaged his country’s reputation and warned that refugees could not be held there forever. The centre has also been controversial with the Manusian people since before it even opened. Locals lament the trouble it has brought to their province, and the lack of commensurate economic or social benefits.</p>
<p>Logistically it will not be simple. But PNG has strong reasons to bring an end to immigration detention on Manus Island.</p>
<p>What, then, is the impact of this case on Australia’s offshore processing policy? </p>
<p>Immigration Minister Peter Dutton’s <a href="https://theconversation.com/png-asylum-seeker-judgment-doesnt-bind-australia-dutton-58449">response</a> was predictable but inadequate:</p>
<blockquote>
<p>No-one who attempts to travel to Australia illegally by boat will settle in Australia.</p>
</blockquote>
<p>At a time when sound answers are needed, this hackneyed refrain provides none.</p>
<p>Offshore processing is an Australian policy. PNG never promised to settle every refugee transferred into its territory. Its position on settlement is clear: it will settle only those who are willing and able to sustain themselves. PNG simply does not have the capacity to support everyone else, especially refugees with more complex protection needs. That’s where it comes back to Australia.</p>
<p>This latest judgment in no way lessens Australia’s responsibilities with regard to its offshore processing regime on Manus Island. All it does is add new urgency to the situation, since the government can no longer detain the men there indefinitely until a solution is finally found for them – or until they give up and go home. </p>
<p>This is absolutely not a matter wholly for PNG. Australia created this situation jointly with its neighbour. Now it must fix it.</p>
<hr>
<p><em>Madeline Gleeson’s new book, <a href="https://www.newsouthbooks.com.au/books/nauru-and-manus/">Offshore: Behind the wire on Manus and Nauru</a>, is out now.</em></p><img src="https://counter.theconversation.com/content/58439/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Madeline Gleeson 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>A PNG Supreme Court judgment is likely to have profound implications for Australia’s offshore processing regime in that country.Madeline Gleeson, Research Associate, Andrew & Renata Kaldor Centre for International Refugee Law, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/495122015-10-21T08:04:28Z2015-10-21T08:04:28ZPolitics podcast: Sarah Hanson-Young on the plight of ‘Abyan’<figure><img src="https://images.theconversation.com/files/99156/original/image-20151021-15414-na6mxl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">AAP</span></span></figcaption></figure><p>In this interview, Greens senator Sarah Hanson-Young calls on the government to appoint an independent advocate to protect the interests of the Somali woman known as “Abyan”, who is being held on Nauru. Michelle Grattan also probes Hanson-Young on the Greens’ electoral prospects following the ascension of Malcolm Turnbull to the prime ministership.</p><img src="https://counter.theconversation.com/content/49512/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan 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>In this interview, Sarah Hanson-Young calls on the government to appoint an independent advocate to protect the interests of the Somali woman known as "Abyan", who is being held on Nauru.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/441322015-07-07T20:08:53Z2015-07-07T20:08:53ZHow Labor can create a humane refugee policy without reviving boat arrivals<figure><img src="https://images.theconversation.com/files/87409/original/image-20150706-20493-8mhvdc.jpg?ixlib=rb-1.1.0&rect=0%2C286%2C2281%2C1369&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Under the Coalition government, there has been little regard for asylum seekers' humanity, and no concern for establishing durable solutions to their plight. </span> <span class="attribution"><span class="source">AAP/Eoin Blackwell</span></span></figcaption></figure><p>Given its poor handling of refugee policy when it came to power in 2007, the Labor Party will need to tread very carefully when it formulates a <a href="http://www.theage.com.au/comment/labors-draft-policy-on-migrant-boats-avoids-the-hard-calls-20150630-gi1qu1.html">new policy</a> at its upcoming <a href="https://lab15.org.au/">national conference</a>. It has little to gain politically from deviating from the Coalition’s <a href="https://theconversation.com/the-boats-may-have-stopped-but-at-what-cost-to-australia-30455">harsh</a> asylum seeker policy, and yet there is urgent need for reform.</p>
<p>Australia’s current policy on asylum seekers has lost all sense of proportion. Stopping the boats is the only policy goal – it is an end for which almost <a href="https://theconversation.com/is-it-an-offence-if-australians-pay-people-smugglers-to-turn-back-43054">any means</a> are justified. The cost to asylum seekers has been unspeakable. There has been little regard for their humanity, and no concern for establishing durable solutions to their plight. </p>
<p>And there has been a range of other costs – to <a href="https://theconversation.com/boats-dont-arrive-but-continue-to-bring-trouble-for-abbott-government-23326">relations with Indonesia</a> and other neighbouring countries, and to our <a href="https://theconversation.com/boats-secrecy-leads-to-bad-policy-without-democratic-accountability-43324">democratic processes</a>. </p>
<p>There can be no doubting the manifest benefits of stopping the boats. These include undermining the “people smuggling” industry that developed around securing unauthorised entry to Australia by boat; preventing loss of life at sea; and preventing an uncontrollable flow of asylum seekers reaching our shores.</p>
<p>Having stopped the boats, at great cost, it is inconceivable that Australia would allow the movement of people by this means to start again. Its capacity to control movement across its borders is the <a href="https://theconversation.com/would-australias-asylum-seeker-policy-stop-boats-to-europe-40645">envy of the world</a>. All nations, no matter their level of generosity to asylum seekers, wish to be able to control the movement of people across their borders. </p>
<h2>Obvious reforms</h2>
<p>There are obvious reforms that Labor should have no hesitation in adopting. </p>
<p>First, as is <a href="http://www.theage.com.au/federal-politics/political-news/its-the-principle-that-stops-refugees-from-facing-harm-so-why-is-it-absent-from-labors-platform-20150630-gi12py">already contained</a> in its draft national platform, Labor should significantly increase Australia’s annual refugee intake. Given the scale of Australia’s <a href="http://www.border.gov.au/about/corporate/information/fact-sheets/02key">current migration program</a> and its relative international contribution, the number of 13,500 should at least be doubled. </p>
<p>Second, the raft of amendments to the Migration Act that the Coalition <a href="http://www.skynews.com.au/news/top-stories/2014/12/05/controversial-migration-laws-pass-senate.html">introduced</a> in November 2014 with the support of crossbench senators should be repealed. Those amendments focused on processing asylum seekers who arrived in Australia up to 2013 and are now either living in the community or in immigration detention. The amendments replaced permanent with temporary protection, restricted review rights in the Refugee Review Tribunal and incorporated more onerous requirements for satisfying the definition of a refugee.</p>
<p>These changes created a greater chance of genuine refugees being returned to their country of origin where they face the risk of death or persecution.</p>
<h2>The regional processing problem</h2>
<p>Regional processing is a central plank in the Coalition’s policy platform. However, it has been an abject failure. Thousands of asylum seekers on Nauru and Manus Island reside in sub-standard living conditions with growing mental health problems under the supervision of private centre operators with <a href="http://www.theage.com.au/comment/how-much-power-is-too-much-when-dealing-with-asylum-seekers-20150625-ghxfpq.html">broad and unreviewable powers</a> to use force against them to maintain order. </p>
<p>Refugee processing has been painfully slow. For those asylum seekers found to be refugees, the resettlement options of Papua New Guinea and Cambodia are inappropriate on any number of levels. The most common way off Nauru and Manus Island for asylum seekers is to <a href="http://www.lawyersalliance.com.au/news/millions-spent-on-voluntary-return-of-asylum-seekers">“voluntarily return”</a> to the country they fled in the first place out of desperation to escape detention.</p>
<p>It is time to accept that the only countries in the region with the capacity to resettle refugees are Australia and New Zealand. Asylum seekers on Manus Island and Nauru should be brought to Australia and processed by the Immigration Department. This should be an immediate priority if Labor won government, and would be a way to distance itself from existing policy. </p>
<p>The problem is that transferring people to Nauru and Manus Island is the safety valve for the <a href="http://www.kaldorcentre.unsw.edu.au/publication/%E2%80%98turning-back-boats%E2%80%99">turnback policy</a>. If a boat is not successfully returned to Indonesia, the asylum seekers are transferred to Manus Island and Nauru for “regional processing”. The government is thus able to maintain its hard line that no asylum seeker arriving by boat will be resettled in Australia. It is this hard line that has stopped the boats. </p>
<h2>Working with the region</h2>
<p>The problem with regional processing is that it has been conducted as a unilateral exercise with Australia calling the shots. No genuine attempt has been made to engage the countries in the region for whom asylum seeker movement is an issue. </p>
<p>The solution is to retain regional processing but redefine the region. Apart from a few boats arriving from Sri Lanka, asylum seekers arriving by boat in Australia all depart from Indonesia and most of those on board have travelled to Indonesia from Malaysia. The focus of policy needs to be to engage the Malaysian and Indonesian governments in preventing the onward movement of asylum seekers to Australia. </p>
<p>There is little downside for Indonesia and Malaysia in assisting Australia to prevent movements between Java and Christmas Island. In return, Australia can offer generous financial assistance to manage the asylum seeker populations in each country.</p>
<p>The previous Labor government made small steps in this direction with its <a href="http://www.abc.net.au/news/2011-07-25/malaysia-signs-refugee-deal/2809512">Malaysia arrangement</a>. The deal was a simple one. In exchange for the transfer to Malaysia of 800 asylum seekers who arrived in Australia by boat, Australia would provide financial assistance to Malaysia and resettle 4000 UNHCR-recognised refugees on top of existing commitments to resettle refugees from the region. </p>
<p>An important part of the arrangement was that those asylum seekers returned to Malaysia would not be penalised and would be provided with housing, the right to work and access to education for children. The arrangement would act as an effective deterrent to people taking a boat to Australia to seek asylum because their expensive and dangerous journey from Java to Christmas Island would just result in their return to Malaysia. </p>
<p>The arrangement was never implemented. The High Court <a href="http://www.hcourt.gov.au/cases/case-m70/2011">ruled</a> that the immigration minister had not lawfully exercised their discretion to declare Malaysia a “specified country” for the transfer of asylum seekers. The Greens would <a href="http://www.news.com.au/national/tragedy-another-asylum-seeker-boat-capsizes/story-e6frfkw9-1226410005101">not support</a> amendments to the Migration Act to fix the problem. </p>
<p>The Migration Act has since been amended. It now confers much broader powers on the minister to send asylum seekers to third countries. There are now no legal impediments to a deal with Malaysia. </p>
<p>There were serious doubts whether the Malaysia arrangement would work in 2011. Boats were arriving in large numbers, and it was possible that the quota of 800 asylum seekers would be reached before it worked as a circuit-breaker on arrivals.</p>
<p>With boats having largely ceased thanks to the Coalition’s turnback policy, a similar arrangement with Malaysia would now work effectively as a deterrent to boats leaving Indonesia.</p>
<p>There is every reason to think that Malaysia would be willing to negotiate a new deal with Australia. Australia could afford to be much more generous in offering resettlement places to UNHCR refugees in Malaysia under an increased quota of 27,000 resettlement places. </p>
<p>Australia could afford generous financial assistance to the UNHCR and the Malaysian government to assist with processing and accommodating asylum seekers located in Malaysia by diverting only a portion of the money <a href="https://theconversation.com/penny-wise-pound-foolish-how-to-really-save-money-on-refugees-27270">currently spent</a> on maintaining the detention centres on Nauru and Manus Island. </p>
<p>A humane refugee policy that maintains a strict line on asylum seekers arriving by boat is possible with the right amount of political will.</p>
<hr>
<p><em>Editor’s note: The article misrepresented the Malaysia arrangement by suggesting that the agreement was for the transfer of “Burmese Rohingya refugees”. The agreement did not specify the ethnicity or country of origin of refugees to be part of the transfer agreement. It has been amended since publication to correct this.</em></p><img src="https://counter.theconversation.com/content/44132/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alex Reilly is on the Management Committee of the Refugee Advocacy Service of South Australia.</span></em></p>Labor has little to gain politically from deviating from the Coalition’s harsh asylum seeker policy, and yet there is urgent need for reform.Alex Reilly, Director of the Public Law and Policy Research Unit, Adelaide Law School, University of AdelaideLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/363512015-02-03T01:28:37Z2015-02-03T01:28:37ZShaping 2015: The boats have stopped, now the real work begins in immigration<figure><img src="https://images.theconversation.com/files/70107/original/image-20150127-24541-1freidg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Immigration Minister Peter Dutton has so far continued in the 'bad cop', border protector image of his predecessor, Scott Morrison.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>2014 was the year of <a href="http://www.abc.net.au/news/2014-03-29/pm-hails-100-days-without-an-asylum-seeker-boat-arrival/5354100">triumphant press conferences</a> at which the Abbott government affirmed its determination to <a href="https://www.liberal.org.au/its-time-take-stand-and-stop-boats">“stop the boats”</a> and outlined its success at doing so. However, 2015 is likely to be much more difficult for the government to negotiate in the area of asylum seeker policy.</p>
<p>In his public comments since being appointed as minister for immigration and border protection, Peter Dutton has continued in the “bad cop”, border protector image of his predecessor, Scott Morrison. He <a href="http://www.smh.com.au/federal-politics/political-news/immigration-minister-peter-dutton-targets-bikie-gang-members-as-top-of-my-list-for-deporting-20141223-12cp0c.html">promised</a> to target non-citizen permanent residents who have a criminal record and are vulnerable to deportation. </p>
<p>Dutton also <a href="http://www.abc.net.au/7.30/content/2015/s4165495.htm">backed</a> the use of force by detention authorities to end <a href="https://theconversation.com/manus-island-hunger-strikes-are-a-call-to-australias-conscience-36419">protests on Manus Island</a> while stressing repeatedly that no asylum seeker arriving by boat would be resettled in Australia. </p>
<h2>An end to offshore detention?</h2>
<p>Stopping the boats was always the easy part of the government’s policy. It <a href="https://theconversation.com/the-boats-may-have-stopped-but-at-what-cost-to-australia-30455">came with</a> tangible results, and hidden and delayed costs. In 2015, those costs are quickly materialising. </p>
<p>In most cases, stopping the boats meant redirecting boat arrivals to Nauru and Manus Island. The Gillard government <a href="http://www.theaustralian.com.au/national-affairs/immigration/labor-caucus-backs-expert-panel-on-asylum-policy/story-fn9hm1gu-1226449423972">restarted</a> offshore processing on Nauru and Manus Island in August and November 2012. The detention centres were quickly filled. </p>
<p>The majority of detainees are genuine refugees and require resettlement. The problem for the government is that, having ruled out resettlement in Australia, there are now very few sustainable options for resettling these refugees. 2015 will see continued efforts to pressure nations in Australia’s region to take in refugees from Nauru and Manus Island. The <a href="https://theconversation.com/explainer-does-the-cambodia-refugee-deal-comply-with-the-convention-29639">Cambodia deal</a> seems <a href="http://www.theaustralian.com.au/news/latest-news/dutton-to-progress-cambodia-talks/story-fn3dxiwe-1227190449522">close to completion</a> and, if it holds up, refugees may be transferred there.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/70360/original/image-20150128-22295-6sxej.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/70360/original/image-20150128-22295-6sxej.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/70360/original/image-20150128-22295-6sxej.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=800&fit=crop&dpr=1 600w, https://images.theconversation.com/files/70360/original/image-20150128-22295-6sxej.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=800&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/70360/original/image-20150128-22295-6sxej.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=800&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/70360/original/image-20150128-22295-6sxej.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1005&fit=crop&dpr=1 754w, https://images.theconversation.com/files/70360/original/image-20150128-22295-6sxej.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1005&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/70360/original/image-20150128-22295-6sxej.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1005&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Some asylum seekers on Manus Island have recently protested at the length of their detention.</span>
<span class="attribution"><span class="source">AAP/Refugee Action Collective</span></span>
</figcaption>
</figure>
<p>However, this is unlikely to be an easy story for the government to sell. Although Cambodia became a signatory to the <a href="http://www.unhcr.org/pages/49da0e466.html">UN Refugee Convention</a> in 1992, it was a source country for asylum seekers to Australia in the 1990s. More recently, it was engulfed in a <a href="http://www.hrw.org/world-report/2014/country-chapters/cambodia">human rights crisis</a> after elections in 2013, and its treatment of Montagnard refugees from Vietnam has <a href="http://www.smh.com.au/world/cambodias-treatment-of-montagnard-refugees-focuses-critics-on-australias-asylum-seeker-deal-20141203-11z808.html">come under criticism</a>. </p>
<p>In November 2014, ten refugees on Manus Island <a href="http://www.smh.com.au/federal-politics/political-news/png-offers-10-asylum-seekers-refugee-status-20141112-11l6nk.html">were granted</a> temporary visas to live and work in Papua New Guinea. How well these refugees adapt to life in PNG will determine whether this will be a more extensive part of the resettlement program. Given the state of the PNG economy, and the stark cultural differences between refugees on Manus Island and PNG locals, this does not seem likely.</p>
<p>As the time people spend in appalling conditions in detention centres <a href="http://www.smh.com.au/federal-politics/asylum-seekers-time-in-detention-soars-20140502-zr3eg.html">continues to grow</a>, Dutton has <a href="http://www.skynews.com.au/news/top-stories/2015/01/20/dutton-says-force-used-to-quell-manus-protest.html">conceded</a> that “flash points” like those recently experienced on Manus Island are likely to continue to occur. </p>
<p>The government will find it increasingly difficult to defend its offshore detention regime now that the boats have stopped. Demands to stop the suffering of the unlucky asylum seekers on Nauru and Manus Island will grow louder and international pressure will mount.</p>
<h2>Legislative changes punish refugees</h2>
<p><a href="http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5346">Amendments</a> to the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/">Migration Act</a>, passed on the last parliamentary sitting day of 2014, have <a href="https://theconversation.com/new-law-gives-morrison-unprecedented-control-over-asylum-seekers-35106">profoundly altered</a> the claims process for asylum seekers who arrived in Australia by boat since 2012.</p>
<p>The amendments removed the Refugee Convention provisions from the Migration Act and incorporated new and more onerous requirements for satisfying the definition of a refugee. If the Department of Immigration rejects a claim under the new regime, asylum seekers who arrived by boat between August 13, 2012, and December 1, 2014, no longer seek review in the Refugee Review Tribunal, but in a new review body, the Immigration Assessment Authority. </p>
<p>Other than in exceptional circumstances, the authority does not hold hearings and is required to review decisions on the papers provided to it from original decisions. Decisions of the authority are likely to be the subject of challenges in the courts on a range of grounds, including the correct interpretation of Australia’s protection obligations, the authority’s jurisdiction and the procedural fairness of the processing regime. </p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/70361/original/image-20150128-22317-oaov7y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/70361/original/image-20150128-22317-oaov7y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=899&fit=crop&dpr=1 600w, https://images.theconversation.com/files/70361/original/image-20150128-22317-oaov7y.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=899&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/70361/original/image-20150128-22317-oaov7y.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=899&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/70361/original/image-20150128-22317-oaov7y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1130&fit=crop&dpr=1 754w, https://images.theconversation.com/files/70361/original/image-20150128-22317-oaov7y.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1130&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/70361/original/image-20150128-22317-oaov7y.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1130&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Palmer United Party will be key in negotiating for any immigration legislation to be passed by the Senate.</span>
<span class="attribution"><span class="source">AAP/Lukas Coch</span></span>
</figcaption>
</figure>
<p>Some of these claims may succeed, but most will fail. When the dust settles, many thousands of asylum seekers who have been living in the community or in immigration detention in Australia will likely be deported to their country of origin. If this occurs, we are likely to hear <a href="https://theconversation.com/australias-folly-returns-afghan-hazaras-to-torture-and-death-32939">more stories</a> of returned refugees being killed by those they attempted to flee, or escaping again in search of protection. </p>
<p>If claimants are successful under the new processing regime, they are eligible for temporary – not permanent – protection visas. The Palmer United Party negotiated for a new temporary protection visa, the five-year <a href="http://www.smh.com.au/federal-politics/political-news/scott-morrison-strikes-deal-with-clive-palmer-to-reintroduce-temporary-protection-visas-20140924-10lpui.html">Safe Haven Enterprise visa</a>, which provides a pathway to a further substantive visa for those who work in designated regional areas for three-and-a-half years during the life of the visa.</p>
<p>However, how this visa will work remains unclear. Where will refugees be able to work? What support will they get to settle in regional areas? Will they require sponsors to work, or will they be free to enter the regional job market unrestricted, alongside working holidaymakers and international students?</p>
<p>Watch in 2015 for stories of the success or otherwise of refugees as workers in regional Australia, and for complaints of their exploitation. </p>
<p>The government shows every indication of maintaining its tough line on asylum seekers in 2015. But now that the boat crisis is over, this may sound less convincing in the face of the continuing trauma of asylum seekers in Australia’s midst.</p>
<hr>
<p><em>Catch up on the rest of The Conversation’s Shaping 2015 series <a href="https://theconversation.com/au/topics/shaping-2015">here</a>.</em></p>
<p><em>Editor’s note: This article originally stated that the Refugee Review Tribunal had been abolished. This is incorrect and the article has been amended.</em></p><img src="https://counter.theconversation.com/content/36351/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alex Reilly is a member of the board of the Refugee Advocacy Service of South Australia, a voluntary service providing free legal and migration advice to asylum seekers.</span></em></p>2014 was the year of triumphant press conferences at which the Abbott government affirmed its determination to “stop the boats” and outlined its success at doing so. However, 2015 is likely to be much…Alex Reilly, Deputy Dean and Director of the Public Law and Policy Research Unit, Adelaide Law School, University of AdelaideLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/365182015-01-21T00:57:25Z2015-01-21T00:57:25ZManus Island protests: let’s hear from refugees as well as the minister<figure><img src="https://images.theconversation.com/files/69576/original/image-20150120-29731-jshtsz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Australians should demand a more representative dialogue on matters of refugee protection, inclusive of asylum seekers' voices.</span> <span class="attribution"><span class="source">AAP/Refugee Action Coalition</span></span></figcaption></figure><p>Australia has long shown disregard for international conventions surrounding refugees. It labels asylum seekers in detention on Manus Island as “transferees”, also frequently referring to those who arrive by boat as “Irregular Maritime Arrivals” and <a href="http://www.theguardian.com/commentisfree/2014/nov/19/scott-morrison-thumbs-his-nose-at-indonesia-and-sets-back-the-only-humane-solution-for-refugees">“queue-jumpers”</a>. </p>
<p>In calling asylum seekers protesting on Manus Island this week <a href="http://www.theage.com.au/federal-politics/political-news/manus-stand-off-halted-as-guards-storm-compound-20150119-12tlqp.html">“aggressive” and “irresponsible”</a>, Immigration Minister Peter Dutton has demonstrated just how brazenly Australia both distances asylum seekers geographically, through offshore policies, and in the minds of the Australian public by controlling the narratives about their behaviour. </p>
<h2>Harsh labels and harsh policies</h2>
<p>Labels are crucial in matters of forced displacement and refugee protection. The <a href="http://www.unhcr.org/pages/49da0e466.html">UN Refugee Convention</a> details at length who is a refugee, their rights and a state’s responsibilities towards them. </p>
<p>Australia has a <a href="http://theconversation.com/new-law-gives-morrison-unprecedented-control-over-asylum-seekers-35106">complex legislative framework</a> setting out its obligations towards asylum seekers. Around the world, refugee lawyers and advocates spend a lot of their time ensuring that the rights of asylum seekers and refugees – as distinct from migrants – are upheld and their protection needs are met. This is not for want of anything better to do.</p>
<p>The first component in ensuring that Australia’s international obligations towards displaced persons are met is the integrity of the systems we have to determine who is, or is not, a refugee or asylum seeker. The second is showing concern for their plight through the careful use of language that we employ in our representations of them.</p>
<p>As has been <a href="http://theconversation.com/manus-island-hunger-strikes-are-a-call-to-australias-conscience-36419">argued by others</a>, asylum seekers protesting on Manus Island are trying to voice their distress and despair. They hope by doing so to invoke our concern and attention. </p>
<p>Closer to home, refugees and settlement workers often fear the consequences of speaking out publicly. It may be a breach of their <a href="http://www.abc.net.au/news/2014-11-29/refugee-code-of-conduct-stressful-asylum-seekers-say/5923700">code of behaviour</a> or the organisation’s contractual obligations with the Department of Immigration and Border Protection, as the <a href="http://www.jrs.org.au/silenced-voices-community-detention-australia/">Jesuit Refugee Service</a> has pointed out. </p>
<p>These concerns are not unfounded. In mid-2014, the Refugee Council of Australia had its federal government funding <a href="http://www.abc.net.au/news/2014-05-30/taxes-not-for-advocacy-scott-morrison-says-after-funding-cut/5488764">cut</a> by the then-immigration minister, Scott Morrison. This was because it was an advocacy group that was perceived to be critical of the government.</p>
<h2>Ignoring international advice</h2>
<p>In other parts of the world, the United Nations High Commissioner for Refugees (UNHCR) and NGOs go to great lengths to showcase the <a href="https://www.youtube.com/playlist?list=PLtPw-Y91GlmVawygNeaQ_3ZxTFyZfkcKf">voices of refugees</a> and to empower them to speak. </p>
<p>The UNHCR recently introduced a crowdsourcing platform, <a href="http://innovation.unhcr.org/unhcr-ideas/">UNHCR Ideas</a>, to generate ideas from refugee communities that could be tested in the field. This reflects a widely accepted paradigm that projects that are participatory and inclusive have the best chance of success.</p>
<p>Going against this practice, journalists are regularly <a href="http://www.smh.com.au/comment/we-need-to-see-manus-island-20140224-33bk1.html">denied access to Manus Island</a> and the voices of asylum seekers are largely absent from debates relevant to them. NGOs sometimes also fall into the familiar “victim trope” when seeking to invoke our sympathy for asylum seekers and refugees. This is despite voluntary guidelines such as the <a href="http://www.ifrc.org/en/publications-and-reports/code-of-conduct/">Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Relief</a>, which stipulates that:</p>
<blockquote>
<p>… in our information, publicity and advertising activities, we NGOs shall recognise disaster victims as dignified human beings, not hopeless objects. </p>
</blockquote>
<p>Two positive examples are <a href="http://www.unhcr.org/pages/49c3646c458.html">World Refugee Day</a>, when the resilience and agency of refugees and asylum seekers is celebrated, and <a href="http://www.refugeeweek.org.au/">Refugee Week</a>, during which the positive contribution made by refugees and former refugees is promoted. </p>
<p>The Australian public deserves to be able to make up its own mind about asylum seekers, rather than being told that protesters are aggressive and irresponsible. One simple way to change this is by providing media access to detention centres and giving settlement workers who want to speak publicly permission to do so. </p>
<p>The Australian government must also re-think its entrenched and often hardline attitudes towards asylum seekers and refugees. As the United Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, <a href="http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15399&LangID=E">said recently</a>:</p>
<blockquote>
<p>… the lack of concern that we see in many countries for the suffering and exploitation of such desperate people is deeply shocking. Indeed perhaps we can even say there is a mean-spiritedness that marks the general attitude in some countries … Rich countries must not become gated communities, their people averting their eyes from the bloodstains in the driveway. </p>
</blockquote>
<p>Perhaps the next time we hear the government vehemently telling Australians what we should think about asylum seekers and refugees, we should ask to hear the other side of the story too. Australians deserve a more inclusive and representative dialogue on matters of refugee protection.</p><img src="https://counter.theconversation.com/content/36518/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Melissa Phillips has previously received funding from the Australia Research Council. She is currently employed by the Danish Refugee Council and is on the Steering Committee of Urban Refugees.</span></em></p>Australia has long shown disregard for international conventions surrounding refugees. It labels asylum seekers in detention on Manus Island as “transferees”, also frequently referring to those who arrive…Melissa Phillips, Honorary Fellow, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/351462014-12-08T00:21:04Z2014-12-08T00:21:04Z‘Fast track’ asylum processing risks fairness for efficiency<figure><img src="https://images.theconversation.com/files/66507/original/image-20141208-20647-6phjqn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Asylum seekers with an existing mental health condition who receive negative outcomes during the application process are particularly vulnerable.</span> <span class="attribution"><span class="source">Barat Ali Batoor</span></span></figcaption></figure><p>After much controversy, the Senate passed the <a href="http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5346">Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014</a> late last week. One aspect of the law – the “fast track assessment” procedure – constitutes a radical shift in the manner in which a large number of asylum seekers’ claims for protection will be processed.</p>
<p>Research has <a href="http://www.psychiatryupdate.com.au/latest-news/new-asylum-seeker-syndrome">demonstrated</a> that long periods waiting for the processing of claims can lead to mental illness. A lack of work rights combined with ongoing uncertainty is also <a href="http://www.ncbi.nlm.nih.gov/pubmed/16255740">associated with</a> deepening mental deterioration. </p>
<p>Asylum seekers in the current backlog have been waiting in limbo for almost two years to have their protection claims assessed, so the opportunity to have their claims heard will be welcome for many. However, the new assessment procedure carries real risks of privileging efficiency at the expense of fairness.</p>
<h2>What is the procedure?</h2>
<p>Fast-track assessments will apply to approximately 30,000 asylum seekers who arrived in Australia by boat between August 2012 and December 2013. The procedure will allow asylum seekers to make an application for protection to the Department of Immigration and Border Protection (DIBP). </p>
<p>Timeframes for the provision and assessment of claims will be short. Applications that are refused will be referred to a newly created Independent Assessment Authority (IAA). IAA reviews will be conducted “on the papers”; only in “exceptional circumstances” will the IAA accept or request new information or interview the applicant.</p>
<p>Some cases will be excluded from an independent merits review altogether. This includes cases where DIBP assesses the claims to be “manifestly unfounded”, where the asylum seeker relied upon a “bogus document” or had access to effective protection in another country.</p>
<h2>Why was it introduced?</h2>
<p>During Senate committee hearings, DIBP stated that without the new assessment procedure, it could take up to seven years to process the backlog. </p>
<p>DIBP <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Asylum_Legacy_Caseload_Bill_2014/%7E/media/Committees/legcon_ctte/migration_maritime/report.pdf">said</a> changes were needed to “deter abuse of the review system through the late presentation of claims that could reasonably have been presented earlier”, and to:</p>
<blockquote>
<p>… deliver the consistent message that it is extremely important to provide sufficient evidence and information to establish protection claims up front.</p>
</blockquote>
<h2>International comparisons</h2>
<p>Several countries use accelerated procedures to deal with asylum claims considered to be “manifestly unfounded” or where the asylum seeker is from one of a list of countries that are generally considered to be safe.</p>
<p>However, Australia has decided to use this procedure for a group that historically the <a href="https://www.immi.gov.au/media/publications/statistics/immigration-update/asylum-trends-aus-2012-13.pdf">statistics show</a> have been found to be refugees. Departmental statistics indicate that over the four years prior to 2013, an average of about 70% of asylum seekers arriving by boat were determined (at first instance) to be refugees. </p>
<p>Also, 93% of those who had their applications reconsidered following independent review were later accepted as refugees.</p>
<p><a href="http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1468&context=dlj">Research</a> on the use of expedited procedures in the US found that it led to an increase in the number of appeals to superior courts. This consequently increased costs and decreased efficiency. Similar <a href="https://www.gov.uk/government/publications/detained-fast-track-processes-timetable-flexibility-instruction">findings</a> have been made in relation to the UK’s Detained Fast Track (DFT) procedure. </p>
<p>The lack of appropriate time to seek and obtain legal assistance recently led the British High Court to <a href="http://detentionaction.org.uk/wordpress/wp-content/uploads/2014/07/Detention-Action-DFT-Full-Judgement.pdf">find</a> the DFT system unlawful because of an “unacceptable risk of unfairness”. After an <a href="http://www.publications.parliament.uk/pa/jt200607/jtselect/jtrights/81/8102.htm">investigation</a> into the system, the UK parliament’s Joint Committee on Human Rights found that:</p>
<blockquote>
<p>It is self-evident that some asylum seekers – most obviously torture victims and those who have been sexually abused – are unlikely to reveal the full extent of experiences to the authorities in such a short time period, and that this problem will be exacerbated where they are not able to access legal advice and representation and the support of organisations able to help them come to terms with their experiences.</p>
</blockquote>
<p><a href="http://www.minister.immi.gov.au/media/sm/2014/sm213047.htm">Government policy</a> in Australia is that no government-funded legal advice will be available to the majority of the legacy caseload. Funded legal assistance to prepare claims will be available only to those considered the “most vulnerable”. </p>
<h2>An integrated mental health and legal response</h2>
<p>Suicide is <a href="https://www.mja.com.au/journal/2013/199/11/suicide-and-self-harm-prevention-people-immigration-detention">known</a> to be the leading cause of premature death for asylum seekers in Australia. The forthcoming process will predictably be stressful, specifically in terms of mental distress, despair and deterioration. </p>
<p>People working closely with asylum seekers will encounter stories of personal sadness and uncertainty. Self-harm and suicidal behaviour among asylum seekers are likely to be associated with previous trauma, having an uncertain future, fear of return, and feelings of being under intense pressure and scrutiny.</p>
<p>Combining mental health needs and legal support is an increasing feature of a co-ordinated and much-needed response to assist asylum seekers in the community. The denial of legal assistance will not meet the desired objective for asylum seekers to fully articulate their claims at the earliest stage of the process. </p>
<p>For this reason, it is critical that the government fund adequate legal and mental health support during the refugee status determination process. Individual mental health assistance can be provided in conjunction with, during and after legal consultation. </p>
<p>Asylum seekers with an existing mental health condition who receive negative outcomes during the application process are particularly vulnerable. All asylum seekers should have mental health support available when decisions are handed down or shortly afterwards.</p>
<p>Australia is <a href="http://www.refworld.org/docid/3b36f2fca.html">obligated</a> to adopt a fair and effective system for determining who is in need of protection. The problem is whether it is possible for accelerated procedures to be both fair and efficient.</p><img src="https://counter.theconversation.com/content/35146/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mary Anne Kenny has received funding from the Australian Research Council. She receives sitting fees from the Department of Immigration and Border Protection. </span></em></p><p class="fine-print"><em><span>Nicholas Procter has received grant funding from the NHMRC, ARC, Department of Health and Department of Immigration and Border Protection. He receives sitting fees from the Department of Immigration and Border Protection.</span></em></p>After much controversy, the Senate passed the Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 late last week. One aspect of the law – the “fast track assessment…Mary Anne Kenny, Associate Professor, Murdoch UniversityNicholas Procter, Professor and Chair: Mental Health Nursing, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/312742014-09-04T01:13:42Z2014-09-04T01:13:42ZAsylum seeker’s ‘brain death’ shows failure of care and of democracy<p>The news that Hamid Kehazaei, a 24-year-old Iranian asylum seeker detained on Manus Island, has been <a href="http://www.abc.net.au/news/2014-09-03/asylum-seeker-hamid-kehazaei-brain-dead-in-brisbane-hospital/5716292">diagnosed as brain dead</a> following his transfer to the Mater Hospital in Brisbane is a tragedy. That it is a tragedy for this young man and his family is unquestionable – but the extent of this tragedy may be much more pervasive than we realise.</p>
<p>If the emerging details of his case are correct, Kehazaei developed septicaemia as a complication of cellulitis (skin and soft-tissue infection) arising from a cut in his foot. This, in itself, is disturbing. </p>
<p>Severe infection can result in brain death – either from infection of the brain itself (meningitis, encephalitis or brain abscess), or from brain injury due to a lack of oxygen resulting from cardiac arrest (as appears to be the case here), or from reduced blood supply to the brain. Yet it is very uncommon, especially in a young, previously healthy man.</p>
<p>Such a case could occur in Australia and <a href="http://www.ncbi.nlm.nih.gov/pubmed/21309994">has been described</a> in 2012 in young Indigenous adults in Central Australia. Nevertheless, severe sepsis resulting from a foot infection is preventable. And a case like this occurring in an Australian national would raise serious questions about the appropriateness of the antibiotics used and the timeliness of care.</p>
<p>Most cases of brain death result from traumatic brain injury, stroke or lack of oxygen to the brain following asphyxia, near-drowning, or prolonged cardiopulmonary resuscitation. </p>
<p>What happened to Hamid Kehazaei <a href="http://www.abc.net.au/news/2014-09-03/asylum-seeker-hamid-kehazaei-brain-dead-in-brisbane-hospital/5716292">raises concerns</a> about the adequacy of care provided to him during initial treatment, including wound care and antibiotics, and how soon he was transferred to expert medical care, first to Port Moresby and subsequently to Brisbane.</p>
<p>If this young man became ill and had his brain die while seeking asylum in Australia and while in our care, then we must examine the details of his case and ask ourselves not only whether it was preventable but whether our policies and processes actually contributed to his death.</p>
<p>But how can we even begin to ask these types of questions when we know so little about the circumstances in which he became ill, and his subsequent care?</p>
<p>Protestations that this is due to the necessity of respecting privacy and confidentiality, ethical principles that are core to the health professional-patient relationship, are to some extent correct. But they also obscure important features of this case.</p>
<p>The government is simply wrong to claim that this issue should not be “politicised”. What is ultimately at issue here is the way in which domestic politics and border policy impose norms (rules of behaviour) that are antithetical to medicine and health care and, fundamentally, to democracy. </p>
<p>Medicine, like biomedical science, requires transparency and honesty to be clinically and ethically sound. Peer review, clinical audit, root-cause analysis, family conferences, conflict-resolution strategies, case consultation, multidisciplinary team meetings, mortality and morbidity meetings, open disclosure policies: all rest on the importance of transparency and respect. </p>
<p>In contrast, we know very little about the people who seek asylum in Australia. Everything is secret – their arrival, their situation, their medical need, their illnesses, and their death.</p>
<p>This requirement for secrecy has largely overwhelmed efforts by many good people – legislators, human rights lawyers, refugee advocates, health workers, politicians and ordinary citizens – to shine a light on what is happening to people in detention.</p>
<p>The Immigration Health Advisory Group has been disbanded, <a href="http://www.immi.gov.au/About/foi/Documents/FA131200545.pdf">restricting the degree</a> to which the health professions can critique the care available to asylum seekers. And even those tasked with providing medical care to asylum-seekers <a href="http://www.abc.net.au/news/2014-08-05/psychiatrist-says-treatment-of-asylum-seekers-akin-to-torture/5650992">struggle to advocate</a> for the people under their care.</p>
<p>Policies restrict the degree to which they can care for their patients or refer them for specialist care not available in the detention centres. Contracts bind them to secrecy and many, often shocked by what they have seen, are prevented from speaking out by legal threats and intimidation long after they’ve returned to the mainland.</p>
<p>The language of “border control” has been used to excuse political secrecy. But such secrecy is what we usually associate with autocratic governments and is the antithesis of democratic ideals.</p>
<p>What this case illustrates, yet again, is that the asylum seekers detained on Manus and Christmas Islands and Nauru have been excised not only from the laws that determine access to Australia but from the care we should provide any vulnerable person for whom we are responsible. And from the ethical principles upon which medicine and our health system are based.</p>
<p>If we care about these people, and if we truly believe in the humane values that ground medicine and the moral principles that ground democracy, then we need to do two things. The first is to hold a truly independent inquiry into the care of people in detention. And the second is to end off-shore processing.</p><img src="https://counter.theconversation.com/content/31274/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Isaacs is head of the Health Assessment for Refugee Kids (HARK) clinic at the Children's Hospital at Westmead.
</span></em></p><p class="fine-print"><em><span>Ian Kerridge 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 news that Hamid Kehazaei, a 24-year-old Iranian asylum seeker detained on Manus Island, has been diagnosed as brain dead following his transfer to the Mater Hospital in Brisbane is a tragedy. That…Ian Kerridge, Associate Professor in Bioethics & Director, Centre for Values and Ethics and the Law in Medicine, University of SydneyDavid Isaacs, Professor of Pediatric Infectious Diseases, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/300792014-08-04T04:21:14Z2014-08-04T04:21:14Z‘Here the word future is not a word’: life as a refugee on Nauru<p>As the government secretly flew 157 asylum seekers seized at sea <a href="https://theconversation.com/tamils-trained-for-lifeboat-return-to-india-lawyers-30074">to Nauru overnight on Friday</a>, 50 men recognised as refugees and given “temporary protection” to <a href="http://www.theaustralian.com.au/national-affairs/policy/cambodia-deal-near-as-first-refugees-resettled-in-nauru/story-fn9hm1gu-1226927151816">settle on Nauru</a> have <a href="http://www.scribd.com/doc/235771504/Statement-From-the-More-Then-Fifty-Nauru-Refugees">issued a statement</a> detailing the unliveable conditions in which they have been placed. They write:</p>
<blockquote>
<p>Here the future is not a word. It does not exist.</p>
</blockquote>
<p>The men describe serious physical deprivation – insufficient food, lack of access to clean water, insanitary and vermin-infested conditions – combined with intense distress and isolation:</p>
<blockquote>
<p>We are living in a camp in the jungle. This is where they ‘resettled’ us. This is no place to live. If we are refugees why are we not living in community? We have no neighbours here. Our ‘neighbours’, our ‘relatives’ are mosquitoes and flies and dogs. </p>
</blockquote>
<p>The statement outlines a scene of abandonment and trauma at the appropriately named Fly Camp where they live:</p>
<blockquote>
<p>We want to tell you that we are treated here like animals. In a zoo there is different animals from different countries and people go to look at them. Nauru is a zoo. We are just different animals from different countries … People come to visit here and then ask questions then they note it down. But we know from experience that they are doing just paperwork and nothing will happen. They just come to look at us.</p>
</blockquote>
<p>Despite having been certified as genuine refugees, the men have been reduced to lives of destitution. They describe the camp as even worse than Australia’s <a href="http://www.immi.gov.au/About/Pages/detention/immigration-detention-facilities.aspx">immigration detention centres</a>:</p>
<blockquote>
<p>In the IDC … was not good but now, because we have so little money, we cannot have any medical treatment. We cannot buy clean water, clothes, toothpaste, shampoo – the basic needs of life, with so little money.</p>
</blockquote>
<p>They lack clean drinking water and proper sanitation facilities:</p>
<blockquote>
<p>Drinking water is a basic need for human life. Here the water to drink is not clean. Australia sends good water for the government workers here but tells us to boil bad water. This water makes us sick. We have gastro and we have skin problems.</p>
</blockquote>
<p>In the squalor of Camp Fly, the accumulation of septic waste and rubbish breeds vermin and disease:</p>
<blockquote>
<p>No-one is responsible for rubbish here. Our rubbish we collect and then we throw into the jungle. Flies and insects cover this rubbish and we know that this is not healthy. Flies are everywhere. No-one is responsible for septic waste here. What are we to do?</p>
</blockquote>
<h2>Treated as less than human</h2>
<p>At the heart of the refugees’ statement is a haunting question:</p>
<blockquote>
<p>Why are we treated as less than human? They treat us like we are animal.</p>
</blockquote>
<p>Australia’s certified refugees have been left to rot, unseen and unheard, in an isolated cesspit somewhere in Nauru’s jungle.</p>
<p>The intolerable conditions of Fly Camp are compounded by fear. Again and again the men express their apprehension in their isolated and unprotected condition. Their fears are exacerbated by misunderstandings and misrepresentations between them and Nauru locals:</p>
<blockquote>
<p>When we had meeting … one of the Nauru government officers was here … We told them, ‘If someone will not listen to us then we will do <a href="http://www.theguardian.com/world/2014/jul/30/nauru-asylum-seekers-begin-peaceful-protests-as-discontent-grows">PEACEFUL PROTEST</a> in front of parliament house.’ We then said: ‘If still no-one will listen to us then we will do some thing wrong to ourselves’ – we will not do anything wrong to the community and we will not do anything wrong to the accommodation.</p>
<p>That Nauru government officer gave message to his government that the refugees are wanting to do something wrong in NAURU – they want to burn Parliament house. That is NOT what we were saying but now, because of that negative message, every Nauru people are abusing us. We are scared.</p>
</blockquote>
<h2>No Advantage: institutionalised cruelty</h2>
<p>Together with the current government’s Operation Sovereign Borders policy, the <a href="https://theconversation.com/houston-report-hard-heads-deliver-1-billion-asylum-seeker-plan-8804">doctrine of No Advantage</a> provides the core principles that underpin the existence of Fly Camp. </p>
<p>The “No Advantage” policy was rationalised through the humanitarian pretext of prevention: to deter asylum seekers from risking their lives at sea, asylum seekers who had already made it to Australian territorial waters would be dispatched to the deliberately harsh conditions of offshore Pacific camps. Refugee rights advocate Julian Burnside pithily <a href="http://www.julianburnside.com.au/Foreword.htm">pointed out</a> the absurdity of this logic of deterrence:</p>
<blockquote>
<p>… once they have survived the perils of the sea we take them by force to Nauru in order to save them from the risk of drowning. </p>
</blockquote>
<p><a href="http://www.smh.com.au/national/mark-isaacs-reveals-the-secrets-of-the-nauru-detention-centre-20140314-34rur.html">Marc Isaacs</a>, a young Australian who worked with the <a href="http://hms.salvos.org.au/refugees-asylum-seekers-factsheet/">Salvation Army on Nauru</a> for over a year, describes the No Advantage Policy in his book The Undesirables:</p>
<blockquote>
<p>The intention was clear … Take them to a distant island, lock them away, punish them, forget about them. Criminals were given a sentence to serve; these men were not even given that.</p>
</blockquote>
<p>Isaacs clearly identifies that the “purposely underprepared” conditions and squalor of the detention centres on Nauru were designed to induce hopelessness and despair in the arrivals: </p>
<blockquote>
<p>Despite the long and arduous forms of their escape from murderous and war-torn countries… detention marks the longest and most treacherous part of their flight for freedom. There were no bombs in Nauru, no guns, no indiscriminate murders. Just waiting, boredom, insomnia, self-harm, suicide attempts, uncertainty … second-guessing, yearning and fear, fear, fear. Their enemies were themselves, their own minds. </p>
</blockquote>
<p>Although ostensibly aimed at saving asylum seekers from drowning at sea, it is impossible not to see the regime of transportation to Pacific holding camps as one that deliberately places refugee lives in harm’s way. Whereas people smugglers have no interest in intentionally harming the passengers they ferry to Australia, the state’s trafficking of refugees across borders to detain them in Pacific camps aims to cause them the greatest possible distress, and knowingly exposes them to higher probabilities of risk, violence, abuse and trauma.</p>
<p>Rather than “No Advantage”, the government’s own business model relies on its capacity to inflict maximum disadvantage.</p>
<p>This principle, it is clear, is also extended to those determined to be in genuine need of protection through the process agreed between Australia and Nauru. The legislated violence and trauma that is being inflicted on Australia’s refugees in Nauru’s Camp Fly is exacting its toll. The men write of the physical violence that they have escaped and of the psychological violence that they are enduring:</p>
<blockquote>
<p>In our country the Taliban will come onto the bus and they will slash our throat and finish your life. It will take maybe 10 or 15 minutes for us to die. But the English-Australian men are killing us by pain, taking our soul and our life slowly. This is mental torture and soon all of us will be mad. This is too much pain. We need freedom from this torture.</p>
</blockquote>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/55607/original/msn2pt6r-1407118802.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/55607/original/msn2pt6r-1407118802.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/55607/original/msn2pt6r-1407118802.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=850&fit=crop&dpr=1 600w, https://images.theconversation.com/files/55607/original/msn2pt6r-1407118802.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=850&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/55607/original/msn2pt6r-1407118802.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=850&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/55607/original/msn2pt6r-1407118802.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1068&fit=crop&dpr=1 754w, https://images.theconversation.com/files/55607/original/msn2pt6r-1407118802.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1068&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/55607/original/msn2pt6r-1407118802.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1068&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Daily Telegraph front page, August 2.</span>
<span class="attribution"><span class="source">Daily Telegraph</span></span>
</figcaption>
</figure>
<p>There is no equivocation in this statement: Australia’s policies are inflicting pain and trauma on the very vulnerable and traumatised people it has a duty to care for and protect. The mental torture that these confirmed refugees name and endure, the isolation and lack of adequate facilities in which they are compelled to “live” – all of this is killing them slowly.</p>
<p>On the day that a fresh batch of human cargo, showing clear signs of manhandling and trauma, was delivered to Nauru, the Daily Telegraph offered the 157 asylum seekers, a number of them already recognised refugees, a truly Australian welcome. Its headline read:</p>
<blockquote>
<p>G’Day Nauru: Tamil boat people say hello to their new home.</p>
</blockquote>
<p>What future awaits these new targets of our pitiless No Advantage system? </p>
<hr>
<p><em>The authors were informed on Tuesday night that the refugees of Fly Camp have now been provided with bottled water to drink and that preparations are being made for more toilets to be installed. “We cannot speculate on the reasons, but we are very happy to hear of these small but important improvements to the quality of their lives.”</em></p><img src="https://counter.theconversation.com/content/30079/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Suvendrini Perera receives funding from the ARC. She is a member of Writing Through Fences, an online writing group primarily made up of writers in immigration detention.</span></em></p><p class="fine-print"><em><span>Joseph Pugliese 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>As the government secretly flew 157 asylum seekers seized at sea to Nauru overnight on Friday, 50 men recognised as refugees and given “temporary protection” to settle on Nauru have issued a statement…Suvendrini Perera, Professor of Cultural Analysis in the School of Media Culture & Creative Arts and Deputy Director of the Australia-Asia-Pacific Institute, Curtin UniversityJoseph Pugliese, Professor of Cultural Studies and Research Director of the Department of Media, Music, Communication and Cultural Studies, Macquarie UniversityLicensed as Creative Commons – attribution, no derivatives.