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It’s Deprivation of Liberty Whatever the Court May Say

The asylum seeker issue is never far from the headlines. And that has proven to be the case so early in the new year. Parliament has not even returned, and the full complement of political players have not resumed regular hostilities, yet refugee policy has again been raised in the media. On Friday we had Malcolm Fraser chastising both the government and the opposition over their treatment and demonisation of asylum seekers in an interview. And today we learned that the political opposition in Papua New Guinea launched a legal challenge on Friday to the immigration detention facility recently re-opened by the Australian Government on Manus Island.

There have been multiple challenges to elements of asylum seeker policy and practice over the last few years in Australia. But this is the first challenge launched overseas. The appeal was launched by Opposition Leader Belden Namah in the National Court and seeks to have the Australian immigration facility overturned on the grounds that it is unconstitutional.

In bringing this case, Mr Namah wants the imprisonment of asylum seekers on the island to permanently cease. While the case is being heard the leader of the opposition has also sought a temporary cessation of the transfer of asylum seekers to the Manus Island detention centre.

The PNG Opposition Leader has spoken out about the immigration facility before. He has made the point that asylum seekers have not broken any laws and as such, should not be imprisoned in the Manus Island complex.  And so it follows that Mr Namah has brought this challenge because he believes the processing centre deprives asylum seekers of their personal liberties.

On this point, regardless of the legal outcome in the context of the legal system in Papua New Guinea, he is absolutely correct. Being detained and imprisoned for something that is not a criminal offence does deprive asylum seekers of their liberty. Such an act of unwarranted cruelty is in no way justifiable, especially when used as a political weapon by government.

Whether or not the challenge in a legal sense is successful is a completely different story and frankly irrelevant. Asylum seekers have been sent to Manus Island before, under the former Howard Government. This was not subject to a legal challenge from anyone in PNG  so there is nothing to compare the present situation to.

And opinions on the merits of the case appear divided, though it must be noted that the probability of success appears more than even, with the Constitution of Papua New Guinea having a list of rights enshrined within it.

The government of Papua New Guinea has however said that the centre is being run within the laws of the country and that of international treaties. The former might be correct in terms of the asylum seeker issue and it may not be, but the latter most certainly is not.

But we know of course that the debate over the detention of asylum seekers involves more than just the deprivation of liberty and the breach of international law.

Detaining asylum seekers can both exacerbate pre-existing mental illnesses and create new ones. Why would we want to be known to endorse a practice which results in diminishing the welfare of already vulnerable people?

Unfortunately there is an answer to that question and it is a disgraceful one: fear. For some reason there is an underlying fear of difference for which some trace the genesis back to the White Australia Policy. With the right checks and balances undertaken in a sensible manner by authorities, we have nothing to fear from people trying to seek asylum in Australia.

There simply is no valid reason for Australia to continue to embark upon such a barbaric course of action in trying to tackle a policy concern which, despite that barbarity, is still and will continue to be an issue.

A date has not yet been set for the hearing of this case. But we do not need a court case to tell us what we already know, and that is that people being held in immigration detention are being deprived of their liberty, whatever the courts may say.

The Asylum Seeker Issue and Small Silver Linings?

It’s a rare day in the Australian political discourse when asylum seekers in one way or another are not mentioned. Sometimes it’s to do with where or how to detain them or whether they should actually be detained in the first place. Sometimes it’s about whether the policy of the day is said to be “working”. Most of the time, unfortunately, the discussion is not about how locking them up is cruel and effectively criminalises seeking asylum which, newsflash, is not a crime.

Asylum seekers are again in detention on offshore locations. Nauru was re-established a matter of weeks ago and Manus Island in Papua New Guinea has just taken its first detainees, nineteen of them. The expert panel headed by former Chief of the Australian Defence Force saw to that, effectively making offshore processing the only option.

Over 7,500 asylum seekers have arrived in Australia since the government agreed to implement the recommendations of the Houston panel back in August. The immigration detention system is under huge stress and that includes both the domestic facilities and the offshore centres on Nauru and in Papua New Guinea.

Domestically, the government will re-open the Pontville immigration detention facility in Tasmania to try and cope with the influx of asylum seekers.

In this lies the first inkling of the smallest of silver linings. More asylum seekers than expected will be processed onshore and less out of sight, out of mind than if increasing offshore processing was the only way to go. It is always a lot easier to get access to information about issues facing asylum seekers onshore than it is for those on Nauru and Manus Island, so far away from Australia.

However, that is as far as the positive goes in relation to onshore processing of refugee claims. It is still cruel and degrading to lock up asylum seekers, no matter where they are.

They will and have harmed themselves both onshore and offshore. Trauma does not discriminate between Australian and overseas processing centres. All immigration detention locations are hotbeds for either creating or accelerating mental health issues that are costly to both diagnose and treat.

The second positive out of the massive numbers of people seeking asylum is that it has now led to the Gillard Government, through Immigration Minister Chris Bowen, announcing that some asylum seekers will be moved into the community for processing.

This is a big win for a small number of asylum seekers. They will enjoy what most refugee advocates have been calling for and that is relative freedom.

Community detention means less prospect of mental health issues as a result of being locked up for a crime that does not exist, though of course, many may already, through what they have been through, have trauma based disorders.

However, the plus side is that any pre-existing conditions will not be exacerbated by cruelty, nor will new mental health issues be created for those being processed in the general community.

Who knows, if processing the claims of asylum seekers in the community works well it might actually be expanded, but do not hold your breath. The only likely reason for either side of politics increasing the use of community detention is not because it will work well and be much safer to the health of asylum seekers, but because there are simply no more places to put asylum seekers behind bars.

Many might also say that there’s a silver lining in the failure of the politics of being cruel to be kind and that can only be a good thing. The trouble is, both sides of politics will be too pig-headed to realise that and change their ways on this issue.

Perhaps now our politicians might realise that there is a lot more to asylum seeker policy than domestic actions.

The scenario is too difficult to ever resolve fully, but we really need to try. To try requires stronger regional and international co-operation. Unfortunately, that too will be lost on many politicians.

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