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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.

A Mandatory Minimum Prison Sentence and Other Asylum Seeker Policies

Asylum seekers and refugees are never far from the headlines. Indeed from time to time stories involving them are among the most prominent in the news cycle. In recent times, boat arrivals of people seeking asylum have been more than weekly. The debate about what to do about the perilous journey, from Indonesia, Malaysia and Sri Lanka has been up there with the most politicised and most discussed issues of this 43rd parliament.

We have a new policy, a return to most aspects of the Pacific Solution that the Gillard Government continues to work towards implementing. This calls for offshore processing on Nauru and Manus Island as happened under the Howard Government.

The Gillard Government has or is working toward implementing all of the recommendations of the expert panel on asylum seekers which was chaired by former Chief of the Australian Defence Force, Angus Houston. However, the Coalition want more.

The Opposition, through leader Tony Abbott and Shadow Minister for Immigration Scott Morrison have continued to call for the reintroduction of Temporary Protection Visas  (TPV’s). The Coalition have also called for a return to that policy that Indonesia do not like and will never allow to happen- turning back asylum seeker boats toward Indonesia.

In the case of TPV’s, the Labor Party, as part of the recommendations from the Houston panel are, in effect, implementing an iteration of the Howard Government measure which will cut out family reunion.

But of course, and rightly so, the ALP Government is against turning back the boats This is the case, one, because the ADF sees it as no longer feasible or safe and two, because Indonesia would voice their anger and discontent at our contempt for our regional neighbour.

But it is the evolution of the asylum seeker policy of the Tony Abbott led Opposition, apart from the already announced measures, that will add to the poor treatment of people seeking asylum in Australia who arrive by boat.

Last Friday the Opposition Leader announced an effective minimum prison sentence for the “offence” of seeking asylum, seeking refuge from the fear of, or from actual persecution. The no advantage test, part too of the recommendations of the expert panel, has so far not had a time in offshore detention applied to it. But Tony Abbott and the Liberal Party think it should be no less than 5 years. In the legal fraternity this would be termed a mandatory minimum sentencing provision.

Of course, since mandatory detention was introduced in the early 1990’s, we have had what amounts to a term in prison. At first, a time limit of less than a year was implemented by the Keating Government, but that was removed in favour of an indefinite stay. In effect, the indefinite nature of asylum detention will continue under a Liberal Government with a 5 year minimum stay. The time served would almost certainly be longer.

In further worrying comments, the Opposition also appeared to question the efficacy of a regional solution, saying that too much time was spent on discussing the problem in the region and not enough on tough deterrence measures.

Also of concern in the comments made at the end of last week was what appeared to be utter contempt for the work of the UNHCR, the United Nations’ asylum seeker and refugee organisation. Australia has long appeared to feel this way towards the UN about asylum seekers and refugees. However, that would seemingly accelerate under an Abbott Government.

The Coalition is obviously moving towards an aim of being the most punitive in Australia’s history toward asylum seekers and refugees. At the moment that is just rhetoric, but there is a strong chance that the strong words will become punishing deeds in government, also a strong possibility.

Far from just showing a desire to put forward the strictest regime for asylum seekers, the Abbott-led Opposition appear hell-bent on isolating Australia further from the way the region and the international community should deal with the asylum seeker question.

All this punishment and pain for what gain? Seeking asylum is not a crime, thought it appears there is a wish that it was. Either way, asylum seekers are going to be locked away for at least 5 years under a Coalition Government.

Question Time Ahead of Time

Just as quickly as federal parliament rose, so it has come by just as fast. Our federal MP’s will return to Canberra this week after a brief break from the federal capital based hostilities, read for another parliamentary sitting week. Much has happened during the last few weeks in federal politics. In the last couple of weeks we’ve had a major new dental plan announced, the Gillard Government wanting to proceed with the Gonski reforms but not without COAG negotiations and of course the ever-present asylum seeker and carbon price debates, with the floor price now gone on the latter. Sadly too, over the weekend, the Prime Minister lost her father and won’t be present while her family grieves.

In light of the tragic passing of Prime Minister Gillard’s father, hopefully, in her absence we can expect to see a more subdued parliament that more than likely will pause briefly to reflect on the passing of John Gillard. Mr Gillard migrated to Australia with his wife and daughter whom he saw become Prime Minister of her adopted country.

One question that does remain, but will probably be answered in the negative, is: will the Tony Abbott led Opposition heed the words of their former leader, Malcolm Turnbull and diversify their Question Time strategy, becoming more subdued and asking questions of the government in a wider array of policy areas than in recent times.

The Opposition will more than likely stick to familiar territory, the carbon price, Minerals Resource Rent Tax and perhaps asylum seekers from time to time. Of late too, the Coalition has asked questions of the Treasurer, Wayne Swan about budget forecasts and priorities given new spending commitments like the dental health changes announced, all $4 billion worth, as well as reforming education which will also cost in the billions of dollars.

It might be reasonable to expect maybe a question or two on education, but that will more than likely be in the prism of how will the government fund it and/or work with the states to achieve the implementation of such a big reform.

The ALP Government as has become their practice particularly this year, will again use the Dorothy Dixer to canvass a wider variety of policy areas than the Coalition. So far this has included the carbon price, infrastructure, health, families, community services, disability reform and education in particular.

It is likely that both health and education will be a major focus of the questions that government back-benchers ask of their ministerial colleagues in light of the dental and education reforms announced over the past weeks.

It is also a distinct possibility that the Immigration Minister will be asked to update the parliament on the progress towards re-opening the immigration facilities on Nauru and Manus Island.

Question Time, as always begins from 2pm and can be seen live on your television or on the radio. Let’s hope its a more respectable week of parliament ahead.

 

Question Time Ahead of Time

The first week back in the federal parliament has been and gone. The week started off with a bang with the expert panel on asylum seekers headed by former Australian Defence Force declaring that a variation of the Coalition’s former Pacific Solution, which is also the Coalition’s current policy, being deemed the best way forward in dealing with boat arrivals. This set the scene for the early part of last week  being dominated by attacks on the government over the issue and was all about the Opposition scoring some political points on this difficult and complex issue.

After a couple of days of political posturing and games over asylum seekers, the debated returned to the main-game in politics since the August 2012 election, debate over the carbon tax and there it stayed.

It’s likely, with the asylum seeker issue now muted politically, that debate will stay with and over the carbon price introduced by the Gillard Government which commenced on July the 1st.

The Opposition will continue to try and paint price rises, in particular power prices, as in large part down to the price on carbon which has been in operation for a matter of weeks. The Tony Abbott led Coalition will also likely during the week direct their questioning to industry specific areas and to the Treasury modelling done in the lead-up to the beginning of the policy. It is also entirely within the realms of possibility, in fact alm0st certain, that as has been done time after time, the Opposition will ask the Prime Minister to apologise for breaking her pre-2010 election promise.

It is possible that the asylum seeker debate will result in at least some questions during Question Time this week with the Coalition indicating that they would have liked the government to go further and reinstate Temporary Protection Visas (TPV’s) and begin towing boats back to Indonesia.

The government will, after having spent today talking about the Gonski Review and school funding, likely spend the bulk of the hour and ten minutes of Question Time with backbenchers asking questions of the Prime Minister and Education Minister on education reform.

The ALP Government, through their usage of the Dorothy Dixer will probably, in some small part, continue to sell the message of carbon tax compensation that they have been trying to prosecute. This message appears to be cutting through to the public with a big swing in the perception of the carbon price in the community.

Another policy area that the Labor Party may choose to highlight is the National Disability Insurance Scheme progress, particularly in light of recent machinations involving New South Wales and Victoria.

The only uncertainty of the week is just how well behaved our MP’s and Senators will be in parliament this week. Will they be loud and bickering with each other more than usual? Or will they act with a little more restraint than in recent times? I

f last week is any indication then there will be some improvement in the level of childishness that has infected our parliament. The issues that will be at play this week are not exactly new so our parliamentarians will just be going through the motions, but as always there will be at least one or two who find themselves on the wrong end of Standing Order 94a.

Oh, and then there’s also that ever-present possibility of a motion to suspend standing orders that we’ve sadly become accustomed to as a regular function of Question Time during this 43rd parliament.

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