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CEO: Time to hasten slowly

Cite as: September 2012 86 (09) LIJ, p.06

By Michael Brett Young, LIV CEO

Asylum seeker policy must be based on respect for human dignity.

As this edition of the LIJ went to print, the “Report of the Expert Panel on Asylum Seekers”, the so-called “circuit breaker”heralded as the only solution to immediately save lives, was released. The LIV was disappointed that its key recommendation was for the offshore processing of asylum seekers.

Under the proposal, asylum seekers who get on boats to Australia will again be intercepted and taken to Nauru or PNG for processing, under the guise that there should be “no advantage” from attempting to circumvent ‘regular’ migration options.

Anybody who heard the ABC’s broadcast of a desperate communication between a journalist and a panic-stricken refugee on a crippled boat off Bali in July would likely have been troubled by what they heard. I certainly was. The boat, with 60 men, women and children on board, was taking on water, the refugee said. The pump was broken and they could stay afloat for maybe one hour.

The group was rescued by Indonesian authorities but the broadcast provided a snapshot of the grim reality of asylum seekers coming to Australia by boat and reinforced the urgent need for a solution to this problem.

How to process asylum seekers in Australia is one of the thorniest issues in federal politics.

In June, the parliamentary deadlock on offshore processing prompted Prime Minister Julia Gillard to establish an expert panel on asylum seekers, led by former defence chief Angus Houston.

The government-appointed panel was set up to explore options to stop asylum seekers coming to Australia by boat. Between January 1 and July 30 this year, a record 6765 people arrived in Australia this way.

The panel invited submissions from interested organisations by July 19. Consistent with our refugee/asylum seeker policy of October 2005, the LIV made a submission (http://tinyurl.com/99kco9u) to the panel and made a substantial contribution to the Law Council of Australia’s (LCA) submission.

We agree with the LCA that any policy option or legislative option recommended by the panel should, at a minimum:

  • comply with international human rights standards;
  • comply with relevant High Court decisions, including last year’s landmark M70 case regarding offshore processing;
  • integrate with the Bali process regional cooperation framework;
  • align with the government’s new directions in detention policy;
  • address key recommendations of recent parliamentary inquiries;
  • include specific legal safeguards and protections;
  • include minimum standards for immigration detention facilities that adhere to human rights standards; and
  • include provision of adequate legal assistance.

We believe that adherence to these minimum requirements is imperative to ensure that Australia meets its international and domestic legal obligations and that all approaches have a sound legal and policy basis.

Sadly the expert panel’s recommendations fall short of meeting these standards. An effective and sustainable approach to asylum seekers must be based on respect for human dignity and not on political expediency. Any policy options which seek to dehumanise asylum seekers or which effectively punish individual asylum seekers with the aim of general deterrence must be rejected.

The expert panel adopts some of the LIV suggested approaches to an effective and sustainable approach to asylum seekers, including short to medium term:

  • increasing resettlement numbers under the offshore refugee and humanitarian program and working closely with UNHCR to provide resettlement in Australia for people registered with the United Nations High Commissioner for Refugees in so-called transit countries in the region (including Indonesia and Malaysia); and
  • reforming the family migration program to allow refugees living in Australia to sponsor their family members as migrants, and release the burden from the offshore humanitarian program.

However, the expert panel (http://tinyurl.com/bvqytsb) preferred offshore processing to our proposal for providing access to temporary visas to travel to Australia, to enable persons with protection claims to travel to, enter and remain in Australia for the limited purpose of making protection claims. We also suggested decoupling the link between the offshore refugee and humanitarian program and onshore protection programs. The expert panel instead suggests reviewing this link in two years.

Long term, we urged the government towards:

  • a comprehensive regional protection framework that is a multilateral protection regime that ensures the processing of asylum claims meets international standards, that asylum seekers can live in dignity while their claims are determined and that timely resettlement options are available.

The LIV has long been a strong advocate for refugees and asylum seekers and has made numerous submissions to government and parliamentary inquiries, sometimes jointly with the LCA. LIV advocacy is informed by input from the Refugee Law Reform Committee. It consists of practitioners who work regularly with refugees and asylum seekers or in the field of migration law generally, whether in a paid or voluntary capacity, and who have a shared interest in promoting and protecting the rights of refugees in accordance with the rule of law. LIV advocacy is informed by our members’ experience with migration law in Australia.

We urge the government to hasten slowly with these reforms. Most importantly, they must not implement offshore processing without implementing other positive recommendations from the expert panel, including a welcome increase to the humanitarian program to 20,000. Without an increase, there is simply no alternative “regular” migration option for people fleeing persecution in our region.

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