Tuesday, November 08, 2011


Asylum seeker Scrabble

Kerry Murphy.

November 07, 2011

Eureka Street

Last week there were three significant events affecting refugees including, tragically, more deaths.

Yet another detainee killed himself after a prolonged period in detention and while awaiting a security check. It has never been satisfactorily explained why these checks take so long. For more than 15 years, mental health professionals have been stating that prolonged detention can cause serious damage to a person's mental health. Yet the mandatory detention policy remains.

The second event was the passing of the Deterring People Smuggling Bill. The law ensures that a person convicted under people smuggling offences introduced in 1999 will not be able to claim that they did not commit an offence if the people they transported were later found to be refugees. The law was introduced into Parliament and passed within a day to defeat ongoing court proceedings.

Then there were more deaths at sea when another unseaworthy boat sank. The tragedy refuelled the debate about whether a Nauru or a Malaysia based 'solution' would more effectively 'stop the boats'.

The Government and Opposition will tighten the system when challenged, but refuse to accept that the flawed system of mandatory detention is in need of major reform.

The use of language in the debate is always striking. It has evolved and adapted over the years.

Previously, governments spoke of 'border protection' as a reason for mandatory detention and methods of deterring applicants who arrive by boat. Now the tactic is to speak about 'preventing deaths at sea'. However, the politics is still driven by a philosophy of border control. The human rights of asylum seekers and international obligations are secondary considerations.

In 2001 we had the 'Pacific Solution', which was a misnomer: it was not 'pacific', and warehoused refugees rather than providing a solution. We saw, too, the creation of 'excision', whereby islands formerly considered to be part of Australia were no longer so for the purposes of Migration Law.

The prize for legalese must go to 'offshore entry person', which is defined as a 'person who arrives at an excised place after the excision time and becomes an unlawful non-citizen'. Everyone who has arrived at Christmas Island since late September 2001 has been designated as such.
We now have 'offshore processing'. This, too, is a misnomer, when it is used for people held in Christmas Island or in detention in Australia itself — which is definitely 'onshore'.

The term 'offshore processing' was used in an attempt to pretend such cases were not subject to the same judicial scrutiny as 'onshore' cases. This fiction was destroyed in November 2010 when the High Court handed down its judgment in M61 & M69. All of the 'offshore processing' of 'offshore entry persons' was subject to judicial oversight, in a similar manner to onshore cases.

Then, in August 2011 the High Court scuttled the misnamed 'Malaysian solution'. Again, it was not a solution, but a system of refugee 'warehousing'. No 'processing' of cases by Australia is involved at all, so again it is wrong for this to be called 'offshore processing'.
Since this decision and the political impasse over Nauru or Malaysia, we now have the 'Australian solution' — the processing of applications in Australia.

Sometimes language is used to demonise refugees, such as the term 'queue jumper' which persists despite the fact there are no queues (acceptance into Australia's offshore system is more like a lucky dip). In other instances, the language has adapted to avoid pejorative or inaccurate terms; for example, the term 'illegals' is less common now (it is not an offence to arrive without a visa).

Whatever the language used, it does not change the fact that the arrival of small numbers of people claiming asylum from some of the most dangerous countries on the planet continues to prompt both major parties to turn community fear to political advantage, rather than acknowledge our duty as a global citizen to contribute to refugee resettlement without moving our responsibilities offshore.

Meanwhile, people will continue to be damaged by this flawed system.

Kerry Murphy is a partner with the specialist immigration law firm D'Ambra Murphy Lawyers. He is a student of Arabic, former Jesuit Refugee Service coordinator, teaches at ANU and was recognised by AFR best lawyers survey as one of Australia's top immigration lawyers.