Boat Arrivals, Australia and Human Rights

Australia’s policy of imprisoning all asylum seekers who travel to Australia by boat has been strongly criticized by human rights supporters. During a visit to Australia in May 2011 the United Nations High Commissioner for Human Rights, Navi Pillay, urged the Australian Government to end the mandatory detention policy. Amnesty International has repeatedly condemned the policy, saying Australia needs to do more to protect the rights of asylum seekers and refugees. Despite this, it is unlikely that the policy of mandatory detention will be changed.

Partly responding to the criticism of human rights campaigners, the Australian Government announced that asylum seekers arriving by boat could be granted Bridging Visas in November 2011. The Bridging Visas would allow asylum seekers to live in the community while their applications for refugee status were decided. According to the Immigration Department, however, bridging visas are granted on a case by case basis and priority is given to the most vulnerable and those who have been in detention for a long time. The behavior of asylum seekers in detention is also taken into account. Since November only 107 asylum seekers have been let out of detention on bridging visas and 4,409 people remain locked up.

The possibility of Bridging Visas for asylum seekers arriving by boat is a step towards a more gentle response to boat arrivals but it does not mean the end of compulsory detention. Historically, Australia’s policies towards boat arrivals have got harsher when the number of people arriving by boat increases. Mandatory detention laws were introduced in Australia in 1992 by the then Labor government in response to the increasing numbers of asylum seekers from Vietnam, China, and Cambodia trying to reach Australia by boat. The law said that Australian Courts were not allowed to review the decision to detain asylum seekers but said that they could not be detained for longer than 273 (approximately nine months). In 1994 the same government changed the law again, making it even harsher by ruling that mandatory detention could last indefinitely for anyone who came to Australia by boat without a valid visa.

In 2001, in response to the increasing numbers of asylum seekers arriving by boat, the then Liberal Government (led by John Howard) introduced the Pacific Solution. Before 2001, the highest number of asylum seekers boats to arrive in Australia was 19, carrying a total of 660 asylum seekers. In 2001, 43 boats arrived carrying 5,516 asylum seekers. Responding to this increase, the Australian government declared that the Australian islands between Indonesia and the Australian mainland were no longer part of Australia’s migration zone and all asylum seekers arriving by boat would be taken to a detention centre on the tiny island of Nauru. Many of the asylum seekers in Nauru were detained for years. The number of boats arriving dropped dramatically.

In 2008, the newly elected Labor government (this time led by Kevin Rudd) announced that it was ending the Pacific Solution but that some aspects of the detention system would stay the same. Asylum seekers arriving by boat would still have their refugee status determined offshore (on Christmas Island) but they would be let out of detention faster. In October 2010, the new Labor Prime Minister, Julia Gillard said that more changes would be made to the policy so that children and families could stay in community-based accommodation instead of the detention centre. However, since 2008, the number of boats arriving has steadily increased. In 2010 134 boats carried 6,879 asylum seekers to Australia.

Because the numbers of asylum seekers have increased so dramatically, it is likely that mandatory detention will continue to be used as a deterrent. Both of the major political parties in Australia remain convinced of the need for offshore processing and are just debating about where it will take place. The detention center in Nauru is one of the options being discussed. Amnesty International has said that the prospect of reopening Nauru is “horrifying” because “asylum seekers were locked up for years, away from lawyers, media, human rights advocates and community support. They were often not given proper information about what was happening and what rights they had.” Amnesty believes that there is a declining respect for the human rights of asylum seekers in Australia.

Australian Government Still Wants to Pursue Malaysia Plan

The Australian Labor Party has voted to pursue a regional plan for the offshore processing of asylum seekers at its national conference.

There are two main political parties in Australia, the Australian Labor Party and the Liberal Party of Australia. Most people elected to Parliament are members of these parties. The current government is a Labor Party government and is led by the Prime Minister, Julia Gillard.

Members of the Labor Party met on the 3rd December to decide what policies they would have while in government. The Minister for Immigration, Chris Bowen, proposed that the Malaysia Plan should become a policy of the Labor Party. At the same time, he also proposed that the intake of UNHCR-registered refugees should be increased, from 13,750 to 20,000 a year. Both proposals were approved and are now Labor Party policies.

While they are Labor Party policies, they have not been voted on in Parliament so are not yet laws. Mr Bowen said “it's my view that we will be pursuing it through the parliament again, (but) we will need to see Mr. Abbott change his position if it is to pass the parliament.” Mr. Abbot is leader of the Liberal Party that wants offshore processing in Nauru, not Malaysia. The immigration spokesman for the Liberal Party said the government's asylum seeker policy had failed.

Several Labor party members criticized the proposals and the Malaysia Plan saying that the Plan violates Australia's international obligations as a signatory of the UN Refugee Convention. Refugee groups also attacked the proposals. The Refugee Action Coalition said “any plan to expel asylum seekers to Malaysia, or any other third country, is a fundamental (failure of) Australia's obligation to provide protection for who arrive on our shores fleeing persecution.” But Mr Bowen said Australia needs "to tackle this with a soft heart and a hard head."

The Government first proposed the Malaysia Plan in May this year in an attempt to deter people-smugglers. Under the Plan, 800 asylum seekers arriving in Australia by boat would be sent to Malaysia to have their refugee applications processed but they would not be allowed to come to Australia, even if their applications were successful. In return for taking the 400 asylum seekers, Australia would accept 4,000 registered refugees from Malaysia. The plan collapsed in August after Australia's High Court said offshore processing was illegal under current Australian law.

The Government believes that processing asylum seekers in Malaysia will break the people smugglers business model and prevent even more asylum seekers from drowning at sea. At the conference, Mr. Bowen said refugees were risking their lives on boat journeys between Australia and Indonesia. Almost 50 asylum seekers drowned when their boat sank off the coast of Christmas Island a year ago. "There have inevitably been others that we simply don't know about," he said.

On the 2nd December the 59th and 60th boats this year carrying asylum seekers arrived in Australia. This brings the total number of asylum seekers arriving by boat this year to 3,802. There are approximately 500 more asylum seekers waiting for boats in Indonesia.  If they arrive this year, the annual total is set to exceed 4,000 for the third time since 1999.  This is less than the almost 7,000 who arrived by boat in 2010.

Australian Politicians Blame Each Other as More Asylum Seekers Arrive

Australia’s major political parties are blaming each other after the arrival of three more boats carrying asylum seekers over the weekend.

The first boat with 15 passengers and one crew member was found near Ashmore Islands off the West Australian coast on Saturday 22^nd October.  Another boat carrying 79 passengers and two crew was found north of Christmas Island during the night of the 22^nd of October.  A third boat carrying 44 passengers and three crew was intercepted east of Christmas Island early on Sunday 23^rd of October.

All 138 people are being taken to Christmas Island for initial health and identity checks and to determine their reasons for travelling to Australia.

Both sides of Australian politics are accusing each other of helping people smugglers. Neither side will support the other's proposals for offshore processing of asylum seekers.  Both the Government and the Opposition want to see no asylum-seekers arriving to Australia by boat but can’t agree on where to send the asylum-seekers. The Government wants to use Malaysia for offshore processing.  The Opposition wants to use Nauru.

The Home Affairs Minister described the Opposition Leader as the "best friend" of people smugglers.

The Opposition Leader accused the Government of providing the people smugglers with their "business model".

The Home Affairs Minister also said he did not know how many more asylum-seekers could be housed in the Christmas Island detention centre before it was full.

With these recent boat arrivals, there have now been four boats of asylum seekers to arrive since the Australian Government had to put the Malaysia Plan on hold. Australia’s Immigration Department had warned that going back to onshore processing could lead up to 600 asylum seekers trying to reach Australia by boat every month.

With such intense political fighting over the issue in recent months, and as more boats arrive, Australia’s policies may get even tougher.

When the numbers of people trying to arrive by boat has increased in the past, government policies towards boat arrivals become tougher. In 2001 when numbers increased, the Howard Government began processing asylum-seekers in Nauru and Manus Island, Papua New Guinea. This policy lasted 7 years and the number of people arriving by boat dropped from 5,516 to 148. In 2007 when the Prime Minister changed from John Howard to Kevin Rudd policies got better towards asylum-seekers and more people came to Australia by boat. In 2010 when numbers got too high again and 6,879 arrived by boat, the government decided to be more tough towards asylum-seekers again. In 2011 to stop the boats the Gillard Government proposed the Malaysia Plan in which 800 asylum seekers arriving by boat would be sent to Malaysia for processing by the UN Refugee Agency.

Asylum-seeker deals for Malaysia and Papua New Guinea to be decided this week

This week the leaders of Australia and Papua New Guinea will meet to continue their discussions to reopen the Manus Island Detention centre.

In August, Australia made an agreement with PNG to reopen the detention centre on Manus Island for asylum-seekers who try to come to Australia by boat without valid visas.  The plan has been delayed after the Australian High Court decision that the Gillard Government's plan to process asylum-seekers in Malaysia was unlawful. The Government hopes to resume its offshore processing plans after the Australian parliament votes this Thursday on changes to the Migration laws so that asylum-seekers can be sent to Malaysia.

PNG's representative in Australia said that his government "is ready and willing to cooperate with Australia on any solutions through Manus processing centre".

Amnesty International and other refugee groups have criticized the plan to send asylum-seekers to Manus Island, saying that sending them to PNG is no different to sending them to Nauru. 

Another leading Australian organisation condemned conditions on Manus Island.  The Executive Director of the Australian Council for International Development stated that there was “overwhelming evidence” that people detained in Nauru and on Manus Island “suffered mental damage with self harm and suicide attempts a common occurrence, and an absence of trained counsellors and staff being able to cope.”  He also said that many of these asylum-seekers were still being treated for trauma and mental health issues following their detention.

An Australian lawyer who worked on Manus Island in 2008 said that conditions in the detention centre on Manus Island had been very hot, humid and cramped.  He said that “it would be pretty tough going” for asylum-seekers in the centre.

“During my travels around there I was told that people had tried to commit suicide by throwing themselves on power boxes, trying to electrocute themselves obviously in a state of hysteria or despair I should say.  […]  So obviously those people had quite enough and weren't prepared to continue on there. They're the sort of stories that I heard, again only hearsay from locals who observed these things they say”, he continued.

Meanwhile, the UN agency for refugees told parliament today that sending asylum-seekers to Malaysia is better for them than being detained in Australia. UNHCR Regional Representative Richard Towle has said that the conditions in the agreement between Australia and Malaysia mean that an asylum-seeker would be treated better there than they would in Australian detention. Australia’s policy of mandatory detention does not allow asylum-seekers to work or live in the community, which Malaysia would allow.

UNHCR’s support for the agreement with Malaysia is crucial ahead of Thursday’s parliamentary vote to make the Malaysia deal legal. No Australian Prime Minister has lost a vote on changes to the law in parliament for 80 years.

Australia Debates Migration Law Changes

Last week the Australian parliament opened a debate on the changes to the country’s migration laws. Prime Minister Julia Gillard introduced the changes so that it would be legal to send asylum-seekers to another nation for processing.

The migration issue has dominated Australian politics since the High Court rejected the Government’s policy of sending asylum-seekers to Malaysia for processing. Ms. Gillard hopes that by changing the law her Government can continue with the Malaysia plan and stop the High Court from interfering.

Gillard told 2SM radio “People are sick of watching the politics around all of this, the most humane way to deal with asylum seekers and refugees is to do everything you can to deter people from getting on leaky boats where they can lose their lives.”

Opposition leader Tony Abbott says he will only support the legislation if the government accepts an amendment that would rule out Malaysia because it is not a signatory to the United Nations Refugee Convention. He says he will only support the changes to the law if the Government sends asylum-seekers to the Pacific Island of Nauru instead.

Nauru was a part of the Pacific Solution, the toughest set of asylum-seeker policies Australia has ever had, and in the 7 years the detention centre was open only 288 asylum-seekers came to Australia by boat.

Ms. Gillard does not want to send asylum-seekers to Nauru because when the detention centre was open there, it was thought to be psychologically damaging for detainees. The party she leads, the Labor Party closed it in 2008 for humanitarian reasons.

Both political parties agree that sending asylum-seekers to other countries for processing will discourage asylum-seekers from paying people smugglers who try to transport them across the ocean to Australia in unsafe boats. Where they disagree is over which country to send the asylum-seekers to.

Australia's parliament has delayed a vote on changes to the migration law until October 11.

However currently, the recent arrival of two boats to Australia has added fire to the politics of the migration debate. Ms. Gillard blames Mr. Abbott for the arrivals saying that he is weakening the Government in the face of people smugglers.

One of the boats was found north of Christmas Island, initially thought to have 60 people onboard but further investigation revealed a "deck below the main deck" concealing 50 people, 49 asylum seekers and one crew member.

The second boat carrying 66 people sent out a distress signal after passenger concerns about overcrowding and had to be rescued by Indonesian and Australian authorities.

In total 175 asylum seekers will have health and security checks on Christmas Island.

Changes to Australia’s asylum-seeker policies

There have been many changes in Australia’s policies towards asylum-seekers in the last six weeks. Some of them have been perceived as good for asylum-seekers that want to go there and some have been seen as bad. One thing that has not changed though is Australia’s commitment to break the people-smuggling business and to stop asylum-seekers making the dangerous journey to Australia by boat.

Tomorrow the Australian Prime Minister Julia Gillard will present a new policy to deal with asylum-seekers. Media reports suggest that the government will now try to change the Migration Act – the law controlling immigration to Australia - so the deal with Malaysia will become legal and Australia will be able to process asylum-seekers off-shore.

On 31 August, the High Court rejected the deal, saying that under existing law, Australia could not transfer asylum-seekers to another country unless that nation was bound by law to protect them. Refugee activists that argued the case for asylum-seekers in court say they are disappointed the government could now change the law.

While the Malaysia solution is likely to be revived, the government also has a few other options to consider. While waiting for the High Court decision, the government signed an agreement with Papua New Guinea to reopen a detention centre on Manus Island to receive newly arriving asylum-seekers for processing. There has also been discussion of making a deal with Nauru to reopen a detention centre there.

If you are being told that now is the time to go to Australia then be careful because things can change quickly again. With all the options I described it could even get worse for asylum-seekers going there.

High Court stops Australia from sending asylum-seekers to Malaysia

The High Court ruling on Wednesday 31 August 2011 prevents the Australian government from transferring 800 asylum-seekers to Malaysia under the swap deal it signed last month.

The plan to send asylum-seekers to Malaysia was a part of Australia's regional response to stop thousands of boat people who arrive in Australia every year.

The High Court ruled by a majority of six to one that the Immigration Minister could not send asylum-seekers to any country that was not "legally bound by international or domestic law to provide access for asylum-seekers to effective procedures for assessing their need for protection".

The court said in a statement that Malaysia has not signed the UN Refugee Convention and that there was no guarantee that refugees would be recognized and protected under Malaysia’s domestic law.

The Immigration Minister Chris Bowen called the high court ruling "profoundly disappointing".

Bowen said the government's plans to send asylum-seekers to Malaysia for processing had acted as a deterrent to those thinking of making the dangerous journey to Australia.

Many have died on that journey, including dozens who drowned last December when their boat smashed on rocks on the island in heavy seas.

Mr. Bowen said: "We've had the people smugglers in retreat. Now, today's decision is a significant blow, but it does not undermine my or the government's determination to break the people smugglers' model."

The case was brought to court on behalf of 16 asylum-seekers who were a part of the first group of asylum-seekers to be sent to Malaysia. The lawyer acting for them, David Manne, said his clients were very relieved.

For now, the 335 asylum-seekers who arrived to Australia since the Malaysian deal was signed will remain in detention on Christmas Island but it is unclear whether they will be processed in Australia or elsewhere.

The Australian government is still considering other countries for its regional approach and it recently signed an agreement with Papua New Guinea to reopen the Manus Island detention facility there.