Treatment of refugees should come from the heart
Sydney Morning Herald, Wednesday, December 19, 2001.
A fresh approach to asylum-seekers, including considering a community-release
program, is long overdue, writes Alice Tay.
Some time in the past decade we lost our compassion towards asylum-seekers and
became insular and hard-hearted. Australia's refugee policy is moving from a
humanitarian one to a punitive one: from a relatively liberal assessment of
individual circumstances against our international obligations to preventing
entry and punishing those who slip through the net.
Over the past week accounts of a possible tragedy involving the loss of hundreds
of lives at sea indicates that the Government's warnings about the risks for
boat people are not being heeded and that its tough refugee policy is failing.
There is no sign that the flow of refugees is slowing and we have to face that
reality.
Sadly, the mandatory detention of asylum-seekers and others who arrive without
visas is popular with a community more concerned about continuing to enjoy
reasonable prosperity than sharing a little of it with the needy. It is also
worth mentioning that the two main political parties are more or less in
agreement on how to deal with the errant and desperate few who enter the country
without authorisation. In balancing national security interests and individual
human rights, the pendulum has swung too far in the direction of border
protection and national security. There are times when one must turn away from
the will of the people and swim against that tide; times when the humanitarian
obligation should be paramount. Now is the time to rethink Australia's policy of
mandatory detention of unauthorised arrivals.
People should not be in detention beyond the period that is necessary and
justifiable. Mandatory detention breaches international human rights law by
arbitrarily depriving people of their liberty.
There are alternatives. They have been used elsewhere and Australia should
explore the options and implement alternatives as a matter of priority.
Australia has promised the international community it will not detain anyone
arbitrarily or unreasonably. The promise relates most poignantly to children.
There has to be a mechanism to ensure the best interests of the child are the
paramount consideration. If it is in the best interest of the child to remain in
detention with the parents, then adequate schooling, health care and protection
from harm must be guaranteed.
The vulnerability of children and their need for special protection during their
developmental years has led almost every country in the world to agree that
children should only be detained as a last resort and for the shortest possible
time.
In 1994, a man, a woman and their four-year-old son came by boat to Australia
from East Asia. They were placed in detention and a second son was born in 1996.
After 5 years behind barbed wire in the West Australian detention centre, they
were accepted as refugees by the High Court and released in May this year.
Nothing can justify detaining these children for so long.
Not a day too soon, the Federal Immigration Minister, Philip Ruddock, promised
recently to consider options for women and children to be released into group
homes near detention centres.
The Human Rights and Equal Opportunity Commission's 1998 report - "Those
who've come across the seas: detention of unauthorised arrivals" - outlined
an alternative to detention.
This option proposes community release while claims are finalised. People who
present a real threat to national security or public order would not be
released. Individual assessments would be made on the risk of absconding. Most
could and should be released on their own promise to report as needed to deal
with their claims.
The commission has a role in monitoring the conditions for those detained as
well as acting on specific allegations of human rights abuses. In March it
published guidelines for detention centre managers, based on minimum
international standards, that cover access to legal advice, recreation,
education, health care and many other matters.
Immigration-related complaints to the commission are increasing. In 1999-2000
the commission received 61 immigration-related complaints covering a range of
human rights violations - inhumane conditions or treatment in detention, failure
to respond to requests for legal advice or health care, being transferred to a
State prison, removal to a country where they risk torture, cruel, inhuman or
degrading treatment, punishment or summary execution.
Complaints are investigated and conciliated where possible or reported to the
Attorney-General where necessary. Until a report of a complaint is finalised all
details are confidential.
However, in the light of continuing and serious allegations in the press and
broadcast media, which suggest systemic abuses, the commission is considering
other options - one of which could include an inquiry.
In the midst of allegation and counter-allegation about the conditions in
detention and specific human rights violations, it is important to remember
there are alternatives. Instead of responding in a climate of hysteria, we need
to look at alternatives that will enable the pendulum to swing back to the
centre.
Professor Alice Tay is president of the Human Rights and Equal Opportunity
Commission.