SCUM AT THE TOP

For those of us who have followed the fortunes of refugees and asylum seekers as a political issue over the last two years, the period from late August to mid-September 2001 represented a dramatic escalation in the government's anti-refugee policies. In three short weeks, the limited and hesitant progress made since 1999 in the nature of the public debate concerning Australia's treatment of asylum seekers was swept away by government action that galvanized anti-refugee sentiment, and fundamentally altered Australia's refugee regime.

The hitherto unused practice of naval interdiction of vessels carrying asylum seekers was employed against the MV Tampa, and within a week, became the bipartisan policy of choice towards all asylum seeker boats approaching our shores. The bankrupt island statelets of Nauru and Kiribati, desperate for cash to pay for essential services, have been cajoled into becoming island prisons for asylum seekers prevented from by force from reaching Australian shores; in their open air detention camps, even further removed from public scrutiny of what is done in our name than the detainees of Curtin and Woomera, asylum seekers may or may not be processed in accordance with international standards, and may or may not be treated in accordance with international human rights law: we can simply never know. If the past experience of inmates in Australia's desert detention camps is any indication, the over 600 asylum seekers now on Nauru are likely to be cut off from communication with both their homeland and the Australian community, denied adequate information about their legal rights (if, indeed, they have any, as Australian courts have no jurisdiction over Nauru) and subjected to a variety of dehumanizing practices, including being referred to by number and over-prescribed sedation.

These actions, however, proved to be only the beginning. By the second week of September, a poll-fearful Opposition had guaranteed bipartisan support to pass seven pieces of refugee-related legislation, much of it retrospective, which radically transforms the reception and processing of asylum seekers in Australia. Taking advantage of the climate created by the Tampa standoff, the government pushed through legislation affecting not only border control, but also judicial review, the definition of "persecution" and penalties for "people smuggling". The result is a repudiation of the Refugees' Convention in all but name.

The Border Protection (Validation and Enforcement Powers) Act 2001 retrospectively legalises the storming of the Tampa by SAS troops and the forced transfer of asylum seekers to Nauru. In so doing, it renders irrelevant the legal proceedings initiated by the Victorian Council of Civil Liberties (VCCL) and Eric Vardarlis which challenged the lawfulness of the government's conduct. The civil libertarians were successful before Justice North, who, in a courageous and carefully reasoned judgment, found that the Tampa asylum seekers were unlawfully detained and ordered that they be returned to the mainland of Australia for processing. His Honour's decision was reversed by a majority of the Full Federal Court (Beaumont and French, with Black dissenting), who rejected his view that the asylum seekers were detained, and also held that the executive government had a free floating power to detain and expel aliens, independent of any provisions of the Migration Act 1958 .

The Full Federal Court majority's reasoning contains a number of questionable findings, and in my view it would not have survived a challenge in the High Court. However, the passage of the Border Protection Act renders the issue moot by expressly providing for the power to detain and transfer asylum seekers found in Australia's territorial waters. The Act allows for defence force personnel to use reasonable force to take boats carrying asylum seekers out of Australian waters, while section 7A creates an "executive prerogative" to deport persons unlawfully in Australia - apparently free from the procedural safeguards on deportation contained in the Migration Act. Contrary to the disingenuous arguments of the Labor Party (in a feeble effort to explain why it now supported this legislation), it is difficult to find any provisions in the "revised" Border Protection Act which restrain defence force personnel from towing unseaworthy vessels out to sea and leaving them to sink. Authorizing such interdiction measures is an unambiguous breach of the Refugees Convention, under which Australia has contracted to consider the asylum claims of persons found within its territory. The meaning of territory in international law includes both land and sea.

In the same vein of deliberate evasion of Convention obligations is the Migration Amendment (Excision from Migration Zone) Act 2001, which purports to exclude certain offshore territories from Australia's migration zone. Asylum seekers landing at Christmas Island, the Cocos Islands and Ashmore Reef cannot access existing processes for determing refugee status, but are subject to a more cursory procedure with fewer appeal rights. They may also be transferred, at the Immigration Department's discretion, to another country specified by the Minister (such as Nauru or Kiribati). Amusingly, the Act gives the Minister the power declare "any other island" that forms part of a state or territory to be an "excluded offshore place", and I can find nothing which would prevent Tasmania attaining that status (restoring it, one might say facetiously, to its historical role).

Asylum seekers arriving in an "excluded offshore place" who obtain refugee status receive only three year temporary visas, and in certain circumstances will never be able to obtain permanent residency unless the Minister for Immigration exercises his personal discretion. The provisions are designed to penalise applicants who, for whatever reason, spent more than seven days in a country where they could have sought protection from local authorities or the United Nations' High Commissioner for Refugees (UNHCR). That it may be practically impossible to seek UNCHR's protection in transit countries like Pakistan or Iran, due to the notorious corruption of local authorities, is irrelevant.

One bill passed which had in fact been tabled in Parliament over 2 years ago, was the Judicial Review Bill 1998. The law abolishes all appeal rights to the Federal Court from the Refugee Review Tribunal (RRT), removing a fundamental common law right to demand review of erroneous administrative decisions. It is now possible for the RRT to make decisions which are wrong in law, unreasonable, without jurisdiction, not based on any evidence, reliant on irrelevant considerations or not considering relevant issues, or in which the decision maker was actually biased against the asylum seeker. In none of these situations could a Court review the decision.

The Act comes perilously close to ousting the jurisdiction of even the High Court, and may yet be held unconstitutional because of possible inconsistency with s 75(v) of the Australian Constitution (which entrenches certain review rights in the High Court). In its consideration of the Judicial Review Bill two years ago, even the government-dominated Senate Legal and Constitutional Committee hesitated to recommend that the bill be passed, because of the wide range of illegal decision making that it would allow.

Like any administrative tribunal, the RRT has decision makers of varying quality. Evidence to the Legal and Constitutional Committee hearings in 1999, however, suggested widespread dissatisfaction with the quality of RRT hearings and decisions. A key motivation cited for appeals against RRT decisions was that applicants felt that they had not been fairly treated. Tribunal members were often described as aggressively adversarial, acting as though their role was to disprove the applicants' claims, rather than investigate all the circumstances in order to provide a balanced assessment. The role of the RRT has been further undermined by the peculiar process of "performance review", in which each member faces a monthly audit to determine how many decisions he or she has delivered which are favourable to an applicant and unfavourable to the Department. Given that members are only appointed for one year terms, and the Minister has previously made it clear that he will not reappoint members with whose decisions he disagrees, the independence of the RRT is questionable (see the chapter in entitled "A Credible Process" in Peter Mares' book, Borderline, UNSW 2001, for an overview of various criticisms of the Tribunal process).

An important guarantee of the integrity of administrative decisions in our legal system are the Courts, and while the Federal Court overturned less that 7 percent of RRT decisions in the last two years, its legal reasoning in these cases has provided crucial guidance to Tribunal members in the application of the law. It has also made Australia an important contributor to international refugee law jurisprudence, with Federal and High Court decisions being cited approvingly in the highest courts of many other English-speaking countries. If Australians' appeal rights were removed in such an unqualified manner in another area of the law, it would rightly be regarded as creeping fascism. But fascist conduct towards "illegals" draws little criticism, as they have already been sufficiently dehumanized as to seem undeserving of basic procedural rights we take for granted.

The final substantive change introduced by the new legislation is a statutory amendment to meaning of "refugee". Until now, Australian law has simply incorporated the international definition of "refugee" found in the Refugees Convention, and allowed Courts to interpret and apply it to novel cases as they arise. However, based on the Department's spurious view that Australian courts' interpretation of the refugee definition is more "generous" than that employed by the UNHCR, the Migration Legislation (Amendment) Bill No 6 2001 overrules court decisions on the meaning of "persecution", and replaces it with a narrower, more rigid definition. The result is, once again, a wilful flouting of dominant practice under the Refugees' Convention - a document drafted fifty years ago in radically different circumstances, and which (in the unanimous view of international scholars and jurists) requires constant reinterpretation in order to maintain its relevance to new global conditions (see AM North and Nehal Bhuta, "The Future of International Protection: The Role of the Judge", (2001) 15 Georgetown Immigration Law Journal 479). The legislation also expands the concept of "serious non-political offences", allowing the Department to refuse or revoke refugee status to persons meeting the refugee definition if they have committed crimes such as "people smuggling".

In a recent speech, former Human Rights and Equal Opportunity Commissioner, Chris Sidoti, observed that "[o]ur leaders, from both major political groupings, are turning us into a nation of thugs." (A Stevenson, "Absurd Refugee Policy Ruins Our Name: Sidoti", Sydney Morning Herald, 28 September 2001). When Pauline Hanson declared in 1996 that boat people should be turned around, and that refugees should be sent home when their countries "get better", she was scorned for her ignorance and racism. Five years later, both of these measures have become law, and Liberal and Labor compete aggressively to prove that each is more ignorant, racist and thuggish than the other. Their thuggery dons the mantle of legality and the tortured newspeak of "excised offshore places", but its callous brutality is no less obvious than that of the criminal who leaves his victim a bloodied mess on the pavement. Only the broken bodies and souls created by our thuggery will be far more numerous.

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Refugee Action Collective - Victoria

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