THE NETWORK FOR INTERNATIONAL PROTECTION OF REFUGEES SUBMISSION TO THE SENATE INQUIRY INTO MIGRATION ZONE EXCISION FURTHER BORDER PROTECTION MEASURES BILL 2002 26 July 2002 EXECUTIVE SUMMARY Since late 1999 and especially after The Tampa Crisis in August 2001, the Commonwealth Government of Australia has introduced a raft of legislation limiting the rights of asylum seekers. This legislation by and large is in direct contravention against the letter and spirit of the United Nations Convention relating to Status of Refugees (1951) to which Australia is a State Party. In terms of human rights violations, the proposed amendment "Further Border Protection Measures Bill 2002" can not be said to be creating another form of human rights violation . However, the way in which the current bill is introduced in the parliament and the political environment under which this amendment bill is proposed needs a proper examination. The right to seek and enjoy asylum is a fundamental human rights which must be observed, especially by those states that are signatory to the UN Refugee Convention. The Network for International Protection of Refugees (NetIPR), a South Australian-based refugee advocacy group, condemns the Australian Government’s denying the rights of refugees and asylum seekers. NetIPR further deplores the Australian Commonwealth Government continuing exploitation of the asylum seekers’ issue to further domestic political agenda. The NetIPR is primarily concerned about the Australian Government’s policy on the mandatory detention and suppression of the rights of refugees and asylum seekers . NetIPR calls on Australian Government and Prime Minister to: --Apologise to the refugees who were being wrongly accused of throwing their children overboard --Conduct an independent inquiry into the death of two women asylum seekers in November 2001 --Carry out speedy processing and resettlement of asylum-seekers who are held in off-shore detention centers --Cease the interception of refugee boats on the high seas and put a halt to the Pacific Solution --Repeal Temporary Protection Visa legislation of October 1999 Remove existing excision bill of September 2001 and withdraw current amendment. INTRODUCTION The Network for International Protection of Refugees (NetIPR) was founded on the 10 December 1998, the 50th anniversary of the Proclamation for the Universal Declaration of Human Rights. NetIPR focuses on the protection of refugees and displaced people within the Asia-Pacific region, including Australia. NetIPR seeks to address at the policy level the Governments’ abuses of the rights of refugees and asylum seekers [1]. Within this context, NetIPR has, over the years on various occasions, raised its concerns to the Australian Government about the treatment of asylum seekers and refugees in Australia [2]. NetIPR wishes to thank the Senate Legal and Constitutional References Committee for providing an opportunity to present our view on Australia’s refugee policy and related matters. NetIPR enunciates the view that the majority of Australians are sympathetic to the plight of refugees and asylum seekers. NetIPR also recognises that the case of unauthorised arrivals has always been an emotional issue in Australia and that there has been some inherent anti-refugee sentiment across the political divide. While these xenophobic Australians do not constitute a majority, they form a pattern of cleavage within society based on the anti-refugee/anti-migrant agenda. The current Liberal/National Coalition Government, under the leadership of Prime Minister John Howard, had sought to exploit such social cleavage to its advantage [3]. The inhuman treatment given to asylum seekers as well as persistent demonisation of refugees and asylum seekers by the Australian Government are seen by NetIPR as calculated measures to create electoral advantage and hence, to serve to maintain the Government’s political power. Seen in this context, the introduction of further excision of Australian territory is the Government’s attempt to merely maintain its "tough" image on the issue of refugees and asylum-seekers. CRISIS CREATION AND POWER MAINTENANCE By the world's standard, Australia has never had a large scale involuntary movement of people or any large influx of asylum seekers. This is mainly because of Australia’s geographical isolation with her sea borders. The potential for a large scale involuntary movement of people to Australia has occurred in the past when the human rights crisis over East Timor was developing. Within the Asia-Pacific region, there are a few trouble spots, such as Burma, India-Kashmir and Indonesia-Ache, that do have the potential for producing refugee influx. But any chance for the occurrence for the large scale involuntary movement of people is still remote. NetIPR views the current Australian government’s policy and practice regarding refugees as the Government’s own creation and maintenance of a crisis. Temporary Protection Visa regime By any measure, the recent movement of middle eastern asylum seekers does not constitute a large scale influx. The asylum-seekers from Iraq, who have lived in the Islamic Republic of Iran began to move in 1998/99 after the Iranian government had threatened to send back the Iraqis to their own country. The movement by displaced Iraqis in Iran was comounded by the Afghans trying to escape the religious fundamentalist Taliban regime [4]. By analysing the profiles of unauthorised arrivals, there has been an increase in the percentage of women and children after the Temporary Protection Visa (TPV) legislation was introduced in October 1999. In our view, the number of unauthorised arrivals may have been significantly lower if there had been a properly maintained family reunion program for refugees. The concept of the "Temporary Protection Visa" is not new to Australia. Australia granted a number of Chinese students TPVs after the Tiananmen Square massacre of 1989. These Chinese TPVs were subsequently granted residency some years later. Whilst the concept of granting TPVs to new arrivals is not new, the provisions which restrict various welfare supports, especially the rights to family reunion, by the October 1999 TPV legislation are seen as punitive to the refugees. The involuntary movement of refugees takes no consideration of any domestic political concerns. The decision of an individual asylum seeker is driven by the instinct for survival and is not influenced by the outcome or, rather, the treatment they may receive in the country of refuge. In this context, the 1999 TPV legislation has only helped to inflate the numbers of unauthorised arrivals. The restrictive measures placed in the 1999 TPV legislation do not achieve the so-called "deterrent effect" , but serve only the domestic constituents’ interest. NetIPR again call upon the Australian Federal Government to remove the offending provisions in the TPV legislation . Mandatory Detention Policy The Australian Government imposes long-term detention on asylum seekers who arrived by boat. Successive Australian governments have maintained the mandatory detention policy to deter would-be asylum seekers to Australia. Whilst it is abhorrent to detain individuals as a means of deterrence, the current Federal Government’s motive for maintaining mandatory detention policy appears to go one step further. By late 1990s, it was already been proven that the mandatory detention of asylum seekers has no deterrent effect. However, the Australian Government is prepared to spend about $150 million per annum to maintain detention centres [5]. The Government continues to use this policy not because of the lack of an alternative or has this policy been demonstrated as successful in the deterrence of asylum seekers. The government continues to detain asylum seekers in order to appease its supporters. /* -- inset box -- */ DETAIL COSTS OF RUNNING IMMIGRATION DETENTION CENTRE ON SHORE (PER PERSON PER DAY) Payment to Wackenhut/ACM $77 DIMA management costs $27 Indirect cost $13 TOTAL daily cost for a detainee ---- $117 (source Naiomi Edwards 21/1/2002) OFF-SHORE/ON-SHORE COST COMPARISON (PER DAY PER PERSON) Onshore detention $117 Offshore detention (PNG) $413 Offshore detenton (Nauru) $218 (source AAP/CanberraTimes 18/4/2002) /* --- inset box close ---- */ As various analyses have shown, the detention of asylum seekers costs a great deal to Australian tax payers. Refugee advocacy groups within Australia have already put forward alternatives to the detention policy, such as community parole models. NetIPR believes that the long-term mandatory detention of asylum seekers on any grounds is unacceptable and requests the Australian Government to remove the mandatory detention policy. The MV Tampa There is little doubt that the Australian Commonwealth government has sought to create a crisis over the Tampa incident. The incident occurred in late August 2001, when the government was under domestic political pressure with an election due in few months time. In this context, the Howard government sought to create the "Tampa Crisis" to divert the electorate's attention from domestic politics. The arrival of cargo ship MV Tampa with 430 Afghan asylum seekers onboard was labelled as an "invasion" by the Government which sought to deploy armed forces, such as theAustralian Special Air Service. The practice of deploying armed forces in a primarily civil dispute is common only to totalitarian countries, such as Burma and China, in which the governments grossly violate human rights. The Australian Government’s claim of a national emergency and subsequent deployment of Special Air Service Commando units to a cargo ship with unarmed asylum seeker can only be seen as a government actively seeking to violate human rights [6]. /* --- inset box --- */ WAY TO A TOTALITARIAN STATE: AUTHORITY VS. HUMAN RIGHTS Governments may likely to seek to compromise with human rights of individuals in three possible circumstances: (i) When effective opposition is absent, or so compliant, or so weak as to enable Government to ignore electoral retribution. This is the position in totalitarian regimes. (ii) In times of war or civil emergency, when the people cede to Government greater than usual powers in order to meet more effectively a collective threat. (iii) When the freedom in issue are those of the politically irrelevant: the disenfrancised or the voiceless. It is in relation to the third group that abuses of human rights are most common. The voiceless minorities are by definition marginal and powerless. They do not have resources needed for the essentials of a civilized life, let alone the resources to fight to vindicate their rights. As a result, their rights are reduced or extinguished, and those responsible are answerable to no-one but an electorate which neither knows nor cares. (Exercept from Paper by Julian Burnside QC presented on 10 December 2001) /* ---- inset box closed ----- */ With the benefit of hindsight, the court challenge mounted by the Victorian Council of Civil Liberty was somewhat mis-directed in that the challenge does not raise the question about the rights of the Tampa refugees to seek asylum in Australia. The refugee advocacy groups are heartened by the great capacity with which Australian people joining to defend the rights of refugees. Nevertheless, the drama at Federal Court regarding MV Tampa merely has created a temporary reprieve for the Australian Government, while the situation was demanding immediate answer on the rights of asylum seekers. Children Overboard Affair After an inquiry into the painful details, it has now been confirmed that the refugees on SIEV-4 had not thrown their children overboard. The false allegations were made by the Prime Minister, the Immigration Minister and the Defence Minister during the election campaign. Perhaps there are enough analysis reports about the incident in the public domain [7]. None the less, NetIPR wishes to highlight the connection between the Government’s "children overboard" allegations and the "Pacific Solution". The Australian Government claimed that the refugees from SIEV-4 threw their children into sea so as to compel the Royal Australian Navy to resuce them. These allegations were made at a time when the navy frigate, HMAS Manoora, had already picked-up two other boatloads of asylum seekers on its way to Nauru. The case of SIEV-4 thus represents a totally separate incident for implementing the "Pacific Solution". To informed observers, the Australian Government is known for deploying tactics of racist scapegoating of racial minorities for furthering Government’s agenda [8], [9]. The Government has routinely made a one sided portrayal of refugees and asylum seekers as illegal, unruly and violent individuals in order to justify the Government’s harsh treatment. In this context, the government’s particular defamation campaign brought up against the refugees onboard SIEV-4 can be seen as a precursor to implementing the Pacific Solution. Racial vilification or discrimination against any racial or religious minority group is a violation of human rights. In the SIEV-4 incident, the government vilified the innocent people in a most serious and debasing way. The Australian government cannot be excused for commiting such human rights abuses irrespective of whether the group of asylum seekers on SEIV-4 are considered as illegal or aliens. NetIPR demands that the Australian Prime Minister and Federal Government publicly apologise to the asylum-seekers onboard the SIEV-4. Excision of Territory and the Pacific Solution As noted, the issue of unauthorised arrival in Australia is an emotional issue. Successive Australian governments have, over the years, sought to limit the rights of asylum seekers who arrive by boat. In the first instance, boat people are not given any grounds to lodge asylum claims under Australian laws. Such tactics as excision of Australian territory for immigration purposes was implemented, using a different piece of legislation, under the Australian Labour Government in 1989. [10] In comparison, the excision bill of Australian territory in September 2001 is even more clumsy and likely to encounter more court challenges along the way. There is international precedence for invoking off-shore processing for a resettlement, under the auspices of the United Nations, in case of occurrence of a large scale influx of refugees [11]. Such solution, with multilateral cooperation by resettlement countries, can be justified only when the influx of concern is of a large scale that it threatens stability of the region. The Australian Government's "Pacific Solution" does not meet these criteria; the number of asylum seekers in this case is too small and Australia will not receive international support. [12] THE SITUATION OVERVIEW Among those policies violating human rights, only the mandatory detention policy can be said to have a proper and rational foundation. The other measure taken after the Tampa incident, such as the excision of territories and the "Pacific Solution", are more adhoc and poll-driven in nature [13]. These policies are not well thought out in legal and constitutional sense, but rather are clearly designed to fit populist election slogans such as, "We will decide who comes to this country" and "Those who come illegally should never set foot on Australian soil".These policies have originated from the Government’s hostility and arrogance towards domestic human rights groups, which has been inflamed by election campaign madness. Popular with the electorate as they may be, these policies do not constitute a long term and sustainable solution for Australia. For example, the "Pacific Solution" alone is costing as much as $500 million this year [14]. Attempt by the Australian Government to save the "Pacific Solution", along with Prime Minister’s gambling with international politics, will likely to cost Australia even further. /* --- inset box --- */ REFUGEES ARE NOT ILLEGAL "We are told asylum seekers are illegal. That is not true. Under international law, to which we have committed ourselves, a person is entitled to make application for refugee asylum in another country ...... All asylum seekers should be treated in the same manner, no matter how they arrived in Australia. Those who come without documentation are not illegal, they are simply asylum seekers, with a legal status under international law. Excerpt: Malcolm Fraser, Former Australian Prime Minister (The Melbourne Age, 27 March 2002) /* ----- inset box closed ------ */ There has been a misinformation campaign by the Government about the rights of asylum seekers in Australia. For years, the government has been portraying the unauthorised asylum seekers as illegals and queue jumpers or in association with human smugglers, as if Australia has no international obligation whatsoever to receiving the boat people. Such a deliberate misinformation campaingn is obviously being used to justify the Government’s inhuman treatment of these asylum seekers. There is also much flaunting by Government about the measures regarding asylum seekers’ policy are connected with national security. However, it is all too obvious that the "Pacific Solution" and these restrictive measures are implemented to further the Government’s own interests. The NetIPR has been greatly encouraged by the appearance of numerous community groups supporting refugees since the Tampa Crisis. However, there appears to be much misunderstanding in the community about the nature of the flight of refugees and the obligation Australia has with regards to asylum seekers. Understandably, some support groups have been focusing on the campaign mainly to arouse a humanitarian and compassionate response by Australian public. Whilst there is nothing wrong with calling for more humanitarian responses to the refugees from Australians, an approach based on the human rights of refugees will be needed. The human rights groups as well as political opposition should build the campaign based on sound human rights principles. After all, the Australian government plundering of $500 million for 1,550 asylum seekers is neither sound economic management nor the "Pacific Solution" a good and viable policy 15. Interestingly, there has been policy put forward by the Australian Labor Party based on a multi-pronged approach which proposes humane alternative to the treatment of boat arrivals [16]. The fact will remain hower that, despite any effort -- humane or inhumane -- there will continue to be an inflow of asylum seekers to Australia albeit on a small scale. What is needed is for the Government to inform the Australian public in the most honest and straightforward manner that the number of asylum seekers arriving Australia has been, and probably will always be, small. CONCLUSION The current inquiry is a predictable outcome of the Australian Senate's investigation [17] into the so-called the Children [non]Overboard Affair . It is likely that the Senate Select Committee on Certain Maritime Incident has already gathered enough evidence that the Government deliberately mislead the Australian public by manipulating the children overboard affair during the election campaign. Some analysts note that, according to Westminster traditions, the responsible minister or prime minister must resign from the post if it found guilty of misleading the public [18] , [19], [20]. Seen in this political context, the introduction of this amendment is designed to trigger a double dissolution at the parliament, which is to give the government advantage of calling election at a time of its choosing. It remains for the Australian public and political parties to dispense justice in such highly political matters as the Children Overboard affair. As for the Network for International Protection of Refugees, an independent non-government organisation, we will continue to demand the rights of asylum seekers from the Australian Government. On this occasion, the NetIPR requests the Australian Government and Prime Minister to: --Apologise to the refugees who were being wrongly accused of throwing their children overboard --Conduct an independent inquiry about the death of two women asylum seekers in November 2001 --Carry out speedy processing and resettlement for asylum-seekers who were held in off shore detention centres --Cease the interception of refugee boats on the high seas and put a halt to the Pacific Solution --Repeal Temporary Protection Visa legislation of October 1999 --Remove existing excision bill of September 2001 and withdraw current amendment. FOOTNOTES: --------- [1] The Network for International Protection of Refugees, Structure Object and Operation. 10 December 1998. [2] http: // users.senet.com.au / ~ netipr (see also attachments) [3] "Spin myth and winning edge", The Melb.Age 24 Nov 2001. (The election with and voting pattern for two major party in Australia is always marginal in nature, something like 48% vs 52%) [4] Carolyn Graydon, "The push factor", Adelaide Voices Feb/Mar 2000. [5] Financial Analysis of Detention Centre Costs, Naiomi Edwards, 21 January 2002. [6] Julian Burnside QC, "Human Rights", Paper presented on 10 Dec 2001. [7] Australian Senate Select Committee on Certain Maritime Incident, Submissions [8] Alison Dellit, "Philip Ruddock: Minister for Racism", Green Left Weekly, 24 January 2001. [9] Revd Mrtin Chittleborough (Chairperson,NetIPR), "The Pawnography or Refugees", 14 May 2002. [10] The 1989 amendment to the Immigration Act (1958), persons who arrived by boat are considered as "prohibited non-entrents". Under this bazaar amendment, the person is considered as not to have entered Australia, thus void of opportunity to lodge asylum claim. [11] Submission No.(25) Senate Select Committee on Certain Maritime Incident 2002 by Amnesty International Australia. [12] Australia can take 25,000(twenty five thousand)refugees per year without problem in addition to usual migration scheme. [13] Amnesty International Australia submission paper for Children Overboard Inquiry March 2002. [14] Margo Kingston, "Border Protection SMH Online Budget Night", 17 May 2002. [15] Jesuit Refugee Service Australia, "Australias Expensive Pacific Solution", LINK Vol III No3 Extra 2002. [16] Australian Labor Party, Policy draft, October 2001. [17] Senate Select Committee inquiry into Certain Maritime Incident, 22 March 2002. [18] Sen. Bob Brown, "PM falls short of Westminster Convention Ministerial Responsibility", Press release 14 February 2002. [19]Robert Manne, "The Nations Conscience Overboard", Melb Age 1 April 2002. [20] Chris Sidoti, "Refugee Policy: is there a way out of this mess ?", Racial respect seminar Canberra, 21 Feb 2002.