By Mel O’Brien

A month ago I wrote about the positive progress of the Australian government under Kevin Rudd. I mentioned in particular the changes the Rudd government has made to refugee policy, but still recognised the need to address the issue of mandatory detention of refugees. Well, the government was listening! This week Chris Evans, the federal Minister for Immigration and Citizenship made a speech at the Australian National University in Canberra outlining the government’s ‘New Directions in Detention- Restoring Integrity to Australia’s Immigration System’.

The Howard government painted a portrait of refugees as "queue jumpers"- people not waiting their turn to emigrate legally- an image which appealed to a certain percentage of the population- the type that tends to watch ‘current affairs’ programmes. Yet their refugee policies brought much shame on Australia, and led to such disastrous results as the 10 month detention in 2004-5 of a mentally ill Australian citizen, Cornelia Rau (who was finally compensated by the Rudd government); suicide attempts by detainees; and the mistaken deportation of Australian citizens such as Vivian Alvarez Solon. As Evans points out "long-term detention became the reality for large numbers of detainees".

Evans points out that

"Enormous damage has been done to our international reputation. On 14 occasions over the last decade, the United Nations Human Rights Committee made adverse findings against Australia in immigration detention cases, finding that the detention in those cases violated the prohibition on arbitrary detention in article 9(1) of the International Covenant on Civil and Political Rights."

It is refreshing to hear a government recognise that people become refugees because they are escaping circumstances in which their physical and mental health and even life is in peril.

Evans states:

"Labor rejects the notion that dehumanising and punishing unauthorised arrivals with long-term detention is an effective or civilised response. Desperate people are not deterred by the threat of harsh detention – they are often fleeing much worse circumstances. The Howard government’s punitive policies did much damage to those individuals detained and brought great shame on Australia. Strong border security and humane and risk-based detention policies are not incompatible. They are both hallmarks of a mature, confident and independent nation."

However, Labor is not rejecting mandatory detention per se. In fact, of the government’s new "seven key immigration values", which "will result in a risk-based approach to the management of immigration clients", mandatory detention is seen as essential. However, the use of mandatory detention will be severely curtailed.

The Government’s seven key immigration values are:

1. Mandatory detention is an essential component of strong border control.
2. To support the integrity of Australia’s immigration program, three groups will be subject to mandatory detention:
   1. all unauthorised arrivals, for management of health, identity and security risks to the community
   2. unlawful non-citizens who present unacceptable risks to the community and
   3. unlawful non-citizens who have repeatedly refused to comply with their visa conditions.
3. Children, including juvenile foreign fishers and, where possible, their families, will not be detained in an immigration detention centre (IDC).
4. Detention that is indefinite or otherwise arbitrary is not acceptable and the length and conditions of detention, including the appropriateness of both the accommodation and the services provided, would be subject to regular review.
5. Detention in immigration detention centres is only to be used as a last resort and for the shortest practicable time.
6. People in detention will be treated fairly and reasonably within the law.
7. Conditions of detention will ensure the inherent dignity of the human person.

So, while the government is retaining mandatory detention, the application of it will be completely different, with an emphasis on risk management. What it seems is that the government will detain people for initial health, identity and security risk assessment; and it will detain people who commit crimes, are potentially dangerous due to mental illness, or breach their visa conditions repeatedly. All seem to me to be acceptable reasons for detention of a person. Applicants for a visa for any country have to pass an identity and security risk assessment before they are permitted to obtain a visa or residence permit, and again at the border control upon entry, so the detention of refugees simply enables this process to take place on-site. Of course, detention is only acceptable provided that detention conditions and the length of the detention are proportionate to the situation. For example, detention conditions of a person for health assessment should not be the same as those for a person who has committed a crime. The review of detention length and conditions is essential, and it remains to be seen how regularly these reviews will be conducted, but hopefully it will be a matter of every few months. The new policy will be one requiring the government to justify, rather than to presume detention.

In 2004, the Australian Human Rights and Equal Opportunity Commission (HREOC) conducted a National Inquiry into Children in Immigration Detention, and determined that Australia was in breach of many of its obligations under the Convention on the Rights of the Child (CROC). In fact, Australia was in breach of its obligations under no less than 13 articles of CROC, denying children in immigration detention such rights as the right to enjoy the highest attainable standard of physical and mental health (Article 24(1)) and the right to an appropriate education on the basis of equal opportunity (Article 28(1)). The decision to no longer detain children means Australia will be complying with its obligations under CROC, which maintains that detention of children should be a measure of last resort and for the shortest appropriate period of time (Article 37(b)).

To ensure these ‘values’ are implemented in accordance with Australia’s obligations under human rights law, the government has commenced work on an implementation plan to be developed in conjunction with community interest groups and agencies such as HREOC. This bodes well for the new immigration policies, given that the Rudd government has already made changes in accordance with previous recommendations from HREOC.

There are many other changes to the system outlined in Minister Evans’ speech, relating to the day-to-day functionality of the Department of Immigration and Citizenship, as well as the detention infrastructure (including new management, removal of fencing, redevelopment). So it seems the government is really planning a complete overhaul of the immigration system to render it fair and treat asylum seekers with the dignity they deserve. The future looks bright for potential asylum seekers fleeing persecution and coming to Australia.