We cannot rely morally on ‘deterrence’ to justify our harsh refugee policies



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Offshore detainees suffer deliberately inflicted harm from their incarceration.
AAP/Eoin Blackwell

Tony Coady, University of Melbourne

When debate about refugees ascends from slogan swapping (“stop the boats”, “bring them here”) to specific reasoning, there seems only one argument worth considering for the ignominious detention of asylum seekers on Manus Island and Nauru and the refusal to ever settle any in Australia.

That argument, advanced by both the government and the opposition (occasionally in a less strident form), stems from deterrence. It’s worth considering the argument even as a handful of these detainees are resettled in the US or possibly other distant and politically ambiguous destinations.

Deterrence involves an action or policy designed to instil fear of the consequences of committing some other action. But there are considerations relevant to the assessment of deterrent measures, especially when those measures inflict pain, damage or harm on some to deter others.

One is the measures’ likely success. Another is their independent moral acceptability.

Another concern is the acceptability of the purpose for which deterrence is employed – that is to say, why is it good to stop the boats? This opens up too many questions to be dealt with here, so assume (what would otherwise be questioned) that the purpose is a good one – for example, stopping deaths at sea. It will rather be the morality of the means (deterrence) that will concern me.

First, the harm issue. It is clear the offshore detainees suffer deliberately inflicted harm from their incarceration. This is so even if we manage to suspend judgement on how extreme that harm is – something made even more difficult by a variety of dramatic and credible testimonies.

Even if detainees are not humiliated, beaten, raped, murdered, or had their health and education gravely neglected, they are effectively and indefinitely imprisoned and often separated from family and friends. This last is usually a profound human harm though less immediately palpable than some others.

As for success, there is room for debate since the associated policy of turning back the boats is already sufficient to deter future boat people and smugglers, or at least stop them landing here. If so, the infliction of serious harm on the refugees through indefinite detention is unnecessary and hence immoral.

In any case, even granting the success of extreme incarceration, there remains the fact that the efficiency of the policy to the desired deterrence outcomes does not justify “whatever it takes”. It may be that the most morally monstrous actions might work as deterrents but be unacceptable morally even to the most casual conscience.

Consider the suggestion we should have deterred further refugees from embarking for Australia by taking a selected group of mothers and children from the earlier arrivals by sea and publicly executing them.

This has the merit of almost certain success and avoiding the extravagant financial cost of offshore detention. But I believe this measure, whatever its success, would strike most Australians as morally repellent.

One reason for the dubious nature of severe deterrent measures is that the morality of deterrence is most at home when those harmed to deter others are guilty of some crime or offence themselves and when the harm is proportional to the offence. This is precisely how deterrence is offered as a (partial) defence of the legal imprisonment of offenders, or more dubiously of capital punishment.

Certain forms of guilt can lead to deprivation of rights, such as imprisonment, and this in turn allows that deprivation to function as a deterrent to others. But asylum seekers are not guilty of any legal or serious moral offence – merely, at most, of irregularity in entering the country.

In any case, execution would be disproportionate to such irregularity, especially when that irregularity is legitimised by international law.

Nor is the situation much changed if, instead of killing them, we had them publicly tortured.

Perhaps, aside from waterboarding or electric shocks, we might try more subtle tortures like separating parent from child, inducing despair by isolating refugees in demeaning conditions on remote islands with no hope of anything like a normal life, and ensuring inadequate access to life-saving medical treatment or educational improvement. And instead of a selected few, we could do it to a large number of those who had arrived seeking refuge from disaster.

We could endeavour to make this policy secretive but just public enough to make deterrence work, while softening the effect of any moral outrage at home by rejecting our responsibility and shifting it to the governmental authorities on those islands and a variety of largely unaccountable private security companies.

The ConversationAgain, this is morally repellent and impossible to justify ethically. But that’s more or less what Australia has been and is doing on Manus Island and Nauru. And that is not a morally permissible resort to deterrence.

Tony Coady, Professor of Philosophy, University of Melbourne

This article was originally published on The Conversation. Read the original article.

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Germany’s (not so) grand coalition may cause ripple effects on European refugee policy


Kelly Soderstrom, University of Melbourne and Philomena Murray, University of Melbourne

After a tumultuous 2017 election and six months of political uncertainty, Germany finally has a government. The so-called “grand coalition” made up of the centre-right Christian Democrats (CDU), its right-wing sister party, the Christian Social Union (CSU), and the centre-left Social Democrats (SPD), will govern Germany for the next four years.

At the centre of it all is the coalition agreement. The 179-page document sets out the goals for the government, including a new approach to Germany’s refugee policy.

The agreement explains “a new direction for Europe, a new dynamic for Germany, a new cohesion for our country”. It notes two changes in German leadership: a change in the power dynamics among the ruling parties, and a strong emphasis on using the European Union (EU) to achieve German political objectives.

With a weakened CDU under Chancellor Angela Merkel ceding considerable control to the anti-immigration CSU and the socialist SPD, the centre of German political power has shifted. This shift will have a profound impact on German and EU refugee policies.




Read more:
Angela Merkel wins a fourth term in office – but it won’t be an easy one


The issue of refugees is discussed deeply in German society. Since the height of the refugee crisis in 2016, when 722,370 people applied for asylum in Germany, the number of asylum applicants has decreased significantly.

However, 1.6 million refugees remain in Germany and Europe’s refugee crisis appears to be far from over. Not unexpectedly, this is a huge source of tension in the government.

At first, Merkel gained praise for her humanitarian, liberal refugee policy focused on refugee reception and integration. However, growing anti-immigrant sentiment, evident in the rise of groups like Patriotic Europeans Against the Islamisation of the West (PEGIDA), the electoral success of the far-right Alternative for Germany (AfD) and the difficulties in integrating a large number of refugees all resulted in increasingly protectionist sentiment.

Germany needs to provide a feasible refugee policy that is manageable and does not split the coalition.
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Merkel had pushed for refugee responsibility-sharing across the EU. However, no pan-EU approach drawing on the German example eventuated. Many EU member states refused to honour the major instrument for delegating responsibility for refugees, the Dublin Regulation, or participate in the EU-wide refugee redistribution scheme.

Given Merkel’s weakened position in the coalition, it is not clear that Germany will continue her humanitarian approach.

The government faces two leadership challenges in refugee policy. Firstly, it needs to provide Germany with a feasible refugee policy that is manageable and does not split the coalition. Secondly, it is attempting to lead a different type of coalition – namely, the EU’s 28 member states.




Read more:
Why Europe shouldn’t follow Australia’s lead on asylum seekers


Leadership in Germany: Can Merkel still say ‘wir schaffen das’?

In domestic refugee policy, Germany is fractured. Of the three coalition partners, the anti-immigration CSU is the primary winner in migration and refugee policy. CSU leader and Interior Minister Horst Seehofer is leading dramatic restrictions in refugee policy. Although the SPD negotiated a modest victory with 1,000 family reunification visas per month for refugees, government parties are refusing to do more than this.

Creating a cap on refugee visas was a major point of controversy between the CDU and CSU. The CSU prevailed, with the coalition agreement calling for an annual cap of 180,000-220,000 refugees. However, that cap may not take effect as only 198,317 first-time asylum applications were filed in Germany in 2017. Yet this threshold creates distraction from Merkel’s humanitarian approach as it prioritises immigration control over humanitarian obligation.

There is some good news for refugee integration in Germany.
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This, coupled with the limitations on movement of refugees imposed by centralised processing centres and repatriation centres for failed asylum seekers, demonstrates new constraints in refugee policy. This in turn demonstrates the CDU’s diminishing power and the fracturing of the centre of policy leadership.

Yet there is some good news for refugee integration. The grand coalition still maintains a focus on refugee integration, especially through language acquisition and participation in the labour market.

As Germany struggles with its fractured leadership and seeks consolidation and centralisation of refugee processing procedures, the German approach is becoming increasingly binary: if you are not a refugee, you must leave; if you are a refugee, you must integrate.




Read more:
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Leadership in Europe?

When it comes to the EU, the grand coalition government has four objectives: halt secondary movement of refugees; toughen the EU’s external borders; tackle external push factors; and create a robust mechanism for responsibility-sharing.

The Common European Asylum System aims for common application procedures for refugees and accommodation standards to prevent asylum-shopping across countries. The German government is also renewing calls for a quota-based refugee redistribution and resettlement scheme among EU states.

In calling for increased policing of the EU’s external borders and a common approach to push factors, these mechanisms paint refugee protection as a security issue rather than a humanitarian one.

During the Eurozone crisis, Germany showed strong leadership in EU policy. However, it has failed to persuade other member states to follow its leadership on refugees. Its leadership may further weaken as other states refuse to follow.

Will Germany step up to lead in Europe?

The EU is deeply divided on refugee policy and distracted by other concerns. The United Kingdom is consumed by Brexit negotiations, while many eastern and central European states refuse to participate in EU-level refugee resettlement schemes.

The anti-refugee populist parties have increased influence across Europe. Merkel has few natural allies, if any, in the grand coalition or within the EU on this issue.




Read more:
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Yet Germany regards leadership of the EU as the key to achieving its interests. Merkel is emphatic that “Germany will only do well if Europe is doing well”.

However, Germany is falling in line with more restrictive policies, rather than leading the EU towards a more comprehensive and humanitarian solution to the refugee crisis.

The ConversationIf Germany leads EU policy change, we may well see increased blocking of access to the EU for refugees and policies that emphasise control and expediency over humanitarian values.

Kelly Soderstrom, PhD Candidate in International Relations, University of Melbourne and Philomena Murray, Professor, School of Social and Political Sciences and EU Centre on Shared Complex Challenges, University of Melbourne

This article was originally published on The Conversation. Read the original article.

Why Europe shouldn’t follow Australia’s lead on asylum seekers


Daniel Ghezelbash, Macquarie University

Australia’s harsh asylum policies have been touted as a possible solution to Europe’s so-called refugee crisis. Politicians in the UK, France, Holland, Denmark, Austria and Belgium have advocated for an Australian-style approach aimed at blocking asylum seekers from accessing Europe. But there are a few reasons Europe should be wary of following this lead.

Australia’s practice of turning back boats and offshore processing have attracted the most interest. When Australia can’t safely turn back a boat, it transfers the asylum seekers on board to a third country (Nauru and, until recently, Papua New Guinea), where their asylum claims are assessed. Refugees are warehoused at these locations with no prospect of settling in Australia.

While turn-backs and offshore processing have been described as the “Australian model”, these policies have their origins in the United States. The US government has intercepted and returned migrant boats at sea since 1981, and has used Guantanamo Bay in Cuba as an offshore processing centre for asylum seekers since 1991. Australia directly drew on the US example when developing its current border control policies. Now Europe is following Australia.




Read more:
Robert Manne: How we came to be so cruel to asylum seekers


Offshore processing

There have been many proposals in recent years for establishing offshore processing camps in countries neighbouring the EU. Suggested locations have included Albania, Ukraine, Morocco and other North African countries.

There’s also a recent push to set up camps further afield in transit countries such as Mali, Niger, Burkina Faso, Ethiopia, Chad and Sudan. While none of these initiatives has been implemented, the EU-Turkey deal in force since 2016, can be viewed as a form of offshore processing.

Under the deal, Turkey accepts the return of certain asylum seekers from Greece. For every asylum seeker sent back, the EU resettles one Syrian refugee processed by UNHCR in Turkey. The plan is reminiscent of the failed Malaysian Solution under which Malaysia was to accept 800 asylum seekers attempting to reach Australia by boat, in return for Australia resettling 4,000 UNHCR-recognised refugees from camps in Malaysia. The arrangement was struck down by the Australian High Court before it could be implemented.




Read more:
Three charts on: what’s going on at Manus Island


Boat turn-backs

Italy returned migrant boats to Libya in 2009, without screening for asylum claims. These actions were found to be unlawful in a 2012 decision by the European Court of Human Rights.

To get around this ruling, there have been attempts to outsource the responsibility for stopping boats to Europe’s neighbours. This includes funding the Libyan coastguard to intercept migrant boats before they leave Libyan waters.




Read more:
Not ‘all is forgiven’ for asylum seekers returned to Sri Lanka


Risks of the ‘Australian model’

Europe should carefully consider the risks of going down the Australian path. As the decision of the European Court of Human Rights on turn-backs demonstrates, Europe has much stronger human rights protections than Australia.

The checks and balances that exist in Europe may frustrate attempts to move further towards the Australian model.

And the dark side of Australia’s border control policies is well-documented. They have inflicted devastating physical and psychological damage on asylum seekers, and created endemic social problems in the communities of Nauru and Manus Island which have hosted Australia’s offshore camps.

This has come at an exorbitant financial cost to the Australian taxpayer. This all raises serious questions about the long-term sustainability of Australia’s approach.

Australia’s asylum policies have been repeatedly condemned by the UN as violating international law. If European countries were to follow suit, it would greatly undermine international refugee protection.

The risk is that we will see a race to the bottom, as countries compete to deter asylum seekers. This competitive approach creates a vicious cycle in which governments seek to outdo each other by implementing progressively more restrictive policies.

When devising asylum policies, governments weigh up their competitiveness in deterring unwanted immigration against the value of abiding by their obligations under international law. As more states opt for deterrence over protection, this places pressure on other states to do the same. This scenario has – and will continue to have – a devastating impact on the ability of those in danger to reach safety.

The protections set out in the Refugee Convention and other human rights treaties are only words. Their effectiveness in the real world is shaped by the actions of states. Implementing international law requires leadership – it needs states to lead by example to persuade other states to protect refugees.

This role has traditionally been carried out by wealthy liberal democracies, which have had the resources and legitimacy required for the task. The harsh policies introduced in the US and Australia mean these nations now lack the credibility to take on this leadership role. All eyes are now on European states.

If Europe goes down the same path as the US and Australia, it will be inflicting a mortal wound on the universal principle of asylum and the international refugee protection regime more broadly.


The ConversationThis article canvasses issues as published in Daniel’s new book, Refuge Lost: Asylum Law in an Interdependent World.

Daniel Ghezelbash, Senior Lecturer, Macquarie Law School, Macquarie University

This article was originally published on The Conversation. Read the original article.

Three charts on: what’s going on at Manus Island



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There are few options left for the asylum seekers remaining on Manus Island.
Marcella Cheng/The Conversation, CC BY-NC-ND

Mary Anne Kenny, Murdoch University

Tensions at the Manus Island Regional Processing Centre remain high after the centre was officially closed on October 31 this year and handed back to the Papua New Guinea government.

Reports are that there are still around 420 people in the now-defunct regional processing centre who are refusing to move to recently built transit centres in Lorengau. However, these numbers shift on a daily basis as men move in and out of the centre.


CC BY-ND

The United Nations High Commissioner for Refugees (UNHCR) recently said that:

The abrupt ending of services and the closure of the regional processing centre needs to involve the people who have been in this regional processing centre for years in a very vulnerable state… It is really high time to bring an end to this unconscionable human suffering.

How did we get here?

The offshore processing of asylum seekers who came to Australia by boat recommenced in 2012. At that time, single adult men were sent to Nauru and families with children and some adult men were sent to Manus Island in PNG.

However, since July 2013 only adult men were transferred to Manus and all the asylum seekers there today are male. (And families with children, single women, couples and some single men are on Nauru).

Since July 2013 a total of 1,523 people have been transferred to Manus from Australia.

When the Manus processing centre closed on October 31, there were 690 people in the facility.


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The number of asylum seekers on Manus Island has slowly reduced over the years as people have either accepted packages to return to their country of origin, been deported from PNG, been resettled in the US or temporarily settled in PNG. Six others have died.

The population has reduced over time.

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Why was the Manus Regional Processing Centre closed?

On April 27 last year, the PNG Supreme Court ruled that the detention of the asylum seekers on Manus Island was unconstitutional.

After the decision was made the PNG government said that those at the centre were free to come and go from the processing centre.

It was not until April 2017 that the Australian government and the PNG government announced publicly that the processing centre would close on October 31.

All of the service providers (including health providers) and Australian government officials left the centre on October 31 this year and the centre was supposed to be reoccupied by the PNG Defence Force from November 1.

What are the options for those left on Manus?

According to the Australian government, those who have been found by PNG authorities to be refugees have the following options:

  • resettle in PNG;

  • wait in PNG for possible resettlement in the US;

  • transfer to Nauru to wait for possible resettlement in the US; or

  • return to the country from which they had fled persecution.

Resettlement of refugees in PNG has been slow and problematic with few people opting to leave the processing centre to live elsewhere in PNG.

The UNHCR has raised concern about just how “voluntarily” refugees can return to the country from which they fled.

Since the US resettlement deal was announced about a year ago, 516 refugees from Manus have been referred to the US for resettlement.

Reviews of their cases and interviews are underway. Only 25 have been resettled so far. However, it is up to the US as to how many they will take and it is unclear when the next refugees will be transferred to the US.

Currently, it is clear the majority want to wait to see if they will be offered resettlement in the US. Refugees remaining in the processing centre have been offered alternative accommodation at East Lorengau Refugee Transit Centre (for up to 400 people) and West Lorengau House (for up to 300 people). Whether these facilities can in fact house this many men is as yet unclear.

The UNHCR is urging against the forced movement of refugees and asylum seekers to these centres from the processing centre.


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The men who have been found by PNG authorities not to be refugees have been offered supported accommodation in Lorengau (Hillside House).

The ConversationHowever the PNG government expects them to eventually make arrangements to return home voluntarily or they will be deported.

Mary Anne Kenny, Associate Professor, School of Law, Murdoch University

This article was originally published on The Conversation. Read the original article.

UN slams Australia’s human rights record



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The UN committee urged Australia to end offshore processing and bring the men on Manus to Australia or another safe country.
AAP

Anna Cody, UNSW and Maria Nawaz, UNSW

Last night, the United Nations Human Rights Committee released its recommendations from its review of Australia’s compliance with a key human rights treaty, the International Covenant on Civil and Political Rights.

The committee harshly criticised Australia for failures in key areas. These included the treatment of refugees, Indigenous rights and inadequate protection of human rights, including the lack of a national human rights act.

What is the UN Human Rights Committee?

This is the treaty body for the International Covenant on Civil and Political Rights. The committee is made up of 18 independent human rights experts. Its key functions are to:

  • monitor and review state parties’ compliance with the treaty; and

  • decide complaints made by individuals against state parties.

What did the committee say about Australia’s human rights record?

The committee noted areas in which Australia’s record had improved. These included the establishment of the Parliamentary Joint Committee on Human Rights and the introduction of protections against discrimination on the grounds of sexual orientation, gender identity and intersex status.


Read more: With a seat on the UN Human Rights Council, Australia must fix its record on Indigenous rights


The committee also commended Australia for its commitment to ratifying the Optional Protocol on the Convention against Torture.

However, concerns far outweighed improvements in human rights.

The rights of refugees

The committee widely criticised Australia’s refugee policy for breaching Australia’s human rights obligations under the convention.

It raised concerns about refoulement (the forcible return of refugees to their home countries), mandatory detention, Operation Sovereign Borders and offshore detention. This includes the recent closure of the Manus Island Regional Processing Centre.

The committee urged Australia to end offshore processing and bring the men on Manus to Australia or another safe country. It emphasised the need for detention to be used to assess individual risk, not as a general deterrent. It also found that Australia has “effective control” over the detention centres on Nauru and Manus Island.

The rights of Indigenous people

The committee expressed concern about disproportionately high (27%) Indigenous incarceration rates. It recommended that measures such as mandatory sentencing and imprisonment for not paying fines be repealed.

The committee further recommended that Australia provide adequate funding to the National Congress of Australia’s First Peoples, and consider constitutional change to reflect the special status and fully protect the equal rights of Aboriginal and Torres Strait Islander peoples.

As it has done before, the committee urged Australia to establish a national reparations scheme for members of the Stolen Generation.

The rights of lesbian, gay, bisexual, transgender and intersex people

The committee roundly criticised unnecessary medical interventions on intersex people, particularly intersex infants and children. It recommended that the requirement for Family Court authorisation for second-stage hormone treatment for young people diagnosed with gender dysphoria be removed.

Barriers to gender and sex recognition on documents were also criticised.

The committee took a strong stance on the same-sex marriage postal survey. It stated that:

resort[ing] to public opinion polls to facilitate upholding rights under the Covenant in general, and equality and non-discrimination of minority groups in particular, is not an acceptable decision-making method.

The committee recommended that the Marriage Act be amended, regardless of the outcome of the postal survey.

The rights of women

The committee noted the endemic nature of violence against women, and the disproportionate impact this has on Indigenous women and women with a disability. It recommended that Australia increase its efforts to prevent all forms of violence against women.


Read more: New Home Affairs department should prompt review of Australia’s human rights performance


The committee again raised concerns about the involuntary sterilisation of women and girls with intellectual and cognitive disability, and recommended that Australia abolish this practice.

The human rights framework

As in previous reviews, the committee recommended that Australia introduce a comprehensive national human rights act to give effect to the human rights protections in the covenant.

It also recommended that federal anti-discrimination laws be strengthened to ensure effective protection against all forms of discrimination. It specifically noted the lack of federal protection against discrimination on the basis of religion.

The committee criticised previous attacks by politicians on the Australian Human Rights Commission and recommended that Australia respect the independence of that body.

Where to from here?

The release of these recommendations comes at a crucial time for Australia, which last month won a seat on the UN Human Rights Council.

The council is responsible for strengthening the promotion and protection of human rights, and for addressing human rights violations around the world.

Council members must demonstrate their willingness to improve their domestic human rights situation. To claim legitimacy in human rights on the world stage, Australia needs to demonstrate a genuine commitment to human rights at home.

Under the committee’s follow-up procedure, Australia must explain how it will implement selected recommendations within 12 months. The committee’s selected recommendations focus on Australia’s treatment of refugees.

Australia was criticised at the review for a history of “chronic non-compliance” with committee recommendations. The challenge for Australia will be to engage positively with the recommendations and urgently implement substantive change to promote and protect human rights.

The ConversationA good starting point would be a national human rights act, to fully incorporate Australia’s international human rights obligations into law. Furthermore, Australia should reconsider its response to the Referendum Council’s recommendation of an Indigenous voice to parliament.

Anna Cody, Associate Professor and Director, Kingsford Legal Centre, UNSW and Maria Nawaz, Law Reform Solicitor/Clinical Legal Supervisor, Kingsford Legal Centre, UNSW

This article was originally published on The Conversation. Read the original article.

Manus detention centre closure sparks safety fears for refugees



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AAP

Amy Maguire, University of Newcastle and Georgia Monaghan, University of Newcastle

On Tuesday, the Australian government will close the Manus Island regional processing centre in Papua New Guinea. Arguing that they have no safe place to go, nearly all 742 remaining residents are refusing to leave.

The closure is likely to generate resistance and potentially violence. Tensions continue to build between refugees, local residents and PNG authorities.

Manus – the story so far

The Howard government established the Manus Island and Nauru centres in 2001 as part of the Pacific Solution. Originally, offshore processing was characterised as a short-term response to an influx of asylum seeker boat arrivals.

However, over time, offshore processing has become cemented as a central strategy to prevent asylum seekers reaching Australian territory by boat. The government has argued that offshore processing is necessary to disincentivise dangerous and exploitative people smuggling.

In practice, by preventing the access of asylum seekers to territory under Australian jurisdiction, the government has severely curtailed the rights of vulnerable people. Asylum seekers detained offshore lack access to proper refugee protection and judicial review mechanisms, and are denied basic rights guaranteed under international law.

Australia’s treatment of refugees has been condemned by the international community. Mandatory and indefinite offshore detention contravenes Article 9 of the International Covenant on Civil and Political Rights. This provision protects people from arbitrary detention and upholds their right to liberty and security.

Human rights abuses have been documented in the Manus and Nauru centres. They are overcrowded and provide insufficient medical and psychiatric support.

There have also been documented cases of physical and sexual abuse at the hands of centre security. The poor mental health of many detainees, evidenced by attempts at self-harm and suicide, exposes the mental toll of inhumane living conditions and uncertainty about the future.

In April 2016, the PNG Supreme Court found that the arrangement between PNG and Australia to establish and maintain the Manus centre was unconstitutional. Under PNG law, the government had no power to infringe the right to liberty of the detainees.

As a result, in August 2016, the Australian and PNG governments announced that the Manus centre would close.

Over the past 14 months, Australia has attempted to move detainees from Manus through a range of means. The most prominent strategy has been an agreement with the US to take up to 2,000 people currently in detention on Manus or Nauru and ineligible for transfer to Australia.

This deal became infamous through a controversial leaked phone conversation between Prime Minister Malcolm Turnbull and US President Donald Trump. To date, a reported 20 people have been resettled in the US via this process.

The closure, and what’s next for the Manus detainees

On October 19, Australian immigration authorities warned detainees that the Manus centre would be closed on October 31. Those remaining were advised to leave before essential services were withdrawn.

The centre is now without electricity and water supplies are soon to be cut. Protective fences are being removed. Broadspectrum, the private company contracted to manage the centre, will hand control to the PNG Navy.

Over the past month, the centre has been progressively dismantled and detainees have been forced into overcrowded conditions. The minimal medical and psychiatric support has been removed and detainees are forced to share scarce amounts of food and sanitary resources.

Those remaining on Manus have been given three options by the Australian government.

  • Those who have been assessed as refugees may move to a temporary settlement in Lorengau town or transfer to the Nauru centre. The longer-term resettlement path for these people is unclear.

  • Detainees have the option of returning to their country of origin.

  • The third option is to seek more permanent settlement in PNG or a third country.

The response from refugees, Manus Islanders, and human rights advocates

Each of these options has been condemned as potentially harmful or dangerous.

Refugees cannot be legally returned to their country of origin, where they may face a risk of persecution. To return a refugee to a place where their life or freedom is threatened is to violate the obligation of non-refoulement.

Further, people can be rendered stateless by efforts to return them to their country of origin, even in the case where they have not gained protection as refugees. For example, Iran will not accept the return of nationals who have sought asylum elsewhere.

The proposal to relocate detainees to Nauru does nothing to resolve their precarious situations. It is unsurprising that this option has not been embraced by detainees.

The most immediately pressing risks, however, arise with the local movements of detainees on Manus Island. Iranian journalist and asylum seeker Behrouz Boochani reports that those remaining in the centre are determined not to move to Lorengau town.

The fear is that their arrival will be met with violence from the local community. An aggressive response would not be unprecedented given the history of interactions between refugee and local populations.

In 2014, Lorengau locals attacked the Manus centre, killing one refugee and injuring 77. In recent months, local people have warned detainees:

If you come to Lorengau we will be forced to attack you.

The governor of Manus Island, Charlie Benjamin, has threatened to block the resettlement. Benjamin says the Australian government never consulted the community as to the resettlement and have started construction of the new accommodation facility without prior approval.

The UN High Commissioner for Refugees’ regional representative, Thomas Albrecht, condemns Australia for abdicating its responsibility and putting the onus on the refugees to improve their situation:

Having created the present crisis, to now abandon the same acutely vulnerable human beings would be unconscionable.

With the Manus centre closed, those remaining lack security wherever they are. Considering that PNG sailors attacked the camp in April this year, firing at detainees and buildings, the PNG Navy can hardly be considered an alternative source of protection.

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Closure sparks human rights crisis

Extra PNG police are stationed on Manus in anticipation of the closure.

The UNHCR has warned of a “humanitarian emergency”. Human Rights Watch has urged Australia to send the Australian Federal Police to Manus in order to protect refugees and mitigate conflict.

At the 11th hour, the Australian government remains immovable. Recently elected to its first term on the UN Human Rights Council, Australia’s practice in relation to asylum seekers who travel by boat remains an unaddressed blight on its human rights record.

The ConversationAustralia also wears massive economic costs to maintain the policy of mandatory offshore detention for boat arrivals. An estimated A$150-$250 million will be committed to housing those remaining on Manus for 12 months following the closure, with no clarity about what happens next. And another $70 million in damages were recently awarded to Manus detainees against the government.

Amy Maguire, Senior Lecturer in International Law and Human Rights, University of Newcastle and Georgia Monaghan, Research Assistant, University of Newcastle

This article was originally published on The Conversation. Read the original article.

The Hanson effect: how hate seeps in and damages us all



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A client whose hair she had been cutting for 20 years came in as usual, and then, without any prompting or preamble, launched into a tirade against Muslims.
Shutterstock

Denis Muller, University of Melbourne

Such hair as I have is cut from time to time by Mrs E, who runs a one-chair salon in my neighbourhood.

She has been in business there for 40 years. She knows all about the history of the street and many of her clients have been coming to her for half a lifetime. The salon is shut on Mondays, when she cuts the hair of the elderly and disabled in various local institutions.

Mrs E is a petite woman with a cloud of brown hair, a bright smile and that empathetic personality that fits so many hairdressers for their parallel occupation of informal counsellor. Under her hairdresser’s smock she wears a dress or a blouse and trousers.

She came to Australia as a child from the Balkans, grew up, married, had two sons. Australia is home and a place where she says she has always felt welcome, until the other day.

A client whose hair she had been cutting for 20 years came in as usual, and then, without any prompting or preamble, launched into a tirade against Muslims.

Mrs E heard her out. As a rule, like most sensible businesspeople, she resists being drawn into conversations about sex, religion or politics.

But eventually it became too much. “I’m a Muslim,” she told the client, “and I very much regret that after 20 years I must tell you I will no longer cut your hair”.

The salon contains no outward sign of her faith: nothing in her appearance or in the room itself gives it away. For her, it is something private; nothing to do with her professional life.

It happened that I came in about a week later. Mrs E and I often talk in general terms about what’s going on in the world. She knows I am a journalist and academic and I think she feels safe pushing her conversational boundaries slightly.

She told me this story and as she did so, the hurt was written all over her face.

And after nearly a lifetime in Australia, she said she felt just that little bit less welcome.

So this is how it goes.

Hate speech becomes part of the currency of national debate and is exploited for political purposes. In 1996, Pauline Hanson delivers her notorious maiden speech in which she says Australia is being “swamped by Asians”. John Howard, as prime minister, dog-whistles that this is all about free speech.

In 2001, the so-called Tampa election occurs. Boat people – overwhelmingly Muslim – become the butt of Howard’s assertion of national sovereignty:

We will decide who comes to this country and the circumstances in which they come.

There are votes in this and both sides of politics pile on. In the midst of the 2013 election, Labor’s Kevin Rudd – the same man who claims Dietrich Bonhoeffer as an inspiration – slams the door on asylum seekers by striking deals with Nauru and Papua New Guinea that Australia is still living with.

In 2014, the federal government tries to weaken the Racial Discrimination Act in what is said to be the interests of free speech. Attorney-General George Brandis asserts that “people have a right to be bigots”.

In 2015, research conducted for the Melbourne Social Equity Institute finds that the single most important driver of negative attitudes toward asylum seekers is religious prejudice, sometimes expressed as concern about the “Islamisation” of Australia.

In August 2017, Hanson wears a burqa into Senate question time. Brandis discovers where bigotry can lead and assails her for an “appalling stunt” disrespectful of the Muslim faith.

The ConversationEventually, the political licensing of racism and religious intolerance seeps into the fabric of society. It might take a generation or it might take longer. But when it does it stains and rots that fabric, eating away at people’s sense of belonging, undermining the Australian multicultural project, and in a small suburban hair salon, a middle-aged woman feels emboldened to vent her prejudice, doing harm and hurt to someone who has been tending her person for 20 years.

Denis Muller, Senior Research Fellow in the Centre for Advancing Journalism, University of Melbourne

This article was originally published on The Conversation. Read the original article.

First refugees to leave for the United States


Michelle Grattan, University of Canberra

About 50 refugees from Nauru and Manus Island will leave in the next week to ten days for resettlement in the US.

This is the first batch under the deal the Turnbull government struck with the Obama administration, which US President Donald Trump has reluctantly agreed to honour – although the number that will be taken is unclear.

Immigration Minister Peter Dutton said the processing of other people was continuing, and further decisions by US authorities were “expected in due course”.

The government is providing minimal detail of those who have so far passed the Americans’ “extreme vetting” and been approved to go, saying it is up to the US to do that.

It has been reported that the Manus group includes refugees from Sudan, Somalia, Pakistan, Bangladesh and Myanmar. They were told to be ready to leave on Sunday for Port Moresby.

Malcolm Turnbull said this batch of departures came half and half from Nauru and Manus.

Turnbull said: “there are many that are being vetted, but it is entirely up to the United States as to how many are taken”.

The refugee deal was the subject of the now-infamous telephone conversation between Trump and Turnbull early in the year, in which Trump railed against the arrangement but Turnbull prevailed on him to take people, although the number was left vague.

Turnbull said Trump had reservations about the deal “to say the least. But nonetheless, he is honouring that commitment made by his predecessor.”

“It’s a sign of the strong relationship between the United States and Australia, and I want to thank the United States and President Trump for honouring that commitment,” he said on Wednesday.

The ConversationThe initial deal was for the US to take up to 1,250 refugees. There are 868 people in Papua New Guinea of whom 679 have been found to be refugees; Nauru has 1,124 people, with 994 of them having been found to be refugees.

https://www.podbean.com/media/player/gfk6g-73d100?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

High Court challenge to offshore immigration detention power fails



File 20170816 17651 r6ze2y
The decision reveals the striking breadth of the government’s power to deal with asylum seekers and refugees in ways that directly contravene international law.
AAP/Eoin Blackwell

Amy Maguire, University of Newcastle

The High Court has today rejected a claim that the Australian government can only exercise its powers outside Australia for purposes that would be legal under the law of the relevant foreign country.

This means the Australian government had and has the power to establish and maintain its offshore immigration detention facility in Papua New Guinea, despite detention of asylum seekers there violating PNG law.

Background to the decision

The case commenced in May 2016. The initial application was a class action seeking relief on international, constitutional, administrative and civil law grounds. The court later permitted the plaintiff to file an amended application on more limited grounds.

The sole current plaintiff is an Iranian man, taken into Australian jurisdiction while on board an asylum-seeker vessel in July 2013. He was transported to Christmas Island, detained, and categorised as an “unlawful non-citizen”. In August 2013 the plaintiff was transferred to the offshore immigration detention facility on Manus Island.

The plaintiff claims to be a refugee but has not participated in the assessment process in PNG. He does not want to be settled there as a refugee due to fear of reprisals after giving eyewitness testimony at the trial of those convicted for the killing of Reza Barati. He has not been officially detained since around May 2016, but feels effectively detained due to the hostile environment outside the grounds of the detention centre.

The case decided today responded to the decision of the PNG Supreme Court in the Namah case. That court found that Australia’s detention of asylum seekers on Manus Island violated PNG law.

Unlike in Australia, PNG has constitutional human rights protections. These forbid the deprivation of personal liberty in most cases where a person has not committed a crime.

PNG announced the detention centre would close. Its prime minister, Peter O’Neill, asked Australia to make other arrangements for all asylum seekers still on Manus Island. No such arrangement has yet been made for the plaintiff in this case. He cannot be forcibly returned to Iran, as Iran refuses to accept involuntary returns.


Further reading: How a charter of rights could protect Australians’ fundamental freedoms


What was the High Court asked to determine?

The court was asked to determine whether the Australian government has power under the Constitution to do the things it has done to the plaintiff (and many others).

The Namah decision prompted most of the questions put to the court. They tested whether Australia could validly make and continue its arrangements for offshore processing and detention of asylum seekers on Manus Island, in light of the Supreme Court decision that those arrangements violate constitutional rights protections in PNG.

At the hearing in May 2017, Chief Justice Susan Kiefel asked the plaintiff’s barrister how the Namah decision could bear on the court’s interpretation of the Australian government’s powers under the Migration Act. Those powers are defined by the act and must be interpreted according to the Australian Constitution.

The plaintiff argued the Constitution should be read to imply a limitation on governmental power. Specifically:

That the power is to be used for a legal purpose, meaning a purpose legal where it is exercised, where it has effect.

The PNG Supreme Court found it was illegal for Australia and PNG to bring in and detain asylum seekers on Manus Island. The plaintiff therefore argued that Australia was exercising its powers for an illegal purpose.

The plaintiff’s barrister, Tom Molomby, continued:

… it is somewhat internally contradictory to regard the Australian Constitution as establishing a rule of law for our nation, yet capable of giving power to committing acts in other countries which are contrary to the law of that nation.

The court was also asked to consider whether Australia’s statutory powers to do things necessary for regional processing of asylum seekers in PNG depend on whether those things are legal under PNG law.

The plaintiff argued that:

The agreements being beyond power in Papua New Guinea, they were also beyond power in Australia. There is no power to make an agreement with a party that does not itself have power to make the agreement. There can be no power to perform an impossibility.

The High Court’s reasons

The full bench of the court decided unanimously to reject the plaintiff’s application. The judgment noted that the plaintiff was not able to cite any authority in prior case law or the text or structure of the Constitution for the arguments made.

On this basis, the court concluded that:

… there should be no doubt that neither the legislative nor the executive power of the Commonwealth is constitutionally limited by any need to conform to the domestic law of another country.

The court further decided the plaintiff had misunderstood the significance of the Namah decision in the context of this application. According to the court, this decision said nothing about the PNG government’s capacity to enter into an arrangement with the Australian government to establish or maintain the detention centre.

The PNG Supreme Court decision found that the bringing in, detention and treatment of asylum seekers on Manus Island violated constitutional rights protections in PNG. But it did not mean the PNG government acted beyond power in agreeing its arrangement with Australia.

The High Court rejected the plaintiff’s claim that the Australian government’s statutory power, under the Migration Act, depended on whether relevant actions were legal under PNG law. The court relied on an earlier decision that related to offshore immigration detention in Nauru.

According to the court in that case:

The lawfulness or unlawfulness of executive government action under Australian law or under the law of a foreign country conversely does not determine whether or not that action falls within the scope of the statutory capacity or authority conferred by the section.

The bigger picture

This judgment is one in a series that demonstrates the lack of human rights protections in Australian law. It again reveals the striking breadth of the government’s power to deal with asylum seekers and refugees in ways that directly contravene international law.

However, cracks continue to widen in Australia’s punitive system of mandatory offshore detention for asylum seekers who travel by boat. The agreement Australia had with the US to transfer refugees there from Manus Island remains in doubt.

The lack of interest in the people at the heart of the dilemma was starkly revealed in the leaked transcript of the now-infamous Donald Trump-Malcolm Turnbull phone call.


Further reading: Trump-Turnbull call: trading people like pawns undermines the goals of international co-operation


Earlier this week, Liberal MP Russell Broadbent broke ranks with the government, calling for Australia to take responsibility for detained refugees who do not find resettlement in the US. Broadbent spoke out against the prospect of indefinite detention for people who have not committed any crime.

The ConversationAfter today’s decision, the responsibility to bring Australian law and practice into line with international legal obligations remains squarely with the government. The High Court has not found justification to intervene.

Amy Maguire, Senior Lecturer in International Law and Human Rights, University of Newcastle

This article was originally published on The Conversation. Read the original article.