Dog whistles, regional visas and wage theft – immigration policy is again an election issue


Jock Collins, University of Technology Sydney

This article is part of a series examining the Coalition government’s record on key issues while in power and what Labor is promising if it wins the 2019 federal election.


Immigration policy will be a major issue in the 2019 federal election. We know this because immigration has featured significantly at every Australian election since the 2001 “children overboard” election.

David Marr and Marian Wilkinson argued in their 2003 book, Dark Victory, that willingness to play the race card in relation to boat people was a decisive factor in John Howard’s election victory. For Tony Abbott, “Stop the boats” was a major campaign theme when the Coalition won back government in the 2013 election. The current prime minister, Scott Morrison, rose to prominence as Abbott’s unyielding immigration minister who stopped the boats.




Read more:
Australian politics explainer: the MV Tampa and the transformation of asylum-seeker policy


While the events of Christchurch may have cramped the opportunity for the Coalition to run hard on fear, promising to be tough on borders and tough on (Muslim) terrorism, the dog-whistle politics on the issue of refugees and asylum seekers will be there for those wanting to hear it.

For Labor these policy issues have been difficult. It was Kevin Rudd who as PM declared that those arriving by boat would never be settled in Australia, irrespective of the validity of their claims for protection under the UN Refugee Convention. Labor supported efforts to get children out of detention on Manus Island, but doesn’t want to give the conservatives too much space to convincingly advance a “Labor weak on border security” line.

Humanitarian intake is growing

The Coalition governments of Abbott, Turnbull and Morrison have in fact increased Australia’s annual humanitarian intake significantly. The number has risen from just over 13,750 to more than 18,000 – though the government has not loudly broadcast this fact.

In addition, Abbott in 2015 announced a one-off intake of 12,000 Syrian conflict refugees. Most of them arrived in 2017, effectively doubling the annual refugee intake in that year.

Australia – and the refugees – coped well, demonstrating the nation’s capacity to significantly increase refugee intakes. Our research with newly arrived Syrian, Iraqi and Afghan refugee families suggests they are settling well in Australia, receiving a warm welcome from locals in the cities and regional centres. Employment and family reunification are their key worries.




Read more:
Refugees are integrating just fine in regional Australia


Labor’s shadow immigration minister, Shayne Neumann, has flagged a new temporary sponsored visa for the parents of migrants. Unlike the current visa, it does not have a cap and it might assist refugees to get their parents to Australia.

Labor has announced it will increase the annual humanitarian intake of refugees to 27,000 by 2025. It will also abolish Temporary Protection Visas (TPVs). These visas provide boat arrivals who are found to be refugees the right to stay for only three years with work and study rights and access to Centrelink payments. As Labor argues, this places them “in a permanent state of limbo”.

The Coalition parties have not announced their policy intentions in relation to humanitarian intakes or the rights of asylum seekers, including those who arrived by boat.

At a time when Home Affairs Minister Peter Dutton scans the horizon for new boat arrivals, record number of asylum seekers are arriving by plane under tourist visas. In 2013-14, there were 18,718 asylum applications, including 9,072 boat arrivals. This had increased to 27,931 asylum applications, with no boat arrivals, by 2017-18.


Department of Home Affairs

Each year the Australia government sets the permanent immigration targets. Until recently this was set at 190,00. In practice just 162,000 immigrants have been admitted over the past year or so.

A token cut and 2 new visas

In this context Prime Minister Morrison’s announcement that the permanent immigration target will be cut to 160,000 is really no change in immigration policy. There is nothing to see here if you dismiss the need to be loudly anti-immigration in the current populist political climate.




Read more:
Government’s population plan is more about maximising ‘win-wins’ than cutting numbers


The announcement is linked to congestion-busting in the major cities of Sydney and Melbourne. It is accompanied by the introduction of two new visa pathways – the Skilled Work Regional (Provisional) Visa and the Skilled Employer Sponsored Regional (Provisional) Visa – for skilled migrants to live and work in regional areas for five years.

These visas offer the carrot of permanent residency at the end of three years to attract new immigrants to regional Australia. In addition, the budget announced that scholarships to the tune of $94 million over four years would be available to domestic and international students who study there.




Read more:
Settling migrants in regional areas will need more than a visa to succeed


Temporary migrants exploited

Most immigration policy debates centre on permanent immigration intakes, particularly of humanitarian immigrants and asylum seekers. Yet annual temporary migrant intakes – international students, working holidaymakers and temporary skilled workers – are three times greater than the permanent intake. Over 800,000 temporary migrants were in Australia in June 2018.

One key policy issue is the exploitation of temporary migrant workers. The Turnbull government abolished the 457 temporary skilled migration visa because of increasing reports of abuse and exploitation by employers.

One recent survey of 4,332 temporary migrant workers found “increasing evidence of widespread exploitation of temporary migrant workers, including wage theft”. Half of all temporary migrant workers may be underpaid. About one in three international students and backpackers earned $12 an hour or less – about half the minimum wage.

This issue goes not just to the ethics of maintaining a temporary migration program largely premised on migrant worker exploitation. It also resonates with Labor’s campaign for a living wage and the restoration of penalty rates for workers in response to the low rate of real wage growth in Australia, which constrains consumer demand.




Read more:
Ultra low wage growth isn’t accidental. It is the intended outcome of government policies


The 2019-20 federal budget allocated extra funding to the Fair Work Ombudsman to bolster enforcement action against employers who exploit vulnerable workers and announced the National Labour Hire Registration Scheme to target rogue operators in the labour hire industry. However, the research suggests wage theft is widespread in the small business sector, a key target for tax relief in the budget. It is an area of immigration policy that requires considerably more resources and punch.The Conversation

Jock Collins, Professor of Social Economics, UTS Business School, University of Technology Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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How the next Australian government can balance security and compassion for asylum seekers



File 20190213 90491 j9enr0.jpg?ixlib=rb 1.1
Crossbenchers Kerryn Phelps, Julia Banks and Rebekah Sharkie celebrate the passing of the “Medivac” law through the House of Representatives.
AAP/Lukas Coch

Alex Reilly, University of Adelaide

This is part of a major series called Advancing Australia, in which leading academics examine the key issues facing Australia in the lead-up to the 2019 federal election and beyond. Read the other pieces in the series here.


With a rapidly changing climate and increased instability in the world order, patterns of people movement are likely to change dramatically in the future. It is not a tenable response to isolate Australia from the shocks of these changes.

Sadly, the politicisation of refugee policy since the Tampa crisis of 2001 indicates that our major political parties are incapable of the kind of honest and open decision-making that is required in this complex and vexed policy space. However, the passing of the Kerryn Phelps-led amendments to the Migration Act to facilitate medical evacuations from Manus Island and Nauru may point to a shift in the nation’s mood on the issue.

In the second half of the 20th century, Australia transformed the idea of itself into a multicultural nation. An important part of this story has been Australia’s contribution to the resettlement of refugees.

Australia was the first country outside Europe to accede to the 1951 Convention Relating to the Status of Refugees. Australia was also an early adopter of the 1967 protocol that extended the convention beyond Europe. Australia’s generous resettlement of refugees under the convention has reinforced its identity as a nation built on migrants.

Australia’s acceptance of refugees remained uncontroversial while the numbers of refugees could be strictly controlled through its immigration program. The first serious challenge to control was the arrival of boatloads of Vietnamese refugees in 1976. However, the Fraser Coalition government maintained control through an arrangement with South East Asian countries that Australia would resettle a high number of Vietnamese refugees if those countries stopped redirecting boats that arrived on their shores back out to sea.

How the Tampa changed Australian asylum-seeker policy

When boats began arriving in larger numbers from 1999 to 2001, the struggling Howard Coalition government used the rescue of 438 asylum seekers by the MV Tampa as an opportunity to implement a more restrictive policy. This included boat turn-backs, offshore processing and detention, and issuing temporary protection visas for people arriving by boat whose applications for asylum were accepted. The boats stopped arriving within months.




Read more:
Australian politics explainer: the MV Tampa and the transformation of asylum-seeker policy


In 2007, the Labor government dismantled these policy settings. Asylum seekers arriving by boat were rescued at sea and processed on the Australian territory of Christmas Island. If they were found to be refugees, they were granted permanent protection visas. This policy was premised on boat arrivals being at similar levels to those experienced previously. But this proved mistaken.

The Norwegian cargo ship Tampa collected 438 stranded asylum seekers and changed Australian policy on the issue.
AAP/Wallenius Wilhelmsen

By 2013, refugee policy was in disarray. In 2012, 17,204 people arrived by boat, rising to 20,587 in 2013. This far outnumbered the planned refugee intake of 13,750 and reinforced the fear that Australia was in danger of being “swamped” by asylum seekers.

Prior to this rapid rise in boat arrivals, the Labor government had attempted to introduce a novel policy response, the Australia-Malaysia asylum-seeker transfer agreement. The Malaysian government agreed to the return to Malaysia of asylum seekers who tried to reach Australia by boat via Indonesia. Malaysia guaranteed housing, education and work rights for these asylum seekers, but also that they would receive no advantage in resolving their application for refugee resettlement.

This arrangement removed the incentive to take a risky boat journey to Australia.
We will never know if it would have stopped the boats, as the High Court held the government did not have the power to implement the arrangement, and the Coalition and the Greens blocked an attempt by the government to amend the Migration Act to provide it with the requisite power.

In mid-2013, the Labor government changed direction radically. It committed to offshore processing for the first time, stating categorically that no asylum seeker reaching Australia by boat would ever be resettled here.

When it was returned to government in 2013, the Abbott Coalition government readily adopted Labor’s policy and added a policy of aggressive boat turn-backs covered in a veil of operational secrecy. It also reintroduced temporary protection visas for the 30,000 asylum seekers who had entered Australia during the six years of Labor government. Within a few months, boat arrivals had ceased completely.

Asylum-seeker policy becomes a national security issue

The current Coalition government has successfully cast refugee policy as an issue of border security. The ministers for immigration, first Scott Morrison and then Peter Dutton, have spun a narrative that any softening of the government’s stance on resettlement would risk relaunching a flotilla of boats.

The line they have drawn is breathtaking in its strictness. The government has been unwilling even to accept New Zealand’s offer to resettle 150 refugees a year from offshore detention for fear they will then have backdoor entry to Australia. It has also made it very difficult for asylum seekers to get emergency medical treatment in Australia.

The government’s narrative of border protection does not acknowledge the human cost of long-term offshore detention. Since detention centres on Nauru and Manus were opened in 2014, 3,127 people have been transferred there. As of early February 2019, as a result of third-country resettlements and voluntary returns, about 1,000 remain. The last children on Nauru were resettled in the US in February 2019.




Read more:
As children are airlifted from Nauru, a cruel and inhumane policy may finally be ending


Despite strictly controlling access to information from Nauru and Manus, the government has not been able to prevent courageous medical officials bearing witness to the human suffering of refugees. This includes suicides and self-harm, and children simply giving up. It has not been able to prevent Behrouz Boochani using mobile phone messages to write an award-winning book bearing witness to the official strategies used to break the spirit of refugees on Manus Island.

Asylum seeker and journalist Behrouz Boochani wrote the award-winning book No Friend but the Mountains.
Amnesty International handout

Finding a more humane way forward

As on so many policy issues facing Australia, we need an honest discussion on refugees. On the one hand, it needs to be acknowledged that refugees are victims of regimes intent on persecuting them and are deserving (and entitled) to our protection.

As a nation, we continue to have a policy of high levels of immigration, and refugees can be a significant part of our strategy for future prosperity. We have a responsibility not to contribute further to people’s suffering, and thus long-term detention of refugees is untenable.

On the other hand, Australians believe they are entitled to determine who is provided access to the benefit of membership in the Australian state. This being the case, refugee policy must be able to control the number of people who are accepted for resettlement. The most effective mechanism of control is to prevent onshore arrivals by boat and plane, and to use planned resettlement from refugee camps in consultation with the UNHCR.

The unprecedented number of boat arrivals in 2012-13 tilted the equation towards control over compassion. However, there is a sensible middle ground more in line with Australian values.

First, it is possible to resettle all the asylum seekers on Nauru and Manus in Australia expeditiously, without triggering large numbers of boat arrivals. This resettlement must be the immediate priority of a new government. It was never envisaged that refugees would spend up to six years in offshore detention.

Retaining the architecture of offshore detention and processing for the future and the possibility of boat turn-backs is more than adequate deterrent to prevent people risking the perilous journey to Australia by boat. The Coalition governments in 2001 and 2013 demonstrated that if this proves to be wrong, introducing a hard-line policy can stop the boats very quickly.

Second, all those refugees on Temporary Protection Visas and Safe Haven Enterprise Visas in Australia need to be offered permanent protection. Temporary visas create a huge psychological and social burden on refugees in Australia, with no benefits.

Third, the movement of refugees, particularly from the Middle East, through South East Asia to Australia is a regional problem. The Australian government needs to resume discussions with Indonesia and Malaysia about a more nuanced solution.

With the Coalition cutting through with its narrative of fear of invasion and Labor still spooked by policy failure during its previous term in government, it has taken independent MPs to begin to push Australian refugee policy to a sensible middle ground.

Kerryn Phelps’ amendment to the Migration Act, supported by Labor and the Greens, provides for the evacuation of asylum seekers and refugees to Australia if two doctors assess that they require medical treatment not available on Nauru or Manus Island. The minister for home affairs retains the power to reject a transfer on security grounds. The law is also limited in its application to refugees already on Nauru and Manus Island.

In parliament, Prime Minister Scott Morrison and Opposition Leader Bill Shorten framed their positions on the “Medivac” law as a test of character. Morrison focused on the importance of “mettle” and “holding the line”. Shorten focused on “compassion” and “balance”.

The passing of the law ensures refugee policy will be a key election issue once again. The Australian people will determine what version of character prevails.The Conversation

Alex Reilly, Director of the Public Law and Policy Research Unit, Adelaide Law School, University of Adelaide

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Grattan on Friday: What does “reopening” Christmas Island actually mean and why do it?


Michelle Grattan, University of Canberra

The Morrison government, politically-speaking, is trying to do a
loaves-and-fishes exercise with the medevac legislation, over which the parliament defied the executive this week.

It is attempting to inflate Labor’s support for a modest measure to facilitate medical transfers from Manus and Nauru into a mini “Tampa” crisis.

Will this succeed? The short answer is surely “no”; the longer one is that this issue could take a deal of skin off Labor. The point is no one is yet sure how it will play out – both sides are operating on gut feelings until the polls and focus groups speak.

The Liberals think anything to do with “boats” is lethal for Labor; the ALP believes community attitudes have changed but is very apprehensive about how the debate would go if boats showed up.

No question, this is rocky for Bill Shorten. The government attack is ferocious, full of exaggeration and scaremongering.

But the Coalition’s tactics are also risky in a policy sense. Scott Morrison is running two lines. He claims that by supporting the medevac legislation Shorten has undermined offshore processing – sending a signal the borders are porous.

He goes on to say that the government, and he in particular, are ready to protect Australia against the danger of a new wave. Whatever the intelligence advisers want done will be done. The borders will stay strong.

Morrison rejects the argument that the detail of the legislation
limits the incentive to people smugglers, insisting they don’t bother with “nuance”.

Indeed. So which un-nuanced Morrison message will the smugglers hear? That the policy has been trashed – or that the borders are being fortified?

There is also the danger, which some critics have highlighted, that in its rhetoric about numerous alleged criminals on Nauru and Manus, the government could make the US more reluctant to take people (it has only accepted 456 so far – the deal was up to 1,250).




Read more:
Explainer: how will the ‘medevac’ bill actually affect ill asylum seekers?


What the government is actually doing is hard to pin down. Take the reopening of the Christmas Island detention facility – or to be more precise “a series of compounds” there – which attracted big headlines, and attention overseas.

What does “reopening” mean? Going in with the vacuum cleaners and the mops so that the centre could function if required? Or setting up some of it immediately on a serious day-to-day operating basis?

And how convincing is the rationale for this reopening, which Morrison described as for dealing “with the prospect of transfers”?

The government says that with the closing of many detention centres, space is somewhat tight. But if people are transferred because they are sick, Christmas Island is hardly the best place for access to medical practitioners.

Maybe some people currently in detention elsewhere would be moved to Christmas Island to make room for newcomers. But wouldn’t it be a lot cheaper and easier – if less dramatic and headline-grabbing – just to lease some more accommodation near currently-operating facilities?

Anyway, while some of the transferees would be kept in detention,
what’s happened previously suggests a lot could be let into the
community.

It’s true that the advice from the Home Affairs department envisaged a scenario “likely necessitating the stand-up of the Christmas Island facility”, but it had the flavour of a worst-case one. (With an election and the prospect of a change of government raising questions about the future of Home Affairs secretary Mike Pezzullo, one wonders what he thinks about the department’s advice being used publicly by the government as a battering ram against Labor.)

If the government really intends to “reopen” Christmas Island in any major way, it could find itself spending a lot of money there on few if any people. If it is a faux reopening, it’s just a bit of spin that should be called out.




Read more:
A refugee law expert on a week of ‘reckless’ rhetoric and a new way to process asylum seeker claims


The medevac bill was passed despite the best efforts of the minority government to stop it, including a Senate filibuster on the final sitting day of last year, to delay the bill reaching the lower house then.

On Thursday a rather panicked government did a rerun of that December day.

This time, the Senate had passed a motion – opposed by the Coalition – calling for a royal commission “into violence, abuse and neglect of people with disability.” Labor, expecting the motion to reach the House on Thursday afternoon, prepared to push it through with crossbench support.

The government says it knew the message from the Senate hadn’t arrived as question time was nearing its normal end. But it was spooked by the opposition’s tactics, and fearful of what Labor might be up to. So it just kept question time running for some 150 minutes, a record.

Earlier in the day, it had to pull its legislation for applying a “big stick” to errant energy companies, because the House appeared set to amend it to prevent the government underwriting coal projects.

The government says it will take the “big stick” plan to the election. But its inability to have it bedded down before then is another failure in a long line in the energy area.

The vote on the disability motion will happen on Monday and the
Coalition will not oppose it – despite its stand in the Senate. The government says it will then consider what action it should take.

Abuse of disabled people is surely as important an issue as the
ill-treatment of the elderly. With the public increasingly demanding the facts and culprits be revealed where there is evidence of misconduct, a royal commission in parallel with the aged care one would have merit, in both policy and political terms.

The parliamentary week has been rugged for both sides – the government hasn’t been in control of the House but Labor hasn’t been in control of the debate, which it wanted to be all about banks not boats.

Then again, nothing could match One Nation’s tribulation, with its
leader Pauline Hanson accused of sexual harassment by a bitter
ex-colleague, senator Brian Burston, and her right-hand man, James
Ashby, publicly scuffling with her accuser. This is a party beyond
embarrassment.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The government was defeated on the ‘medevac’ bill, but that does not mean the end of the government



File 20190212 174851 1azgk58.jpg?ixlib=rb 1.1
Cross-benchers Kerryn Phelps, Julia Banks and Rebekah Sharkie celebrate the passing of the Medevac bill.
AAP/Lukas Coch

Anne Twomey, University of Sydney

The Morrison government has been defeated in the House of Representatives by the passage of a government bill containing amendments made against its wishes that allow for the medical evacuation of asylum-seekers from Manus Island and Nauru.

At the last minute, the Speaker tabled, against the wishes of the government, advice from the Solicitor-General raising a constitutional problem with the Senate amendments. In short, those amendments provided for an “independent health advice panel”, of which six members would have to be paid. Their remuneration would come automatically under an existing appropriation in the Remuneration Tribunal Act 1973 for the payment of persons who hold public offices. The effect of the amendments in the bill would therefore have increased the amount payable under that existing appropriation.

This is important, because section 53 of the Constitution says that the “Senate may not amend any proposed law so as to increase any proposed charge or burden on the people”. The argument was that even though the Senate amendments to the bill did not contain an appropriation, they would increase a burden on the people by increasing the amount automatically appropriated under the Remuneration Tribunal Act.




Read more:
Explainer: what is a hung parliament and how would it affect the passage of legislation?


Whether this is enough to trigger section 53 is a matter of dispute between the houses. Understandably, the House of Representatives has long considered that Senate amendments of that kind do breach section 53, while the Senate takes a different view.

The issue cannot be decided by a court, because the courts have held that section 53 is an internal matter for the houses, and not one to be determined judicially. This was made clear in the recent case on the same-sex marriage postal survey. So even if the houses chose to ignore section 53 and pass a bill that breached its terms, and the validity of the law was challenged, a court would not find it to be invalid.

The consequence was that this was a battlefield for the two houses. In the absence of any judicial precedents, all we have to guide us is parliamentary practice and the competing views of parliamentary committees. These do not provide clear answers. While the houses are under a moral and political obligation to obey the Constitution, this is difficult when the Constitution itself is unclear and its interpretation is disputed.

The government’s action in seeking to declare the bill to be a money bill also raised the political stakes. In order to govern, a government must retain control over government finance. Defeat on a money bill in the House of Representatives is regarded as a loss of confidence, which by convention requires the government to resign or seek an election. For example, the Fadden Government resigned in 1941 when its budget was reduced by the nominal sum of £1. So if the bill was treated as a money bill by the government, its passage against the wishes of the government would have raised a serious issue of whether it could continue governing.

However, the Labor Party moved an amendment to remove any right to payment of officers of the panel. This should mean that it is not a money bill, with the consequence that the constitutional issues about s53 should go away (although there would still be a precedent of the House of Representatives dealing with the Senate amendments, rather than rejecting their validity outright).

The bill still has to pass the Senate. If it does so, it will then be presented to the governor-general for royal assent. I have previously discussed why it would not be wise for the government to advise the governor-general to refuse royal assent. Assuming that royal assent is given, then the medevac amendments will take effect the day after the bill receives royal assent.




Read more:
Why a government would be mad to advise the refusal of royal assent to a bill passed against its will


Can the Morrison government continue to govern after its defeat on this bill? Yes. As the bill is no longer a money bill and is not one that the government has declared to be a matter of confidence, the government can continue to govern.

If the House of Representatives has truly lost confidence in the government, it can always move a vote of no confidence to make this clear. Unless that happens, the Morrison government can continue governing until the election is held.The Conversation

Anne Twomey, Professor of Constitutional Law, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

View from the Hill: Shorten’s victory will bring dangerous counter strikes from a desperate government


Michelle Grattan, University of Canberra

An extraordinary amount of hype and some confected hysteria preceded Tuesday’s vote on the medical transfer legislation.

The government threw everything at trying to avoid a defeat. In a last stand, it fell back on a constitutional argument – backed by
Solicitor-General advice – that carried no practical weight and was simply circumvented by the majority that passed the bill in the House of Representatives.




Read more:
Crossbenchers must decide between something or nothing on medical transfers bill


While the government frantically attempted to thwart Labor and the crossbench, Scott Morrison also ran the line that he wasn’t that fussed. Afterwards he told a news conference: “Votes will come and votes will go, they do not trouble me.” That claim wouldn’t pass a fact check.

This was a big vote, and everyone knew it. Morrison operates a
minority government and Tuesday’s loss underscored that he can’t
automatically get his way. (Ironically, in the last days of Turnbull’s majority government, the threat of losing a House vote came from internal dissidents.)




Read more:
The government was defeated on the ‘medevac’ bill, but that does not mean the end of the government


The next test for Morrison will be on whether the House agrees to
extra sitting days to discuss the measures from the banking royal
commission. For procedural reasons, this needs 76 votes, one more than the 75 required on the medical transfer bill. The government has been leaning heavily on Bob Katter, the crossbencher who will be the key.

While the government looked rattled as the votes on the medical
transfer bill proceeded, Labor was calm and steely.

For all the talk about Labor’s misjudgement on the issue, this week it has moved cautiously and methodically.

Originally pushed by the crossbench into taking a stand on
humanitarian grounds – the bill is based on a proposal from
independent Kerryn Phelps – Labor has sought to display compassion but contain the political risk.

Bill Shorten, knowing the danger, decided the version of the bill
coming from the Senate (which Labor had supported there) left the ALP too exposed. He flagged last week he’d like a “middle” course.

So the opposition came up with amendments to give the minister wider discretion and more time in making decisions, and to limit the application of the legislation to those on Nauru and Manus now. The latter change was to minimise the “pull” factor – the extent to which the new arrangement would encourage the people smugglers.

Then it was a matter of persuading the required six crossbenchers.
They accepted in the negotiations that a modified bill was better than nothing (though there was some Greens cavilling).

In the House, the ALP troops were kept carefully in check; the emotion was turned down; the speeches from the bill’s supporters were few and brief. Labor just wanted one thing in the chamber – a win. This wasn’t the time to grandstand.

The government, wounded and worried, is seeing this as one (albeit
major) battle in the long war to the election. Its spruikers will say that in defeat it has had a victory – that Labor has given the
Coalition ammunition for the campaign.

It’s true the bill has breathed new life into the border security
debate, but whether this will be enough to do Labor serious harm is an open question. `

The ALP is always vulnerable on boats. On the other hand, boats are lower in voters’ minds than they used to be.

The government will turn up the dial by announcing “contingency plans” against fresh arrivals. Morrison, having accused Shorten of
undermining offshore processing, is already moving on to the claim that he couldn’t be trusted to be strong on turnbacks.

Goodness knows how the politics would play out if a boat appeared on the horizon in the next few weeks. You can be sure, however, that the government would be quick to tell us about it, and point the finger at Shorten.

In all this, the bill itself (which has to go back to the Senate for a tick off on the amendments) should be kept in perspective.

The minister has a veto on “security” grounds, including being able to exclude anyone who has committed a major crime. The composition of the medical panel which would have the final say on other transfers is broad and balanced.

Probably, over a period, there would be a lot of transfers out of the 1000 people offshore. But there have already been nearly 900 (some after legal action). These transfers have amounted to a backdoor route into Australia.

If the legislation in the longer term opens that door a little wider, it will also be a way of “settling” people in Australia without acknowledging that is being done.

More of the same? Or a radical change? It depends how you look at it.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

We don’t know how many asylum seekers are turned away at Australian airports


Asher Hirsch, Monash University; Daniel Ghezelbash, Macquarie University, and Regina Jefferies, UNSW

The immigration department doesn’t keep a record of how many people apply for asylum at Australian airports, and how many are turned away. Documents released under Freedom of Information show a lack of accountability and oversight by Australian immigration officials with regard to people who request asylum at airports.

This means the ultimate decision to admit or deny an asylum seeker entry into Australia rests with the Border Force official who interviews them. Without oversight, an asylum seeker could be turned away and sent back to a country where they may be at harm, after being interviewed behind closed doors and without access to lawyers.

Last week, ABC’s Four Corners reported that two Saudi women were turned back at Sydney Airport after letting customs officers know they intended to apply for asylum. This has led to concerns Australian Border Force officers may be deliberately targeting and blocking Saudi Arabian women, who they suspect may apply for asylum, from entering the country.

Until 2014, a person could apply for a permanent protection visa before being cleared at customs, also known as immigration clearance. However, amendments passed in 2014 mean those stopped before being cleared can only apply for a three-year temporary protection visa or a five-year safe haven visa.

Had the two women not disclosed their intention to seek asylum at the airport, they would generally have been cleared at customs and allowed to enter Australia. They would be able to apply for a permanent protection visa after leaving the airport.

But by making an asylum claim at the airport, they were subsequently detained and then deported from Australia without a chance to apply for protection, or access to lawyers, in violation of Migration Act.

The ABC report suggested at least 80 Saudi women have sought asylum in Australia in recent years, many of them fleeing Saudi Arabia’s male guardianship laws, which allow their husbands, fathers, brothers, uncles and sons to control their lives.




Read more:
Are women escaping family violence overseas considered refugees?


A response from the Department of Home Affairs to a Freedom of Information request for the number of individuals who have made protection claims before, or at, immigration clearance at airports since 2008, said:

the location of the applicant in Australia at the time of lodgement … is not relevant to the assessment of the applicant’s asylum claims, and therefore is not recorded in the Department’s database. As such, the Department does not hold existing documents as falling in the scope of the request.

But this can’t be correct given the disparity between the safeguards available before and after an asylum seeker clears customs.

Asylum seekers who have passed through customs can appeal their application for protection if it is rejected in the first instance.
from shutterstock.com

Australia has non-refoulement obligations under the 1951 Refugee Convention, various human rights treaties and customary international law. These prohibit the return of asylum seekers to places where they would face certain types of persecution or harm.

This extends to returning asylum seekers to transit countries where they may fear harm, or be at risk of being returned to their home country where they fear harm.

As part of the non-refoulement obligation, Australia must fairly and efficiently assess the claims of any person who applies for asylum under its territory or jurisdiction. Australia may not remove, or refuse admission at the border to, an asylum-seeker while considering that individual’s claim.

The demarcation of immigration clearance zones, or international zones has no consequence to Australia’s obligations under international law.

The Department of Home Affairs sets out the procedures to follow when an asylum claim is made at immigration clearance. The policies – which cannot be accessed publicly, but we have provided screenshots here – require that “if the person raises protection related claims, the interviewing officer should interview the person for a second time and explore the protection claims”.




Read more:
Explainer: how Australia decides who is a genuine refugee


If the person “makes a prima facie protection claim that is not considered to be ‘far-fetched and fanciful’, they are considered to be a person who potentially engages Australia’s non‑refoulement obligations” and must be permitted to enter Australia.

We do not know whether the department followed its own policies in the case of the two Saudi women. The interviews took place behind closed doors, and the minister has not made a comment on the cases. Even if the policy was followed, it still leaves much discretion to the interviewing officer.

There are no clear standards that must be followed when determining whether a claim meets the threshold of not being “far-fetched and fanciful”. The words are not found in the Migration Act, or the Migration Regulations, which govern migration determinations.

If Australia returned these women without a proper consideration of their asylum claims, it will be in breach of its international obligations. The failure to keep or share these statistics compounds the lack of accountability.The Conversation

Asher Hirsch, PhD Candidate, Monash University; Daniel Ghezelbash, Senior Lecturer, Macquarie Law School, Macquarie University, and Regina Jefferies, Scientia PhD Scholar, UNSW

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Explainer: how will the ‘medevac’ bill actually affect ill asylum seekers?


Nicholas Procter, University of South Australia and Mary Anne Kenny, Murdoch University

Both the House of Representatives and the Senate have now passed amendments to the Migration Act 1958 that allow for the medical evacuation of asylum-seekers from Manus Island and Nauru. These amendments are also known as the medevac bill.

So, how will the situation for asylum seekers and refugees on Manus Island and Nauru change with the provisions in place?




Read more:
The government was defeated on the ‘medevac’ bill, but that does not mean the end of the government


What’s in the Bill?

The medevac bill allows for the transfer of asylum seekers or refugees on Nauru or Manus Island to Australia for “medical or psychiatric assessment or treatment”. Family members will also be transferred if recommended.

It gives a clear pathway for medical specialists to make medical decisions. Two doctors must assess – either in person or remotely – the person and make the recommendation for transfer. The criteria used in the initial assessment and in any review is that the person:

  • needs medical or psychiatric assessment or treatment
  • is not receiving appropriate medical or psychiatric assessment or treatment in Nauru or Manus Island, and
  • must be transferred for appropriate medical or psychiatric assessment or treatment.

The recommendation is given to the Minister for Home Affairs who must either approve or refuse the transfer within 72 hours. The minister can refuse the transfer if the person has an adverse security assessment or if the person has a “substantial criminal record”.

The minister may also refuse the recommendation on the basis he does not accept the transfer is necessary on medical grounds. In those cases an expert medical panel – known as the Independent Health Advice Panel (IHAP) – would be formed to reassess the recommended transfer.




Read more:
Morrison government defeated on medical bill, despite constitution play


If the panel recommends the person’s transfer should be approved, the minister must transfer the person unless satisfied there are security or character grounds for refusing the transfer.

The panel will consist of at least eight members, including the Chief Medical Officer for the government, the Department of Home Affair’s Chief Medical Officer and the Surgeon-General of the Australian Border Force. Other members would be appointed by the minister based on nominations by various professional medical bodies.

Medical transfers to Australia are for a temporary period only, so those currently in Australia could still be returned to Nauru or Manus Island following their treatment. This will continue to be the case even now this bill is passed.

These procedures are only applicable to asylum seekers and refugees who are on Nauru and Manus Island currently. The law will not apply to anyone who comes after the passage of this bill. Anyone brought to Australia for medical treatment must be kept in onshore immigration detention.

Three examples

Medical transfers that have occurred to date are mostly for psychiatric reasons or a combination of psychiatric and other medical reasons. The importance of provided, rapid medical assessment and response to critically ill, or at-risk-of-dying, refugees and asylum seekers cannot be overstated.

Under the provisions of the medevac bill, asylum seekers with medical or psychiatric conditions can be transferred to Australia.
from shutterstock.com

In August, 2014 a 24-year-old Iranian detainee on Manus Island, Hamid Khazaei, fell ill and presented to clinicians at the detention centre with “flu-like symptoms” and a small lesion on his leg. After a course of antibiotics, his condition deteriorated and he was transferred to a hospital in Papua New Guinea. He died a few days later.

A coronial inquest identified ambiguous and deficient policies for emergency evacuation, finding Mr Khazaei’s death was preventable. If his clinical deterioration was recognised and responded to in a timely manner, and he was evacuated to Australia within 24 hours of developing severe sepsis, Khazaei could have survived.

Medical evacuations are time sensitive because of the nature of the emergency and the logistics of the transfer itself. Were the provisions of the medevac bill in place at the time, independent expert overview of clinical decisions could have saved Khazaei’s life.

Another case was that of a refugee woman on Nauru who attempted suicide. An order was made for her to be urgently transferred to Australia. This was based on reports from a psychiatrist and a surgeon who expressed concerns that, without urgent surgical intervention, she could develop peritonitis (a life-threatening inflammation resulting from her suicide attempt) and die.

This case was heard by the Federal Court within four days of her attempt. Evidence demonstrated she needed complicated surgical intervention and psychiatric care that appeared not to be available on Nauru. Medical evacuation to Australia was requested as soon as possible, and the woman was brought to Australia.




Read more:
Self-immolation incidents on Nauru are acts of ‘hopeful despair’


With the medevac provisions in place, the woman could have been brought to Australia earlier for an independent assessment of her physical and mental health prior to her situation deteriorating to a point where emergency management was required. The costs and delays involved in seeking intervention of the courts to order medical evacuations would also have been reduced with the provisions in place.

Another recent case involved a 46-year-old refugee on Manus Island who had lost vision in his right eye after a traumatic injury during a riot on the island. Vision in his left eye was also deteriorating and there was a lack of appropriate treatment in PNG. His mental health had also deteriorated to a point where he was assessed as being at high risk of suicide.

The evidence was that Manus Island did not have adequate facilities to treat his physical deterioration and suicidality. The court ordered his transfer to Australia as soon as possible for assessment and treatment.

Again, this man could have been brought to Australia earlier for an independent assessment, prior to emergency life saving treatment being required. The bill’s provisions will now allow for this. This translates to continuity and consistency of care and reduced deadlocks over treatment decisions.

Medical care can’t be political

Aside from being a circuit breaker to current arrangements, the bill is a new opportunity to establish agreed governance arrangements and a clinical pathway for recognising and responding to medical need without political interference. In the past bureaucrats and politicians have invalidated medical evidence and clinical decision making processes.

To provide safe and high quality care to refugees and asylum seekers based on medically assessed need, independent medical experts must be provided with all available relevant information about the patient. Giving the best medical and health advice must be free from delay and political interference.The Conversation

Nicholas Procter, Professor and Chair: Mental Health Nursing, University of South Australia and Mary Anne Kenny, Associate Professor, School of Law, Murdoch University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Morrison government defeated on medical bill, despite constitution play


Michelle Grattan, University of Canberra

The government has suffered a historic defeat in the House of Representatives, with Labor and crossbenchers passing the legislation facilitating medical transfers from Manus and Nauru by 75-74.

This came after a dramatic last-minute government ploy to try to head off the bill by declaring it was unconstitutional and so should not be considered by the House.

But Labor and the crossbench pressed on, with six of the seven crossbenchers backing the ALP amendment to the bill that had come from the Senate.

They were Kerryn Phelps, on whose proposal the legislation is based, Andrew Wilkie, Cathy McGowan, Rebekha Sharkie, Julia Banks and the Greens Adam Bandt. The other crossbencher Bob Katter voted with the government.

The last times governments were defeated on major substantive votes were the Fadden government in 1941 (on a budget vote) and the Bruce government on legislation in 1929.

Before the bill was considered Speaker Tony Smith tabled correspondence from Attorney-General Christian Porter saying the bill, passed by the Senate last year, contravened the constitution’s Section 53.

This provides that the Senate “may not amend any proposed law so as to increase any proposed charge or burden on the people”.

The Solicitor-General, Stephen Donaghue, said in an opinion that the bill breached Section 53 because the medical panel it would set up would be paid.

But the opinion also said it was “ultimately for the House of Representatives to decide whether it considers the Senate amendments to be consistent” with Section 53, and the matter was not justiciable.

In his letter to Smith, Porter asked the Speaker to keep the Solicitor-General’s opinion confidential but Smith said the House should have it and tabled it with Porter’s letter.

The vote culminated a day of drama as Labor negotiated its amendments to the bill as passed by the Senate with its support.




Read more:
Why a government would be mad to advise the refusal of royal assent to a bill passed against its will


These widen the grounds on which a minister could refuse a transfer to cover those with a substantial criminal record, allow the minister up to 72 hours (instead of 24) for making a decision on transfers, and confine the application of the legislation to the present cohort of refugees and asylum seekers.

Labor moved to circumvent the Section 53 issue by adding a further amendment providing that members of the medical panel not be paid.

Leader of the House Christopher Pyne declared Labor and the crossbenchers “don’t care about the Australian constitution”.
“The English fought a civil war over this matter,” he said.

Bill Shorten said: “This bill and our amendments are about Australia’s character.
It’s about how we treat sick people in our care.”




Read more:
View from the Hill: Shorten’s victory will bring dangerous counter strikes from a desperate government


Scott Morrison said Labor was “failing the test of mettle … failing the test of duty to the Australian people. This is now on your head, Leader of the Opposition.”

The final vote came after the government lost procedural votes by the same margin.

The bill has to go back to the Senate to approve the amendments passed in the House.

Morrison told a Tuesday night news conference that the vote had not been unexpected and the government had already been working on contingency plans.

He would have “more announcements to make about the actions and decisions the government will be taking to address now the risk and the threat that Labor and Bill Shorten have created”.

He indicated the government would not frustrate the bill getting royal assent once it passed the Senate. Home Affairs Minister Peter Dutton told the ABC the government would abide by the law.

Morrison dismissed any suggestion that the defeat amounted to a no confidence motion in the government, referring back to what Phelps had said. Phelps has consistently emphasised the bill should not be viewed as a confidence matter.

The Prime Minister also played down the historic nature of the defeat, pointing to the Labor government losing a vote on superannuation in 2013.

The government will use the Labor success to ramp up its attack on the opposition. In the run up to the vote Morrison has turned up the rhetoric, accusing Labor of undermining offshore processing.

At his press conference Morrison said that Shorten would also be weak on turning back boats. Shorten “can’t be trusted to do that either,” he said.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Labor leads 53-47% in Newspoll as Shorten struggles with medical transfer bill


Michelle Grattan, University of Canberra

The government goes into the resumption of parliament this week
trailing Labor 47-53% on the two-party vote in Newspoll, unchanged
from a fortnight ago.

The poll comes as Labor’s stand on the legislation to facilitate
medical evacuations hangs in the balance, with Bill Shorten having
indicated he would like to find a compromise and speculation about a Labor retreat from its earlier support.

Shorten receives a briefing on the implications of the bill from the secretary of the Home Affairs Department, Mike Pezzullo on Monday. Shadow cabinet and caucus will discuss Labor’s position.

The opposition has been under concerted attack from the government
over its backing for the legislation, which passed the Senate last
year with ALP support.

Shorten is worried about Labor being wedged, because border protection is always a politically vulnerable area for the ALP.

Scott Morrison says the government will not shift from outright
opposition to the bill, which is based on a proposal originally coming from independent Kerryn Phelps but subsequently refined.

Newspoll, published in The Australian, has Labor’s primary vote up a point to 39%; the Coalition’s vote remains on 37%. The Greens are on 9%; One Nation is polling 5%, down a point.

Morrison has increased his lead over Shorten as better prime minister by 2 points to 44-35%.

Morrison’s satisfaction rating is up 3 points to 43%; his
dissatisfaction rating has fallen 2 points to 45%. Shorten has a net approval rating of minus 15, a worsening by 2 points.

The tactical battle over the medical transfer amendments will dominate the run up to Tuesday’s first day of the sitting. On another front, the opposition is trying to muster the numbers for extra sitting days to consider measures from the banking royal commission.

In comments on the medical transfer bill Opposition spokesman Shayne Neumann said on Sunday: “Labor has always had two clear objectives – making sure sick people can get medical care, and making sure the minister has final discretion over medical transfers.”

The bill provides that where there a dispute between the two doctors recommending a transfer and the minister, the final say on medical grounds would be in the hands of a medical panel.

The minister could override medical decisions only on security grounds (“security” is as defined in the ASIO act).

Passage of the legislation, which would require support from Labor and all but one of the crossbench, would be a big rebuff for the
Coalition.

But the government has managed to turn the heat onto Labor, claiming the legislation would undermine Australia’s border protection.

The briefing Shorten will receive will put more pressure on the
opposition, because Home Affairs will presumably reinforce the
argument it advanced in advice to the government.

The government has now declassified this advice – which last week it provided more informally to The Australian.

The advice, which has some sections blacked out, says: “The
effect of the Bill will undermine the Australian Government’s regional processing arrangements.

“Conduct which would come within the security exception to transfer
based on the minister’s reasonable belief that the transfer would be prejudicial to security, does not include all criminal conduct”.

“Ultimately, the amendments provide that the approximate 1000
transferees currently located in Papua New Guinea (PNG) and Nauru
could have access to a transfer to Australia within weeks of any Royal Assent,” the advice says.

“It is not expected that the Minister’s ability to refuse transfer on security grounds will significantly reduce the number of potential transfers”.

Neumann said on Sunday: “Labor has great respect for our national
security agencies and we’ve always worked cooperatively with them.”The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.