There’s no airport border ‘crisis’, only management failure of the Home Affairs department


Regina Jefferies, UNSW and Daniel Ghezelbash, Macquarie University

In the past five years, more than 95,000 people who arrived by plane have lodged a claim for asylum in Australia, new statistics show.

Labor’s Immigration Spokesperson, Senator Kristina Keneally, has labelled this a “crisis”, stating:

Peter Dutton’s incompetence and recklessness has allowed people smugglers to run riot and traffic record-breaking numbers of people by aeroplane to Australia.

But the “crisis” is not that visa-holding travellers are flying to Australia, then later lodging a claim for asylum. It’s not unprecedented for tourists or students to later lodge a claim for asylum due to circumstances beyond their control.




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Peter Dutton is whipping up fear on the medevac law, but it defies logic and compassion


In 1989, for example, after events in Tiananmen Square, Australia provided refuge to thousands of Chinese students who had entered Australia with visas.

Instead, the “crisis” is the Australian government’s failure to properly manage the refugee-processing system. It gutted the ranks of experienced decision-makers and made organisational changes that undermine the quality of decisions, contributing to long processing delays and backlogs.

These organisational failures may have contributed to the increase in asylum applications over the last five years.

High staff turn-over

Protection visa decisions are highly complex. They must examine a variety of factors, including country-specific conditions and individual circumstances.

Yet, as the Australian National Audit Office noted in 2018, the Home Affairs department experienced a significant loss of “corporate memory” due to staff turn-over, “with almost half of SES officers present in July 2015 no longer in the department at July 2017”.

In a Senate Estimates hearing last year, Home Affairs officials said the average processing time for permanent protection visas, from lodgement to primary decision (not including appeals), was 257 days, or 8.5 months.

And the department’s training deficiencies are well-documented. The most recent Australian Public Service Employee Census put the department’s organisational management problems into stark relief: only 35% of employees said the department inspired them to do their best work, while two-thirds of respondents said they did not consider department senior executives to be of “high quality”.

These publicised problems raise important questions about the quality of decision-making at the primary level.

Stacking the AAT with political allies

Poor decision-making at the primary level can lead to higher numbers of appeals. So it’s perhaps unsurprising that appeals to the Administrative Appeals Tribunal (AAT) from people who arrived by plane are also experiencing significant blowouts.

The number of active refugee cases to the AAT has ballooned from 8,370 two years ago, to 23,063 in 2019.




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This results in a backlog. In 2017, the tribunal made 5,153 decisions on refugee claims, and so far this financial year, only 815 claims have been concluded.

In part, these worrying figures are due to the federal government appointing people with Liberal Party ties to the AAT over the last couple of years.

The Attorney-General recognised these problems in the 2019 Report on the Statutory Review of the Tribunal, which pointed to “competencies of members” as a key contributor to complications in the operation of the tribunal.

Stacking the AAT with political allies, many of whom are not lawyers and who are not appointed on merit, has removed independent expertise from the tribunal, risking errors and further delays.




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And with more errors come further appeals in the courts. This not only places a heavy burden on the resources of the Federal Circuit Court and Federal Court, but also leads to more delays and backlogs in the AAT, where the court sends matters which were unlawfully decided for re-determination.

Address organisational failures

The solution is in proper organisational management. Instead of blaming refugees for fleeing persecution by safe means, the government must address the failures of its refugee processing system.

To this end, an urgent review of the Department of Home Affairs policies and organisational failures is needed. A review could find out whether there’s a management culture stopping Home Affairs from attracting and retaining staff who can make reasoned and well-supported decisions in an environment they can be proud of.




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‘Stop playing politics’: refugees stuck in Indonesia rally against UNHCR for chronic waiting


Similarly, there must be a transparent and independent system for appointing AAT members that prioritises skills and experience over politics – exactly what was recommended by the Attorney-General’s recent review.

If people seeking asylum can have their claims assessed quickly and fairly, then those who are not refugees can be sent home, while those needing safety could receive it.

Without the chance to remain in Australia for years while their claims are assessed, there would be no loophole for traffickers and others to exploit.

In turn, the number of non-genuine claims will go down, allowing decision-makers to focus on those who are actually fearing persecution.




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We should be supporting refugees to access safety by air. If people fleeing persecution can access a flight to Australia, they won’t risk a dangerous journey by boat to find safety.

This is not an airport border “crisis”, it’s a management failure that can be fixed with more staffing, better resourcing, and transparent and meritorious appointments of decision makers.


Correction: A previous version of the article stated 815 refugee claims were concluded this year. This has been updated to clarify that 815 of claims were concluded during this financial year.The Conversation

Regina Jefferies, Affiliate, Andrew and Renata Kaldor Centre for International Refugee Law, UNSW and Daniel Ghezelbash, Senior Lecturer, Macquarie Law School, Macquarie University

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

‘Stop playing politics’: refugees stuck in Indonesia rally against UNHCR for chronic waiting


Chrisanthi Giotis, University of Technology Sydney

One evening last month, the young man from Afghanistan, of Hazara ethnicity, arrived in Jakarta. His people-smuggler dropped him at the UNHCR entrance reserved for refugees, where he was told to wait.

The next day, mid-morning, he was still outside waiting to speak to someone. He was too afraid to give me his name or even his age, but he appeared to be in his early 20s.

He had been fleeing for 20 days, ten days hiding in wait in Kabul, then another ten days in transit through three countries. His choice to come to Indonesia was based solely on escaping immediately.

Through a translator he said:

I needed to get out quick. I just wanted to come as soon as possible so I came through an agent. My agent brought me here, I have no shelter so I am just waiting for the UNHCR for information.




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I’ve been working with a refugee-run school in Indonesia for the past year. There, refugees aren’t allowed access to education or work, and asylum seekers can be arrested at the whim of authorities. This, compounded with chronic waiting, has led to a straining relationship with the UNHCR, the key institution in their lives.

Only 509 of 14,016 people (3.5%) were resettled in Indonesia last year. Of those , only 84 came to Australia. And so far this year, the number of people resettled from Indonesia to Australia is just eight.

Figures like these explain why, for many months now, the UNHCR office in Jakarta has been the subject of ongoing protests made up of street protests outside the building in the city centre and civil disobedience in the upscale suburb of Kalideres. Refugees and asylum seekers have refused to vacate a disused military building temporarily allocated to them.

Like false advertising

Refugees argue the very existence of the UNHCR Jakarta office is a kind of false advertising.

Twenty-four-year-old Ali Jawad Haidari has been in Indonesia for over seven years. He said:

If you cannot support refugees you should close your office. You should say we cannot support refugees, announce in the media we cannot do anything.

At Kalideres, the broken trust is visceral. People question the staff’s willingness to prosecute cases, and why they visited Kalideres with security guards when there was never a hint of violence in the months of protest (and for that matter, why they were not allowed to enter the main UNHCR building through the front door).

They also questioned the ethics of the UNHCR, when the institution offered a one-off payment of roughly a month’s living expenses to the refugees in exchange for leaving the Kalideres site. The refugees initially thought this would be the beginning of ongoing UNHCR support.

And they questioned why the agency supposed to protect them would turn off their electricity and water.




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In fact, “The UNHCR is making me sick” is a refrain I heard multiple times during interviews.

Hassan Ramazan, a spokesperson for the Hazara refugees at Kalideres, said the sit-in protests exist because their community and the relatives who support them by sending cash, are at breaking point. He said:

There are people here since 2009, 10, 11, 12, 13, their supporters can not support them any more.

The refugees who wait

Ramazan also points to the seeming arbitrariness of resettlement. Interview wait times to determine refugee status vary, with some who arrived more recently resettled than those who’ve been waiting for years.

What’s more, single men believe they are treated with suspicion in western countries. Twenty-eight-year-old Muhammad Hanif is one of those single men, who received his refugee registration in 2013. He said:

Lots of singles have been here seven or eight years, we also pray for families to be resettled, but also for us, it should be fair.

And Haidari points out people may have arrived alone but are still family members – brothers, sons, fathers.

My friend arrived alone and is still waiting. Recently his 13-year-old son was injured in a bomb blast in Afghanistan, spent two months in hospital, and still the UNHCR said they can’t do anything.

My friend when he came here his son was six, now he’s 13-years-old and injured.

Work rights could alleviate chronic waiting

Waiting is a contemporary strategy of migration management.

But chronic waiting must be taken into account in refugee policy, as it causes and prolongs psycho-social damage and changes the nature of societal and institutional relationships.




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For the majority of refugees, chronic waiting is unlikely to result in effective protection unless a refugee’s country of origin becomes safe to return to. This is unlikely in the foreseeable future for the major refugee producing countries.

Even in countries with major refugee populations, their plight is mostly ignored.

But not always. In Malaysia – where the refugee population is ten times that of Indonesia and work has been informally accessed for years – there are moves to make work legal for refugees.

Work could help alleviate economic pressures and restore agency and dignity lost in waiting. But the refugees are keenly aware of Indonesia’s local poverty and insecure work conditions. And because Indonesia is not a signatory to the 1951 Refugee Convention, it is not obliged to look after refugees.

Masooma, her two-year-old daughter Zahra and her husband Ali are one of the families protesting in Kalideres.
Author provided

Nevertheless, ways for refugees to sustain themselves are supposedly being discussed in Indonesia.

For Haidari, a martial arts champion, work would solve many of his problems. But the authorities have stopped him from competing. He said:

If I could just fight I would never knock on the UNHCR door again.

Refugee spokesperson Ramazan doesn’t see work rights as the ultimate solution, but he does ask what sort of generation is being created. They’re living on the streets, without access to education or the example of seeing their parents work.

Thirty-seven-year-old Masooma, who is in the Kalideres complex with her husband and two-year-old daughter, has another, pointed, question.

They say the first priority is for people with critical problems, who are sick, and that’s the reason resettlement is slow.

Since they don’t give us support and assistance of course we will get sick, and then what should we do with that process? What will we do if we get sick and then go to another country?

Essentially, there is no point in breaking people, then helping them.The Conversation

Chrisanthi Giotis, Postdoctoral Research Fellow, School of Communication, University of Technology Sydney

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

Peter Dutton is whipping up fear on the medevac law, but it defies logic and compassion



The medevac law was passed to streamline the process for emergency medical evacuation of refugees from Manus Island and Nauru. Thirty-one people have been transferred since its passage.
Refugee Action Coalition

Alex Reilly, University of Adelaide

With all the hyperbole about the medevac law, it is easy to lose sight of its purpose.

Refugees have been transferred off Nauru and Manus Island for emergency medical treatment since offshore detention restarted on these islands in 2013. The Department of Home Affairs reported to Senate estimates that 898 refugees and asylum seekers had been sent to Australia for medical treatment prior to the passage of the medevac law earlier this year. Of those, 282 were returned to Manus and Nauru after receiving treatment, and the rest remained in Australia in detention.

These transfers occurred in response to pleas from doctors and health professionals on an ad hoc basis. And it was up to the Home Affairs Department and Minister Peter Dutton whether to comply with such a request. Medical emergencies could include life-threatening brain or heart conditions, complex abortions, or emergency psychiatric care for children at risk for suicide – all of which are beyond the capacity of the health systems on Nauru and Manus to treat.

Although some refugees were granted emergency medical evacuation, many others were not. In response, legal cases were brought against the government for breaching its responsibility to care for the refugees.




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This required the federal court to convene at short notice to hear cases. It also required the expenditure of huge amounts of taxpayer money to call expert medical witnesses and file thousands of pages of supporting documentation.

Because of the delays in treatment, these legal battles were enormously risky for those in need of medical care.

Through these early cases, the court established that it was a breach of the government’s duty not to provide refugees with emergency medical treatment. And yet, the Home Affairs Department continued to fight applications for transfers for emergency medical treatment, only to be overturned by the courts, time and time again.

How the process works under the medevac law

The medevac law was passed due to concerns the department was rejecting transfer applications for political rather than medical reasons. The point was to provide an expedient, objective process to determine whether transfers were required.

And despite the Coalition government’s opposition to the bill, the process for determining which refugees are moved off Nauru and Manus for treatment remains highly deferential to the minister and Department of Home Affairs.




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There are two stages to this process.

First, two doctors must assess the person and make a recommendation for transfer. The federal court recently ruled it was possible to make this medical assessment based on documentation alone, as opposed to an in-person or teleconference assessment. This was a necessary adjustment to the law, given that the Nauru government has banned teleconferences for residents.

The minister is required to approve or refuse the recommendation for transfer within 72 hours. There are three grounds for refusal:

  1. the person is deemed a security risk
  2. the person has a “substantial criminal record” (which equates to having been convicted of an offence with a sentence of imprisonment for 12 months or more)
  3. the minister does not accept the transfer is necessary on medical grounds.

If the minister rejects the transfer on medical grounds, the second stage of the process kicks in, with an independent health advice panel (IHAP) assessing the doctors’ recommendation. It is important to note that this panel is comprised of government medical officers and other health professionals appointed by the minister.

To date, there have been 31 medical transfers under the law. In addition, nine recommendations were refused by the government. The panel of health experts upheld seven of the minister’s refusals, and overturned two.

Dutton’s claims don’t stand up under scrutiny

Dutton has made a number of claims about the impact of the medevac law that he argues justify its repeal. All defy reason and logic.

First, the minister has claimed “activist doctors” were using the law to bring people to Australia when they do not require emergency medical care.

This is frankly highly offensive to the medical profession in Australia, and contradicts the clear intention of the law to take politics out of transfer decisions. Even if doctors making the initial recommendation are too left-leaning for Dutton, the expert panel is stacked with medical practitioners of his choosing.




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Second, the minister has argued that the capacity to be transferred to Australia for emergency medical treatment will lead to a resumption of the people-smuggling trade.

This is patently absurd. It is true that people smugglers can make up all sorts of stories about Australia relaxing its policies and it being easier to get to Australia. But the facts are crystal clear: the Coalition government maintains a policy of boat turn-backs and indefinite offshore detention for anyone thinking of making the journey.

Medical transfers to Australia are for a temporary period. Once people have been treated, they are returned to detention on Nauru or Manus. It is true that many asylum seekers have remained in Australia for extended periods for ongoing treatment, but these refugees remain within the immigration detention system. They are escorted to medical appointments and remain under guard while receiving treatment. They are given no hope of putting down roots in Australia.

The deterrent to people smugglers remains overwhelming. And, unsurprisingly, we have not seen a restarting of boat arrivals following the passage of the medevac law. Dutton’s own department has signalled this is unlikely in a briefing:

[Potential illegal immigrants] will probably remain sceptical of smuggler marketing and await proof that such a pathway is viable, or that an actual change of policy has occurred, before committing to ventures.

The only possible messaging that people smugglers might use to persuade people to get on a boat is the Coalition government’s own dire warnings of reopening the floodgates and political stunts like the brief resurrection of the Christmas Island detention centre at the staggering cost to taxpayers of over A$180 million.

Dutton’s third claim is that some refugees are refusing resettlement offers in the US because of the medevac law.

Again, it defies logic for refugees to refuse the US option – it is the only hope of resettlement currently on offer. One wonders whether the minister is using this claim as a cover for the fact that transfers to the US have come to a grinding halt under President Donald Trump.

The medevac law and human compassion

For over six years, successive Australian governments have maintained an unwavering narrow focus on stopping refugee boats with no concern for the victims of this policy – the innocent people on Manus and Nauru.

These people are under Australia’s care. It is Australia that pays the governments of Nauru and PNG to house offshore detention centres to create the disincentive for others to travel by boat to Australia. It is Australia that pays the security companies to keep them detained. And so it is Australia that is responsible for the dramatic decline in their mental and physical health.

It is the narrowest of concessions to offer emergency medical treatment in Australia to people we have so mistreated.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.

There are 70 million refugees in the world. Here are 5 solutions to the problem



Little has been done to help the millions of refugees from Myanmar, Venezuela, Syria and other troubled countries find permanent resettlement options.
Nyein Chan Naing/EPA

Gerhard Hoffstaedter, The University of Queensland and Sara Riva, Griffith University

This week, the UN High Commissioner for Refugees, Filippo Grandi, labelled the world’s refugee problem a crisis that is primarily impacting developing countries, who are hosting most of the world’s 70 million displaced people.

It’s the highest number of people fleeing violence since the second world war, the agency said in a report. Last year, 37,000 people were forced to flee their homes every day.

My colleague and I have conducted extensive research on refugees at the US-Mexico border and in Southeast Asia and Australia, studying the lives of people in detention, in transit, and resettled in host countries. In all these cases, an enduring problem is that nations are not doing enough to provide adequate protection for refugees.

Australia, and the international community as a whole, needs to do more to help the world’s most vulnerable people. Here are five solutions we believe can work.

1. Give them their rights: enforce international conventions

Most countries have either signed the 1951 Refugee Convention or its 1967 Protocol. These ensure basic rights and protections for refugees, in addition to other human rights conventions.

However, many nations maintain reservations on key articles, have not implemented the agreements or simply do not comply with their international obligations. Others do not provide access to these protections for people without legal status, such as refugees.

Addressing the nonexistent enforcement mechanisms of international conventions, agreements and declarations is the first step for improving refugees’ rights.

2. Share the responsibility: regional refugee compacts

In December 2018, the UN Global Compact on Refugees was agreed to by 181 countries. The document has the following objectives:

  • easing the pressure on host countries
  • helping boost the self-reliance of refugees
  • expanding access to third-country resettlement options
  • supporting conditions in refugees’ home countries to help them safely return.

The global compact also includes recommendations for similar regional and national action plans.

Cooperation of this sort has been attempted in our region before with the Bali Process, which focused on cross-border people smuggling and trafficking. But this agreement had an adverse effect by criminalising the movement of people across borders to seek asylum.

A regional refugee compact would shift the focus away from border protection and deterrence and instead ensure refugees receive the protections they need in transit and on arrival in host countries.




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3. Treat refugees like human beings: close detention centres

According to the UNHCR, detention should be considered a last resource for countries dealing with influxes of refugees. And yet, refugee confinement has become common practice.

All over the world, the closure of borders and privatisation of immigration detention centres have resulted in a rapid increase in the imprisonment of refugees, including women and children. Although Australia has moved hundreds of refugees off Manus Island and Nauru in recent years, there are still 915 remaining in detention centres on the islands.

It is paramount that detention centres and offshore processing centres be closed. The practice is not only cruel, it’s expensive. According to the Refugee Council of Australia, it costs more than A$573,000 a year to hold just one refugee in detention on Manus or Nauru.




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The International Detention Coalition has identified over 250 alternatives to detention, such as providing temporary legal status to refugees while they await decisions on their permanent status.

Another alternative is to increase global refugee resettlement quotas. These quotas have been decreasing sharply around the world in recent years. The US, for instance, resettled fewer refugees than Canada in 2018.

4. Allow them to participate: work rights for refugees

Refugees should not be treated as passive recipients of humanitarian aid and charity – they should be permitted to work.

Providing working visas for refugees in transit countries, as well as those on bridging visas or waiting for their asylum claims to be processed, would help them earn a livelihood and contribute to society.

In Malaysia, for example, refugees have no work rights at all and have to work illegally in the shadow economy. In Australia, work rights for many refugees on bridging visas depend on the discretion of the Home Affairs department.

Another important issue: permitting refugees the right to work must also come with safeguards to prevent their exploitation.

5. Let them in: open borders

This “refugee crisis” is really just a crisis of who has the right to move. Thanks to the birthright lottery, some people are able to move freely across borders, while others remain trapped in violence and poverty.

If borders were open to all, the human smuggling business would cease to exist. And refugees of all sorts, including those displaced by climate change, would be able to enjoy work rights and access to health care and education.




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Even though we live in an era where more walls are going up between nations, we have evidence this does not stop migration.

And the evidence for the economic benefits for open borders is unambiguous. According to some estimates, opening the world’s borders could increase global GDP by US$100 trillion. We just need to take a bold step and give refugees a right already enjoyed by some – the right to move.


The authors will be discussing the world’s response to the global refugee crisis at a talk on Thursday, June 20, at the University of Queensland.The Conversation

Gerhard Hoffstaedter, Senior lecturer in Anthropology, The University of Queensland and Sara Riva, Resident Adjunct, Griffith University

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

Australia’s asylum seeker policy history: a story of blunders and shame


Carolyn Holbrook, Deakin University

This article was developed from a series of interviews with politicians, officials and other key players, including former Immigration minister Chris Evans and former Victorian premier Steve Bracks. Others preferred to remain anonymous.


We know very little about the kind of government Scott Morrison runs. After beating Peter Dutton and Julie Bishop to the prime ministership in August last year, most commentators assumed Morrison was keeping the chair warm until Labor’s Bill Shorten won the 2019 election.

Following the Coalition’s unexpected victory, it’s time to ask more searching questions, not only about Scott Morrison’s political values and policy aspirations, but about his prime ministerial style.

Recent history suggests processes of policy decision-making can make or break governments.




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Cruel, and no deterrent: why Australia’s policy on asylum seekers must change


Labor’s shambolic attempts to create asylum seeker policy during the Rudd-Gillard years are emblematic of the dire consequences when tried-and-tested processes of policy advice fail.

In the face of internal dissent, thousands of asylum seekers arriving by boat and a marauding opposition leader, the government rejected its most vital source of advice, the public service.

It began in 2009

In mid-October 2009, Prime Minister Kevin Rudd was informed that a vessel carrying 78 Sri Lankan asylum seekers was in danger of sinking in Indonesian waters. Rudd negotiated directly with the Indonesian president Susilo Bambang Yudhoyono and decided to dispatch a Customs vessel, the Oceanic Viking, to rescue the asylum seekers and return them to Indonesia.

The then immigration minister Chris Evans first heard of the plan when he received a phone call from Rudd’s chief of staff, Alister Jordan.

Jordan was not consulting the immigration minister, but rather informing him of a plan that had been enacted. Evans rang his departmental secretary, Andrew Metcalfe, who told him the plan would not work because the asylum seekers would refuse to disembark.

As Metcalfe had foreseen, the asylum seekers refused to leave the Australian boat at Bintan. Australian voice surveillance revealed there was talk of mass suicide.




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The standoff lasted four weeks, until a deal was struck that saw the Sri Lankans resettled in countries including New Zealand.

Officials in the Immigration Department were dumbfounded. One told me:

The Oceanic Viking was a thought bubble from Rudd … It was an absolute debacle. It was crazy. It had nothing to do with immigration but we were asked to go in and fix it up. And that scuttled any possibility of us doing anything with Indonesia for a long time.

The boats kept coming. There were 6,555 boat arrivals in 2010. On the night he lost the prime ministership to Julia Gillard, Rudd told the Labor caucus that if he won the leadership vote, he would “not be lurching to the right on question of asylum seekers”.

What Rudd didn’t mention was that the government had been actively exploring offshore options for some time.

The Immigration Department had prepared a list of possible sites for offshore detention that included Malaysia, Pakistan, Thailand, Indonesia, and East Timor.

Sounding out the East Timorese government

Evans was focused on pursuing a multilateral solution. His officials consulted with members of the refugee lobby, including the prominent lawyer David Manne, about being part of a broader regional arrangement that had the approval of the United Nations High Commissioner for Refugees (UNHCR).

Evans and his department worked on an offshore deal that would meet with the approval of Australian stakeholders, neighbouring countries, and the UNHCR. But meanwhile, a small group of ministers focused on East Timor.




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


The former Victorian premier, Steve Bracks, was approached at an airport and asked to sound out the East Timorese government about a processing centre. Bracks reported back that Prime Minister Xanana Gusmao was interested, but he would need some time to win support within his government.

Gusmao wanted negotiations to be done through the president, Jose Ramos Horta. This process was in train when Kevin Rudd was overthrown as prime minister on June 24, 2010.

In a speech to the Lowy Institute on July 5, the new prime minister, Gillard, announced she had discussed with Horta the possibility of establishing a regional processing centre in East Timor. But in going public, she had pre-empted the internal East Timorese process. Gusmao distanced himself from the plan and it quickly fizzled.

Meanwhile, the public servants who had been working on the multilateral solution were left scratching their heads. One official told me:

I have no idea where [East Timor] sprang from.

We were working on arrangements … and one of the really difficult things was thought bubbles kept coming from funny quarters and then you’d have the media onto it, laughing at it or making a joke of it.

Failed Malaysia initiative

After the 2010 election, the new immigration minister Chris Bowen secured an offshore processing arrangement with Malaysia. Immigration Department officials had encouraged Bowen to bring refugee stakeholders and the UNCHR on board.




Read more:
Refugees are integrating just fine in regional Australia


But Bowen, who was facing immense political pressure from opposition leader Tony Abbott, preferred to deal unilaterally with his Malaysian counterpart, Hishamuddin Hussein, with whom he had developed a strong rapport.

Hours before the first 16 asylum seekers were due to be transported to Malaysia, Manne obtained an injunction against their removal from Australia, pending a challenge to the legality of the government’s agreement with Malaysia.

In September 2011, the High Court decided in a six-to-one decision that the Malaysia agreement contravened the Migration Act because the refugees would not be given the protection required by the Australian legislation.

According to a key player, the High Court ruling was the product of a profound failure of process:

the government did a very bad job at … going to the organisations who would be part of any solution. And, instead, pissed them off so comprehensively they went to the High Court.




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


After the failure of the Malaysia initiative, the Gillard government hurriedly reopened the Nauru and Manus Island processing centres.

In 2013, then Prime Minister Kevin Rudd and Opposition Leader Tony Abbott debate about asylum seeker policy, and the ‘PNG solution’.

When Rudd replaced Gillard in June 2013, he announced that no one who arrived by boat would ever be settled in Australia. The boats slowed, but it was the institution of boat turnbacks under the Abbott government’s Operation Sovereign Borders that stopped them altogether.

The consequences of the Rudd and Gillard governments’ blundered handling of asylum seeker policy were considerable. Indonesia and East Timor were unnecessarily offended, the government’s political fortunes suffered and, most significantly, asylum seekers were again subjected to processing on Nauru and Manus Island.




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It is conceivable that Manus and Nauru would have remained closed and Operation Sovereign Borders rendered unnecessary had the Rudd and Gillard governments heeded the advice of the Immigration Department to bring key refugee stakeholders and UNHCR on board into the process.

The institution of rigorous decision-making processes will not guarantee Scott Morrison’s success, but they could help him avoid many of the pitfalls that contributed to the downfall of the Rudd and Gillard governments.


Carolyn Holbrook is presenting a talk on this topic at the Australian Policy and History ‘History and the Hill’ Conference at Deakin University on Thursday, June 13The Conversation

Carolyn Holbrook, ARC DECRA Fellow at Deakin University, Deakin University

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

Cruel, and no deterrent: why Australia’s policy on asylum seekers must change


Alex Reilly, University of Adelaide

The Coalition’s election victory on May 18 had an immediate psychological effect on the refugees on Manus Island, with reports of several people attempting suicide.

Two class-action lawsuits currently before the High Court allege “torture”, “persecution” and “other inhumane acts” in Australia’s offshore detention centres. This action follows an action for damages in 2018 that the federal government settled for A$70 million, effectively admitting that the claims of mistreatment were well-founded.

The Iranian-Kurdish journalist and poet Behrouz Boochani, who has been detained on Manus for six years, has borne witness to a cruel system in his book, No Friend But the Mountain. Written secretly on a mobile phone, the book has won a swag of major Australian literary awards.




Read more:
Book Review: Behrouz Boochani’s unsparing look at the brutality of Manus Island


As a result of the testimonials of Boochani and others, the terrible conditions on Nauru and Manus are well-known. There are regular reports of physical and mental illness due to unsanitary conditions, cruel treatment and hospitals with no capacity to deal with the extent and severity of the health crisis among the refugee populations.

These reports reinforce the underlying cruelty of subjecting innocent human beings to indefinite and arbitrary detention in the first place. And to what end?

There is no justification for offshore detention

For many years, there has been no justification for the detention of asylum seekers on Manus and Nauru.

The original justification of deterring others from making the dangerous journey from Indonesia to Australia carries no weight. The point has been well and truly made that attempting to reach Australia by boat is a futile exercise. In the words of the allegations in the class action, the journey will result in years of:

…arbitrary, indefinite detention in tents, barrack-style buildings, or small, hastily constructed dwellings where living conditions lead to poor health […] physical, sexual and psychological abuses, [and] systemic mental distress.

The government claimed that the medivac law passed in February risked a new wave of boat arrivals and spent over A$180 million reopening the Christmas Island detention centre in preparation for new arrivals. The government has since committed to closing Christmas Island again. The expense involved in this political exercise is staggering, with absolutely no benefit to the taxpayer.

There has also been no new wave of boat arrivals. Deputy Prime Minister Michael McCormack revealed Thursday that a boat from Sri Lanka had been intercepted near Christmas Island this month. However, the details of who was on board, and why the boat was in Australian waters has not been made publicly available.

There will always be the occasional refugee boat arriving Australian waters for a variety of reasons, but it is important to distinguish these isolated occurrences from a reigniting of the people-smuggling trade.




Read more:
Australia’s government failed to stand up for press freedom after Nauru barred ABC journalist


It’s high time the government ceased linking detention on Manus and Nauru to stopping the boats. The evidence does not stack up. As I, and others, have argued previously, the experience during the Howard years suggests that simply the possibility of offshore detention is a sufficient deterrent.

When the government settled asylum seekers on Nauru in Australia and New Zealand from 2002-04, without dismantling the offshore detention regime, asylum seekers did not begin arriving by boat.

Most asylum seekers in Indonesia are registered with the UNHCR and are waiting for resettlement through the UNHCR process. Their situation is admittedly desperate. Nonetheless, when interviewed after the passing of the medivac law, asylum seekers in Indonesia testified that they did not see taking a boat to Australia as an option.

It’s important to remember that asylum seekers have done nothing wrong in seeking our protection. Australia is a signatory to the UNHCR Refugee Convention, which establishes a responsibility to protect people who arrive on our border seeking protection. If offshore detention can be justified as deterrence at all, it must surely be kept to the bare minimum, in the context of our protection obligations.

Long-term detention is simply cruel and rightly labelled a “crime against humanity”.

Alternatives to detention

If there is even a remote possibility of a boat arriving in response to resettling refugees from Manus and Nauru in Australia and New Zealand, the government has many deterrence strategies at its disposal.

One novel strategy that avoids the need for offshore detention is Labor’s 2011 Malaysia arrangement. The deal was a simple one. In exchange for the transfer to Malaysia of 800 asylum seekers who arrived in Australia by boat, Australia would provide financial assistance to Malaysia and resettle 4,000 UNHCR-recognised refugees on top of existing commitments to resettle refugees from the region.




Read more:
Refugees and asylum seekers in Malaysia: the good, the bad and the unexpected


An important part of the arrangement was that those asylum seekers returned to Malaysia would not be penalised, and would be provided with housing, the right to work, and access to education for children.

The arrangement would act as an effective deterrent to people taking a boat to Australia to seek asylum because their expensive and dangerous journey would just result in their return to Malaysia. The Malaysia arrangement had the benefit of refocusing Australia’s response to asylum seekers and drawing in our neighbours to a regional response.

It’s critical that the Australian government take a new direction in refugee policy and move beyond its tired and false rhetoric of deterrence as a justification for detaining refugees on Nauru and Manus.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.

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.

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.




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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.