Senior Law lecturer Dr Mary Crock speaks at St Hilary's Anglican Church in Kew
"The terrorist attacks in America and the campaign in Afghanistan have left many people fearful, should the Australian government have less than perfect control over our borders."
"People worry that the boat people arriving from Iraq and Afghanistan could be terrorists."
"In spite of the thousands of words written and spoken about "refugees" and "boat people" in this country, my feeling is that public understanding of the issues is less than perfect.
As Christians, what are we to make of Australia's refugee problem?"
By Mary Crock 
St Hilary's Anglican Church, Kew
20 July 2002
"You have been a refuge for the poor, a refuge for the needy in his distress, a shelter from the storm and a shade from the heat. For the breath of the ruthless is like a storm driving against a wall." (Isaiah 25:4)
"By this shall all men know that you are my disciples, if you have love one to another." (John 13:34-36)
The theme of today's seminar lends itself well to reflection on an issue of great prominence - and great importance - in Australia today. That is, out treatment of people who come to this country and seek out protection because they are refugees. Over the last 6 years we have seen a steady and resolute toughening in our laws and policies, culminating last year with the extraordinary "Tampa" affair and a program for deflecting boat people to Pacific islands that has been dubbed the "Pacific Solution". At the centre of the storm are "asylum seekers" - persons who come seeking shelter from persecution in Australia. For those who make it to Australia's mainland (without the obligatory visa), detention in remote and inhospitable centres is the norm. Unauthorised arrivals who gain legal recognition as "refugees" can no longer expect as a matter if course that they will be allowed to remain here permanently or even have the right to family reunion.
On the other side of the coin, the terrorist attacks in America and the campaign in Afghanistan have left many people fearful should the Australian government have less than perfect control over our borders. People worry that the boat people arriving from Iraq and Afghanistan could be terrorists.
In spite of the thousands of words written and spoken about "refugees" and "boat people" in this country, my feeling is that public understanding of the issues is less than perfect. As Christians, what are we to make of Australia's refugee problem?
The perspective I offer is that of a lawyer and one time advocate for refugees who is now an academic with experience of a variety of systems of law - national and international. It is also the perspective of one who watched the Tampa affair unfold from outside of the country. In this short paper I will begin with a few words on the law and what Australia's "protection" obligations are when people are characterised as "refugees". I will then look at the nature of Australia's refugee problem, focussing on three main areas of concern. The first relates to the mandatory detention of asylum seekers, the second to the temporary protection regime and the third to the famed "Pacific Solution".
The reason politicians get so upset about people who come to the country without a visa seeking protection as refugees is that Australia has assumed certain obligations in relation to "refugees" as defined under international law. The most important promise Australia has made is that it will not return or refoule a "refugee" to a country where he or she faces persecution. Although the word "refugee" is used by all of us in many different senses, to lawyers the word is a term of art. A refugee is defined in the international Refugee Convention of 1951 as someone outside their country of origin who is unable or unwilling to return there because of a "well-founded fear of persecution" in their home country for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
The significance of this is twofold. The first point is that Australia is not obliged to take in every person who manages to make it to our shores. The five grounds narrow dramatically the range of people to whom Australia owes protection obligations. The second is that Australia is obliged to work out whether or not people are refugees if they come here asking for protection. This is not an easy task. It is tricky, time consuming and the subject of a great deal of jurisprudence (legal precedents) and complicated procedures.
Given the frequency with which the issues of refugees and asylum seekers dominate our newscasts, I think that it is quite clear that Australia does have a refugee "problem". I know of few other Western countries that spend as much as we do on processing and detention refugees. There is virtually no other Western country where immigration detention facilities are the source of the public angst and discord that we see in Australia.
The problem facing Australia, however, has little to do with numbers - actual or potential. It has everything to do with the policies we have adopted in a program to deflect and deter unauthorised arrivals in the name of complete immigration control. They are what I call "What If" or "Harahan" policies.
The catch phrases we are given all relate to numbers:
"There are 22 million people of concern to the United Nations High Commissioner for Refugees in the world today"; "More people are on the move today than at any other time in the history of humanity"; "Australia cannot be seen as a 'soft touch'"; "What we are seeing is the thin edge of the wedge". "We'll all be rooned" said Hanrahan, "before the year is out". 
Other countries around the world do receive many thousands of asylum seekers every year. Australia, in contrast, is in an almost unique position around the world in that it enjoys almost complete control of its borders. (As Frank Brennan SJ points out, this is due in part to the fact that we are the only country in the world that claims an entire continent to itself. )
We have a population of unlawful non-citizens in the country of around 53,000, but most of these are tourists who overstay their visas for relatively short periods of time. (It is a population that comes and goes). Over the last 11 years we have had a TOTAL of 11,805 people arrive by plane without a valid visa; and 13, 489 unauthorised boat arrivals. Most of the plane and boat arrivals translate into asylum seekers. These figures amount to 3.4 boat people per day; and 2.9 plane people per day or 6.3 unauthorised arrivals per day over the last 11 years. If a longer time frame was used the figures would drop even lower. I wonder whether this constitutes an invasion?
It is the negligible number of asylum seekers that Australia receives each year that allows the government and the media to make their alarmist claims of "400% increase" in boat people etc. To put things in context it is well to note that the burden of caring for the vast majority of the world's refugees falls on countries that are least well equipped to deal with the uninvited guests: Pakistan; Iran; Kenya; Nepal. There the numbers are sometimes in the millions, not the thousands.
4.1. The Government's arguments
The current policies are all predicated on a central, all-important fiction: that unauthorised arrivals are "queue jumpers", unworthy of fair treatment. In Parliament we hear again and again the rhetoric of "good refugees" - the "decent, genuine" refugees in the UN camps as the member for Cairns said recently - who are displaced by the opportunistic "unauthorised arrivals" the "Pakistanis" who come in the boats, jumping the queue. The reference to Pakistan is an interesting example in point, as it is through this country that the Hazaras from Afghanistan transit before making their way to Australia. Until very recently, there was no queue for these people to join. The Australian embassy in Islamabad was closed. Applicants for Australian visas were told to go to Bankok or Delhi if they wish to apply - but not to expect any preferential treatment as the backlogs are considerable.
The government has mounted its characterisation of asylum seekers as queue jumpers on the argument that what Australia has experienced in recent years constitutes a "secondary flow" of refugees. The assertion is that true asylum seekers are those who flee the immediate state in which they fear harm. As soon as the fugitives travel beyond the first port of call - in the case of Afghans this would be Pakistan - they become refugees who are seeking an "immigration outcome". International refugee law, the argument runs, does not bring with it a right to chose a place of asylum. Minister Ruddock has come close on occasion to asserting that the only way to "manage" refugee flows in an orderly fashion is to have everyone treated by one agency (ie the United Nations High Commissioner for Refugees). The truncated procedures involved in the Pacific Solution (discussed below) are justified on similar grounds. Refugee claimants, it is said, should not be accorded any more rights than the asylum seekers who are taken in by UNHCR in frontline field operations. For Western countries to accord fuller rights to make claims, allow appeals and so on, creates an incentive for people to take matters into their own hands. In short, the West, it is said, has created a rod for its own back. Australia's policies are simply matters of common sense. Because we are complying with the same minimum standards used by UNHCR in its field operations, we cannot be said to be in breach of the law.
4.2. What is wrong with Australia's response?
Australia's current policies can be justified from the standpoint of the "hard" edge of the law. The Australian government has the support of the Federal Parliament for its initiatives, at least to the extent that Parliament has passed laws to support what it is doing. From an international standpoint there are so few "hard" edges to the law that the government is able to assert compliance. The plain truth is that international politics and the absence of any accountability mechanisms mean that Australia is more or less free to do as it likes in this area.
While it is well to consider what can be done to identify and resettle refugees in countries of first asylum, the plain truth is that the United Nations' protection mechanisms go nowhere near dealing with the immediate needs of all those requiring protection and safe haven. In many cases, people have no choice but to use the good offices of the people smugglers. The simple choice is between death or flight. As to the procedures followed by UNHCR, that organisation is the first to acknowledge the inadequacy of its field operations. It is well to remember that refugee status (or, for that matter, lack of refugee status) is not something that travels with a person for life. It is a state that relies on a person's needs, fears and vulnerability at a particular point in time. Accordingly, if an individual is rejected by UNHCR in a haphazard procedure performed in a remote and under-resourced refugee camp, it little behoves us to "blame" that person for seeking protection by another means.
Australia's current response to the arrival of boat people is controversial in 3 key areas:
The mandatory detention of asylum seekers who arrive without a valid visa;
The grant of temporary protection instead of permanent residence to unauthorised arrivals recognised as refugees, according no rights to family reunion; and
The refusal to accept any more boat people (the "Pacific Solution").
My overwhelming impression on returning to Australia in January, in the lea of the Tampa hysteria, was that we in Australia have yet to put any sort of perspective on our experience of asylum seekers. Australia is the only Western country in the world that mandates the detention of all unauthorised arrivals. (It is also the only Western country without a Bill of Rights.) No other country detains children - both those with parents in tow and unaccompanied minors. There are few parallels to the punitive concentration camp-like institutions that we call immigration detention centres in the most remote and inhospitable parts of the country. 
Over the last 10 years I have watched with growing dismay as Australia's detention facilities have proliferated and become steadily more inhuman, as cyclone fences have been doubled, and then filled with 3 metre high razor wire. I have watched government controlled centres be privatised, and guards from the prison sector move in to watch over not convicted criminals, but frightened, confused and often vulnerable men, women and children. The most recent asylum seekers being held in detention are unlike others I have seen before. Almost every one of them, until recently, have been gaining recognition as refugees. 97% of Iraqis; 85% of Afghanis (before the fall of the Taliban). The stories told by the detainees of the violence experienced by them in their countries of origin - the vividness of the fears they face should they be returned - are very moving. On occasion, the young refugee advocates sent out to prepare these refugees' claims have needed counseling upon their return from the camps.
The great irony for me is that when presented with individuals so obviously at risk and damaged by their experiences, we have responded not with sympathy, but with greater and greater violence ourselves. From speaking to past and present detainees, it is plain that few, if any, expected their reception to be as physically harsh as it is in the remote detention centres. Of greater concern to me, however, is the consistency of the allegations I have heard of quite brutal treatment of the detainees.
In many respects the remoter detention facilities are run like concentration camps. They are divided by wire fencing into compounds that can be locked down at short notice, with double fencing surrounding the compound housing new arrivals who have not been "screened in" to the refugee determination process. Detainees are known by number rather than by name, a practice that many find humiliating and de-humanising - especially after being held over periods approximating a year or more. Health professionals interviewed by me in July 2000 for HREOC spoke of an "us" and "them" attitude in the centre guards, with little sensitivity shown for the plight of the detainees. Former detainees complained of rough handling and intemperate language in the guards; of being referred to as "Muslim motherfuckers" and "terrorists" (well before the September 11 2001 attacks). I heard allegations of detainees being beaten and spat on; of inappropriate use of solitary confinement as a means of controlling and punishing detainees.
As a lawyer, it is my considered opinion that Australia's detention laws place it in breach of its international legal obligations. The policy of detaining little children; of deliberately keeping families apart, is particularly distressing in this regard. As Christians I think we should also be concerned about what the policy is doing to Australia as a country. If we become inured to the obvious suffering of those behind the razor wire, we will have lost our sense of decency as a nation. No matter what your politics, there must come a time when we stand up and say "this is not right".
b. The Temporary Protection Scheme
Until 1999 when the first Border Protection Act was passed, all non-citizens recognised as refugees in Australia were treated in the same way. In that year changes to the Migration Regulations meant that boat people and other unauthorised arrivals would no longer gain access to permanent residence or to the attendant rights to (legal) family reunion. These provisions were introduced in spite of (or perhaps, because of) the fact that more boat people were gaining recognition as refugees in 1999 than in any other time in Australian history. The almost immediate result was to change the usual pattern of boatpeople behaviour. The common practice was to send the male (head) of the family by boat to find safe haven, using the people smugglers as go-between. That way, the father would suffer the rigours and perils of the sea voyage, and the women and children would follow in due course using the regular immigration mechanisms. The inability to sponsor family has forced refugee families away from the regular migration channel and into the arms of the people smugglers. If families do not use the people smugglers, the present system in Australia means that they could well face permanent separation. The change is reflected in the composition of the detention centre population. In 1999 the number of children in custody leapt from 5% to 34% in the space of a month.
The temporary protection scheme is quite insidious in its operation. Apart from separating families, it is changing the character of Australia's humanitarian intake program. First, the government has tied the on-shore and off-shore programs by decreeing that for every person recognised as a refugee within the country, one place will be removed from the offshore resettlement program. This change has set refugee groups against each other as settled groups see the asylum seekers as stealing the places of their family members waiting to come in from overseas. At the same time, the government is counting the new temporary protection visa recipients as part of its humanitarian intake, even though these people are not being given permanent residence. This means that a program set every year promising 12,000 permanent resettlement places is being filled with people who are not being given permanent stay at all.
The fact that the 3 year permits are just that - 3 year permits - is apparent in the moves now being made to repatriate the Afghani Temporary Protection Visa (TPV) holders. If and when these people apply and gain permanent refuge, they will be counted again - thus being used to take the place of 2 people overseas, and deflating the real number of people admitted under the humanitarian program.
Other changes to the law in 2001 made the situation for refugee families even worse. Although Australia has never moved to enact the UN definition into its migration laws, on 26 September 2001 the Act was amended so as to "clarify" - ie constrain - the way decision makers are to read the UN definition of refugee. The new legislation directs that families cannot be regarded as a "particular social group" for the purposes of the definition. It is no longer permissible to take into account persecution suffered by one family member when determining the claim of another in the family: each applicant must meet the definition in her or his own right. For women and children, the changes mean that their refugee claims will fail unless they have a political profile of their own or they are with their husbands or fathers at the time of applying. At the end of January 2002 there were 48 groups of women and children in Woomera detention centre with husbands on the outside who had come on earlier boats and who had gained recognition as refugees. Where the women's claims are rejected, the only solution seems to be for the refugee husbands to go to the Minister personally to get permission to lodge another refugee application, this time including the wives and children. In the meantime the women and children face removal and/or they languish in detention. These laws help to explain to some extent the plight of the Bakhtiyari family that has been so much in the news in recent times.
c. The Pacific Solution 
The "Pacific Solution" is the term that has been coined to described Australia's behaviour during and after the notorious "Tampa Affair". In short, Australia has closed its doors to boat people. It has passed legislation that "excises" its offshore territories from the immigration map, preventing people landing on Ashmore Reef or Christmas Island from lodging refugee claims. It has deflected asylum seekers heading for Australia to Nauru and Manus Island in Papua New Guinea, or detained them on Christmas Island. The Tampa rescuees had their refugee claims processed by New Zealand, UNHCR and IOM. More recent arrivals are being "processed" by Australian officials. It is not clear under what auspices Australia is doing this. The officials appear to be looking at whether the asylum seekers are refugees, but not in the context of an application for an Australian visa. If this is the case, they are doing it outside of any obvious legislative scheme. It is not clear who they are doing it for, now that the UNHCR has withdrawn from the process.
There are sound reasons why Australia should reverse its policy and allow boat people within its waters to land and have their refugee claims processed.
Arguments could be made that the refugee determination procedure set up in places like Nauru and Manus Island are qualitatively inferior to those established within Australia. From the perspective of the refugee, the cruder procedures might place genuine refugees at greater risk of slipping through the protection net and of being returned to face death or gross abuse of their human rights. The arrangements could also be criticised because of the inferior ability of the assessing bodies to run health and character checks on the refugee claimants. As the Oxfam Report noted in February 2002, Nauru is not a signatory to the Refugee Convention. While PNG is a party to the Convention, it has made reservations which effectively mean that it does not accept the following Convention obligations: paid employment (art 17); housing (art 21); public education (art 22); freedom of movement (art 26); non-discrimination against refugees who enter illegally (art 31); expulsion (art 32); and naturalisation (art 34).
Another obvious problem with the Pacific Solution is that it offers no solution for refugees in the long term. Apart from New Zealand, which has resettled 130 of the Tampa refugees, Ireland is the only country to make a firm offer to accept any fugitives. Its quota of 50 will hardly impact on the 1,550 that do or may need resettlement. Under the original Memoranda of Understanding with Nauru and PNG, all refugees were supposed to be resettled in other countries within six months. In PNG's case the deadline was extended in early 2002 until October 2002, but it remained very unclear how the "solution" would work in either the medium or longer term.
A further compelling argument in favour of resuming the processing of boat people in Australia is economic. Put simply, Australia will not be able support the extravagant financial costs of its extraterritorial initiatives for very long. As noted in Chapter 1, the estimated cost of the Tampa affair in September 2001 was about $120 million. In early 2002, Treasurer Peter Costello conceded that the yearly budget for the "Pacific Solution" was in the vicinity of $450 million, or approximately $500,000 for each asylum seekers interdicted at sea and sent into the Pacific for processing.
Official government estimates of the initiatives in December 2001 (see DIMIA's Fact Sheet 76, 30 December 2001) were that the establishment of detention facilities in Nauru and New Zealand cost Australia $96 million dollars. The official figures do not indicate the costs associated with the processing of cases, nor do they reflect the cost of the navy vessels used in transporting and detaining asylum seekers. The DIMIA figures also exclude the $30 million in further aid pledged to Nauru and the extra millions earmarked for Papua New Guinea. As the Oxfam report notes (at p 5), Nauru was scheduled to receive a mere $3.4 million in aid from Australia in 2001-02. Indeed, the pledge of $30 million is greater than all the AusAID funds provided to Nauru between 1993 and 2001, and represents 18 per cent of the total AusAID budget to the Pacific Islands in 2001-02 ($164.6 million).
Legal and financial questions aside, morally, Australia's stance has little to commend it. It is common knowledge that the vast majority of the Afghani and Iraqi asylum seekers are refugees in dire need of protection. Of the 131 asylum seekers from the Tampa taken in by New Zealand, all but one had been accepted as refugees by January 2002. (All recognised refugees were granted permanent residence in that country; the remaining case was still being processed). There is no doubt that Australia is better equipped to offer protection than Indonesia, the most recent transit country of most of the asylum seekers. The same is true with respect to transit countries such as Pakistan. As the Oxfam report noted in February 2002, the "Pacific Solution" has done little to enhance Australia's standing among its Pacific neighbours.
Finally, on the government's own analysis, if one objective of the Pacific Solution is to deter further people smuggling and undocumented arrivals, this objective is likely to fail. Asylum seekers can still gain access to some form of refugee processing system, paid for by Australia, with the ultimate prospect of refugee resettlement in a third country. Short of terminating refugee processing altogether, even the slimmest hope of protection - including that offered by the Pacific Solution - is enough to motivate asylum seekers to risk their lives to reach safety.
I will make justice the measuring line and righteousness the plumb line; hail will sweep away your refuge, the lie, and water will overflow your hiding place. (Isaiah 28:17)
The use of leaky boats as the vehicle for conveying refugees to Australia must be a matter of concern, and something to discourage - if only to ensure no more tragedies like the one that saw 370 people lose their lives off the Indonesian coast in late November 2001. However, it is equally clear that the "Pacific Solution" is no solution to people smuggling. While there are families striving to be reunited; while there are people caught in limbo yearning for a safe haven, the refugees will continue to batter at Australia's door. It is no solution to decry the refugee's efforts to save themselves and their families; to vilify the victims who take the initiative to struggle against the oppression in their lives. It is no solution to adopt policies that perpetuate and exacerbate suffering in the name of "control" and deterrence.
The Australian Defence force personnel have shown us in their courageous denunciation of the lies told about asylum seekers rescued at sea during the "Tampa" election of 2001 that Truth can triumph in a democracy like Australia. Thinking back on the year just past, I cannot but reflect on how easily we can be persuaded of the inhumanity of people in positions of great vulnerability. "What kind of person", we asked ourselves, "would throw their children overboard; would sew shut the lips of their children?" "We would not want people like that to live with people like us, would we?" If Christ bids us to walk in the shoes of the dispossessed, to open our hearts to the poor, the Australian media have at last begun to show us that they, the refugees, after all, are not so unlike us.
Australia's policies are not alright. They are not in compliance with our international legal obligations. The are un-Australian. They are not policies that sit comfortably with the Judeo-Christian tradition so well expressed by Isaiah:
"Is not this the kind of fasting I have chosen: to loose the chains of injustice and untie the cords of the yoke, to set the oppressed free and break every yoke?
Is it not to share your food with the hungry and to provide the poor wanderer with shelter- when you see the naked, to clothe him, and not to turn away from your own flesh and blood? Then your light will break forth like the dawn, and your healing will quickly appear; then your righteousness will go before you, and the glory of the Lord will be your rear guard." (Isaiah 58: 6-8)
 Senior Lecturer in Law, University of Sydney; Chair, Nationality and Residence Committee, Law Council of Australia; Member of Executive Committee, Refugee Council of Australia
 See P.J. Hartigan ("John O'Brien") "Said Hanrahan" From Around the Boree Log.
 See Fr Frank Brennan SJ "Australia's Refugee Policy - Facts, Needs, Limits", Jesuit Lenten Seminars 2002.
 The only other country with policies that in any way approximate those of Australia in this regard is the United States of America. Its detention facilities at Guantanamo Bay in Cuba have been the subject of considerable international criticism.
 The following analysis is extracted in part from our book: See Mary Crock and Ben Saul, Future Seekers: Refugees and the Law in Australia (Sydney, Federation Press, 2002).