CURRENT ISSUES

Alternatives to detention

Detention Proposals

10th September 2001

Following on some remarks of mine at the recent Annual General Meeting of the Refugee Council of Australia (RCOA), its Board has kindly offered me space to state my concerns on the Council website. These relate to what we are proposing in lieu of mandatory detention, our opposition to which is, of course, only a part of our wider protest against the treatment of asylum seekers arriving without prior authority.

The RCOA POSITION PAPER ON AUSTRALIA’S REFUGEE AND HUMANITARIAN PROGRAM (July 2001) includes under iii. Detention, at dotpoint 4, the statement:

Once identity and intent have been established, asylum seekers should only be detained if it can be established that the individual concerned poses a threat to national security, public order or public health.

And my point is simply that a much stronger case could be made if we adopted, for starters, the simple suggestion made by Professor Alice Tay, the President of HREOC, the Human Rights and Equal Opportunity Commission, in the Sydney Morning Herald for 19 December 2000, when she proposed that when deciding whether unauthorised arrivals should be held until their cases were decided, “individual assessments would be made on the risk of absconding”.

This could be combined with the proposal under iii. Detention, dotpoint 5, that in accordance with international law, there should be independent review of the decision to detain an asylum seeker. Of course, as Professor Tay would be the first to agree, it could be useful to elaborate on her proposal by suggesting criteria on which individual assessments of the risk of absconding should be based.

Instead, the Refugee Council and some other organisations have let themselves be shackled by a mistake on the part of EXCOM, the Executive Committee of the UNHCR, that grand organisation which, like any organisation worth its salt, occasionally says the wrong thing. And it would seem to have done just that in its otherwise valuable Guidelines on the Detention of Asylum Seekers, which were revised as recently as February 1999.

Guideline 2 states that “as a general principle asylum seekers should not be deterred”.

Guideline 3 sets out “exceptional grounds for detention”, all of which are reasonable. The other ground which should be included is the possibility of newcomers absconding during the period after their identity has been established and before their application for refugee status has been finally dealt with. This would leave it possible for some, possibly most new arrivals to be left at large after giving paroles that they would not abscond.

For the Governments represented on EXCOM to acquiesce in the failure to include such a ground is, I submit, an act of hypocrisy because, as far as I can make out from published sources, no government adhering to the U.N. Convention and Protocol concerning Refugees lacks the power to detain arrivals whom it fears may abscond, nor has any government ever announced that it will never use its power for that perfectly proper purpose. The suggestion that it should never do so is for the time RCOA policy.

Yet any Australian Minister or Shadow Minister for Immigration would be ridiculed, in Parliament and during media interviews, if he or she proposed that once unauthorised asylum seekers have been brought before the authorities and identified - perhaps after costly sea patrols, air patrols and land searches have located them - then all of them should be left at large, unless they are seen to pose threats “to national security, public order or public health”, until there has been a primary decision on their application. It is also implied that if that decision is negative and they appeal against it, the asylum seekers should still be left at large until the date at which they will have the opportunity to appear before a tribunal.

It is not generally known that for some years, officers of the Refugee Council and of a number of other peak organisations have looked constructively at this difficult problem of grounds for detention. In 1994 they endorsed a Charter of Minimum Requirements for Legislation Relating to the Detention of Asylum Seekers, followed in 1996 by an Alternative Detention Model which led HREOC, in its 1998 report, Those Who’ve Come Across the Seas, to admit as an appropriate ground for detention “a demonstrable likelihood that the person would abscond”.

The difficulty is, it would very seldom be possible for a government to demonstrate that an asylum seeker, about whom at first it would know almost nothing, was likely to abscond. Seldom would enough be known for him or her to qualify for bail under the relevant clauses of the New South Wales Bail Act, which is said to have been drawn on in the Alternative Detention Model. The suggestion made in that Model was in the right direction, but didn’t go quite far enough.

In 1993, the Indo-China Refugee Association (NSW) made a very moderate proposal about detention to the Joint Standing Parliamentary Committee on Migration. The Refugee Council and other bodies that made submissions took a different line, as they do now. True, neither New South Wales ICRA’s line nor that of the organisations which have so far followed the UNHCR Guidelines was adopted, but in the intervening period, while ICRA (NSW) has had to close, other organisations have failed again and again to end Mandatory Detention. We will keep failing until we can give sensible answers to the plain man’s question : What is your alternative?

An instance of the confusion some supporters of the UNHCR position have got into is when they quote the experiment by Arthur Helton, described in a useful book edited by Dr Mary Crock and entitled Protection or Punishment? (Sydney, Federation Press, 1993). Helton reports that in the United States in 1992, 2000 detainees were interviewed, 32 per cent were released on parole, and about 95 per cent of those applicants appeared later to have their claims considered.

But of course the experiment only gave such promising results because 68 per cent of those who had been considered for release were still detained. Such results could not have been obtained if the risk of absconding had been disregarded in deciding which asylum seekers should be detained in the first place.

It has been said that the supporters of Mandatory Detention are not raising the question of absconding. If that’s the case, then so much the worse for its opponents, who have evidently not pushed them until they were forced to have recourse to this, much the most plausible of all the arguments for detaining asylum seekers at all. The people one talks to outside refugee circles can see that there is a problem of absconding. They want to know how we’d handle it.

Grave matters can give rise to irrelevant thoughts, and pondering how we can come to occupy more defensible ground on this particular issue, I was reminded for some reason of the preacher who had said that Sin should be crowded out of our lives. Well, it would be great news for some of the detainees if the notion that unauthorised arrivals should never be detained because of the risk of absconding, which is there, black as Sin, in RCOA’s Position Paper, got crowded out by sensible and potentially acceptable proposals like Professor Tay’s, which, she believes, would lead to most detainees being released “on their own promise to report as needed”.

If that ever becomes public policy and if a few detainees break their promises, as they may, then it will be the job of the Refugee Council and sister organisations to help the public keep a sense of proportion about those few breaches and their relevance to future detention practice. Friends of the detainees should be preparing to perform that job. We should certainly not think ourselves such born losers that we will never have the opportunity to explain and defend a sound detention policy when it’s in place.

Some of the organisations which have joined the Refugee Council may care to make time so that their members are able to discuss this matter.

Kenneth Rivett
Honorary Life Member, RCOA.