Treatment of refugees should come from the heart

A fresh approach to asylum-seekers, including considering a community-release program, is long overdue, writes Alice Tay.


Some time in the past decade we lost our compassion towards asylum-seekers and became insular and hard-hearted. Australia's refugee policy is moving from a humanitarian one to a punitive one: from a relatively liberal assessment of individual circumstances against our international obligations to preventing entry and punishing those who slip through the net.

Over the past week accounts of a possible tragedy involving the loss of hundreds of lives at sea indicates that the Government's warnings about the risks for boat people are not being heeded and that its tough refugee policy is failing. There is no sign that the flow of refugees is slowing and we have to face that reality.

Sadly, the mandatory detention of asylum-seekers and others who arrive without visas is popular with a community more concerned about continuing to enjoy reasonable prosperity than sharing a little of it with the needy. It is also worth mentioning that the two main political parties are more or less in agreement on how to deal with the errant and desperate few who enter the country without authorisation. In balancing national security interests and individual human rights, the pendulum has swung too far in the direction of border protection and national security. There are times when one must turn away from the will of the people and swim against that tide; times when the humanitarian obligation should be paramount. Now is the time to rethink Australia's policy of mandatory detention of unauthorised arrivals.

People should not be in detention beyond the period that is necessary and justifiable. Mandatory detention breaches international human rights law by arbitrarily depriving people of their liberty.

There are alternatives. They have been used elsewhere and Australia should explore the options and implement alternatives as a matter of priority.

Australia has promised the international community it will not detain anyone arbitrarily or unreasonably. The promise relates most poignantly to children.

There has to be a mechanism to ensure the best interests of the child are the paramount consideration. If it is in the best interest of the child to remain in detention with the parents, then adequate schooling, health care and protection from harm must be guaranteed.

The vulnerability of children and their need for special protection during their developmental years has led almost every country in the world to agree that children should only be detained as a last resort and for the shortest possible time.

In 1994, a man, a woman and their four-year-old son came by boat to Australia from East Asia. They were placed in detention and a second son was born in 1996. After 5 years behind barbed wire in the West Australian detention centre, they were accepted as refugees by the High Court and released in May this year. Nothing can justify detaining these children for so long.

Not a day too soon, the Federal Immigration Minister, Philip Ruddock, promised recently to consider options for women and children to be released into group homes near detention centres.

The Human Rights and Equal Opportunity Commission's 1998 report - "Those who've come across the seas: detention of unauthorised arrivals" - outlined an alternative to detention.

This option proposes community release while claims are finalised. People who present a real threat to national security or public order would not be released. Individual assessments would be made on the risk of absconding. Most could and should be released on their own promise to report as needed to deal with their claims.

The commission has a role in monitoring the conditions for those detained as well as acting on specific allegations of human rights abuses. In March it published guidelines for detention centre managers, based on minimum international standards, that cover access to legal advice, recreation, education, health care and many other matters.

Immigration-related complaints to the commission are increasing. In 1999-2000 the commission received 61 immigration-related complaints covering a range of human rights violations - inhumane conditions or treatment in detention, failure to respond to requests for legal advice or health care, being transferred to a State prison, removal to a country where they risk torture, cruel, inhuman or degrading treatment, punishment or summary execution.

Complaints are investigated and conciliated where possible or reported to the Attorney-General where necessary. Until a report of a complaint is finalised all details are confidential.

However, in the light of continuing and serious allegations in the press and broadcast media, which suggest systemic abuses, the commission is considering other options - one of which could include an inquiry.

In the midst of allegation and counter-allegation about the conditions in detention and specific human rights violations, it is important to remember there are alternatives. Instead of responding in a climate of hysteria, we need to look at alternatives that will enable the pendulum to swing back to the centre.

Professor Alice Tay is president of the Human Rights and Equal Opportunity Commission.