‘A legal advisor of their choice’

I think I understand why Australians do not like asylum seekers coming by boat. Via two decades of promotion by politicians – mandatory detention introduced by the ALP and offshore processing by the Coalition – this act, arriving by boat, offends what the Prime Minister might call a sense of ‘fair go’. The combination of others with less means stuck overseas being unable to access the same opportunity with the perception of illegality is enough to make many people at least dubious about the validity of the process.

Whatever someone tells you, the same public reaction did not occur in previous periods, most notably in the post-Vietnam years. Yes, there was public sentiment against political acceptance of asylum seekers but it was marginal, on the fringes of debate. However since the end of the Cold War, policy decisions made by successive governments have driven public attitudes away from acceptance and towards a more strict adherence to what we might term indifference. The illusive factor of leadership, the ability to generate real public change. Whereas once the silent majority held sway, a noisy minority has grown over time and plonked itself as the mainstream. Perhaps fairly one might add, for why would you lock up a person if they are not guilty? I admire Paul Keating as much as the next grass-is-greener ALP supporter but part of his legacy is the introduction of policies which for better or worse have shaped political debate on asylum seekers.

Whereas previously, high-level policies embedded in a deterrence framework were the central tennets of debate, as a political community, we have moved much further down the policy ladder. In the past, policies such as Temporary Protection Visas caused grief and heartbreak, yet they were not premised on micro-level, individual misery. While I violently disagree with TPVs, I see how they fit into a policy prescription. Offshore processing, where 90 per cent of asylum seekers still ended up in Australia, is similar. An underlying policy motive.

Three things in the past month have caused me to pause and seriously contemplate if current policies are designed this way or if the over-arching framework has simply become to be as mean as possible, primarily through denying judicial access.

The first was the revelation that under the ‘no disadvantage test’, welfare support payments (approximately 89 per cent of the dole) to asylum seekers can be withdrawn when the justice system is invoked in appealing government decisions (story here, $). The article claims 400 asylum seekers have already been subject to this treatment (not confirmed by any official government sources). Given many of these people cannot work legally, this is a situation presumably designed to force people to return home by their own volition.

In reality, it is a morally repugnant piece of policy that effectively commits asylum seekers in the post-review judicial system to a life of sub-subsistance living. Given it is extremely difficult to know how many people have been subject to this measure, it should not be the be-all and end-all of this debate. However the simple fact that the social-democratic party in Australia has created a situation where this can occur is mind boggling. This measure effectively uses the judicial system as a disincentive, seemingly dreamt up in some distorted Robert McNamara game theory lab where ‘rational actors’ roam the world guided by the knowledge of consequences. As McNamara found out, this is not how the world works.

The second policy is about the migration zone. Again, the central point of this is to limit asylum seekers access to the judicial systems. Peter Van Onselen outlines his opinion here: “It is entirely understandable that political leaders do not think that asylum-seekers should have such appellate rights, clogging up the Australian courts in the process. The UN determination process is not an unfair one. But given that our Constitution enshrines such appeals for non-citizens as well as citizens, thereby allowing refugees who make it to the mainland (very few do, by the way) to access the courts, the solution is to change the Constitution, not enact a bizarre law that excludes the entire country from its own laws”.

While I disagree with his position on access to appellate rights, his claim of the bizarre is spot on. I almost could have stomached the mess about the migration zone as I do not believe it makes much of a difference either way.

HOWEVER not more than a fortnight later, the Minister of Immigration announced that the migration zone should be extended! Thank you government for protecting Australian jobs. Basically, big ships and other vessels used in the resource industry in Australian waters have not been required to apply for work visas for foreign workers. While the Fair Work Act still applies (no slave ships roaming the high seas on this government’s watch), the Migration Act does not. The government’s proposed legislation will apply the migration zone and require the payment of similar wages and conditions to what Australians would receive. When it comes the migration zone, it seems different standards are entirely reasonable. Some might say this conflates two distinct issues. I say these positions showcase the vacuity of this policy approach.

Finally, and perhaps most disappointing, are the answers provided by the Department of Immigration and Citizenship recently in a Senate Estimates enquiry. From Karen Barlow at the ABC:

Vicki Parker from the Immigration Department has told Senator Hanson-Young asylum seekers are not told that they’re able to request legal advice.

VICKI PARKER: If they seek legal advice, Senator, then we facilitate that contact with a legal advisor of their choice.

SARAH HANSON-YOUNG: How do they choose somebody if they’ve only just arrived in the country?

VICKI PARKER: We provide them with a telephone book and access to a telephone, and an interpreter if necessary I believe.

I do not believe I could have a rational conversation with someone about this actually occurring. I see this and it makes me think of Camus’ the Stranger but in reverse. I am an individual gobsmacked by the apparent emotional detachment from such a real situation being played out by public servants representing social norms.

(Let me state for the record, I do not assign blame/consequence to any public servant in this policy space. It’s an incredibly difficult position to be in and Australia has some of the best public servants in the world working on these issues. Public servants implement Government policy and if anyone thinks otherwise, they are definitely mistaken. Even when the public service suggests policy, the government makes decisions. In this particular instance, the government should be extremely clear about what are standard procedures when an asylum seeker is first processed given the stakes of this debate.)

I do not deny that there are massive implications from asylum seeker policy. Incentives, implementation, cost, not to mention the human lives at the middle of the equation. None of this is easy. Staffing, decision-making, tradeoffs are all very real and very sobering. Providing every asylum seeker with formal legal representation would seem infeasible. The backlog of claims in the justice system is not to be sneered at.

Yet these small policy decisions each move the justice system further and further away from people – the majority of whom are poor, scared, worried and in the end, overwhelmingly proven to be genuine refugees. Serious consideration must be given to what is effective and what is unnecessary.

‘Deterrence’ is a slippery concept that is difficult to accurately gauge. Do these policy decisions deter? Does the removal of work rights deter regardless of the very real negative consequences?

Where does this line get drawn and where do we as a community end up in 5, 10 years time if at every step along the way we become more punitive? At the moment, the burden of proof is too light on official policy yet we continue, blindly, into an unknown environment.

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