“Boat People” Symposium

Saturday 15 October 1995
Murdoch University

Panel Discussion—Afternoon
Chair: Meredith Wilkie
Norman Aisbett, Chris Doepel, Vanessa Moss, Christabel Chamarette

Meredith Wilkie:

Our first speaker on this panel is Norman Aisbett who is, as most would know, a senior journalist with The West Australian, the local newspaper. He has been a journalist for more than twenty-five years and his career has been distinguished by his concern for social justice issues, both within Australia and also within our region. I understand he now sits on the Asia Desk at The West Australian. He has been writing about refugee issues since 1981 at least when a series of stories on Vietnamese Boat People won him "Australian Journalist of the Year". He didn't want me to tell you that but I was determined to do it anyway, so welcome please Norm Aisbett.

Norman Aisbett:

I am fortunate to have been active in journalism when the first of the Vietnamese Boat People arrived in Australia in the late 1970s and early 1980s - the first boat arriving in April 1976.

I remember the news people, including myself, going to the old Graylands Migrant Centre, which was a wonderful facility near Perth, to interview Boat People and record tales of escape and survival at sea in epic voyages. Many people, including me, looked upon these as heroic feats.

However, the arrival of the first Boat People coincided with a national inquiry into multiculturalism, headed by Professor Zubryzycki and I recall covering a meeting at the Perth Town Hall in that period.

The multiculturalism debate was, naturally enough, fuelled by the arrival of the Boat People and tended to get lumped into the immigration issue, even though the immigration programme and refugees are quite distinct issues. In all, 54 boats arrived with 3,566 people between April 1976 and April 1981. There would be no more boats until November 1989. I will say more about that later.

The immigration debate was fairly vitriolic at times. It was the period in which Jack van Tongeren, the extreme right-wing Australian Nationalist's Movement leader, formed his West Australian cell.

But, to their credit, the then Prime Minister Malcolm Fraser and then Immigration Minister Michael Mackellar were undeterred by the negative side of the debate and oversaw the flow into Australia of tens of thousands of Boat People - more per capita than any other nation on earth.

At no time did the Fraser government retreat into xenophobia or contemplate the establishment of detention camps, such as we now have at Port Hedland.

Without the treat of detention being used as a deterrent to Boat People arrivals, as the present Labor government has done in recent times, that first "influx" of Boat People stopped abruptly in 1981. This could be attributed to the start of the so-called Orderly Departure Programme (ODP), under which people could leave Vietnam legally upon application, by air, provided another country was prepared to admit them as virtual migrants. The ODP, incidentally, suited Vietnam because the uncontrolled outflow of its people into neighbouring countries was straining Vietnam's relations with those countries, notably Malaysia and Indonesia.

But, moving on to 1989 when the Hawke Labor government had to confront the arrival of South-East Asian Boat People. They had to face up to the arrival of Cambodians, Chinese and Sino-Vietnamese - all from different backgrounds and predicaments.

The response, initially, was to put people into, among other things, tent camps remote from Darwin, for months, where mosquitoes, rain, cold and other deprivations were endured. The Boat People were warned they would be eaten by crocodiles (it was probably true) if they tried to escape - when they really had no idea where they were, or where to go.

Then in 1991 we began the questionable detention policy. This was implemented after a relatively small number of escapes or cases of people absconding from holding centres in the Eastern States, people who became frustrated and worried by the length of time it was taking to assess their cases. A certain fear set in.

So the government, in the cause of "border protection", used an assessment system that lacked transparency and we built what I believe is a concentration camp, or at least a remote prison system for asylum seekers. This was, incidentally, the first detention camp of its kind on Australian soil since we had Japanese and Italian prisoners of war corralled in Australia during the Second World War.

The government has also tried to legislate its way out of obligations under international conventions to which Australia is a signatory.

As a journalist who receives press releases and monitors the statements of major protagonists, the government strategy has been obvious. To justify what I believe are un-Australian policies, the government repeatedly refers to Boat People arrivals as being "illegal entrants", people who have been thrust upon us illegally.

They've also been called "queue jumpers", even though immigration queues don't exist in some of the places from which they came. The government failed to allay any community fears by not pointing out, at the appropriate times, that the arrival numbers were relatively small, if not a trickle.

And the government has not said that the Boat People, while undocumented and technically illegal, have in fact been availing themselves of a system in existence for decades since Australia voluntarily put its signature to the United Nations International Convention on Refugees.

The Boat People are not, as certain radio commentators and politicians contend, working outside the system, or trying to break in. They are working legitimately within the system.

Finally, as a journalist, it is a very difficult issue to cover because government policy and legal reasons dictate that the media often can't get to the principal parties, the decision makers or those people who are interred. Also, the remoteness of Port Hedland has made it very difficult to cover the issue properly. I think the location has worked to the government's favour in that the more abundant and possibly more aggressive Eastern States press was kept a vast distance away from a tragic human situation, or story. It's a very expensive exercise to send a news team to Port Hedland. And, once there, it's a case of standing outside the fence and looking at the faces inside. Even though these people are not criminals under Australian law, they can't officially be interviewed. Provided a translator is on hand, a few sentences are recorded through the wire - that's about all.

The media has no need to apologise for publicising the arrival of these people and portraying the human, emotional aspects. Large numbers of people making epic voyages is news and we are in the news business. The creation of the Port Hedland "reception and processing centre" was inherently newsworthy. The detention centre and its role warranted coverage - and even closer scrutiny if the media had been allowed inside to talk to people.

The presentation of news can influence reader response. But, at the end of the day, even the most objective reports will be interpreted by people in the way in which they want to interpret them. There will be those who look calmly at the Boat People numbers and have the nous to conclude "this isn't a big problem". And there will be those who interpret the arrival numbers in a more negative way and, in that sense, Australia's economic recession might have had an effect.

I raise that point, the recession, in trying to determine the reasons for a general public apathy to the use of the detention centre, with its barbed wire fencing. Why, a decade after Malcolm Fraser and Michael Mackeller did so well, has the community failed to be repulsed by the Port Hedland scenario? I think the recession, with its consequent record unemployment numbers, pushed many people into self-survival mode. Also, Australian society is becoming much more competitive as we try to "enmesh" with Asia, as they say. Australians are more wrapped up in their own affairs and few can find room to ponder the rights or wrongs of the Boat People issue. At The West Australian we get very little reader response from even the most provocative, or emotive, reports. Very, very little.

I remember running a two-page story on the plight of children in the Port Hedland camp which, I believe, has been a disgrace. Until making my first flight to Port Hedland, I did not realise that the children (and their parents) are penned up in a facility which is directly across the road from a school where other children at the end of the day climb onto bicycles and cycle down the street, or run and play as children tend to do. If that's not emotional torture for the children watching from behind the wire, I don't know what is. Those kids don't know why they're locked inside. Yet the story of their plight, involving clear breaches of provisions of the United Nations Convention on the Rights of the Child, prompted only one or two letters.

The government came out, very belatedly, with legislation which allows children to be released at the Minister of Immigration's discretion - but not the parents. Well, what child is going to leave its mother? Why not allow child and mother to leave and keep the father in, as insurance if you like.

I don't have the answers. I'm not a legislator. But I do feel that our response to the arrival of Boat People has been poor. Most unfortunately, from what I can see, society is either unconcerned or ambivalent.

When society is in such mode, governments are free to act in ways which may very well be wrong.

Meredith Wilkie:

Let me introduce to you now the Department of Immigration and Ethnic Affairs senior person in Western Australia, the State Director, Chris Doepel. Chris' background or training is as a lawyer and he's been a Commonwealth bureaucrat for some fifteen to sixteen years. He's been in his position in Western Australia for the last two years. Welcome him please.

Chris Doepel:

Thank you Meredith. I was exchanging a few comments with Fred Chaney just as I walked in here at lunch-time today and I said I felt a bit like Daniel coming into the lion's den. If I recall my scripture correctly, I think Daniel got out. I rely on you to tell me what happened to the lion. I can't quite remember what happened there.

I guess there are two ways of approaching this. While Norman Aisbett was speaking I was jotting down a number of points and I thought I could get up and either rebut or explain or respond to some of Norman's assertions and I thought "No, I won't do that. I'll get up and stick to my prepared text and we can get back to some of that later on perhaps". I will echo some sympathy with Norman about the degree of interest in this issue in the community. I recall some ten months ago going on a fairly widely listened to talk-back radio programme in the Perth metropolitan area to talk about Boat People, detention and refugee processing in Australia under the Convention, and found that after half an hour I was pleading with people to give these people a "fair go" and allow due process to be followed so that they could have their claims assessed under the Convention. Some of you might find that strange from a senior Commonwealth official, but my word I had to do it. The attitude was very summary: "Send the buggers back".

Madam Chair, there's been a tendency in recent years for media coverage of refugee issues to focus almost exclusively on the issue of illegal boat arrivals and Australia's policies and legislation introduced to assist in determining their status. These are important issues. They are issues of legitimate debate. At the political level ministers will promote and defend government policy just as other parliamentarians and members of the community will disagree and advance their own views. That is the nature of our democratic and pluralist society. At the bureaucratic level people like myself can take part in this discussion but there are a couple of rules to the game.

First, while we may articulate and explain government policy, it is not open for us to criticise it or enter into a public debate.

Second, we must recognise that our role is pre-eminently one of outlining fact and background and explaining departmental practice and procedure. That is essentially what I am able to do today. But despair not, Madam Chair, we public servants have been drawn into the real world and are expected to have some awareness of the public relations milieu in which our agencies function. Some of us have even been known to talk to a journalist or two.

During the past couple of years while I've been in the State, I've spoken to several on a range of issues in the Immigration and Ethnic Affairs portfolio. This has led me to develop an idiosyncratic list of truisms about the media, and these truisms I think are worth recording.

My first truism is that the corporate goals and values of a media organisation are its own and may or may not coincide with those of the Department. You might think that if that's such a truism why do you state it? Well, ladies and gentlemen, what constantly amazes me is the number of people (public officials and I would even say people in the corporate sector) who forget just that point. That the media serves its own objectives.

My second truism is that daily publishing and programming formats encourage journalists to seek out news. The French have a wonderful word for it. They call it actualite, the now, the present, and that news is often presented without context or a sense of continuity.

My third truism is that the media loves to report a battle. To use a term that C.J. Dennis made famous in Australia, a "stoush", and if it can't find one, it will often concoct one. And don't count on being allowed a right of reply if you're in my position. If a few extra facts would ruin a good story, then don't be surprised if you're not asked for them.

You might detect, ladies and gentlemen, a slightly cynical note creeping in towards the end of my list. But I can assure you that I could bore you rigid with several anecdotes which amply demonstrate each one of these propositions. I won't bore you.

So you might ask, "Why do we bother?" Well the answer is very simple. Like the Sisyphus of classical Greek mythology, condemned forever to roll his boulder up to the top of a hill only to have it come crashing down again, we simply don't give up. Our job is to articulate and explain so that over time we might see an incremental improvement in informed public debate on these issues. And that's exactly what I'm going to do now.

The central themes of our programme today are Boat People, the limits of tolerance, and our session this afternoon centres on the theme "Australian Responses to Asian Refugees". It is my submission to you that these issues cannot properly be understood without an appreciation of what we might call the big picture. I'm going to briefly outline the big picture.

Let me begin with the Offshore Humanitarian Programme. Australia has a long tradition of resettling refugees and other displaced people. In the fifty years since the foundation of the United Nations, more than half a million people have made new lives here. In the 1970s, war and displacement in Southeast Asia prompted Australia to focus its humanitarian programme on that region. As a result, since 1975 over one hundred and thirty-six thousand Indo-Chinese from Vietnam, Laos and Cambodia have been accepted for resettlement in Australia. The events of the last few years have of course demanded the focus on the former Yugoslavia and the Middle East. Other newly arrived humanitarian groups, including South and Central Americans, Afghans, Africans, East Timorese, Burmese and former Soviet minorities, have also sought refuge in Australia.

Now I think we should remember that Australia is only one of a handful of countries that offers an annual allocation of resettlement places in a programme which is quite separate from its migration programme. The United Nations High Commissioner for Refugees has recently commended this approach and appreciates Australia's continuing efforts. As you may be aware, the Humanitarian Programme for 1995/96 will offer thirteen thousand places, the highest per capita programme in the world. I'll just pause there for a second. In absolute numbers there are only two countries in this world that take more people for humanitarian reasons than Australia. One is the United States. Number two is Canada. In absolute figures we are not far behind Canada. I think that's a point worth remembering.

Among those people coming in, in that thirteen thousand in this current year, will be four thousand refugees including five hundred women and their dependants under the Women at Risk programme. Of course Australia's response does not stop at those who meet the United Nations Convention definition. Australia has also instituted a programme for displaced people that goes beyond these obligations. The first of these programmes, the Special Humanitarian programme, is for people with links to Australia who, while not Convention refugees, have suffered gross violations of their human rights. The other is the Special Assistance category for those with close links to Australia who are displaced or otherwise in situations of hardship and special need, and who have support of family or an existing community in Australia. There are currently eight of these Special Assistance Categories in place. They are reviewed annually to ensure that we are targeting those in need. Now this is an interesting point. Persons from Asia are covered by the Special Assistance Categories. They include East Timorese in Portugal, Macau and Mozambique, Burmese in Burma and Thailand and Sri Lankans. Two new Special Assistance categories will be established during the current programme year, for Ahmadis in Pakistan and for Vietnamese who have returned to Vietnam from camps in Southeast Asia prior to the end of this year, and for some Vietnamese who are currently in Germany. I'll just pause for a second.

It disturbs me to hear our previous speaker say that there is an anti-Asian bias in Australia's response to refugees and people who are in need of humanitarian protection. The proposition that I'm putting forward to you today is that if you examine the big picture, you see quite an impressive range of measures. We also offer a humanitarian extension of temporary visas to two groups in Australia: citizens of Sri Lanka and of the former Yugoslavia, with the eventual aim of their safe return to their own countries. All of these initiatives are part of a comprehensive approach to humanitarian migration to make sure we provide optimal assistance within domestic constraints: domestic resource constraints.

The Government has announced that its policy is a commitment to providing maximum assistance to refugees and those not refugees but most in need. To do this it has, at times, made the decision that applicants are not eligible for humanitarian migration. For to target assistance to those in genuine refugee circumstances there is a need to identify those who are not or those who can receive protection. Let's turn to some of these mechanisms, international and national, that assist in that objective.

In the regional context of Australia's humanitarian resettlement, Australia has played a significant role in resettling Indo-Chinese refugees prior to and under the Comprehensive Plan of Action. As part of what has become known as International Burden Sharing since 1989, over seventeen thousand Vietnamese have migrated to Australia from Vietnam under the Migration Programme, with over fifteen hundred more screened in being resettled here this current programme year. The Comprehensive Plan of Action has shown that regional solutions guided by the United Nations High Commissioner for Refugees can be an effective way with which to deal with the mass influx of people in a region. We are now moving to the concluding stages of the Comprehensive Plan of Action. The refugee determination screening process is now completed and Comprehensive Plan of Action member countries have set the end of this year for the repatriation back to Vietnam of all screened out persons.

Norman, I have read your very detailed article in The West Australian yesterday. I don't propose to comment unless we come to it at the discussion later on but to say that suggestions that there have been malpractice have been raised with the Australian Government and we have consistently referred those to the United Nations High Commissioner for Refugees. The Australian Government has announced that it fully supports the Comprehensive Plan of Action and is committed to maintaining its integrity.

Turning to the On-shore Programme for Determination of Refugee Status, the Australian Government has decided that if it is to continue to protect genuine refugees it must maintain the integrity of Australia's On-shore Refugee Determination system. Despite the fact that media attention is stimulated by boat arrivals, some 90% of asylum seekers in Australia make their claims for Australia's protection after travelling here on a valid visa. Claims by people, whether they are in Australia lawfully or unlawfully, are examined against the definition set out in the Convention. I won't go over that. You know what that is. There is some variation in processing times with priority being given to people who are in detention, people who are identified as torture or trauma victims, or people who are recipients of Asylum Seeker Assistance. As you know, where an application is refused at the primary stage, the applicant can go on to the independent Refugee Review Tribunal, which may affirm the Department's decision or set it aside. In some cases claimants go on to the Federal Court, as I'm sure our next speaker will elaborate for us.

In this context is should be noted that when we see in the media talk about long detention and unacceptable delays, there is often not an appreciation of the changes of the last few years. The system is now as speedy and effective as justice will allow. On average the Department takes five to six weeks to process a primary application from a Boat Person in detention. The Independent Refugee Review Tribunal gives priority to people in detention and, on average, takes less than eight weeks to finalise a case. Litigation, however, as we all know, can take several years. Of the 601 Boat People currently detained in Australian centres (that is a current figure as of yesterday) fewer than 50 have been detained for more than twelve months. And they remain, not because they are still waiting for primary assessment - as of yesterday no-one was waiting for a primary assessment - or review - but because they are pursuing action in the courts. The vast majority of detainees have arrived within the past year.

It should also be remembered that there is a further safety net in the determination process. If, after full consideration of claims for refugee status by the Refugee Review Tribunal, a person is found not to be a refugee, but his or her circumstances are such that there are strong humanitarian reasons for not wanting to return, the Minister has the discretion, under the Act, to substitute a more favourable decision where it's in the public interest to do so.

Another important reform in our domestic process is the production of a set of detailed operational guidelines on Refugee Law for use by Departmental officers in the decision making process. They are the first Australian text of its kind on the topic of Refugee Law. The guidelines provide a comprehensive legal analysis of the relevant Australian case law on refugees which is binding on Australian decision makers. Where there is no Australian case law on a particular refugee issue the guidelines provide an analysis of international court or tribunal decisions or expert commentary in recommending a reasonable approach to its interpretation. I can only say that the determination process is an exhaustive and complex one, and every effort has been made to ensure that it is speedy, just and accurate.

I'll finish now by just outlining a couple of recent legislative amendments that the Government has brought in. As I said earlier, for the Australian Government to continue to protect genuine refugees it has put in place measures to maintain the integrity of the refugee determination system. The Government has amended the Law to recognise that if a person is covered by the Comprehensive Plan of Action (and persons who have effective protection in another country, referred to as we all know as a safe third country) access to Australia's refugee determination system will not be granted. The legislation to which I refer is generally known as the Number 4 Act of 15 November 1994 and the Number 2 Act of 17 February 1995. I'll deal first with the Act of November last year.

That Act facilitates the return of these persons to a safe third country or the country in which the Comprehensive Plan of Action agreement is being implemented. By doing so it ensures that Australia's refugee determination system is not open to forum shopping by asylum seekers who have been denied refugee status in, or have access to protection, in another country. As a result of this legislation being enacted, 102 unauthorised boat arrivals from five boats have been returned to Galang Island in Indonesia where the Comprehensive Plan of Action applies. Now the legislation does provide protection for any specific case that may warrant it. Where the Minister thinks it is in the public interest to do so he or she has the power to allow an application or applications to be lodged. The Minister is required to table a statement in Parliament setting out his or her reasons for determining that this decision is in the public interest.

The Number 2 Act of February this year made specific reference to recent unauthorised boat arrivals. Since October last year over 900 people from southern China have arrived by boat in Australia. The arrivals are mainly Vietnamese refugees who have been resettled and given effective protection in the People's Republic of China since the late 1970s, with the assistance of the United Nations High Commissioner roe Refugees. The legislation provides that any agreement with the People's Republic of China regarding the Vietnamese refugees would apply to applications made on or after 30 December of last year, and agreement in the form of a Memorandum of Understanding, which gives affect to these measures, was reached with the People's Republic of China n late January of this year. So far 369 people have been returned to the People's Republic under these arrangements. Australia is currently working with Chinese authorities on verification of the remaining 462.

Some other measures have been contained or foreshadowed in recent legislation. The Minister announced on 30 December last year a series of legislative measures to prevent people without claims in Australia's refugee determination system abusing those processes and disadvantaging those most in need. In September of this year, Parliament passed legislation to prevent repeat applications by people already found not to be refugees. You might think this is fairly stiff legislation. In one sense it is but it was drafted with close involvement of the Attorney General's Department and the specific objective has been to ensure that it accords with Australia's international obligations. If Australia returns persons who are ineligible to remain here it will only do so in conditions of safety and dignity. Draft legislation was also prepared, as many of you would know, in response to the Sackville Federal Court decision, to ensure that the fertility control policies of another country are disregarded in determining if an asylum seeker is a member of a particular social group within the meaning of the Convention. The Government's position on that definition was vindicated by a recent decision of the full Federal Court which affirms that parents in China with one child do not constitute a particular social group under the Convention.

In conclusion, ladies and gentlemen, I've taken you on a rapid tour of the horizon of Australia's efforts to assist refugees and those in humanitarian need. I've also taken you on a rapid tour through recent legislative amendment that is designed to keep the system available to those whom the Government believes have a genuine call on Australia's On-shore Refugee Determination system. The picture I've given, I think, is a much more comprehensive picture than focusing solely on Boat People. It also, I think, begins to rebut the commonly presented view that there is an anti-Asian bias in the way in which Australia implements its refugee and humanitarian programmes.

Some of the details I gave you about numbers since the 1970s, about the way we use our other humanitarian categories, the number of people of Asian background brought in through those categories, I think you need to take on board as an indication that it is not a monolithic policy that we're talking about. I can only ask you to reflect on what I have presented and when you next see or hear a media story on Boat People that you place it in the context of Australia's overall response to people around the world who are in humanitarian need.

And I, for one, when media calls on me will continue to keep advocating this basic information as I am required to do under my obligations to the government of the day. At the bottom of it, there is a core of good and fair practice in Australia which sees Australia, justifiably, within the top four or five of OECD (Organization for Economic Cooperation and Development) countries responding to humanitarian needs throughout the world. Thank you.

Meredith Wilkie:

Let me introduce our third speaker. It's Vanessa Moss. She's a solicitor with Legal Aid Western Australia. Vanessa has also worked in private practice and has also worked on a contract with (I can't exactly remember the name of the agency, she might tell you) as a legal representative for the applicants for refugee status in the Port Hedland detention centre. She brings quite some experience to bear and she's going to share it with us now. Thanks Vanessa.

Vanessa Moss:

I propose to talk to you about two issues today. The first one is the question of detention and the second one is the refugee assessment procedure.

As you know, under the current detention regime in Australia Boat People are detained and that detention is mandatory. They're now classified as unlawful non-citizens and their detention is required under domestic legislation. There are some exceptions to that detention and they're set out in the Migration Act: the Act allows for the provision of bridging visas.

One of the exceptions involves people who are under 18. If a child welfare authority is able to certify that their release is in their best interest, then they are able to be released on a bridging visa. However, the tricky thing about that is that they would then be separated from their parents and I don't know whether a child welfare authority would be willing to say that separation from their parents is in the child's best interests. The one child I'm aware of who got out of detention was in fact an unaccompanied minor so the issue of the parents wasn't there and he had a relative in the community with whom he could stay. He was able to be released into the community whilst he waits for the outcome of his application for a Protection Visa.

Another exception to the mandatory detention regime is for people over 75. If there are adequate arrangements made for their care, the Minister is able to authorise their release from detention whilst they wait for a decision on their case. And the third main exception is for people who have health problems or people who are suffering from torture and trauma. And as you may know the case of the East Timorese was the relevant example of that where the eighteen were released from Curtin Air Base on the basis of the torture and trauma they were suffering from, and they had medical reports that verified their stories in that regard.

However, the majority of Boat People aren't released. They're kept in isolated places like Port Hedland.

I spent about nine months working in Port Hedland in 1992 and I've been back there frequently to assist asylum seekers since then. I've seen marriages break down in detention. I've seen people who are greatly distressed by their detention. People who are bored. People who are suicidal, and young children and young men and women who are robbed of some of the best years of their lives. In my view, although detention is legal under domestic law, it's immoral, it's inhumane and I think it's indefensible.

In relation to the processing of refugee applications, the visa that a Boat Person now applies for is called a Protection Visa. When I started work in this area about four years ago it was very different from the procedure applied today. I think the procedure today is fairer and it's quicker and it's simpler than it used to be. However, as you know, there are still Cambodians and Chinese in Port Hedland. Unfortunately, they've started out under the old procedure and they continue to move through that procedure.

Legal Aid now has a contract with the Department of Immigration to provide legal assistance to the people detained at Curtin Air Base and to the people detained in Port Hedland, upon deferral. Most of the Boat People who are currently in Port Hedland today are not in fact assisted by Legal Aid. We haven't been referred to those people because they're unable to apply for Protection Visas. They are, in the majority, Sino-Vietnamese people I believe, and as of the 30 December 1994, such people can't make valid applications for Protection Visas.

The first step is for an asylum seeker to fill out an application form, and it's not an easy form. There are about four parts to the form and a lawyer will assist an asylum seeker to fill out that application form. The next step is for the asylum seeker to have an interview with an official from the Department of Immigration. The Department of Immigration then makes a decision on that person's case. The definition of refugee that is applied (and that's the definition that the person is assessed against) is the definition of refugee contained in a 1951 United Nations Convention on Refugees. There a refugee is defined as someone who has a fear of persecution for one or more of five reasons and the person has to fit into those five reasons. If they're persecuted for some other reason they're not a refugee. They must slot into one or more of the five reasons which are race, religion, political opinion, membership of a social group or nationality. About 7% of asylum seekers are accepted at the primary stage. If an asylum seeker is not accepted at that stage they can move on to the review stage.

The Refugee Review Tribunal is a body that's independent of the Department of Immigration and was set up approximately two years ago. If the Tribunal is not able (looking at the papers alone) to make a positive decision on a person's case then the Tribunal invites the asylum seeker to attend a hearing. The Refugee Review Tribunal would then make a decision as to whether that person is a person to whom Australia has protection obligations. That is the final stage of the merits assessment of whether someone is or is not a refugee. About 17% of applications are successful at that stage. So we have about 24% of people who seek asylum in this country who are ultimately granted refugee status. Mr Doepel has said that about 90% of the asylum seekers in Australia arrive on visas. So the majority of them are not Boat People. Legal Aid is under a contract to assist an asylum seeker at the primary and the review stages. They would also assist them to make applications for bridging visas, as we did with the East Timorese.

The next step, which is not realistic for most asylum seekers, is to seek judicial review in the Federal Court of the Refugee Review Tribunal's decision. The Court isn't concerned with the merits of a case. It's purely concerned with whether the decision was made in accordance with the law, and the Migration Act sets out about seven categories by which you can challenge a decision of the Refugee Review Tribunal, and those include - I'll just give you some examples:

1. If the Refugee Review Tribunal didn't follow the procedure set out in the Act;

2. If the RRT didn't have jurisdiction to take the decision;

3. If the RRT misinterpreted or misapplied the law or its member did; or

4. If the RRT was biased.

As you can see, it would be quite difficult to challenge a Refugee Review Tribunal decision on those grounds.

It's interesting just to compare the statistics in relation to asylum seekers generally, and the statistics in relation to Boat People. I did, on the back of an envelope last night, a calculation of the percentage of Boat People who have been accepted as refugees. Compared with the 24% of asylum seekers overall who are accepted as refugees, 43% of Boat People who applied for asylum were granted asylum (I calculated this by adding up the number of Boat People who have arrived since 1989 who have been able to apply for asylum and who have been successful). I think that's quite a telling point. We have a higher percentage of Boat People accepted as refugees compared to the percentage of refugees amongst onshore asylum seekers overall. Thank you.

Meredith Wilkie:

The final speaker on this panel is so well known, I think, as not to need an introduction. She is Senator Christabel Chamarette, one of the two Greens West Australian Senators, who reminded me that she's never faced an election yet but has been involved in this issue as part of a Senate Standing Committee looking at the issue of detention. Before she became a Senator I knew her as an activist on behalf of Aboriginal people and prisoners, so she has a long history of concern for social issues. Christabel Chamarette.

Christabel Chamarette:

It is wonderful to be here today and to be speaking to an audience of people who understand the difficulties of this issue. Thanks very much for offering me the opportunity to make some remarks on the current situation of Boat People in Australia from my own perspective.

As we know the Boat People, or more correctly Asylum Seekers, who are currently in detention in Australia first began arriving in November 1989 and some of them are still in custody. Recently a young couple with their Australian-born baby were expelled amidst the most heart rending scenes imaginable. If "tolerance for outsiders" is a mark of a civilised society, this removal demonstrates that Australia has a very long way to go.

I wans to discuss the issue of tolerance in relation to three groups:

(1) The Australian Government;

(2) The Australian community; and

(3) Those held, in what the Chief Justice of the Family Court, has likened to concentration camps.

Firstly then the Australian Government.

While I am not privy to the intellgence reports that were provided by various Government Agencies, it seems clear that the arrival of the first boat load of Cambodian asylum seekers took officials by surprise. I say that because the reaction to their arrival seemed to indicate that no contingency plans existed to deal with such a situation, as was demonstrated by the shuffling of people to and fro around the country.

However, it was apparent from the beginning that there was no intention of making them welcome. Indeed, by the time I was appointed to the Senate in early 1992, there was a concerted Government campaign to make it clear that these people were anything but welcome. Not only were the Boat People themselves being vilified as queue jumpers and questions raised about the possibility of them being genuine refugees, but anyone who acted to support them was also subject to vilification and abuse. We have already asked why and I think Norm Aisbett made the contrast to the degree of tolerance and welcome provided to the Vietnamese Boat People by the Fraser Government in the aftermath of the Vietnam War. In that situation a major campaign of garnering community support facilitated the settlement of Boat People in Australia without resorting to detention camps.

So the question remains: Why? And why was the Hawke Government so determined to push the new wave of asylum seekers away? Had the Australian community changed so much over such a short period of time or did the Government have another agenda?

I will go on to hypothesise what that agenda might have been but first I want to say that there is no question that the government was adamantly opposed to the Boat People in marked contrast to the earlier stance and it resulted in an on-going battle between Government, its administrative policy and the courts. That escalating battle continues to this moment.

The sequence has been something like this. An application for refugee status would be considered within the administration and a decision handed down. That decision might become the subject of an appeal and when appealed, on occasion, it would be overturned. In response to this the Government has changed the legislation in order to prevent access to the courts. I have been depressed over the last three years to see the two main parties combine to vote on those changes in the Senate against the opposition of the Greens, the Democract and Independents.

Many people don't realise that Australia has a political monoculture where Labor and Liberal vote together far more often than differently. Many people knowing tht the Greens hold balance of power, assume we are supremely important. The reality is that we are only important or even strategic and have balance of power when Liberal and Labor disagree. People are surprised when I point out that the Government and the Opposition have agreed on everything except approximately six bills in the last three years. So that means we have actually had the balance of power on a handful of occasions during those three years. I remember four occasions in 1993 - namely the Budget including the Wine Tax, the Native Title Bill and on Industrial Relations. Not at all in 1994 except for a tiny window of opportunity, which I will discuss later, to do with migration legislation (which the Opposition then backed down on) and then this year on the Budget and the Racial Hatred Bill. The times when Labor and Liberal have actually disagreed on significant pieces of policy and legislation are few and far between. In relation to migration issues there has been an on-going battle between Parliament and the Courts.

I have personally experienced the very ugly bipartisanship of inhumanity of the Left and the Right that drives migration legislation and there are two experiences of that I would like to recount.

One was my experience with the Joint Standing Committee on Migration and its report into asylum seekers and their detention. I was in the unfortunate position of being the only person holding a dissenting view. It was at that point that mandatory detention was confirmed by Parliament. It had previously only been confirmed by the Government's Legislation which was supported in the Senate. The committee process ratified that stance and reduced access to legal services. It also brought about exceptions for over-stayers and illegal entrants enabling them to get a bridging visa. The same provision was not made possible for asylum seekers or unauthorised entrants, i.e. people who have no kind of authorisation paper when they enter the country. Furthermore, the exceptions provided for children, for those who are very ill, and those who are over 75, in my belief (and certainly according to the arguments we had in the committee), only apply after six months of mandatory detention.

I wrote a Dissenting Report saying that there were clear alternatives to the detention policy and that bridging visas should be available for all, not just over-stayers and illegal entrants who had entered with papers and then become illegal but also asylum seekers. There should be a minimum detention period of something round 2-4 weeks for quarantine reasons, for health checks, and for identification purposes and not six months. And there should be community care not custody.

The committee public hearings uniformly supported that in all the community submissions. Every single community submission argued against a tightening of the kind of control that had been exerted through custody but the committee report supported the current situation. My dissenting report which presented the alternative is available and if there are any people interested I am happy to provide it through my office.

Now I will go on to some of the reasons why the Australian community had changed, or the Government had another agenda.

I think it is possible to argue the case that the current Government felt that it would lose face internationally if it accepted the Cambodian Boat People, and more recently the Vietnamese Boat People coming from Southern China. In the case of the Cambodians the Government, and particularly the Minister for Foreign Affairs, Senator Evans, played major roles in bringing about the Cambodian Peace Plan. The plan itself has been a qualified success. It created the opportunity for elections, but failed to deal with the Khmer Rouge. It brought stability and freedom to parts of the country, but left other parts virtually untouched. For the Australian Government however, the plan has always needed to be seen as a success. Therefore, it has not been possible to allow the Cambodian Boat People into Australia becaue it would have amounted to an admission that the Peace Plan had failed.

The adoption of this agenda - which may be even an ego agenda - has been one of the factors behind the change in regard to Boat People. The policy has led the government to deny the possibility that the Boat People are refugees because by definition, if the Peace Plan is a success then people will not be subject to persecution. Hence we can't afford to keep them. I have had that discussion not only with the Foreign Minister but also with the United Nations Human Rights Commissioner for Refugees.

While that process of thinking is not documented anywhere, it is the only reading of the situation that makes sense to me. An alternative would be that the White Australia Policy still runs deep in the psyche of the Australian Labor Party. I am not so ready to accept such a thesis, though I must say I have been trying to increase my understanding of what has actually driven the bipartisanship which I mentioned earlier.

On the one occasion when the Liberal Party opposed Labor Party policy a Bill was actually rejected in the Senate by the Opposition, the Democrats and the Greens. (This was the retrospective legislation in October last year which restricted the amount of compensation available to refugees who had been detained illegally to $1.00 per day.) However, when it appeared that the Bill could trigger a double dissolution of the Parliament, and there was a change in the Liberal Party with John Howard resuming the leadership, the Opposition changed its stance and supported the legislation. So again the vote was 66 to 10 in the Senate.

That window of opportunity of progressive thinking, or an unwillingness in the Liberal Party to tolerate retrospective legislation, which is one of their principles, was a chink in the armour which meant that there could be some kind of review of what was essentially Government-driven legislation with the backing of the Opposition.

The Government had to embark on creating a community climate hostile to Boat People. I think this has been very successful in some sections of the community and less so in others. I am pleased to say that the groups which had been at the forefront of the efforts to resettle the Vietnamese Boat People made it abundantly clear that they were ready to put the same effort and energy into settling the new arrivals. The Government has however, in my view, carefully cultivated an attitude of rejection in the community and judging by the sort of phone calls my office receives every time the matter of Boat People comes up in the media, the Government has been extraordinarily successful.

I can only assume that the Government has been able to tap into a reservoir of intolerance in the community, because there is not nearly the same attitude expressed towards the 80,000 or so illegal immigrants in the country as a result of visa overstays and the like. Sadly, I think this intolerance demonstrates the level of racism in Australia and that the Government has wittingly or otherwise set back the cause of multiculturalism enormously.

I think there is confusion in the community, and here I am talking about the community rather than Government, between migration and asylum seekers. There appears to be an insecurity in the Australian public about the numbers of migrants coming into the country. This insecurity relates to a number of issues. It concerns development and our catering to multinational corporations. It concerns business migration which jeopardises jobs. Whether that insecurity is well founded or not, those issues are all totally separate from the question of asylum seekers, but the political stance has been to ride that insecurity and apply it quite inappropriately to a target group which is extremely small in comparison to the numbers of people we willingly invite in or allow to buy themselves into not only our country, but also to land and capital investment here.

That may also be a kind of racism or it may be based on insecurity, but I think we need to recognise the way in which it is being used politically.

The second aspect is that there is a vested interest and an allegiance of convenience between Government and business and also sometimes between Governments and Governments. Clearly, military training and the arms trade - as George had mentioned in his talk earlier - have an impact as well.

I found George's analysis fascinating and challenging. I have no disagreement with it, but I am afraid my less critical observation of policy makers hasn't been able to detect such a level of strategic involvement or analysis in their thinking. To me it has seemed much more like a boy's club of mates who automatically assume superior knowledge of how to handle trade, defence and good governance and they see the kinds of policies that they devised on asylum seekers as part of that superior knowledge. It is very difficult to challenge such a set of assumptions.

Lastly, some comment about the level of tolerance among Boat People themselves, and by this I mean the incredible patience and tolerance for the fact of their detention and for the conditions of their detention. Clearly there is a limit to this and we have seen at various points those limits as they have staged protests and walkouts. This should not be a surprise to anyone. I see it as a sign of protest - a cry for help - an endeavour to change people's perceptions from seeing them as a bunch of statistics to seeing them as people with stories to tell and feelings to own.

From my own background as a prison psychologist I know that the strains on these people would inevitably lead to some form of protest as the norms of imprisonment don't even apply in this case. There are no visits from family, no sentence of known length and there are constantly changing rules both in terms of the detention centre regime and the legislation governing refugee processing. I believe that the rationalisation that has been used, i.e. deterrence and sending a signal within Australia and to other governments is also dangerous. The issue of relativity, that we are looking after them so much better here than they would be in any other refugee camp, is also dangerous. Sadly, I have heard such comments from the United Nations High Commissioner for Refugees.

The most threatening rationale I find, is of the integrity of our borders. There is a kind of paranoia in Australia about protecting our borders as an island state. If somebody somes with a piece of paper allowing them to enter the country, even if they then violate it, then they are really not so much of a threat as people who come without that authorisation, without that control, without that screening. As a psychologist I have a framework that says underneath paranoia lies guilt. And, I think the guilt - and you will pardon me if this is far fetched for you, but it makes sense to me as a psychologist - is that Australia is a country of Boat People. We came here in boats, or our ancestors did. We stole the country and we took it over and now there are more Boat People coming. I think it taps into that deep inner psychic guilt that what we have here is not our own. We took it and we may be in danger of losing it. In 1988 a particularly brilliant cartoon was published, with two Aboriginal people on the shore watching Captain Cook arriving by boat and one says to the other "mark my words, before too long these boat people will be taking over".

So, in conslusion, I want to say that the Boat People have been shown a massively intolerant society in Australia. It is the measure of world opinion generally about asylum seekers that Australia has not come in for more criticism internationally about the way that it has treated these people. I urge you all to keep putting pressure on the Government to change its attitude and practices.

Meredith Wilkie:

In a moment I'll give the floor to Alec McHoul who'll give us, he promises, a fairly brief summation. Thank you all very much for your continued presence and participation throughout the day. I'm sure I speak for all of the speakers, and for you, in thanking and congratulating the organisers of this seminar and will you now join me in thanking our panel.

CRCC | New: 24 March 1996 | Now: 27 February, 2015