Punishing the Powerless: Australia’s Asylum Seeker Shame

Refugee advocates have slammed the re-introduction of offshore processing for asylum seekers by the Australian Labor government under Julia Gillard, warning it will lead to an outbreak of mental illness among detainees and result in a human rights disaster.

They say that under the policy, asylum seekers who arrive by boat will be sent offshore to languish in harmful limbo, away from the scrutiny of courts, the media and the public.

Others warn that existing detention arrangements are already leading to an epidemic of mental illness.

On 16 August, federal parliament passed legislation that enables offshore processing and indefinite detention on Nauru and PNG’s Manus Island.

The Greens tried to introduce amendments that would ban indefinite detention and require scrutiny by human rights observers, but these were rejected.

Labor’s backflip marks a return to the infamous ‘Pacific Solution’ of offshore detention that was adopted by the former Coalition government headed by John Howard. The Immigration Minister, Chris Bowen, has said that asylum seekers on Manus Island and Nauru will have ‘no advantage’ over those waiting for resettlement in camps in Indonesia and Malaysia. He has refused to name the waiting period, but it could be up to five years.

Yet the policy is worse than the Coalition's because this time around, asylum seekers processed offshore will have no access to the Australian legal system.

While Nauru became party to the United Nations Refugee Convention in 2011, it is said to lack a legal framework and the expertise necessary to process fairly the claims of asylum seekers.

In addition, the department of health will no longer be responsible for the health of asylum seekers in detention.

The Refugee Action Coalition Sydney has warned that the policy is a recipe for ‘another epidemic of mental illness’.

It said that the notion of an orderly queue in overseas refugee camps was a myth. And it has estimated that the cost to taxpayers could be as much as $1 million per asylum seeker.

Indefinite detention and mental illness

Indefinite detention of asylum seekers under the Howard government, often in oppressive desert conditions under abusive and poorly trained staff, led to mental illnesses such as clinical depression and post traumatic stress disorder becoming endemic. Without a definite release date even the most mentally stable refugees were cracking under the strain, while children in detention were exhibiting severe signs of trauma after witnessing the desperate acts of those with no hope – hunger strikes, sewing up of lips, other forms of self-harm and attempted suicide.

To make matters worse, detainees who clearly needed to be released from detention for urgent psychiatric treatment in hospitals were denied it.

There was also a string of public scandals around detention centres, including nearly 250 cases of wrongful detention.

Research carried out during this time confirmed that immigration detention led to the risk of mental deterioration and ongoing issues with post traumatic stress disorder, depression, and disability due to mental illness. The longer the detention, the more severe was the resulting mental disturbance.

The response
 
The Australian Medical Association (AMA) has lamented the Labor government’s return to offshore processing and called for an independent medical panel to oversee the health treatment of asylum seekers processed offshore.

It said that the federal government was already dealing with ‘a large and growing catalogue of compensation action from asylum seekers claiming to have been traumatised by their time in Australian detention centres'.

AMA President Dr Steve Hambleton said that indefinite detention had ‘a serious mental health impact.

‘There is plenty of research evidence of the harm that detention causes to a child’s development. We must do the right thing.’

Professor Louise Newman, of the Monash University Centre for Developmental Psychiatry and Psychology, said that after 12 months in detention, people literally start to mentally decompensate [deteriorate in functioning], some people earlier. ‘And that can only be exacerbated if people are in these very remote locations where they have great difficulty in understanding their own situation.’

Refugee advocates insist that the new policy contravenes Australia’s legal obligations as a party to the United Nations Refugee Convention. They also believe it could be illegal following the High Court decision that struck down the Labor government’s planned ‘Malaysian solution’.

The High Court found that the transfer of asylum seekers to a third country for processing comes with strict conditions, including that no one be sent from Australia to a situation where they are not effectively protected under law in a way that meets minimal human rights standards.

The UN High Commissioner for Refugees (UNHCR), the body primarily responsible for the protection and resettlement of refugees, has expressed doubt that credible refugee status determinations can be made on Nauru and Manus Island, and has refused to be involved in the processing of asylum seekers there. Meanwhile, legal boffins claim that because of the lack of suitable protections and legal framework on Nauru, Australia may still be responsible for the wellbeing of asylum seekers processed offshore, despite its attempts to wash its hands of them.

The Greens have slammed the new policy and recently accused the government of having insufficient mental health services on Nauru and Manus Island. For example, they claim that only two counsellors and no permanent psychiatrist will be available for 1500 people on Nauru once it is operating at peak capacity.

Amnesty has been equally scathing: ‘People languished in Nauru for years out of sight of public and media scrutiny, before ultimately ending up in Australia. It is shocking to see the panel favour punitive measures that deliberately hold vulnerable people hostage, separate families and leave them in limbo.’

Under the new legislation the immigration minister is no longer the legal guardian of children and unaccompanied minors sent offshore. This opens the way for children to be detained indefinitely and forcibly deported. The Oxford Human Rights Hub has accused Australia of trying to circumvent its legal obligations to all children within its jurisdiction as a country that has ratified the UN Convention on the rights of the Child. UNICEF has also protested the policy, insisting that children should not be sent offshore.

Labor's backflip

Since 2001, boat arrivals of asylum seekers to Australia have been highly politicised. Both major parties have exploited the issue to detract attention from broader issues of inadequate infrastructure, high immigration and insecure employment; plane arrivals are far more numerous yet attract little controversy. It has also been a staple of commercial television and the tabloid and hate media.

Yet while the stated aim has been to end the practice of asylum seekers risking death by getting on leaky, overcrowded boats and heading for Christmas Island, in the recent debate there has been little consideration of the causes of refugee flows, or government failures to provide adequate search and rescue.

In fact, the deaths of asylum seekers at sea can be sheeted home to Australian Government policies. For example, Australia’s search and rescue services operate with the priority of stopping boats arriving, not saving lives, according to the author of Reluctant Rescuers, Tony Kevin. He claims that ‘hundreds of people have died when they could and should have been saved’.

According to the Refugee Action Coalition Sydney, the deterrence policies  of the Australian government have added to the treacherous nature of the trip. ‘These include detention in Indonesia of anyone caught trying to get a boat, criminalisation of people smuggling and the sinking or burning of boats that arrive, which means only old, unsafe vessels make the trip.’
 

Shameful legacy

The current crisis had its beginnings in the abrupt policy switch that followed the Tampa affair in August 2001. As the events unfolded the Coalition government under Howard rushed through legislation that instituted the infamous ‘Pacific Solution’ of offshore detention, and affirmed the legality of indefinite detention, a policy that had been introduced by the Keating government in 1994. Skillfully exploiting Australians’ traditional fear of invasion by non-whites, Howard went on to comfortably win the federal election on 10 November 2001.

By the early 2000s, Australia’s detention centres, and its policy of detaining children, were attracting wide controversy. One child, Shayan Badraie, sparked a public scandal when he became so traumatised by what he had witnessed at the Villawood and Woomera detention centres that he was virtually catatonic; he refused to talk, eat or drink and was wasting away. The Immigration Department released him only after a storm of media protest.

In 2005 Howard was forced to soften his detention policy after a public backlash and a revolt from a group of angry Coalition backbenchers. Concessions he reluctantly granted included the promised release of long-term detainees, the release of all children and their parents, time limits on processing refugee applications and review of all long-term detainees by the ombudsman. However, indefinite detention remained legal.

Following its election in 2007, the Labor government ended the Pacific Solution, closing the detention centres on Nauru and Manus Island. It introduced ‘Seven New Values’ governing detention, but these were never underpinned by legislation, and indefinite detention remained legal.

Refugee advocates such as Pamela Curr of the Asylum Seeker Resource Centre claim that all these values have since been breached. Curr and others allege that even in the existing detention centres the situation is now alarmingly close to that of the Pacific Solution under Howard.

After unremitting pressure from the opposition and media, and with the continuing arrival of new boats, the government appointed an Expert Panel on Asylum Seekers. It produced the Houston Report, which recommended that Australia immediately increase its humanitarian intake of refugees from 13,500 to 20,000 places a year, increasing to 27,000 over the next five years, and that the government put more resources into developing a regional cooperation framework for dealing with refugees.

But it also called for the re-opening of Manus Island and Nauru as offshore processing centres, a ‘no advantage’ test for asylum seekers arriving by boats, and the scrapping of access to family reunion programs for boat arrivals.

Dr Graham Thom, Amnesty International's National Refugee Coordinator, said that the recommendations ‘prioritise policies that are solely based on deterring refugees and do little to acknowledge the conflicts, persecution and regional dynamics which make people board boats’.

The legislation that was passed by federal parliament on 16 August as a response to the report has been attacked for leaving out some of the recommendations that softened it, such as access to health and education services for detainees.

Why is this wrong?

When looking at government treatment of asylum seekers, it’s important to separate two factors: the truthfulness of the claims to refugee status, and the conditions under which asylum seekers are kept while awaiting processing. Conditions must include the length of time people are detained for, and whether or not there is a stated maximum length.

Just as mental health is misunderstood in the community, so Australians and the public in general have been slow to recognise the mental health aspects of incarceration, whatever the nature of and original reason for that incarceration.

Jail for convicted offenders is a separate issue, but we can see that general ignorance at play whenever the public complains about conditions in jaIls being too good; in this case, there is a failure to understand that incarceration alone imposes punishment on the psyche, even when conditions are decent.

When it comes to asylum seekers, the level of ignorance and misunderstanding is even worse.

Furthermore, the conditions are often horrendous, and while criminals know when their sentence is due to finish, detainees have no such certainty.

Yet there is a body of research that tells us that indefinite or prolonged detention poses serious and permanent risks to mental health and can be seen as a form of torture.

Of course, the real problem is that, after initial checks have been carried out, detaining someone who has broken no law, while refusing to tell them when you are going to release them, is a fundamental breach of the basic rights that form the basis of Western democracy, including habeas corpus.

Real solutions

Refugee advocates insist that offshore processing will fail as a deterrant because the problem is a lack of regional processing.

They say the appalling conditions of asylum seekers languishing for years as they wait for processing in countries such as Malaysia and Indonesia must be dealt with. Above all the government has been attacked for its failure to increase significantly the number of refugees it takes from Indonesia.

According to the Greens, 'There ae 8000 people waiting to have their asylum applications assessed in Indonesian refugee camps, and more in Malaysia. But with only a handful of UN officers assessing their claims, the "queue" to find a safer home from Malaysia or Indonesia is decades long.

'Refugees have no legal status in Indonesia or Malaysia. That means they have no healthcare, no education, no way to earn a living for their families, and no prospects of a safe life.'
 
Over the last decade Australia has only accepted 60 people, on average, from Indonesia and Malaysia each year. According to the Refugee Action Coalition Sydney, the Expert Panel suggested immediately accepting 3200 refugees from Indonesia to clear the backlog of recognised refugees there. But the government has set aside just 400 places.
 
Advocates have called for faster resettlement, an immediate increase in UNHCR funding from Australia for the UN to process claims more quickly, and better protection for asylum seekers waiting in those countries for resettlement.

In addition, the Greens have called for the following government actions:

• Open up more family reunion places in Australia's humanitarian program
• Review the ban on people from some countries seeking protection by air
• Delink the onshore and offshore quotas for humanitarian visas
• Codify Australia's sea rescue policies and increase Indonesia's capacity so people are rescued in time
• Establish an Australian Ambassador for Refugee Protection.

'In the 1970s and 80s, we helped thousands of refugees through a genuine regional system', they insist. 'We can do it again.'