Neil's second decade

A follow-up to last Wednesday’s post.

Last Sunday the Sun-Herald posted a piece on the cost to the Australian government of current asylum seeker policy:

Costs associated with border protection blew out by $170 million. The original budget for offshore asylum management in 2009-10 announced to Parliament in May 2009 for departmental and administered expenses was $121.7 million. Actual expenses were $292 million.

The budget for border protection and customs this year has been increased to $471.2 million.

There were 8150 on-shore applications lodged for protection visas in 2009-10. Just over half have been provided with visas, with applications decided within 90 days falling from 80 per cent to 71.8 per cent.

Under Howard costs were more like this:

Financial Cost:
 
•     Offshore processing in Nauru, Manus Island and Christmas Island has amounted to at least $1
billion since 2001. By comparison, the latest estimates from DIAC suggest that to process 1,700
asylum seekers for 90 days each at Villawood detention centre in Sydney would have cost around
$35 million – around 3.5 per cent of the cost of processing them offshore.
 
The final tally of financial costs is difficult to obtain as Australia’s offshore processing policies are not
neatly encapsulated as a single program, however they include:
 
•     Interception costs: at least $100 million on increased activities by the Defence Department
related to intercepting boat arrivals, with plans to spend another $51.6 million over the next four
years.  Australia has also made more than $200 million in payments to the International
Organisation for Migration (IOM), largely to manage offshore detention centres in the Pacific, but
also to provide processing and other services in Indonesia to prevent asylum seekers coming to
Australia.
 
•     Infrastructure, maintenance and operating costs: including $396 million for the construction of
the Christmas Island detention centre, and at least $253 million (to June 2006) for the
management and operation of the Nauru and Manus centres. The average cost for maintaining
the facilities on Nauru is $2 million a month, while Manus Island (empty since 2004) is maintained
in readiness for new asylum seekers at an annual cost of $2 million. It costs $1,830 per detainee
per day to keep someone on Christmas Island, compared to $238 per detainee per day at
Villawood, according to the latest departmental estimates (Figures are not given for Nauru and
Manus on this basis).
 
•     Transportation and Services costs: There are many other additional costs, such as nearly $5
million spent on charter flights to move asylum seekers offshore in 2005-06 alone. Millions have
also been spent on other unreported costs like transporting asylum seekers to Nauru, Manus
Island and Christmas Island by boat, flying asylum seekers to Australia for medical treatment,
providing services to asylum seekers that are not covered by IOM and flying lawyers to Christmas
Island to provide legal assistance, as was the case with the 43 West Papuan asylum seekers who
arrived in 2006.
 
•  Cost to the aid program and other costs: Since 2001 Australia has increased five-fold the
amount of development assistance provided to Nauru, compared to the 1990s (providing over
$123 million in aid between 2001 – 06). It also established a $1 million trust fund to meet the costs
associated with setting up the Manus Island facility. The fourth MOU between Australia and Nauru
for the offshore asylum program in 2005 – 07 pledges $40.5 million in aid over the period.

Yes, but he did stop the  boats though, you may say, as does Howard. Probably that is right, though it wasn’t so clear when I posted What’s a billion dollars, mate? in August 2007. On that post you will find the source of the facts above. It is also true that events in Sri Lanka and continuing issues in Iraq and Afghanistan, plus a number fleeing Iran, partly explain the recent upsurge in boat arrivals.

But is our focus on boat people either desirable or even necessary? I rather think not. See The problem is detention, not asylum seekers by Harry Minas for arguments I would support. Even better, go to Slow TV and download or watch Asylum seekers and Australian democracy: Manne, Lake, Burnside, Megalogenis.

What do we fear? At this La Trobe University event, four of the nation’s leading thinkers on the subject to explore the asylum seeker issue (and don’t always agree): on the ALP’s problems dealing with it; the historical and cultural baggage; and the political difficulties inherent in taking a progressive approach.
Chaired by Dennis Altmann (Director, Institute for Human Security, La Trobe University), the panel consists of: Julian Burnside QC, Barrister and asylum seeker advocate; Marilyn Lake, Professor of History, La Trobe University; George Megalogenis, Senior Journalist, The Australian; Robert Manne, Professor of Politics.
Presented by the Ideas and Society Program, La Trobe University, October 2010

Marilyn Lake has some views on the history of the issue which are new to me, and Julian Burnside is just awesome.

So what should we be doing?

First, we should not be distinguishing asylum seekers by their mode of arrival as the “boat people” are in fact guilty of no crime by either Australian or international law. Second, we should roll back the chicanery of marking bits of Australian territory as “not really Australia” ## – Christmas Island, notably. Third, the only people in detention should be new arrivals undergoing health and security checks for a period of about a month, after which they should be released into the community (as non-boat arrivals already are) to await the decision on their asylum application, during which time they should of course be monitored. The only other people who should be briefly detained are those whose applications having failed are waiting detention.

Now this would save heaps of money, quite apart from the humanitarian aspects of such a policy.

Remember that while 80—90% (or more) of boat arrivals turn out to be genuine refugees, only around 20% of “plane people” – visa over-stayers and such – do. It would seem we are targeting the wrong group, on that basis. But my argument is in fact to afford the same rights and processes to all of them.

– Asylum Seeker posts.

## Update 11 November

David Marr writes today about a very relevant case before the High Court of Australia.

Even before wreaths are laid on the cenotaphs of the nation this morning, the High Court may send to the grave Australia’s treatment of boat people since the arrival of the Tampa. Sweating on the outcome are two Tamils who took their troubles to the court. Both were refused refugee protection early this year. Both are sitting in Villawood facing forced removal to Sri Lanka.

Canberra is sweating too. A decision in favour of the men could halt dozens of deportations and change the fate of thousands of boat people held in camps across Australia. The "excision" system that ships them all through Christmas Island would become redundant. The court might put in doubt every negative finding of the so called "non statutory" Refugee Status Assessment system that has decided the fate of every boat person for a decade.

It’s big. Few decisions of the court have been so anxiously and eagerly awaited. All will be clear this morning, but when lawyers gathered in August to argue the case in Canberra, judges on the bench indicated they were ready to make a big call: that boat people cannot be detained and processed outside the law.

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Had the two Tamils known as M61 and M69 flown to Australia on a tourist visa and then asked for refugee protection, they would have been released into the community and assessed by the Refugee Review Tribunal with the courts keeping an eye on officials to make sure all was properly done.

But because M61 and M69 arrived at Christmas Island, their fate was entirely in the hands of the Minister for Immigration. That’s the theory anyway: they landed in territory "excised" from the Immigration Act so no court can have a say in their processing. A "non statutory" Refugee Status Assessment was compiled for each by outside contractors, but ultimately whether the two Tamils stayed or went was at the absolute discretion of the minister…

Ken Parish comments on this on Club Troppo.

I read the hearing transcripts a couple of months ago and formed the view that the case had a fighting chance of success.  Anyway, the decision is being handed down this morning so watch this space.  If the applicants succeed it will not only restore a measure of fairness to the system but, rather more equivocally, increase the incentives for asylum seekers to take their chances with the people smugglers and further increase the political pressures on the Gillard government to do a deal with East Timor quickly or swallow their pride and revert to the Nauruan Pacific Solution.

And now the decision is in!

The High Court has unanimously ruled that Australia’s offshore refugee processing regime is invalid.

The decision came in the case of two asylum seekers who were processed on Christmas Island.

The High Court’s decision means the Federal Government can no longer refuse to allow the courts to review decisions made about people who are processed offshore in places like Christmas Island.

The Federal Government has been ordered to pay the costs for the two asylum seekers.

Now there is a cat among the pigeons!

See Greg Barns on ABC: Victory for asylum seekers against legal fiction.

…The High Court’s ruling that the offshore processing regime which denies asylum seekers fairness in how their cases are assessed, is procedurally unfair represents a victory for human rights and fairness over the cruel politics of immigration to which this country has become all too accustomed in the past decade. This decision involves two Sri Lankan Tamils known only as M61 and M69 who arrived at Christmas Island in October 2009. Christmas Island of course is one of Australia’s offshore territories which have been subjected to the Alice in Wonderland excision process that enables the Australian Government to say that when it comes to migration it’s not part of Australia…

In short, the politics of Tampa and beyond have unravelled. It was former prime minister John Howard who, when he decided in the lead up to the 2001 election to turn back the Tampa – a ship carrying asylum seekers – created the fiction of offshore processing so as to deny asylum seekers rights to appeal decisions taken against them and to be treated equally with those who made it to the Australian mainland and applied for protection.

The High Court also rejected an argument from the Commonwealth’s lawyers that the Government has no implied obligation to afford procedural fairness to asylum seekers because asylum seekers have no rights in a legal sense.

“The Commonwealth and the Minister submitted that, if any power was being exercised under s 46A(2) (and they submitted that it was not), there was no implied obligation to afford procedural fairness because the power is not a power to destroy, defeat or prejudice a right; it is a discretionary power to confer a right,” the Court noted.

But, referring to previous cases, the Court rejected this submission arguing that “the obligation to afford procedural fairness is not limited to cases where the exercise of the power affects rights in the strict sense, but extends to the exercise of a power which affects an interest or a privilege.”…

Oh righteous judges!