Sharing the luck

It takes a bleeding heart to see the bleedin’ obvious

5 Comments 05 July 2010

from Tim Bennett at electron soup

It takes a bleeding heart to see the bleedin’ obvious: Asylum seeker policy reform

By Kate Gauthier

Most policy reformers, especially social policy reformers, like to tell governments where they should spend more money. But when it comes to asylum seeker policy, reform advocates are not asking the government to spend more money; we are begging them to spend less.

It would be hard to find another area in which more money is thrown away on policies that prove completely ineffective, are extremely expensive, breach both international and domestic law, and inflict further damage on people who have fled persecution, torture and trauma.

Although onshore asylum seekers (people requesting asylum after they arrive in Australia) make up a much smaller number of entrants to Australia than our offshore refugee and humanitarian program, they dominate media and public interest. Australia granted a total of 13,507 refugee and humanitarian visas in 2008-09. Of these, onshore protection visa grants were only 2,378, or 17 per cent1 and less than half of these came by boat. The majority of our onshore asylum seekers actually arrives by plane2 and live freely in the Australian community without generating scathing opinion pieces.

In the current financial year (2009-10), asylum seekers who have arrived by boat and received permanent protection will make up less than one per cent of the migration program (around 225,000 in 2008-09). 3

Why then is so much money spent on so few? And why do we have a bipartisan approach to ‘getting tough’ on the victims of persecution, that sees the ALP and the Coalition engaged in a policy war of attrition, with asylum seekers as the collateral damage?

Unfortunately, this is an area of policy that, more than any other, is not developed in the halls of government but on the airwaves of talkback radio and in newspaper opinion pages. This leaves both sides of politics forced to peddle policies which, in their heart of hearts, they know are both cruel4 and destined to fail.

Push-me pull-you

Before looking at suggestions for policy change, it is important to address the myths and facts of push-pull factors affecting asylum numbers, upon which most policies are based.

There has been no proper analysis of any impact that domestic policy changes have had on asylum flows to Australia. Claims that Howard era deterrent policies ‘stopped the boats’ by reducing pull factors to Australia is sloppy policy evaluation at its worst, using only a temporal link to prove cause and effect. Claims that only push factors, such as in-country security concerns, have increased boat arrivals have no basis in proper research either. Without proper research and analysis, it is impossible to say definitively if Australia’s varying numbers are caused by normal changes in global asylum flows, statistical blips or domestic policy.

However, a cursory study of the statistics can give some ideas as to cause. As this first graph

5 shows, Australia’s varying asylum numbers have largely followed global trends over the years. Some small variation exists which is claimed by some to be caused by domestic policy changes.

Since there are similar ebbs and flows for plane arrival asylum seekers as boat arrivals, as shown by the second graph, the statistical analysis implies that domestic policy focused on boat arrivals has, at best, only a marginal impact on numbers. Given the costs of those policies – financial and human – was it really worth over $1 billion to process a mere 1,700 asylum seekers under the Pacific Solution? 6

Source: OECD International Migration Outlook 2010, and Department of Immigration and Citizenship figures.

The story so far

Boat arrivals: the ‘Indian Ocean solution’

The Howard Government’s split-personality approach to asylum seekers arriving by boat versus plane has continued under the Rudd and Gillard Labor Governments. All boat arrivals are taken to Christmas Island, dubbed by many as the Indian Ocean Solution. Although conditions and their treatment are a vast improvement on Howard’s Pacific Solution in Nauru and Papua New Guinea, the policy still entails breaches of international human rights instruments. Boat arrival asylum seekers are given a truncated protection assessment process compared with plane arrivals processed on the mainland – they do not have access to the standard merits review or any judicial review.7  This reduced investigation of claims will inevitably result in refoulement, the return of refugees to danger.

In theory, the 2008 reforms made to detention policy – changing Howard’s mandatory prolonged detention regime into a risk-based community detention system – should also apply to asylum seekers on Christmas Island. In reality they cannot, because there simply is not enough community infrastructure available on the island to accommodate the release of people who do not pose a health, security or compliance risk.8

Single men remain in detention until they are either granted a protection visa, or are moved to the mainland in order to facilitate a removal from Australia. There is no risk-based community detention for them.

Women and children

The matter of women and children is also problematic. They are generally kept in the ‘construction camp’ on the island, with far less security. However, it is not community-based accommodation by any means. With overwhelming numbers of children, there is not enough space on Christmas Island to accommodate them. The Government has moved groups onto mainland Australia into different locations. As of 21 May 2010 there were a total of 452 children in detention9 with only nine in community detention. The Government has kept them under guard in hotels and in remote outback towns. Again, for boat arrivals, there is no such thing as risk-based detention with community release for those deemed not to pose security, health or compliance risks.

The problem is that the Rudd and now Gillard Governments have the same view as the Howard Government, that Australia’s boundaries should be drawn differently for asylum seekers. Unless asylum seekers reach the mainland, they are still subject to excision laws, which grant them far fewer legal rights than asylum seekers processed on the mainland.

Where to from here? Recommendations for policy reform

There are two areas of asylum seeker policy: the international and the domestic. Each area has different policy objectives and possible outcomes. The first area deals with the breakdown in the international system of refugee protection that causes asylum seeking. The policy objective in this area should be to provide better refugee protection with an additional outcome being a reduction in the flow of asylum seekers to Australia.

The second area, domestic policy, deals with what we do with the asylum seekers themselves when they reach Australia. Policy objectives should be to create a cost-effective and humane system that quickly and fairly determines who is owed protection under international human rights instruments, and does so in a manner that protects the Australian community from any security or health threats. Using domestic policy to stop asylum flows is unrealistic and immoral. To stop asylum seeking, the Australian system would have to be worse than the places that people are fleeing – worse than extra-judicial killings, torture and persecution. And to attempt to influence the behaviours of other asylum seekers in third countries by punishing individual asylum seekers in Australia, who have committed no crime, is quite clearly immoral and in some cases a breach of our constitution.10

Asylum policy: Eight key steps for reform
  1. Set an example in our region by adopting best practice for asylum seeker and refugee protection.
  2. Encourage neighbouring countries to sign the Refugee Convention.
  3. Reduce the regional bottleneck with a short-term resettlement program.
  4. Use the same risk-based detention approach for all asylum seekers, whether they arrive by plane or boat.
  5. Create appropriate accommodation centres instead of high security detention centres and work with NGOs to establish community-based supported accommodation programs for those who are released into the community pending a visa outcome.
  6. Provide living assistance (funds) to those in the community awaiting a visa outcome.
  7. Expand programs such as the Community Assistance Support program to all vulnerable cases.
  8. End the use of Christmas Island and repeal the excision laws.

International policy: A breakdown in protection

While it is difficult for any single country to have a significant global impact on improving the system of refugee protection, Australia could certainly have a greater positive impact in our region.

Currently, Australia’s foreign policy focus is on the ‘evil trade’ of people smuggling and policies approach the issue as a criminal one. However, asylum seekers only exist where there is a lack of effective protection options. Removing people smugglers does not remove the core reason for the irregular movements of asylum seekers. The Government could make a long term impact on asylum flows in our region in three crucial ways:

1. Set an example by adhering to our human rights obligations

We cannot expect our neighbours to adhere to their human rights obligations when we attempt to deflect our own obligations onto other nations, by turning around boats at sea or sending asylum seekers to third countries for processing.

2. Encourage others to sign the Refugee Convention and assist them to comply

Using our significant diplomatic influence, combined with aid incentives, we could be doing much more to encourage nations in our region to become more involved in refugee protection. We need to provide funding and expertise to assist them to establish protection and settlement programs once they are signatories. We also need to take a proportion of our resettlement quota from this region, reassuring our neighbours that they would not carry the regional protection load alone.

3. Reduce the asylum bottleneck

In the short term, Australia should take some of the pressure off the asylum bottleneck in South East Asia by increased resettlement from the region. This could be done with very little disruption to the current migration program, by allocating some extra places over and above the annual 13,750 places in the offshore refugee and humanitarian program. This would reduce the attraction of boat journeys even for those not resettled immediately, as they would be able to see a realistic chance that they may be resettled eventually. According to the United Nations High Commission for Refugees (UNHCR), as at 30 April 2010 the Indonesian office of UNHCR had a caseload of 3,471 comprised of 2,705 asylum seekers and 766 refugees. The five year average for resettlement of refugees from Indonesia is a mere 82 people per year, which shows why many decide that ‘waiting patiently’ is not a good option.

Regional Processing Centre

On July 6th 2010, Prime Minister Gillard announced a new asylum seeker policy to establish a “regional processing centre (RPC) for the purpose of receiving and processing irregular entrants to the region.”11 The lack of details released makes it very difficult to make any in-depth assessment of the proposal. However, the key point that most media commentary missed was that the announcement also stated the RPC is just one initiative in a commitment “to the development of a sustainable, effective regional protection framework.”

If a protection framework is truly the approach, and if done correctly (and this is a very big if), this could be a leap forward to more effective regional cooperation leading to increased protection options for refugees and a reduction in asylum flows. In turn, that could lead to non-signatory countries such as Indonesia and Malaysia recognising that it would be in their best interests to sign the Refugee Convention and become part of a new cooperative regional approach to asylum. The greater sharing of resettlement in our region could then lead to an increase in public support domestically for Australia’s involvement in refugee protection.

However, if the focus of this policy is simply to reduce the domestic political problem of boat arrival refugees being granted protection in Australia, to move them offshore and out of the public eye, then this could lead to the warehousing of refugees in detention-like conditions and would be little better than the Pacific Solution. Any proposal that results in Australia shifting its responsibility elsewhere should be condemned. UNHCR has indicated this approach should complement, but not be a “substitute for a fully functioning, fair national assessment process.”12 The RPC should only be used as a preventative measure. Once asylum-seekers reach Australia, we have an obligation to process their claims and ensure that they are granted protection in a timely manner.

Three key areas need to be included in any RPC approach:

  • Accommodation: asylum seekers must not be detained, and the alternatives may create difficulties with local populations in poorer nations. Who will manage accommodation centres and who will oversee them to ensure that human rights standards are maintained?
  • Asylum claims processing: under whose system of law will asylum seekers be processed? Refugee Convention signatory nations have an obligation to allow asylum seekers access to their domestic court system. To subvert this legal right, will Australia ask other nations to copy our excision laws, which are a breach of this provision within the Convention?
  • Resettlement: processing needs to be coupled with realistic timeframes for resettlement so people are not left in limbo for years with no real protection; the very reason for asylum flows in the first place.

This should not be seen as an easy or quick-fix solution. It will take some time to set up proper processes, external scrutiny and develop a framework for resettlement. We have seen a shaky start to the proposal. Australia should have started with a regional conversation, not a bilateral one with East Timor. In order to show we are serious, Australia should increase our resettlement places from 13,750 to 20,000, keeping a significant proportion aside for regional protection burden sharing arrangements.

Of course, to start such a program, we do not even need to build yet another expensive processing centre. We should start by taking people waiting in Indonesia, who otherwise will risk their lives on boats as the resettlement waiting time is currently far too long.

Domestic policy: Treatment of individual asylum seekers

Despite the recent announcement of a regional processing centre, this will not negate the need for domestic asylum policies. The majority of our asylum seekers actually arrives by plane and will not be affected by this policy, and the reduction of boat arrival asylum flows will not be immediate. Most importantly, a regional processing centre should not be a substitute for an Australian protection claims processing system, but should instead be a preventative program to reduce dangerous boat journeys.

There is no shortage of policy suggestions for the treatment of onshore asylum seekers. To make a good start we do not even need to write new policies, but to take current policies and practices used for plane arrivals and properly apply them to boat arrivals. Overall, we just need to change the way we spend money – which would result in spending much less – as all estimates for humane onshore reception programs are far cheaper than the policy of mandatory detention of all non-visa holders.13

A United Nations High Commission for Refugees (UNHCR) study on the international experience of alternatives to detention found that providing accommodation and material support during the asylum procedure was critical to ensuring compliance with the immigration process. The research found that alternatives to detention remain effective enforcement tools, while being more fiscally responsible than detention.14

4. Use the same risk-based detention approach for all asylum seekers: plane and boat arrivals

On July 29th 2008 Senator Chris Evans, Minister for Immigration, announced the New Directions in Detention policy.15 It changed the mandatory prolonged detention regime into a risk-based detention system. All unauthorised people would still be subject to mandatory detention in the first instance, but people would undergo health and security checks and a compliance assessment. Those deemed not to be a risk to the Australian community and not a flight risk would be released into the community under a variety of mechanisms with differing levels of security and monitoring.

The most humane and least expensive outcomes would flow from the simplest policy change: take the current risk-based policies and practices used for plane arrivals, and properly apply them to boat arrivals. If someone is not a health, security or absconding risk, why pay all that extra money to traumatise them in detention?

5. Create appropriate accommodation centres instead of high security detention centres and work with NGOs to establish community-based supported accommodation programs for those who are released into the community pending a visa outcome

Many studies have demonstrated the negative psychological impacts of detention on asylum seekers. In order for the 2005 (Howard Government) and 2008 (Rudd Government) reforms to be truly effective, the focus needs to be on creating flexible accommodation and reception programs. All arrivals require accommodation in the first instance while security, health or identity concerns are addressed, and more importantly, while their social service needs are assessed. However, high levels of security are unnecessary in the majority of cases while these checks are conducted. Unfortunately, the complete lack of flexible accommodation facilities has tied the hands of the Department of Immigration, which had nowhere else but detention to place vulnerable asylum seekers pending the outcomes of those checks.

6. Provide living assistance (funds) to those in the community awaiting a visa outcome

The Asylum Seeker Assistance Scheme16 and the Community Assistance Support program17 provide limited financial support to some asylum seekers living in the community. However, the eligibility guidelines restrict many from receiving any assistance, leaving people destitute. Hotham Mission recently found that many asylum seeking children were not housed or fed to standards required by international law.18  The Government must expand these programs to ensure that, at minimum, all people who are allowed to remain in Australia are adequately fed, housed and clothed.

7. Expand programs such as the Community Assistance Support program to all vulnerable cases

In 2005, John Howard pledged to remove children from behind the razor wire, writing into the Migration Act that “Children shall be detained as a measure of last resort.” The release of children and their families, combined with the scandals of Cornelia Rau, a mentally ill Australian resident who was detained, and Vivian Alvarez Solon, an Australian citizen who was deported, meant that new ways of case-managing and accommodating vulnerable people were developed, including finding alternative non-detention accommodation.

As part of this, then Immigration Minister Senator Vanstone began a trial of the Community Care Pilot, now the ongoing Community Assistance Support program. This pilot succeeded because it used a holistic case-management approach, while keeping people in the community instead of in detention centres. The idea was that if you treat people humanely and ensure all their health and living needs are met, this will have positive outcomes for their immigration case. They are better able to assist in their case (trauma has detrimental effects on memory) and are more compliant because they feel their case is being heard fully and fairly. According to workers at service delivery agencies, this pilot program led to far higher rates of uncontested and voluntary returns of failed visa applicants.19 Overall, this reduces the costs of litigation, detention, and expensive forced and chaperoned returns home.

8. End the use of Christmas Island and repeal the excision laws

This package of suggested policy changes would necessarily mean transferring all asylum seekers off Christmas Island, as there is a lack of alternative accommodation on the island to allow for the release of people (who do not pose any risk) from the high-security detention facility. The remoteness of Christmas Island also makes it impossible to deliver torture and trauma counseling services that are readily available on the mainland. The location vastly increases the costs of accommodating detainees while reducing the quality of services provided to them. Governments in recent years have been loath to provide per detainee per day breakdown of costs. The latest available figures put Christmas Island at $2,895 per detainee per day compared with Villawood in Sydney at $190 per detainee per day.20

Offshore detention and processing of asylum seekers is a breach of our international obligations under the Refugee Convention, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.21 But it is also bad policy from a purely rationalist perspective, as it does not achieve its goals. As outlined earlier, there is no evidence to show that punitive practices have any significant impact on asylum flows. If it does manage to reduce the acceptance rate of protection claims from excised compared to mainland-processed asylum seekers, then the excision system is set up for refoulement – the return of genuine refugees back to situations of danger.

The roadblocks

The media

The key roadblock to the adoption of these reforms is the current public and political environment. Since the boats started arriving again, there has been a media frenzy over the numbers, with the same kind of statistical obsession usually reserved for footy league tables, school rankings and Easter weekend road fatalities. The Coalition has jumped on the opportunity to reprise the 2001 election and talkback radio has once again put this issue on high rotation, probably increasing community fear and concern.

Illegal immigrants

Asylum seekers are often referred to as “illegals.” Under international and domestic law, it is not illegal to enter Australia without a visa for the purpose of seeking asylum. They have not broken any law at all. In fact, to be classified as a refugee you must be “outside your country of origin”22 which means that nearly every refugee must enter a country without a visa in order to reach UNHCR for processing.

Failure of Government to frame the debate

The Rudd Government missed an important opportunity to reframe the public debate about asylum seekers when it was elected in 2007. It could have generated public discussion that did not vilify individual asylum seekers or see small numbers of boat arrivals as a threat. This would have provided Rudd with public support for a more humane and evidence-based approach to policy reform. Instead, the Rudd Government continued to use the language and framing of the Howard Government, presenting asylum seekers as a border security issue, as an undesirable phenomenon, and as an international crime issue. By maintaining the negative view of asylum seekers while at the same time trying to be more compassionate in some policy reforms, the Rudd Government set itself up for failure. In essence, they have upheld the view that asylum seeking is a national security threat, but have softened policies believed by many Australians to stop it.

The Gillard Government is heading down the same path. Her first comments on the issue as Prime Minister were to attack the opposition’s “fear mongering”. However, she then followed by saying she would provide “strong management of our borders”,23 continuing to frame asylum seekers as a border protection threat. The problem with this approach is that Liberal policy makers will always be prepared to ‘out-tough’ any Labor asylum policies and thus appear more effective when the issue is framed as one of national security.

Removing the roadblocks

In order to address community fears and media misinformation on this issue, the Government should embark on a long-term education and information program. It needs to change the language, moving from the crime and punishment focus on people smugglers, to a solutions-based focus on the needs of people fleeing persecution. The Department of Immigration must be more proactive in providing briefing sessions for journalists and tackling incorrect news articles like the constant media use of “illegal” when referring to asylum seekers, when asylum seekers have broken no law. There should also be greater government support for NGOs and community groups who engage in providing the community with information on this issue.

There also needs to be more community information on the benefits that refugees bring to Australia. Many people argue that we have an international responsibility to protect refugees. That is true. There are also pragmatic reasons. Australia has a significant migration program and refugees make excellent migrants. This is partly because more than any other migrant group, they have a vested interest in making a go of it because they have no homes to return to if their settlement in Australia fails.

Australia has settled over 740,000 humanitarian entrants since federation. In that time, refugees have made significant social, civic and economic contributions to Australia. Five of Australia’s eight billionaire families in the 2000 Rich List came from refugee backgrounds.24

Moving forward

Successive Australian governments have viewed boat arrival asylum seeking as a problem which must be stopped, but none has ever given valid reasons for why they consider it a problem of such national importance, when asylum seekers come in such tiny numbers.  Unfortunately, there has been so much scaremongering on this issue that most policy makers have forgotten to see asylum seeking as it should be seen – a human rights protection issue, not a migration issue.

Fixing asylum seeker policy is far simpler than it appears and would save enormous amounts of money. However, until the framing of this issue is changed, those policy changes will never be made.

The approach for the past two decades has been punitive, punishing people for seeking protection. There is no clear evidence to suggest that those policies actually worked. In fact, new policies for community-based asylum seekers show that taking a more humane and constructive approach results in greater compliance with the system. We also know it costs a lot of money to be cruel. It is time to decide that the 20-year experiment in taking a penal approach to asylum has failed, and we must extend the risk-based detention approach across the whole asylum seeker regime, particularly for those detained on Christmas Island.

Many would describe that approach as a solution from the left of politics. But it is not a question of left or right; this issue breaks down the usual political divides. Petro Georgiou, Judy Moylan, Bruce Baird, Nick Greiner, John Hewson and Malcolm Fraser have shown that courageous moral action on social justice issues is not just the provenance of the ‘left’ parties. And Julia Gillard, herself from Labor left, has shown that unsympathetic attitudes to asylum seekers is not confined to the conservative right.

There is much electoral advantage to be gained in this area of policy. So much so that good evidence-based policy can be ignored, and brutal but ineffective policy adopted, in the hope of gaining that advantage. In the short term, there is little hope for real change in asylum seeker policy. It will not happen until we have a leader from either side of politics prepared to change the framing of this issue and generate a change in public opinion, a leader who can find the moral fortitude to forgo the votes gained by pandering to uninformed fears.

Instead of trying to dodge our international obligations to refugees, or use asylum seekers for political mileage, Australia should be proud that asylum seekers come to us for help. Our nation is a dream to persecuted people. We are that ‘somewhere over the rainbow’ where refugee children can be safe, where they can find freedom from fear. Australia’s system of democracy, rule of law and stable society are a beacon of light in a dark world. In order to reduce those tiny numbers of desperate people who come here, some politicians want to subvert the law, to reduce the rights we grant to people and to treat them inhumanely. To do this would snuff that light in the darkness, the very thing that makes Australia a great nation.

Shame on them.

Photo Credit: Tim Bennett, Electron Soup


  1. Department of Immigration and Citizenship (2009) ‘Fact Sheet 60 – Australia’s Refugee and Humanitarian Program’. Available online:
  2. Department of Immigration and Citizenship (2009) ‘Fact Sheet 61 – Seeking Asylum within Australia’. Available online:
  3. Estimates from the Department of Immigration and Citizenship.
  4. Georgiou, P. (2010) Valedictory speech to Parliament, p.5175. Available online:
  5. Department of Immigration and Citizenship and Organisation for Economic Co-operation and Development (2010) International Migration Outlook 2010. Available online:,3343,en_2649_33931_45591593_1_1_1_1,00.html#STA
  6. Oxfam Australia and A Just Australia (2007) A price too high: the cost of Australia’s approach to asylum seekers. Available online: ginals/OAus-PriceTooHighAsylumSeekers-0807.pdf
  7. Australian Human Rights Commission (2009) Immigration detention and offshore processing on Christmas Island, Section 8. Available online:
  8. ibid, Section 9.
  9. Department of Immigration and Citizenship (2010) Immigration Detention Statistics Summary. Available online:
  10. A Just Australia (2010) The Legality of Detention as a Deterrent. Available online:
  11. Gillard, J. (2010) ‘Moving Australia Forward’, Speech to the Lowy Institute. Available online:
  12. Feller, E. (2010) ‘UN Assistant High Commissioner for Protection’, The Age, 19 July 2010. Available online:
  13. Justice for Asylum Seekers Alliance (2002) Alternative approaches to asylum seekers: Reception and Transitional Processing System, JAS Alliance, Detention Reform Working Group, Victoria. Available online:
  14. United Nations High Commission for  Refugees (2006) Alternatives to Detention of Asylum Seekers and Refugees. Available online:
  15. Evans, C. (2008) ‘Labor unveils new risk-based detention policy’. Available online:
  16. Department of Immigration and Citizenship (2010) ‘Fact Sheet 62 – Assistance for Asylum Seekers in Australia’. Available online:
  17. Department of Immigration and Citizenship, ‘Fact Sheet 64 – Community Assistance Support program’. Available online:
  18. Hotham Mission Asylum Seeker Project (2010) The Rights of the Child. Available online:
  19. Department of Immigration and Citizenship (2009) Community Care Pilot & Status Resolution Trial. Available online:
  20. Senate Estimates, Legal and Constitutional Affairs Committee (2007) Hansard, 21 May 2007, p.121.
  21. Australian Human Rights Commission, op. cit., Section 8.1.
  22. United Nations (1952) Convention Relating to the Status of Refugees, Article 1. Available online:
  23. Maley, P. (2010) ‘Lady’s not for turning on asylum seeker boats’, The Australian, 25 June 2010. Available online:
  24. Refugee Council of Australia (2010) Economic, Civil and Social Contributions of Refugees and Humanitarian Entrants. Available online:

AUTHORS(S): Kate Gauthier