Would Peter Dutton pass his own citizenship test?

This article was originally published on Right Now.

According to the Immigration Department’s “Australian values statement” proposed for new citizens, “respect for the rule of law” is a fundamental Australian value. But such respect is missing from our Minister for Immigration’s latest political volley.

Peter Dutton already holds god-like status in the pantheon of Australia’s political class. Not content with blanketing Australia’s offshore gulags in secrecy, threatening two years jail should a worker in these human warehouses report the sexual abuse of a child, or playing gatekeeper on the lives of those who come to Australia seeking safety, Dutton is now seeking further draconian powers.

Dutton is seeking a broad set of discretionary powers that would give him the ability to decide whether someone is eligible to become a member of the Australian citizenry. The latest Bill introduced into Parliament would give the Minister draconian powers to refuse someone’s application for citizenship or cancel a person’s citizenship, if he determines it is in the “public interest”. The Minister has the discretion to decide what is in the “public interest” and even the Administrative Appeals Tribunal could not overturn his decision.

The Bill also provides Dutton with sole powers to decide whether a person has “displayed behaviour consistent with Australian values”, even when they don’t have a criminal conviction. Dutton will have the power to determine which permanent visa holders are eligible to appeal to the Tribunal, and which aren’t.

The question the Australian community must ask itself is whether we feel confident in Dutton playing judge, jury and executioner on such matters. Such decisions could literally mean life or death for a person sent back to harm.

It is a fundamental principle of the rule of law that government powers are held in check by an independent body of review. Our only safeguard against authoritative rule is independent oversight of government decisions. Each person must have the right of an appeal and a fair process to challenge decisions made over their lives. Such safeguards also ensure that mistakes are not made – mistakes that have happened all too often in the past.

The question the Australian community must ask itself is whether we feel confident in Dutton playing judge, jury and executioner on such matters.

These new powers are accompanied by sweeping changes to the Australian citizenship test. One such change – requiring new citizens to have a university level of English – will have a significant impact on vulnerable migrants, especially those from refugee backgrounds.

For refugee and humanitarian entrants, Australian citizenship has a special significance. Gaining citizenship marks both their integration into their new country and the end of their displacement. For many, it will mark the first time they have experienced the protection of a State. Australian Citizenship provides eligible people with the safety they need to settle and to heal, and gives them the security to build their new lives. For this reason, most refugees and humanitarian entrants are eager to apply for citizenship as soon as they can, and prize it highly.

As the 2008 Government review of Citizenship found, gaining “citizenship should be an enabling, positive and welcoming process for applicants and one which is seen to contribute to building a cohesive and dynamic nation.” Yet the proposed changes will make it much harder for refugees to become citizens, thereby excluding the people who value Australian citizenship the most.

Refugee communities are concerned the proposed English language test sets a bar that is too high – a university equivalent level of “competent” English. This could mean people who have never had the opportunity to study, due to war and displacement, will never become an Australian citizen. This proposal will impact women the most, many of whom have been denied education by authoritative regimes such as the Taliban.

A further principle of the rule of law is a transparent and open law making process. While the Department called for submissions on its proposed changes to citizenship, it refuses to make the submissions public. This is yet another example of the Department refusing to release vital information about its controversial policies. Unless submissions are stated as confidential, they should be made public to allow the Australian community to judge for itself the harms that these proposed changes will cause. The Refugee Council has responded by creating an online portal for people to provide their submissions, increasing transparency and accountability. Likewise, Freedom of Information requests for the submissions have already been filled.

The proposed changes are also set to be retrospective, applying from the moment the announcement was made, rather than when the law is (if ever) passed. Retrospective laws again breach the principle of the rule of law.

Combined, these proposals show a troubling view of the rule of law. Judging by the current proposals, the Minister would not meet his own Australian values test.

Offshore processing and the perils of unfettered consequentialism

By Nathan Bell and Asher Hirsch

With almost weekly tragedies coming out of Australia’s offshore detention regime, many across the world often ask: “how can such a democratic and free country allow the horrors of these policies to take place?” Most recent of these events is the death of a Sudanese refugee in Manus Island, raising concerns about access to adequate healthcare and independent oversight. Offshore processing, returning fleeing persons to vulnerable or threatening situations, indefinite detention and sexual abuse, are just some of the litany of ethically fraught consequences involved in Australia’s current asylum policies. Certain concepts in philosophy can inform an understanding of how such a draconian policy can develop. Continue reading “Offshore processing and the perils of unfettered consequentialism”

To stop boat deaths, abolish carrier sanctions and let asylum seekers travel by plane

Originally published on Right Now.

On a recent episode of Q&A, Professor Jane McAdam argued for the abolishment of “carrier sanctions”. Unfortunately, the director of the Andrew and Renata Kaldor Centre for International and Refugee Law at the University of NSW didn’t get time to elaborate. So what are carrier sanctions, and how to do they stop asylum seekers coming by air?

Professor McAdam advocated reframing the discussion around refugees away from security and detention, and in favour of facilitating “safe, lawful pathways for people … who are desperately in need of assistance.”

Carrier sanctions are financial penalties imposed upon airlines and ships that transport passengers who do not have a visa to enter. Australia is the only country in the world to impose a universal visa requirement on non-citizens. This means that all people who wish to enter Australia must obtain a visa prior to entering.

Continue reading “To stop boat deaths, abolish carrier sanctions and let asylum seekers travel by plane”

Australia’s carrier sanctions: leading the world since 1855

In an age of globalisation and securitisation, many States have attempted to restrict access to asylum through a range of extraterritorial measures that seek to prevent asylum seekers from reaching territorial borders in order to apply for protection. States which have signed the Refugees Convention owe refugees in their territory and under their jurisdiction certain rights. Yet in an attempt to escape their legal obligations, States have increasingly pushed their borders beyond their territories, where legal rights are harder to assert.

Australia leads the world in the extraterritorialisation of migration control. However, rather than controlling migration, these policies have forced those who seek protection to use irregular, unauthorised and dangerous pathways to find safety. One way to prevent these dangerous journeys is to allow asylum seekers to get on planes. Unfortunately, Australia’s use of carrier sanctions work to prevent this safe route, generating demand for people smugglers and more dangerous journeys.

Carrier sanctions are financial penalties imposed upon airlines and ships that transport passengers who do not hold the relevant permission to enter the country. By requiring carriers to check that passengers have authorisation to enter a country prior to embarking, carriers effectively become border officials, controlling migration at the point of departure. While carrier sanctions are not only applied to refugees, they disproportionally affect refugees seeking protection.

Australia is the only country in the world to impose a universal visa requirement on non-citizens. From the refugee perspective, carrier sanctions work together with universal visa requirements to inhibit entry and access to asylum procedures for those who would otherwise be entitled to protection.

Australia was perhaps the first country to implement carrier sanctions. The colony of Victoria introduced the Act to Make Provision for Certain Immigrants 1855 which placed financial penalties on an owner, charterer or master of ship if they carried more than one Chinese migrant for every 10 tons of ship’s tonnage or did not guarantee payment by the Chinese passengers of an arrival tax of £10. Shortly after federation in 1905, amendments were made to the Immigration Restriction Act 1901 (Cth) which placed a fine of £100 upon ship owners, masters, agents and charterers for each prohibited immigrant (those who failed the dictation test) they carried. As intended, this had the result of significantly reducing the embarkation of non-White passengers.

Today the Migration Act 1958 (Cth) makes it an offence of to transport a non-citizen to Australia without a visa or documentation. Section 232 provides that where a ‘non-citizen’ enters Australia and does not hold a visa, ‘the master, owner, agent and charterer of the vessel are each taken to commit an offence against this Act punishable by a fine not exceeding 100 penalty units [$18,000].’

In addition, Airlines are responsible for the costs of removing passengers from Australia if they are refused entry after arrival.

To make it explicitly clear that carrier sanctions apply even to those with genuine protection claims, section 228B(2) provides:

…a non-citizen includes a reference to a non-citizen seeking protection or asylum (however described), whether or not Australia has, or may have, protection obligations in respect of the non-citizen because the non-citizen is or may be a refugee, or for any other reason.

Thus carrier sanctions will apply even if the non-citizen is found to be a refugee, in contrast to other countries. Taylor notes that carrier sanctions have succeeded in reducing the number of asylum seekers arriving by air:

The fear of having their profit margin eroded by such penalties is supposed to encourage carriers to deny passage to Australia to those who are inadequately or irregularly documented. The fact that the number of infringement notices actually served on carriers has been dropping markedly from year to year indicates that sanctions have had their intended effect.

Carriers are unlikely to be sympathetic to the claims of refugees seeking to board, and even if they are, they do not have adequate expertise to assess refugee claims before departure. Even for those who are sympathetic, the financial impact of carrier sanctions would eventually outweigh any humanitarian concern.

Carrier sanctions not only extraterritorialise immigration controls, they also privatise them. No longer are State officials responsible for border management, private commercial entities now decide if a person has the right to cross the border. This makes asserting legal rights such as non-refoulement increasingly difficult, successfully deterring many potential legal challenges.

In order to assist States meet their carrier obligations, Australia has developed a range of practices, including the deployment of Airline Liaison Officers in certain ‘high-risk’ countries and the development of significant surveillance and monitoring databases.

If refugees aren’t able to take a plane, they are forced to seek asylum by other unauthorised, irregular and dangerous ways to find safety. If we are serious about stopping the boats, let’s look at allowing people to get on planes.

 

Private resettlement models offer a way for Australia to lift its refugee intake

Susan Kneebone, University of Melbourne; Asher Hirsch, Monash University, and Audrey Macklin, University of Toronto

No-one disputes the urgent need for co-operative solutions to the global crisis of displaced people, estimated at 65 million people. But the chances of co-operation in the resettlement of recognised refugees seem slim.

The UN High Commissioner for Refugees (UNHCR) has estimated that more than 1.1 million people are in need of resettlement. But offers from countries for resettlement have reached only 111,000 people. That leaves 1 million in limbo.

This week’s UN summits on migrants and refugees offer an opportunity to think creatively about solutions to the resettlement shortfall.

Australia prides itself on its participation in the UNHCR’s Resettlement Program, which is administered through Australia’s Refugee and Humanitarian Program. Our resettlement quota under that program stands at 13,750 places annually, with 11,000 of those reserved for people applying from outside Australia.

But can and should Australia be doing more to resettle refugees? Australian has resettled only one-sixth of its promised one-off intake of 12,000 Syrian refugees. So do we need to stick with our current model of state-controlled resettlement schemes? Or are there other models we can learn from?

What is Australia doing?

Refugees comprise just 7% of Australia’s annual migration intake. By contrast, they made up 48% in the years following the second world war.

Since July 2013, Australia’s Department of Immigration and Border Protection has been trialling an alternative model of resettlement, the Community Proposal Pilot.

Under this pilot, community organisations are able to sponsor potential applicants. The pilot is capped at 500 visa places within the Refugee and Humanitarian Program.

The department has appointed five organisations to work with families and supporting community groups to facilitate this resettlement pathway. The response to the pilot has exceeded available places and initial assessments of the program are enthusiastic.

However, the pilot is not without flaws. In particular, the available places are not additional to but are included within the Refugee and Humanitarian Program quota.

The initial evidence shows there is a higher and faster visa grant rate under the pilot than for other resettlement applications. This means certain “private” individuals and organisations can pay for priority “public” service.

Under this model, the families and community organisations bear not only the substantial costs of the visa applications (more than A$30,000 plus additional costs for family members), but also provide practical resettlement assistance to new arrivals. The resettled arrivals have immediate access to the public purse through Centrelink. The pilot model is thus very much nested in the public domain.

Should we follow Canada’s lead?

Canada does a similar scheme differently. There, private sponsorship is additional to and supplements the public resettlement program – that is, private sponsorship occurs over and above the government’s commitment to public sponsorship, not instead of it.

Australia and Canada share many similar characteristics as countries of immigration. In particular, their experiences with Indo-Chinese refugees from 1975 shaped their responses to refugees today.

Private sponsorship was legislated into Canadian law in 1978. In its present form, a group of private individuals (usually not newcomers themselves) come together to nominate one or more refugees for resettlement. The government vets the nominated refugees for health, security and alignment with the refugee definition.

The sponsors must raise the equivalent of one year’s social assistance (equivalent to Centrelink) and undertake to financially support the refugee/s. They do not pay visa or processing costs.

Privately sponsored refugees have access to health care, education, English as second language programs and the like, and the sponsorship group undertakes all other settlement tasks. The formal sponsorship undertaking usually lasts a year.

Australia’s pilot program differs from the Canadian model in the following respects:

  • In Australia the sponsors are almost entirely extended family members of the resettled refugees, not groups or other individuals from the community. In Canada the nominated refugees are often related to previously arrived refugees, but need not be.
  • In Australia the money raised by sponsors is paid to the department for the costs of visas and other services, and to the organisation for administrative and resettlement support. Refugees resettled in Australia have immediate access to Centrelink. In Canada, neither sponsors nor refugees pay for visas or settlement services. Rather, the money raised by sponsors goes to the resettled refugees as income support for the first year, after which they are eligible for public income support (if needed).
  • Finally, the 500 spaces reserved in the Australian program form part of the overall quota for its Refugee and Humanitarian Program. This means there are 500 fewer visas available for publicly resettled refugees. In Canada, the principle of additionality has been invoked to defend private resettlement as a supplement rather than substitute for the government program.

Advantages to be considered

Private sponsorship of refugees offers several potential advantages.

  • It enables the resettlement of more refugees, if the principle of additionality is adopted and applied in good faith.
  • It can reduce the cost to government of resettlement.
  • It generates positive integration outcomes for refugees through the transfer of social capital from established members of the community to new members.
  • It can provide a platform for active citizenship and enhance social cohesion by directly engaging ordinary citizens in the nation-building activity of welcoming newcomers.

In Canada, it is recognised that private sponsorship not only confers benefits on refugees, but also benefits the sponsors and the nation in tangible and intangible ways.

In Australia, an impending government review of the pilot provides the opportunity to revise the program to better harness community support for private refugee sponsorship and help with the global crisis.

Susan Kneebone, Professorial Fellow, Melbourne Law School, University of Melbourne; Asher Hirsch, PhD Student, Monash University, and Audrey Macklin, Professor and Chair in Human Rights Law, University of Toronto

This article was originally published on The Conversation. Read the original article.

Nauru Files: Why Does this Policy Continue and What Can We do About it?

Nauru Files: Why Does this Policy Continue and What Can We do About it?

Castan Centre for Human Rights Law

 By Azadeh Dastyari

On 10 August, The Guardian newspaper published the Nauru files,  approximately 2000 leaked incident reports from the Australian funded and operated detention centre on Nauru where men, women and children seeking Australia’s protection from harm are selected by our government and sent indefinitely. The more than 8000 pages of accounts paint a picture of unbearable cruelty and deprivation that includes physical and sexual abuse, including sexual and physical abuse of children.

When confronted with the leaked reports, the Australian government’s response was predictably dismissive. The Prime Minister stated that reports were allegations and not findings and that the detainees are the responsibility of the Nauruan government.  The Minister for Immigration and Border Protection, Peter Dutton reiterated that this was an issue for Nauru and questioned the seriousness of the complaints and their validity.

These allegations are not new of course. An independent inquiry commissioned…

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A Feminist Critique of the Law

Law is power.[1] Those in power make the law, those in power adjudicate the law, and those in power enforce the law. Any feminist critic of the law is a critic of power. As ‘first-wave feminists’ have pointed out for over a century, it is mostly men who hold this power.[2] While equality has come a long way to improving the representation of women in the law, it is still mostly men who are involved in the law making and enforcing process. The first-wave feminist project – to ensure equal access, representation and fairness for women – still has a long way to go, even after a century of fighting.

Continue reading “A Feminist Critique of the Law”