How our refugee policy has changed since Fraser | Law

How our refugee policy has changed since Fraser

OPINION: Dr Claire Higgins, The Drum, 27 March 2015.

The plight of refugees is a complex issue for governments around the world. Yet the essential choices they face are straightforward. As the late Malcolm Fraser told me in 2010, his government had two: "Say yes. Say no."

Saying "yes" meant responding to the then Indochinese refugee crisis with humanity and equanimity. It meant introducing a formal refugee policy with quality refugee resettlement programs and services.

Figures from the Department of Immigration show that by the time Fraser left office in 1983, the department's budget was four times larger than it had been in 1975-76, and Australia had welcomed about three times as many refugees each year.

The modern story, from recent Australian governments of both sides of politics, is more often "no", as they limit the means by which asylum seekers can receive protection in this country. And there is now legislation before Parliament that demonstrates how dramatically Australia's management of immigration has changed since the Fraser era.

Bills on the Australian Border Force, an entity of the Department of Immigration and Border Protection, will entrench a militaristic response to asylum seekers. The proposed Australian Border Force Commissioner will have the same standing as the Chief of the Australian Defence Force. The Australian Border Force will oversee the policy of intercepting and turning back asylum seekers at sea.

A second bill, the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill, will empower authorised officers in immigration detention centres to use force against detainees if they believe it is reasonable to do so.

If this bill is passed, force may be exercised against detainees in a manner that circumvents international human rights law. Should the use of force cause grievous bodily harm, and that force is found to have been exercised "in good faith", the Commonwealth will be immune from legal consequences.

The discretionary power to use force is intended to enable staff to maintain the "good order" of detention centres. The concept of "good order" is broad and ill-defined. It is possible that peaceful protest by asylum seekers at the terms or conditions of their detention could attract the use of force.

Historically, the Immigration Department has always sought to maintain tight control over entry to Australia. During the 1950s and '60s control was exercised through racially discriminatory immigration policy. Later, Gough Whitlam described the department as "narrow and hidebound", and his government allocated some of Immigration's functions to other departments.

Under Fraser's leadership, the department was reorganised and gained a dedicated refugee branch to help process and resettle Indochinese refugees. A Special Humanitarian Program also allowed the department to resettle people who fell outside the strict legal definition of refugee but who were nevertheless in desperate need of protection.

Evidence in Immigration Department releases at the time show that under Fraser the department did not detain Vietnamese boat arrivals, and would only place them in quarantine for a short period if necessary. A United Nations representative who inspected these facilities in 1979 reported that officers in charge "show a high degree of compassion, interest and preparedness to help" the asylum seekers. These words stand in marked contrast with the use-of-force provisions now before Parliament.

Thanks to Fraser's leadership, the Immigration Department demonstrated what controlled immigration could mean: asylum seekers processed in accordance with international refugee law.

Later governments made very different decisions in response to people seeking Australia's protection. When larger numbers of asylum seekers began to arrive from the late 1980s onward, control was exercised through detention centres in remote locations. The department developed an increased emphasis on compliance and enforcement.

In recent years, Australia has been detaining asylum seekers for longer and longer periods at a cost to the taxpayer of up to $400,000 per person each year, according to the National Commission of Audit. It found that the cost of detention and processing has increased from $118 million a year in 2009-10 to $3.3 billion in 2013-14.

Since the Fraser government launched Australia's first formal refugee policy, the way governments manage the needs of those seeking protection has changed dramatically. If the new bills pass, Australia will only cement its growing reputation in the international community as a country that uses militaristic force in response to requests for asylum.

Dr Claire Higgins is a research associate at the Andrew & Renata Kaldor Centre for International Refugee Law at UNSW. She is writing a book on refugee policy during the Fraser era.