Not In Detention

They’re not in detention, honest! It’s right there in the law (clause 11):

An offshore entry person who is being dealt with under subsection (3) is taken not to be in immigration detention (as defined in subsection 5(1)).

So that’s nice. They’re not in detention! What are they? Well, that’s the question, innit?

They are simply enjoying the hospitality of the Australian government on some island a long way from anywhere, perhaps with no way to leave unless they tell the aforementioned Australian government to send them home.

I say “perhaps”, because there’s no information about what the conditions in these processing places will be. I was looking at the law because I wanted to know what we were doing to protect these people who come to us and ask: please, protect us? I couldn’t find anything, and was hesitant to write about it because I’m not really qualified to read these things. But then I found this. Take us to the bridge, Sarah Hansen-Young:

The Houston report included many important recommendations, none of which this government or the opposition have said any word of since Monday. Where is the commitment to increase our refugee intake immediately? Where is the plan to resettle those who have been waiting for years in Indonesia? Where in this legislation is our commitment to upholding our commitment under the convention to treat people properly, to ensure that they are housed appropriately, to ensure that they have access to legal assistance and to ensure that we do not detain children? None of that stuff, none of those important safeguards which are listed in the Houston report, are in this legislation. The government say that they are implementing the Houston report and they have not even bothered to read the detail of the recommendations.

Bear in mind that I’m not just believing her, I have read the documents. She speaks truth. The legislation enables the first and worst recommendation, offshore deten^h^h^h^h^hprocessing, and government and parliament have done nothing to ensure conditions in those places are tolerable. Nor have they done anything with the report’s suggestions to improve the queue that asylum seekers are supposedly jumping.

Nothing about Houston Report 3.46’s appropriate accommodation, or its physical and mental health services. Nothing about its educational and vocational training, its monitoring arrangements and case management assistance. And most worryingly, nothing about its application assistance or its appeal mechanism.

Nothing about the Report’s 3.22’s increase in places for folks currently in Indonesia, or its “practical agenda of initiatives”, or 3.26’s capacity-building of UNHCR processes in the region.


Please, please, prove me wrong.

But enough of the heavy stuff! Let’s have some comic relief. From Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012, aka the Stop The Boats bill:

198AC   Documents to be laid before Parliament

(1)  This section applies if the Minister designates a country to be a regional processing country under subsection 198AB(1).

(2)  The Minister must cause to be laid before each House of the Parliament:

(a)  a copy of the designation; and

(b)  a statement of the Minister’s reasons for thinking it is in the national interest to designate the country to be a regional processing country, referring in particular to any assurances of a kind referred to in paragraph 198AB(3)(a) that have been given by the country; and

(c)  a copy of any written agreement between Australia and the country relating to the taking of persons to the country; and

(d)  a statement about the Minister’s consultations with the Office of the United Nations High Commissioner for Refugees in relation to the designation, including the nature of those consultations; and

(e)  a summary of any advice received from that Office in relation to the designation; and

(f)  a statement about any arrangements that are in place, or are to be put in place, in the country for the treatment of persons taken to the country.

In other words, there’s a whole lot of stuff that will help the parliament to make the judgement about if it’s a good idea to send refugees to this country. The minister must provide it. Take particular note of that word “Must”, the third word in (2). Onwards:

             (3)  The Minister must comply with subsection (2) within 2 sitting days of each House of the Parliament after the day on which the designation is made.

What? What are you talking about? 198AB said that if the document wasn’t explicitly rejected by either house within five days, it would be accepted. I’m not clear on how “within 2 sitting days” is counted by these folks, but if there’s scope for the minister to provide the documents at the end of day 2 out of 5, that leaves 3 days for the houses to accept or reject. They’ve built a stalling tactic right in to the legislation! But that’s okay, surely it can’t get any worse…

             (4)  The sole purpose of laying the documents referred to in subsection (2) before the Parliament is to inform the Parliament of the matters referred to in the documents and nothing in the documents affects the validity of the designation. Similarly, the fact that some or all of those documents do not exist does not affect the validity of the designation.

The first sentence says it’s to help you decide about the designation, it doesn’t define or otherwise affect the designation (in network protocol standards, we’d say it’s not normative). Fair enough. But the second sentence seems to come awfully close to giving the Minister a pass on justifying the designation of a country. I thought it couldn’t get any worse? Surely now…

             (5)  A failure to comply with this section does not affect the validity of the designation.

Ah, this one is simple. The word ‘must’ in clause (2) was for cosmetic purposes only. The Minister can not only stall (as per (3)) or partially comply (as explicitly provided for by (4)), he can in fact skip the whole bit.

See? Comic relief, just like I promised. It must be funny, because the primal law of “if you don’t laugh, you’ll cry” is in effect. It’s in effect so hard. Still, at least it’s better than the Morrison amendment.

P.S. Big ups to the folks maintaining the Australian Parliament House website, by the way, you guys rock my world. Austlii’s consolidated legislation listings rate a mention here too, it’s good stuff. If you think the law is good stuff, that is.

P.P.S There is a more charitable reading of 198AC. The pre-amendment rules are that the minister gets to designate places of off-shore processing; in the worst case, the new rules degrade back to that situation.

5 thoughts on “Not In Detention

  1. Iain,

    Thanks for doing the spadework and digging into this mess. I was going to say I don’t have the time to do it myself, but I think the truth is I don’t have the stomach for it. Deeply saddened and angered by the so-called ‘solution’.

    1. There are a few bright spots on this stuff. Three, that I know of. The first and simplest is that a lot of what I want to see is about being good to people who are being processed off-shore (ahem, regionally), and many aspects of that don’t need enabling legislation – the directions of the minister or the decisions of the public service are sufficient.

      The second is a realpolitk-al perspective, which is that you can sort the Houston recommendations into clearly humane and arguably inhumane policies. The arguably inhumane policies can be voted in with the support of the Coalition. The clearly humane policies can be passed with the support of the Greens. If you put them both in the same bill, you wouldn’t get either party’s support.

      The third is this story about how Nauru is planning to treat its technically-not-detainees:, from which the only thing that really gives me pause is the curfew aspect.

  2. Thanks for highlighting those issues. I’d seen the article in The Age, and it does paint a more positive picture of what lies in store for those poor souls. The open-ended duration of stay does worry me, though.
    “They’ll have to stay there as long as they’d have waited for processing in their port of origin, otherwise it’s not fair.”
    “How long would that wait have been?”
    “We can’t say, there’s no formal process available there….”
    How do you get defined as a queue jumper when there’s no queue?
    How do you create an equivalent for something you can’t measure?

    I guess we just have to wait and hope that the human policies do get put to the parliament promptly, and passed with Greens support.

    1. Absolutely. If I was an optimist, I would say that the “No Advantage” test is a good thing, because it means the longer it takes for people in Indonesia to be granted refugee status and accepted, the longer the Government has to pay to maintain people in Nauru and Manus Island. That gives the government a direct financial incentive to go hard on improving the application process in Indonesia.

      I wish I was an optimist.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s