Since the federal government’s announcement last week to suspend assessing refugee claims for people from Afghanistan and Sri Lanka, a range of people have speculated about whether this new policy breaches the law. Writing in today’s Australian, refugee law experts Jane McAdam and Kerrie Murphy have no doubt it breaches international human rights law.

Deakin University law professor Mirko Bagaric also accused the Rudd government of flouting international law, although I think his claim that there is “no precedent of anything approaching a Western democracy doing anything as brutal to refugees as this” is a bit of an over-reach.  Having the most brutal refugee policies is hardly a competition any civilised nation should be striving to win, but I’d have to Australia’s current practices still falls clearly short of  Italy’s recent policy of forcing the people on refugee boats back to Libya, where blatant human rights abuses towards refugees are well documented.

Australia’s breach of international law is most obvious in the fact that asylum seekers from the countries in question will be kept in detention for the entire duration that their claims are kept on ice — a clear case of indefinite, arbitrary detention for people who are not accused of any crime or deemed to present any risk to the community.

Of course, the reality of prolonged mandatory detention for asylum seekers who arrive by boat is hardly new in Australia.  But perhaps some have forgotten the legacy of the Howard era, which had the effect of providing a large pile of medical evidence of the enormous human damage caused by prolonged detention — especially when it is combined with uncertainty about how long the detention would continue and what would happen to the person at the end of that period.  The freeze on assessments announced by the government creates a very high risk that this level of harm will be inflicted again on innocent people — heightened by the fact that these asylum seekers will be in an isolated high security, highly crowded detention facility.

But while these and other breaches of international law are obvious, it is less clear if the new policy involves a breach in Australian law. This is particularly so because of the continuation of the Howard-era law excising Christmas Island (and all other islands across northern Australia) from the Migration Zone for people wishing to lodge a refugee claim.  This means the legal options of asylum seekers in those areas are seriously constrained — which is one reason why the current government has retained it.

A small mercy on this occasion is that asylum seekers on Christmas Island who are subject to the freeze are likely to still be able to access legal advice and other support, unlike those kept in virtual isolation for years on Nauru under the previous government.

Refugee advocates considering possible legal avenues also need to consider whether a low percentage court action would potentially be something the government would be quite happy to see.  Taking on the lawyers and the so-called “bleeding hearts” was a favourite pastime of Howard government ministers, with regular insinuations that lawyers running such cases were somehow making large amounts of money out of such cases (which is the exact opposite of the truth), or blaming asylum seekers for costing the taxpayer lots of money.  As we also saw in the Howard era, even a win in the courts for a refugee would provide a chance for the government to announce it was being forced to bring in even tougher laws — something it clearly revelled in doing.

It is no certainty that this latest move by the government will work for them politically.  It will certainly alienate a constituency who believed Labor would have greater respect for human rights, although this may not trouble Rudd too much on the expectation that compulsory preferential voting would still bring most of those votes back to him ahead of the Liberals.

But if the boats keep coming regardless of the freeze — and we will know soon enough if this is the case — it will funnel more and more people into a Christmas Island that is already at bursting point, with no prospect of those people being able to create space for others any time soon.  As the centre fills with people with “frozen” claims, the government will no longer be able to use its previous practice of creating some space by moving asylum claimants out whose claims are near finalisation.

Combine this with the likelihood of heightened tensions, as the mental health damage of prolonged detention and uncertainty mounts, and things could get very unpleasant — not just for the refugees but for the government.  Whatever else one may think about the asylum policies the Labor government had adopted upon its election, Australians would have reasonably assumed that the sort of detention centre protests and upheavals we saw a decade ago at places such as Woomera were a thing of the past.

Whether such an eventuality would be politically bad for Rudd is an open question, but it would certainly be very bad on a human scale for the refugees concerned.  In all the talk about the politics and the legality of the government’s actions, it is important we don’t forget the innocent and vulnerable people caught in the middle of this.

Peter Fray

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