Bail for asylum-seekers

In response to previous posts on asylum seekers, various commenters have suggested that there is no alternative to our current brutal policies, including the detention of children. A striking feature of these comments is that they treat the problem as if it is utterly new and unprecedented. In fact, we have lots of experience in dealing with people subject to judicial processes (such as criminal trials) and also with unauthorised residents such as visa overstayers.

Looking first at what should be done when someone arrives in Australia without authorisation, and claims political asylum, I’d suggest the obvious model is that of bail for people accused of criminal trials. That is, asylum seekers should be allowed to remain at liberty unless it can be shown, on the balance of probabilities, that they are likely to abscond or that they represent a danger to the community/

The comments seem to take the view that this is unacceptable because, inevitably, some people will abscond. But they don’t, I assume, take the same view in relation to criminal offences. At this moment, there are thousands of people at large in Australia who have outstanding warrants for offences ranging from speeding to crimes of violence. These people represent a much greater threat to the community than do illegal immigrants. But no-one suggests that everyone charged with an offence should be locked up until they have been tried.

And even within the category of illegal immigrants, there are tens of thousands who have jumped the queue the easy way, by overstaying a tourist or student visa. Most, though not all, of these turn up in the end, but quite a few manage to squeeze into one of the legal categories, for example by marriage.

If you read the discussion of this issue from supporters of the government, the general impression is that even the slightest breach in our immigration policy would be a national catastrophe, and that to avoid such a catastrophe we are justified in the kind of extreme measures we have seen, things that would normally be rejected outright in a democratic society. This is simply untrue, as should be obvious when you consider comparable issues like bail or proceeding by summons for (alleged) criminals.

This is only part of the issue, the other part being our general policy on refugees, which I will discuss in a later post.

55 thoughts on “Bail for asylum-seekers

  1. Ken, in my first comment on this thread I said that Fraser/McKellar acted in the most principled manner and that things had been on the slide from there. I think in most jurisdictions there has been what is euphemistically called a tightening of procedures. I don’t know the full detail, but Canada started in the 70s with their ‘adjudicative’ model firmly based on human rights, but were almost freaked out of it in 1986 to 1987 when large boatload of Tamils arrived, not from the Sri Lanka but from Germany, followed by a boatload of Sikhs. However, according to McMaster the original features of their model survived.

    Sweden is notable because they went the other way, from a restrictive regime to a more humane. In a sense they have it easy because they are seldom a country of first refuge. Under EU agreements any-one who is refused in one country is automatically refused in others, and for Sweden the return is often to another EU country rather than to the source country.

    We need to work towards the same arrangements in our own region.

    I was more favourably disposed to Beazley because I thought he understood this. Also post Suharto and Timor I believed Labor/Beazley would have been more successful in reestablishing relations with Indonesia and less likely to use megaphone diplomacy. So, yes, I do think Labor would have handled Tampa better. The stream would not have been cut off so quickly, but it would have been reduced to manageable levels in the course of time.

    On detention centres, Beazley is totally committed to the mandatory detention model. I understand that Julia Gillard talked to him, but not to Carmen, which was one reason why Carmen was so upset.

    Overall I think our commitment to human rights has been buckling under pressure of numbers and different cultures/identities using low-tech means of getting here. Under Howard and the pressure from Middle East Muslim populations our commitment to human rights has basically collapsed in that we are not prepared to extend it to non-citizens in need.

    Jack, Godwin’s law has nothing to do with it. I would have said what I said any time given half a chance. I’m still trying to frame a response to you. Maybe soon.

    btw Ken, I rechecked Don McMaster’s book on the Chinese one-child issue. He says (p92) that in 1994 Justice Sackville ruled that the one-child policy, in view of the likelihood of compulsory sterilisation on return, created a well-founded fear of persecution. In Feb 1995 Bolkus introduced legislation to overturn this ruling. I can’t find where he says anything about legislating the Sino-Vietnamese as ineligible, so that was new to me.

  2. A national utilitarian ethic, which is the default asumption of most policy makers, does not forbid exemplary deterrent measures – if not-deterring would significantly harm the interests of the majority.

    Three comments. First, I believe we should go beyond utilitarianism as a default assumption. Desmond Manderson put forward an alternative jurisprudence specifically in relation to asylum seekers in an article ‘Care of strangers’ in the AFR of 26 August 2001. It’s worth retrieving from the archives if you have a subscription. I did a short exposition of it in the fourth section of this piece.

    Second, when you say the interests of the majority are being harmed, I assume you mean that it just means that the majority cannot achieve as well something they want to achieve, not that they are actually being harmed. If so this cannot be used as a reason to harm the few in a humane society.

    Third, I would contend that is in our interest to meet the need of others on our doorstep in distress irrespective of how they got there.

    The vast majority of unauthorised asylum-seekers had the choice of repatriation to country of origin if they were unsatisfied with detention.

    You have research to prove this? I thought the majority of arrivals were found to be genuine refugees, that is fleeing persecution as defined in the UN agreement.

    Furthermore, we know that some who had no reasonable fear of persecution before leaving the source country are likely to be persecuted, tortured or killed on return.

    I dont have a moral problem with Howards diversion of asylum seekers to the Pacific or whereever. Most maritime asylum-seekers are “secondary-destined”, the Pacific Solution simply made them “tertiary-destined”. Administrative inconvenience is, per se, not immoral.

    First, even if I agree, I would contend that we should be less coercive and more discriminatory about where we locate people, as the activity has the potential to change small island societies for the worse. This applies also to Christmas Island.

    Second, as with remote desert locations, we are preventing people in need and without the protection of a state from expressing their need, from claiming their human rights. This is surely reprehensible.

    It would have been true, and acceptable, to mention, as Tony Kevin did, the propensity of asylum-seekers self-scuttle boats. The general issue of the unseaworthy condition of boats used in people-smuggling is a relavant moral fact.

    The unseaworthiness of the boats was probably a cost-saving measure on the part of the people smugglers because the boats were unlikely to be returned. I don’t see that it reflects on the asylum seekers.

    No doubt scuttling boats did happen, and the SEIV 4 may have been scuttled. I don’t think this mum did any scuttling and doesn’t mention any. We should not blame the many for the actions of a few.

    Is Howards detention, disruption and diversion worse than the people smugglers mass drownings?

    Probably not, but that doesn’t absolve him does it? Presumably you are saying that at least his intervention put an end to their activities. Yes, but was it the only way of achieving that end. I’d suggest not.

    He has, in the broad sense, improved Australias alien settlement culture:…

    I’m not going to enter your usual argument about multi-culturalism etc and what you say may be true. The question is whether the means of achieving those ends is acceptable.

  3. Sorry, Manderson’s article in the AFR appeared on 24 August, 2001. I think it was the Tampa that appeared on 26 August.

  4. Ken Parish wrote
    “It’s true that there is an offence under the Migration Act for entering the migration zone without a valid visa.”

    Ken, for my education could you PLEASE quote me the relevant legislation. I have searched the Migration Act, but not being qualified am unable to locate the section you cite.

  5. My thoughts on “bail” for asylum seekers?
    John Quiggin has suggested that detained asylum seekers should be released on “bail” pending finalisation of their visa applications and appeals. It’s a suggestion that I’ve also previously made, although in the context of implementation of a revived “…

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