Human Rights Commission Offers ‘Practical’ Alternatives to Indefinite Detention

Striking a balance between protecting the country’s borders and treating asylum seekers humanely is possible, according to a new Australian Human Rights Commission report.

Pathways to Protection offers alternatives to the government’s current model of processing asylum seekers, which the commission called “one of the most contentious” aspects of Australia’s migration policies.

Commission president Professor Gillian Triggs told Pro Bono Australia News the report focused on “practical” alternatives, which could still involve offshore processing provided conditions improved and asylum seekers were processed.

“What we’re trying to do… is to put some positive alternatives on the table to better inform public debate and, of course, ultimately political debate about where we are at the moment and what the options are,” Triggs said.

“It’s not offshore processing, as such, that we’re objecting to, it’s the conditions and circumstances in which it takes place, most particularly the indefinite nature.

“When we’re looking at options within the region, offshore processing is definitely a possibility so long as it’s done in humane conditions and with an application of the rule of law to assessing their claims.”

She said Australia had reached a “political deadlock”, with the situation at breaking point, as well as violating human rights conventions, despite bilateral support for current policies.  

Offshore processing, introduced in 2012 and supported by successive Australian governments, was intended to deter asylum seekers from travelling to Australia by sea.

As a result, refugees and asylum seekers are held indefinitely in detention. As of July there were 833 men held on Manus Island and 411 people held on Nauru, including 46 children.

“Of course we need to protect our sovereign borders, it’s the right of every nation state. We want to stop people smugglers and we want to ensure we don’t have any more deaths at sea from these dangerous voyages – that’s all clear,” Triggs said.

“But what is a significant problem from our point of view is the indefinite detention of families and their children in dangerous circumstances on Manus and Nauru.

“We are concerned that those conditions breach international law and indefinite detention without some pathway to permanent settlement, is also a breach of our international obligations.

“So what we’re trying to do in this report is to put some suggestions, which one the one hand allow us to secure our borders in a proper and proportionate way, but on the other hand provide some legal pathways, some orderly and valid pathways for asylum seekers to come to Australia and make their claim for asylum.”

The recommendations include increasing funding for humanitarian organisations, restoring and expanding aid to countries affected by displacement, introducing temporary visas for the purpose of seeking asylum and addressing barriers to skilled and family migration.

Triggs also said collaboration with other countries in the Asia Pacific region needed to be a key component of migration policy.

“Instead of acting unilaterally in our region by pushing boats back, we would work with our neighbours, particularly Indonesia, Malaysia, Sri Lanka and others, to rescue people at sea and then to find a way to assess their claims for refugee status in an orderly fashion, relatively speedily, and then move them onto permanent settlement,” she said.

“I have to concede of course these measures that we’re suggesting do require a certain amount of good faith negotiations with our neighbours, but also reconsideration of our very, very limited immigration policy at the moment in light of the fact we have 65 million displaced persons and refugees in the world.

“Australia really does need to increase its immigration intake, but so far as the regional diplomacy is concerned, that… depends on… goodwill on the part of Australia in these negotiations. We can no longer act unilaterally, I think it doesn’t take a lot of imagination to understand how Indonesia feels when we are unilaterally transferring asylum seekers on the high seas to orange lifeboats and sending them back to Indonesian waters.

“We need to work collaboratively with our neighbours so that we have a framework for managing asylum seekers that is consistent with their basic rights.”

Triggs said she was hopeful that the report could break the policy deadlock, but admitted there there were limitations on a political level.

“As we know both the Labor party and the Coalition have been almost in lockstep with each other for years on these policies and there has been very little room to move, and that is why we have tried to make practical suggestions, both to improve legal means of access to Australia and to improve the rescue at sea and treatment of asylum seekers in the region as a way of breaking this deadlock,” she said.

“I have the impression that the prime minister and the leader of the opposition are aware that we have an unsustainable situation at the moment with people held indefinitely in dangerous and cruel conditions, and absolutely something has got to give.

“We were hoping with this paper that we could provide some positive options that could safeguard our borders but at the same time treat asylum seekers with humanity.”

However, she also said the recent election provided an opportunity for the new government to change its approach.      

“I think it will take leadership and I’m very much hoping that Mr Shorten and Mr Turnbull can, between them, maintain a bipartisan policy but do so in a way that’s humane,” she said.

“I have come to the view that these policies which are currently both inhumane and contrary to our international obligations will change only when we have strong leadership at the top.

“With a change of government [and] a relatively new prime minister I think we have an opportunity now to moderate the program in a more humane way, but to do so hopefully with the support of Mr Shorten as leader of the opposition.”