Asylum policies: How we got into this mess and how we can do better

The Gillard Government - the search for a regional solution

In light of continuing pressure from the Opposition and an increase in the number of boat arrivals, the Gillard Government proposed a regional solution built on a processing centre in East Timor. When discussions with the East Timorese Government broke down the Government entered an arrangement with Malaysia. This arrangement involved the swapping of 800 people who had arrived in Australia by boat in return for 4000 refugees from Malaysia who would be resettled over a four year period.(17) The High Court ruled the arrangement invalid on the basis that Malaysia was not a signatory to international or domestic laws that would provide protection for the people being transferred.(18) The Government was forced to abandon the arrangement when it was unable to get support from either the Opposition or the Greens for the necessary legislative changes.

Expansion of community processing
In an effort to ease pressure on the detention network the Government further expanded community detention allowing many children and vulnerable family groups to move out of detention into community based accommodation.  The Government issued bridging visas to people who had been in long term detention, granting 10,356 bridging visas over a twelve month period up to December 2011.(19) A return to a single system for assessing asylum claims was announced, regardless of whether the person seeking asylum had come by boat or plane. This meant that onshore arrangements for application and independent review through the Refugee Review Tribunal system now applied to all people seeking asylum in Australia regardless of their method of arrival.  In response to increasing unrest in detention centres, the Government did, however, introduce a toughening of the character test which barred people who committed an offence while in detention from applying for a permanent protection visa.(20)

Advice from the Expert Panel
The Gillard Government appointed an Expert Panel in June 2012 to combat rising numbers of people coming by boat. (In 2012-2013 more than 25,173 people arrived by sea compared to 7,474 in 2011-2012).(21) The panel was asked to provide policy advice on 'how best to prevent asylum seekers risking their lives by travelling to Australia by boat.'(22) The Panel’s report contained a suite of measures and recommendations covering the short and long term. Short term proposals included disincentives such as the re-introduction of an offshore processing regime to provide a ‘circuit breaker to the current surge in irregular migration to Australia’ and incentives such as an immediate increase in Australia's Humanitarian Program.  Long term proposals included recommendations that the Government create better migration pathways and protection opportunities for refugees coordinated within an 'enhanced regional cooperation framework'. (23) 

The ‘no advantage test’
Central to the recommendations was the idea of a 'no advantage' test so that refugees arriving by boat do not receive an 'advantage' over refugees awaiting resettlement in a refugee camp. The panel, however, did not specify a waiting time or explain how a fair waiting time could be calculated. The ‘no advantage’ principle reinforced the idea that there is a queue and that people seeking asylum by sea are 'queue jumpers' and must wait their turn to have their claims processed.  The idea of an orderly queue, however, does not accord with the reality of the asylum process as there is no orderly resettlement queue to join.  Only a small proportion of people seeking asylum are able to register with the UNHCR and only one per cent of those recognized as refugees are subsequently resettled to another country.(24)

A return to the ‘Pacific Solution’ and off-shore processing
The Gillard Government accepted the recommendations of the Expert Panel and moved quickly to reintroduce the recommendation regarding offshore processing in Nauru and PNG, transferring people seeking asylum, including families with young children, to the centres. It also suspended the processing of asylum claims made by people who arrived by boat on or after 13 August 2012 until July 2013 in line with the 'no advantage' recommendation. Due to a significant increase in the number of boat arrivals, the Government arranged for some people seeking asylum to be processed on the mainland and released into the community on bridging visas but still subject to the ‘no advantage’ test and the proviso that they may be transferred to Nauru or Manus at any time. If they were found to be refugees they could be issued with bridging visas, rather than permanent protection, without work rights 'until such time that they would have been resettled in Australia after being processed in our region'. (25)

In May 2013 the Government took the Howard Government’s excision of territory one step further by extending the policy to the Australian mainland.  This meant that people arriving by boat anywhere in Australia were prevented from lodging an application for protection, allowing them to be sent offshore for processing unless the Minister intervened. This change in policy was prompted by the arrival of 66 Sri Lankan asylum seekers at Geraldton in Western Australia.(27)

On his return to the Prime Ministership Kevin Rudd announced a new Regional Resettlement Arrangement with PNG. This meant that from July 2013 all people seeking asylum who arrived by boat would be transferred to PNG for processing, and if they were found to be refugees, permanently settled there.  They were not to have the opportunity to seek asylum or settle in Australia.  According to the Government there would be no limit on the number of people who could be transferred to PNG under this deal costing $1.1 billion over four years. This was followed by a similar agreement with the Government of Nauru.(28) 

The human cost of the Rudd and Gillard Governments’ policies  
During this period, deaths at sea continued, so too did protests, hunger strikes, destruction of property and deaths in detention centres. UNHCR reports on Nauru and Manus found unsatisfactory temporary facilities with an absence of a legal framework and functional system to assess refugee claims. Particular concerns were raised about the mandatory and indefinite detention of people seeking asylum and for children in the Manus detention centre. A Parliamentary Joint committee on Human Rights reported that the changes introduced in response to the Expert Panel’s recommendations carried a significant risk of being incompatible with a range of human rights. Amnesty reported that human rights abuses at the processing facility in Nauru were ‘a toxic mix of uncertainty, unlawful detention and inhumane conditions’ which ‘are creating an increasingly volatile situation’. The Red Cross reported that people seeking asylum living in the Australian community under the ‘no advantage test’ were living in a state of poverty.(29)


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17. Ibid., p.15.
18. O’Sullivan, Maria. 2013. ‘Malaysian Solution High Court Ruling Explained’ in the Conversation. 31/8/13 viewed 04/12/15.
Phillips and Spinks, op. cit., p. 17.
Phillips and Spinks. Ibid.
21. Phillips, Janet.2014. ‘Boat arrivals in Australia: a quick guide to the statistics’ Parliamentary Library, Canberra. 
Australian Government. 2012. 'Report of the Expert Panel on Asylum Seekers.'   
Phillips and Spinks, op. cit., p. 18.
24. Spinks. 2015. ‘Asylum seekers and refugees: what are the facts?’ Research Paper Series, 2014-15 Updated 2 March 2015. Parliamentary Library, Canberra, p. 6.
Phillips and Spinks, op. cit., pp 19-20.
26. Phillips. 2014, op. cit., p. 5.
27. Gemma Jones, Ashlee Mullany, Stiven Pucar, 2013. ‘Asylum boat carrying 66 Sri-Lankan passengers sails into Geraldton' in 10/04/13 viewed on 04/12/15.
29.  Refugee Council of Australia. 'Timeline’, op. cit., pp 14-17.