Australia and Refugees, 19012002: An Annotated Chronology Based on Official Sources

Chronologies ONline

Social Policy Group

Dr Barry York - Social Policy Group

Last updated 16 June 2003

This Chronology is issued electronically. It will be kept up-to-date online. The date of the latest update is noted clearly above.


Part 4 of 10

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Contents

Section 2: Australia and Refugees, 1992-2002

Purpose

An International Context

Australia's Policy, 1992-2002: Mandatory Detention, Protests, People Smugglers and the Pacific Solution

Endnotes


Section 2: Australia and Refugees, 1992-2002

Purpose

This section serves the same purpose, follows the same methodology and has the same format, as Section 1 (19011991). Its purpose is to outline the official development of refugee policy, placing it in the context of the wider migration program and, through this introduction, of the key world events that influenced governments' formulation of policy. The methodology is, again, based on official sources: Government reports and Departmental and Ministerial media releases. These are fleshed out, occasionally, by secondary source material. The format is that of a chronology, with annotations.

An international context

In 1992, the United Nations High Commissioner for Refugees (UNHCR) estimated the world refugee population at 17.8 million. In 2001, the estimate was 12 million. Added to the refugees are 'persons of concern' to the UNHCR.(1) In 2001, there were 19.7 million in this category. These are tragically large figures. The UNHCR promotes three durable solutions for the long-term protection needs of such people. The preferred solution is voluntary repatriation in conditions of safety and dignity. If this is not possible, the UNHCR prefers local integration in the country of first asylum. Failing that, the durable solution of last resort, from the UNHCR point of view, is resettlement in a third country. Only nine countries in the world have annual refugee resettlement programs: collectively they resettle around 110 000 each year.(2) The greatest number are resettled by the United States of America.

In the decade under review, Australia admitted more than 100 000 refugees and other humanitarian cases. The largest proportion came from Europe (45 per cent of the total, principally from the regions of the former Yugoslavia), followed by the Middle East and North Africa (25 per cent of the total, principally from Iraq), South-East Asia (13 per cent of the total, principally from Vietnam), Africa (excluding North Africa) (eight per cent of the total, principally from Eritrea and Somalia) and Southern Asia (six per cent, principally from Afghanistan). About two per cent of the total were from South and Central America: a group that was significant to the intake at the start of the decade but whose numbers steadily declined. The region with the biggest rate of increase into Australia under the Humanitarian Program is Africa (excluding North Africa). The African intake has almost doubled during the course of the decade and, while numbers are relatively small (1039 in 20012002), the Minister for Immigration and Multicultural and Indigenous Affairs, the Hon. Philip Ruddock MP, has indicated a strong interest in this region.

The main international events of relevance to Australia's Humanitarian intake in the period 19922002 relate to the former Yugoslavia and the Middle East. About 70 per cent of Australia's refugee and humanitarian intake originated in these two regions over the decade. Of the Middle East group (27 403 in all), the majority (16 417, or 60 per cent) were from Iraq and were escaping the national socialist regime of Saddam Hussein and the consequences of the 19901991 Gulf War. From 1996, Iraqis became numerically significant among the unauthorised arrivals by boat and, therefore, were prominent in the remote detention centres. The same applied to Afghans from 1997, after the Islamo-fascist Taliban took over Kabul in September 1996. These two groups, numbering 21 788 in the Humanitarian Program intake over the decade, had quite an impact outside the planned program. The fact that they, and other groups (such as Sri Lankans, Pakistanis, Iranians and Chinese) tended to arrive via organised people smuggling routes, and as 'forum shoppers' (i.e. they came from countries of first asylum in which they were safe), ultimately led the Australian Government to formulate its Pacific Solution. Under this solution, the islands at which boat people commonly arrived were excised from the Australian migration zone, thus denying unauthorised arrivals any prospect of seeking protection in Australia via Australia's determination system.

About 45 per cent of all admissions under the Humanitarian Program came from the regions of the former Yugoslavia, and it is this group that prompted two innovations in Australian policy: the introduction of temporary 'safe haven' protection and the introduction of financial incentives to return home.

War and internal displacement throughout the 1990s were the main causes of the intake. Proclamations of independence from the Socialist Federal Republic of Yugoslavia (SFRY) by Croatia and Slovenia in June 1991 marked the beginning of the disintegration of the SFRY. The Serb forces of the SFRY retaliated and, in March 1992, when Bosnia and Herzegovina also proclaimed independence, the SFRY laid siege to Sarajevo. The UNHCR began airlifts into Sarajevo on 3 July 1992. The humanitarian air-bridge was in place for more than three years and about 3.5 million people in the former Yugoslavia were helped by UNHCR. During the crisis, the Balkans experienced the worst atrocity in Europe since the Second World War when, in July 1995, 7000 men and boys were massacred by Serb forces at Srebenica, Bosnia. The Dayton Peace Accord, of 21 November 1995, ended hostilities in Bosnia but in March 1998 fighting erupted in the southern province of Kosovo.(3) Australia took in 8544 people from Bosnia-Herzegovina, and 6517 from Croatia, between 1992 and 2002.

The conflict in Kosovo, between the majority ethnic Albanians and Serbs, resulted in the displacement of about 350 000 ethnic Albanians, many of whom fled the region. In March 1999, NATO's air war over Kosovo resulted in further displacement, with around 800 000 fleeing. About 90 000 Kosovars were airlifted by UNHCR and received by 29 countries which offered temporary protection. In April 1999, Australia created 'safe haven' (temporary protection) visas for about 4000. By July, all were temporarily resettled in Australia at various safe haven centres. Not all the Kosovars wished to remain in Australia and many returned as soon as it was safe and practicable to do so. This local experience conforms to the general overseas' pattern, with 600 000 displaced persons and refugees returning to Kosovo within three weeks of the SFRY withdrawal of forces in June 1999.

'Operation Safe Haven' was the largest single humanitarian evacuation Australia has undertaken and created two important precedents for the Humanitarian Program in the new century. The first of these was to establish the precedent of offering temporary rather than permanent protection to people in genuine need. It could be said that this precedent really dates to the temporary visas created for People's Republic of China (PRC) students in Australia at the time of the Tiananmen incident in 1989 but the difference is that the PRC nationals were eventually permitted to remain permanently. Nearly all the Kosovars were in Australia for less than a year. Following from the Kosovar experience, Safe Haven visas were also granted to 1900 East Timorese in September 1999.

The second precedent created by Operation Safe Haven saw the introduction by the government of 'reintegration packages': financial inducements to return home. After the UNHCR declared Kosovo safe in July 1999, many Kosovars returned at the earliest opportunity. But by late August, with the European winter only a month or so away, the Australian Government offered a special 'Winter Reconstruction Allowance' to those who returned before the end of October. It paid $3000 to each adult and $500 per child. The same basic idea was adapted in the case of Afghans under the Pacific Solution in 2002, only it was called a 'Reintegration Package'. By April 2000, nearly all the Kosovars had returned, with only a few hundred by-passing the Allowance. Australia's temporary protection to 4000 Kosovars cost the Government about $100 million over the 12 months of its operation.(4)

Australia's policy, 19922002: mandatory detention, protests, people smugglers and the Pacific Solution

Refugee policy during the decade under review did not so much mark a political or philosophical break with previous official approaches as a response to the need to deal with changed circumstances. The principles enunciated by the Hon. Michael Mackellar, as Minister for Immigration and Ethnic Affairs, in 1977 continued to guide Australian policy, and continued to be shaped by pragmatic considerations.(5) Proof that we did not abandon those principles is found in the continuation of the Humanitarian Program at around 12 000 per year. On a per capita basis, this resettlement program continues to place Australia among the most generous recipients of refugees in the world. The most recent figures from the UNHCR reveal that Australia resettled 42 refugees per 100 000 of its population in 2001, putting it ahead of Canada (33) and the United States (29).(6)

A defining feature of Australian governmental thinking on refugee policy is the commitment to a planned system. This approach is bipartisan and represents a tradition in the wider migration program. During the 1990s, legislation which aimed at tightening the reception, detention and processing system was motivated by a desire to ensure that the government's intake was not undermined by unplanned (unauthorised) arrivals who may or may not be people in genuine need of protection. This commitment to preserving the integrity of the program continues to have bipartisan support.

Under the Humanitarian Program, the 12 000 admissions a year consist of two main groups. These are refugees within the UN Convention meaning (i.e. they are people outside their country of nationality and unable or unwilling to return because of a well-founded fear of persecution) and people admitted under the Special Humanitarian Program, which was established by the Fraser Government in 1981 for people who are outside their home country and who have experienced gross violations of human rights and cannot return. A Special Assistance Category, established in 1991 to cater for people not in fear of persecution but fleeing civil disorder, has been greatly reduced since 1999.(7)

The period after 1992 differs from the preceding decades in that the Migration Reform Act 1992 formalised in law mandatory detention for all unlawful arrivals. Enacted by the Keating Government, mandatory detention became controversial, especially as the numbers of unlawful arrivals increased over time and as some detainees remained in detention for very lengthy periods (exceeding a year). The Act provided for unlawful arrivals to be detained until such time as an application for asylum had been processed and status finally determined. Appeals before the Refugee Review Tribunal and the Courts extended the duration of detention for those dissatisfied with the primary decision made by the Immigration Department.

Protest groups and refugee advocates condemned the policy of mandatory detention and focused their criticisms on the remote locations and allegedly poor conditions of the centres. The Australian Government was also criticised by international bodies, including the United Nations' High Commissioner for Human Rights and Human Rights' Watch.(8) Inside the detention facilities, detainees occasionally expressed their frustration through demonstrations and, in late 2001 and 2002, through violent means, including self-harm and the burning down of buildings. By the late 1990s, Minister Ruddock was devoting considerable time to the careful repudiation of what he regarded as misinformation, misconceptions and lack of objectivity on the part of critics.

Government policy in the 1990s cannot be understood in isolation from the rise in, and sophistication of, international people smuggling. (People smuggling is defined by the United Nations' Global Program Against Trafficking in Human Beings as 'the procurement of illegal entry of a person into a State of which that person is not a national with the objective of making a profit').(9) Government opposition to the practice was not new: indeed, in October 1981, the Fraser Government took firm and prompt action against a group of 146 Vietnamese when it was revealed they had paid substantial amounts for their unauthorised passage to Australia. The passengers were detained at Darwin's East Arm Quarantine Station and deported to Taiwan and Hong Kong.(10) By the 1990s, people smuggling had become a qualitatively and quantitatively greater force behind the illegal movement of people. Addressing the Forum of Human Rights and Immigration in 1998, Minister Ruddock pointed to the ways in which the problem had grown. He said:

Organisations involved in people trafficking - smuggling them as if they were just so much contraband - are doing very good trade. Their plans are often complex, involving recruitment of passengers, purchase or forgery of travel documents and itineraries which offer transit through several countries before arrival in the eventual destination country. It has been apparent for quite some time now that there are smuggling networks operating throughout China, South-East Asia and Australia to assist illegal immigrants to enter Australia. Increasingly, even boat arrivals in Australia have tended to come from outside the region. Characteristically, these arrivals fly into the region and gather in small groups ready for transhipment by boat on the last leg to Australia. Those who use these smuggling schemes undoubtedly pay heavily for the opportunity. Undoubtedly also, many travellers have been promised by the organisers that they would be allowed to stay in Australia and would quickly be able to work to recoup the cost of travelling.(11)

The sophistication of the operations was apparent in the kind of vessels sometimes used to smuggle people. These included 35 metre twin-engine vessels with radar and global satellite navigation, a far cry from the tiny boats used by desperate Vietnamese in the late 1970s.(12) Tragic drownings of people travelling on overcrowded boats organised by smugglers heightened the resolve of governments to combat the practice. The Indonesian fishing vessel, code-named SIEV X, which sank on 19 October 2001 is a well-known case in point: 353 of its 397 passengers drowned en route to Australia.

Government concern about people smuggling intensified as a result of a significant increase in unauthorised boat arrivals in 1999 and 2000. Between July 1999 and June 2001, there were 8316 unauthorised boat arrivals compared with 4114 in the ten-year period from 19891990 to 199899.(13) The increase was accompanied by a change in the regional origin of the arrivalsfrom mostly Asian to mostly Middle Easternand an increase in the percentage applying for protection.

The Government's strategy for dealing with the new circumstances has been based on efforts (such as aid and intelligence sharing) to minimise outflows from countries of origin and of first asylum and on regional and international cooperation to disrupt the smugglers and intercept their clients. Remote detention centres are an additional part of the strategy, along with attempts to quicken both the determination process and the removal of those who are not refugees.

A most important legislative amendment in the Government's strategy was the proclamation of the Migration Amendment Regulations (no. 12 on 20 October 1999, which created the three-year Temporary Protection Visa for unauthorised arrivals who are assessed as requiring protection. Previously, such people were granted a permanent protection visa (which is granted to successful applicants onshore who have arrived lawfully, with authorisation). The three-year visa, which limits the range of settlement services available to the holder, has been criticised as unfair to individuals who have been assessed as being genuine refugees.(14) The Government, however, has argued that such measures are necessary to its multifaceted strategy to combat people smuggling and to deter arrivals from outside of the planned Humanitarian Program. Minister Ruddock has consistently argued that, given the limits to Australia's capacity, every unauthorised arrival who is granted protection takes the place of one of the many who have been languishing for years in refugee camps in Asia, the Middle East and Africa. Critics reject the 'queue-jumping' accusation but no-one disputes the fact that the UNHCR has thousands of people in refugee camps who have been assessed as genuine refugees in need of resettlement and who have been waiting for a resettlement place for many years.

The controversies of the early 1990s came to a head in the late 1990s and early 2000s with an exponential increase in the number of unauthorised arrivals into Australia by sea. In July 1999 the Migration Legislation Amendment Act (No. 1) 1999 was passed to create people smuggling and related offences. In November, the Border Protection Legislation Amendment Act 1999 was passed to expand Australia's capacity to board, search and detain ships and to detain persons aboard those ships at sea. In February 2000 the Crimes at Sea Act 2000 was passed to extend the criminal jurisdiction of the Commonwealth and States to the limits recognised under the 1982 Convention on the Law of the Sea. These measures were tested with the arrival of the MV Tampa off Christmas Island on 29 August 2001 and the adoption by the Federal Government of the so-called 'Pacific Solution'. The Tampa, a Norwegian freighter, had rescued 430 passengers aboard the KM Palapa 1, a fishing vessel that had broken down 80 nautical miles from Christmas Island:

The master of the Tampa, Captain Arne Rinnan, had intended to take the rescuees to a port in Indonesia but was requested by the passengers to proceed to Christmas Island. Before the Tampa reached Australia's territorial waters it was instructed to remain in the contiguous zone. On 28 August the Tampa issued a distress signal based on the fact that assistance had not been provided within 48 hours. On 29 August it proceeded into the territorial waters surrounding Christmas Island and was interdicted by [the SAS]. The same day the Government introduced border protection legislation into Parliament.(15)

The Border Protection Bill 2001 sought to retrospectively validate the actions in relation to the Tampa and, effectively, to deny its passengers the right to claim asylum in Australia. It was rejected by the Senate against the backdrop of legal action in the Federal Court and Full Federal Court challenging the lawfulness of the action in relation to the rescuees.

The key provisions were subsequently re-introduced along with various other measures. In the last sitting period for 2001, Parliament considered and passed a number of Bills dealing with the validation and enforcement of border protection measures, the 'excision' of offshore territories from the migration zones, a new protection, humanitarian and refugee visa regime, partially codified refugee assessment criteria, mandatory sentencing for people smugglers and a privative clause relating to judicial review of migration decisions.

On 26 September, the second last sitting day of 2001, the Senate passed six Bills which became the following Acts:

Migration Amendment (Excision from Migration Zone) Act 2001

Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001

Migration Legislation Amendment (Judicial Review) Act 2001

Migration Legislation Amendment Act (No. 1) 2001

Migration Legislation Amendment Act (No. 6) 2001

Border Protection (Validation and Enforcement Powers) Act 2001

Some of the Bills had been previously introduced and failed to pass the Senate. Many of them set the legislative framework for an administrative arrangement that came to be known as the 'Pacific Solution'. The Migration Amendment (Excision from Migration Zone) Act 2001 excised certain territories from Australia's migration zone, including Christmas Island, Ashmore and Cartier Islands and Cocos (Keeling) Islands, with a view to creating a separate visa application regime for unlawful arrivals at the excised places. Unauthorised arrivals to those territories cannot apply for a visa. The Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 allowed for the detention of an unlawful non-citizen in an excised offshore place, for the transfer of an unlawful non-citizen from Australia to another country, and prevents such people from taking legal action against the Government in an Australian court. Under the Pacific Solution, asylum seekers were housed and processed at Manus Island (Papua New Guinea) and Nauru, at Australian Government expense. Through these measures, the Government hoped to further deter unlawful arrivals and also to reduce the high levels of litigation in the Courts.

By the end of 2002, the Australian Government had weathered the storm of protest and criticism and Minister Ruddock could accurately report, on 17 December, that there had not been an unauthorised boat arrival for twelve months. At the time of writing, February 2003, the Government's multifaceted strategybased on prevention of outflows from countries of origin and first asylum, cooperation with other countries to disrupt people smugglers, mandatory detention and the introduction of temporary protection for genuine cases who arrive without authorisation, and the Pacific Solutionappears to have achieved its objectives.

Endnotes

  1. The 19.7 million persons categorised as 'of concern' to the UNHCR at the end of 2001 included 12 million refugees (persons who met the 1951 Refugee Convention definition), 462 000 returnees, 940 000 asylum seekers, 5.3 million internally displaced persons (IDPs), 241 000 returned IDPs, and one million 'others of concern' (e.g. certain groups of war-affected populations, stateless citizens).
  2. The nine are Australia, Canada, the United States, New Zealand, Netherlands, Norway, Sweden, Finland and Denmark.
  3. UNHCR: A brief history of the Balkans, UNHCR web-site., accessed on 6 May 2003.
  4. P. Ruddock, Minister for Immigration and Multicultural Affairs, Media Release, MPS 028/2000, 15 March 2000.
  5. The 'Mackellar principles' were: '(i) Australia fully recognises its humanitarian commitment and responsibility to admit refugees for resettlement; (ii) The decision to accept refugees must always remain with the Government of Australia; (iii) Special assistance will often need to be provided for the movement of refugees in designated situations or for their resettlement in Australia, and (iv) It may not be in the interest of some refugees to settle in Australia. Their interests may be better served by resettlement elsewhere. The Australian Government makes an annual contribution to the United Nations High Commissioner for Refugees which is the main body associated with such resettlement'. (Hon. Michael Mackellar, op. cit., p. 1714).
  6. Figures for 2001 resettlement are for quotas which appear in the UNHCR's Easy Guide to Refugee Resettlement Programs, Geneva, 15 June 2001.
  7. Only 40 visas were issued under the Special Assistance Category in 20012002.
  8. Human Rights Watch issued a 94-page report, By invitation only: Australian asylum policy, in December 2002.
  9. United Nations Interregional Crime and Justice Research Institute, Global Programme Against Trafficking in Human Beings: Project Document.
  10. Department of Immigration and Ethnic Affairs, Review '82, AGPS, Canberra, p. 63.
  11. P. Ruddock, 'The plight of Australia's illegal immigrants', Address to the Forum of Human Rights and Immigration, Sydney, 14 May 1998.
  12. Minister for Immigration and Multicultural Affairs, Media Release, MPS 59/99, 11 April 1999.
  13. Border protection: Background paper on unauthorised arrivals strategy, Department of Immigration and Multicultural and Indigenous Affairs Web-site, last updated 22 July 2002.
  14. J. Jupp, From White Australia to Woomera, Cambridge University Press, Melbourne, pp. 190-193.
  15. N. Hancock, 'Refugee LawRecent Developments', Current Issues Brief No. 5, Department of the Parliamentary Library, 200102, pp. 12, accessed on 6 May 2003.
     

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