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Social Policy Group
Australia and Refugees, 19012002: An Annotated Chronology Based on
Official Sources
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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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
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.
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)
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.
- 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).
- The nine are Australia, Canada, the United States, New Zealand, Netherlands,
Norway, Sweden, Finland and Denmark.
- UNHCR: A brief history of the Balkans, UNHCR web-site., accessed on
6 May 2003.
- P. Ruddock, Minister for Immigration and Multicultural Affairs, Media
Release, MPS 028/2000, 15 March 2000.
- 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).
- Figures for 2001 resettlement are for quotas which appear in the UNHCR's
Easy Guide to Refugee Resettlement Programs, Geneva, 15 June 2001.
- Only 40 visas were issued under the Special Assistance Category in
20012002.
- Human Rights Watch issued a 94-page report, By invitation only: Australian
asylum policy, in December 2002.
- United Nations Interregional Crime and Justice Research Institute,
Global Programme
Against Trafficking in Human Beings: Project Document.
- Department of Immigration and Ethnic Affairs, Review '82, AGPS, Canberra,
p. 63.
- P. Ruddock, 'The plight of Australia's illegal immigrants', Address
to the Forum of Human Rights and Immigration, Sydney, 14 May 1998.
- Minister for Immigration and Multicultural Affairs, Media Release,
MPS 59/99, 11 April 1999.
- Border protection: Background paper on unauthorised arrivals strategy,
Department of Immigration and Multicultural and Indigenous Affairs Web-site,
last updated 22 July 2002.
- J. Jupp, From White Australia to Woomera, Cambridge University
Press, Melbourne, pp. 190-193.
- 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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