New Internationalist

Moving on from hate

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Prominent Australian barrister and human rights defender Julian Burnside explains how Kevin Rudd’s government has moved the asylum system in a fairer direction – and how public attitudes are also softening. Interview by Alasdair Soussi.

‘There are two streams of asylum seekers in Australia: the “boat people”, who are the major source of anxiety in the [Rupert] Murdoch press, and those who arrive by plane on tourist visas, business visas and student visas, and who then apply for asylum once inside the country. The “boat people” represent about a quarter to a third of those who come by orthodox means, and, at the moment, are arriving at about 2,000 to 2,500 per year. It’s interesting because the “boat people” are today the focus of attention, anxiety and hostility. In the last few days, the arrival of these people has even been described as a “flood”. I can’t think of any European country that would think that 2,500 people per year was a “flood”. They are typically from Afghanistan, Tamils from Sri Lanka and people from Iraq. Of those who arrive by plane – by orthodox means, and who arrive at a rate of 8,000 to 10,000 per annum – they’re predominantly from mainland China.

Under the previous government, members of the Refugee Review Tribunal (RRT) – the non-judicial layer of review of asylum claims – were under a lot of pressure from the government to see things the government’s way and they made some terrible, appalling decisions

‘Under Australian law it’s not a criminal offence to arrive in the country without papers and ask for asylum. But, the tag “illegals” has been applied to the “boat people” repeatedly and with great political effect. Because what we do here is to immediately detain them on arrival and, at least under the previous government, we would hold them for as long as it took to process them, and in some cases that turned out to be many years. As of now, and things have changed a lot since the previous government, they are taken typically to Christmas Island, which is part of Australia but thousands of kilometres off the coast, and much closer to Jakarta than it is to [mainland] Australia. There, and because they are so-called offshore entry people, they don’t have an automatic right to apply for asylum, but the Minister for Immigration typically allows them to apply – or at least assesses them to see if they are refugees. That assessment is done first by officers of the department and then that is subject to independent review and ultimately it’s capable of being reviewed by the federal court. If they are accepted as refugees, then they are given protection visas and brought onto the mainland. If they are rejected, then they are returned to wherever they come from. The overwhelming majority are being accepted at the moment and most of them are processed within about 90 days of their arrival.

‘But the common challenge at the moment for lawyers concerns getting access to the “boat people” because Christmas Island is a long way away and is very hard to get to. If you act pro-bono for people as I and many others do – I’m primarily a commercial barrister – it means taking a week off work just to see a few of them and it will cost you many thousands of dollars. There are a small group of migration agents who are also lawyers who get funded by the government to go there and help people, but in a practical sense it’s quite difficult. So, not all asylum seekers have access to lawyers, but what they do get access to is migration agents, who may or may not be lawyers, but are trained in migration matters. How effective that assistance is varies from case to case – one does hear bad stories of people who don’t get effective help at the right time. But, generalizing, they do get access to some sort of assistance.

‘Under the previous government, members of the Refugee Review Tribunal (RRT) – the non-judicial layer of review of asylum claims – were under a lot of pressure from the government to see things the government’s way and they made some terrible, appalling decisions. And the scope for judicial review of the RRT was very limited because you had to show jurisdictional error – it wasn’t sufficient just to show that they had got the facts [of a case] wrong. But, under the present government, I think most people accept the department’s attitude has become a bit more realistic and the RRT and other reviewing authorities are much more sympathetic to asylum claims.

‘The political set-up in Australia is more congenial to the rights of asylum seekers than it used to be, but the opposition parties are now attacking the government saying, “you’re taking a soft line on refugees”. They don’t think of it as offering protection to refugees, but as protecting our borders from refugees’

‘So, the political set-up in Australia is more congenial to the rights of asylum seekers than it used to be, but the opposition parties are now attacking the government, saying “you’re taking a soft line on refugees,” or “border protection” as they call it, and therefore “floods” of “boat people” are arriving. They don’t think of it as offering protection to refugees, but as protecting our borders from refugees. They assume that because we are now processing people fairly, they will therefore up sticks from Afghanistan and high tail it across here as quick as they can, all of which I think are questionable propositions. There is a lot scaremongering at the moment, which has been cranking up over the last six to eight months and it’s completely misinformed. I think there’s a good deal of anti-Islamic sentiment underlying this – it’s hardly ever articulated but I suspect that it’s there.

‘From a community sense, and since 2005, public attitudes have begun to shift and have ceased to become quite as uniformly hard-line against refugees as they had been. And I think that shift won’t help the opposition, who want to make a big issue out of asylum seekers. I’ve been fairly vocal in Australia for quite a few years about our treatment of asylum seekers and if ever I wrote an opinion piece or was on the radio or TV defending asylum seekers there would be a sudden surge in hate mail that I would receive. Recently, I’ve been asked to write a couple of op-eds and the comments I’ve received have been overwhelmingly favourable. It’s only anecdotal, but I think the community became aware that what was happening before was dreadful, and that it was happening to real, genuine, frightened human beings.’

Julian Burnside is a barrister based in Melbourne, Australia. A tireless defender of human rights, he was elected as a Living National Treasure in 2004. In 2009 he was made an Officer of the Order of Australia.

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