To stop a revolt from members of his own party, Prime Minister John Howard has agreed to soften Australia's indefinite mandatory-detention policy for asylum seekers who arrive illegally.
Revelations about long-term detainees, including children who have spent much of their lives in captivity, drew criticism across the political spectrum here. The government, which came to power in 1996 by taking a tough stand on so-called "queue jumpers," had allowed these detainees to languish in a limbo after they were rejected both by Australia and their countries of origin.
Under the changes, dozens of the roughly 800 failed asylum seekers who are being held in barbed-wire detention camps are now going to be released into the community. They include all of the families with children, and 50 asylum seekers who have been held for more than two years. They will be strictly supervised, and issued "bridging visas," which can be revoked at any time.
The Immigration Ministry has also been directed to process new refugee applications within three months; previously, there was no deadline and it could take years. Mr. Howard said earlier this month that the changes will allow the current policy to be "administered with greater flexibility, fairness, and above all, in a more timely manner."
But critics say the new remedy does not set forth clear policies to prevent future refugees from becoming stuck in detention. Instead, it gives the immigration minister the discretion to free long-term detainees with bridging visas.
"This is where the whole thing falls down," says Peter Bailey, law professor at the Australian National University in Canberra. "The minister has total discretionary powers to determine the fate of the few hundred unfortunates who are unable to get refugee status and who, for one reason or another, are unable to return home immediately. They can stay in detention forever, even if this means contravening the International Covenant on Civil and Political rights."
Peter Qasim, the longest serving asylum seeker, who has been in detention since 1998, is one of those chosen to be released. Claiming to be from Indian- controlled Kashmir, Qasim remained in detention since neither the Australian government nor the Indian government wereconvinced of his bona fides. But Canberra is now prepared to release him as officials say he is finally "cooperating."
Last year, in a landmark case of a stateless Palestinian, Al-Khateb v. Godwin, Australia's highest court ruled that failed asylum seekers could be detained indefinitely, if they could not be sent home.
Courts in other nations have seen this type of case differently. Britain's House of Lords has ruled that any noncitizen in detention (even suspected terrorists) should be freed if there is no prospect of their repatriation. The US Supreme Court recently ruled that indefinite detention could constitute oppression and abuse of power. Washington has come under criticism for the indefinite detention of "enemy combatants" at Guantánamo Bay.
In a March article in the Eureka Street journal titled "Australia's Judicial Isolation," Boston College fellow Frank Brennan wrote: "Because the US constitution includes the Bill of Rights there is a need for the US court to strike an appropriate constitutional balance between the individual rights and national security. The present Australian High Court has been able to excuse itself from any such balancing exercise."
Britain has incorporated the European Convention of Human Rights into domestic law, which played a key role in the Lords' decision to release those who have no prospect of repatriation.
Criticism from the UN High Commissioner for Refugees (UNHCR) has been muted, says Mr. Bailey, because Australia is one of the few countries that agrees to take in refugees from holding centers around the world. In 2004, Australia increased its resettlement quota from 4,000 to 6,000 and contributed $14 million to the UNHCR.
Some of the severest domestic criticism is focused on the treatment of children in detention. In 2001, one detained 6-year-old Iranian child, Shayan Badraie, drew stick figures of weeping children hounded by detention center guards.
The story prompted some citizens to form Chilout, a group that puts pressure on the government to get all kids out of detention. Chilout's coordinator is skeptical about the changes being introduced to the Migration Act. "These families will probably continue to have 24-hour guards," says Daine Hiles. "The government may have wriggled out of an embarrassing political solution, but we are waiting to see if the children are really going to be free."