Discussion on the treatment of assylum seekers in Australia - Essay Example

TREATMENT OF ASYLUM SEEKERS IN AUSTRAILA Introduction The of this essay is the fallout from the Australia High Court’s decision to uphold a provision of Australian immigration legislation requiring the detention of asylum seekers. Journalist David Marr wrote two articles denouncing the High Court’s decision and lawyer David Starkoff has responded with a blog critical of Marr’s position. Marr’s Articles Marr’s first article, “Liberty is Left in Shaky Hands….” ( March 31, 2005) concentrates on the High Court’s decision to uphold the detention requirement and Solicitor General David Bennett’s alleged sinister power to influence the court to support the Migration Department (Marr 2005, p.1). His much longer article, “Escape from a Life in Limbo” (October 27, 2007) tells the personal story of Ahmed al Kateb until he was finally granted a permanent residency visa in 2007 nearly seven years after being rescued from a beached fishing boat.

During the interim al Kateb Was stateless, alternating periods of detention with those of temporary release and bridging visas. Briefly, I would classify the earlier article as an impersonal critique of a High Court decision, whereas the later one puts a human face on the consequences of the decision to a particular victim of it. This personal article I submit would more likely elicit sympathy from the reader for al Kateb’s plight and stir emotional outrage rather than the intellectual criticism of the firs one.

Effect of Process on Identity of Us as Australians and on al Kateb Marr( 2005 p.1) implies that the Australian detention process denigrates Australia’s identity in the international community because high courts in counties such as the US and the UK are “tracking in the opposite direction” since “they have been telling their governments that its’ not lawful to detain at will and indefinitely”. Of course Marr’s implication is that Australia is not acting as the democracy it purports to be as the detention violates civil liberties and its’ own constitution.

Carrying Marr’s rationale to its’ logical conclusion he would likely argue that at least among the community of nations that consider themselves liberal democracies Australia would be thought of as a pariah. As far as al Kateb is concerned, the process magnifies his feeling of not having any identity, since he didn’t belong anywhere until he got a visa allowing him to remain in Australia. He explains “ I was born a refugee, I go here I’m a refugee, I go there I’m a refugee. Now I have a home”, (Marr 2007, p.4) All human beings have their sense of identity largely through belonging to groups such as family, community and country.

Even when not actually detained, a refugee like al Kateb feels “lost” if he permanent residency and employment authorization, or find another country which will provide these. Permission for permanent residency provides psychological relief as it gives a sense of belonging to a community indefinitely and enables the refugee to establish roots, plan and work toward amore predictable future. Starkoff’s Criticisms Starkoff’s blog “Inchoate” (April 1, 2005) is highly critical of Marr’s arguments and I believe rightly so.

He chastises Marr for making Bennett the fall guy (Starkoff 2005 p.1) arguing that he is required by law to be an advocate for his employer, the government/.Using the MV Tampa case he claims that Marr was wrong in his interpretation of unlawful detention. (Starkoff 2005 p.2-3) Detention required to prevent illegal entry into Australia was he argues lawful. That is, if the ship had turned around and sailed away from Australia there would have been no detention. Also since there was no unlawful detention “Habeas corpus” could not apply as claimed by Marr.

I agree with Starkoff’s reasoning and conclusion. Like that of most democracies Australia’s constitution gives the state the power to make laws consistent with the terms of its’ constitution (Starkoff 2005 p.4) This applies whether the operation of the law has unforeseen and probably unintended unjust results in particular circumstances. The law states that immigration officers “must” detain refugees, and is based on the assumption that eventually they will either be granted permanent residency status or deported to a country which would accept them.

It apparently was not foreseen that there would be cases where no country would accept the refugee (Starkoff 2005 p.6) The High Court’s decision does not necessarily mean that they were unsympathetic to al Kateb’s plight. Since Australia has no Bill of Rights (preferably enshrined in the Constitution) or other legislation which they could use against the government’s position, they would have to find the Migration law unconstitutional to rule against the government. There was no basis for such a finding.

(Starkoff 2005 p. 8) The only remedy is to change the law now that the problem is apparent. Although Starkoff does not discuss this aspect, I think the crux of the matter is the division of powers. Only elected legislatures can make laws, not courts. Their role is only to interpret existing law and ensure it accords with the Constitution. For the above reasons I feel Starkoff’s criticisms are fully justified and the different slant of Marr’s second article makes no difference. In passing I am not impressed either with the lecture of Pugliese( undated p.5) . His allegation that Australia should bring 438 refugees to their Christmas Island to process under the Migration law ignores 1) the fact that they have no obligation to do so 2) this law is not applicable until refugees actually arrive on Australian soil and a decision has to be made whether they should be allowed to stay and 3) even if not criminal the question arises whether they will be able to support themselves and not be a drain on Australia’s social services.

Appropriateness of Marr’s Articles Even though I don’t agree with his legal position, I feel his second article presents the treatment of al Kateb in the more appropriate way because it sympathetically describes his litany of frustrations causing him economic and psychological problems which others in a similar position would also face. However the remedy is not a legal but a legislative one. Even with the greatest sympathy the courts cannot help people in this position without a change in the law to appropriately deal with cases where a host country cannot be found for a potential deportee.

I don’t feel either Article is adequate because both fail to recognize that the crux of the problem is the shortcoming of the law rather than the decision of the High Court. Conclusion In my view the only way asylum seekers in a position similar to that of al Kateb can have their cases adjudicated in a fair, timely and just manner is to have appropriate changes in the law enacted. References 1) Marr, David “Liberty is left shaky hands when the High Court no longer defends it” March 31, 2005 The Sydney Morning Herald 2) Marr, David “Escape from a life in limbo” January 27, 2007 The Sydney Morning Herald. 3) Starkoff, David “Stick to Media Watch” Inchoate Friday April 1, 2005 c.17.13