Essay: Time for an amnesty

IN 2002, A young Russian mother still breastfeeding her baby was separated from the child and locked up in the Villawood detention centre. The image of a woman being taken from her infant and being put under threat of imminent deportation was shocking and confronting. It was the first indication for many people of the reach of Australia’s harsh migration laws. They could be applied not just against boat people from the Middle East or Asians working here illegally but against a European woman who had a child with an Australian man.

Three years later, and after the Cornelia Rau and Vivian Alvarez Solon cases, we are much wiser about the workings and culture of the Department of Immigration. At the time the plight of the Russian woman was becoming known, Alvarez Solon had already been deported to the Philippines. And since then there has been a cavalcade of examples; families being separated, detained and deported. Almost weekly, a new case emerges, each one harrowing for the people involved, each administratively complicated. The ones that reach the media are generally the desperate cases, the ones where public exposure and, hopefully, public outcry are the last chance for good outcomes. On the whole, the supporters of these families – the teams of advocates, lawyers and migration agents, try to work with the department and the courts behind the scenes. Going to the media is the last resort.

It was the sight of three-year-old Naomi Leong, stateless, and held in Villawood detention centre all her young life, which finally galvanised public opinion and put the government’s policy of holding children in detention centres in the spotlight.

The cases caught up in Australia’s increasingly vigilant compliance and deportation system are, typically, not from the Middle East but from our own region – Malaysia, Fiji, China, Tonga, Bangladesh, India, Korea. Some are asylum seekers, believing that if they return to their countries of origins they will face persecution. Most are “visa overstayers”, people who have been in Australia a long time, have built lives here, have had children here, but with whom the Immigration Department has finally caught up.

Visa overstayers are usually not asylum seekers and the distinction needs to be kept clearly in mind. The fragile lifeline of asylum has been drawn so taut by this government that it seems constantly on the verge of snapping. It has failed many people – some who have ultimately been found to be refugees and others who have been sent back to their countries of origin only to disappear or be imprisoned. The asylum system is a matter of life or death for refugees. It is too important to be weakened by thousand of visa overstayers claiming to be refugees.

But what overstayers and asylum seekers have in common – along with the thousands of refugees granted temporary protection visas – is separation from family. The Australian Government’s refusal to treat immediate members of a refugee family as one unit has been one of the most outrageous injustices in a system that is full of cruel and arbitrary acts. Mothers and children are kept locked up while fathers are given visas, and vice versa; teenage boys are detained while their younger siblings are released.

More instances of this cruelty are coming to light in the government’s handling of visa overstayers. The government’s undertaking to release children and primary carers from detention means that some families have been reunited. But there are still potentially thousands of instances where parents and children are in danger of being separated because of the department’s determination to deport non-citizens, regardless of their family ties or responsibilities. While they are awaiting a decision or removal, they may be given Bridging Visa E, a visa becoming notorious for the hardship it inflicts, and be abandoned to penury and continual uncertainty.

This government’s readiness to separate families, regardless of international conventions, goes back a number of years. For example, in 1999 it was party to a United Nations agreement on the Protection of the Refugee Family, which emphasised protection of the family unit and reunification of family members separated as a result of refugee flight. At that time, the Government was locking up asylum seekers and separating visa overstayers and refugees from their families. Two years later it was still busily separating families – sending women and children to Nauru when the husbands and fathers were already in Australia with visas.

One of the most tragic outcomes of this readiness to separate families was the death of hundreds of women and children aboard the SIEV X. It has always seemed to me that the Federal Government’s complicity in their deaths did not hinge on whether the government, through the Australian Federal Police, was somehow involved in that tragedy. Even without that, Immigration Minister Philip Ruddock and Prime Minister John Howard were complicit because of the introduction of temporary visas, which prevented husbands from bringing their families to Australia legitimately. It was no accident that most of the 453 people who drowned on the SIEV X were women and children – the only way they could join their husbands and fathers in Australia was by getting on a leaky boat.

THERE ARE OFTEN very good reasons visa overstayers should be allowed to remain. One is the interests of the children involved. This was the position taken by Justice Mary Gaudron in the High Court when she said that the best interests of the children needed to be considered when deciding whether a non-citizen parent should be deported: children who were Australian citizens should not be separated from a non-citizen parent. This is not an attitude that has been embraced by the government.

The concept of citizenship is like that of family – it is about belonging and allegiance. It is also about exclusion – excluding those who do not belong. We have had no qualms in excluding the non-citizens in our midst from the Australian “family”. But in its dealings with non-citizens, a state has a choice. It can see such people firstly as members of the human community and therefore as having inalienable individual rights. Or it can treat them as mere numbers, to be made to behave according to the rules on the statute books.

The current government cares more for rules than for rights, and this can be seen clearly in the culture of the Department of Immigration. It is a department that has historically had a double function: welcoming people and looking after them on one hand and controlling and expelling them on the other. Its officers need to be able to judge this fine balance between compassion and compliance. In recent times, it has come down heavily on the “control” side. Senior departmental officials appear to have been ready to take on the government’s agenda.

Citizenship is not only about the right to enter the country; it is also about rights within the country. Non-citizenship is about being excluded from those rights. In Australia, non-citizens are excluded from many of the rights that citizens take for granted. A non-citizen is a subject – subject to the whims of a state that feels no need to deal with them fairly because it is not responsible to them. A non-citizen does not vote; a non-citizen does not exist as far as democratic governance is concerned. Detention and deportation – without recourse to the courts or any higher authority – are publicly acceptable for non-citizens, it seems, but not for citizens.

The term “citizen” is not mentioned in the Constitution. It only came into being with the Citizenship Act of 1948. The term “alien” is defined neither in the Constitution nor in legislation. Nonetheless, for a century and a half we have been building up layers of law and convention that protect us and give us rights as “citizens”. Simultaneously, a whole series of court decisions, going back in the states to before Federation, has enshrined the idea that it is okay to exclude “aliens” – not just from our territory but from much of the legal protection offered to citizens. An example: in 1996, the Federal Court held that asylum seekers did not have the right to be told about their rights. In other words, the common-law right to procedural fairness had been deliberately removed from non-citizens by an Act of Parliament.

It is easy now to see how the treatment of Cornelia Rau and Vivian Alvarez Solon and a couple of hundred other cases came about. Presumed to be non-citizens, they had no rights. The outrage over the Rau and Alvarez Solon cases was because they were Australian citizens. What happened to Citizen Rau and Citizen Alvarez was terrible but it would have been just as terrible had they not been citizens.

WHAT OF AUSTRALIAN-BORN children who do not have citizenship? Before 1986, any child born here was considered Australian (apart from the children of foreign diplomats). But since then a child is only Australian if at least one parent is a citizen or a permanent resident. A paper published by the Parliamentary Research Library in 2003 said: “It appears to be beyond the powers of Parliament and the Commonwealth to treat locally born children as ‘aliens’ without an alteration to the Constitution.” Yet that is precisely what has occurred in recent times, when Australian-born children have been imprisoned in detention centres.

Six-year-old Janie Whang and her older brother, Ian, were removed from Stanmore Public School in Sydney in March by immigration officers and taken to Villawood detention centre. Their mother had been picked up at Sydney Airport while trying to re-enter the country. The children had been staying with an aunt while their mother was overseas. The mother and children came close to being deported, then spent two months in detention before being released.

After her release, Janie Whang was one of sixteen children whose case was taken to the Federal Court in August. They sought the right to citizenship because they were born in Australia. Their appeal was rejected. A similar case went to the High Court last year and also failed.

Having been born here they cannot be aliens, but nor are they citizens. They are in effect “naturally born subjects”. Under an amendment made to the Citizenship Act in 1986, such children automatically become citizens on their tenth birthday. But that may be too late for some – they may already have been deported.

Sereana Naikelekele has lived here for more than sixteen years, borne five children here, yet faces deportation to Fiji. She may be separated from three of her five children. She was in detention with two of the children but released earlier this year, on a bridging visa, which means she can’t work. The 1986 amendment is the reason Naikelekele’s five children fall into three different categories: her two eldest children are Australian because they have passed their tenth birthdays; the middle two are non-citizens – born here but under ten; and the youngest is Australian because the father is Australian.

The status of Australian-born children is important for another reason. If a person is neither an alien nor an immigrant, then the detention provisions of the Migration Act do not apply. In other words, Australian-born children like Janie Whang and Naikelekele’s two children cannot be locked up without a court order. This situation has repeatedly been ignored by the department. The lack of judicial review of the department’s activities is one of the issues that have been highlighted by the Rau and Alvarez Solon cases. Departmental officers, scathingly criticised in the Palmer Report, have taken an open-slather approach to detaining and deporting people, apparently ignorant of the law under which they operate.

THE DEPARTMENT OF immigration’s powers to enter, search and detain exceed those of the police or ASIO. The department can lock people up without having to consult a magistrate or appeal for a court order. Where a department official reasonably suspects that a person is an unlawful non-citizen, they are obliged, under the Migration Act, to detain that person and to remove them from the country as soon as possible.

Up until the 1990s, no one could be deported unless they went before a court. And it was up to the Commonwealth to prove that the deportation was legitimate. No such scrutiny happens now. Since 2001, no deportation orders have been issued. The terminology “deportation” is not even used by the department because that implies a judicial order. What the government does these days is “removal”.

In recent years, the number of forced removals has leapt to more than 10,000 a year. This is a far higher rate of removal, relative to population, than in comparable Western countries. So what are those other countries doing? Some are beginning to follow Australia’s lead – cracking down hard on “illegals”, tightening asylum provisions. But not all are going down the hardline path. Earlier this year, Spain announced a three-month amnesty, allowing illegal workers to come out of the woodwork and become legal members of Spanish society. About 700,000 workers accepted the amnesty, adding up to about one million people when family members were included. (No, the Spanish government didn’t deport their families.) Spain has not collapsed as a result of its amnesty. The Spanish Government considers it a great success, despite opposition fears that it might encourage further unlawful arrivals.

During the 1990s, the United States granted amnesty to many hundreds of thousands of people. Another amnesty has been proposed by President Bush – the business community likes the idea of “regularising” illegal labour.

An amnesty is also a way of acknowledging the complex reality of modern migration. People don’t always stay where they were born. And that is not necessarily a bad thing. An amnesty recognises that people are in the country, that they are working, studying, raising families. That they have lives. It is a way of allowing them to be visible, to stop hiding, to pay taxes and vote.

It is time to consider such an amnesty here. The Department of Immigration estimates that there are more than 50,000 visa overstayers. Each year about 10,000 are deported. But more than 30 per cent of overstayers have been here more than ten years. These figures do not include the tens of thousands of people who are working here even though their temporary resident visas prohibit it. Even so, the numbers are small compared with other countries. An amnesty might bring a lot more people to the surface. But at least it would be simple and avoid – or at least streamline – the labyrinthine red tape of the Immigration Department. And it would give people the chance to get on with their lives.

At the very least we could, when considering the cases of visa overstayers, take more account of their ties in Australia: to families, communities, professions, or simply take into account the fact they have lived here for a long time. We could consider their calibre as citizens: have they contributed to the economy, the community, to their families’ upkeep? Not all these things are easy to judge, but some are. Have they been law-abiding? Have they bought houses? Have they shown in manifold ways that they wish to make lives here? Until this year, young people who had spent a substantial part of their lives in Australia could apply for a “close-ties visa” when they turned eighteen, and thus stay here permanently, eventually becoming citizens. But that form of visa was summarily abolished in July.

We used to be told, during the golden days of multiculturalism, that there were many types of Australians. Well, it’s time we recognised that there are many ways to become Australian. We’ve been good at some aspects of migration; have taken people from all over the world who do it the right way. We’ve had ten-pound Poms and family reunion and refugees rescued from appalling refugee camps. We’ve been good at providing categories and forms to fill in, at processing and categorising. Maybe that goes back to our convict past. But we’ve been less good at recognising that trying to live a life is a complicated, messy, sometimes desperate business for a lot of people; that it is not always possible to do things the right way. That doesn’t mean they won’t make good citizens. That they don’t deserve a fair go. That we can treat them as lesser human beings.

A more flexible attitude to a few thousand families won’t hurt the rest of us at all. And it will make an enormous difference to them. It might mean that Sereana Naikelekele can stay in the country where she has lived for nearly seventeen years with all five of her children. Is that so very much to ask?