In 2011 the Commonwealth Ombudsman initiated an investigation into suicide and self harm in detention facilities.58 Later that year the government commissioned the Hawke review following violent incidents and episodes of self-harm by detainees. It noted that a recent surge in boat arrivals had placed the detention network under stress and despite efforts to train additional staff they had been overwhelmed, leading to problems of health, including mental health, anger, frustration and self harm.59 Despite the 2008 guidelines favouring the release of families with children, there were still over 1000 children in detention centres in January 2011. The government began negotiating what later became known as the Malaysia Swap Deal with the Malaysian government even though it is not a signatory to the UN Convention. The plan was to send 800 asylum seeking ‘boat people’, including unaccompanied minors, to Malaysia in return for Australia accepting 4000 refugees. The government believed that under section 198A of the migration legislation the Minister could make a declaration in respect of the country to which asylum seekers can be sent, as the former Coalition government had done. 60 A High Court challenge prevented the removal of the first group of asylum seekers, finding against the Minister’s declaration on the basis that Malaysia does not recognise the status of refugees in its domestic law. It also found that the plan breached the (Guardianship of Children Act) 1946. 61 The Prime Minister attacked the court decision as ‘a missed opportunity’ and for turning the current law ‘on its head’ and shortly after introduced the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 to circumvent the court’s findings and enable transfers to a third country.62 The Opposition would not support legislation allowing asylum seeker transfers to countries which are not signatories to the Convention. Opposition Leader, Tony Abbott said: ‘if the government was serious about stopping the boats she [the Prime Minister] would support the Coalition’s amendments’.63 In the end, both the Government’s legislation and the Opposition’s amendment were defeated. 58. 59. 60. 61. 62. 63. 64. 65. 66. To quell public criticism as news broke of more deaths at sea, the Prime Minister announced the establishment of an ‘expert panel’ made up of three eminent Australians, to find a way to break the impasse. Several weeks later, the panel delivered twenty-two recommendations to the government, including the re-introduction of the ‘Pacific Solution’. ‘No advantage’ would be permitted for asylum seekers arriving in Australia by boat. They would be transferred to Nauru and Manus Island waiting the same amount of time they would have waited for asylum claims to be determined in Malaysia or Indonesia. No instrument has been recommended to gauge that timeframe, so re-settlement could take years. 64 One day after the Report was delivered, the government hastily re-introduced the legislation65 to once again allow the transfer of ‘boat people’ (including unaccompanied minors seeking asylum) to the Pacific Islands. Malaysia or any other country not a signatory to the UN Convention could now become a destination for asylum seekers (including children), subject to the tabling of a Disallowable Instrument.66 The legislation passed through both houses of Parliament in August 2012. In Conclusion Four decades ago, Australia’s response to IndoChina refugees did not invoke such harsh policies as indefinite mandatory detention, temporary protection visas and offshore processing. Neither did it result in the navy being sent to turn back the boats. Instead the government undertook energetic, diplomatic engagement with Indonesia and other nations of the region to share responsibility for successfully resettling tens of thousands of refugees. Despite initial public apprehension, it is widely accepted that these refugees have enriched Australia in a multitude of ways. It is axiomatic that tough deterrent policies have not stopped boat arrivals and it is unlikely that any civilised jurisdiction can invoke penalties so harsh, that they stop people escaping unimaginable brutalities. Managing the human dimensions of refugees fleeing Alan Asher, Commonwealth Ombudsman, Inquiry to Examine Suicide and Self-harm in Australian Immigration Detention. Media release, July 29, 2011. http://www.ombudsman.gov.au/media A. Hawke and H. Williams, Independent Review of Incidents at Christmas Island Immigration Detention Centre and Villawood Immigration Detention Centre, 2011 Department of Immigration and Citizenship, Canberra. Elibritt Karlson, Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011, Laws and Digest Bills Section, pp2 & 3, Parliamentary Library, Commonwealth of Australia September 22, 2011. Ibid, p.11. Ibid, pp. 7 & 8. The Hon Tony Abbott, Leader of the Opposition, Media Release, September 19, 2011. Angus Houston et al, Report of the Expert Panel on Asylum Seekers, Australian Parliament 2012. The Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011. Australian Parliament. Disallowable Instrument is sub-ordinate legislation under the Legislative Instruments Act 2003. It is required to be tabled in both Houses of Parliament within a set time and it can be disallowed (repealed) by either House. www.alpn.edu.au/subordinate Issue 205 Prison Service Journal 21