Updated: Mar 1, 2021
Though Prime Minister Scott Morrison recently announced a minute (and perhaps tokenistic) change to Australia’s national anthem, to correct the falsehood which belied our First Nations’ history, he preserved the anthem’s most glaring contradiction of all:
“For those who’ve come across the seas, we’ve boundless plains to share…”
For people seeking asylum in Australia who arrive by boat, the Commonwealth Government’s policy is that they (whom they label ‘Illegal Maritime Arrivals’) will be mandatorily detained and may never permanently settle in Australia. This has been the case since Kevin Rudd’s announcement on 19 July 2013, which was swiftly enacted by the succeeding Liberal Government— by none other than the then-Immigration Minister Scott Morrison. The years of Liberal leadership that followed brought sweeping reforms to Immigration and Home Affairs departments, ushering in a new age of arbitrary and unchecked ministerial powers allowing the respective ministers to ‘Play God’ with the lives of some of the most vulnerable people in Australia. Thus, for the largest part of the past decade, thousands of boat-arriving asylum seekers had been languishing in offshore processing centres on Nauru, Manus, and Christmas Island.
For many of us, this is all old news— perhaps just as successive governments on both sides of politics had hoped, the Australian public became desensitised to this tragedy occurring behind the scenes; somewhere else; out of sight, and out of mind. But it was not to last.
Out of the frying pan?
On February 13th 2019, the ‘Medevac’ Bill passed successfully through Parliament against the government’s wishes: with Labor, Greens and crossbenchers getting it over the line. Pursuant to this amendment to the Migration Act, 192 boat-arrival asylum seekers were transferred to mainland Australia from Papua New Guinea and Nauru— most of whom were already verified to be genuine refugees. The move, pushed by medical professionals, was necessitated by the urgent medical care these people required, after numerous reports showed conditions in offshore detention to be severely detrimental to physical and psychological well-being. However, after just nine months, the government had the legislation repealed with the support of Senator Jacqui Lambie.
The men transferred in the interim were split between Alternative Places of Detention (APODs), including Kangaroo Point Hotel in Brisbane and Mantra Hotel in the Melbourne suburb of Preston (while the women transferred mostly entered community-based detention). While fellow Victorians endured in 2020 what was dubbed one of the ‘world’s toughest lockdowns’, these transferred refugees have now spent over 18 months in hotel rooms with even less liberty. Many of the men inside complained that they did not in fact receive any medical care as promised— the hotel detention no better than their fates offshore. Mostafa Azimitabar, a Kurdish refugee who spent six years on Manus, and over a year in Mantra Hotel, explained: “When I asked… to see a specialist for my asthma and complex PTSD… there was no treatment given. Panadol and water was the most popular medication given”. As well as being deprived of sunshine, fresh air, outdoor exercise and culturally appropriate food— all the while suffering from severe physical and mental illnesses— the men have been vulnerable to COVID-19 brought in by security guards. Community outrage at the situation encouraged the Mantra executive to refuse to renew the government contract, prompting the forced transfer of the refugees to Park Hotel in Carlton in November 2020. Yet, as Azimitabar reflects, the change of scenery was nothing more than a cruel reminder that the government only considers them “human cargo for trade… moved from country to country, detention centre to detention centre”— lining the pockets of maligned security companies and hotel chains with multi-billion-dollar contracts along the way.
The stagnant situation was disrupted by the ground-breaking case of AJL20 v The Commonwealth, heard in the Federal Court in September 2020, in which the court found the Commonwealth Government’s detention of one of the Medevac refugees to be unlawful. The catalyst for this decision was the use of a habeas corpus writ—an age-old legal device which enables a court to determine the legitimacy of a person's detention. Interestingly, AJL20 marks the first successful application of the principle in modern Australian legal history. Counsel for the plaintiff, Alison Battisson of Human Rights for All, commented on the immense significance of the Federal Court’s decision: “It forces the government to pursue the purpose of detention, … if you’re not [pursuing a purpose, such as medical care], you have to release [the person from detention].” This decision sparked the government’s reluctant release of six more men from hotel detention (presumably to avoid their upcoming court cases strengthening the precedent), and— depending on the outcome of its appeal to the High Court in April— could herald the release of hundreds more.
A mystifying mass release
After the covert wins in court, a surprising development captured more mainstream attention. On 20th January 2021, the Department of Home Affairs announced the release of 26 Medevac refugees from Park Hotel, which was shortly followed by the release of another 30. Though the importance of this moment could not be understated for these 60 men who could suddenly taste freedom after eight long years, 13 of their comrades were left behind in Park hotel with no explanation as to why.
The impetus for this abrupt departure from Home Affairs policy is unclear. Home Affairs Minister Peter Dutton told 2GB News that the mass release was simply a cost-cutting method, because “it’s cheaper for people to be in the community than… paying for them to be in detention”; but this seems to be no more than a façade. After all, Senate estimates have shown for many years that the cost of having people in the community on bridging visas is less than a 30th of the cost of detaining them onshore. Even more outrageous is the $1 billion spent yearly on offshore detention alone, despite there being less than 300 people remaining offshore. If the government has known all along about the absurdly high comparative costs of detention, then by their own logic no refugee would still be detained. The unexpected release is better explained as the result of combined pressures forcing the government’s hand.
Firstly, the landmark ruling in AJL20 v Commonwealth in September inspired a number of the detainees to file similar habeas corpus claims, and it seems that many of those legal clients comprised the group of released men. Meanwhile, then-Immigration Minister Alan Tudge (who has since been replaced by Alex Hawke) came under fire as the Federal Court accused him of ‘criminal conduct’ in his handling of refugee detention cases. A continuous and determined battle was also taking place in the community, as protesters staged daily vigils outside the hotels and larger rallies throughout the city, inspired by the heroic refugees’ own resistance. Finally, and most conspicuously, Australia’s periodic review before the UN Human Rights Council (during which 40 nations criticised our asylum seeker policies), coincided with the announcement of the releases from Park Hotel. Any number of these factors could have tipped the government over the edge— and continued pressure in all respects will be essential moving forward.
Into the fire
While the recent releases were celebrated as a breakthrough victory, the circumstances were bittersweet. Upon his release, Mostafa Azimitabar announced to ABC News: “I feel free, like a bird”… though a bird who is freed from its cage only to have its wings clipped. Indeed, the 60 free men have been granted only six-month bridging visas, with just three weeks of paid accommodation and $307, after which they must fend for themselves without Federal financial support. Despite the right to work on such a visa and their strong desire for independence, for men with ill mental and physical health after eight years of inhumane detention, who lack local qualifications (and are deprived of obtaining them through study), finding a job and accommodation in three weeks is near impossible without help. If not for generous community support, many of them would now face homelessness. It has been out of the frying pan and into the fire for these innocent men, over and over again.
What is worse, alongside a deficit of support services for the duration of their visa, the government is defiant that none may be permanently settled in Australia due to their status as refugees who arrived by boat. The Home Affairs Department has repeatedly professed that the refugees are free to choose between returning to their home country (where they, as genuine refugees, by definition face persecution and threats to their life), returning to Nauru (where integration in the community is strained, evidenced most recently by a hit-and-run attack on a refugee in the community) or Papua New Guinea (another unsafe destination, where LGBTIQ+ detainees would face severe discrimination, for example with male-male sex criminalised), or settle in the United States. While a deal was struck with the US in 2016 to take in 1250 of Australia’s refugees, Senate estimates indicate this will be insufficient for all within our detention system. Clearly, the ‘choice’ offered to these people— seeking only to lay the foundations for a safe new life— is but an illusion.
Questioning the future
Will the Commonwealth Government be able to continue their arbitrary policy of mandatorily and indefinitely detaining refugees arriving by boat, refusing them permanent settlement? It has long been the source of scathing critique from humanitarian organisations and international institutions, like the UNHCR, who highlight its contravention of the Refugee Convention to which Australia is a signatory. With the news of incoming US President Joe Biden increasing his country’s refugee intake, political pressures from all angles are beginning to weigh on the Australian government. Additionally, the High Court’s decision in the upcoming appeal for AJL20 v Commonwealth will likely be a decisive factor. That said, the recent appointment of two black-letter and conservative High Court justices (discussed here) makes the wait for this verdict an anxious one— most of all for the people who have had eight years of their lives already stolen by this policy.
Regardless of prolonged political pantomime, advocates on the ground— and the refugees themselves— continue to fight tirelessly for the immediate release of all the refugees who arrived by boat and are still in detention. This includes those 385 held in detention onshore (including 13 in Park Hotel, 48 in Kangaroo Point Hotel and 15 in a Darwin airport resort, with the remainder in detention centres throughout the country), those 541 living in our ‘community detention’ (but recently, shockingly evicted), as well as the 205 offshore (106 on Nauru, 95 in Port Moresby, PNG, and a Tamil family of 4 including two Australian-born girls aged three and five who have spent over 1000 days on Christmas Island). Beyond their release, more must be done to ensure they are treated with dignity and support, as is needed for the 30,000 refugees living in limbo in the community on temporary visas.
The more I learn about the tale of Australia’s refugees, the more I realise that the most mistreated people in our divided society are those who arrived first, and those who arrived last. It will take more than changes to our national anthem to fix that on both accounts: we certainly aren’t ‘young’, nor are we all ‘free’.
So, Advance Australian Fairness— Free the refugees.
Sources to get involved
If you would like to stay updated with the ever-developing situation (the release of 25 refugees from KP hotel was quietly announced the morning of publishing this article!), and get involved in actions to support the freedom and well-being of ALL refugees in Australia’s detention system and those in our community, consider the following organisations, pages and events:
Refugee Voices (an organisation run by refugees, for refugees, fundraising for those released): https://www.refugeevoices.org.au/donate
Mostafa (Moz) Azimitabar (refugee, freedom fighter and musician, recently released from Park Hotel): https://www.facebook.com/mostafa.azimitabar
Park Prison: A Facebook page operated by the men currently detained in Park Hotel— https://www.facebook.com/manusto.mantra
‘Stand Together for Justice’ hold daily vigils outside the Park Hotel on Swanston Street, 6pm weekdays and 3pm weekends: https://www.facebook.com/events/248640963489198/
A collaboration of advocates have organised a larger rally for 6pm, March 5th at the State Library, for the National day of action: https://www.facebook.com/events/437700841013357
Further info: Timeline of Australia’s refugee policy— https://www.rch.org.au/immigranthealth/clinical/refugee-policy-and-timeline/
**Please note: the statistics regarding the number of refugees remaining in detention are specific to those labelled 'IMAs' who arrived by boat- there are many others in detention who arrived by other means, or who do not have refugee status, or are characterised differently by Home Affairs (e.g. '501s'- people who were living in the community on visas but have been detained since having their visas revoked due to a criminal record--- forced to endure administrative punishment after already serving their time in the judicial system. This is a fundamental contravention of basic principles of criminal sentencing, where a person should not be sentenced for the same crime twice). It should also be noted that these are the most recently published by the Department of Home Affairs, though they are no longer entirely accurate. While the numbers may not be exact, the fact remains that many people are in detention who have been there for far too long - all deserve freedom.
Image: USA Today
Ben Rácz is a fourth-year Arts/Law student with an aspiration to work in Public Interest law, particularly environmental or humanitarian law. He wants to contribute to a society where compassion and integrity guide both policy and individual action.