Time for rethink on asylum seeker treatment

I am gravely concerned that Australia's practices in relation to asylum seekers risk serious breaches of fundamental rights and freedoms under the human rights treaties by which Australia is bound.

It is eight months since the Houston panel reported on asylum seekers and the federal government subsequently re-established third-country processing and adopted the legally meaningless "no advantage" policy.

Yet asylum seekers continue to arrive in Australia – 13,500 since August 13 last year and more than 2000 last month. Though these are small numbers compared with most countries, they are high for Australia.

And while the April ministerial meeting under the Bali Process was successful in promoting regional co-operation to stop people smuggling and human trafficking, sadly the plight of asylum seekers – the victims of these crimes – remains unresolved.

Australia has a sovereign right to determine its migration policy and to seek to prevent the tragic loss of life at sea when asylum seekers try to reach our shores.

But do we have the balance right when thousands of asylum seekers who have arrived since August are detained in wire compounds – including unaccompanied minors and families with children – without judicial oversight of the arbitrariness of their detention, and without processing their refugee claims?

In my view we have not struck an acceptable balance under international law and we urgently need to revise our practices, both to meet human rights standards and to ensure that we do not cause further harm to people fleeing desperate circumstances.

About 650 asylum seekers – mostly adult men but also families with children – have been transferred to Nauru and Manus Island, where some have been detained for about six months. The Australian Human Rights Commission has raised serious concerns about this practice, because it risks numerous breaches of people's human rights.

While international law does not necessarily prohibit regional processing of asylum seekers' claims, adequate safeguards must be in place. In particular, people must not be at risk of being returned to a situation where their life or freedom would be threatened or where they would be in danger of suffering torture or other ill treatment.

Living conditions must be humane and an effective regime must be in place for prompt processing of refugee claims.

It has been reported that conditions on Manus Island and Nauru do not meet these requirements. In our view no further transfers should take place.

While public and media concern has largely focused on the transfer of asylum seekers offshore, less well known is the plight of about 5000 asylum seekers held in detention throughout Australia. Some have been held for years, with little prospect of release.

These people have committed no criminal offence, no charges have been laid against them and they have had no trial under the law.

Australia's system of mandatory detention of asylum seekers without time limits has been found on numerous occasions to breach Australia's international obligations not to subject anyone to arbitrary detention.

About 900 children who seek asylum, some alone and some with their families, are held in immigration detention in Australia. About 550 more are living in the much more humane option of community detention and about 30 are detained on Manus Island.

The United Nations Convention on the Rights of the Child, to which Australia is a party, says children should be detained only as a last resort and then only for the shortest period. Australia is also bound to give the best interests of the child primary consideration.

Yet some children have been detained for many months and a few have been born in detention. The detention of unaccompanied minors is particularly troubling, and cannot be claimed to meet their best interests. For children on Manus Island, the application of the "no advantage" policy could mean they will remain in remote detention for years.

Most people may not be aware that processing of refugee claims has been halted for thousands of asylum seekers, including many who remain in closed detention, simply because they arrived after the adoption of the "no advantage" policy on August 13 last year.

Australia's "freeze" on processing has led to a backlog that may not be dealt with for years, leaving people in limbo without any sense of what lies before them or when they might receive protection and a chance to establish a safe and productive life for themselves and their family members.

A failure to assess refugee claims in a reasonable time is inconsistent with international law. The suspension of processing is all the more troubling given that, in the past, about 90 per cent of claimants have proved to be genuine refugees.

It is time to take stock of our asylum seeker policy through refreshed thinking and positive political leadership that ensures, at the very least, that we act consistently with internationally accepted human rights standards and the rule of law.