Detention Debt: Not Drowning, Waiving

The story in Crikey about Kasian Wililo, an Australian resident being chased for a debt of over $161 000 for the cost of keeping him in immigration detention for years, has drawn a lot of public comment.

Apart from being a major injustice, this case also highlights a key test for both for the government and the opposition. Indeed, the government’s promised reforms to our immigration detention practices will be a test for Australia as a whole of whether we are finally capable of having a rational reality-based debate about sound public policy towards asylum seekers, or whether we are still stuck in the hysterical framework which has characterized much political debate on this topic over the past 20 years.

Immigration Minister Senator Chris Evans announced the government’s new approach towards detention back in July. I wrote at the time that it was a significant and positive move, despite some cautious language which was understandable given the past politics of the issue.  But the overall thrust of the announcement was unmistakably trying to move the debate forward and look at immigration detention on the basis of sound public administration principles, as well as basic human rights and traditional notions of due process.

But of course what matters is not what’s in the announcement, but what’s in the detail of the implementation.  While mandatory detention should be disappearing in all but name, the formal changes that are made to the law will be crucial in determining whether or not it can reappear at a later time under another guise.

The Wililo case also reminds us that detention will still continue in some circumstances, albeit hopefully for much shorter time frames. Changing the punitive and inefficient arrangements that charge people for the cost of locking them up is one thing that has to change.

Responding to the Wililo case, Chris Evans was quoted in Crikey as saying

“Any changes to the detention debt framework will be part of the Government’s broad strategic overhaul of immigration detention policy.”

So far, the announced policy is silent on this particular issue.  But if the spirit of Evans’ announcement is to be followed, we will stop treating immigration detainees, who have never been charged, let alone convicted of any offence, as having fewer rights than convicted criminals.

Evans also said “I am aware of the difficult circumstances and inequities that the detention debt policy sometimes produces. I have acknowledged publicly that the detention debt system is in need of overhaul and have sought comprehensive advice on this complex issue from the Department.”

The “inequity” of the detention debt policy is hardwired into the Migration Act and government policy. The idea that a person who has never been charged, let alone convicted, of any offence could be required to pay any sort of amount, let alone such a massive sum, for the cost of locking them up for years is an affront to basic notions of justice.

There is an opportunity here for the Coalition also, to show that they are capable of moving forward from the Hansonite atmospherics of the past.  Sharman Stone’s promotion from shadow junior environment and Indigenous affairs minister to shadow immigration minister didn’t receive much attention. Indeed there is an impression that immigration has slipped a long way down the political priority list over the last year.

In some ways this is a good thing. The legacy of cases such as Cornelia Rau, Vivienne Solon and Mohamad Haneef, and the growing compensation bills that taxpayers are paying for the human harm caused by unaccountable administration of our migration laws show that fear mongering has its limits as a vote winner.

However, immigration is an incredibly important area of public policy and deserves a high priority. What it doesn’t deserve is for political and policy debate in the area to be derailed by exaggeration and fear-mongering, where vulnerable people are kicked around as political footballs, and basic legal rights are seen as optional extras.

Sharman Stone doesn’t have to repudiate every aspect of the Howard era policy in this area. She can point to the (admittedly belated and insufficient) ‘culture change’ put in place by the past government and examine the detention changes from the perspective of basic principles of accountability of government officials and good public administration.  Immigration detention should no longer be a legal shadowland where ministers and government officials can operate outside normal realms of accountability and good governance practices.

Kasian Wililo may well end up getting his debt waived.  I would be surprised (and appalled) if this didn’t happen. But he - and his ‘working family’ – should not be put through this situation in the first.  Putting an end to the ability of the Migration Act to keep automatically generating ludicrous injustices like this, with the requisite public outcries being continually required to get them overturned, should be the core goal of migration reform.

I am sure they can still find plenty of other things to disagree on in the immigration area, but it shouldn’t be beyond both Labor and the Coalition to sign up to this simple guiding principle.