We set out below the arguments against the principal elements of the present refugee regime. Please feel free to copy this document and send it to anone who needs to be persuaded that the present regime is wrong.

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Open doors?

We are not advocating a policy of open doors for all. People who have no claim to be here should be removed to a country which will receive them. People who arrive seeking asylum should have their claim for asylum assessed properly. However we believe that neither group should be incarcerated except:

(a) during initial security checks; or

(b) if they are genuinely assessed as posing an unacceptable risk if placed in the community; or

(c) if they commit a crime in Australia.

Indefinite mandatory detention?

No civilized country should incarcerate people indefinitely other than in the most exceptional circumstances. Some years ago there was a tremendous public debate in Victoria about a man called Gary David. Gary David was a self-mutilator who had made a number of serious threats to harm other people. However, although he was mentally unstable and obviously psychotic, he had not committed any crime. The Victorian Parliament passed a law which would enable it to jail Gary David indefinitely for so long as a Judge considered that he should be kept out of the community. The debate raged for a long time. Not one of the asylum seekers presents anything like the risk which Gary David represented, yet asylum seekers are incarcerated indefinitely without even the possibility of a court saying whether or not they should be. 

This is the core issue: indefinite mandatory detention, without judicial order. People awaiting trial on all but the most serious crimes are entitled to bail. People awaiting trial on very serious charges are likely to get bail if the delay to trial exceeds 6 months. People who have been convicted of crimes and have served jail sentences are released on parole before the end of their sentence. There are many simple and effective systems available which ensure that a person who is released into the community will present themselves to the authorities when required. 

Mandatory detention of innocent people is wrong. The wrong is redoubled when the period of detention is indefinite, and it is made even worse when the conditions are as cruel as they are. The wrong is compounded when the purpose of detention is to deter other people from seeking asylum in Australia. People who deny that these things are a moral wrong can only be understood in one of two ways:

(a) they a different moral framework, which tolerates punishing the innocent to achieve political objectives; or

(b) they regard asylum seekers as a kind of lesser mortal, to whom ordinary moral principles do not apply.

That is a view which we reject utterly and which any lawyer should reject utterly. 

Refugees and migration policy

A lot of people confuse the refugee problem with our migration policy. The two issues are quite separate. Australia takes approximately 90,000-100,000 migrants per year. We admit migrants according to social and demographic considerations. We have no problem with the notion that we select migrants according to our own wishes. However we admit refugees because:

(a) their circumstances demand immediate help, and

(b) we have undertaken to do so, by signing the Refugees Convention

People smugglers

Many people point to the people smugglers and say what a terrible trade this is. True. We know that people smugglers accept money for what they do. But the fact that a refugee has the wherewithal to pay a people smuggler says nothing at all about their desperation or their refugee status. Many Jewish refugees were able to escape Germany before World War 2 because they could afford to. What is the alternative? Should they instead have gone to the gas chambers with full wallets?

Use of Court resources

Some people complain about the use of court resources in connection with refugee problems. We believe fervently in the rule of law. Governments are not beyond the law. The Federal Court in the Tampa case made specific mention of the importance and difficulty of the questions raised by that litigation. Some people think the Tampa case was a waste of public resources: but people should never underestimate the importance of the rule of law. One day their life or liberty may depend on it.