Australia, refugees and the rights of NZ-born workers

I was glad to be part of the protests against the Australian consulate in Auckland over their government’s policies that have led to the indefinite detention of asylum seekers and Australian residents born in New Zealand in what are in effect concentration camps.

Australia joins a select few countries that claim to be democracies with Indefinite detention without trial for a special category of people. This includes the USA with its prisoners in Guantanamo Bay and Israel in relation to Palestinians in the occupied territories.

The Australian government has changed the laws around refugees who arrive by sea to allow for their detention and permanent exclusion from Australia.

Since2001, this policy has involved the construction of special detention facilities in Australia (including remote offshore islands like Christmas Island) and overseas in Nauru, and Manus Island in Papua New Guinea. The Manus and Nauru camps were closed in 2008 and then reopened again in 2012.

As at 30 June 2015 there were 655 asylum seekers (including 88 children) in the ‘regional processing centre’ on Nauru, and 945 adult male asylum seekers in the centre on Manus Island.

This policy been condemned around the world as being in violation of UN refugee conventions. Conditions are so bad that major prison revolts have occurred in Nauru in July 2013 resulting in $60 million in damage, and another in Manus in 2014.

Over 90 percent of the cases of those held in these processing centres have valid refugee claims.

The average time spent in detention has increased to 417 days with 25% over 730 days.

The Australian Human Rights Commission reported concern for the welfare of detainees.

Seeking asylum in Australia is not illegal. In fact, it is a basic human right. All people are entitled to protection of their human rights, including the right to seek asylum, regardless of how or where they arrive in Australia.

Parliamentary Joint Committee on Human Rights’ Report

In June 2013 the Australian Parliamentary Joint Committee on Human Rights expressed concern about the ‘absence of legally-binding requirements relating to minimum conditions in regional processing facilities’ in Nauru and on Manus Island. The Committee considered that the Australian Government had not demonstrated that the conditions were consistent with the provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, theConvention on the Rights of the Child and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The Committee found that the cumulative effect of the third country processing arrangements was likely to have a significant impact on the physical and mental health of asylum seekers, contrary to the right to health, and the prohibition against degrading treatment.

The Parliamentary Joint Committee on Human Rights’ full report is available here.

National Inquiry into Children in Immigration Detention 2014

In 2014 the Commission conducted the National Inquiry into Children in Immigration Detention. The Commission made the following findings regarding Australia’s transfer of child asylum seekers to Nauru:

• children on Nauru are suffering from extreme levels of physical, emotional, psychological and developmental distress
• the inevitable and foreseeable consequence of Australia’s transfer of children to Nauru is that they would be detained in breach of article 37(b) of the Convention on the Rights of the Child
• Australia transferred children to Nauru regardless of whether this was in their best interests, in breach of article 3(1) of the Convention on the Rights of the Child.

In addition the Commission raised serious concerns that the conditions in which children are detained on Nauru are in breach of the Convention on the Rights of the Child, articles 16(1), 19(1), 20(1), 24(1), 27(1), 27(3), 28, 31, 34 and 37(a).

Moss Review into recent allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru

In October 2014 the Minister for Immigration and Border Protection announced a review by Philip Moss into allegations relating to conditions and circumstances at the Centre in Nauru.

The Moss Review confirmed many of the Commission’s concerns about the safety of the children in the Centre in Nauru. It found that ‘there were both reported and unreported allegations of sexual and other physical assault’ in relation to children. It also found that the ‘marquee accommodation’ in Nauru presents ‘significant personal safety and privacy issues’ and the ‘lack of privacy may be a factor in the sexualised behaviours of some children in the Centre through observing adult sexual activity.’

The Moss Review also found that between October 2013 and October 2014, 17 children engaged in self-harm (including one attempted hanging). The youngest child involved in self-harm was an 11 year old.

New Zealanders in Australia

Former residents of New Zealand, some of whom who have lived in Australia since they were infants and have families there, are now being caught up in this detention regime established for so-called “maritime arrivals” because they too lack legal residence status.

Most governments have powers to cancel residence visas for non-citizens for serious offences. Australia, however, has made this policy mandatory for a very wide range of what is relatively minor criminal offending.

Under the Migration Amendment (Character and General Visa Cancellation) Bill 2014, it’s now mandatory to send people back to their countries of birth, after being sentenced to terms that total 12 months or more. But the 12 months can be cumulative over your life. The character test can also be applied if you associate with criminals (ie belong to a legal bikie gang) and you can lose your residency rights. You can fail the character test if “your past and present criminal or general conduct shows that you are not of good character”. You will als fail the character test if you commit any offence, no matter how minor, while in Immigration custody.

If you lose your visa then you must be detained awaiting deportation under mandatory detention rules brought in the mid-1990s. Vice reports the impact:

In 2011, the United Nations Human Rights Committee condemned Australia’s practice of deporting non-citizens as a violation of international law. This was in relation to the 2006 deportation of Stefan Nystrom, who’d arrived in the country three weeks after being born and was deported to Sweden at the age of 33. Nystrom had a checkered past, having served numerous terms in Australian prisons. When his visa was canceled, a non-citizen’s accumulated sentences had to add up to two or more years to warrant deportation.

Since the December amendments to the Migration Act, mandatory cancellations of visas have skyrocketed. Figures provided by DIBP show that in the year 2014-15 there were 580 cancellations, compared with 76 in 2013-14, an increase of 660 percent. In July of this year, there were 116 mandatory cancellations, compared with 90 in the month prior.

While these changes don’t specifically target New Zealanders, they do seem to be having a disproportionate effect on them. At the end of July this year, 166 New Zealanders were in immigration detention centers, compared with a total of 52 deported for the whole of 2014. DIBP reports show that at the end of March, New Zealanders made up 4.5 percent of people in immigration detention and this figure rose to 8.2 percent by July. Whereas prior to this, Kiwis did not make up a significant percentage and were classified under the category of “Other.”

5000 NZ-born NZ residents have served prison sentences in Australia. 1500 are currently in prison. Around 200 are currently detained awaiting deportation.

There are 650,000 people born in New Zealand now living in Australia. This is a consequence of an almost permanent net drain of Kiwis to Australia of about 20,000 a year on average for the last three decades.

Virtually since both countries foundation there has been free travel and the right to work in each others country. This included equal access to welfare, health and education.

However since 2001, NZ residents moving to Australia can access only a very limited range of entitlements and have found it almost impossible to transition from having a work permit to permanent residence or citizenship. The number granted permanent residence from June 2006 to May 2012 totalled 11,800 – less than ten percent the number of those who arrived from New Zealand.

The reason it is difficult is that despite the fact the New Zealanders may have been living and working in Australia for decades on work permits, they cannot achieve the points required for permanent residence used for those applying from outside Australia which is weighted towards education and wealth. Australia claims this does not discriminate as the same rule is applied for a builders laborer from New Zealand as is applied to a business person from China.

This affects about 250,000 NZ-born Australian residents. They can access Medicare and pre-tertiary education. But, they can’t get unemployment benefits, subsidies for tertiary education, transport subsidies, disability insurance, housing assistance, domestic violence help. This list goes on and on. They also can’t vote. Children born to non-residents are also non-residents until their 10^th birthday and can prove they have been ordinarily resident for those ten years.

Because, this 250,000 has no residency rights in the first place there are almost no ways to appeal.

The 2001 law change followed a period of racist and anti-immigrant propaganda around New Zealanders accessing welfare in Australia and living the high life. However, tax paid by Kiwi’s vastly exceeded any benefits claimed. Moreover New Zealand-born residents have a significantly higher rate of workforce participation (78%) than Australian-born residents (68%). There was also a racist fear that New Zealand was becoming a back door entry for Pacific Islanders and Hong Kong Chinese to Australia.

It certainly seems that Maori and Pacifica residents in Australia are overwhelmingly those being targetted for deportation under the new character test.

Because many Maori and Pacifica families are unable to afford to pay the fees to send their children to college or university the cycles of deprivation and poverty that result becomes generational.

A campaign has started in Australia to end this second class status applied to Kiwis and win equal rights for all.

FairGo4All and Oz Kiwi have been formed by Kiwis in Australia to fight for their rights. 40,000 signed a petition presented in June.

This has inspired unions and the broader labour movement to step up. The National Union of Workers has been taking the lead. It is obvious to any worker on the job that policies that discriminate against their co-workers in this way just isn’t right. Even the recent Australian Labor Party conference adopted policy for equal rights for Kiwis despite having a rotten policy on refugee rights.

This struggle will only intensify in coming years. The lessons of both the refugee struggle for human rights and that of the second-class citizenship imposed on Kiwi-born residents in Australia is that allowing any sector of humanity to be turned into some sort of “other” who is less than we are is a dangerous path to undermining all our rights.

The words of Pastor Niemöller are more relevant now than ever. Martin Niemöller (1892–1984) was a prominent Protestant pastor who emerged as an outspoken public foe of Adolf Hitler and spent the last seven years of Nazi rule in concentration camps.

First they came for the Socialists, and I did not speak out—

Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out—

Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—

Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

Solidarity is and must remain the watchword of the labour movement if we are to succeed.