Policy overboard

KEVIN Rudd's reforms to refugee policy have exceeded election expectations and pledges, with the latest being this week's softening of mandatory detention as devised and implemented by the Keating and Howard governments.

This break from the past is a significant reassessment of Labor values. It constitutes not just a rejection of the Howard cabinet's punitive approach but shows the Rudd cabinet has rejected the Keating government's outlook. There is one burning question: Is this new outlook sustainable? The answer is that nobody knows.

The reform of detention testifies to the transformed political climate since 2001, with few boat arrivals in recent years. But Immigration Minister Chris Evans knows that more boats will come and this is Australia's permanent challenge. In an interview with The Australian, he argued the new detention policy is geared to this reality.

Acting on a submission from Evans a couple of months ago, cabinet struck a new balance for Australia on morality and deterrence. Evans feels confident enough to attack John Howard on the policy that won him the 2001 election, a remarkable change.

"This is part of ending one of the legacies of the Howard era," he said. "This change is important in terms of morality, policy and our international reputation. The lesson of the past 15 to 20 years is that we haven't treated asylum-seekers with the humanity that we should have, and this is about strong border control management while maintaining our humanity."

His reference to the past 15 to 20 years is no mistake. Evans is talking about the Paul Keating and Howard eras. The policy initiated by the Keating government in 1992 that unauthorised arrivals in Australia without a valid visa should be detained until their status has been clarified, has been abolished. It is a core reversal.

This is the third reform in asylum-seeker policy since the 2007 election. The Rudd Government had previously abolished the final remnants of the Pacific solution by closing detention centres on Nauru and Manus Island. It abolished temporary protection visas, a Howard government initiative under which boat arrivals found to be refugees were given temporary as opposed to permanent residence.

Now it has kept mandatory detention but transformed its meaning.

It is wrong to think the previous edifice has been swept away. One great pillar from Howard's policy remains: excision of islands from the migration zone, which means that any future boat arrivals at these islands (where most of them land) will fall outside Australia's established refugee jurisdiction and its court system. In addition, as Evans admits, detention is still mandatory.

Under Rudd's values, mandatory detention will become risk-based. It is a new approach that formalises the direction in which policy was evolving. People will be detained not because of their status but only if they pose a risk. The new principle, Evans says, is the presumption "that people will remain in the community while their immigration status is resolved". This breaks the Keating-Howard policy. What will be the immediate effect? The answer is not much. This is because there are few people in detention and no boat arrivals. In short, it is the perfect time to change policy.

Consider this week's reaction. The refugee lobby and its supporters offered two cheers and the Opposition delivered a half-hearted lament that the structure that delivered Howard his smashing 2001 election victory is being further dismantled. Nobody should be surprised. Asylum-seeker and refugee policy is contentious only when there are boats arriving. Without boats, it raises little emotion. However, the impact of this reform should not be underestimated.

At present there are 357 people in detention and only six are unauthorised boat arrivals. This is the lowest number overall since March 1997, the early days of Howard's government. Most of these people arrived lawfully and have overstayed their visas. The main impact of the decision is that some of them will be able to live in the community pending the final decision on their status.

But the policy has implications for the next inevitable surge of unauthorised boatpeople to Australia. Mandatory detention will prevail only as long as required to assess such people for health, identity and security. Provided they are not deemed to pose a risk, they will not be detained. This destroys the idea of permanent detention as deterrent.

Will this lead to an increase in such people living in the Australian community? Probably not. This is because future boat arrivals will land in the excised islands. They will be sent to the Christmas Island detention centre for health, identity and security checks. Then they will be released into the Christmas Island community pending final status determination. No children will be detained.

This reform is reinforced by a related administrative change: the onus will rest with the immigration department to justify any decision to keep people in detention. The justification for ongoing detention will be limited to security risks and unlawful non-citizens who pose a risk to the community or who repeatedly breach visa conditions.

A detainee's case will be reviewed by a departmental official every three months. Evans has asked his department to review all 357 people now in detention cases. Evans says the new policy means "people will be detained only if the need is established". Detention ceases to be a catch-all first response but becomes a selective fall-back option. Evans sells the policy on humane grounds, and there is no doubt it is more humane. But Evans knows the trap for Labor: the risk that if the boats return the blame will be sheeted to Labor for softening Howard's policy. As soon as the boats return a fickle public opinion will be roused and will ask who is responsible for this.

This is the reason Rudd's decision transcends a mere morality statement. It goes to the heart of deterrence and workable policy.

Labor repudiates the Howard philosophy that an aggressive whole-of-government response was needed to dissuade the boats. In Labor's view deterrence is not achieved by the Pacific solution, temporary protection visas or mandatory detention.

This is a very big call. But it was integral to Evans's cabinet submission. Labor argues, with history on its side, that deterrence lies in regional agreements, notably with Indonesia.

This is what the Howard government lacked in 2001. It is why Evans is heading to Indonesia next week.

A guide to Evans's thinking lies in his review of 72 long-term detention cases. He concluded that 31 should not have been detained and they are now getting visas, 17 are subject to legal processes and 24 are slated for deportation.

Labor will keep the new Christmas Island detention centre, built at a cost of $400 million, a full $100 million over budget. It has a capacity of only 400 with a surge capacity of 800, but this is insufficient if the boats return in force.

Rudd, like Howard, knows he must champion strong border security. No Australian government can look weak on this front. The test is whether Rudd and Evans have got the balance right, and that test lies sometime in the indefinite future.