Time for an amnesty - Page 2
From Griffith REVIEW Edition 10: Family Politics
© Copyright Griffith University & the author.
Written by Ann Coombs
WHAT OF AUSTRALIAN-BORN CHILDREN WHO DO NOT HAVE CITIZENSHIP? Before 1986, any child born here was considered Australian (apart from the children of foreign diplomats). But since then a child is only Australian if at least one parent is a citizen or a permanent resident. A paper published by the Parliamentary Research Library in 2003 said: "It appears to be beyond the powers of Parliament and the Commonwealth to treat locally born children as ‘aliens' without an alteration to the Constitution." Yet that is precisely what has occurred in recent times, when Australian-born children have been imprisoned in detention centres.
Six-year-old Janie Whang and her older brother, Ian, were removed from Stanmore Public School in Sydney in March by immigration officers and taken to Villawood detention centre. Their mother had been picked up at Sydney Airport while trying to re-enter the country. The children had been staying with an aunt while their mother was overseas. The mother and children came close to being deported, then spent two months in detention before being released.
After her release, Janie Whang was one of sixteen children whose case was taken to the Federal Court in August. They sought the right to citizenship because they were born in Australia. Their appeal was rejected. A similar case went to the High Court last year and also failed.
Having been born here they cannot be aliens, but nor are they citizens. They are in effect "naturally born subjects". Under an amendment made to the Citizenship Act in 1986, such children automatically become citizens on their tenth birthday. But that may be too late for some – they may already have been deported.
Sereana Naikelekele has lived here for more than sixteen years, borne five children here, yet faces deportation to Fiji. She may be separated from three of her five children. She was in detention with two of the children but released earlier this year, on a bridging visa, which means she can't work. The 1986 amendment is the reason Naikelekele's five children fall into three different categories: her two eldest children are Australian because they have passed their tenth birthdays; the middle two are non-citizens – born here but under ten; and the youngest is Australian because the father is Australian.
The status of Australian-born children is important for another reason. If a person is neither an alien nor an immigrant, then the detention provisions of the Migration Act do not apply. In other words, Australian-born children like Janie Whang and Naikelekele's two children cannot be locked up without a court order. This situation has repeatedly been ignored by the department. The lack of judicial review of the department's activities is one of the issues that have been highlighted by the Rau and Alvarez Solon cases. Departmental officers, scathingly criticised in the Palmer Report, have taken an open-slather approach to detaining and deporting people, apparently ignorant of the law under which they operate.
THE DEPARTMENT OF IMMIGRATION'S POWERS TO ENTER, SEARCH AND DETAIN exceed those of the police or ASIO. The department can lock people up without having to consult a magistrate or appeal for a court order. Where a department official reasonably suspects that a person is an unlawful non-citizen, they are obliged, under the Migration Act, to detain that person and to remove them from the country as soon as possible.
Up until the 1990s, no one could be deported unless they went before a court. And it was up to the Commonwealth to prove that the deportation was legitimate. No such scrutiny happens now. Since 2001, no deportation orders have been issued. The terminology "deportation" is not even used by the department because that implies a judicial order. What the government does these days is "removal".
In recent years, the number of forced removals has leapt to more than 10,000 a year. This is a far higher rate of removal, relative to population, than in comparable Western countries. So what are those other countries doing? Some are beginning to follow Australia's lead – cracking down hard on "illegals", tightening asylum provisions. But not all are going down the hardline path. Earlier this year, Spain announced a three-month amnesty, allowing illegal workers to come out of the woodwork and become legal members of Spanish society. About 700,000 workers accepted the amnesty, adding up to about one million people when family members were included. (No, the Spanish government didn't deport their families.) Spain has not collapsed as a result of its amnesty. The Spanish Government considers it a great success, despite opposition fears that it might encourage further unlawful arrivals.
During the 1990s, the United States granted amnesty to many hundreds of thousands of people. Another amnesty has been proposed by President Bush – the business community likes the idea of "regularising" illegal labour.
An amnesty is also a way of acknowledging the complex reality of modern migration. People don't always stay where they were born. And that is not necessarily a bad thing. An amnesty recognises that people are in the country, that they are working, studying, raising families. That they have lives. It is a way of allowing them to be visible, to stop hiding, to pay taxes and vote.
It is time to consider such an amnesty here. The Department of Immigration estimates that there are more than 50,000 visa overstayers. Each year about 10,000 are deported. But more than 30 per cent of overstayers have been here more than ten years. These figures do not include the tens of thousands of people who are working here even though their temporary resident visas prohibit it. Even so, the numbers are small compared with other countries. An amnesty might bring a lot more people to the surface. But at least it would be simple and avoid – or at least streamline – the labyrinthine red tape of the Immigration Department. And it would give people the chance to get on with their lives.
At the very least we could, when considering the cases of visa overstayers, take more account of their ties in Australia: to families, communities, professions, or simply take into account the fact they have lived here for a long time. We could consider their calibre as citizens: have they contributed to the economy, the community, to their families' upkeep? Not all these things are easy to judge, but some are. Have they been law-abiding? Have they bought houses? Have they shown in manifold ways that they wish to make lives here? Until this year, young people who had spent a substantial part of their lives in Australia could apply for a "close-ties visa" when they turned eighteen, and thus stay here permanently, eventually becoming citizens. But that form of visa was summarily abolished in July.
We used to be told, during the golden days of multiculturalism, that there were many types of Australians. Well, it's time we recognised that there are many ways to become Australian. We've been good at some aspects of migration; have taken people from all over the world who do it the right way. We've had ten-pound Poms and family reunion and refugees rescued from appalling refugee camps. We've been good at providing categories and forms to fill in, at processing and categorising. Maybe that goes back to our convict past. But we've been less good at recognising that trying to live a life is a complicated, messy, sometimes desperate business for a lot of people; that it is not always possible to do things the right way. That doesn't mean they won't make good citizens. That they don't deserve a fair go. That we can treat them as lesser human beings.
A more flexible attitude to a few thousand families won't hurt the rest of us at all. And it will make an enormous difference to them. It might mean that Sereana Naikelekele can stay in the country where she has lived for nearly seventeen years with all five of her children. Is that so very much to ask? ♦