Piper, Margaret --- "Operation Safe Haven: a New Era in Temporary Protection" [1999] ALRCRefJl 25; (1999) 75 Australian Law Reform Commission Reform Journal 33

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Reform Issue 75 Spring 1999

This article appeared on pages 33 – 35 of the original journal.

Operation Safe Haven: a new era in temporary protection

By Margaret Piper*

While most Australians were recovering from their Easter chocolate overdose or basking in the joys of a day off work, for some Easter Monday this year heralded the start of a new era in Australia's humanitarian response to refugees.

Throughout that day and the next, debate on whether or not Australia should bring Kosovar refugees to Australia gained momentum. By late Tuesday, the Cabinet had made its decision – Australia was to offer temporary haven to up to 4,000 refugees who had fled from Kosovo into the former Yugoslav Republic of Macedonia. The largest single humanitarian exercise engaged in by this country in living memory was underway and by the end of that week planning was well advanced.

Temporary protection is not a new concept in Australia’s humanitarian response. It has been used before, albeit sparingly, and not without contention. Over the years we have seen a number of temporary visas granted to people already in Australia who, for one reason or another, were unable to return to their homelands. Limited duration (renewable) temporary visas have been issued for people from strife torn countries such as Lebanon and Sri Lanka, and more recently from former Yugoslavia. Then, as a result of the tragic events in Tiananmen Square, four-year temporary visas were granted to those here at the time, with these later being converted to permanent visas. For a while in the early 1990s, Australia also toyed with granting temporary visas to those granted refugee status and later created special temporary visa classes for nationals of certain countries, including China, Iraq, Lebanon and Sri Lanka, who had arrived lawfully before specified dates.

In each of the above scenarios those eligible for the visas were present in Australia (either on another form of temporary visa or as overstayers). The granting of the visas served many practical purposes, not the least being to regularise the status of people whose return would be difficult and to reduce pressure on refugee status determination procedures.

The creation of a visa class providing temporary protection to the Kosovars in April 1999 and the instigation of Operation Safe Haven took the concept of temporary protection to a new league. It differed from all previous applications in many fundamental ways:

• the visas were granted to people outside Australia, indeed not even in our region;

• the Australian government arranged for and funded their travel to Australia;

• all their basic needs are being provided for by the federal government while they are in Australia, as long as they reside in the haven sites;

• the provision of these needs involved mobilisation of a large number of state and federal government agencies, together with non-government organisations and volunteers, in some cases under state disaster plans;

• the refugees are not able to access community services (such as Medicare) and they have only limited work rights; and

• there are significant restrictions on the Kosovars ability to change their status while in Australia, including applying for refugee status.

Like the earlier forms of temporary protection Operation Safe Haven and the legislative framework that underpinned it was not without contention. The initial opposition centred on the movement of people away from their region. Wasn’t this merely playing into Slobodan Milosevic’s hands? Wasn’t this helping to rid the region of the ethnic Albanians? What about the people themselves? Australia is the end of the world for most Europeans and the psychological dislocation could be profound. Why take them so far? Why not spend a fraction of the money and support them in the region? And then of course there is the big question: Why Kosovars and not Africans, Afghans or any one of dozens of other displaced groups?

These are legitimate questions, the answers to which can best be understood when you look at the very particular circumstances that compelled the United Nations High Commissioner for Refugees to ask not just Australia but almost 30 other countries to participate in an evacuation exercise, the like of which had never been seen before. The key lay in Macedonia, one of the republics that broke away from Yugoslavia. Macedonia, like its former sibling, Bosnia, is an ethnically divided region teetering on the brink of instability, with the situation being complicated by the existence of powerful and divided neighbours. It was feared that the sudden influx of a quarter of a million ethnic Albanians might tip the scales and result in civil war. To prevent this from occurring, the relocation exercise was conceived, with much the same objective as when you let the steam out of a pressure cooker to prevent it from exploding.

_{So if we are to accept the rationale for the evacuation, how then did we as a nation handle the challenge? This can be answered from a number of perspectives both technical and practical.}

_{The decision to participate in the international evacuation of the Kosovars required speedy enactment of legislation that not only created the temporary visa category, but also set in place the much broader framework of rights and entitlements for the evacuees under Operation Safe Haven. Much of this was both practical and uncontentious, but there were certain provisions that raised many concerns.}

Of greatest significance was the legislative preclusion on the Kosovars applying for refugee status in Australia. While it is acknowledged that the object of the exercise was temporary protection and those involved knew of this and had been made aware of other options for permanent resettlement, there were some real problems with the blanket exclusion. The Kosovars were selected, and many travelled, before the cessation of the NATO offensive and consequently before there was any understanding of the ‘shape’ of post-conflict Kosovo and who could go back and who could not. People who came to Australia hoping to return to their homes have found that because of their ethnicity, for instance, they are unable to do so in the current climate. That such a scenario would arise was predictable and Australia is bound by our international obligations to ensure that refugees with a well-founded fear of persecution are not returned against their will. Simply inserting a ministerial discretion clause in the legislation is neither sufficient to give certainty that solutions will be found for those unable to return, nor consistent with the way this issue has been dealt with by other receiving countries. We have not yet got to the stage where this is an issue - there is still a long list of Kosovars who are anxious to return as soon as possible - but it will become an issue, possibly in the second quarter of 2000, when all of the willing returnees have left. This will be the time for close scrutiny to ensure that the necessary safety nets really are in place.

On a much more immediate level, the decision to concentrate all service delivery to the Kosovars at eight Safe Haven sites around the country, and the initial denial of work rights,¹ had a mixed reception. On the one hand it is commendable that the federal government sought to meet the Kosovars’ basic needs for food, shelter, clothing and health care, and it is certainly much easier and more cost effective to do this in a centralised way. On the other, however, this model of centralised delivery can cause problems too, especially if the stay becomes extended. Despite the very best of intentions of those working at the havens, they are, by necessity, being run as institutions. Family dynamics are affected and people become dependent. Compounding this is boredom and the sense of limbo felt by the people. The introduction of work rights has eased some of this tension, especially for the males whose identity is very much shaped by their role as breadwinner, but the problem still exists. The question could legitimately be asked, however, whether accommodating the Kosovars in other ways, such as billeting as was done in the United States, would not have resulted in different but equally significant problems.

There remains one other issue that has to be faced when examining Australia’s response. Have we, by providing a high level of assistance to this group of refugees, created a precedent that cannot be matched? What if there were to be a regional emergency that saw the dislocation of many times the number of Kosovars we are now assisting? In all likelihood the Safe Haven model could not be replicated. Would this not lead to allegations that we have one standard for Europeans and another for our neighbours? Any practical reasons for the discrepancy would be overshadowed by suspicions of racism.

Despite this conundrum, and the various concerns about the policy and its application, there are certain undeniable facts:

• Australia did act as a responsible member of the international community by answering the UN High Commissioner’s call for assistance;

• the Australian government has provided a high level of support for the Kosovars and considerable efforts have been made to accommodate their needs; and

• the Australian people have welcomed the Kosovars with warmth and generosity in a way that allays many of the fears generated from the apparent rise of One Nation.²

As previously mentioned Operation Safe Haven is the largest humanitarian exercise ever engaged in by this country. Australia has shown, once again, that when it comes to the crunch, it can rise to the occasion and help not only our own but also others in need of assistance.

*Margaret Piper is the Executive Director of the Refugee Council of Australia.

Endnotes

1. Kosovars were granted limited work rights (up to 20 hours per week) in July 1999.

2. The one serious glitch in the warm response centred on the family who refused to be accommodated in the Singleton haven. To a large extent, the outcry surrounding this was generated by media irresponsibility and a naive and regrettable attempt to politicise an issue that should have been above politics.