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    An image of the Bowral Memorial Town Hall, and Fr Frank Brennan 'having a coffee' during a conference

Developing Just Refugee Policies in Australia:

Local, National and International Concerns

A Lecture by Father Frank Brennan SJ AO

Delivered at the Southern Highlands Rural Australians for Refugees Public Meeting

Sunday August 25th
Bowral Memorial Hall, Bowral

Related:

Frank Brennan SJ: Tampering with Asylum3 November 2003: Frank Brennan's book: Tampering with Asylum - With the Howard Government's revelation that 90% of the unauthorised boat arrivals in recent years have been proved to be refugees, it is timely to reassess the harsh measures instituted to process these people who were labelled as unlawful queue jumpers. Brennan does so in his new book.

8 November 2003: Frank Brennan's Lecture: Tampering with Asylum - "Given that Australia has the advantage of geographic isolation, I ask my government, why don't we try to be just a little more decent rather than less decent than other countries with the same living standards when it comes to our treatment of those who arrive (whether with or without a visa) invoking our protection obligations?"

Our search one year after Tampa is for the beginnings of a contemporary refugee policy which is workable, decent, affordable and efficient. The boats may have stopped coming for the moment, but this does not necessarily mean that our policy meets any of these descriptors. Refugee flows respond more to the push factors in the countries of persecution than to the pull factors in the countries of reception. The claim that there is a need for radical improvement in our policy balancing pull factors with the decent response demanded by the push factors will evoke ad hominem attacks from politicians and shrieks from radio shock jocks. So let's try and confine ourselves to the facts, seeking incremental changes to policy.

Contemporary Problems with Protecting Borders

Since the end of the Cold war, we have come to expect that there will be more conflicts in the world, producing refugees. When the balance of power was maintained between two power blocs, parties to a conflict and those fleeing the conflict would often be under the control of one of the major power blocs. Refugees were more readily grouped as "them" or "us" depending on which power bloc they were fleeing. All of them are now to be closely scrutinised. We now expect that there will be more inter-ethnic and inter-religious conflict in more fragile nation states. We also expect there will be more failing states unable to offer human rights protection to their citizens.

Since September 11, we also expect that there will be greater difficulty both in determining whether persons without valid travel documentation are a security risk and in moving some of these persons back to their home countries. For example, at the moment and for the foreseeable future, it is impossible for our government to move Iraqis or Palestinians anywhere else in the world unless they already have residential rights in some third country. [1]

One of the aspects of globalisation is that money and people are more mobile. Australia may be the end of the earth, but it is no longer inaccessible. Unauthorised movement from the third world to the first world, from insecurity to security, from persecution to protection is to be expected. Entrepreneurs, including criminal syndicates, are willing to cash in on the market for assisted passage.

Since 1989, we have had 259 boats turn up on our shores constituting the most recent wave of asylum seekers wanting access to Australia without a visa. 213 of those boats have come during the prime ministership of John Howard. 102 of them came (mostly from Indonesia) after our intervention in the East Timor conflict when we did the right and decent thing in the circumstances but then dressed it up as the action of a deputy sheriff taking the high moral ground and when the Indonesian presidency was in transition and some disarray. I have no doubt that some persons in authority in Indonesia thought they would test the waters of our superior morality by allowing or encouraging a few more boats to make the journey.As Indonesia is a lightly governed country with endemic corruption, it is unlikely that any Australian government could negotiate any agreement which would stop "people smuggling" completely. It is now a year since the Tampa affair and the Australian response to it, and no more boats having come in that time. The AFP has told the Senate that "there are currently 2,100 people in transit from various countries now in Indonesia who may be seeking to enter Australia". [2] These last 13 years, 13,475 unauthorised arrivals have come by boat - on average, 1,000 a year. But from 1999 until 2001, that number had quadrupled. [3]

At any one time there are said to be up to 20 million refugees and other persons of concern to UNHCR. There are about 37,000 off-shore asylum seekers who are on the books having indicated a desire to come to Australia. Australia takes up to 12,000 off-shore refugees or other humanitarian applicants a year. To some extent, our government seeks a migration outcome in choosing these successful applicants. It is misleading to claim that they are the ones who happen to be at the head of a queue of persons ranked according to greatest need. They are the lucky ones in a lottery where some connection with Australia or greater compatibility with Australia usually counts for something. [4]

The sovereignty of the nation state is morally justifiable only if the nation state discharges its primary obligation to protect the human rights and uphold the dignity of its citizens. Non-interference in the affairs of other States is morally justifiable only if the international community makes provision for the protection of the human rights of those persons who are persecuted by their own state either because the state authorities single out members of their group for persecution or because the authorities selectively fail to protect members of such groups from persecution by other non-state actors.

Since 1951, such protection has been best accorded by countries signing up to the Convention on refugees. Australia is a signatory - Indonesia is not. Papua New Guinea is a signatory, Nauru is not. Under the convention, we are not to force back those who rightly invoke our protection obligations. And we are not to punish them for having the temerity to turn up without a visa. This defect is the equivalent of not having a parking permit when you have entered the carpark while fleeing a bush fire. To equate bona fide asylum seekers with queue jumpers is to equate the bona fide bush fire victim with the carpark cheat who simply wants to avoid the permit fee while jumping the queue.

Much of our present government rhetoric is posited on the presumption that all boat people, even those who are refugees, are engaged in secondary movement for non-persecutory reasons. They are all assumed to be persons seeking a migration outcome, trying to jump the queue. That is also the underlying assumption in the legislation and policy directions. We now treat them as criminals until they can prove that they are refugees, locking them up as a deterrent, locking them up in the desert and sending a message to their countrymen.

Let's bear in mind two statistics when we consider our treatment of the latest round of boat people. Over the last three years, ASIO had checked 5,986 unauthorised arrivals to assess whether or not they constituted a direct or indirect threat to Australia and found that not one of those persons constituted such a threat. Of the 8,965 Afghan and Iraqi applicants for refugee status these last three financial years, 82% of them (7,330) were found to be refugees by the primary decision maker. So even before we get to any appeals process, it is clear that the overwhelming proportion of those turning up by boat have been refugees.

Even those countries which are not net migration countries have to do their part in assisting refugees providing them with safe haven until it is safe for them to be repatriated. In the long term the options for a refugee are repatriation to their home country when it is safe to return, integration into the nation state to which they fled seeking asylum or resettlement in a third country. With modern travel habits and ease of communication, the line becomes blurred between an asylum seeker's secondary movement from a country of first asylum and an asylum seeker's ongoing journey seeking a place of secure asylum for self and family dependents. Our government and our parliament thinks this blurred line can be straightened by precise legislation which would be interpreted by public servants and tribunal members spared any review by the courts.

Being an island continent nation, we do not share land boundaries with any other nation and we enjoy the splendour of our isolation. That isolation also feeds our fear of the other. The politics of fear has become a hallmark of Australian politics this last decade, and fear of the foreigner has always been part of the Australian story.

Having been involved in the Mabo native title exercise in 1993, the Wik debacle in 1998 and now the boat people saga of this last year, I have become used to our politicians thriving on or being paralysed by the politics of fear, depending which side of the political fence they find themselves. As with Mabo and Wik we will all emerge from this present fracas wondering what all the fuss was about. But this time we have been prepared to inflict substantial damage on some of the world's most despairing people in the cause of deterrence and border protection, wasting many taxpayers' dollars in the process. The fear is compounded by the "other" religion - Islam. It is also compounded by cultures which are so "other" such as those of Afghanistan and Iraq.

If democracy is about honouring the will of the people and protecting the rights and dignity of all, it is essential that our political leaders respond responsibly to people's fears rather than feeding those fears and that they resolve people's fears with policies which are faithful to the values of the people and to the integrity of the social institutions. Because of the electoral fervour and the talk back radio lather about the issue, we have not taken sufficient stock of the damage and cost being inflicted by the present policy. Our policy presumes that we can isolate Australia from these population flows which affect the rest of the world. We think we can stop or control the flow by sending a harsh message. We should rather manage the flow by keeping step with other first world countries and by maintaining a principled commitment to human rights.

Contemporary Problems with protecting Asylum Seekers

Let me walk you through some of the abuses and costs created by our present policy. Like most Australians I want to believe Rear Admiral Smith's recent rebuttal of the claim that the RAN could be guilty "of deliberately turning their backs on people in peril". I hope he is still right when he says, "The Royal Australian Navy is a highly professional service which places the highest importance on the safety of life at sea and, whenever we are able, we will always respond to those in distress."

But how do we reconcile these noble sentiments with what we are asking our able seamen to do? Here is an extract from the log of the HMAS Adelaide tabled in the Senate on 21 February 2002: [5]

6 October: 1813 (AEST 2113) First warning given to master of vessel.

7 October: 0153 (AEST 0453) Second warning issued.

216 Boarding party ordered by Commanding Officer to prepare to board SIEV-4 [6] when vessel enters Christmas Island Contiguous Zone.

258 Adelaide made close pass down SIEV-4 starboard side.

335 Adelaide directed by CJTF to conduct a positive and assertive boarding.

402 Warning 5.56 mm (cannon) shots fired 50 feet in front of vessel.

405 Warning 5.56 mm shots fired 75 feet in front of SIEV-4.

409 Warning 556 mm shots fired 50-100 feet in front of SIEV-4.

414 Boarding party advised by CO that if 50 cal machine gun warning shots do not stop vessel, boarding party is to aggressively board SIEV-4.

418-420 Twenty-three rounds of 50 cal (20 rounds of automatic fire) fired in front of SIEV-4.

430 Close quarters manoeuvering by Adelaide, SIEV passed close astern to Adelaide port quarter and reduced speed/took way off momentarily.

432 Boarding party issued final warning (to SIEV) indicating that if they did not allow boarding party to board, Adelaide would not let them enter Australian waters.

442 Boarding party effected a conducted non-compliant boarding of SIEV-4.

445 Boarding party in control of SIEV-4.

If a boat - even a leaking, overloaded wooden boat - enters our territorial waters with a human cargo credibly claiming to be asylum seekers, that boat should in future be escorted to the new $219 million detention centre being purpose built on Christmas Island. If the passengers come without valid travel documents, we should keep them there until their identities are established and a prompt determination is made whether or not they are a health or security risk. If they were a security risk or of questionable identity, ongoing detention in this isolated place would be warranted.

At enormous cost, we are maintaining reception and processing centres at Curtin, Port Hedland, Woomera and now Baxter on the Australian mainland. Curtin will soon close. Every fairminded person including the government's own Immigration Detention Advisory Group thinks that Woomera should have closed long ago. There are only 180 detainees now in that facility.

It is a hell-hole, dehumanising for the detainees and the workers alike. But it is our twenty-first century Port Arthur. Its deterrent value to government is enormous. It is the jewel in the crown of desert detention. There is no other policy reason for keeping it open. There is no sensible financial reason for keeping it open. It is far removed from state services such as Children's services and police.

It is too isolated a place for public servants and tribunals comfortably and efficiently to process claims for refugee status. DIMIA sees an ongoing use for Woomera because this ensures that "we have a network of centres in order to best manage the diversity of the detainee caseload. Retaining the Woomera IRPC also makes possible the operation of the alternative housing project for women and children in the Woomera township." [7] But let's face it: Woomera's main purpose now is to emit a double signal to would-be asylum seekers and to fear-filled voters. Dispersing the 180 Woomera detainees to other places would deprive government a precious transmitter.

The government justifies detention in part because it helps with the processing of claims. Detention in an accessible place and in a more work friendly environment might help with processing. The detention regime contributes to and helps to disguise the uneven performance of our decision makers especially when it comes to the Iraqis and Afghans who have been applying for protection this last year.

During this last financial year (1 July 2001 - 30 June 2002), the Refugee Review Tribunal (RRT) set aside 62% of all Afghan decisions appealed and 87% of all Iraqi decisions appealed. This means that Afghan asylum seekers got it right 62% of the time when they claimed that the departmental decision makers got it wrong. And the public servants got it wrong 87% of the times that the Iraqi applicants claim to have been mistakenly assessed. Meanwhile the RRT set aside only 7.9% of decisions appealed by members of other ethnic groups. Even more disturbing than these comparisons is the statistic that in the last financial year, the RRT finalised 855 detention cases of which 377 were set aside. This is a 44% set aside rate in detention cases.

The government and the parliament have been anxious to get the decision making process away from court supervision. We could all breathe more easily with the cost effectiveness of removing the courts from supervision of the correctness of these decisions if we could be more convinced of the professionalism and independence of the primary decision makers and of the competence and security of the RRT members.

The Minister and one of his in-house lawyers have taken public pot shots at the judges but when 18.2% of RRT decisions appealed to the Federal Court have been set aside this last financial year, there are good grounds for concern when the Parliament (following a Senate gag and a bypassing of the usual Senate committee processes) attempts to limit judicial review of RRT decisions. Justice McHugh, hardly an expansionist High Court judge, has recently told the Australian Bar Association Conference: [8]

Even if 30 percent of applicants have commenced proceedings "as a means of prolonging their stay in Australia", it seems a small price for a just and prosperous country to pay for maintaining the rule of law.

The frustration of the Executive as the result of applicants abusing the judicial review system is understandable. But Parliament and the Executive should never forget the statement of Sir William Wade, the doyen of administrative lawyers, that "to exempt a public authority from the jurisdiction of the courts of law is, to that extent, to grant dictatorial power".

Even the government senators on the Legal and Constitutional Legislation Committee who considered the repercussions of a wide ranging privative clause back in 1998 conceded the problem in their conclusion: [9]

The committee is concerned that in determining matters as critical as those of refugee appeals, where a wrong decision could have exceptionally grave consequences for the applicant, it is of the highest importance that every effort is made to ensure the highest quality of decision making. Equally, the committee is concerned that passage of the privative clause must not act to obscure real problems in the refugee determination process.

Scrutiny of RRT performance will be even more important in light of the observations by the High Court in Muin and Lie. The government continues to make the point: "It is important also to note when considering the RRT outcomes for applicants of 'high refugee producing' nationalities such as Afghanistan and Iraq that Tribunal members are not reviewing the accuracy of the original decision. They are making a fresh refugee assessment at a later time and often on a significantly different set of claims and information provided by an asylum seeker." But if the Full Federal Court's decision on the privative clause stands (as I expect it will) this fresh assessment will now be completely unreviewable by the courts. Administrative scrutiny of the quality of Afghan and Iraqi decisions will be even more important.

The government is right to claim that many unsuccessful applicants will appeal all the way to the High Court if it buys them more time in Australia and if they can buy time with no financial cost to themselves. But the Minister himself has also been pursuing higher court appeals rather than having matters resolved promptly on the merits. His motivation is even more base and questionable than those who desire to extend their stay in Australia. And the human cost is unbearable. Let me give one graphic example.

An Iranian single mother made a very serious and professional attempt on her life in early June at Woomera. This happened after the minister lodged an appeal to the full Federal Court from her successful appeal to a single judge of the Federal Court who had ordered that her matter be remitted to the Refugee Review Tribunal to be decided in accordance with the law set down by the High Court in a case which had been decided after the RRT had considered her case.

The judge had simply remitted the matter to the RRT ordering that the RRT determine the matter consistent with the principles set down by the High Court in Khawar. Surely it is in everybody's interests, especially the mother and her accompanying seven year old son at Woomera, that this reconsideration by the RRT proceed as quickly as possible without further proceedings in the courts.

Now that a court has had the opportunity to scrutinise an RRT decision and to find it inconsistent with the subsequent High Court decision in Khawar, I cannot see that anything is to be gained by any party, including the minister, proceeding with an appeal to the Full Federal Court. The only conceivable gain to the government would be if an alternative outcome were to be obtained by upholding the original RRT decision and reasoning without the benefit of the High Court's guidance in Khawar. But that would be a travesty of justice highlighting the injustice of the outcome.

And yet the Minister has constantly told Parliament and the public that he is more concerned with a just outcome in a particular case rather than elaborate and legalistic appeal points. I would have thought this an appropriate case for prompt determination by the RRT rather than further Federal Court litigation with the prospect that the matter will be eventually returned to the RRT in any event.

The government has a medical report indicating that after the minister lodged his appeal, the Iranian applicant "made a serious attempt to kill herself by cutting a vein in her arm. This was in the context of now wanting her son to be fostered out to an Australian family and she thought that if she died that this is what would happen to him."

The psychiatrist has observed, "Her determination to find a way of getting her son out of the Detention Centre is strong and in this context, she is quite capable of further significant acting out behaviour and is ultimately at serious risk of suicide." Her statements to me on my last two visits to Woomera are consistent with this prognosis. The government's lodgment of full Federal Court appeal thereby postponing or avoiding the RRT deciding her case consistent with the High Court decision in Khawar, as modified if at all by later legislation, can only add to her anxiety and desperation. The human cost is too high.

The word games about deterrence and migration detention have become complex. Ten years ago, the High Court of Australia said migration detention without a court order or court supervision was permissible only if it were necessary for health, security, visa processing or removal. Otherwise it would be punitive and a deterrent, unconstitutional and unlawful unless subject to an exercise of judicial power.

If the government has its way, Iraqis and Palestinians who have been rejected, who have no third country in which they have residence rights, and who cannot return home are to be held in open-ended, judicially unreviewable detention for years. In the case of the Iraqis, their detention at our hands will be extended interminably should we decide to bomb their country. Only yesterday, Paul Kelly reports in the Weekend Australian after a conversation with Minister Ruddock about the 560 boat people still in detention in Australia: "There are 280 who have exhausted the process and await deportation. Repatriation to Afghanistan and Iran will be slow, and to Iraq impossible for some time to come." So of the handful of Iraqis found not to be refugees, why not release into the community those judged not to be a security risk? The government's answer is that they can take Iraqis voluntarily to the border through Jordan and leave them there on a transit visa.

Consider the Palestinian case of Akram who was released from detention by order of the Federal Court granting habeas corpus. [10] On 15August 2002. He arrived on Ashmore Reef in July 2001. In Woomera he was processed and rejected. He formally applied to be returned home. He packed his bags expecting to leave in February. On 18 February a public servant told him that he could not be moved anywhere. He went berserk understandably and smashed his right hand through a plate glass door, being hospitalised for weeks. With other Palestinians in the same situation he then wrote to Minister Ruddock in February, March, May and July 2002 asking to be returned home or at least released from punitive detention.

Justice Merkel had the opportunity to observe the unhelpfulness of some of the public political language used in these situations. He said: [11]

The Refugees Convention is a part of conventional international law that has been given legislative effect in Australia: see ss 36 and 65 of the Act. It has always been fundamental to the operation of the Refugees Convention that many applicants for refugee status will, of necessity, have left their countries of nationality unlawfully and therefore, of necessity, will have entered the country in which they seek asylum unlawfully. Jews seeking refuge from war-torn Europe, Tutsis seeking refuge from Rwanda, Kurds seeking refuge from Iraq, Hazaras seeking refuge from the Taliban in Afghanistan and many others, may also be called "unlawful non-citizens" in the countries in which they seek asylum. Such a description, however, conceals, rather than reveals, their lawful entitlement under conventional international law since the early 1950's (which has been enacted into Australian law) to claim refugee status as persons who are "unlawfully" in the country in which the asylum application is made.

Now that we have the advantage of clarity about the illegality and unconstitutionality of long term, open ended, judicially unreviewable detention of rejectees who happen to have entered Australia in the past without a visa and who happen to be nationals of countries unable to receive back their nationals from Australia, it is time that strict time limits were imposed on detention after which ongoing detention would be permitted only by order of the courts.

Problems with the present Australian Balance between border protection and protection of refugees within our territory

The government has expressed strong criticism of Justice Bhagwati's UN report of "Human Rights and Immigration Detention in Australia" which concludes that [12]

From a human rights point of view, the detention of children in the context of immigration procedures is certainly contrary to international standards.

Mr Ruddock has published his "Detailed Rebuttals" to the Report of the UN Human Rights Commissioner's Envoy into Human Rights and Immigration Detention. I agree with him that "The length of the period of detention should not be considered in the abstract but must be considered alongside the reasons for detention (that is to ensure that unlawful non-citizens are available for processing, to allow identity, security and health checks to be made and to ensure availability for removal if they are not owed protection)." [13]

But in relation to the Palestinians at Woomera, it is very misleading to continue telling the public that "Detainees who have failed to engage Australia's protection obligations can bring their detention to an end by choosing to leave Australia and by cooperating in removal arrangements." The Palestinians have been very co-operative and are desperate to leave Australia if we are not prepared to permit them and their families residence rather than detention. I have just come from meetings in Woomera with two Palestinians whose situation is identical with that of Akram who now walks free. The minister's statement is equally misleading in relation to the increasing number of Iraqis who cannot return home. Their ongoing detention on the eve of war to which we will be party is not "reasonably capable of being seen as necessary for the purposes of deportation" (Lim's case).

Following Justice Merkel's decision in Al Masri on 15 August 2002, there should be an immediate review of all Palestinians in detention. Immediate release (by ministerial order or consent order of the Federal Magistrates' Court) should follow for any Palestinian who:

  • is not a health or security risk;
  • has exhausted all appeals;
  • has formally requested removal;
  • does not have residence rights in any third country.

Iraqis in a similar situation should also be released. It is not sufficient that on the eve of threatened war the Australian Government can effect the removal of voluntary returnees only as far as the Iraqi border.

The minister continues to claim, "The period of time in detention is lengthened by detainees appealing negative decisions through tribunals and courts and by their non-cooperation in removal." But in the case of the Iranian mother at Woomera and her seven year old son, their detention is now being lengthened by the Minister's unnecessary appeal of their case to the full Federal Court rather than their case being considered promptly by the RRT.

Despite Mr Ruddock's "detailed rebuttals" of the UN report, there is an increasing caseload of detainees who have been rejected and cannot be moved, this being no fault of theirs. Furthermore, the detention of some applicants has been lengthened by the government's decision to appeal to the full Federal Court decisions which have been favourable to asylum seekers.

It was no part of Bhagwati's brief to determine whether the Australian regime amounted to arbitrary detention. That was decided back in 1997 when the UN Human Rights Committee (of which he was a member) ruled on a complaint by a Cambodian detainee ("Mr A") under the first optional protocol of the International Covenant on Civil and Political Rights. In those days there was still a 273 day limit on detention and in that case there was no problem about the applicant being able to return to his home country should he have so wished. The decision was disregarded by Australian politicians on the basis that it was simply the opinion of an international committee.

Last year, the Court of Appeal in the United Kingdom quoted the UN's decision on the mandatory nature of the Australian detention regime and went on to state its unanimously held belief "that most right thinking people would find it objectionable that such persons should be detained for a period of any significant length of time while their applications are considered, unless there is risk of their absconding or committing other misbehaviour." [14]

The government is right to reject alternatives which would permit detention of unaccompanied adults and mandate the release of family groups with children. Such a policy would only encourage parents to put children to sea on these dangerous voyages. Consistent with the High Court's decision in the Lim Case ten years ago, detention of all persons, including children, should be restricted to migration purposes and should take place in locations which are well suited to the purpose of detention, especially the efficient processing of visa applications. Deterrence in the desert is the big lie in the government's policy, causing the minister to trip up on the use of the word "deterrence". Detention of children in the desert, far removed from regular State children's services and in a political hothouse where there is no agreement between State and Federal governments for the delivery of children's services is a recipe for institutionalised child abuse.

On 3 June 2002, Mr Ruddock told me:

The Department is working to conclude appropriate protocols with State child welfare authorities. The aim of these Memoranda of Understanding (MOU) is to provide the framework for collaborative and cooperative relationships between DIMIA and the State authorities and to clarify the roles and responsibilities of the agencies to ensure that the best interests of all children in detention are met. A Memorandum of Understanding (MOU) was signed last year between my Department and the South Australian Department of Human Services (DHS) relating to child protection notifications and child welfare issues pertaining to children in immigration detention in South Australia.

But then on 9 August 2002, Premier Rann in a ministerial statement to Parliament said:

It is important to note that state child protection workers are only allowed into the Centre with the permission of the Commonwealth and cannot legally enforce their recommendations under South Australia's Child protection Act as would be possible in other cases concerning children who are not on Commonwealth land.

There is a need for a protocol to protect and remove children from dangerous situations within the compound to protect children seeing traumatic incidents or being harmed in such incidents.

The following recommendations are made: That the centres develop a protocol by which children are protected and removed from situations of danger and upset within the compound. All of the children in such centres need to be protected from viewing traumatic incidents and the risk of being physically harmed during such incidents. The duty of care to children needs to be effectively managed.

On 15 August 2002, the Attorney General, speaking for Mr Ruddock in his absence, said: "The Department has a strong and cooperative relationship with the South Australian Department of Human Services and works closely with officials to ensure that the best interests of the children are met." Citizens like us are left to think that there is no possible co-ordinated government response to child protection while one government remains committed to a punitive desert regime without a workable MOU and protocol being in place. The result must be damage to children. Last Tuesday, Mr Ruddock assured me that the relevant MOU and protocol with the South Australian government had been in place for some time.

Let me give one example of the incapacity of the Canberra bureaucracy to deal credibly with reports of child abuse and neglect in detention, given their need to pursue a hot political agenda. I communicated information about injuries to children at Woomera to the Minister and to the Department on 4 April 2002.

Some of this information, including the claim that a seven year old boy was hit with baton and tear gas, was then published in the Canberra Times on 18 April 2002. Within six hours, DIMIA had publicly refuted the claim saying, "This department has no record of injuries to a 7-year-old sustained during the disturbance at Woomera detention facility on Good Friday. If Father Brennan has information or evidence of mistreatment of detainees he should report it to the appropriate authorities for investigation." I had seen the bruises with my own eyes. I had heard reports of tear gas hitting children even from the ACM manager at Woomera.

I lodged a complaint about the department's spin doctoring. It took the department more than three months to conduct the inquiry. They can do you in in six hours but it takes them over three months to admit their mistakes. The Acting Secretary of the Department explained that their public misinformation occurred because "a number of communication problems in the Department allowed the matter to escalate to the stage where Mr Foster ... posted inaccurate information". According to the departmental inquiry, this escalation took place over four days. And yet the public rebuttal was issued within six hours of the publication of my remarks - hardly any time at all for communication problems or escalation to impede the single-minded objective of denying injury to children.

Mr Ruddock's own chief of staff had referred the matter to the South Australian Family and Youth Services on 29 April 2002, once a new search of medical records revealed there was a problem. I was with the mother of the boy in Woomera as recently as Friday. She still has received no report on her complaint.

The cursory and dilatory nature of the Department's inquiry invokes no public confidence that there will be no recurrence of cover-ups or neglect of credible claims of injury to children in detention in remote places where they are being used as a means to an end. In this instance, the Commonwealth Department has been guilty of a negligent or wilful cover-up regarding the investigation of child abuse in detention centres. If children are to be held in detention with their parents, they should be held in facilities where there is ready access to State Children's Services and the policy parameters of their detention should be sufficiently humane to win the support of both the Federal and State governments, regardless of which party is in power. It is obscene that defenceless children be used as political footballs by political spin-doctors.

Once asylum seekers are found to be refugees, they should have the same rights as all other refugees regardless of whether they arrived by plane or boat, with or without a visa. In particular, they should have the same rights of international travel and of family reunion. By denying these rights to some, we encourage women and children to risk hazardous voyages and we demean those refugees living in our community wanting to get on with their lives without remaining disconnected from their families. Family reunion is not a "convention plus" outcome as the Minister likes to describe it; it is a basic human right. We have 60,000 overstayers a year who arrived with visas. Most of them are far more able to escape detection in the community than the handful of unauthorised boat arrivals each year. Once again this discrimination is only for the purpose of deterrence, wreaking too much devastation in the uncertain lives of those who now have every entitlement to be living in our midst.

I will not delay long on the Pacific solution which is the last step in a morally bankrupt policy. Such detention is contrary to the constitutions of PNG and Nauru. Imagine if every first world country decided to engage in this sort of unlawful people trading. The minister's first defence is to claim that the facilities in those places are not detention centres despite his own legislation speaking of "the detention of the person in a country in respect of which a declaration is in force (s. 198D(3)(c)). And the government's bills digest speaks of the removal of persons "to a place such as a 'Pacific Solution' detention facility on Nauru or Papua New Guinea". Even Senator George Brandis and Mr John Hodges in the Senate Select Committee on a certain Maritime Incident have referred to the "detention centres" in those places and the "detainees" kept therein. In his evidence on 1 May 2002, Mr Hodges said, "Nauru is by far the worst of the detention centres." Mr Ruddock's next defence is to claim that it is not for the Australian government to tell other governments how to interpret their constitutions.

Towards more just, workable and decent policies

The European Union is now trying to formulate common standards and a unified approach to the processing of asylum applications. In Europe, they do not have the luxury of going it alone because "Methods that deter access to a national territory merely shift the burden from one country to another." [15] It is very unneighbourly behaviour. Everywhere, governments of first world countries are under pressure from the asylum seekers and their electors as they strive to find the balance between the protection of borders and the protection of the asylum seekers who, like the poor, are with us always. But this is why it is so important that we Australians address our own fears rationally and ensure that we act decently. Compared with the European numbers, ours is a small nut to crack. Is that any reason for us to use a large sledge hammer which would inflict untold damage if used in other places? Our policy can be posited only on one of two options. Either we want to be so indecent that no other country will dare to imitate us and so we will maintain the advantage that asylum seekers will want to try anywhere but here. Or we want to lead other countries to a new lowest common denominator in indecency losing the short term comparative "border protection" advantage but being seen to be world leaders in greater stringency towards asylum seekers, triggering another round of competitive tightening or at the very least leaving bona fide asylum seekers more vulnerable in the non-existent queues.

While we await the European reviews of law and policy next year, our politicians should be urged to make these immediate corrections to our own law and policy:

  • Those claiming to be asylum seekers inside our territorial waters should be escorted to Christmas Island for processing by navy personnel who place the highest importance on the safety of life at sea and who always respond to those in distress.

  • Initial detention at Christmas Island should be limited to identity, health and security checks. There should be resident child protection officers at Christmas Island. No child should be treated as a security risk.

  • Those who have passed these checks and not been screened out as bogus claimants should be moved to the Baxter reception and processing centre which should be conducted for reception and processing rather than for deterrence and punishment. Better still, they could be moved to one of the urban centres such as Villawood with provision for day release. Any person absconding would forfeit the entitlement to future day release. Curtin, Port Hedland and Woomera should be closed. Alternative detention arrangements outside Baxter should be set up in Port Augusta and/or in the large vacant Whyalla housing stock where many in the local community are anxious to welcome newcomers. Alternative detention should be available to any person for whom a primary decision is still pending after four months or an RRT decision after two months of lodgement.

  • There should be regular State services on hand at reception and processing centres, especially police and Childrens services. The State governments should be adequately resourced and free to deliver professional services without political interference from Canberra.

  • There should be an independent guardian for unaccompanied minors who can exercise the powers of guardian without the conflict of interest and artifices which surround the present guardianship arrangements. We must avoid the farcical situations such as the guardian offering his ward a financial incentive to return to a war zone because the guardian has a vested interest in having the child leave the territory.

  • The influences on primary decision makers which lead them into regular error in the assessment of Iraqi and Afghan claims should be investigated and removed.

  • RRT members should be given sufficient security of tenure, if need be after an initial probation period during which time their decisions would be automatically reviewed by senior members, to ensure the integrity of their decision making process immune from improper ministerial and departmental influence.

  • Successful applicants should be given a visa which entitles them to family reunion and international travel as specifically provided in Article 28 of the Convention on Refugees of which Australia is unquestionably in breach. [16] A temporary protection visa should be made permanent if our protection obligations are still invoked three years later.

  • We should maintain a commitment to at least 12,000 off-shore refugee and humanitarian places each year in our migration program regardless of the number of successful on-shore applications for refugee status we receive. There is no reason to think that our on-shore caseload will increase exponentially given the improved regional arrangements and the tighter controls within Australian territory.

  • We should abolish the Pacific solution.

  • If the High Court upholds the validity of the privative clause, we should abolish the concept of a distinct Australian migration zone given that our processing and appeal system would be sufficiently streamlined to process all comers. The AFP has already warned that the excision of further islands from our migration zone may "deflect illegal immigrants to regional centres with better infrastructure" [17].

I commend the government for its stated objective: "to resettle some 12,000 persons each year who are in greatest need and to prioritise those who are in need of assistance - those who are at risk if they remain where they are and have no other means of escape other than resettlement to a third country." [18] Some of those persons in greatest need have come to Australia by boat without a visa and we have treated them appallingly.

There is no reason why the government objective cannot be achieved together with the objective of treating asylum seekers within our territory firmly but decently. The immorality and inequity in world burden sharing resulting from our present "slam the back door" policy is highlighted by a simple thought experiment. Imagine that every country signed the Refugee Convention and then adopted the Australian policy. No refugee would be able to flee from their country of persecution without first joining the mythical queue in their country of persecution to apply for a protection visa. If anyone dared to flee persecution, they would immediately be held in detention (probably for a year or so) awaiting a determination of their claim. All refugees in the world would be condemned to remain subject to persecution or to proceed straight to open-ended, judicially unreviewable detention. The purpose of the Refugee Convention would be completely thwarted. The myopic argument runs that we Australians are entitled to design a sledge hammer to crack this small nut because other countries have not (yet) adopted our policies and because we are prepared to take 12,000 applicants through the front door provided they stay in the queue back in the country of persecution or first asylum.

If detention is to remain a cornerstone of Australian border protection and front door immigration entry, there is a need for alternative arrangements to render the present detention policy more humane and effective. Given the modesty of the problem confronting Australia, we would do well to ensure compliance with the standards set by other countries receiving far more asylum seekers across porous borders than we ever have. I propose three simple questions: Given that we have the advantage of geographic isolation, why don't we try to be just a little more decent rather than less decent than other countries with the same living standards when it comes to our treatment of those who arrive (whether with or without a visa) invoking our protection obligations? Or if that is judged too na´ve, how about we aim to be just as decent as those who receive ten times more asylum seekers than we do? Or if that is too much to ask (given the fear driven mandate of the recent election), how about we limit our indecency to our treatment of adults, ensuring that never again are kids put in the line of batons and tear gas in the name of border protection, as they were at Woomera this last Easter?

Endnotes

[1] DIMIA does claim that it, in co-operation with Jordan, could transport a willing Iraqi returnee to the border.

[2] Australian Federal Police, Submission Inquiry Into The Migration Legislation Amendment (Further Border Protection Measures) Bill 2002.

[3] Despite the media impression, it is interesting to note that there have been more unauthorised arrivals by plane than by boat in seven of the last ten years.

[4] DIMIA says that a significant number of places are taken up by persons with no connection to Australia.

[5] Senate Select Committee on a Certain Maritime Incident, quoted in the submission of Mr Tony Kevin, 4 March 2002.

[6] SIEV = suspected illegal entry vessel.

[7] Letter from P. Godwin, DIMIA, to author, 7 August 2002.

[8] M. McHugh, "Tensions Between the Executive and the Judiciary", Australian Bar Association Conference, Paris, 10 July 2002, p7.

[9] #1.76, Consideration of the Migration Legislation Amendment (Judicial Review) Bill 1998.

[10] Akram Ouda Mohammad Al Masri v Minister For Immigration And Multicultural And Indigenous Affairs.

[11] #61.

[12] Report of Justice P. N. Bhagwati, Regional Advisor for Asia and the Pacific of the United Nations High Commissioner for Human Rights, Mission to Australia 24 May to 2 June 2002, "Human Rights and Immigration Detention in Australia", para. 52, p.16 & para 60, p.19.

[13] Detailed Rebuttals (31 July 2002) by Australian Government to the Report of the UN Human Rights Commissioner's Envoy into Human Rights and Immigration Detention, at:
http://www.minister.immi.gov.au/media/responses/unreport_310702.htm

[14] [2001] EWCA Civ 151, #67.

[15] P. Baneke, Asylum in Europe, Developments in 2001, European Council on Refugees and Exiles, 9 June 2002.

[16] Article 28(1) provides: "The Contracting States shall issue to refugees lawfully staying in their territory travel documents for the purpose of travel outside their territory, unless compelling reasons of national security or public order otherwise require".

[17] Australian Federal Police, Submission Inquiry Into The Migration Legislation Amendment (Further Border Protection Measures) Bill 2002, #7.2.

[18] P. Ruddock, Second reading Speech, Migration Legislation Amendment (Further Border Protection Measures) Bill 2002, 1 July 2002.

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