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    Julian Burnside QC

Australia's Treatment Of Asylum Seekers: The View From Outside

Julian Burnside speaks at World Refugee Day 2003

The universal declaration of human rights is the most widely accepted international convention in human history. Most countries in the world are parties to it. Article 14 of the universal declaration of human rights provides that every person has a right to seek asylum in any territory to which they can gain access.

Despite that almost universally accepted norm, when a person arrives in Australia and seeks asylum, we lock them up. We lock them up indefinitely and in conditions of the utmost harshness.

Related pages:

2 April 2008: Julian Burnside: Citizens' rights and the rule of law in a civil society: not just yet - Julian Burnside delivers The 2008 Manning Clark Lecture: "Personally, I would have preferred to see the [Howard] Government removed because of its lamentable approach to human rights and the rule of law. But perhaps Australia is not ready to embrace such notions: not just yet. In any event, the electorate saw industrial relations as a more pressing matter."

28 August 2006: Five years on, the Tampa drama continues - As SMH investigative reporter David Marr shows, the drama continues, now in the private lives of those refugees who eventually made it into Australia, and barrister Julian Burnside QC gets challenged by Australians on a public Blog.

22 January 2005 - A case of tsunamitis? Five eloquent thinkers and writers, Julian Burnside QC, Waleed Aly, Misha Schubert, Greg Barns and Anne Summers share their thoughts about the disaster and Australia's subsequent response to the international appeal. And in a late addition, AFL's CEO Andrew Demetriou joins the fray.

25 February 2005 - Julian Burnside QC: Honesty matters: the ethics of daily life - "The essence of democracy is that the elected representatives are chosen because their constituents think this candidate or that will best represent their views in parliament. If a candidate lies about his or her beliefs and values, the democratic process is compromised. The greater the lie, the greater the damage to the true course of democracy."

Burnside Speech booklet25 April 2004: Burnside versus Vanstone, Ruddock, Howard - Recently Julian Burnside QC spoke at a Rotary Breakfast in Melbourne. In the presence of Immigration Minister Amanda Vanstone, he accused her, Philip Ruddock, and PM John Howard, of committing 'crimes against humanity' for its "Pacific Solution". We edited his Melbourne Rotary speech into a handy, printable booklet of about 25 pages. Download it, print it, copy it and include it at your stall!

19 February 2004: Julian Burnside vs Amanda Vanstone - It was a full house when Julian Burnside QC, one of the most vigorous opponents of mandatory detention, went face to face against Immigration Minister Amanda Vanstone at a Rotary breakfast held at the RACV Club in Melbourne, and directly accused her of crimes against humanity.

22 October 2003: Australia's crimes against humanity not interesting to the media - Julian Burnside QC mounts a blistering attack on Australia's media, accusing it of refusing to report the government's escalating atrocities: "If the tragedy of our present regime is told dispassionately decades from now, the silence of the press will be seen as part of our national disgrace."

9 July 2003: Julian Burnside QC: Refugees: Australia's moral failure - A speech at a dinner launching 'Just and Fair Asylum' in Sydney on June 11 2002. "We diminish ourselves by the way we treat [refugees and asylum seekers]. Once we recognise that these people are human beings, we will see that the problem is in truth a moral problem and that we have made a profound mistake in the way we have handled it."

Australia's Treatment Of Asylum Seekers: The View From Outside

by Julian Burnside QC
Parliament House, Victoria
World Refugee Day 2003

The Migration Act provides for the detention of such people until they are either given a visa or removed from Australia. In practice, this means that human beings - men, women and children innocent of any crime - are locked up for months, and in many cases years.

They are held in conditions of shocking harshness. The United Nations Human Rights Commission has described conditions in Australia's detention centres as "offensive to human dignity". The United Nations Working Group on Arbitrary Detention has described Australia's detention centres as "worse than prisons" and observed "alarming levels of self-harm". Furthermore, they have found that the detention of asylum seekers in Australia contravenes Article 9 of the International Covenant on Civil and Political Rights, which bans arbitrary detention.

The Delegate of the United Nations Human Rights Commissioner who visited Woomera in 2002 described it as "a great human tragedy". Human Rights Watch and Amnesty International have repeatedly criticised Australia's policy of mandatory detention and the conditions in which people are held in detention.

In short, every responsible human rights organisation in the world has condemned Australia's treatment of asylum seekers. Only the Australian government and the Australian public are untroubled by our treatment of innocent, traumatised people who seek our help.

The matter reached an extreme during the Tampa "crisis". The rhetoric of the Federal Government at that time came to this: that Australia had a sovereign right to protect its borders; that it had a right to decide who came into Australia and the circumstances in which they would come; that the Captain of the Tampa was threatening to infringe Australia's sovereign rights, and that the civilised nations of the world supported Australia's firm but principled stand. That was the rhetoric which helped the Howard Government win the November 2001 election.

The truth, of course, was very different. The Captain of the Tampa followed the written and unwritten law of the sea: he rescued people in distress and took them to the nearest place of safety, Christmas Island. For his efforts, Captain Arne Rinnan received the highest civil honour in Norway; his ship received commendations from mercantile and shipping organisations around the world; all the companies who had cargo on Tampa congratulated Captain Rinnan for the stand he took, even though their cargo was delayed 10 days by the episode. Australia, for its part, threatened to prosecute Captain Rinnan as a people smuggler. The disparity between Australia's self-perception and the view of others from outside could hardly have been greater.

As a sidenote, I was recently in London and was introduced by Geoffrey Robertson, Q.C. to a number of European lawyers. He introduced me as "the barrister who acted for the Tampa asylum seekers". It took me a couple of minutes to recognise the significance of the fact that his introduction was immediately comprehensible to them: they all knew about the Tampa episode and the stain it made on Australia's national image. In recent months, Australia's human rights' record has been criticised by the South African judiciary. Less than 30 years ago, most Australians would have been ashamed to think that South Africa would criticise our human rights' record.

It is hard to understand how Australia has got itself to this position. Part of the difficulty is, I think, that we lack the imagination to understand the realities of our policy of mandatory detention; and we fail to understand why it is the people seek asylum in the first place. The prevailing view in Australia seems to be that asylum seekers come here to improve their economic circumstances, and that we put them in holiday camps for a short time whilst their claims are processed. Let us consider the reality.

In late 2000 a family fled Iran. They were members of a small quasi-Christian sect which has traditionally been regarded as "unclean" by the religious majority. Their lives have traditionally been marked by persecution in every conceivable aspect. The recent history of Jews in Germany and Poland is a sufficient reminder of what happens to groups who are regarded by the majority as "unclean". The family's flight was triggered by a terrible event, the details of which are too terrible to relate at a luncheon like this. They arrived in Australia after a terrifying voyage across the sea and were locked up in Woomera. The family comprised mother and father in their thirties, and two daughters aged 7 and 10.

In Woomera, month after month, their condition deteriorated. In particular, the 10 year old girl who ceased eating, stopped engaging in self-care activities, had trouble sleeping and began scratching herself constantly. The Child and Adolescent Mental Health Service of South Australia learnt of the family's plight and went to examine them. They wrote a report which included the following passages:

"(She) does not eat her breakfast or other meals and throws her food in the bin. She was preoccupied constantly with death, saying 'don't bury me here in the camp, bury me back in Iran with grandfather and grandmother'.

(She) carried a cloth doll, the face of which she had coloured in blue pencil. When asked in the interview if she would like to draw a picture, she drew a picture of a bird in a cage with tears falling and a padlock on the door. She said she was the bird.

It is my professional opinion that to delay action on this matter will only result in further harm to (this child) and her family. The trauma and personal suffering already endured by them has been beyond the capacity of any human being and I foresee that this family will require intensive and ongoing therapy for some time to enable them to conciliate and recover."

Despite the urgent recommendations in that report, the family were left where they were. A further report was sent and, after weeks of delay, the family was finally sent to the Maribyrnong Immigration Detention Centre: Melbourne's own concentration camp. When the family was moved, the South Australian authorities urged that the 10 year old daughter needed daily clinical attention. Nevertheless, for another three weeks nothing happened: no-one saw the family, no-one paid attention to the obvious psychological and medical needs of the 10 year old. Not long afterwards, on a Sunday night whilst her parents and her sister were at dinner, she hanged herself.

She did not die. When she was taken down, she tried to swallow shampoo because she had seen adults kill themselves that way in Woomera.

The family remained in immigration detention for another year. At last, after they had appealed to the full Federal Court, they were finally granted protection visas. In the meantime, they had suffered under Australia's detention system for more than two years, the entire family has been traumatised to an extent which is inconceivable for ordinary members of the Australian community and a 10 year old girl very nearly succeeded in ending her own life.

That is the reality of mandatory indefinite detention in Australia in the 21st Century. It is passing strange that a government which prides itself in family values still implements policies so harsh that they drive children to attempt suicide. Suicide amongst pre-pubescent children is almost unheard of - except in Australia's detention centres.

* * * * *

Just as we do not really understand what mandatory detention entails, neither do we understand fully why people come here in the first place. If we had even a glimmer of understanding of the conditions which drive people out of their homeland, we might be inclined to treat them more compassionately.

Let a single instance serve the purpose. Currently in Australia's detention centres there are several hundred Iranians who desperately fear being returned to Iran. They have so far failed to make the Immigration Department understand the fate which awaits them should they be returned to Iran. One of them sent me a video tape which had been smuggled out of Iran. It is the most disturbing video tape I have ever seen or ever wish to see.

The tape is apparently an official recording: it contains an Iranian watermark in the bottom right-hand corner. Notwithstanding that, it is fairly poor quality ? handheld and a bit blurry at times. The scene is a largish room. On one side of the room stand two people who might be officials: they are holding sheets of paper from which they are reading out loud in a flat, bureaucratic manner. In the centre of the room stands a group of five or six people, huddled together, looking distressed. They may be members of a family, or possibly friends. On the opposite side of the room is a table. On the table lies a man, face up. He is being held by the shoulders.

Most of the time the camera is focussed on the officials: they are reading and reading and reading.

The camera swings to the family group who look very distressed and upset. Then it swings to the man on the table who attempts to sit up but is restrained and held down again, he looks increasingly disturbed and terrified.

The camera focuses again on the officials who continue reading at great length but flatly, bureaucratically, without interest. Just as the viewer begins to wonder where all this is leading, the camera swings around to the man on the table and then they remove his eyes with forceps.

* * * * *

In 2002 Australia, along with more than 80 other nations, acceded to the Rome statute by which the International Criminal Court was created. The court is the first permanent court every established with jurisdiction to try war crimes, crimes against humanity and crimes of genocide regardless of the nationality of the perpetrators and regardless of the place where the offences occurred.

As part of the process of implementing the International Criminal Court regime, Australia has introduced into its own domestic law a series of offences which mirror precisely the offences over which the International Criminal Court has jurisdiction. So, for the first time since Federation, the Commonwealth of Australia now recognised genocide as a crime and now recognises various war crimes and crimes against humanity.

The Australian Criminal Code now recognises various acts as constituting crimes against humanity. Two of them are of particular significance in the present context. They are as follows:

268.12 Crime Against Humanity - Imprisonment Or Other Severe Deprivation Of Physical Liberty

A person (the perpetrator) commits an offence if:

  • the perpetrator imprisons one or more persons or otherwise severely deprives one or more persons of physical liberty; and

  • the perpetrator's conduct violates article 9, 14 or 15 of the Covenant; and

  • the perpetrator's conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.

    Penalty: Imprisonment for 17 years.

    Strict liability applies to paragraph (1)(b).

268.13 Crime against humanity - torture

A person (the perpetrator) commits an offence if:

  • the perpetrator inflicts severe physical or mental pain or suffering upon one or more persons who are in the custody or under the control of the perpetrator; and

  • the pain or suffering does not arise only from, and is not inherent in or incidental to, lawful sanctions; and

  • the perpetrator's conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.

    Penalty: Imprisonment for 25 years.

(The Covenant referred to is the International Covenant on Civil and Political Rights, the ICCPR.)

The elements of these offences are relatively simple. For the first, the elements are as follows:

  • The perpetrator imprisons one or more persons;

  • That conduct violates Article 9 of the ICCPR;

  • The conduct is committed knowingly as part of a systematic attack directed against a civilian population.

Australia's system of mandatory, indefinite detention appears to satisfy each of the elements of that crime. Mr Ruddock and Mr Howard imprison asylum seekers. The United Nations Working Group on Arbitrary Detention has found that the system violates Article 9 of the ICCPR. Their conduct is intentional, and is part of a systematic attack directed against those who arrive in Australia without papers and seek asylum. A representative of the International Criminal Court has expressed privately the view that asylum seekers as a group can readily be regarded as "a civilian population".

The second of the offences begins with imprisonment in violation of 268.12 and has an added element that the perpetrator inflicts severe mental pain or suffering upon one or more of the persons in the custody of the perpetrator, and the pain or suffering doesn't arise only from lawful sanctions.

There is abundant evidence of overwhelming mental suffering in Australia's detention centres. Neither Mr Ruddock nor Mr Howard could rationally deny that they are aware of the suffering of the people they lock up.

A careful analysis of the criminal code therefore suggests that Mr Ruddock and Mr Howard are guilty of crimes against humanity by virtue of their imprisonment of asylum seekers. The prospect of their being prosecuted is remote, because the Federal Attorney-General has an effective veto on the laying of charges under these provisions. But whether they are charged with these offences or not may not matter. The important point is this: an increasing number of people are raising their voices against Australia's system of mandatory indefinite detention of asylum seekers. They assert that the system is morally wrong. Unfortunately, the debate generally stalls when the protagonists are unable to agree about moral norms.

The argument against mandatory detention takes on a new complexion when it is seen that the system very likely amounts to a crime against humanity. Those who support mandatory detention on whatever grounds appeal to them may find it harder to justify the fact that our Government is engaged in crimes against humanity judged not only by the standards of the international community but by the standards of our own legislation.

This speech was previously posted at Julian Burnside's website, the Scatt website, and the Sydney Morning Herald.

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