Frank Brennan's Tampering with Asylum
A Universal Humanitarian Problem
A Comparative Study of Australia's Response to the First World Challenge of Protecting Asylum Seekers and National Borders
"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.
Father Frank Brennan, Jesuit lawyer and human rights advocate, does so in his new book, Tampering with Asylum: A Universal Humanitarian Problem.
The book compares Australia's dramatic over-reaction in closing its national borders to the Tampa's human cargo with the response of the United States and Europe, and offers a practical blueprint for countries wanting to humanely protect asylum seekers."
"It is no surprise that Willie Virgile Brigitte, the Al Qaeda operative, came by plane with a tourist visa. He was never eligible for upstream disruption or mandatory detention. No terrorist has come by boat with wife and children and without a visa. Now is the time to scrutinise government's rationale for treating boat people in such a discriminatory way, in the name of national security."
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?"
25 August 2002: Developing Just Refugee Policies in Australia: Local, National and International Concerns - Fr Frank Brennan at the Bowral Town Hall: "During the 2002 financial year, Afghan asylum seekers got it right 62% of the time when they claimed that the Immigration Department 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."
In October 2002, Father Frank Brennan shared with a Tasmanian audience - during the Anglicare Tasmania Social Justice Lecture titled Tampering with Asylum that he had just "...circumnavigated the globe in three weeks looking at the treatment of asylum seekers in the United States and Europe."
"In those parts of the world there are huge caseloads of persons seeking asylum onshore and each country has porous borders requiring sensitive international cooperation. Whether it be in Washington, London, Brussels or Berlin, asylum seekers and those wrestling with striking the right balance between border protection and asylum have all heard of Tampa and Woomera."
"Even in the jail outside Berlin where persons are held in detention awaiting deportation, the young man who had been there one year had seen the Woomera protests on television and was sickened by the inhumane realisation that children are regularly held in detention in Australia."
"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."
Frank Brennan, especially when the Woomera detention centre was still operational, was in a unique position: he was at the time perhaps the only Australian refugee advocate who had meetings at regular intervals with the infamous former immigration minister Philip Ruddock.
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About the publication Frank Brennan, Tampering with Asylum (2003): This book is now out of stock, and we no longer supply it to our members or to the wider public. We suggest you could search for online new or second-hand bookshops to secure your copy.
Uniya's Media Release
Time for government to stop "tampering with asylum"
Uniya Jesuit Social Justice Centre
3 November 2003
"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. Father Frank Brennan, Jesuit lawyer and human rights advocate, does so in his new book, Tampering with Asylum: A Universal Humanitarian Problem. The book compares Australia's dramatic over-reaction in closing its national borders to the Tampa's human cargo with the response of the United States and Europe, and offers a practical blueprint for countries wanting to humanely protect asylum seekers."
"Father Brennan said, 'It is no surprise that Willie Virgile Brigitte, the Al Qaeda operative, came by plane with a tourist visa. He was never eligible for upstream disruption or mandatory detention. No terrorist has come by boat with wife and children and without a visa. Now is the time to scrutinise government's rationale for treating boat people in such a discriminatory way, in the name of national security.' "
"Tampering with Asylum is a primer for more informed public discussion about the morality of Australia's asylum policy. It moves beyond the point scoring of political parties."
" 'In the past Prime Minister Howard has boasted that Australia was a warm-hearted, decent international citizen. By comparing Australia's policy with the US, UK and Europe, the reader can appreciate the shortcomings in Australia's approach. Now that the boats have stopped coming it is time to put the 2001 election campaign tactics behind us and work towards more rational, cost-effective and fair ways of treating those groups who are most likely to be refugees, while maintaining the integrity of our borders,' Frank Brennan said."
This book shows that both these objectives can be achieved by politicians of good will.
Frank Brennan regularly visits detention centres in Woomera, Port Hedland and Baxter. After visiting Baxter last week, he said that the situation was getting 'more desperate'. Father Brennan has just returned from a study tour which took him to meetings with UN and international NGO refugee officials in Europe and North America. In Geneva, he attended the Executive Meeting of the Office of the United Nations High Commissioner for Refugees (UNHCR).
Title: Tampering with Asylum
Tampering with Asylum will be launched at the Canberra Press Club on Wednesday 5 November. It will also be launched in Perth, Melbourne, Adelaide, Brisbane and Sydney on the following dates:
Wednesday 5 November 2003, Canberra, 12-2:00 pm
Thursday 13 November 2003, 6:30 pm
Wednesday 19 November 2003, 6:30 pm
Thursday 20 November 2003, 6:00 pm
Thursday 25 November 2003, 7:00 for 7:30 pm
Wednesday 26 November 2003, 6:00 for 6:30 pm
Tampering with asylum: confessions of a Jesuit priest
Sydney Morning Herald
"In my wanderings around the corridors of Parliament House, I met with Mr Bill Heffernan, a member of the Howard government, who explained the government strategy starkly and simply. Having been a local councillor and being a lifetime farmer, he described to me the moral dilemma that confronts you during a major bushfire. You have to build a firebreak. You have to choose someone's property as the firebreak. Destroying their property, you will save the neighbourhood. Bill said, "It's not pretty. These are hard moral decisions. But you have to do it." Father Frank Brennan.
The Melville Island scandal is hurtling towards a Tampa-style confrontation between the government and the courts. As I write the High Court in Sydney is hearing an urgent application for orders that Vanstone bring the Kurds back and process them according to law. The High Court in Canberra is hearing a crucial human rights case about whether the government can throw away the key on some detained asylum seekers, the government hasn't got away with another children overboard lie, and Indonesia is sticking the boot in. Things are moving so fast it's hard to catch your breath!
Last Wednesday, on November 5, Father Frank Brennan, associate director of Uniya, the Jesuit Social Justice centre, launched his book Tampering with Asylum at the National Press Club in Canberra. That morning the media reported that the government had excised Melville Island from Australia overnight to retrospectively deny the Kurds their right to claim asylum.
Here is Frank's speech, to bring back the memories and put the current scandal in context. He noted, when forwarding it to me:
"You will appreciate that the main need for the excision of the islands is to ensure that asylum seekers do not have access to the courts in the same way that Pauline did. We would thus not have judges overruling the decisions of faceless public servants. As for the new minister's pledge that the 14 Turks can now apply in Indonesia, in three years, we have taken only 39 asylum seekers from Indonesia. This has been a deliberate policy because we have agreed with Indonesia that it would be undesirable to set up a honey pot effect with asylum seekers reaching Indonesia with some hope of resettlement in Australia."
Tampering with Asylum
by Frank Brennan
In 2001, I was directing the Jesuit Refugee Service in East Timor which was assisting with the return of tens of thousands of East Timorese from the squalid camps on the Indonesian side of the border.
On Monday morning 27 August 2001, I awoke in Dili to the sound of the BBC World Service News. A Norwegian, Captain Arne Rinnan was telling the unlikely tale that Australian authorities had asked him to pick up a boatload of persons in distress on the high seas and that the Australian authorities were now denying him permission to land his human cargo in Australia. They were even denying him permission to enter Australian territorial waters. At my regular round of meetings in Dili that day, United Nations workers from every country on earth were asking me what my country was up to. Australia had such a fine reputation for its humanitarian intervention in East Timor, driving the pace for UN peacekeeping and making up the shortfall in the interim with the leadership of INTERFET. Here now was the same government, the same nation refusing humanitarian aid to a boatload of asylum seekers.
Then came word around the streets of Dili that Australia was sounding out the interim administration of East Timor about taking the Tampa refugees for detention and processing in East Timor. I could not believe that my own government - which well knew the devastation and lack of infrastructure in East Timor just one year after the conflagration - would seek such a return favour from its newest most mendicant neighbouring nation state. The UN was still in control and the late Sergio de Mello had the courage and integrity to tell Australia where to get off.
How could we so jeopardise our international humanitarian reputation by exploiting the vulnerability and indebtedness of the recently liberated East Timorese? At the time, I thought - and I still think - that there are some problems that a country like Australia should solve at home inside its own borders. We should be neighbourly and we should carry our weight.
Soon after my return to Australia in January 2002, I made my first visit to the Woomera Immigration Reception and Processing Centre, six hours drive from Adelaide, on the outskirts of the small town owned and run by the Defence Department. Afghan asylum seekers had sewn their lips in protest at the government's decision to suspend the processing of their asylum claims, despite their ongoing detention in the middle of the desert, in light of the changing political situation in Afghanistan.
From there I came here to Canberra. In my wanderings around the corridors of Parliament House, I met with Mr Bill Heffernan, a member of the Howard government, who explained the government strategy starkly and simply. Having been a local councillor and being a lifetime farmer, he described to me the moral dilemma that confronts you during a major bushfire. You have to build a firebreak. You have to choose someone's property as the firebreak. Destroying their property, you will save the neighbourhood.
Bill said, "It's not pretty. These are hard moral decisions. But you have to do it."
The government's boast two years later is that the firebreak has worked, at least for the moment. The boats have stopped coming. The borders are secure and Australia can choose those refugees to whom it wishes to offer places under its generous offshore refugee selection program.
For these last two years I have I visited centres such as Woomera, Port Hedland and Baxter every month. Every two months I have come to Parliament House Canberra and met with the political architects of this policy, thinking there must be a better way than rhetorical stand-offs in the media. The politicians remain as convinced of their decency in implementing the policy as I am in decrying it. Now I have published a book entitled 'Tampering with Asylum'.
My concern about the detention of boat people was heightened when I was conducting a worship service in the Woomera detention centre on Good Friday in 2002. At the end of the service, a riot broke out and demonstrators together with detainees managed to breach the security fence.
I was allowed back into the centre on the Tuesday after Easter. There I met for the first time Nasrin Hosseini, who is in the audience here today. Nasrin arrived in Australia with her six year old son in April 2001. They spent more than three years in detention before being released on their temporary protection visa last month.
Spare a thought for another woman with two children who won her case in the Full Federal Court with Nasrin on 13 June 2003. Having already been in detention for 3.5 years, they may have to wait in detention and in suspense for another year while the government seeks to appeal their 3-nil win to the High Court.
On Easter Tuesday last year, Nasrin described to me the assault on her son by an ACM guard which had taken place on Good Friday night. Her son had been struck by a baton as well as being hit with tear gas. I observed bruises on her boy's left knee and right ankle. The ACM Centre Manager told me that it was unfortunate that children had been hit by tear gas "because the wind happened to be blowing the wrong way". I immediately wrote to Minister Ruddock explaining all that I had seen and heard, concluding:
"My three hours in the detention centre on the evening of Good Friday convinced me that it was time to put the message to you very plainly despite its public unpopularity and despite your government's immunity to moral outrage: "Minister, this is no place for kids." When children end up in the sterile zone against the razor wire with tear gas and batons around them in Australia, it is time for all parties including the Commonwealth government to stop blaming others and to effect policy changes so that it can never happen again."
After a two week silence from government, I then spoke publicly about this assault. On the very day that the newspapers carried my remarks, DIMIA was able at 2.41pm to place on its website a denial of any injury to children, stating:
"If Father Brennan has information or evidence of mistreatment of detainees he should report it to the appropriate authorities for investigation."
As far as I knew, Minister Ruddock was the appropriate authority. I realised that enthusiastic idealism of some public servants in handling the troublesome public was getting a little beyond the pale. The Children Overboard mindset had taken root in the Public Affairs section of DIMIA. This is very unfortunate, especially given the dedication of many of the DIMIA officers in the detention centres - those who actually meet the traumatised, incarcerated asylum seekers face to face.
Even if the detention of children is a vote winner and even if it is effective in deterring unauthorised arrivals (which I do not concede and which government does not claim), every political party and every citizen has an interest in ensuring that the human rights of these children are not further undermined by actions of the state or of its private contractors. Now that only two boats have made it close to Australia in the last 18 months, it is time to review the firebreak and to assess the permanent measures that are now in place.
The firebreak has consisted of five key elements:
We Australians have always enjoyed the benefits and suffered from the disadvantage of acute geographic isolation. Since World War II we have been a strong net migration country. Though generous to refugees, we have always demanded the right to determine who comes to Australia. That clarion call was not invented by Pauline Hanson. Nor was John Howard the first Prime Minister to repeat it. Sir Tasman Heyes who headed our immigration department from 1946 to 1961 informed the diplomatic community back in 1948:
If it is intended to mean that any person or body of persons who may suffer persecution in a particular country shall have the right to enter another country irrespective of their suitability as settlers in the second country this would not be acceptable to Australia as it would be tantamount to the abandonment of the right which every sovereign state possesses to determine the composition of its own population, and who shall be admitted to its territories.
The wave of nine thousand boat people principally from Afghanistan and Iraq, lasting from 1999 until the interception of the Tampa, was the fourth wave of boat people arriving on our shores since the end of the Vietnam War.
The second wave, including boat arrivals from Cambodia, came during the prime ministership of Bob Hawke. In June 1990, Hawke told Jana Wendt:
We have an orderly migration program. We're not going to allow people just to jump that queue by saying we'll jump into a boat, here we are, bugger the people who've been around the world.
Who will ever forget his declaration:
Do not let any people, or any group of people in the world think that because Australia has that proud record, that all they've got to do is to break the rules, jump the queue, lob here and Bob's your uncle. Bob is not your uncle on this issue, other than in accordance with the appropriate rules. We will continue to be one of the most humanitarian countries in the world. But it is not an open door policy.
It was a Labor government that first instituted a policy of universal mandatory detention for unauthorised arrivals. What was the rationale for this policy? At first, government had two reasons. First, detention was considered a deterrent to future unauthorised arrivals.
Government had to formally abandon that rationale once the High Court said that detention without judicial order would be unconstitutional if it was designed to be punitive or a deterrent. That is why Mr Ruddock took to explaining: "Detention is not arbitrary. It is humane and is not designed to be punitive." Executive government spared parliamentary, judicial and media scrutiny can make words mean what they like.
Government's second rationale back in 1990 had nothing to do with our immigration policy. Gareth Evans was justly proud of his peace plan for Cambodia. A central plank of the plan was the return of 300,000 Khmer from the Thai border. They were no longer classed as refugees. Their return was deemed to be safe thought the civil war smouldered until 1998. The peace plan could have come unstuck if Australia had made a prompt determination that the Cambodians arriving on our shores were refugees. These boat people had to be kept away from the lawyers. So the first immigration reception and processing centre was set up at Port Hedland.
By 1994, there was bipartisan support in our Parliament for universal mandatory detention. Our politicians admitted that there was some inconvenience and cost in putting people at remote Port Hedland but thought there were benefits in "placing detainees in a centre which is in reasonable proximity to where most of the boat arrivals first land, and where the remoteness of the location provides a disincentive to abscond from the centre".
We had completely lost track of this rationale by the time a boatload of Vietnamese turned up at Port Hedland in July this year. They were transported to Christmas Island for processing even though there were plenty of spaces and trained personnel at Port Hedland. Now the talk is of sending signals, though without mentioning the constitutionally embargoed word "deterrent".
Especially since September 11, no one quibbles with the entitlement of government to detain unauthorised arrivals who come without documents while their identity, health and security status are established. Equally, there can be no problem with the detention of persons justifiably awaiting removal from Australia, especially if they be a flight risk. However there is a problem with detaining people to coerce them into "voluntary return" when it is not safe for them to return.
What is the rationale for keeping people, including children, in protracted detention during the processing of their claims?
Let's remember that 90% of those in the fourth wave of boat people and held in detention were proved to be refugees. Many of those refugees have stories like the young Hazara Sha Hussain Hassani, who is here with us today. Sha had been on the run in the mountains for months when his father came one night with food and a message. He was to leave with smugglers that very night. His father had sold enough goods to employ a smuggler so that Sha, the eldest son, might leave immediately, he being the one most at risk. Sha's father hoped to be able to afford to have all his family leave Afghanistan eventually. "There was no place to go and no one to trust any more. It was too dangerous to wait. I had to go immediately."
Sha has heard nothing from his family since that night. He does not know whether they are still in Afghanistan. He does not even know if they are still alive.
Government has suggested only two other rationales for detaining people like Sha when they arrive here: ease and efficiency of processing, and ensuring that people are available for removal once they are rejected as refugees. These rationales are also flawed.
With the fourth wave of boat people, it has now been shown that those in detention were six times more likely to succeed in their appeals to the Refugee Review Tribunal than those asylum seekers living lawfully in the community. So much for ease of processing. Most migration agents, lawyers, public servants and tribunal members could do their work better if they were able to meet asylum seekers face to face in their offices.
If government's chief concern was an increase in the number of unlawful overstayers in the community, the savings from holding unlawful arrivals in protracted detention during the processing stage could be devoted to increased surveillance of all overstayers in the community. This would facilitate their orderly departure from Australia regardless of their racial, national or religious identity.
We have 60,000 overstayers a year. On average there have been 222 boat people a year removed from Australia over the last three years. Each year there are 10 - 14,000 other removals. The others are persons permitted to live in the community, including failed asylum seekers who came having made incomplete disclosures in their applications for business, student or tourist visas.
Would it really have mattered if those extra 222 boat people each year had been in the community rather than in detention at taxpayer expense?
There is no coherent rationale for keeping all unauthorised asylum seekers in detention during the second stage of their processing. Despite ten years of such detention, there is no proof that it operates as a deterrent. No Australian deterrent will ever match the horror of Saddam Hussein or the Taliban who caused these people to flee in the first place. It is not good enough for us Australians to say they can flee anywhere but here. If we insist on securing our borders and making them impregnable, why shouldn't other countries be allowed to do the same?
We Australians have allowed ourselves to be easily spooked. Having just returned from the United Kingdom and the United States, I know that even the most rampant Republicans and Conservatives would find it laughable that the nation work itself into a lather over a boatload of 56 Vietnamese off Port Hedland or 14 Turks off Melville island.
The boats have stopped coming, in large measure because the Indonesians have come to the table with the Bali conference on people smuggling and they are no longer under threat that we will embarrass their generals with calls for war crimes arising from their activities in East Timor. Also the sinking of SIEV X with large scale loss of life sent a clear signal.
So is there any justification for resurrecting Operation Relex with the requirement that Australian navy personnel await direction from Canberra while boat people, including children, are forced to jump into the sea?
Why can't Australia support Norway's proposal to the International Maritime Organisation "ensuring ship masters that they will be permitted and able to deliver persons rescued to a place of safety in some suitable State in all cases and circumstances"?
We have now started excising Aboriginal communities from our migration zone (see Eddie Mabo proclaims great southern rainbow republic). If only our indigenous communities had been able to avail themselves of such legal artifices two centuries ago. Most of us could be deemed never to have arrived.
We Australians enjoy many advantages including our geographic isolation. We are an island nation continent. We have set up a virtual offshore border with our computerised visa system. Just last month, I was present at a US Congressional Committee hearing where our electronic travel authority was being espoused to the US legislators. We live in a neighbourhood which rarely produces refugees.
And we do not have a constitutional bill of rights, so our governments are much more free to interfere with the human rights of asylum seekers in the name of national interest and security, immune from judicial supervision.
Instead of going it alone, we Australians should put the firebreak behind us and co-operate with other countries seeking international solutions to these problems. It is shameful that we have exploited the desperation of Nauru, paying them to set up isolated detention facilities such that ordinary visitors from Australia have to be excluded.
In August this year, I was to visit Nauru as a guest of the local Catholic Church. My visa was duly issued. The day before travel, the Government of Nauru cancelled the visa with this advice:
"Noting that Fr Brennan's request to enter Nauru is not for the purpose of conducting parish or pastoral work with the Catholic mission, I wish to inform you that his application is denied at this stage."
Nauru is more closed to Australians such as myself than was East Timor a year after the Dili massacre in 1991.
For the moment, the boats have stopped coming. Make no mistake. At some time in the future, there will be a fifth wave of boat people regardless of our laws and policies. When a country like Iraq or Afghanistan implodes in future, people will justifiably flee to the four corners of the globe seeking security and protection for themselves and their families. Some people will even turn up in Australia.
The effect is the same as throwing a stone into a pond. Water and ripples emanate even to the remotest corners of the pond. A simple thought experiment highlights the immorality and inequity in world burden sharing resulting from our firebreak. 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 to apply for a protection visa. If anyone dared to flee persecution, they would immediately be held in detention 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. After the 2002 Christmas fires in the gulag of Australian detention centres, one detainee who offered to assist police with their inquiries was given a guarantee by senior immigration officials in Canberra. He would not have to return to a detention centre. He was moved to a motel for nine days and provided information to the police. The guarantee from Canberra was then withdrawn. He had no legal remedy and no political leverage. I thought the treatment he received was unAustralian. But on reflection, I concluded in the wake of Tampa that the treatment was very Australian. Asylum seekers who have arrived in Australia without visas have been used by government as a means to an end. Their detention has been used to transmit a double signal warning other asylum seekers to take a detour to any other country but ours and luring those voters who appreciate a government prepared to take a tough stand against the one who is "other". It is time for the nation once again to respect the dignity and basic rights of those who come to our shores seeking asylum. We should abandon our funding of unaccountable upstream disruption. We should spare our navy life-threatening actions in peace time. We should detain persons, including children, without court orders, only if there is a coherent rationale for such detention. We should abolish the Pacific solution and look after our own asylum seekers on shore. We should permit proven refugees to remain in Australia if they are still proved to be refugees after an initial period of up to three years temporary protection. We should not force people home to places like Afghanistan and Iraq unless satisfied that the cause of persecution has been removed and "that security and access to justice in areas of return is of an acceptable level". We should stop tampering with asylum.
About Frank Brennan
FATHER FRANK BRENNAN SJ AO, a Jesuit priest and lawyer, is an Adjunct Fellow at the Australian National University in the Research School of Social Sciences, Honorary Visiting Fellow in Law at the University of New South Wales, the Director of Uniya, the Jesuit Social Justice Centre in Sydney, and a member of the Council of the Constitutional Centenary Foundation. He has written extensively on Aboriginal Land Rights and is the author of a number of books, including One Land One Nation, Sharing the Country and Land Rights Queensland Style, and is the co-author of Finding Common Ground and Reconciling Our Differences. His books on civil liberties are Too Much Order With Too Little Law and Legislating Liberty.
His academic qualifications are: BA LLB(Hons) Qld BD(Hons) MCD LLM Melb DUniv QUT In 1996, he completed two years of studies and field trips in the Philippines, Cambodia, Uganda and the United States where he was a Fulbright Scholar at Georgetown University and the first Visiting Fellow at the Australia and New Zealand Studies Center. His currents interests and commitments include Aboriginal rights, refugee rights, the bill of rights and constitutional reform, intercultural and inter-religious perspectives on human rights in East Asia. In 1996, he and Pat Dodson shared the inaugural ACFOA Human Rights Award. In 1997, he was Rapporteur at the Australian Reconciliation Convention. During his involvement in the Wik debate, the National Trust named him a Living National Treasure and Paul Keating christened him "a meddling priest". (from the Anglicare Tasmania website)