Indefinite detention, Cornelia Rau and the denial of mental illness
"The government has ... sought to discredit a team of researchers who have, under very difficult circumstances, documented the impact of detention and the elevated rates of suicide, self harm, depression and other mental illness."
"Despite the fact that most of the published articles have been in prestigious peer reviewed journals, the Minister has asserted that their findings are not sufficiently "robust", her justification for paying another psychiatrist, with no research experience but a member of the Liberal Party, $30,000 dollars for an unsolicited and critical review of the research."
"All of this while refusing to allow access for researchers to detention centres so their research could be more 'robust'."
Dr Carmen Lawrence's response to the Cornelia Rau affair and a shift in thinking amongst liberal backbenchers was a speech in Parliament in the week before Easter 2005.
Here's the text of her speech, and as we present it, we applaud Carmen's unwaivering position on some of the issues, because lately we sometimes get the impression, that there are more opponents of Australia's betrayal of human rights amongst Liberal backbenchers than in the Parliamentary Labor Party.
1 January 2007: The Gifts of Carmen Lawrence - The number of contributions from Carmen to the national debate, also but not only about Australia's treatment of refugees and asylum seekers, has kept growing, also on our website - this was the reason we constructed this page to bring all pages, all gifts from Dr Carmen Lawrence together.
30 June 2006: Christine Rau: Dealing with the Aftermath - "...by mid-afternoon, other outlets had already found enough material on the missing persons' website as to scotch any ideas of anonymity. By Saturday morning, her story - and ironically, her identity - was front page news."
20 November 2005: Chris Rau: Try follow the money trail... - "...one thing I keep getting back to, and that all of us should emphasise, is the potential for a public outcry if you follow the money trail. Forget human rights; forget the abuses that are still going on ... people simply don't want to know."
25 October 2005: Chris Rau and her sister's 'illness-mongers' - I'm standing here today with deep disillusionment. I had the misapprehension that I was among idealists; among people who cared for the interests of people who don't have a voice, legally or otherwise. I thought you were all slaving away, with rings under your eyes, doing pro-bono work in your spare time...
5 July 2005: Christine Rau: my sister's 309 days - "Cornelia has had a terrible ordeal and is understandably angry about it. She was locked up in isolation, has said she felt treated like a caged animal, for the crime of mental illness which led her to lie about her identity."
27 February 2005 - Life after Cornelia Rau: a People's Inquiry into Detention? - "last Saturday the Mick Palmer Inquiry Call for Submissions appeared in The Weekend Australian. While I think this should be called the "Mickey Mouse Inquiry", it may be a useful vehicle for some people to submit material."
27 February 2005: Talking about Cornelia: the Baxter detainees Statement - A page about Cornelia Rau, who was "lost" inside Australia as 'Anna', classed as an 'illegal immigrant' without any evidence for this by Department of Immigration staff.
10 February 2005 - The Cornelia Rau Inquiry: an emailed Call to Action - Dear all, the Cornelia Rau Affair and the subsequent government inquiry announced by the Minister for Immigration Amanda Vanstone, should serve all Australians with some very serious food for thought. Sent widely through our contact network.
7 February 2005: Finding Anna: when Immigration gets it really, really wrong - Astounding is the word, but I guess the story is familiar by now. 'Anna', or as we know now, Cornelia, an Australian citizen, went missing, and based on the fact that she was disoriented, spoke some German, and could not be identified, she ends up in Baxter's punishment block, after 'having been assigned' to DIMIA, the Department of Immigration, for being an alleged 'illegal immigrant'.
Indefinite detention, Cornelia Rau and the denial of mental illness
by Dr Carmen Lawrence MP (ALP)
Figures from DIMIA and the International Organisation for Migration (IOM), which manages Nauru, show that some 198 of the 927 people in detention in February have been held for longer than three years.
Many have been incarcerated for longer than this but, since the government refuses to publish precise statistics, it is impossible to determine how long each person has been detained.
Nonetheless, there are several well publicised cases of people being held for much longer periods and without judicial review.
Of these 927 people in detention facilities on 2 February 2005, 222 were in Baxter.
One of those detained on that day was Cornelia Rau, a permanent Australian resident and one of the 3 women of "other nationalities".
Although her detention for 10 months is now a matter of public notoriety, it is perhaps less well appreciated that her detention was most likely illegal. Some lawyers believe there are grounds for questioning the legality of both her initial and her continuing detention under the Migration Act. Perhaps this is why the government is so nervous about apologising in her case. If she successfully sought damages for wrongful detention, she would, at the rates applied in the Goldie case, be entitled to a minimum of $1.5 million. (He and others have been compensated at the rate of $5,000 per day). And that's not counting any damages for failure of duty of care.
Contrary to popular opinion, the majority of those who arrived by boat, and are still in on-shore immigration detention, are not asylum seekers awaiting decisions, but rejected applicants awaiting removal. Among those awaiting deportation are Palestinians, Afghanis and Iranians.
In the case of many of the Palestinians, the Israeli Government has refused to allow them into Israel or the Occupied Territories. The Federal Court initially ordered the release of some of those who had no prospect of immediate return, but the High Court ruled in October 2004 that this indefinite detention was lawful.
Among the 75 Iranians still held many face discrimination and persecution if returned, a reality the Australian Government refuses to recognise despite mounting evidence. The so-called memorandum of understanding with Iran aimed to provide a "credible threat" of involuntary return to Iranian detainees, a threat it was hoped would induce the detainees to request "voluntary" return.
The government has persistently refused to make public the contents of the Memorandum of Understanding which details this agreement, telling the Senate and in answer to one of my questions that it was "not in the public interest" to make the document public. They have also consistently refused to provide any guarantees for the safety of those deported to Iran, or anywhere else for that matter. Or to monitor their safety on return.
This, despite the fact that the head of the United Nations Working Group on Arbitrary Detention, Justice Louis Joinet, has made it clear that, having visited Iran to inspect the human rights situation, he came away with deep concerns about the nature of Australia's agreement with Iran, particularly the fact that "There are no guarantees as to what will happen when they (Australian detainees) are returned to Iran". He also expressed scepticism about whether so-called voluntary returns would actually be voluntary.
There is no doubt that the Howard government does not regard itself as seriously bound by our international treaty obligations. But even by their degraded standards, this represents a flagrant disregard of the obligations under the Refugee Convention not to return a refugee to "a place where his or her life or liberty is threatened" and of the Torture Convention not to send a person to "a place where there is a real prospect of torture".
While the Federal Government has insisted that none of the Iranians threatened with forcible deportation are owed protection under Australia's migration laws, many of those facing deportation fear that, by the very act of providing information for their refugee applications, they have exposed themselves to greater danger if they are returned to Iran.
This is especially true for those who are easily identified by religion, occupation or region, even if their names are withheld. Louis Joinet told radio journalist, Tom Morton, "the very act of fleeing takes on a political complexion" and in certain cases, "this has given rise to persecution". Former minister Ruddock's response to this elevated risk to those forced to return was the implausible conclusion that if Australia's refugee assessment process has found that they are not refugees, i.e. that they do not have a well-founded fear of persecution, then they will not be persecuted. By definition.
Australia's detention centres now accommodate many people awaiting removal who have no realistic prospect of being sent to any other country. Nor has the government pursued third country resettlement options for these people. Instead they have insisted that if they have failed their refugee claims, it is safe to return them to their country of origin.
The Government argues that these people are in detention only as long as they choose to be - that they can return "home" at any time. The Government keeps them in maximum security without public scrutiny, threatens them with deportation, opposes their legal applications, and gives them the choice between staying or going, a policy which ignores the impossibility of that "choice" for the stateless and those who are genuinely terrified of retribution.
What's more, the experience of the long term detention has damaged the judgement of some the detainees - mental illness, depression, pride, fear and unreliable or mistrusted information about their home circumstances all contribute to this inability.
The High Court decision of last year in the cases of Mr Al Kateb and Al Khafagi means that as elected representatives in this Parliament we now have to squarely confront reality; the reality that so-called failed asylum seekers who cannot be deported can be held indefinitely under the laws this Parliament passed. There is no constitutional remedy.
While the decision raised precious little comment from the media, it should have, since it followed acrimonious division in the High Court and created precedents for a dramatic reduction in the protection of fundamental human rights in Australia. The majority in the case appear to have persuaded themselves of the improbable proposition that "the executive detention of a stateless person indefinitely, and perhaps for life, cannot be regarded as punitive". Consequently, the Court concluded it could not intervene to order his release. The decision effectively allows unlimited executive power to deprive individuals of their liberty.
As La Trobe law Professor Zifcak has emphasised, in reality the Court determined that a stateless person, who has committed no offence against any law of Australia and who has requested deportation following the failure of his application for refugee status "could be detained here indefinitely, and if necessary for life, if no foreign country were willing to receive him".
And the court has ruled in Behrooz that it makes no difference that such detention possibly involves harsh or inhuman treatment of detainees. The House should be aware that Mr Behrooz, in the case above, has since been taken into the protective custody of the Public Advocate of S.A. because in Mr Behrooz' mental state had deteriorated to such an extent that he could no longer remain in immigration detention. He is still gravely ill, apparently being prone to periods of muteness, at others rambling incoherently.
In other judgements (Re Woolley), the High Court has confirmed that the Immigration Act does not even provide children with legal or constitutional immunity from mandatory detention; children are in the same position legally as their parents. They too can be detained indefinitely under legislation passed by this Parliament. And there is no constitutional remedy.
There is no doubt that Australia's incarceration of children breaches our obligations under several U.N conventions to which we are signatory, including the Convention on the Rights of the Child, and constitutes a calculated assault on children's human rights. It has been pointed out that the Court could not take account of these or other matters, including the HREOC report's evidence of the systematic abuse of children and the psychological harm inflicted on them by the detention regime. The legislation makes no distinction between children and adults.
Although, as one lawyer put it, the judgement in the Al Katab case is "uncompromisingly ruthless", the responsibility for remedy is the Parliament's - blame cannot be shifted.
The people about whom the judgment was made, Abbas Al Khafagi and Ahmed Al-Kateb - and others like them - have nowhere else to go. There's no place on earth that will allow them entry and Australia doesn't want them either, except under lock and key.
Even Australians with the hardest hearts surely cannot sleep easily knowing that their government insists that we condemn stateless people - men, women and children - to live out their lives behind locked gates walled in forever. Even the Minister found it unpalatable since the two gentlemen in question are in the community on "bridging visas". What will happen to them now is anyone's guess.
Surely most Australians would flinch at the plight of Muhammad (sometimes called Peter) Qasim, who has already been in detention for six years - with nowhere else to go. He is stateless, and increasingly desperate. As he put it in a letter to me - "I have committed no crime, but I have a life sentence."
It appears that Qasim came to Australian from Indian-occupied Kashmir after his father, a separatist activist, was murdered and Qasim himself tortured by Indian security forces. His application for asylum failed and he has been in detention ever since. The government wanted him to return to India and eventually he agreed to go; but India will not take him. He is now stateless, so, apparently, he is to remain locked up forever.
The Department continues to insist that he has not co-operated with authorities and has revised his account on several occasions. People who have seen Peter's full file under FOI refute DIMIA's interpretation. Even if the Department are to be believed, detention for six years seems a severely disproportionate response.
Why would Peter Qasim conspire in his own continuing detention?
Without charge, without sentence, without end. I am informed he now spends much of his time curled up in a foetal position.
There is a cruel symmetry between the way many of our forebears arrived on these shores and the treatment we have meted out to the latest boat arrivals - and they committed no crimes, even petty ones.
There are other reasons to be concerned about the current regime. Firstly, it sets a dangerous precedent providing the government with the power to indefinitely detain individuals who have not been charged with an offence (just like Hicks & Habib have been) and who have nowhere else to go.
It is also worth noting that the High Court was seriously divided over such an important constitutional issue (4-3) which calls into question the longevity of this position, especially as one of the majority judges is soon to retire.
At its core, the policy of indefinite, mandatory detention contains a flagrant disregard for our human rights obligations under international law. Australia is a voluntary signatory to various international treaties and declarations - indeed we helped draft some of them. The most important of these is the UN International Refugee Convention, which requires host countries to treat asylum seekers with dignity and respect while their claims for asylum are being analysed. The current policy contravenes these principles, and has caused considerable damage to Australia's reputation as a fair and just nation. The policy is also clearly in contravention of Article 10 of the International Covenant on Civil and Political Rights and article 37 of the Convention on the Rights of the Child.
In addition, the reasons usually given for initial detention - health, security and identity checks - are no longer applicable to those in indefinite detention. It's quite clear that such people are not a danger to the community and are not likely to abscond, arguments supported by the fact that some of them have been granted Bridging Visas so they can live in the community.
The argument that their continued detention sends a clear message to people smugglers is based on the premise that detention will be seen as a punishment for using a people smuggler. Under the Australian constitution, only the courts are allowed to administer punitive detention. Therefore if we are "sending a clear message to the people smugglers" we are in breach of our constitutional separation of powers.
There are also more mundane reasons for abandoning this practice, including the cost to the taxpayer. The current estimate for detention is approximately $87m per year for accommodation, staff and other administrative costs. In evidence to the additional estimates Senate hearing on 17 February 2004, DIMIA officials reported that the average detention centre costs for 2003-04 were between $111 to $725 per person per day and that asylum seekers generally made up 50% of the detainee population.
Long-term detention of asylum seekers not only violates their human rights, it is damaging to their health. A growing body of health professionals has voiced their concerns for the deteriorating health and well being of detainees, many of who experience depression, mental anguish, trauma and psychological damage in detention.
Many asylum seekers have sought refuge in Australian because they are the victims of torture and persecution, fleeing human rights abuses, often leaving their families behind. Others have seen family and friends killed by brutal regimes and are still grieving their losses. Some come from war zones. Such experiences are known to be predictive of later serious mental illness and such people are particularly likely to be harmed by further detention, especially if they are confronted by the possibility of deportation if their applications fail.
The mere fact of indefinite detention is bad enough, but degrading treatment is also regularly meted out in these centres. Allegations of the mistreatment of Cornelia Rau in Baxter are, sadly, typical. There are numerous reports of naked hostility being expressed by the staff toward the detainees. In letters to supporters, people in detention often report that they are treated with disrespect and endure petty humiliations and intrusions into their privacy. Isolation detention and force are routinely used. People are identified by numbers, not names.
The ill treatment of refugees in Australia is confirmed in a series of reports which have documented the effects of current policies on those detained - the United Nations Human Rights Commission, the Australian Ombudsman, the Human Rights and Equal Opportunity Commission and Human Rights Watch, the Joint Standing Committee on Foreign Affairs, Defence and Trade, to name but a few.
Not surprisingly, every independent inquiry into immigration detention has drawn attention to the poor mental health of detainees and the particular risks to children's well-being. (1) Despite the campaign of denial by the government and departmental officials, systematic research, case studies and the accounts of people who have worked in detention centres now provide compelling and incontrovertible evidence of the destructive effects of prolonged detention.(2)
Such research has revealed high rates of post-traumatic stress disorder, depression, anxiety and panic attacks, attempted suicides and self harm. The longer people are held in detention, the worse the symptoms are likely to be, adding to the already high levels of psychopathology among those who've experienced persecution, harassment, torture and physical assaults.
Children are particularly vulnerable to the toxic effects of detention, responding to the atmosphere of despair in which they live, witnessing violent and traumatic incidents including self harm and attempted suicides, not to mention the powerlessness of their own parents.
Among children, detention produces a well documented range of psychological disturbances, including mutism, withdrawing from contact with others, bedwetting, refusals to eat and drink, as well as acts of self-harm and attempted suicide.(3)
Attempts by the Government to Discredit Researchers and Minimise the Destructive Effects of Detention
Despite the now overwhelming evidence of psychological harm, there has been an official refusal to confront the consequences of the policy. A former Minister for Immigration even denied that depression is a mental illness. (4) In answering a Senate question about the incidence of mental illness in detention, he actually excluded depression as a category of mental illness and said in a later interview, "I'm not sure that everybody would regard depression as a mental illness."
The government has also sought to discredit a team of researchers who have, under very difficult circumstances, documented the impact of detention and the elevated rates of suicide, self harm, depression and other mental illness. Despite the fact that most of the published articles have been in prestigious peer reviewed journals, the Minister has asserted that their findings are not sufficiently "robust", her justification for paying another psychiatrist, with no research experience but a member of the Liberal Party, $30,000 dollars for an unsolicited and critical review of the research. All of this while refusing to allow access for researchers to detention centres so their research could be more "robust".
Options for Change
Peter Qasim - and others like him - is condemned for the term of his natural life. And there's nothing he or they can do about it - except appeal to the Minister to use her discretion to release them. And she should - she must.
But we also have to change the law.
The implications of the High Court decision should shock all Australians.
The decision shows that we, a so-called advanced democracy, have no effective protections against arbitrary imprisonment by the State. Our Constitution and laws allow innocent people - people we call aliens - to be locked up without hope of release.
While we can urge the Minister to use her discretionary powers to release Muhammad Quim and others whose hopes of a Court ordered release have been dashed by this decision, we cannot escape the inevitable consequence of the decision. We need a Bill of Rights to protect civil liberties and to constrain the actions of the government.
In my view, the brutality of the current system means that we must change the Migration law to outlaw indefinite detention. There are several ways in which the current regime could be changed. We could:
We need to revive our commitment to the principle that lies at the heart of our Western, liberal tradition - that every person has the right to be free; a right that is second only to the right to life itself.
The right that is embodied in the common law principle that only courts after proper charge and trial - and not government - should decide who is deprived of their liberty.
It is also a fundamental provision of many of the conventions and treaties to which we are earnest signatories - for, example the International Covenant on Civil and Political Rights, Article 9 (1), which provides that:
Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such provisions are established by law.
But successive Australian governments have ignored these conventions when dealing with asylum seekers. We cannot rely on them or the Courts to protect asylum seekers from indefinite detention - the struggle for their freedom has to be joined in this Parliament.
We must ensure that our domestic law fully enshrines the principle that imprisonment should occur only after conviction by a court, not by arbitrary action of government.
We should do as other countries have done and withhold from the Executive the power of unlimited detention.
And we should enshrine this principle in a Bill of Rights.
The Court's decision means there is nowhere to hide.
It's our responsibility. We must act.
 Z Steel, S Momartin, C Bateman, A Hafshejani, D Silove, N Everson, JK Salehi, K Roy, M Dudley, L Newman, B Blick, S Mares, S Raman, J Everett. 'Psychiatric status of asylum seeker families held for a protracted period in a remote detention centre in Australia', in Z Steel, The politics of exclusion and denial the mental health costs of Australia's refugee policy, Keynote address, 38th Congress Royal Australian and New Zealand College of Psychiatrists, Hobart, 12-15 May, 2003
 T Thomas and W Lau, 'Psychological Wellbeing of Child and Adolescent Refugee and Asylum Seekers, Overview of Major Research Findings of the Past Ten Years', HREOC Inquiry Research Paper, 2002.
 HREOC report (2004
 SBS Insight, May 8, 2003