: Living hope
A Fair Go in an Age of Terror: Living Hope!
Frank Brennan SJ AO
Drill Hall, Colleges of Theology and Law
University of Notre Dame, Fremantle
14 May 2004
We are stepping into an election year both here and in the United
States where the incumbents John Howard and George W Bush have led
the initiatives for countering the emerging terrorist threat revealed
and unleashed by the events of September 11, 2001. There is the
risk that any consideration or critique of these initiatives can
be seen to be party political or partisan. That is not my purpose.
I am quite agnostic as to whether Mark Latham or John Howard would
be any more solicitous of human rights and protective of Australian
identity in response to such a crisis. My agnosticism extends to
all other conceivable inhabitants of the Lodge in the foreseeable
future. Though it is important to examine the conduct of political
leaders in the past, my purpose is to see how robust our democratic
processes are for finding the right balance, and how informed and
committed we are in insisting that our politicians not cut corners
in the name of national security. This is an increasing challenge
in a society with an aging population who can be expected to be
worried about their security whatever the inconvenience to others
and with a group of youth who feel marginalised from the decision
making processes of the society.
At times of national insecurity, there is an increased need for
citizens to trust their political leaders and those leaders are
likely to feel very acutely any criticism of their discharge of
that trust. There are lessons for us, without our canonising or
demonising any particular political actors.
Jim Wolfenson, President of the World Bank, in an address in February
on a return visit to Australia, his home country, gave us an inspiring
introduction to our seminar topic, A Fair Go in an Age of Terror:
Countering the Terrorist Threat to Human Rights and the Australian
Identity. He said:
I was fascinated today in my discussions with civil society to
learn that, in a poll of Australian society, 85% of people were
prepared to support development assistance, and some 53% of them
supporting it strongly. But when asked the reasons why they supported
it, it was not enlightened self-interest, it was not protection
against terror, it was because it was morally and ethically right.
I found that a remarkable statistic and a great tribute to the
Australian people, in terms of what drives this country, in terms
of its sense of equity and social justice.
We shouldn’t be afraid to say that a ‘fair go’
or a ‘fair share’ or a sense of equity is something
that drives us. Too few people in the world are doing that today.
1. When are we justified in going to war?
In September 2002, the United States National Security Council
published The National Security Strategy of the United
States of America:
For centuries, international law recognized that nations need
not suffer an attack before they can lawfully take action to defend
themselves against forces that present an imminent danger of attack.
Legal scholars and international jurists often conditioned the
legitimacy of preemption on the existence of an imminent threat—most
often a visible mobilization of armies, navies, and air forces
preparing to attack.
We must adapt the concept of imminent threat to the capabilities
and objectives of today’s adversaries. Rogue states and
terrorists do not seek to attack us using conventional means.
They know such attacks would fail. Instead, they rely on acts
of terror and, potentially, the use of weapons of mass destruction—weapons
that can be easily concealed, delivered covertly, and used without
The targets of these attacks are our military forces and our
civilian population, in direct violation of one of the principal
norms of the law of warfare. As was demonstrated by the losses
on September 11, 2001, mass civilian casualties is the specific
objective of terrorists and these losses would be exponentially
more severe if terrorists acquired and used weapons of mass destruction.
The United States has long maintained the option of preemptive
actions to counter a sufficient threat to our national security.
The greater the threat, the greater is the risk of inaction—
and the more compelling the case for taking anticipatory action
to defend ourselves, even if uncertainty remains as to the time
and place of the enemy’s attack. To forestall or prevent
such hostile acts by our adversaries, the United States will,
if necessary, act preemptively.
The United States will not use force in all cases to preempt
emerging threats, nor should nations use preemption as a pretext
for aggression. Yet in an age where the enemies of civilization
openly and actively seek the world’s most destructive technologies,
the United States cannot remain idle while dangers gather. We
will always proceed deliberately, weighing the consequences of
our actions. To support preemptive options, we will:
- build better, more integrated intelligence capabilities to
provide timely, accurate information on threats, wherever they
- coordinate closely with allies to form a common assessment
of the most dangerous threats; and
- continue to transform our military forces to ensure our ability
to conduct rapid and precise operations to achieve decisive
The purpose of our actions will always be to eliminate a specific
threat to the United States or our allies and friends. The reasons
for our actions will be clear, the force measured, and the cause
The United States now claims the prerogative for unilateral action
not only in making pre-emptive strikes against imminent threats
but also in taking preventive action to destroy a prospective enemy's
capacity to become a threat. Bush claims a mandate for "deal(ing)
with those threats before they become imminent". The bottom
line for Bush with Saddam Hussein was: "the fact that he had
the ability to make a weapon. That wasn't right."
2. When should we join with the United States in such preventive
action, without endorsement from the United Nations?
The invasion of Iraq was consistent with the previously published
neo-conservative agenda of Mr Bush's key advisers. Regime change
in Iraq was a centre-piece of their agenda. Our own Defence Intelligence
Organisation (DIO) told our parliamentary inquiry into the intelligence
operations preceding the recent war: "We made a judgement here
in Australia that the United States was committed to military action
against Iraq. We had the view that that was, in a sense, independent
of the intelligence assessment."
When tabling the unanimous, all-party report, the government member
David Jull told Parliament of the Committee's conclusion "that
there was unlikely to be large stocks of weapons of mass destruction,
certainly none readily deployable." We did not go to war because
there was an imminent threat to our security. We went to war because
the Americans asked us to. The reasons they asked us to go to war
have become a movable feast. Before the war, Prime Minister Howard
insisted, "Our goal is disarmament." "I couldn’t
justify on its own a military invasion of Iraq to change the regime.
I’ve never advocated that." The problem was that George
Bush's advisers had and that is what they got. Howard told parliament
that Iraq's "possession of chemical and biological weapons
and its pursuit of a nuclear capability poses a real and unacceptable
threat to the stability and security of our world". Walter
Lewincamp, the head of DIO, said this "was not a judgement
that DIO would have made." They just weren't asked!
Even if the United Nations Security Council be not considered formally
to be the competent, relevant authority for deciding just cause
for war, it remains a suitable sieve for processing the conflicting
claims in determining whether there is "a real and unacceptable
threat to the stability and security of our world" and whether
or not war is the only realistic resort. The French and Germans
would have a mixture of motives for their stand, just as the English
and the Americans would have for theirs. Given the mix of motives,
the elusiveness of truth, and the now admitted unreliability of
the intelligence, it would be better in future to have decisions
made by a community of disparate nations united only by a common
concern for international security against terrorism rather than
a coalition of allies who either share or are neutral about the
strategic objectives of the US administration.
Our politicians have a difficult call to make when assessing intelligence
about the likelihood of weapons of mass destruction being developed
and handed on to terrorist organisations that have no respect for
western nations. In times of crisis, we need to trust our leaders.
But it becomes more difficult to grant that trust when the rationale
for war is changed after the event. The belated emphasis on the
humanitarian concern for the Iraqi people was rank hypocrisy coming
from the United States which had first given Saddam Hussein his
WMD capacity for countering Iran and from an Australian government
which had punished Iraqi asylum seekers who had the temerity to
seek asylum within our borders. Trust in government would be better
maintained if Mr Howard simply admitted that his public rationale
for war was the honouring of the US alliance no matter what the
doubts about the wisdom of seeking Iraqi regime change without UN
endorsement, and the concern about readily deployable weapons of
mass destruction no matter what the shortcomings in the intelligence.
Prior to the Madrid bombings, many Australians thought our participation
in the war was justified because the world was now a safer place,
we had won without any Australian loss of life, and the murderous
Saddam Hussein had lost power. Post-Madrid, we have to question
whether the world is now a safer place and whether Australia is
at no greater risk of being a special target of terrorist groups.
3. What is the role of religious leaders in assessing the case
In the lead up to the war, the church leadership in the US, UK
and Australia was remarkably united in its criticism of the public
rationale offered for war. However, there was a variety of views
about the margin for error to be afforded to government. When asked
about the clear opposition from church leaders such as the Archbishop
of Canterbury, John Howard told the National Press Club: "There
is a variety of views being expressed. I think in sheer number of
published views, there would have been more critical than supportive.
I thought the articles that came from Archbishop Pell and Archbishop
Jensen were both very thoughtful and balanced. I also read a very
thoughtful piece from Bishop Tom Frame, who is the Anglican Bishop
of the Australian Defence Forces. The greater volume of published
views would have been critical, but I think there have been some
very thoughtful other views and the ones I have mentioned, I certainly
include in them."
Once the war commenced, Archbishop Jensen said, "For my own
part I remain unpersuaded that we ought to have committed our military
forces, but I recognise the limitations of my judgment and the sincerity
of those who differ." In the month before the war, Bishop Frame
had said: "I am now inclined to believe a campaign against
Iraq during the next few months involving Australian Defence Force
personnel would be just." Three months after the war, Bishop
Frame said: "If it is established that the weapons did not
exist and the Coalition did or should have known this, the war will
not have been justified and must be deemed immoral. A case for war
against Iraq based solely on ‘regime change’ would have
been inadequate and I would have been obliged to share this conclusion
with those for whom I have a pastoral responsibility. " On
Palm Sunday 2004 Bishop Frame announced his "considered conclusion
that the war against Iraq was neither just nor necessary".
Let me give you a selection of quotes from his Palm Sunday address
to the ecumenical peace rally held in Perth:
My conclusion is simply that the war cannot be reconciled with
just war principles nor, in my judgement, are there grounds for
claiming it was strategically necessary.
One year on, it would appear that no-one now seriously entertains
the prospect that WMDs will ever be found in Iraq.
I do not agree with those who say it is still too early to make
ethical judgements about the war itself. Perhaps it is too early
for political and strategic assessments but there is sufficient
data to allow ethical determinations to be made.
As I look back on the events of the last twelve months I continue
to seek God’s forgiveness for my complicity in creating
a world in which this sort of action was ever considered by anyone
to be necessary. Even so, come Lord Jesus. Amen.
It is helpful to quote Bishop Frame at some length for three reasons.
He was the clearest public advocate for war in the Australian church
hierarchies before the war. He is a senior military chaplain who
was himself an officer in the services before his ordination. And
most significantly as he now tells us:
In the weeks leading up to the commencement of hostilities on
20 March 2003 I had direct dealings with the Prime Minister and
senior ADF officers concerning public anxieties over the prospect
of Australian involvement in a US-led campaign against Iraq. I
wrote two articles for The Australian newspaper concerning the
matter because I was asked by many ADF members to assess ethically
the case for war as it was presented by the Government.
Just last month, Bishop Frame spoke up again, telling the Canberra
Times that he no longer believed the war was justified. The newspaper
summed up Frame's analysis in these terms: "But one year on,
except that the war itself had been brief and civilian casualties
had not been unreasonably high, the case for a just war had failed
on all other just war criteria." Bishop Frame said:
I took the view the case the Government was putting was really
only a fraction of what was actually known and that the Government
was not in a position to disclose all it knew.
The many people I consulted believed once the campaign was waged
we would see the full extent of what Iraq possessed.
It was put to me including by some members of the Government
that Iraq was a reprehensible regime. We are not proposing to
take similar action against equally reprehensible regimes around
I have never and do not now believe the Government deliberately
misled or lied to the Australian people. The Government just assumed
the weapons would be there.
In future the public is going to be far more unconvinced about
threats to Australia's security than before. That may be no bad
Speaking on ABC Radio National on 14 April 2004, Bishop Frame said
in light of the absence of weapons of mass destruction and the absence
of means or motive for Iraq to have been a threat to its neighbours,
"It would be impossible for me to say now that the war in Iraq
was just….I could not and cannot take that view now and that's
something that sits very uneasily with me but it's the way my conscience
has driven me when I've considered what's at stake here."
Despite the Prime Minister's fudging of the issue, Cardinal Pell
has never given any public indication that the war was justified.
Pell did not make any clarifying statement once the war commenced.
He left stand his earlier caveat, "The public evidence is as
yet insufficient to justify going to war, especially without the
backing of the UN Security Council," as well as the statement
of the Australian Catholic Bishops' Conference to which he was a
signatory: "With the Holy See and many bishops and religious
leaders throughout the world, we believe that the strict conditions
of Christian teaching for the use of military force against Iraq
have not been met. In particular, we question the moral legitimacy
of a pre-emptive strike. Indeed, any action against Iraq without
broad international support and the mandate of the United Nations
Security Council would be questionable." The Prime Minister's
statements and the Cardinal's later silence left many Catholics
confused. Presumably the Prime Minister drew solace from the cardinal's
pre-war observation, "Decisions about war belong to Caesar,
not the church." Though Caesar makes the decision, the church
must discern and comment on the morality of that decision. Church
leaders must publicly help their people make the moral assessment.
It is not good enough to suspend the moral faculty and simply trust
the government of the day. If we do that with war, then why not
with any other moral issue? When it comes to war, Cardinal Pell
by his silence in response to the Prime Minister's spin is allowing
more scope for an unformed or uninformed conscience than most other
church leaders, including the Pope.
4. What now are the criteria for our participation in a just war
in this Age of Terror?
A post World War II settlement of the UN Security Council configuration,
including allocated seats enjoying a permanent veto cannot be determinative
of any moral assessment about war. However when prudential assessments
of threats have to be made on intelligence against a backdrop of
continual breaches of solemn undertakings by a rogue state, the
Security Council does provide a useful sieve for getting willing
combatants over the threshold of their own self-interest and ideology
to a publicly reasoned rationale for military engagement. If western
democratic members of the Security Council cannot be convinced of
the need for war, there are good grounds for citizens to suspect
that the conditions for a just war have not been fulfilled. If such
members voted for war, there would still be a need to scrutinise
the conditions for a just war.
There was a surprising unanimity of views amongst church leaders
opposing the Iraq invasion on the grounds that it did not comply
with the just war criteria. On the eve of war, Bishop Gregory, the
head of the US Catholic Bishops Conference said:
Our bishops' conference continues to question the moral legitimacy
of any preemptive, unilateral use of military force to overthrow
the government of Iraq. To permit preemptive or preventive uses
of military force to overthrow threatening or hostile regimes
would create deeply troubling moral and legal precedents. Based
on the facts that are known, it is difficult to justify resort
to war against Iraq, lacking clear and adequate evidence of an
imminent attack of a grave nature or Iraq's involvement in the
terrorist attacks of September 11. With the Holy See and many
religious leaders throughout the world, we believe that resort
to war would not meet the strict conditions in Catholic teaching
for the use of military force.
As early as September 2002, the US bishops had told the President,
"We fear that resort to force, under these circumstances, would
not meet the strict conditions in Catholic teaching for overriding
the strong presumption against the use of military force. Of particular
concern are the traditional just war criteria of just cause, right
authority, probability of success, proportionality and noncombatant
immunity." The bishops maintained that view.
The suspected capacity to produce weapons of mass destruction is
not itself just cause for an attack. Even if a state or a coalition
of states is able to claim that it is the right authority to make
a decision about war, that authority must be able to produce credible
evidence about the possession of such weapons and the distinctive
threat they pose to those states wanting to launch an attack. If
you cannot convince the western democratic members of the UN Security
Council that there is a real threat to world peace or a real and
unacceptable threat to particular states, it is very likely that
you are not engaged in war for a just cause. Even if the coalition
of willing states be the appropriate authority, they still need
to demonstrate that all other avenues have been tried to disarm
the rogue state. If the coalition of willing states has provided
the incentive for renewed inspections by pre-deploying troops, the
coalition is entitled to put a reasonable limit on the terms of
pre-deployment or to demand that other states opposed to war provide
assistance with the pre-deployment simply to maintain the pressure
for verifiable inspections. Even if the US had established that
it was a competent authority to determine that there was a just
cause for war which was a last resort, there would still have been
a need to consider the consequences of such an engagement.
The nonchalance and belated show of humanitarian concern by the
Coalition of the Willing after they had failed to uncover large
stockpiles of weapons of mass destruction confirms the suspicion
that the Coalition's leader, the United States, had an alternative
agenda, namely regime change in Iraq, an attempted re-ordering of
the Middle East, and an experiment with a new American project premised
on preventive intervention. Those who oppose such ideological experiments
in the future will do better if they are able to articulate more
clearly the margin of appreciation afforded governments which are
privy to sensitive intelligence material. Even if such opponents
fail to agree on whether the UN Security Council is the competent
authority to determine the legitimacy of war, they ought put forward
a united view that the Security Council is the most appropriate
sieve for sorting the conflicting claims made by nation states which
may be the appropriate authority. The UN Security Council is well
qualified to sift out those claims of nation states based only on
ideology or national self-interest.
The Coalition of the Willing’s failure to find any weapons
of mass destruction and its inability without UN endorsement and
Arab acceptance to impose secular democracy on factionalised Iraq
give us good grounds to return to the orthodox theory of just war,
adapting the application of the criteria to the contemporary situation.
The Catechism of the Catholic Church sets down the strict conditions
for legitimate defense by military force (Para 2309):
- the damage inflicted by the aggressor on the nation or community
of nations must be lasting, grave, and certain;
- all other means of putting an end to it must have been shown
to be impractical or ineffective;
- there must be serious prospects of success;
- the use of arms must not produce evils and disorders graver
than the evil to be eliminated. The power of modem means of destruction
weighs very heavily in evaluating this condition.
- the evaluation of these conditions for moral legitimacy belongs
to the prudential judgment of those who have responsibility for
the common good.
5. What are the checks and balances we need to maintain our human
rights and Australian identity in an Age of Terror?
Confronted with terrorist threats reaching our shores, government
has a responsibility to arm police, defence and intelligence personnel
with the powers to protect us while respecting the civil liberties
of all persons. We Australians are now on our own with no Bill of
Rights to guide our judges or restrict our governments. But for
the government's incapacity to control the Senate, it would be able
to ram all sorts of legislation through the Parliament. Checks and
balances are often time consuming, and they often provide opportunities
for minor parties and sectional interest groups to engage in petty
point scoring. The Senate and the parliamentary committee system
worked well when the government tried to bluff the Parliament into
passing amendments to the ASIO legislation that would have entrenched
very draconian measures on our statute books in 2002. Originally
the government proposed that ASIO would be able to detain any person
incommunicado, including a child. ASIO would have been able to detain
indefinitely any person without charge or even suspicion. While
detained, any person could have been strip searched, questioned
for unlimited periods and prevented from contacting family members,
their employer or even a lawyer. They would not even be able to
inform loved ones that they had been detained. They could have been
denied legal advice.
Senator John Faulkner said that "the original ASIO bill was
perhaps the worst drafted bill ever introduced into the Australian
parliament." Thanks to the Senate, the legislation is now more
protective of human rights, more in the Australian way, while being
adapted to the present terrorist threat. There was a lengthy stand-off
between the government and the Senate over this legislation. Before
Christmas 2002 when the legislation was deadlocked John Howard warned,
"If this bill does not go through and we are not able to clothe
our intelligence agencies with this additional authority over the
summer months it will be on the head of the Australian Labor Party
and on nobody else’s head." The government then further
delayed the legislation so it could be added to the mix of a double
dissolution election, if need be. Having been introduced in March
2002, the legislation was passed in highly amended form in June
2003. The legislation now contains a three year sunset clause so
it has to be reviewed again by our parliamentarians after the next
election. Sir Harry Gibbs provided an assessment of the final product
in his Australia Day address to the Samuel Griffith Society. He
notes that the powers given to ASIO are "drastic" and
"only experience will show whether (the) safeguards are sufficient".
Gibbs says the law goes too far in prohibiting lawyers and others
publishing information about the questioning of any person. This
could "prevent publication of the fact that an abuse of power
or a serious error of judgment had occurred." The government
likes to portray the Senate as obstructionist but the Senate has
modified national security legislation to better protect civil liberties.
When we go through a down in the political cycle with government
encountering little opposition in the House of Representatives or
on John Laws and Alan Jones' radio programs, it is difficult to
conduct robust public dialogue about policies related to minorities
and national security. Fear and flabbiness take over. There is an
ongoing deficit in public honesty and rigorous inquiry when it comes
to debate about the morality of our engagement in war, about the
limits of ASIO's powers, about our treatment of asylum seekers and
the identification of their deprivations with national security
and border protection needs. There is an important democratic role
for unelected citizens, including church leaders, to question government's
public rationale and private purpose, to correct the misperceptions,
and to espouse rational and coherent policies that do less harm
to vulnerable people and to our peace and security. We would all
profit from more respectful and rigorous dialogue between elected
politicians and unelected community leaders, including between church
6. How have we come to harden our hearts against boat people with
a policy that is so morally flawed?
I have a thought experiment about our present refugee policy in
Imagine that every country signed the Refugee Convention and
then adopted the Australian policy. No refugee would be able to
flee from persecution to protection without being placed in detention.
If they wanted to avoid long term detention while their claim
was processed, they would have to remain in their country of persecution
joining the mythical queue for a protection visa. If anyone dared
to cross a border fleeing persecution without a visa, 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 government has its own thought experiment which is described
by Adrienne Millbank in these terms:
Imagine if every country did as Australia does, and after consulting
with its residents, takes in the per capita equivalent of our
12,000 annual humanitarian settlers , through similar managed
programs and with similar settlement or 'integration' services.
Imagine further that even half of what is spent on processing
and supporting asylum seekers in Western countries is redirected
to resolving the situation of refugees in camps. New refugee norms
would be developed, durable solutions would be found, and all
those refugees who need to be resettled in countries other than
in their region would be offered places. And the hypocrisy, misery
and conflict associated with the asylum system would be ended.
The Millbank thought experiment, like much of the government's
thinking, is posited on the presumption that Australia is not, and
is not likely to be, a country of first asylum. For me, this remains
questionable as a universal assertion of fact and as a legitimate
starting point for formulating a policy which may need to be applied
to a mass influx of persons fleeing persecution in a place like
West Papua or East Timor.
It is desirable that more resources be dedicated to the neediest
refugees in remote camps and that people smugglers not enjoy the
franchise on who may access the Australian queue for processing.
But there must be moral limits applied to government's novel experiments
in achieving these worthy objectives. The present Australian policy
is based on a utilitarian approach which violates some fundamental
moral norms. My fundamental disagreement with the Howard government
arises from government's assertion that the ends justifies the means
in the treatment of unvisaed asylum seekers.
The end is to stop unvisaed asylum seekers reaching Australia and
invoking our international obligations to process their claims and
to offer them protection if it is deserved. Given that Australia
has a relatively generous offshore refugee program, I concede that
this end is justified. Government then argues that the end cannot
be achieved except with very stringent measures because desperate
people will use any means to reach here, including the employment
of the services of unscrupulous people smugglers. I argue that the
means adopted must still be morally assessed. There can be no justification
offered in an open democracy for "upstream disruption"
programs whereby Australian taxpayers' monies are handed to Indonesian
officials to commission underhand activities on the understanding
that we are not to be told what has been done to stop the boats
It is not sufficient to argue that it is appropriate to treat X
in an adverse way thereby guaranteeing a better outcome for Y and
a more ordered situation for all. The government position runs:
if X arrives without a visa, we are entitled to place X in detention,
either here or offshore, so as to send a signal to Z and others.
If X is then proved to be a refugee, we are entitled to deny X the
right of family reunion so as to send another signal to Z and others.
My argument runs: if X is to be held in detention (especially if
X be a child), there must be a coherent rationale offered for the
detention other than using X as a means to an end, sending signals
to others. If there be no coherent rationale, the detention is unjustified.
The government's own statistics demonstrate a lack of proportionality
and unwarranted discrimination in the detention of unvisaed asylum
seekers while other asylum seekers are permitted to reside in the
community. Mandatory detention does not assist with the processing
of claims. It does not contribute to the more effective removal
of unauthorised overstayers. Detention of X without a court order
as punishment for an offence is justified only if X is a health
or security risk or if there is still a need to establish the identity
of X. Such detention as punishment does not even achieve the utilitarian
objective of deterrence. The largest wave of boat people came when
the mandatory detention regime was in place and well advertised.
If X is proved to be a refugee entitled to protection in Australia,
X and X's family members should not be denied the capacity to even
meet during the period of protection simply so as to send a signal
to Z and others. This is an arbitrary and discriminatory denial
of an individual's human rights simply to send a message to others.
Effectively government is saying, "We will continue punishing
X so as to continue sending a message to Z and others." X is
being used by government as a means to an end not just during X's
time of detention but throughout X's time of temporary protection.
If X has entered waters under Australian control, Australia ought
process X's claim and accommodate X during the processing of the
claim. If other countries emulated the Pacific Solution, we would
be setting up a first world system of people trading. If we would
not judge this an acceptable universal international solution, why
are we entitled to adopt the practice even as a short term measure?
For the moment, the boats have stopped coming and the people smugglers'
franchise has been undercut. These are legitimate ends for government
to pursue. But the means adopted continue to violate fundamental
moral principles. Government does concede that there are some people
who have no prospect of joining a queue to have their asylum claim
determined by Australia or any other country able to offer protection.
Some of these people have made it to Australia and we continue to
punish them. There is no evidence that we are redirecting resources
to resolving the situation of refugees in camps. There are no new
refugee norms being developed. And there is no prospect that "all
those refugees who need to be resettled in countries other than
in their region would be offered places". This compounds the
moral problem. The other laudable ends postulated by Millbank have
no prospect of being achieved but we continue to justify the ongoing
punishment of individuals with the assertion that some imaginary
and desired end justifies the means. It is bad enough to argue that
the ends justify the means; it is even worse to argue that desired
and unachievable ends justify the means. Our present policy can
be posited only on one of two options. Either we want to be so tough
that no other country will dare or be able to imitate us and so
we will maintain the advantage that asylum seekers will want to
try anywhere but here. Or we are happy to lead other countries to
a new level of toughness, leaving bona fide asylum seekers more
vulnerable in the non-existent queues.
I am left with three moral quandaries. (1) Like John Stone when
asked if he would do the same as the desperate asylum seeker engaging
the services of a people smuggler if it were his only chance, I
would answer "Yes". But I would not draw his conclusion,
"But that doesn't make it right." (2) There are some people
who are bona fide refugees unable to access any queue and unable
to find protection before their arrival in Australia. Why should
they be punished and penalised? (3) The United States insists that
there are two distinct tasks: the processing of onshore claimants
and the resettlement of an offshore quota. It is only by tying the
two groups that our government is able to argue that onshore claimants
take the place of more deserving offshore refugees. In the US, they
do not take anyone's place. Both groups are accommodated.
I am delighted that the government has been able to increase the
migrant intake in the coming year, including the increase to the
refugee component. I continue to applaud and take pride in Australia's
resettlement arrangements for offshore refugees coming to Australia.
I will continue to be troubled by a government policy posited on
treating some persons (including children) as pawns in a high stake
game with people smugglers rather than as ends in themselves. If
such persons are to be detained, there ought be a coherent rationale
for such detention which is then imposed by a court once there are
no longer any health or security concerns. Such persons should not
be punished in planning their future family life if there is no
realistic alternative for them and their families to find security
7. How can we have a rational discussion about the rationale for
ongoing detention of boat people in Australia and on Nauru?
The Catholic community in Adelaide has done a wonderful job in
supporting the Bakhtyari family, the asylum seeker family that the
Howard government loves to hate, using them as an emblem of their
harsh detention policy. At the moment, the father of this family
is held in detention at Baxter, three hours drive from Adelaide.
Mrs Bakhtyari and her newborn son are held in detention under 24
hour guard in an Adelaide motel. And the other five children are
under the care of CentreCare in Adelaide, attending Catholic schools.
I am proud to say that two of the boys attend our Jesuit school
in Adelaide. There is no morally justified and coherent rationale
for the treatment of this family. Consider the transcript of a recent
interview with the Prime Minister (ABC Radio Adelaide 18 March 2004):
JOURNALIST (Matt Abrahams):
Prime Minister, another local issue – a family in Adelaide,
the Bakhtyari children are being cared for in Adelaide by Centrecare,
they’re in one house. Their mother in not very far away,
she’s under effective guard in a motel with her baby. Their
father’s in the Baxter Detention Centre. So, how are you
able to allow that situation to continue? Do you feel uncomfortable…?
Well, I wish it were otherwise, I with the processes were a little
JOURNALIST: You can….?
PRIME MINISTER: No, no, not without compromising a policy that
we’re not willing to compromise.
JOURNALIST: But the policy may not be a good policy…
PRIME MINISTER: Well, I…
JOURNALIST: .. that you’ve allowed that to happen.
PRIME MINISTER: Well, I don’t agree with that. I think we’ve
had this debate, I mean, I’m happy to keep debating it,
but obviously, the fewer people there are in detention the more
that it is satisfactory to us, the more we like it. I don’t
like people being detained, but mandatory detention is part of
How do you as an individual reconcile that? I mean, I don’t
know whether these things worry you. I would think they do.
PRIME MINISTER: A lot of things worry me, Matt. I worry about
a lot of people in refugee camps who are waiting to find a home
to go to. There are millions of people in refugee camps. I believe
very strong that an orderly settlement policy is the best policy
and the more we can prevent illegal arrivals the greater is our
capacity to provide places in Australia for people who’ve
been waiting in refugee camps for years.
I know, but when bureaucracy gets down to… when a policy
gets down to the human level like this…
PRIME MINISTER: Yes, but I mean, I can equally say there are…
I could talk about the plight of a family in a refugee camp…
PRIME MINISTER: And their plight is the product in part of the
fact that places may have been taken by less deserving cases and
less meritorious people. You can always reduce, on both sides
of an argument like this, you can always reduce it to human terms.
JOURNALIST: You probably need to, don’t you?
PRIME MINISTER: Well, of course you do and so you should. And
I think about it in those terms and that’s one of the reasons
why I continue to adhere to the policy that we have.
Recently two of the Bakhtyari boys met with a government representative
in the presence of their Headmaster. The Headmaster offered these
Hearing the younger Bakhtyari boy, I was quite moved. He made
two telling points in his request that his mother be allowed to
stay with her children. He mentioned the stolen generation and
the sorrow Australians feel at separating children from parents
in a previous generation.
You will recall that Mr Howard is unable to say sorry to the stolen
generation because we are not responsible for what happened to them.
Pray tell, who is responsible for the treatment of this family?
The headmaster continues:
He also mentioned that the Government defended the incarceration
of whole families in detention centres on the grounds of the need
to keep families together, and yet with the Bakhtyaris we are
deliberately separating the mother from the children. You might
recall how he said "it is very hard to say goodbye to my
mum every night", and being a family man that must have struck
a cord with you.
Yesterday, HREOC’s report A Last Resort? The Commission
found “Australia's immigration detention laws, as administered
by the Commonwealth, and applied to unauthorised arrival children,
create a detention system that is fundamentally inconsistent with
the Convention on the Rights of the Child (CRC)” and “Children
in immigration detention for long periods of time are at high risk
of serious mental harm.”
HREOC concluded: “The mandatory, indefinite and effectively
unreviewable immigration detention of children who arrive in Australia
without a visa has resulted in multiple and continuing breaches
of children's fundamental human rights.” HREOC has made five
- Children in immigration detention centres and residential housing
projects as at the date of the tabling of this report should be
released with their parents, as soon as possible, but no later
than four weeks after tabling.
- Australia's immigration detention laws should be amended, as
a matter of urgency, to comply with the Convention on the Rights
of the Child.
- An independent guardian should be appointed for unaccompanied
children and they should receive appropriate support.
- Minimum standards of treatment for children in immigration
detention should be codified in legislation.
- There should be a review of the impact on children of legislation
that creates 'excised offshore places' and the 'Pacific Solution'.
The conflict between HREOC and the Immigration Department (DIMIA)
is summarised in these observations in the report:
The Inquiry's view (supported by UN and Australian experts) is
that because deprivation of liberty is such an extreme measure
to impose on a child, the need to detain must be justified in
the case of each and every child. The Department, on the other
hand, is of the view that detention need only be justified in
a general sense.
DIMIA provided six objections to the report’s recommendations:
- Introducing routine and systematic review of the need to detain
in the individual circumstances of each case would clog courts
and slow down visa processing.
- Statistics suggest that all children must be detained to ensure
availability for processing and removal.
- Mandatory detention helps deter children and families from
coming by boat to Australia.
- It is too expensive to support children in the community during
- It is too difficult to codify human rights protections for
children in detention in legislation.
- There is nowhere to put unauthorised arrivals.
HREOC rejected all six objections as being unfounded. The government
followed up with Ministers Ruddock and Vanstone labelling the HREOC
report as disappointing, unbalanced, and backward looking. They
continue to claim that there are only three policy objectives to
the mandatory detention of all unvisaed arrivals including children:
(1) monitoring the integrity of our migration program (whatever
that means); (2) Ensuring people are available for health, character,
security and identity checks (achievable in days or weeks rather
than months or years); and (3) ensuring that failed asylum seekers
are available for removal (after the 92% of refugee children have
been finally released into the community. So there is still no coherent
rationale for detention. It is to the everlasting shame of us, the
present generation of Australians, that we permitted government
to institute such an unnecessary, unjustified and inhumane regime
for the treatment of these children, 92% of whom were found to be
refugees. Let’s join with Commissioner Sev Ozdowski in the
plea: “Let no child who arrives in Australia ever suffer under
this system again”.
Church leaders, responsible civil servants, the courts, the Senate,
an independent media, and a robust civil society are entitled to
express a contrary view to the executive government of the day,
even if the majority are satisfied that the government will do and
say whatever it takes to protect "us" against "them"
in tough times. The morality of our engagement in the Iraq war cannot
be left contingent only on two self-interested outcomes: one, whether
our special relationship with the US bears fruit, and two, whether
we are more immune from onshore terrorist attack. And even if it
were so contingent, the jury is still out on both fronts. Truth
and a more coherent morality of war may yet be even in our own short-term
national interest in an Age of Terror. Let's take heart from Jim
Wolfenson's homecoming observation that there are so many Australians
concerned to assist with development, and presumably peace, not
because of enlightened self-interest nor for protection against
terror, but because it is morally and ethically right. This is our
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