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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 warning.

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 may emerge;
  • 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 results

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 just.

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 for war?

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 the world.

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 thing.

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 and state.

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 Australia:

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 coming.

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 together.

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 faster…

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…


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 the system.

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 reflections:

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 major recommendations:

  • 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 visa processing.
  • 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”.

8. Conclusion

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 hope!


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