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Darwin Launch of Tampering with Asylum

Fr Frank Brennan SJ AO
In response to Colin McDonald QC and the Honourable Bob Collins

Museums and Art Galleries of the Northern Territory
17 December 2003

Launch of Tampering with Asylum, University of Queensland Press, ISBN 0702234168

My book has been so excessively launched across the country in the last month that social commentators like The Australian's Frank Devine have become agitated presumably because they see themselves as the sole, self-appointed watchdogs of political morality and government decency. Devine, writing under the Murdoch headline "Do-gooder priests should stay out of the asylum debate" sees no place for a lawyer-priest to be passing comment on the morality or decency of government policy. He is paid good money to assure us that this government does the decent thing by everyone, including asylum seekers. Devine who sees me indulging "in political campaigning in full Jesuit regalia" pleads: "When Brennan indulges in political campaigning in full Jesuit regalia, as he does in his homily on the injustice, illegality and immorality of Australia's treatment of boat people, I feel ambushed." Before the publication of Rupert's "Devine Praises", I had already accepted the invitation to one more launch, here in Darwin. I come wanting to honour those many Territorians who, since the arrival of the first boatload of Vietnamese in Darwin Harbour almost thirty years ago, have extended the hand of decency pending determination whether such boat people have a proper claim on our compassion. Here in this building one can see the Thinh Vuong (meaning "Prosperity), the 44th boat to arrive on our shores carrying 9 of those 1600 hapless souls to reach our shores by June 1978.

The first Vietnamese refugee flow to these shores was a classic illustration of the Cold War paradigm. Following a local war in which the warring parties were backed by the superpowers, those who fled the conflict were offered asylum by those countries that shared their political allegiance in the international balance of power. Malcolm Fraser who was Prime Minister at the time offered this assessment in 2002: "The Government believed that there was an ethical obligation to provide a safe haven for many of those whom we had supported in what had become a most misguided conflict." Taking seriously the will of the people and the role of political leadership in a democracy, he concluded, "If any of the political parties had tried to make politics over the re-settlement of the Indo-Chinese in the seventies and eighties, Australians would have found it difficult to support the policy. The political parties were united in the policy and Australians accepted the policy as right for the nation." How our world has changed. How Australian political leadership has changed. How the Liberal Party has changed.

With the second wave of boat people, this time from Cambodia, government attitudes toughened and community sympathy subsided. The Hawke Labor government had its eye on Gareth Evans' Cambodian peace plan. They did not want the plan to be derailed by a handful of Cambodians gaining access to the Australian courts establishing refugee claims. Boat people from the Pender Bay engaged lawyers to assist them in their refugee claims. Even when they were moved from Sydney to Darwin, there were lawyers to assist and visit them. The minister, Gerry Hand was furious. He was pleased to discover BHP's abandoned single men's quarters in Port Hedland on the Western Australian coast. Being equidistant from Perth and Darwin, Port Hedland was not likely to be very accessible to lawyers and the other community groups labeled by government as "do-gooders". In 1991 the government opened Australia's first immigration reception and processing centre tailor-made for the mandatory detention of illegals. At this time, there was no government rationale for detention such as deterrence or ensuring people were available for removal. The government was primarily focused on trying to get these asylum seekers away from lawyers so that their public description as economic migrants would stick without causing any hemorrhaging of the Evans peace plan. The High Court was ultimately to rule that the detention of these persons was unlawful prior to the introduction of new legislation on 5 May 1992. The Australian Parliament was adamant that these were unmeritorious persons. Parliament legislated to limit the damages for the unlawful detention to $1 per day. On the same day, it was revealed that Leo McLeay, the Speaker of the Parliament, was paid $65,000 damages for a fall on a Parliament House bicycle.

I well recall making the trip with Colin McDonald to the makeshift refugee camp at Cuuragundi, an hour's drive south of Darwin to visit the distressed and relieved Cambodian asylum seekers who were ferried across Australia in the government's attempts to keep them away from the lawyers. With that classic Territorian touch for frontier theatre, we were wearing the newly printed T-shirts saying "Keep them in Darwin". Tonight I salute those lawyers and other do-gooders like Colin who have taken such a principled stand at great personal cost over so many years to ensure that the rule of law might be extended to persons on our shores, in greatest need. I pay tribute to the Northern Territory Legal Aid Commission which, as Justice Mildren had cause to note recently, " has a history of providing advice and assistance to asylum seekers who have come to the Northern Territory." It is time to reaffirm that doing good is not a bad thing, to insist that respect for the rule of law and the maintenance of checks and balances is not an exercise in legalistic meddling by the cappuccino set. Colin assured me that the belated Darwin launch would make the southern launches of Tampering with Asylum look stale. Yet again he has been proved right.

I have four pleas tonight. Could our government stop tampering with the truth. Could our government offer us a coherent rationale for the detention of children. Could our government take a sensible, decent humanitarian approach to the return of those whose TPVs have expired and to the permanent resettlement of those refugees still deserving our protection after three years living in our community. And could we all go and do something about it. It is up to us to stop our government tampering with asylum.


Truth and consistency of policy are elusive with our developing policy of tampering with asylum. When the Minasa Bone was being towed out on to the high seas last month, Colin McDonald QC, Sue Cox, Marco Cveticanin (in his first case at the Darwin Bar) and Jenny Devlin sought the intervention of the Supreme Court of the Northern Territory to ensure that the 14 Turkish Kurds could obtain assistance and pursue their asylum claims if they had any, which of course was highly likely.

The Commonwealth saw fit to inform the court by affidavit: "On 6 November 2003 the AFP/DIMIA team boarded the vessel and conducted interviews with the crew and passengers to elicit intelligence information regarding possible people smuggling." Why did the Commonwealth not see fit to inform the court of the interviews conducted or about the information received about asylum claims? The government now admits that asylum claims were made across the Turkish-English language barrier without translation services being made available.

During the hearing of the case on 7 November 2003, the judge asked the Commonwealth's key witness, Mr John Charles Eyers, Assistant Secretary, Legal Services and Litigation Branch, DIMIA: "Do you know whether or not any of the persons who arrived on the vessel asked for assistance?" He answered, "Not to my knowledge, Your Honour". He clarified this answer saying, "I don't know whether they did or not." When Justice Mildren delivered his written reasons two weeks later, he said:

Mr Eyers (was not) able to advise whether or not any interpreters in either Turkish or Indonesian had been employed at any time either by the Navy or by the Australian Federal Police/DIMIA team. Mr Eyers was asked specifically why Ms Cox's request to seek access to those on board the vessel was not acceded to. He replied that it was normal procedure that unless a person requested legal assistance it is not provided. He said that he did not know whether any of the persons concerned had asked for legal assistance or not and did not know whether any of them had asked for asylum. Even allowing for the urgency under which this affidavit was sworn I found it incredible that the (Commonwealth's) principal witness could not answer these questions.

Next day, Mr Stewart Foster, the Director of DIMIA's Public Affairs section in Canberra, issued a statement saying that "a number of comments made by Justice Mildren in his judgment on the Minasa Bone case need to be clarified". Mr Foster wanted the public to understand, as Justice Mildren had not, that one reason for the government pronouncement of a "temporary air exclusion zone" around the boat was "to protect the privacy of those on board the Minasa Bone". Justice Mildren had the temerity to observe, "Behaviour of this kind usually implies there is something to hide." So now we understand. It's official. The government could not give a tinker's curse whether people landing in the vicinity of Darwin have a credible fear of persecution but they are very solicitous of the privacy of such persons while they await towing out on to the high seas. Public servants in Canberra are now licensed to sit at their computers insulting the intelligence and integrity of the judiciary and the public.

According to Mr Foster, "The Government's key witness was never asked if those on board the Minasa Bone had made a claim for asylum". But hang on. The key witness had told the court that interviews were conducted "to elicit intelligence information regarding possible people smuggling" and he did not know whether anyone on the boat had asked for assistance of any sort. What is DIMIA now suggesting? If Mr Eyers had been asked directly about any request for assistance with asylum, would he not have answered, consistent with his more general answers, "I do not know". Or is DIMIA now intimating that if asked directly, Mr Eyers would have told the court that he did know. That he did know what? Would he have asserted that no claim of asylum was made? Remember that two days after Mr Eyers gave his evidence, Ministers Downer and Vanstone told us formally in a joint press release, "The passengers of the Minasa Bone did not claim asylum in Australia". We now know that was false. At the time Downer and Vanstone made this statement, there were public servants who knew it was false. Is DIMIA now intimating that, if asked, Mr Eyers would have told us correctly that asylum claims had been made? Either he knew or he didn't. The judge thought it incredible that he did not know. If that requires clarification, then presumably Mr Eyers did know or else there must be some credible reason for the most senior public servant responsible for immigration litigation not knowing. If he did know, did he know the truth or did he know only the lie being peddled around Canberra at the time by his fellow public servants: that there had been no asylum claims made?

Isn't it time for DIMIA to wear the wrap? Whether it be deceit, reckless incompetence or wilful institutional miscommunication born of the "Children Overboard" mindset in Canberra, public servants have caused senior ministers to mis-state the facts and have withheld from a court relevant information in a way the judge finds "incredible". Having heard from the government's key witness that he did not know whether any of those on board had asked for assistance of any sort, the judge was fully justified in finding it "incredible" that the key witness did not know whether any person on the boat had asked for asylum. It is even more incredible that public servants use the taxpayer funded web site to further obfuscate the truth, implying that the judge hasn't quite got it right. Unlike Downer and Vanstone, Justice Mildren was not led into error by the public servants. But neither was he assisted by them. Sadly in this high policy area, the Commonwealth is no longer a model litigant. It is time to put a stop to the government's word games.


Why do we continue to detain unauthorised arrivals, including children, once we know they are not a health or security risk and once we know they are no more likely to abscond than other asylum seekers living in the community?

On 14 November 2003, Prime Minister Howard told ABC Radio: "The point of our policy is to deter people from arriving here illegally. That’s the starting point. That’s what people have got to understand. Our policy is to say to the world – we will take 12,000 humanitarian refugees a year, we’ll have that policy, we’ll run a non-discriminatory immigration policy, but we will not have people arriving here illegally and we will act to deter that occurring."

Has the Prime Minister now given us the true explanation? We have panoply of measures in place, including the long-term detention of children, hoping to deter others from coming here to seek asylum. Mr Ruddock knew there was only one problem with this simple prime ministerial explanation. The High Court has said detention for such a purpose is unconstitutional unless authorised and supervised by a court.

Mr Ruddock always said it was a matter of regret that we had no option but to detain children during the processing of their refugee claims. His argument ran like this. Usually it is best that children remain with their parents. If we release parents with their children from detention, we will set up a magnet effect, providing an incentive for boat people to bring their children with them. So we must keep them all in detention.

Once identity, health and security issues have been addressed, is there any reason to keep everyone in detention? Or should we only detain those who are a risk to the community? Mr Ruddock offered two reasons for ongoing detention: ease of processing and availability for removal.

Those in detention are six times more likely to succeed in an appeal to the Refugee Review Tribunal. So it is hard to argue that detention helps with processing. 90% of the last wave of boat people were proved to be refugees and therefore not in need of removal. Though we remove more than 10,000 people from Australia every year, on average only 222 of them are boat people. The search for a coherent rationale for universal mandatory detention of unauthorised arrivals including children is ongoing. So is the traumatic effect on the detainees. Such detention may be popular with the electorate. That does not make it right. That just proves that fear of the "other" is so deep in Australia that we are prepared to lock up kids for no good reason.

If there is no practical reason for the ongoing detention of children, related to their processing or removal, then we have to admit that we are using these children and the deprivation of their liberty as a means to an end. We detain them to deter others. We detain them to send a signal to others: "Don't come here. Flee to any country except Australia." There are not only legal and constitutional problems with this approach. It is morally flawed. Government should not use children as a means to an end. Government should not abuse the liberty of children to send a message to others. Using their detention as a deterrent signal might be incidentally defensible if there were some other compelling reason for the detention. It is time to distinguish detention at the initial screening phase and at the final removal phase. There is a coherent rationale for detention at those times. There is no coherent rationale for universal, mandatory, judicially unreviewable detention during the processing phase. Asylum seekers who come without a visa are entitled to the same freedom during the processing of their claims as are other asylum seekers once they are proved not to be a health or security risk. The detention of children without a coherent rationale is institutional child abuse.


In the book, I make it clear that I have some sympathy for a government policy of granting temporary protection to people who flee situations of persecution or civil war. If you were always required to grant permanent residence, you would be less likely to permit people to come and stay in the first place. And there are some humanitarian disasters in the world that can be put right in a few years, making it safe for people to return home. But there must be limits to the extent that we ask people to put their lives on hold and to the extent that we demand that people return to humanitarian disaster situations once we satisfy ourselves that they face no greater risk of persecution than anyone else in the situation of humanitarian disaster.

The Afghan TPV holders are a case in point. Yes, the Taliban has been dumped as the government of Afghanistan. Those who fled fearing systematic persecution by the Taliban are now not likely to be in any worse position that others who fled Afghanistan at the time. The Australian public is now regularly told that the Australian "government sees no reason why people no longer in need of Australia's protection should not return to Afghanistan". Afterall, 2.3 million refugees have returned home since March 2002, most returning from camps in Pakistan and Iran.

Afghan TPV holders are now receiving the first letters of rejection now that their three years protection is up. Those letters tell a different story. Even if someone is found no longer to suffer a special threat of persecution from the Taliban, we are still asking them to return to an untenable situation. So why the need for indecent haste? If we are committed to a TPV regime, why can't we permit the TPV holder to remain in Australia with work rights but without the right of family reunion until it is safe for the person to return to their home country?

Our decision makers are now admitting that some applicants would face acute risks if they returned to their home villages outside Kabul but they get over that glitch by pressing the word processor entry that says, "On the information available I am satisfied that the applicant would not be at risk of Convention-based harm if he elected to relocate to Kabul". Pray tell, how many people are we expecting to relocate to Kabul so that we can simply clear our books with indecent haste? There is little consolation in the decision maker's cute observation, "While I accept that the applicant has no family or community links in Kabul, the resourcefulness and survival skills that he has demonstrated in establishing himself in Australia, lead me to conclude that the applicant could relocate to Kabul and could 'reasonably be expected to do so'."

Why do we insist on going through the bureaucratic hoops for refugee reassessment including the payment of a $1400 fee for an appeal to the RRT when it is inevitable that forcible return at this time would be a humanitarian obscenity? Why not simply put the processing on hold until it is safe for these people to return? If on re-assessment they are found still to engage our protection obligations, they should be permitted permanent residence in Australia. I imagine that most of those who are rejected at this time will have the decision makers adding this sort of conclusion to their finding:

"While the applicant's claims do not bring him within the Convention definition, I recognise that his reluctance to return to Afghanistan stem in part from concerns over the general security situation in the country, and particularly in his home province, where the security situation remains highly unstable and volatile.

"Regular and constant reports of random violence, banditry, looting, property disputes, and other civil unrest involving warlords attempting to assert their control in particular areas have been well documented. Furthermore UNHCR reports of Afghan returnees have noted difficulties in resettlement due to lack of available housing, job opportunities and the widespread poverty in the country. That these difficulties represent major obstacles to the successful and sustainable reintegration of returnees is undeniable. Hence the main concerns being expressed now by UNHCR and international welfare agencies focus on the provision of adequate infrastructure to support returning Afghans.

"In light of the current country information it appears that there may be humanitarian considerations which may need to be considered in relation to the return of this applicant."

The humanitarian answer is as plain as the nose on your face. So why does the government department whose officers know all this as much as we do continue to post on their website political cant such as "The Government sees no reason why people no longer in need of Australia's protection should not return to Afghanistan". Once again we are back to the struggle for truth and justice in the face of politics and populism.


I thank you all for coming and I trust this book can help us find our way back to the truth, to a way of treating the children decently, and to a way of treating in a humanitarian way those whose visas have expired but whose countries are still disaster zones. Let's maintain hope that decency and democracy are not antithetical to each other even in an age of terror and uncertainty. Long may the legal fraternity of Darwin be armed, ready to defend the basic human rights of those who enter Darwin Harbour or who draw close to those islands long inhabited by Aboriginal people, regardless of their status under the latest regulations of the Commonwealth Migration Act. Long may Territorians pride themselves on the welcome they extended to the Vietnamese refugees.

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