: RAR Address
How Can We Stop Tampering With Asylum?
Fr Frank Brennan SJ AO
Rural Australians for Refugees 2nd National Conference
Charles Sturt University, Albury
7 February 2004
One of the great things about Nancy Rooke's welcome to Wiradjuri
country is that we are all assured that even if Albury and other
ports on the Murray River were to be excluded from the migration
zone in the future, this always was and always will be Wirdjuri
country. This is consoling not only for the Wiradjuri. We all need
some certainties in our lives in these uncertain times. Thank you
Nancy. We join with you in honouring the spirit of those who went
before us on this land.
I note this morning's banner headline in the local newspaper, "Refugee
Showdown". One of your local members who is a member of Mr
Howard's party is expecting an angry, emotional response. Might
I presume to speak on your behalf and give the assurance that RAR
members have no interest in such responses provided there is a commitment
to dialogue and truth. Travelling the country extensively as I do,
I have been impressed by the welcoming, conversational, practical
and committed style of RAR members. You have shown that you can
make a difference with your fellow Australians, not with angry emotion
but with practical hope showing them that there is a better, more
workable, more decent way.
I have been asked to answer the question: "How can we stop
tampering with asylum?" Having just published a book with the
title Tampering with Asylum, I am delighted to provide some pointers
to an answer. On one level, the answer is already given on your
placard: "Put yourself in their shoes. When you know the facts,
you will open your hearts."
Though these have been tough times and though many RAR members
feel critical of the members of the major political parties, I want
to congratulate you and offer some hope in this election year. Thanks
to your grassroots efforts, the goalposts have moved in Australia.
Our fellow Australians are starting to accept that you should not
lock up children unless there is a coherent rationale offered by
government. They are starting to see that the Pacific Solution is
a nightmare for good relations in the Pacific. They are starting
to see that it is unAustralian to pay money to the Indonesians to
engage in upstream disruption when there are still unanswered questions
about the sinking of the SIEV X with the death of 353 persons.
This morning, I will deal with five topics where there is not only
the prospect of change of heart amongst our fellow citizens. There
is already a change of policy by the Labor Party. At last, the bipartisan
approach has been broken. There is some clear air between the major
parties. Though people cast their vote for all sorts of different
reasons including the impact of health and education policy on the
hip pocket nerve, they might now look more acutely at policies that
punish asylum seekers in the name of border protection.
If boats were to start coming again, there would be aspects of
Labor's new policy which would be fudgy and less than satisfactory.
But with no boats coming, the Labor policy is now clearly better
than the government's. Of course, it is no part of my role to canvass
votes for the Labor Party. Remember it was Paul Keating and not
John Howard who christened me the meddling priest. I will highlight
5 improvements to Australia's policy which would flow if there were
a change of government. Such a change of policy by the Opposition
has followed the usual democratic processes in response to the good
work done by people like yourselves as well as the minor parties
and Independents in the Senate. I am delighted to see Andrew Bartlett
with us today. He has constantly stood up for refugees in the Parliament.
Having highlighted the five major points of difference between
government and Opposition for the treatment of those asylum seekers
who have now been on our shores for three years, I will list eight
steps that might help us stop the government's tampering with asylum.
A. POINTS OF POLTICAL DIFFERENCE THAT PROVIDE ROOM FOR MORE INFORMED
1. TPV renewals
Back in 2001, there were thousands of faceless asylum seekers behind
the razor wire in remote places such as Woomera and Curtin. Woomera
and Curtin are now closed. There are hundreds still held in facilities
such as Baxter which is more accessible to the visiting public.
There are thousands of refugees living lawfully in our community
whose temporary protection visas are about to expire. Some will
have their visas renewed because they are still classed as refugees.
But the Howard government will not necessarily grant them permanent
residence and the right of family reunion. Others, even if rejected
as refugees, will not be able to return home safely because it is
not safe for anyone to return, for example, to some of the remoter
villages outside Kabul in Afghanistan.
The Labor Party has now fallen in with the minor parties, agreeing
that TPV holders whose visas are renewed should be allowed to get
on with their lives, being granted permanent residence and the right
of family reunion. If a TPV holder is no longer a refugee they should
still be granted permanent residence and the right of family reunion
if it is no longer safe for them to return home.
Many Australians now accept that after three years residence in
Australia, TPV holders who are no longer refugees should be forced
to return home only if it is safe for them to do so. If it is not
safe, their agonizing wait should be put to an end and they should
be allowed to stay.
The government policy is fraying at the edges with decision makers
agreeing that it is unsafe for someone to be forced back to a home
outside Kabul but noting that a resourceful person could safely
return to Kabul. 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.
2. Ongoing Detention of Those Whose cases are unresolved
after three years or who Cannot be Returned Home
This week, the Commonwealth Solicitor General went to great pains
to avoid any suggestion that the mandatory detention policy was
designed as punishment or a deterrent. Mr David Bennett QC submitted
to the High Court that "that the legitimate non-punitive purpose
has two aspects; it is the facilitation of removal or deportation
and prevention of absorption into the community. Both those purposes
are capable of applying to children of all ages". The Commonwealth
feels constrained to make such submissions for fear that the High
Court would rule that mandatory detention imposed by Parliament
without any court order or review, and designed to be a deterrent
would be unconstitutional. No doubt there were a few shivers around
Canberra when the influential Justice Gummow observed, "Undoubtedly,
it is punitive. The question is whether there is an exception. Of
course it is punitive. … They are locked up."
The Commonwealth's submissions are in line with Mr Ruddock's oft-repeated
remark that "Detention is not arbitrary. It is humane and is
not designed to be punitive." The Commonwealth's submissions
are more difficult to reconcile with the Prime Minister's general
observations on his policy, including mandatory detention, when
he told Fran Kelly on the ABC in London on 14 November 2003:
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.
Presuming the voters are not to be told one thing while the courts
are told another, we have to assume now that the purpose of mandatory
detention is not punishment or deterrence. (But it would be a good
thing if someone told that to the Prime Minister.) We citizens are
entitled to a coherent rationale for detention once it is established
that someone arriving without a visa is not a health or security
threat and once their identity is established. This is especially
the case if the detained person is a child suffering the proven
traumatic effects of ongoing detention.
All non-government parties now accept that mandatory detention
at the processing phase is irrational and unacceptable. They also
accept that rejected asylum seekers should not be detained if there
is no immediate prospect of their being returned home and if they
are not a flight risk.
We should all keep the Howard government focussed on providing
a sensible answer as to why they detain all unvisaed asylum seekers
once they are known not to be a health or security risk, while at
the same time allowing other asylum seekers to reside in the community
even if they did not make a full disclosure of their circumstances
when they applied for a tourist or business visa. This week Justice
McHugh wrestled with the circumstances in which you could impose
mandatory detention on all members of a class (unvisaed asylum seekers)
. He said, "The reason may be that you just cannot deal with
a class and seek to detain a class of people, unless there is some
cogent evidence that more or less every member of the class is a
person who may breach the particular purpose that the legislature
is seeking to achieve." 90% of this class end up being proved
to be refugees. Very few of them are removed from Australia each
year. On average, they constitute only 222 of the more than 10,000
removals each year. How can you justify detaining this class, most
of whom are proved to be refugees, while allowing another class
(previously visaed asylum seekers) to reside in the community during
their processing and appeals even though most of them are proved
not to be refugees? Mr Ruddock's explanation was always very feeble,
namely, "The situation for people who overstay their visa is
fundamentally different. We know who they are and have already assessed
that they do not constitute a danger to the Australian community."
3. Removing the Private Contractor, and meanwhile calling
it to account
ACM has just completed its major contract for the conduct of the
detention facilities. They and their successor need to be called
to account. I agree with the Labor Party and all minor parties in
their call that the facilities be conducted by government. The private
contractors cannot be called sufficiently to account. Let me give
one graphic example.
I was in the Woomera facility at Easter two years ago when the
riots broke out. I returned to the facility a couple of days later
and saw the baton bruises to a 7 year old boy with my own eyes.
I heard from others, including the ACM manager, that tear gas had
hit some children during the disturbance. I immediately wrote to
Mr Ruddock saying that this was no place for children. There was
no need for children to be hit with baton and tear gas in modern
Australia. Two weeks later, DIMIA denied that any child had been
injured. With indecent haste and professional negligence, Mr Stewart
Foster, the Director of DIMIA's Public Affairs section in Canberra,
posted a denial on the departmental webpage within six working hours
of the publication of my complaint in the newspapers. He checked
neither with the minister nor with the relevant sections of his
department who had received copies of my complaint two weeks previously.
After an inquiry by HREOC, the Australian government has now apologised
to the child and his mother for the breach of his human rights.
The government acknowledged "that at the end of an exhaustive
investigation, where the delegate duly and fairly considered submissions
from all concerned parties", HREOC found "on the balance
of probabilities, that (the child) was struck with a baton by an
unknown Australasian Correctional Management (ACM) officer and that
this constituted a breach of his human rights." For its part,
ACM continues to claim that the delegate’s finding "was
against the weight of the evidence before him" and "not
established to the requisite standard of proof". ACM continues
to claim that it did not discover the allegation of the assault
until a month after it occurred. But even ACM admits that its own
doctor had a record of the assault shortly after it occurred. Given
that the mother and child were being held in detention, surely notice
of the assault given to an ACM employee constitutes notice to ACM.
ACM tried at the hearing to suggest that the mother had simply
invented the injury to her son so people like me would take up her
cause. At no time did ACM choose to question me even though I came
to the hearing in Adelaide having provided an affidavit of what
I had seen and heard at Woomera. ACM submitted to HREOC that tear
gas does not cause harm. They also claimed that "a full and
thorough investigation into the assault found" could not "remedy
or reduce the loss or damage suffered by (the child) as a result
of the baton strike found". People like this should not be
allowed to profit from the detention of children.
4. Scrapping the Pacific Solution
The Liberal and National Parties are now the only parties supporting
the Pacific Solution. Even they would be happily rid of it if there
was no continued electoral advantage in appearing to be tough and
uncompromising. The solution was drawn up at short notice before
the 2001 election and Nauruan government officials were assured
that the solution would be complete within about 6 months. The recent
hunger strike has highlighted the problems, not only for the asylum
seekers, but for both governments. Just last month, Nauru’s
Minister for Finance, Kinza Clodumar, condemned the Australian Government’s
inaction and dismissal of its responsibility to asylum seekers.
The Nauruan minister said:
Comments made by the Australian Minister for Immigration, Amanda
Vanstone, that asylum seekers on Nauru who refused to eat, “were
not the responsibility of the Australian Government,” contravene
the M.O.U. Australia made with Nauru regarding its duty of care
to asylum seekers.
The M.O.U. signed when Nauru first accepted asylum seekers, underlines
Australia’s responsibility to ensure the day-to-day management
of asylum seeker facilities including medical treatment and further
clarifies that, “health and medical services, personnel,
supplies and equipment will be provided by Australia at the facilities."
When asked for medical help, we failed to provide it. Rather our
government engaged in another round of political standover tactics.
It was a very tacky exercise. If in any doubt, just ask new Zealanders
their perception of our behaviour! The Pacific Solution was designed
on the presumption that refugees could be promptly resettled in
countries other than Nauru and the failed asylum-seekers could be
returned home quickly. The recent hunger strike on Nauru is proof
that Australia cannot simply export its asylum problems. There is
no way that Nauru can force people back to Iraq or Afghanistan at
this stage. Some of the 264 detainees (including 70 children) on
Nauru include family members whose fathers and husbands are living
lawfully in Australia.
We cannot avoid responsibility for hunger strikers whose lives
are at risk. Before the last federal election, our Government transported
them to Nauru and paid Nauru to detain them on the understanding
that they would be removed from Nauru within six months. Nauru has
neither the diplomatic muscle nor the resources to give them appropriate
care in their hopeless isolation.
Before the next election, we should close down the Pacific Solution
and bring the remaining asylum-seekers to Australia until it is
safe and decent for them to be returned home. This would save us
money and even lives, permitting Nauru to open its borders to visitors
once again. Most citizens share John Howard's hope that Australia
be "a warm-hearted, decent international citizen". If
we cannot return people decently to Afghanistan, Iraq or Iran, we
should treat them decently here.
5. Challenge the Children Overboard Mindset
We are used to politicians in the Howard government attacking unelected
judges. That seems to be the prerogative especially of grey suited
ministers trained as lawyers and priding themselves on their conservatism.
It is just not altogether clear what they are conserving when they
engage in this sort of political sport. But now things have been
taken to a new level. Unelected public servants are now given licence
to attack judges.
When the Minasa Bone was being towed out on to the high seas two
weeks ago, lawyers 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 the judge 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 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." You can imagine the public servants giggling
at their word processors inventing these lines. "We don't give
a damn if these people have a right to asylum but we do want to
maintain their right to privacy while they are with us!" It
is pretty sick stuff. In the old days it may well have been contempt
of court. And it definitely would have been only the minister who
was a party to the proceedings and not the public servants given
licence to take pot shots at the judge. Now it is just Canberra
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
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
B. AIDS TO HELP US IN THE FIGHT TO STOP THE GOVERNMENT'S TAMMPERING
1. Highlight Inaccuracies and Inconsistencies in Government
Gently, politely and respectfully, just keep asking, "What
is the rationale for the long term detention of these people, including
children?" As the boats have stopped coming and as the detention
is not a deterrent in fact or by design, why continue doing it?
And watch for some interesting High Court decisions in the coming
2. Make the Contractors, DIMIA and the Government Accountable
If the government apologises for a child being hit with a baton,
why is the employer of the baton wielder able to continue refusing
to accept the decision of the umpire?
Should government be content to entrust the detention of children
to a contractor which cannot even admit its mistakes, even when
those mistakes result in horrendous assaults to children?
Let's try and keep even the Howard government true to their word.
There are people in that government who think their word matters.
Some of them probably do not realise that a month before they sent
the 14 Turkish Kurds back to Indonesia having intercepted them in
our territorial waters, they signed up to a UNHCR memorandum in
that interception measures be guided by the following considerations
in order to ensure the adequate treatment of asylum-seekers and
refugees amongst those intercepted:
- The State within whose sovereign territory, or territorial waters,
interception takes place has the primary responsibility for addressing
any protection needs of intercepted persons;
- Interception measures should not result in asylum-seekers and
refugees being denied access to international protection, or result
in those in need of international protection being returned, directly
or indirectly, to the frontiers of territories where their life
or freedom would be threatened on account of a Convention ground,
or where the person has other grounds for protection based on
international law. Intercepted persons found to be in need of
international protection should have access to durable solutions.
We did not take primary responsibility for the asylum claims of
those on the Minasa Bone. Our national caseload of intercepted asylum
seekers is minimal. Our international word is presently not worth
the paper it is written on.
3. Put a Human Face on the People who suffer as a result
of these policies and on the people who implement these policies
In 2001, there were thousands of faceless people behind razor wire
in desert locations and there were thousands more coming by boat.
Now there are thousands of people living in the community, with
friends and community links. It is not safe for many of them to
go home. Many of them are still refugees. They want to get on with
their lives. Why should their lives be left on hold? We can see
the pain and the loss? What is the real gain to society by leaving
them in suspense or forcing them home?
Let us not demonise those DIMIA officers and contracted service
providers who do provide good, humane service in the most trying
circumstances in remote detention centres, implementing heart-breaking
4. Focus on Differences in the Policies of the Major Parties
where those differences could produce better outcomes for asylum
If there were more boats coming and the Labor policy was being
implemented, there would be some ongoing problems. But with no boats
coming, everyone who is here would be better off under the Labor
policy. That much should be admitted, no matter what other factors
one might consider when voting at the next election. Mind you, it
would be helpful if you could find something on the ALP website
about the ALP policy since the conclusion of the party conference.
5. Celebrate your achievements
There are more than 300 of you here from all over Australia. You
have helped to move the goal posts in the public debate. This has
created some clean air in between the policies of the major parties.
Even paid up members of the Liberal Party now feel a little squirmy
about upstream disruption, the things we have asked our sailors
to do (leaving children on boats until they are at sinking point),
long term detention of children and the Pacific solution.
If the High Court puts even one hole in the dyke of universal,
mandatory detention, we will be back to the drawing board and the
Senate will have real work to do. If no more boats are coming, the
voters are less likely to be spooked by a fear campaign explaining
why even the children should be kept behind razor wire for more
than one federal election campaign.
6. Be realistic and propose practical options
Because the Howard government messed up the appeals process to
the courts by ramming an unworkable privative clause through the
Senate after Tampa, there is a need for a workable, fair and efficient
appeals process. We must all acknowledge that desperate asylum seekers
will pursue whatever avenues of appeal they are given without charge.
No country can afford a system which permits every failed asylum
seeker to go all the way to the highest court.
7. Stay connected
You have the advantage of having active members who visit detention
centres in their neighbourhoods regularly as well as having supportive
members in the major cities, including people with professional
skills. With such a network, you can be better informed than the
media commentators who do not bother to visit these centres and
who take their feed from the government drip.
8. Draw inspiration from the refugees whose courage, forgiveness
and gratitude inspires us
Most of you know refugees who have endured our modern gulags and
who have forgiven us, making a fresh start and wanting to contribute
to the life of a free and confident nation. Having met some of you,
they know that there are Australians who care and who do not want
to see rights and the truth made casualties in the war against terror.
Inspired by them, you can persevere, hopeful that the truth will
prevail and that the rights of asylum seekers can be respected on-shore
in Australia and in our territorial waters.
Thank you for the honour of opening your conference. Tomorrow
I will be in Baxter and I will take with me the good will of all
gathered in this auditorium today.
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