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Issue #1561      22 August 2012

Australia’s asylum seeker shame

Indefinite mandatory detention

Last week was one of the darkest in Australia’s history since colonial invasion. The Labor Party and Coalition joined forces to rush through both Houses of Parliament the most appalling, inhumane, fascistic legislation for the mandatory and indefinite detention of innocent people, including children, whose only “crime” is to seek our assistance. Despite all the government talk about protection, which is not provided for in the legislation, thousands of people face years in offshore concentration camps and denial of their right to natural justice. The legislation tears up Australia’s obligations under UN Conventions on the Rights of the Child and on Refugees, as well as the Universal Declaration of Human Rights.

“The passing of off-shore processing legislation allowing asylum seekers to be expelled to Nauru and Manus Island will go down as a day of shame in Australia’s history,” said Ian Rintoul, spokesperson for the Refugee Action Coalition.

The government claims it will save lives because its treatment of asylum seekers is so harsh that people will stop coming to our shores.

“The same navy ships that the government will use to take asylum seekers thousands of kilometres to Nauru could be used to bring asylum seekers safely from Indonesia to Australia. But the government is not really interested in saving lives,” Rintoul said.

“Indefinite detention damages children, indefinite detention violates children’s rights and indefinite detention kills people. This legislation will not save lives; this legislation will kill people. It will send brave, courageous and resilient people insane. We know it will because it did last time,” Senator Sarah Hanson-Young warned the Senate.

UN General Secretary Ban Ki-Moon has reminded Australia that its obligations to refugees are not optional.

The UN High Commissioner for Refugees Antonio Guterres said, “Our preference is always that these situations are solved in Australia itself” – in other words that processing takes place in Australia. Guterres emphasised the requirement that “people … have humane reception conditions, they will not have arbitrary detention, that they have access to education systems and employment….”

“Detention is the area in which we would like improvements to be made in the sense that detention should be more an exception and less a rule and that of course detention conditions should be improved,” he said.

The legislation goes further than arbitrary detention, detention is mandatory and indefinite. Their release is arbitrary!

Nowhere does the government acknowledge its legally binding international or moral obligations, let alone the part it plays in contributing to what is a growing global humanitarian crisis.

Whether it be Vietnam, Yugoslavia, Iraq, Afghanistan, Somalia, Sudan, Libya, Syria, Iran, each new imperialist intervention or war adds to the millions of desperate people fleeing for a safe haven.

“You invade our country, reduce it to rubble, cause sectarian divisions, and when some of us manage to escape and come to your country for shelter you turn us away or lock us up as though we are criminals,” Ahmed, a Middle-Eastern political refugee told The Guardian.

Loan voices of sanity

The Australian Greens and Independent Andrew Wilke were the only MPs and Senators to take a principled stand and vote against the legislation. Liberal MP Judi Moylan abstained. Even attempts by the Greens to amend the legislation to limit detention to 12 months and to provide some limited protections were ruthlessly rejected.

Not a single ALP parliamentarian had the moral courage to take a principled stand against the denial of the most basic of human rights to people fleeing persecution, torture and the threat of death. Not one. Not even those calling themselves “Left”. Several MPs had “heavy hearts”, but opportunism stood in the way of them taking a stand to defend human rights and save lives.

The Australian Greens did an amazing job in their exposure of the bill and the government’s lies surrounding its contents during the parliamentary debate. The Opposition blurred the issue by focusing on the government’s change of heart.

Humanitarian crisis

“This is not a border security problem. This is a humanitarian crisis. It escapes me how anyone in this place could seek to implement any solution not underpinned by our lucky country’s moral framework and our obligations both written and implied as one of the original signatories to the United Nations Convention relating to the Status of Refugees,” Wilke told the Senate.

Wilke reiterated his opposition to mandatory detention and offshore processing. He asked: “How can we as a nation and as a parliament accept an immigration detention regime which we know makes people mentally ill and for some to attempt suicide….?

“When people’s lives are at stake, I will not put my support behind legislation that takes us back to the time of the Howard-era Pacific solution with some modifications that make it even worse. The Australian public unambiguously rejected the Pacific solution at the 2007 federal election. How quickly we have forgotten.”


The legislation will not stop people attempting to come to Australia by boat. As Hanson-Young pointed out, it will not save lives. It is a callous, hard-hearted political manoeuvre to try to neutralise Opposition leader Tony Abbott’s populist “stop the boats” line in next year’s federal elections. It even removes some of the protections legislated by Howard in 2001.

When the Rudd Labor government was elected in 2007, it promised to bring an end to the “Pacific Solution” and abolish offshore processing of asylum seekers. Labor strongly opposed the inhumane system and turned policy around. Last week the Coalition taunted Labor with earlier quotes from Gillard damning the indefinite detention of refugees in the hell-holes of Nauru and Manus Island in Papua New Guinea.

Gillard’s “Malaysian Solution” for offshore processing and imprisonment of asylum seekers was thwarted by a High Court challenge. The government had been trying to get legislation since September 2011 through Parliament seeking to get around the Court decision. With the additional Houston proposed amendments, the Coalition came on board.

Not so “independent” review

Gillard appointed an “independent” panel on June 28 this year, to carry out a hurried review to provide an excuse to run with the Opposition’s Nauru and Manus Island “solutions” as well as other locations.

The terms of reference were extremely narrow, essentially limiting their focus to “stopping the boats”. They made no reference to addressing the interests or needs of asylum seekers, instead focusing on such issues as Australia’s right to maintain its borders (not that these have been threatened) and the costs involved.

The government officially received the report on Monday August 13, put its legislation before Parliament the very next day, and by the end of the week it had passed both Houses. It was rushed through before the public could become fully aware of its contents and implications. The mass media faithfully repeated all the government’s lies about “fairness”, protection of people and saving lives.

The review panel was carefully selected. Its chair is former head of the Australian defence forces Air Chief Marshal Houston (Ret’d). The other members are professor Michael L’Estrange and Paris Aristotle.

L’Estrange is director of the National Security College at the Australian National University. He served under Liberal prime minister John Howard as secretary to cabinet and head of cabinet policy unit and then later as secretary to the Department of Foreign Affairs and Trade.

Aristotle, the token “humanitarian” on the panel, is director of the Victorian Foundation for Survivors of Torture. He has considerable experience working with refugees and had previously rejected indefinite detention on Nauru (which he visited) during the Howard years. His about turn has surprised many.

He says that “it is different to the past. I don’t believe that people are going to be there for those lengths of time.” It is different; it is worse.

The government emphasises that there can be no “cherry picking” of the Houston report’s recommendations. They are a package – all or nothing. But it fails to legislate for the few safeguards that are in the report, adopting only its draconian provisions.

“No advantage”

The centrepiece of the Houston report and government’s bill is the so-called “no advantage” principle “to ensure that no benefit is gained through circumventing regular migration arrangements” and to provide “incentives for asylum seekers to seek protection through a managed regional system.” The “no advantage” line is based on the old “queue jumping” myth dressed up in new language where new arrivals go to the end of a mythical queue (see Myths about refugees and asylum seekers).

They will be incarcerated for around the same time as other refugees in Indonesia or Malaysia. They could even be sent to one of those countries. And what does that mean in practice?

“People live in those processing facilities in limbo. They cannot work, they cannot go to school and they have no entitlement to health care. They are in absolute limbo and sometimes with no prospect of being resettled for 20 years,” Greens Senator Larissa Waters pointed out, referring to the conditions of people being held in Indonesia and Malaysia.

The “no advantage” principle is based on the lie that there are regular migration arrangements open to the asylum seekers who risk their lives by boat. These people should have come through non-existent “regular” channels!

Greens Senator Penny Wright summed up the intention of the bill: “… we are being asked to compromise so that we can treat some people so harshly that it will send a message of punishment and deterrence to others contemplating making the journey. We will have to treat them so harshly that it compares with the situations they are fleeing from…”

When eventually freed, the plan is to send them anywhere but Australia.

Immigration Minister Chris Bowen is quite adamant that “people who arrive here by boat should receive no advantage in their processing.” Referring to people he and other MPs have seen in their travels, Bowen unflinchingly continues the lie: “We have seen the extended and difficult situations that those people are in and want to give them an even chance.”

Punishing desperate people, including children, who risk their lives to find asylum, gives nobody “an even chance”. It denies them a chance.

There are promises, but no action, to increase Australia’s intake of refugees and better resource UNHRC processing facilities. According to Labor minister Kate Lundy, the government is proposing to increase its refugee intake to 20,000 as part of a regional approach which has still to be agreed to by the governments involved. How many years will that take?

The review panel and government support, in principle, Abbott’s call to turn back the boats when the “appropriate regional and bilateral arrangements” are in place.

Asylum seekers are legal

As Senator Lee Rhiannon pointed out during the Senate debate, “It is not illegal to seek asylum, regardless of how someone arrives in this country. The term, if you come by boat, is ‘irregular maritime arrival’.”

The turning back of asylum seekers or the mandatory, indefinite detention is illegal under international law to which Australia is a signatory.

Article 14 (1) of the UN Universal Declaration of Human Rights states: “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” That includes in Australia.

Denial of natural justice

The legislation provides that the rules of natural justice do not apply. The minister, as Greens leader Christine Milne points out, “personally determines what is in the national interest, and he is then exempted from providing natural justice to a person seeking asylum.” As previously stated, there is nothing in the bill about the interests of the asylum seeker, only what is in “the national interest” which the minister can arbitrarily determine.

Lundy, speaking on behalf of Bowen, said, “The exemption from natural justice provides for an environment which we believe is necessary to make the legislation workable. Not to have that exemption would mean that any asylum seeker could challenge the designation of a given country, for example.”

Perhaps more seriously, they might try to exercise their democratic rights under Australia’s justice system and be allowed to remain in Australia in line with international law.

Article 16 of the refugee convention states: “A refugee shall have free access to the courts of law on the territory of all contracting states.”

The bill does not provide for legally binding provisions covering the treatment of asylum seekers in other countries. Despite claims to the contrary by the government, the minister is not obliged to provide parliament with details of any verbal or written agreement (if one exists) with a country taking and incarcerating asylum seekers from Australia.

Senator Hanson-Young summed it up: “The whole point of this legislation is to have as little scrutiny as possible, as little regard to people’s rights as possible, to write out of current legislation any legal obligation that we have under the UN convention and to put precisely in the legislation that none of these documents that the Houston report says are important and that the government and the minister here tonight continue to rabbit on about even have to exist.”

The bill does not provide the protections recommended in the Houston report. There are no obligations to provide access to basic services, for adequate accommodation, legal assistance or safety of those locked up indefinitely.

The government admits that the asylum seekers will initially (no one knows how long for) be housed in tents, behind barbed wire fencing, drop pits (toilets) and bucket showers, and limited power on Nauru. Apart from the primitive facilities and lack of services, people held on Manus Island face the additional risk of Malaria.

They could also be forcibly transferred to centres in Indonesia, Malaysia or elsewhere, to even more appalling conditions and no guarantee of basic human rights.

No protection for children

The bill provides for mandatory detention of children, absolves the minister of previous responsibilities as guardian of unaccompanied children when in detention and provides no guarantees of their protection.

It also removes restrictions on the involuntary removal of unaccompanied children to detention centres in other countries, which the High Court objected to when planned for Malaysia.

“For all their lives all these children will know is poverty, desperation and in many situations cruelty. They will not be afforded basic human rights,” Greens Senator Rachel Siewert told the Senate.

“It will allow the transfer of child asylum seekers from Australia and the transfer of unaccompanied minors, who will not necessarily have a guardian to act in their best interests – in breach of the Convention on the Rights of the Child,” Wright said. “It will allow banishment to Nauru, or Manus Island or, essentially, anywhere but here.”

The bill abolishes special family reunion provisions for refugees. This is cruel and totally unwarranted. The most likely outcome is that instead of one adult family member attempting the voyage, more families including children will risk their lives.

The adage goes “judge a country by its treatment of children”. Australia cannot sink much lower.

Act now

“We can be doing things now to save people’s lives. Those who submitted to the Houston panel said it very clearly: increase the ability to assess people’s claims and give them an opportunity to apply for protection in Australia in the places where they are. We know they are in Malaysia and we know they are in Indonesia; commit to doing that there and bring them safely to Australia…,” Hanson-Young said.

“If we were saving lives at sea we would be bringing these people safely to our shores.”

The Refugee Action Coalition said: “The only way to save lives at sea is to decriminalise people smuggling, to open Australian processing centres in the region, and to massively increase our humanitarian intake without making vulnerable boat arrivals pay for it.”

Money would be far better spent on humanitarian programs than locking people up and destroying their lives.

The Guardian urges readers to lobby MPs and Senators. To use talkback media, letters to the editor columns and the various social media outlets to expose the true nature of this legislation and to build opposition to it. Send messages of support to the Australian Greens and Andrew Wilke for their principled stand and attempts to defeat the bill.

Write to the Governor General asking her not proclaim the legislation, pointing out that it is unconstitutional, and breaches international law and human rights.

This legislation and collaboration by the two major parties brings home just how urgent it is to build a left and progressive alternative in Australian politics – both inside and outside Parliament. Onshore processing and placement in the community of asylum seekers is not only the most humane and effective response to those seeking our assistance, it is our moral and legal obligation to do so.  

Next article – Editorial – Cold hard fact: Smoking kills

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