After the High Court ruling it illegal to send asylum seekers to Malaysia, the Gillard government could have used the opportunity to take a new approach in how it treats refugees. Instead, the ALP kept to its usual script of trying to outdo the Coalition in attacking refugees and decided to redraft legislation to resume offshore processing. There are few if any places in the world that take as punitive an approach as Australia towards those seeking protection.
It is hardly surprising that a parliamentary inquiry found Australia’s system of mandatory detention to be in breach of international laws. Refugee rights activists have been saying this for two decades. Professor Ben Saul, from the University of Sydney’s Centre for International Law, told the inquiry that mandatory detention had made people suicidal, and raised questions of the legality of ASIO not having to explain why someone was a security risk.
“It’s unlawful not to provide a fair hearing to detainees, including by refusal to disclose to them the essence of the allegations against them”, he said. Professor Saul, who also acts on behalf of migration agents, said he had met detainees in Villawood who had formed mutual suicide pacts, and brought up the case of a child in detention who was developmentally impaired because of the trauma.
It is unlikely the inquiry will have any impact on the government’s decisions. It has committed itself to being as harsh as possible towards asylum seekers, enslaving itself to the whims of corporate shock jocks and its own dodgy focus groups. While it may get around the High Court ruling, the issue of mandatory detention has left the ALP in disarray.
The section of the Migration Act central to the High Court’s ruling mirrors Australia’s obligations under the United Nations Refugee Convention. The draft changes put all those protections in the shredder – despite two mainstream polls showing that the majority of Australians oppose offshore processing.
A Nielsen poll found almost two-thirds of ALP voters against offshore processing. Opinions on refugees shift relative to the strength of the refugee rights movement and the hysteria whipped up by talkback radio and the corporate media.
It was the ALP that introduced mandatory detention in 1992, and, while its rhetoric is a little more sophisticated than the “Stop the boats” mantra of the Coalition, Labor’s actions have been every bit as brutal. The dominant rhetoric has shifted from demonising refugees as “queue jumpers” to “smashing the business model of people smuggling”. But the pretext of all the arguments is undeniably racist, and after the High Court ruling, Labor has ramped up the xenophobia. Immigration minister Chris Bowen suggested that the government would not rule out reintroducing temporary protection visas (TPVs), brought in by the Howard government. Neither is it ruling out reopening Nauru or Manus Island detention centres.
TPVs were the worst aspects of mandatory detention under Howard. They enabled refugees to be deported once the department of immigration decided that the country of origin was safe enough. These were completely arbitrary decisions that contradicted the government’s own travel warnings. According to the Edmund Rice Centre, which has been trying to track refugees returned to their country of origin, at least 11 refugees – including children – were killed upon being returned to Afghanistan, but the number is much higher, well over 20.
Among those sent back to the war-stricken country were 42 unaccompanied minors.
In a briefing for journalists on September 7, the head of the Department of Immigration and Citizenship, Andrew Metcalfe, was reported to have suggested that refugees could cause “European-style social unrest” in Australia. This hysteria fits well with the racist agenda of the two major parties. The mere suggestion of unrest and refugees is enough to provoke the xenophobia lurking in Australian society. Chris Bowen is now calling on the opposition to support the government’s proposals to continue offshore processing. In fact the ALP has moved to the right of the Coalition on this issue, or at least Abbott has wedged the government into a corner.
Abbott correctly (albeit hypocritically) called Bowen’s proposal “offshore dumping”. In the past Abbott has called for boats of asylum seekers to be sent back to Indonesia, a policy of Pauline Hanson’s One Nation. No doubt the ALP would have investigated that option, but the Indonesian government stated that it would refuse to cooperate.
The opposition to mandatory detention is by and large centred on the refugee rights movement. Parliamentary opposition has been quite tepid, with most Greens MPs preferring to distance themselves from the movement against mandatory detention. The opposition of the Greens is confined to parliament and the occasional outcry to the media.
Some members of the ALP left in federal parliament have threatened to cross the floor and vote against the legislation, but will most likely seek some sort of compromise. The convener of the left, NSW Senator Doug Cameron, told the Sun-Herald that he was “deeply concerned” about the amendment. However, the position of the left faction is not to end mandatory detention, but to “limit” it.
Another new low
Under the draft legislation, there is no requirement to ensure that Australia’s obligations under the Refugee Convention are met. The legislation will give the immigration minister powers to approve any country as an “offshore processing country”.
The legislation specifically states that such approval “need not be determined by reference to the international obligations or domestic law of that country” and that the “only condition” is “that the Minister thinks that it is in the public interest”. Just to be doubly sure of the dictatorial powers of the immigration minister, the legislation further states: “The rules of natural justice do not apply”.
There could yet be another High Court challenge. This time it would centre on 53 young Indonesian fishermen who were recruited as crew on boats taking refugees to Australia. The legal team, led by Victorian legal aid lawyer Saul Holt, argues that if it is legal for refugees to seek asylum in Australia, then it is legal for people to bring them here. The legal team hopes to establish a precedent that provides representation for these young Indonesians, most of whom can’t speak English and do not know what they are being charged with.
So far the courts have not distinguished between boat crews and the organisers of the operations. They have handed down maximum sentences, even to minors, who have been locked up in maximum security prisons. These are poor Indonesian boys who may have worked as cooks or deckhands. According to Rachel Ball from the Human Rights Centre in Melbourne, only six of 353 cases of charges under people smuggling laws have involved the organisers; the rest have been boat crews.
The Malaysian government is also facing a legal challenge to the refugee swapping deal. In a submission to a Senate inquiry, 14 of the country’s leading refugee law experts from a collection of major universities advised that the deal as currently arranged is unlawful under international law.
Even if offshore processing is overturned, the situation refugees face is still inhumane. With each change in the laws, we are approaching the situation where the legal card will have been exhausted. The only protection refugees have is opposition on the streets and the protest actions that they themselves participate in, which have been escalating, particularly in the centres that are the most isolated.
Centres such as Curtin, Christmas Island and Darwin are the most brutal and have the most restrictions on visits. Speaking to Direct Action, a Serco officer from the Christmas Island centre said that guards at these centres pride themselves on being “toughest”. Those who show even the slightest compassion for refugees are subject to bullying and hostility from Serco management and staff.
While not widely reported, protests at the centres have been increasing. On September 15, refugees staged a rooftop protest at the Darwin centre, protesting against the delays in processing their claims. An Afghan Hazara sat on the roof of South 1 compound for two days and had been on hunger strike for a number of days before that. In response, the department ordered that he be offered no food or water while on the roof.
Most in Darwin have been in detention for well over a year, some for as much as two years. The immigration department promised to meet the men, but repeatedly broke its promise. This callousness has led to 1500 reported cases of self-harm in immigration detention in just one year, and mental illness is widespread throughout the immigration regime. Some of the protesters drew inspiration from “burial” protests in which refugees have been digging their own graves. The department sought to cover up these protests as quickly as possible. There is every possibility that rooftop protests and hunger strikes will increase.
Only a few days before the Darwin protest, in Port Augusta 38 children, mostly from Vietnam, staged a hunger strike. All these children are unaccompanied minors. They highlight yet another government broken promise: that all children would be removed from detention. All the children have been detained there and on Christmas Island for at least four months. Many of them were told weeks ago that they would be sent back to their home countries, and some had been told they had no case for refugee status. Serco and immigration authorities prevented media from talking to or photographing the children.
It is not just the remote detention centres that are causing unrest. In Villawood detention centre in Sydney, three men killed themselves within a 10-week period, underlining that immigration detention is in crisis everywhere. A coroner’s investigation of the three deaths has just concluded. The three men were detained for different reasons. Last September a Fijian man jumped to his death on the day he was due to be deported to Fiji. He was taunted by Serco officers to “jump” and told that “one way or another he was being sent back to Fiji and that the boys are coming to get you”. An officer from the department of immigration – who had a calming influence on the man and had successfully engaged him – was interrupted on the orders of the Serco manager. Not long after, the man jumped. He believed he would face jail and torture if he was returned to Fiji.
Many single men and families are being held indefinitely in limbo after being given adverse security assessments by ASIO, despite not even being interviewed by it. Because they are also found to be genuine refugees, Australia can’t send them back to their country of origin or involuntarily anywhere else. No one has access to the assessment, and refugees aren’t told what the assessment is. They have no recourse to the courts, and the government has no commitment to review their assessment.
It is well documented that children held in detention suffer serious problems in social development, with detrimental effects on their mental health. If a refugee has an adverse security assessment, the movements of their entire family within the detention centres are restricted. This often means that children are not allowed to interact with children from other families or play outside.
These are people who have escaped bloodshed and torture and who are still coming to terms with having to flee their homeland. For many, being held indefinitely in detention is the last straw.
Refugee rights activists are planning a protest at the ALP national conference in Sydney on December 4.