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How Can We Stop Tampering With Asylum?

Fr Frank Brennan SJ AO

Opening Address
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.


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 entertainment.

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.


1. Highlight Inaccuracies and Inconsistencies in Government Statements

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 months.

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 Geneva recommending:

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 policy.

4. Focus on Differences in the Policies of the Major Parties where those differences could produce better outcomes for asylum seekers

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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