Continued detention of boat people shows the weakness of human rights protection in Australia

*By Howard Glenn

A friend of mine borrowed my mobile phone last week to ring a real estate agent to find out why she had not turned up at the agreed time to show him over a flat for rent. Being placed on hold four times in three minutes, and then fed the normal low level deception that comes from real estate agents’ mouths, provoked an incredibly high volume and violent outburst from my friend, insisting on speaking to the manager, threatening court action, outlining his mistreatment, demanding his rights. A reaction out of all proportion to the provocation – except when you realise that my friend has spent the last three years of his life on a bridging visa, after a long period in detention. A bundle of nerves, hopes, frustrations and insecurities, he sticks things out because he knows he can’t go anywhere else. But he doesn’t necessarily behave well all the time.

A bundle of nerves, hopes, frustrations and insecurities, he sticks things out because he knows he can’t go anywhere else

In January 2005, there are still around 200 of the ‘boat people’ of 2001 in detention, either in Baxter or Nauru, except for a handful in other facilities. That’s over three years of detention for each of these people. Afghans, Iranians, Sri Lankans and Iraqis are the four largest nationalities. Significantly, several of the others are ‘state-less’.

They are almost all young men who made a big mistake – coming to Australia to seek a better life. They may have had a good claim for refugee status when they arrived, but they were not able to prove this – some for technical or evidentiary reasons, others because they were not believed, or believable.

The government argues that these men are in detention only as long as they choose to be – that they can return ‘home’ at any time. The government keeps them in maximum security, cut-off from scrutiny, threatens them with deportation, opposes their legal applications, and gives them no option but to stay or go. Friends and advocates for these detainees keep urging them to fight on – exploring legal avenues, appealing to ministerial discretion. In some cases, I believe, advising them to protest through hunger-strikes.

‘Stay or go’ might be an easy-sounding set of options, but it ignores two key things. Firstly, that the experience of the long term detention has damaged the judgement of the detainees – mental illness, depression, pride, fear, unreliable or mistrusted information about their home circumstances, and chronic commitment to their claims – their story – whether true or false to begin with. The remaining long term detainees have seen thousands of others eventually given permanent or temporary refugee status – and there is a spark of hope, fanned by their supporters, that they might too if they stick it out. So the ‘go’ option is not that likely for these who remain.

Secondly, and more importantly, the ‘stay’ option involves an abandonment of responsibility from government to fundamental human rights standards. Rights to liberty, fair and rapid assessment, judicial review, presumption of innocence, special consideration for children – all went out the window into the desert some time ago. Holding people in detention simply as a deterrent to others and to maintain the ‘integrity’ of the refugee program – and to continue to keep these same individuals for years on end, constitutes arbitrary detention. The independent expert bodies, set up to monitor the human rights treaties that Australia signed up to, have concluded this. Even the High Court, in finding that immigration detention was lawful as long as the government said that it was planning to remove people one day, expressed concern that this power was in breach of human rights standards. As noted in a Commonwealth Parliamentary Library Research Brief, The High Court and indefinite detention (Parliamentary Library, 16 November 2004):

This is confirmed by the decision in Al-Khateb and Al Khafaji. The majority rejected the idea that immigration detention laws were limited to what was ‘reasonably capable of being seen as necessary’. As long as the laws were for a purpose related to the ‘aliens’ or immigration powers in the Constitution, it did not matter whether they were ‘unjust or contrary to basic human rights’ (Justice McHugh), contravened the ICCPR (Justice Hayne) or infringed the common law’s ‘fundamental and ancient’ protection of personal liberty (Justice Callinan).

Justice McHugh said the outcome for Mr Al-Khateb and Mr Al Khafaji was ‘tragic’and suggested the remedy lay in adopting a bill of rights for Australia. Without this there was little the High Court could do about indefinite detention: ‘As long as the detention is for the purpose of deportation or preventing aliens from entering Australia or the Australian community, the justice or wisdom of the course taken by the Parliament is not examinable in this or any other domestic court. It is not for courts, exercising federal jurisdiction, to determine whether the course taken by Parliament is unjust or contrary to basic human rights’.

This recent case on indefinite detention was one of a number of others pursued over the years by lawyers with great publicity, which have failed for their clients, but have had the effect of confirming several of the migration laws, so that it is now clear that the government can largely do whatever it wants with people it declares to be ‘unlawful non-citizens’. And because its actions have been found to be lawful, the government considers them to be justified. Deportation with chemical or physical restraints – in plain language, injecting drugs and using gaffer tape and handcuffs – is lawful. Intimidation, lying, neglect, abuse of children, denial of care – are all lawful. Worst of all, there is no higher authority or ticking clock. The Minister doesn’t wake up each morning worrying that she has to account for 200 prisoners still in detention for another day coming up to 1200 days now, unless she does something soon.

Intimidation, lying, neglect, abuse of children, denial of care – are all lawful.

The lack of concern about these individual prisoners is brutal. Through meetings and correspondence with the Minister since our public stoush over the Nauru hunger strike, New Year 2004, I have been proposing that there should be alternatives considered to this ‘stay or go’ approach. I’ve never believed the former Minister’s claim that he had negotiated a treaty with Iran to allow for the removal of all the Iranian detainees – and with almost two years since that claim and with still 72 Iranians in detention, my view hasn’t changed. I thought it worth exploring whether NGOs in Australia, working with NGOs in Iran, can make monitored arrangements for those who choose to return – offering a safer landing than the current ‘piss-off or we’ll deport you anyway’ nonsense. The 21 Sri Lankans who are sticking it out in detention with appeals and hunger strikes might have a better sense of their possible future back in Sri Lanka if some NGOs worked between the two countries to explain how the lie of the land since the recent cease fire.

The remaining Afghans on Nauru and in Australia; the Iraqis and the other state-less and assorted nationals, could face a simple process, based on the principle that ‘if we didn’t owe them protection when they arrived, we owe them something now that we’ve detained them for over three years’. A simple review process, maybe conducted with a cross-party appointed panel, to establish whether, after all this time, it is safe to return them or not. If yes, then involve NGOs and advocates in a return plan, if not, release them into community care, with an individual rehabilitation and monitoring plan. The Minister has very wide discretionary powers, plus a parliament that will give her anything else she needs if necessary. And a community that already thinks that these issues have been resolved so won’t oppose this becoming a reality.

The response to these propositions has gone from a discussion with the Minister, referred to a meeting with the Department (more SES attending than at a bushfire), to a holding letter during the election, a referral to Ministerial staff who never return phone calls, and finally a polite letter from a junior official advising me that he’s noted my idea.

If there are human rights standards that government is forced to account to, then alternative options can be found. If not, as is the case now, these things drift. I’ve only been talking about those in detention longer than three years – that’s my arbitrary line of horror. Of course there are other lines that could and should be drawn. Seven or ten days maximum detention for immigration processing is the standard in other countries. There are still around 80 children in these immigration detention centres. And we’re still to face what one government backbencher described as ‘the ticking time-bomb’ of temporary protection visas – those refugees who came by boat to 2001, went through desert detention, were given three years protection, and are denied continuing or permanent protection.

With an election looming, the government took the common sense advice and pushed the issue out for a little while – pretending that permanent protection would be an option for most, and moving away from the previous hard-line position that those who were not able to prove a need for continuing protection at the end of three years would have to leave, or be re-detained and deported. The challenge over the coming year will be to see if we can make a reality of this pre-election pretence, and let these people get on with their lives.

There’s been some interesting debate in the media in January, sparked off by some comments by Andrew Demetriou, as to whether if the Tampa picked up another load of boat people, whether we’d go through all of this again. Anyone who’s read Klaus Neumann’s excellent book ‘Refuge Australia – Australia’s Humanitarian Record’ (UNSW Press, winner of the 2004 Human Rights Award for non-fiction), knows the answer to that question. Of course we would, because we always have.

The experience of the last three or four years has had the virtue of clearing our eyes, and removing the pretence that there are any enforceable human rights standards in this country. Sure we have a number of anti-discrimination, equal opportunity and human rights agencies that can adjudicate conflicts amongst those of us privileged enough to use them. But those humans without the right status don’t have any protection of their rights. People who can be picked up under the “alien” power in the Constitution are the worst off, and can be subject to cruel, inhuman and degrading treatment, and our authorities can do nothing.

People who can be picked up, and can be subject to cruel, inhuman and degrading treatment, and our authorities can do nothing.

So there’s a bit of work to be done, among those of us who think we have, or hope we can have, a better society in Australia. We’re still talking about the best ways of proceeding. There’ll be some of the 11,000 supporters of the A Just Australia campaign who will, like me, be working through an organisation with a clearer focus on building human rights standards and protections for the future – Rights Australia Inc (www.rightsaustralia.org.au). Others will continue with the much needed work of supporting directly those still seeking asylum, or hoping to retain asylum in Australia, or working on issues around reform of the Migration Act.

It will be an interesting environment to work in. The role of the Senate in recent years as one of the few checks on the Executive’s abuse of human rights may be severely limited. The clear preference of the Executive for the lawful (that is, what they decide should be law) rather than the just (that is, the standards that we once shared) can only lead to further frustration and ultimately, conflict. A weak Opposition led by one whose support for the government’s fear campaign has since been rejected by his Party; two minor parties with similar numbers, neither separately or in combination with any power to block or initiate; humane or liberal members of the government who will have to learn how to oppose and amend, not able to rely on the Democrats to fix bad party room decisions.

And a lot of asylum seekers, refugees, advocates and supporters who are stressed at the best of times, still bemused after last year’s election result, but on a short fuse. It’ll be more than real estate agents who will cop an earful.

*Howard Glenn is Executive Director of Rights Australia, a campaign organisation formed in 2004 to work towards better understanding and protection of human rights. Prior to this, he was National Director of Australians for Just Refugee Programs (A Just Australia), until December 2004.