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Australia's sledgehammer

25 Feb 2004
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THE RECENT hunger strike and lip-stitching protest by detainees on the Pacific island of Nauru has again thrown the spotlight on Canberra’s harsh approach to asylum seekers. The hunger strikers are among 264 detainees still held in rudimentary camps in the tiny Republic of Nauru. In the final months of 2001, the Australian navy intercepted these asylum seekers as they tried to sail from Indonesia to Australian territories in the Indian Ocean. They were then transported to Nauru where their detention is organised and paid for by the Australian government. Most of the detainees are from Afghanistan and Iraq, more than a quarter of the detainees are children and all the detainees have been in detention for longer than two years. Their claims for refugee status have been rejected but despite cash inducements on offer from Canberra most still refuse to return to their troubled homelands.

Conditions on Nauru are difficult, even for the local population. The island has been denuded of vegetation by years of phosphate mining and the island relies on a desalination plant for its water supply. Nauru’s cash-strapped administration has trouble paying for imports of diesel to power the desalination plant and to generate electricity. There is very little opportunity for an independent assessment of the conditions for detainees on the island because the government of Nauru refuses to grant visas to visiting journalists, independent lawyers or representatives of non-government organisations. Amnesty International has received first-hand reports that there is fresh water for only two hours a day, that healthcare is limited, that children have been denied access to educational facilities and that there are insufficient activities for people to pass the time. Australian Democrat Senator Andrew Bartlett has visited Nauru twice. After his first visit in July 2003 Senator Bartlett said he had encountered ‘an ocean of despair and depression’. After a second visit in January 2004 (just after the most recent hunger strike had ended) he warned that there would be a tragedy unless the ‘untenable situation’ in the detention centres was addressed.

The measures adopted by Australia to stem the flow of informal migrants and asylum seekers are more severe than those of any comparable nation and include the naval interception of boats at sea, the forcing of crowded barely seaworthy vessels back to Indonesian waters and the mandatory detention of asylum seekers, including children, who arrive without authorisation. Asylum seekers can only be released from detention after their cases have been assessed and they have been found to be refugees; otherwise, they remain in detention until they are deported. The inflexibility of this system is compounded by the fact that Australia, unlike other developed nations, only grants protection to refugees who meet the narrow definition contained in the 1951 Refugee Convention (that is a person facing persecution on the basis of their race, nationality, religion, political views or membership of a particular social group). Aside from personal intervention by the immigration minister, there is no provision for granting protection on humanitarian grounds (so-called ‘complementary protection’) to people who are fleeing from civil unrest, war or a breakdown of law and order in their homeland.

The history of mandatory detention
Outside observers could be forgiven for assuming that Australia’s harsh policies were the product of an assault on the nation’s borders by huge numbers of unauthorised migrants. In fact the opposite is the case: Australia’s ‘problem’ with asylum seekers is modest, particularly when compared with poor nations in Africa or West Asia that have been confronted with huge numbers of refugees pouring across their frontiers in a single day. Even when boat arrivals to Australia peaked the largest number to arrive in a single year was 4175 (in financial year 1999-2000).

The policy of mandatory detention was not implemented in response to an emergency on Australia’s borders and its origins pre-date the government of John Howard with which it is now so closely associated. The power to detain non-citizens who do not have a valid visa to enter Australia was included in the 1958 Migration Act and was indicative of the highly regulated and restrictive history of Australian immigration policy. This ‘culture of control’ in immigration found infamous expression in the White Australia policy, which prevented the entry of non-Europeans to the country from 1901 until the early 1970s. Small immigration detention centres had long been established in Sydney, Melbourne and Perth while in other cities immigration detainees were usually held in prisons. But the routine detention of asylum seekers arriving without visas and the construction of remote detention centres to house them followed the landing of a boat carrying 26 people at Pender Bay near Broome in November 1989. It was the first boat to carry asylum seekers to Australian territory since 1981 and its arrival marked the beginning of a second wave of boatpeople landing on Australia shores. (The first wave lasted from 1976 to 1981. It was made up of about 2000 refugees arriving in small groups who were fleeing Communism in Indochina after the end of the Vietnam War. They were not detained on arrival.)

There were many Cambodians aboard the Pender Bay boat and subsequent vessels and their arrival came at a sensitive time for the Labor government of Prime Minister Bob Hawke. Hawke’s high-profile foreign minister Gareth Evans was deeply involved in crafting a peace process for Cambodia, which involved the repatriation of 300,000 Cambodian refugees from camps along the Thai border. The federal government feared that confidence in the plan could be undermined if Cambodians in Australia were found to be refugees or if their personal stories were allowed to become public. Hawke was quick to declare categorically that the Cambodians were not ‘political’ but ‘economic’ refugees. He said he would not allow Cambodian asylum seekers to ‘jump the queue’ of Australia’s orderly migration program . The label ‘queue jumper’ has been used to denigrate asylum seekers arriving by boat ever since.

While detention was initially ad hoc, it was soon developed into a formal system, and in 1991 the government opened a detention centre in disused working-men’s quarters in Port Hedland on the far north coast of Western Australia. According to Frank Brennan, the primary motivation for detaining Cambodian asylum seekers in Port Hedland was to make them inaccessible to ‘lawyers and the other community groups labelled by government as “do-gooders” so that their public description as economic migrants would stick without causing any haemorrhaging of the Evans peace plan’ .

Other justifications for detention soon emerged, the most notable being that it would deter further arrivals. In 1992 lawyers challenged the detention of 15 Cambodian asylum seekers who had been incarcerated for more than two years. Less than 4 hours before a Federal Court judge was to hear the application the government rushed through new legislation to entrench the policy of mandatory detention more firmly in law. Immigration Minister Gerry Hand told parliament that the government was ‘determined that a clear signal be sent that migration to Australia may not be achieved by simply arriving in this country and expecting to be allowed into the community.’

The present conservative government has been more circumspect in reaching for this defence. Perhaps it is aware that this reasoning is open to attack because the use of detention for the purpose of deterrence contravenes the 1985 UNHCR Guidelines on the Detention of Asylum Seekers. Instead, officials now tend to adopt the circular argument that detention is required under the Migration Act. In other words, it is policy because it is the law. It is also claimed that detention helps ‘maintain the integrity of Australia’s migration and humanitarian programs’ by ensuring that asylum seekers are ‘immediately available for health checks’, ‘readily available during processing of any visa applications’ and ‘readily available for removal from Australia’ if their visa applications fail. These administrative ‘benefits’ of detention are self-evident; achieving them through the use of mandatory detention is like using a sledgehammer to crack a walnut (and has the equivalent devastating impact on the lives of those involved). Refugee advocates have consistently agued that the government could achieve its administrative objectives through a policy of initial detention for the purposes of health and identity checks, combined with a system of conditional or graduated release into the community while refugee claims are processed.

Such a system would be more humane and would probably come at a reduced cost but successive governments have shown little interest in alternatives to detention. After taking office in 1996 the conservative Coalition government of John Howard privatised the immigration detention centres. When the volume of boat arrivals increased in 1999, the government deployed the Curtin airbase to detain asylum seekers and then commissioned a new detention centre capable of holding up to 2000 people at an army barracks near the old Woomera rocket range in remote South Australia. More recently the Woomera and Curtin centres have been closed and the government has opened a new purpose-built detention centre at Baxter 300km north of Adelaide. The key innovation in the Baxter facility is that it relies on high-voltage electric fences rather than razor wire and steel palisades to keep the detainees inside.

All the detention centres have been declared off-limits to journalists and most non-government organisations have had trouble gaining access. All staff employed in the detention centre - including professionals like nurses, doctors and psychologists - are required to sign secrecy clauses and banned from speaking publicly about conditions inside. Visiting clergy have been warned that access to provide worship services and pastoral care to detainees may be denied if they voice their concerns to the media. Despite the veil of secrecy, problems in the detention centres inevitably became public as detainees resorted to desperate acts of protest including hunger strikes, lip-stitching, suicide attempts and riots.

The ensuing media coverage has prompted an agonised national debate on Australia’s treatment of refugees and asylum seekers and sparked a grassroots campaign against detention. However government’s tough line on ‘illegal immigrants’ proved politically popular and in August 2001, in the lead up to a federal election, it seized the opportunity to go one step further.

Pacific ‘solution’ or Nauru fix?
On 26 August, at the request of Australia’s maritime search and rescue service, the Norwegian freighter MV Tampa rescued 433 asylum seekers adrift on a sinking wooden boat in the Indian Ocean. The Tampa took the asylum seekers to the nearest port - on the Australian territory of Christmas Island - but Prime Minister John Howard refused to allow the vessel to land or disembark its passengers, demanding instead that the ship continue to Indonesia. Howard’s actions provoked an international incident involving Norway, Indonesia, Australia and the United Nations High Commissioner for Refugees. After a standoff lasting several days - with the asylum seekers living in squalid conditions on the open deck of the cargo ship - a desperate deal was brokered. New Zealand agreed to host and process 131 asylum seekers, mostly families, unaccompanied minors and single women. The rest of the asylum seekers were sent to Nauru to be detained on Canberra’s behalf while the UNCHR processed their applications for refugee status.

The so-called ‘Pacific solution’ was born. In subsequent weeks the navy intercepted all vessels carrying asylum seekers as soon as they reached Australian waters. If the navy was unable to force the boats back to Indonesia, then the passengers were detained and transferred to Nauru. As the number of detainees grew to a total around 1500 people, a second offshore detention centre was opened in Papua New Guinea (which like Nauru is heavily dependant on Australian aid). The fact that detention of asylum seekers appeared to breach the constitutions of both countries was not considered a hindrance and did not prevent the International Organisation for Migration from becoming involved to manage the camps. The UNHCR refused to be part of a scheme that extended beyond the original deal to process asylum seekers rescued by the Tampa. Australian officials carried out refugee determination instead but their decision making was outside the jurisdiction of Australian courts and there was no guarantee that applicants found to be refugees would be resettled in Australia.

The dramatic new measures did prove effective in deterring new arrivals. Since the end of 2001 the unauthorised arrival of asylum seekers by boat has all but stopped (though no doubt other factors such as the fall of the Taliban in Afghanistan have also played a role in this). It also proved an effective way to win votes, especially in the anxious atmosphere created by the September 11 terrorist attacks in New York and Washington. In November 2001, the Howard government was returned to office.

The bill for extending the policy of mandatory detention offshore was $500 million in public money and an incalculable amount of human suffering. It did nothing to reduce the number of refugees in the world or address the root causes of human displacement. As is clear from the unresolved fate of the 264 people still detained on Nauru the ‘Pacific solution’ was no solution at all .

Mandatory detention breaches international law
Australia’s policy of mandatory detention for asylum seekers who arrive without authorisation appears to violate international legal conventions to which Australia is signatory, not the least the 1951 Convention on Refugees itself. Article 31 (1) of the Convention states that signatories ‘shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom would be threatened enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.’

As international lawyer Jean Pierre Fonteyne has argued, technicalities in this article (such as the reference to refugees coming ‘directly from a territory where their life or freedom was threatened’) can be said to provide ‘a legalistic basis’ for detention since most asylum seekers arriving in Australia have travelled through third countries. But ‘the spirit of the provision’ is clear: asylum seekers should not be punished ‘solely for the illegal way in which they sought access to the territory’. In Fonteyne’s opinion, Article 31 of the Convention appears ‘totally irreconcilable’ with Australia’s policy of mandatory detention for all asylum seekers who arrive without a visa .

Conclusions of the Executive Committee of the High Commissioner’s Programme (the UNHCR’s governing body, of which Australia is a member) and guidelines prepared by UNHCR at the request of the Executive Committee both support the view that Australia’s mandatory detention regime is in breach of Convention obligations. UNHCR Guidelines on Applicable Criteria and Standards relating to Detention of Asylum Seekers issued in 1999 state that detention of people seeking asylum is ‘inherently undesirable’. This is particularly so in the case of vulnerable groups such as single women, children, unaccompanied minors and those with special medical and psychological needs.

The United Nations Human Rights Committee has found that Australia’s mandatory detention policy can breach Article 9.1 of the International Covenant on Civil and Political Rights (ICCPR), which says that ‘no one shall be subjected to arbitrary arrest and detention’. In 1993 the Human Rights Committee was asked to look into Australia’s treatment of an asylum seeker subjected to prolonged detention. The federal government argued that detention was justified because the asylum seeker had arrived unlawfully and might abscond if not detained. The committee was not convinced. In its decision, handed down in 1997, the committee agreed that illegal entry ‘may indicate a need for investigation’ and that the likelihood of absconding ‘may justify detention for a period’. It found, however, that Australia had offered no evidence as to why the particular asylum seeker in question should still be locked up. The committee found that this detention was ‘arbitrary’ under Article 9.1 of the ICCPR. More recently the committee ruled that the detention of a mother and her five children was unlawful and breached Australia’s international obligations under Convention on the Rights of the Child (signed by Australia in 1991). The committee ruled that the mother and her children should be paid compensation by the Australian government for their time in detention. Australia’s Human Rights Commission reached a similar conclusion in relation to a boy from Iran, concluding that his detention was ‘unjust, unreasonable and unproportional’.

The federal government has tinkered with detention policy in response to such criticism, introducing a category of ‘eligible non-citizens’ who can be released from detention on bridging visas. To be released, a person must be at least seventy-five years of age, the spouse of an Australian, a former victim of trauma or torture, or a child for whom release is ‘in their best interests’. In practice, these exemptions are rarely invoked. For example, so far as children are concerned, it is invariably felt to be in their best interests that they remain with their parents, who are usually in detention themselves. More recently the government has also modified the detention regime to allow women and children to live under guard in houses outside the detention centre (though fathers or boys over the age of 12 are ineligible for this scheme).

The courts in Australia have also begun to eat away at the detention regime. Although the general right of the government to detain non-citizens was found to be constitutional by the High Court (Australia’s highest court), the Court found that such detention is only lawful when it is used for an administrative purpose (such as to determine visa status or to arrange deportation from Australia). If authorities have determined that a person is not a refugee, then he or she must be removed from Australia. But some detainees are stateless and others cannot be removed because their country of origin will not accept them. In a number of recent cases judges have ordered the release of such detainees on the basis that they are no longer being held for any administrative purpose. This is a qualified victory for the detainees: if not for the court they would be condemned to suffer indefinite detention but as they have not been granted a formal visa to enter Australia they still live in legal limbo where their rights are restricted and uncertain.

Lawyers have also been successful in pushing for many unaccompanied minors to be removed from detention and placed in community care and refugee advocates have managed to secure the release of some detainees who are suffering severe psychological distress.

The government has resisted such incremental changes at every turn and remains firmly wedded to the principle of mandatory detention. As legal battles and lobbying efforts continue, there is mounting evidence of the damage done to the physical and mental health of vulnerable people, especially children.

The cost of detention in human suffering
A leading psychiatrist has declared that immigration detention is ‘a form of child abuse’ that could leave children so traumatised that ‘they may need a lifetime of counselling’. Children in detention have been found to suffer from bed-wetting, nightmares, depression and separation anxiety. Some are overly withdrawn while others are overly familiar with strangers. Many exhibit impaired linguistic and cognitive development. Parents’ capacity to meet the emotional and physical needs of their children ‘is severely compromised by their own untreated depression and despair in the context of ongoing detention’. This ‘renders the parent impotent and leaves the child without protection or comfort in already unpredictable surroundings where basic needs for safe play and education are unmet’. Parents have difficulty providing ‘comfort, care and protection, and transmitting hope about the future’ . It is hardly surprising that detention has led some children to resort to acts of self harm such as slashing themselves or drinking shampoo.

Psychologist Lyn Bender witnessed this process of family break down when she provided counselling to an Iranian family detained for more than a year at the Woomera detention centre in outback South Australia. ‘The whole family was disintegrating,’ she says. She saw them after the 13-year-old son had tried to hang himself. Lyn Bender says the boy needed to be taken out of the detention environment. ‘He was saying “If I could just be out, away from these fences, I wouldn’t want to kill myself”,’ she says. ‘That seemed perfectly reasonable to me. He’d just got to the end of his tolerance.’ Lyn Bender tried to get him admitted to Woomera hospital, but there was no space. The doctor at the hospital was concerned about the number of detainees already admitted for similar reasons. The boy’s mother was one of those detainees occupying a hospital bed. She had been suffering from depression, and after his suicide attempt her condition worsened and she was hospitalised. ‘She was immobilised,’ says Lyn Bender. ‘She would not get out of bed, she would not talk, she was not eating.’ Lyn Bender also did a consultation with the boy’s ten year old sister but the girl refused to talk to her. ‘She sat in my office and tore up the paper towelling. Just sat there and tore it up and strewed it around the room. I think that was about how she was torn up inside.’

Peter Mares is a journalist and senior research fellow at the Institute for Social Research at Swinburne University in Melbourne. He is the author of Borderline: Australia’s response to refugees and asylum seekers in the wake of the Tampa (UNSW Press 2002). A shorter version of this article was published in the Amnesty International online newsletter

 

 

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2004
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