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"Asylum Seekers": Dr Sev Ozdowski OAM (2002)

Rights Rights and Freedoms


Address given by
Dr Sev Ozdowski OAM, Human Rights Commissioner, at a meeting of the Great
Lakes Rural Australians for Refugees Group, Forster High School 2 October

Firstly, I would
like to acknowledge the Worimi people who are the traditional owners
of this land and a timely reminder that we are all immigrants to this
vast continent.

Thank you for your
welcome Councillor McWilliams. My thanks too, to the Great Lakes Rural
Australian for Refugees for inviting me here tonight to say a few words
to you all about my work as Human Rights Commissioner and in particular
about my work with regard to asylum seekers.

Because of my work
on the National Inquiry into Children in Immigration and consequent follow-up
visits to all the immigration detention facilities, I have been able to
give a lot of thought to the many issues involved and consequently develop
some key principles which I think should apply.

In the interests
of furthering informed discussion on refugees, I am taking advantage of
all appropriate forums to develop my arguments in the hope, in time, sufficient
Australians will re-examine their attitudes to refugees and ultimately
encourage all sides of politics to substantially amend the current policy

To recapitulate,
Australia maintains a mandatory detention policy. This requires that all
those who come to our shores without authorisation are detained in immigration
detention centres on arrival. This is until they are either granted visas
or returned to their country of origin or in the case of people who land
on the excised territories of any of the Christmas, Cocos or Cartier Islands
or Ashmore Reef, removed to Papua New Guinea or Nauru under the colloquially
named "Pacific Solution"

Most of these people
see themselves as refugees and are seeking asylum in Australia.

A substantial proportion
of them will subsequently satisfy Australia's refugee assessment criteria
thereby engaging our protection obligations as behoves a signatory to
the 1951 Convention and 1967 Protocol relating to the Status of Refugees.

The first point to
be made about this situation is that asylum seekers who arrive in this
unauthorised fashion have not committed any crime under Australian domestic
law. It is rather like somebody escaping a bushfire and parking in an
unauthorised parking place.

The second point
is that under our Migration Act, asylum seekers who arrive "unauthorised"
must be detained pending resolution of their refugee status.

An initial period
of mandatory detention, thereby enabling rudimentary health, identity/security
and refugee status backgrounding to occur, is reasonable. In this respect
I would adopt the Swedish model ? which similarly imposes mandatory detention
on all unauthorised arrivals, but completes first phase processing in
a matter of weeks if not days.

Swedish immigration
authorities then permit supervised release into the general community
pending final determination of refugee status. This is acceptable, in
my view.

In contrast, the
current Australian law requires verification and adjudication finalisation
of all aspects of an asylum seeker's application within detention. This
is a process that takes months on average and in some cases years. A case
was mentioned recently of a child held over 5 years in detention before
his claims were recognised.

The next sticking
point is the virtual elimination of judicial oversight by Australian judges,
from this massive exercise in administrative decision-making.
Again the Swedish model seems to have developed a more realistic appreciation
of the perils of unrestrained administrative activity, by scheduling windows
of compulsory judicial review into their refugee determination system.

In other words, at
periodic intervals the authorities must present the applicant refugee
before a judge if they wish to continue with an assessment regime that
is outside the previously mandated parameters.

Again, by way of
contrast, Australia, with the exception of the constitutional protections
of the High Court of Australia, has now successfully enacted a suite of
laws which ensures that just about every aspect of a refugee determination
decision is immune from judicial oversight as the applicant travels along
the assessment line.

The lessons from
history teach us that administrative decision making on a large scale,
without the normal rights of judicial appeal, is an explosive cocktail.
It may also undermine our civil liberties which underpin our democracy.

Of parallel concern
is the fact that this unprecedented (in Australian terms anyway) diminution
of an individual's "rights" was conducted by the legislature
without any reference to a statutory Bill of Rights. It is very difficult
to make a judgement on what is being given up, if you have nothing by
which to measure it.

Much of the current
rhetoric justifying this assessment regime is coupled with the catch cry
of "border protection". Australia's sovereign right to decide
who will enter and ultimately reside in this country is not disputed;
but what has that issue got to do with the need for long term mandatory

If the answer is
deterrence of other aspiring asylum seekers, egged on by unscrupulous
"people smugglers", then clearly there should be doubts about
the long term sustainability of the policy and its high moral cost.

Camp style detention
effectively began in the early 90's and one would expect the cumulative
affect of its operation to have resulted in a dramatic reduction of boat
people towards the end of the decade. This did not happen.

Admittedly there
is a current lull in numbers, but it would be a brave person who predicts
this heralds the end of the storm, especially in light of the many complex
social interactions at work here. Certainly the Government's decision
to construct a $230 million, 1 200 person permanent detention camp, in
addition to the existing facilities on Christmas Island, implies that
someone else shares this scepticism.

In any event, an
issue of proportionality arises here. Contemporary western philosophical
thought has long accepted that the means of deterrence must be proportional
to the moral price it exacts.

Thus it would be
unacceptable to punish habitual pickpockets by cutting off their right
hand, as was the case in medieval Christian times, because the deterrence
value is outweighed by the moral repugnance of the act.

Similarly, the proclaimed
efficacy of the immigration detention policy must be measured against
its high moral cost.

Finally, we come
to the vexing subject of adherence to United Nations inspired human rights
treaties and conventions. Due to the necessarily legalistic nature of
these commitments, proponents of any particular point of view can make
a strong legal argument in support of their case.

Accordingly, where
the Commission might find that the Government has breached a particular
human rights convention, a battalion of lawyers can produce arguments
to the contrary.

The fact is Australia
has much to gain from adhering to not just the "black letter law"
of our international treaty commitments, but also the spirit that underpins
them. The apologists for Australia's current, hard line asylum seeker
stance, make much of the fact that the Government's actions are "lawful"
by reference to our domestic laws.

Leaving aside the
fact that South Africa's abhorrent apartheid laws were domestically lawful
while simultaneously offending a plethora of international human rights
conventions, one would hope that for the sake of Australia's long term
future a little common sense prevails here.

Consider this: in
international terms Australia is a very small player indeed and so our
economic lifeblood is almost totally regulated by the extent to which
our trading partners adhere to the letter and "spirit" of a
whole raft of international trade agreements.

Therefore we can't
afford to "cherry pick" between those treaties we want observed
and those we would rather ignore. Treaties implying moral obligations
towards refugees, using this criterion, become just as important for our
long term future as those which help secure our economic and trading interests.

As Human Rights Commissioner,
I have previously called for the total closure of Australia's remote site
detention centres. My detailed inspections of them have, over time, convinced
me that they are "un-Australian". I happen to believe that operationally
they also breach many human rights conventions, but as previously indicated,
this can be something of a dry argument.

Australia prides
itself, justifiably, on being the land of the "fair go", where
a spirit of mateship enabled us to flourish in a difficult and unforgiving
physical environment.

It is nonsense to
pretend that the integrity of our borders is threatened by the small,
sad, flotilla of leaky boats with their desperately fragile cargo of asylum
seekers. We can maintain a system of visas and identity, security and
health checks without stomping all over our "fair go" heritage.

The current policy
of long term mandatory detention in containment camps is exacting an extremely
high moral toll; future generations of Australians will undoubtedly question
whether that price was worth paying.

Therefore let us,
as a community, harness all the money, ingenuity and effort expended on
the current detention system into a new way.

A way which will
achieve the appropriate policy objectives while simultaneously drawing
on the rich Australian heritage of compassion and decency.

If we can achieve
this we will, almost subconsciously, be fulfilling both the letter and
the "spirit" of our human rights commitments.

In order to reach
this goal it will be necessary to convince a majority of our fellow Australians,
who overwhelmingly support the current Government policy, that change
is essential. This means that "ginger groups" such as your "Great
Lakes Rural Australians for Refugees" must be prepared to go out
among your general community and argue the case for change.

Otherwise we all
run the risk of simply preaching our message to the converted. We are
a democratic country. Substantial alteration to the immigration detention
regime can only occur via our participation in the political process.


updated 13 November 2002

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