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"Immigration Detention - the Current Position"

Rights Rights and Freedoms

"Immigration Detention - the
Current Position"

Speech delivered by Dr Sev
Ozdowski OAM at the Monash Institute for the Study of Global Movements,
Monash University, Clayton Campus, Friday October 10 2003


Human Rights Protection in
Australia

The Australian HR
protection system is a direct result of the history and development of
white settlement in this country. If you compare us with the United States,
we Australians had no free settlement, no War of Independence and little
or no nation building by private entrepreneurship; rather it was done
by way of British government fiat. The early hallmarks of this environment
were that of dependence on supply ships for food and other necessities,
political radicalism that revolved around who controlled the sale of rum
and the gradual evolution of the "fair go" principle (although not for
indigenous Australians or other despised minority groups such as Irish-Catholics).

In time the system
morphed into one which offered fairly solid protection of economic and
social rights - although again skewed towards majority "wasp interests"
- and a robust democratic Westminster-style, political system. The big
gap was explicit protection of civil liberties which was effected, imperfectly,
via the common law.

The current system
of HR protection is extremely complex, emerging out of a potpourri that
includes:

  • Centuries of common
    law;
  • Federal and State
    Constitutions and enacted "positive legislation";
  • Political systems
    based on:
  • Democratically
    elected governments;
  • Independent
    judiciary;
  • Free press;
  • A well established
    civil society;
  • NGOs;

Since the 1980s
establishment of statutory HR bodies, HREOC etc.

And now I would like
to briefly examine some of these important elements.

The Federal Constitution

The Constitution
of Australia divides spheres of legislative, judicial and executive responsibility
between the Commonwealth of Australia and the States. In brief, the Federal
government is responsible for defined heads of power, including national
defence, international affairs and finances, including most taxation.
The State governments are responsible for the residual areas, including
health, education (with the exception of tertiary education) and policing.

Both Federal and
State governments are responsible for human rights protection. States,
for example, may also incorporate international human rights principles
into state legislation to the extent that such legislation is not inconsistent
with any Commonwealth legislation in the area.(1)

No Bill of Rights

On the Federal level,
a comprehensive statement of human rights - or citizenship rights as they
might have been known at Federation - was not included in Australia's
Constitution despite the French and US examples. Legend even has it that
some of our "founding fathers" opposed it because of its potential to
entrench 'racial equality' throughout Australia! We followed instead the
British model of reliance upon the common law to protect individuals against
abusive interference by governments.

Rights in the Constitution

The Australian reliance
on the common law rather than constitutional rights meant that very few
individual rights were explicitly recognised in the Constitution; or the
record they are:

  • the right to vote
    (Section 41); although still to be confirmed by the High Court as explicitly
    thus;
  • the right to a
    trial by jury in the State where the alleged federal offence took place
    (Section 80);
  • the denial of
    federal legislative power with respect to religion (Section 116);
    and
  • the prohibition
    against discrimination on the basis of state of residency (Section 117).

There are also two
"economic rights" - s.92 guaranteeing freedom of interstate trade and
s.51 mandating payment on just terms for property acquired by the Commonwealth.

Rights not Recognised

The fundamental freedoms
such as:

  • freedom of association;
  • freedom of movement;
  • freedom of peaceful
    assembly;
  • freedom of thought,
    belief and opinion;
  • and freedom from
    arbitrary arrest or detention.

And:

  • the right to a
    fair trial or due process;
  • the equality of
    all persons in Australia before the law.

High Court and Human Rights

The Constitutional
jurisprudence of the High Court has made a significant contribution to
the protection of human rights in Australia. Particularly relevant was
the High Court's re-discovery of the external affairs power - that provision
in the Constitution which gives the Commonwealth control of external affairs.

Section 51(xxix)
of the Constitution, the external affairs power, provides the Commonwealth
Parliament with the power to legislate so as to incorporate provisions
of international human rights conventions into Australian domestic law.
So the High Court affirmed in a decision where Queensland challenged the
constitutional validity of the Racial Discrimination Act. (2)
Ultimately all HREOC's legislation depends on this Constitutional fountainhead.

A High Court interested
in an expansive reading of the Constitution has also found that certain
individual rights are implicit in the system of government it establishes.
Thus in 1992 the individual right to communicate freely in political matters
was recognised by the High Court. (3)

The courts have also
acknowledged that international human rights law is a legitimate influence
on the development of the common law which may further strengthen its
utility as a means of protecting human rights.

This development
reached its apogee in the High Court decision in "Teoh" where the court
found that with regard to the Convention on the Rights of the Child, because
it had been ratified by the government, entitled a foreign national -
convicted on heroin charges and who had Australian children - to have
a legitimate expectation that bureaucratic decision-makers would apply
the Convention, in determining his residency application.

Federal Laws and Human Rights

The history of Australian
domestic legislation from the point of compliance with human rights standards
is uneven.

The first act of
the new federal Parliament in 1901 was to pass the Immigration Restriction
Act and the Pacific Island Labourers Act giving effect to the White Australia
Policy. This was racist legislation which today would be in clear conflict
with a range of contemporary human rights conventions.

Voting Rights for Women

On the other hand,
Australia did reasonably well by contemporary standards in creating a
democratic system of government. For example, as early as in 1902 the
federal franchise - the vote - was extended to women (This voting equality
was however not extended to other spheres of importance to women until
the early seventies.)

Economic Rights

Australia's particular
achievement has been the development of a comprehensive system of protection
of economic and social rights, which was put in place well before the
Bolshevik revolution in Russia. In fact Australia has been an international
leader in this field.

Economic rights for
adult European males were strongly supported in the early years of the
new federal Parliament with the introduction of the compulsory conciliation
and arbitration system in 1904. The Conciliation and Arbitration Court's
first major judgment - Harvester in 1907(4)
- established the minimum - or basic - wage as a worker's right and introduced
the national wage fixing system which prevailed in Australia for so many
decades.

Women's minimum wage
was set at a proportion of that for men (initially 54%) until the Equal
Pay Case of 1972(5) , while Aboriginal
workers were excluded from the process until 1966, when Aboriginal stockmen
were granted equal wages to non-Aboriginal stockmen. (6)

So, many human rights
were protected by domestic legislation well in advance of the emergence
of international human rights law and the treaty system.

Impact of international human
rights law on federal law

Let us now focus
on the impact of the international human rights law on federal legislation.

As we acknowledged
earlier Australia, since the end of WWII has been at the forefront of
UN activism and has been prominent among the drafters and the promoters
of human rights treaties. However, human rights treaties provide simply
the mechanisms by which governments agree on those international human
rights which each may wish to recognise for their citizens. Ratification
of an international human rights treaty does not, however, mean that the
treaty standards automatically became incorporated into domestic law.

Instruments ratified by Australia

By now Australia
has now accepted (that is, ratified(7)
) most of the principal human rights treaties:

  • International
    Covenant on Civil and Political Rights (including the First Optional
    Protocol allowing individual complaints and the Second Optional Protocol
    on the death penalty); "
  • International
    Covenant on Economic, Social and Cultural Rights;
  • Convention on
    the Rights of the Child;
  • Convention on
    the Prevention and Punishment of the Crime of Genocide;
  • International
    Convention on the Elimination of All Forms of Racial Discrimination;
  • Convention on
    the Elimination of All Forms of Discrimination Against Women (but not
    the Optional Protocol allowing individual complaints);
  • Convention Against
    Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
  • Convention and
    Protocol Relating to the Status of Refugees;
  • UNESCO Convention
    Against Discrimination in Education;
  • Freedom of Association
    and Protection of the Right to Organise Convention (ILO 87);
  • Right to Organise
    and Collective Bargaining Convention (ILO 98);
  • Equal Remuneration
    Convention (ILO 100);
  • Discrimination
    (Employment and Occupation) Convention (ILO 111);
  • Workers with Family
    Responsibilities Convention (ILO 156);
  • Termination of
    Employment Convention (ILO 158);

Instruments incorporated into
domestic law

Despite Australia's
leading role since 1948 in the development of international human rights
standards, these standards did not have much impact on domestic law until
the early 1970s. Since then many human rights treaties have been either
comprehensively or partially incorporated into federal law.

The first notable
achievement was the 1975 Racial Discrimination Act which incorporated
the International Convention on the Elimination of All Forms of Racial
Discrimination into domestic law. A Commissioner for Community Relations
was appointed in 1975 to monitor the new Act. Another notable achievement
is the fact that the Sex Discrimination Convention (CEDAW) has been almost
fully incorporated in Australian law through the Sex Discrimination Act
of 1984.

Of the remaining
13 listed above only five, that is:

  • the Refugee Convention;
  • the Torture Convention;
  • ILO 100 on equal
    pay;
  • ILO 156 on family
    responsibilities;
  • ILO 158 on unfair
    dismissal;

could be said to
have been incorporated to any substantial extent in Australian domestic
law. (8)

The other three,
namely:

  • International
    Covenant on Civil and Political Rights;
  • Convention on
    the Rights of the Child;
  • Discrimination
    (Employment and Occupation) Convention (ILO 111);

were attached to
the Human Rights Commission's legislation of 1981 and then to the Human
Rights and Equal Opportunity legislation of 1986. Their incorporation
must be treated as only partial, because they do not give rights independently
of the Commission's limited complaints jurisdiction.

To sum up, out of
15 key international human rights treaties, Australia incorporated comprehensively
8 and partially 3, treaties into domestic legislation. Further, it should
be noted, that many human rights, especially those relating to criminal
investigations and trials, are similar to common law protections well-recognised
in Australia.

What the Human Rights and
Equal Opportunity Commission (HREOC) does

Turning briefly to
the role of HREOC; it was established in 1986 as an independent statutory
body replacing the previous Human Rights Commission which had been set-up
in 1981. HREOC reports to the federal Parliament through the Attorney-General.
Its goal is to foster greater understanding and protection of human rights
in Australia and to address the human rights concerns of a broad range
of individuals and groups. It has a particular focus on race, sex and
disability discrimination as well as the rights of Indigenous Australians.
It achieves this through:

  • Developing human
    rights education programs and resources for schools, workplaces and
    the community. In 2002/03 HREOC's website recorded 4,372,899 page views;
  • Resolving complaints
    of discrimination or breaches of human rights under federal laws;
  • Holding inquiries
    into issues of national importance, such as the forced removal of Aboriginal
    children from their families, paid maternity leave and the rights of
    children in immigration detention centres;
  • Providing independent
    advice to assist courts in cases that involve human rights principles;
  • Providing advice
    and assistance to parliament and government to develop laws, programs
    and policies.

Immigration Detention and
a Bill of Rights

Turning now to the
specific topic for today's address, first some context. As mentioned earlier
the absence of a bill of rights in Australian law means that the federal
Parliament is not restricted by basic human rights and civil liberty principles
when enacting legislation. A clear example of this is the mandatory immigration
detention legislation which was passed in 1992.

Australia's Migration
Act requires the detention of all men, women and children who arrive in
Australia without a visa; whether or not they are a flight, security or
health risk; for indefinite periods of time and without any real review
of that detention by a court.

HREOC, along with
UN human rights bodies, international lawyers and human rights NGOs have
been saying for years that Australia's mandatory detention legislation
is a flagrant breach of a person's fundamental protection against arbitrary
detention and the associated right of timely review of such detention
by a court.

However, because
these fundamental rights are not protected by Australia's Constitution
or a Bill of Rights, it is extremely difficult to successfully challenge
these laws; although another round of challenges on behalf of detainees,
is currently before the High Court and we all await their outcome with
interest.

Immigration Detention and
Deterrence

Immigration Minister
Ruddock in an interview with ABC Radio National on 1 August 2002 stated:
"Detention arrangements have been a very important mechanism for ensuring
that people are available for processing and available for removal, and
thereby a very important deterrent in preventing people from getting into
boats".

UNHCR Guideline 3
of the "UNHCR Detention Guidelines" states: "The detention of asylum seekers
as part of a policy to deter future asylum seekers, or to dissuade those
who have commenced their claims from pursuing them, is contrary to the
norms of refugee law".

Even without this
admonition, the concept of proportionality militates against this rationale.
Public policy should not only be effective, it should also provide a proportional
response to that which it aspires to achieve. Clearly at one end of the
spectrum you could staunch the flow of "asylum seeking boats" by sinking
them; at the other end of the scale, you could permit all people who arrive
at our borders immediate and unrestrained access to the general community
without any health or security checks.

Furthermore even
if it can be proved that the policy has achieved its deterrence outcome
of stopping the boats, it remains a flagrant breach of human rights obligations.
A similar outcome could have been achieved, albeit over a longer time-frame,
by way of international co-operative measures to ensure the orderly processing
of asylum seekers in transit countries. Now let's look at some basic facts
about our detention regime.

Some Basic Facts about the
Immigration Detention Regime

  • When was
    the policy introduced?
    1992 to deal with the perceived influx
    of Cambodians and Vietnamese. One of the primary purposes was to perform
    basic health, identity and security checks.
  • Who is detained?
    All persons who either arrive without a visa or whose visa
    expires. If they are intercepted outside Australia's territorial waters
    or arrive at Christmas/Ashmore, they go to Nauru/PNG; otherwise detained
    in Australian detention centres.
  • How many
    boat arrivals?
    In practice, most people in long term detention
    are asylum seekers who arrive by boat. Since 1989, 13,475 have arrived
    by boat, so in 14 years the total number would roughly fill 15% of the
    MCG.
  • Where are
    they from?
    Over the past few years most boat arrivals have been
    from Iran, Iraq, Afghanistan; reasonable numbers have also come from
    Palestine, Sri Lanka and China.
  • How many
    in detention (all categories)?
    In 2001-2002 approximately 10,000
    people in detention; 1,700 were children and 1,400 of those children
    were boat arrivals. As at 7 July 2003, there were just over 1,000 people
    in detention, 92 of whom are children.
  • Are they
    genuine refugees?
    Over 90% of child boat arrivals in detention
    over the past three years have been found to be genuine refugees ie
    almost all found to have suffered persecution and released into Australian
    community.
  • Nationality
    of Children?
    Nearly 50% of the children who applied for asylum
    over past three years are from Iraq and 97% of those were successful.
    Approximately 35% are from Afghanistan and 95% were successful. Just
    under 10% were from Iran and 66% were successful.
  • In the same period
    only about 20% of the asylum seekers who arrived with a visa (eg tourist
    visa) were found to be refugees; this refutes the argument that there
    is a correlation between being a "boat person" and a "fake refugee";
    in fact boat people are much more likely to be refugees.
  • Unaccompanied
    children UAMs?
    During 1999 alone, the last year UNHCR has figures,
    20,000 UAMs applied for asylum in Western nations, 46 of those travelled
    to Australia.
  • How long
    in detention?
    Boat arrivals must stay in detention until they
    get a refugee visa or are sent back home. Sometimes this can take years.
  • The longest
    a child has been in detention with a family is 5.5 years.
  • In January 2003,
    the average length of detention for children was more than one year
    and three months.
  • By April 2003,
    50 children had been in detention for more than 2 years. All of those
    children were in detention with one or more parents.
  • What type
    of visa do they get?
    Since 1999, those who do get a refugee
    visa are only eligible for a three year temporary protection visa. After
    three years is up they must start all over again. This compares with
    those who arrive (say) on a tourist visa and then apply for refugee
    status - they are eligible for a permanent visas. Regulations proposed
    by the Government to bring these applicants into line with "boat arrivals"
    were disallowed by Parliament in September 2003.
  • What impact
    do the TPVs have on their recipients?
    There is evidence suggesting
    they suffer from a lack of stability, have difficulty settling and factually
    they cannot access some key services like the Integrated Humanitarian
    Settlement Strategy's (IHSS) housing, education and language support
    package or effectively "social security"; no rights of family reunion
    and embargoed from returning to Australia if they depart.

Three phases of Detention

Honeymoon:

In general, one could
say, asylum seekers can take up to 2-3 months of detention without major
visible impact on them. They are relieved to be in Australia and believe
that their new start in life is just around the corner.

Trauma:

After this their
behaviour changes: "I'm a father of two teenage children. My 15 year old
son sleeps only with the help of sleeping pills. Both of my children are
severely depressed after 5 or 6 months in the camp. My daughter is 16".
(Iranian man, detainee representative committee meeting, Curtin IRPC.)

This is one of the
milder reactions that I have personally observed in the course of my many
visits. Other reactions include intense trauma, self-harm and complete
family disintegration.

Total abandonment:

After one year in
detention the rate of decline is marked: "It's about 16 months since I
arrived here. I've been under a lot of pressure. My life has been taken
away from me. Within this 16 months I have become mentally and also physically
ill. Every day my physical well-being is getting worse ....I've become a
useless person who wishes for death every day". (Afghan man, interview,
Perth IDC.)

My personal observation
of the number of detainees requiring psychological and psychiatric help
is staggering.

Now whatever one's
personal views about immigration detention, all of us must acknowledge
that it is premised on the removal of freedom. That is freedom of choice
about where to live, freedom about what to eat, freedom about whom you
associate with, freedom to fulfil even the most basic functions such as
choice of education or health-care provider. The very stuff of day to
day life, in all its gloriously normal mundaneness.

Prison versus Immigration
Detention

And in considering
the above it is important to remember that immigration detention is for
"administrative purposes" only and not "punishment" as we understand the
concept by reference to Australia's domestic penal arrangements. Clearly
the latter is intended to include such a rationale, while equally clearly
immigration detention is not. And yet perversely, some aspects of penal
incarceration could almost be said to produce superior outcomes. At least
in prison you have committed a crime, in immigration detention you have
not; in prison your length of sentence is determinate, in immigration
detention it is indeterminate; in prison there is a rigid rehabilitation
regime which includes a mandated timetable of recreation, work and education;
in immigration detention these elements may exist (but sometimes don't),
and are often beset with problems of inconsistency, quality unevenness
and arbitrariness of application.

Australasian Correctional
Management, the erstwhile immigration detention centre services' provider
also manages "Arthur Gorrie" correctional centre in Queensland. As this
facility houses some immigration detainees (typically non-citizens who
have served a penal sentence for committing a crime in Australia, and
are awaiting deportation) I have had cause to visit it on a number of
occasions. My observations of conditions there have informed the views
expressed in the previous paragraph.

My suspicions in
this regard have also been reinforced by discussions with detainees who
have experienced both forms of incarceration. Unhesitatingly they tell
me that given a choice, they would prefer prison to immigration detention.

In passing I should
also add that I consider the commercial out-sourcing of immigration detention
services' provision preferable, while the current policy settings prevail,
over the suggestion that it should be once again managed "in-house" by
the Government. It is demonstrably unworkable, by reference to a raft
of other sectors in the Australian economy, to have the regulatory oversight
function and the service delivery vehicle bundled together. While the
current policy is in force, DIMIA should be responsible for regulatory
oversight of immigration detention standards and Group 4/Falcke (the newly
appointed service provider) for service delivery.

ACM/DIMIA Public Hearing,
Sydney 2-5 December 2002

Finally, I would
like to concentrate on some of the material which was discussed during
public hearings with DIMIA and ACM in Sydney in December 2002 as part
of the Inquiry. My purpose here is not to demonise individuals within
DIMIA and ACM, but rather to demonstrate the cultural attitude that the
policy has engendered in the department and the company.

Many issues were
of particular concern to me during those hearings, especially:

  • The bureaucratic
    rigidity of senior DIMIA officials and their seeming lack of interest
    in exploring the use of existing options to improve the situation of
    detainees;
  • The insistence
    of DIMIA that detainees caused their own problems;
    and
  • DIMIA's belief
    that a wealthy 1st world country such as Australia meets its international
    obligations even if it only provides the minimum requirements.

I believe that all
of these factors have led to the provision of services, or lack of them,
which have had a serious and unnecessary effect on the health of detainees
throughout the period from 1999 to the present. This includes the health
of those unlikely to obtain a visa, in that they have been found as not
engaging Australia's "protection obligations".

1st point - DIMIA Officials
and available alternatives to institutional detention

One of the points
that must always be considered is whether a department is responsible
for an action or direction, or whether it is just implementing legislation
and policy directions. Even if a Department is implementing what government
wants, there are often different ways in which such outcomes can be achieved.
The legislation itself will often provide these.

Today I will mention
a few areas where legislation allows such flexibility.

Alternative accommodation

For example, there
is scope within the Migration Act to detain people almost anywhere.

It is not mandated
that they can only be detained in a prison-like detention centre. Yet
alternatives were only really explored, albeit in minimal ways, subsequent
to the problems that occurred with the UAMs in Woomera in January 2002
when serious riots occurred.

This group of unaccompanied
minors was removed from Woomera as a result of the concern expressed by
the South Australian Department of Human Services for their well-being.
Some were subsequently granted visas and placed directly under State protection;
others have not been granted visas, and when they turn 18 can in theory
be returned to a detention centre.

However, since those
Woomera disturbances there has been little change in the options available
to others. In fact, there are probably fewer options. From the health
point of view, detainees are harder to treat and place, because they have
been in detention so long.

From the security
point of view, they must be available for removal even if there are no
certain plans for removal.

This is the real
difficulty with the system that we have at present: the conflicting principles
of best interests of the patient and best security practice. In all the
different arrangements that have been made since early 2000, these conflicting
principles have been most evident.

For example:

A woman was eventually
admitted to psychiatric care on medical intervention, but DIMIA was unwilling
to allow the next stage of treatment in a community setting. Intervention
was required by a State agency. [Sydney - NSW Public Guardian]. Family
eventually received visa in late 2002.

A similar situation
occurred in another State [South Australia, early 2003, man now living
in care of family in community. Intervention of Public Advocate]

Possibly other factors
are involved in these decisions, such as:

Was DIMIA willing
to pay the costs of such care? Evidence suggests that when some 'unexpected'
situation arose, it is more likely to be DIMIA who pays the costs of care
than ACM. Has ACM been reluctant to make guards available - it is expensive
to provide 24 hour shifts to guard one individual. Does the state have
a suitable hospital bed available, especially when ACM guards are forever
present? This may be upsetting to other patients in the ward. Overall,
it is still security or costs which dominate in these arrangements, not
the health of the patient or the professional skills of the doctors.

Bridging visas

There is also an
option to allow people to live in the community through the provision
of bridging visas. Bridging visas are routinely granted to all people
who arrive with a visa and then apply for a Protection Visa. The reason
for this, according to DIMIA, is that DIMIA already knows who these individuals
are: they have a name, they provided the required information to get a
visa therefore it is appropriate to let them live in the community.

Yet it seems from
recent public information, that it is possible for a child sex- trafficker
to get a visa to bring a twelve year old girl to this country and keep
her a prisoner for 15 years to work in the sex industry.

Even though the legislation
does make it difficult for some people in detention to obtain a bridging
visa because of the no "final determination" clause, many others could
potentially access its provisions. For instance:

  • A child could
    apply for a Bridging Visa if a State welfare authority has certified
    that release is in the best interests of the child;
    and
  • A child or adult
    could apply if a Department-appointed doctor certifies that the person
    has a health need or torture/trauma experience. (9)

However, in discussing
bridging visas with DIMIA officers at the December 2002 hearing, it became
clear that this option was rarely considered for people in detention. To
HREOC this appeared strange because:

  • It was aware of
    many cases of children with disabilities who had been in detention for
    a long time;
  • Many adults and
    children had other health problems;
    and
  • It was more than
    likely that many people had experienced torture and trauma prior to
    arrival in Australia.

So, even if we put
aside the fact that many people were arguably mentally unwell only as
a result of their prolonged detention, it was obvious that bridging visas
were not even being considered, for many other detainees, in the limited
circumstances originally envisaged by Parliament. This system was put
in place by Parliament through legislation and through regulations which
have to be agreed to by Parliament. Yet, there seems to be a great reluctance
to follow Parliament's line.

DIMIA's role

On questioning DIMIA
officials, HREOC counsel found there was no evidence of any bridging-visa
action being initiated by DIMIA officials even though it is within the
capacity of a detention centre manager to do so. In discussing Bridging
Visas for unaccompanied minors with DIMIA, HREOC found that DIMIA had
not been much involved in initiating better outcomes for UAMs.

As far as children
were concerned, DIMIA thought that State welfare officials should make
such assessments. However, there was a Catch 22 - sometimes State welfare
departments were unaware of the existence of children, much less their
mental health status or any disabilities they might have. In any event,
State legislation in itself did not allow them access to children in detention
centres, unless DIMIA agreed.

And, on the many
occasions when State welfare agencies have become more involved - and
this has increased since January 2002 ---DIMIA will not accept the word
of recognised experts. The State reports, at best, will trigger a request
for a DIMIA-appointed doctor to make an assessment.

2nd Point -DIMIA's insistence
that detainees caused their own problems

It is in the area
of mental health especially, that DIMIA's attitude to at least the current
detainee population is most obviously negative. There is an automatic
distrust of people who do not arrive in an orderly fashion; from this
follows that any mental "condition" they subsequently manifest must be
false. But "orderliness" has never been a characteristic of refugees!!

For example:

Witness Jews escaping
the Nazi Holocaust, the many millions seeking to escape Stalin's oppression
and the thousands fleeing Vietnam after the fall of Saigon in 1975; these
are some representative samples of the manifest absurdity of this proposition.

Assuming that there
is a sound Refugee Convention basis for the acceptance by either DIMIA
or the RRT of applications for a visa, there was a sound reason for people
to leave promptly.

There is often no
alternative except to turn to a people smuggler. From the statements of
some asylum seekers, they have no idea where they are going, only that
the money they have will take them to one place rather than another. Had
a better option been available or feasible, or been known to be available,
would people not save their money and go to it?

But the understanding
demonstrated by DIMIA of asylum seekers especially those who fail in their
applications is minimal. During the public hearing in December, DIMIA
said:

"the choice to bring
the detention period to an end lay within the capacity of the family and ...
they could choose at any point from then on to return to their home country
and so far that has not been the case". (10)

This is a strange
statement, given that some of the detainees are mentally ill and cannot
come to a well informed judgement of what they should do. In many instances,
it has been impossible for people to return to their home country, even
with DIMIA's help. It is not logical to support a war against Iraq, but
for a government department to think it possible at the same time to return
to Iraq the very people who were forced to leave.

There is such a degree
of contradiction and perversity in what DIMIA says and does that the effect
can be quite surreal. Speaking of refugees, and the effect on them of
detention itself, the DIMIA officer stated on one hand:

"Of course, some
of these people have had a very difficult and often perilous voyage to
get to Australia and they may well have other predispositions or issues
in their life well before any thought of coming to Australia which might
also be impacting on their personal circumstances whilst here".

Firstly, this statement
says to me that DIMIA believes:

  • mental health
    problems are probably not caused by detention - people carry them with
    them.

Secondly, DIMIA also
seems to be saying:

  • 'at most these
    people had an unpleasant voyage to Australia; this has contributed to
    their mental health problems' and also:
  • 'they may have
    been losers in their own country. It has really got nothing to do with
    Australia.'

Yet DIMIA knows that
it expends significant funding on torture and trauma services under its
settlement services for people who arrived as recognised refugees under
the "off-shore humanitarian program". What is the difference? The fact
that we carefully chose one group and didn't choose the other group? I
believe we all have a responsibility to point out the lack of logic and
the discriminatory attitudes that are being perpetuated by these statements.

3rd Point - Provision of Bare
minimum of services

I don't believe that
detention centres have ever been very generous in their provision of services
to detainees. From the detailed evidence provided to the Commission, this
certainly appears to be the case over the past few years. Maybe this wouldn't
matter much if there was a short maximum period of detention. It is when
detention is for many months and even years, that the greatest damage
is done.

International conventions
are rarely specific about the standard of services that should be provided
or the time by which this standard must be reached. But in terms of children,
the CRC states that detention must be the last resort and must be for
the shortest possible period. As far as health and related services are
concerned, a country such as Australia should seek to provide the highest
standard that it can. The CRC speaks of taking positive action to restore
and rehabilitate, not just to hand out Panadol.

In its evidence to
the Inquiry in December last year, DIMIA's position appeared to be that
due to the large number of detainees, services could only be basic:

"The provision of
immigration detention services is a complex and dynamic area of public
administration. It is not possible to predict the number of unauthorised
arrivals that may come to Australia. After all people simply do not book
in. Nor is it possible to predict the means of their arrival, the characteristics
of the population that arrives nor the validity of any claims they may
make to remain in Australia". (11)

If numbers were relevant,
many disadvantaged countries would have a good excuse to provide the bare
minimum. et, the Inquiry heard evidence that even countries dealing with
massive numbers of traumatised people - such as in central Africa - were
assessing the nutritional intake of children.

I agree that the
provision of services to a refugee or asylum seeker population is complex.
The way the system is structured means that one is essentially running
small separate towns in isolated parts of the country. But this is a poor
excuse for such a wealthy country as Australia.


1.
s109 Australian Constitution

2.
Koowarta v Bjelke-Petersen (1982) 153 CLR 168.

3.
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106.

4.
Ex parte H V McKay (1907) 2 CAR 1.

5.
In the Equal Pay Case of 1969 - (1969) 127 CAR 1142 - the principle adopted
was 'equal pay for equal work'. This was readily circumvented by labelling
female workers differently - eg women were called seamstresses whereas
men were called tailors. The principle in 1972 was 'equal pay for work
of equal value': (1972) 147 CAR 172.

6.
Re Cattle Industry (Northern Territory) Award (1966) 113 CAR 651.

7.
Australia undertakes a two stage adoption process of (1) signature which
indicates intention to become a party in the future and (2) ratification
which makes the treaty binding within a stipulated period. Between signature
and ratification the federal government now undertakes a detailed State
and Territory government consultation process.

8.
Refugees Convention in the Migration Act 1958; Torture Convention in the
Crimes Act 1914 (section 23Q) and the Extradition Act 1988; ILO 100, ILO
111, ILO 156 and ILO 158 in the Workplace Relations Act 1996.

9.
Migration Act S72; Migration Regulations 2.20(7) and 2.20(9)

10.
Transcript of evidence, DIMIA, Sydney 5 December 2002, p. 37

11.
Transcript of evidence, DIMIA, December 2002, p.

Last
updated 20 October 2003

See Also