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Mornington Peninsula Shire Conference

Rights Rights and Freedoms

"Human Rights as a secular
guide to to community relations"

Address by Dr Sev Ozdowski
OAM, "Poverty & Power - What makes you rich, what makes you poor"
Mornington Peninsula Shire Conference, Tuesday 21 October 2003.


Firstly I would like
to acknowledge the traditional custodians of the land on which we stand
and by so doing remind ourselves that Australia's cultural traditions
stretch back many thousands of years.

I would also like
to thank Vicki Nicholson-Brown for her traditional welcome, the Mayor,
Councillor David Renouf, Rob Macindoe, General Manager, Peninsula Health
and Rosy Buchanan, State Member for Hastings for your introduction.

Let me start today
by briefly updating you on the current position concerning immigration
detention. Many of you would be aware that I am in the final stages of
completing my report into children in immigration detention. I have found
as I circulate around giving different addresses to various groups that
there is a high degree of interest in this topic so I have developed a
short presentation that provides some insight into this complex subject
matter.

Some Basic Facts about the
Immigration Detention Regime:

  • When was
    the policy introduced?
    In 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. It goes in waves, but 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. 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.
  • 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.
  • 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.

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.

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
now 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.

I will now turn to
some observations about the state of human rights on the international
stage, the resolution of which provides us with some important lessons
on how best to manage differences within our local community.

Huntington Theory

It was author Samuel
Huntington whose seminal 1993 article "The Clash of Civilisations?" articulated
the hypothesis that:

" .....the fundamental
conflict in the next millennium will not be primarily ideological or
primarily economic. The great divisions among humankind and the dominating
source of conflict will be cultural". ....

" .....the principal
conflicts of global politics will occur between nations and groups of
different civilisations. The clash of civilisations will be the battle
lines of the future."

Eight years later
in the immediate aftermath of 9/11 these words received a large amount
of media time in the United States, due to their seeming relevance as
a possible explanation for the causes of the terrible attacks.

In light of this,
I believe it would be useful to briefly consider Huntington's conclusions
as to the best way forward if the scenario he had outlined, did come to
pass.

Huntington Conclusion

In summing up Huntington
wrote this:

"Western civilisation
is both Western and modern. Non-Western civilisations have attempted to
become modern without becoming Western. To date only Japan has fully succeeded
in this quest. Non-Western civilisation will continue to attempt to acquire
the wealth, technology, skills, machines and weapons that are part of
being modern.

They will also attempt
to reconcile this modernity with their traditional culture and values.
Their economic and military strength relative to the West will increase.
...in order to deal effectively with this the West must develop a more profound
understanding of the basic religious and philosophical assumptions underlying
other civilisations. It will require an effort to identify elements of
commonality between Western and other civilisations."

I think you will
agree with me that there are many interesting avenues for exploration
in the above statement, not the least of which is the one about Japan
- undoubtedly worth an entire speech on its own.

However today I want
to concentrate on the last line:

"to identify
elements of commonality between Western and other civilisations".

The key question
we need to ask ourselves is: on what will we base these "elements of commonality"?
Within that answer resides, I believe, the key to managing differences
in our local community.

International Perspective
and Human Rights

But before exploring
that issue further I would like to briefly digress for an update on international
affairs, from a human rights perspective.

The UN which arguably
used to act as moderator between the opposing positions of civilisations,
is going through a difficult period. It previously held an unassailable
position as the powerhouse of international human rights standards which
identified some, if not most of the benchmarks for "civil" behaviour.

That is common standards
developed by all UN members representing the full range of cultures and
civilisations. The UN drew upon many experiences and value systems but
all were expressed in a secular way.

The Iraqi War debate
however challenged its authority; there are reports (UNESCO) that its
standing in international public opinion is at an all time low. Often
it is blamed for lacking legitimacy (unlike democratic governments which
have the electoral process), backward looking to post WWII status quo
and being inefficient and bureaucratic.

There are calls for
"restructuring" of the UN. These factors are all issuing challenges to
the international human rights order, as we know/knew it.

None of these issues
have lost their relevance, by the way, simply because in the last few
weeks, America has belatedly discovered that "the coalition of the willing"
can't go it alone in the post war reconstruction of Iraq.

Alternative Models to the
UN

Nevertheless fair
minded, objective observers of the UN would probably agree that there
is an argument for reform of that body. Are there any alternative models,
already in existence, which could do a better job?

First - Pax Americana

  • US could arguably
    be used as a model because of its bill of rights and strong civil rights
    culture;
  • As the Prime Minister
    said recently, if there has to be a superpower then it's better that
    it's America:
  • But it has even
    less "elected" legitimacy than the UN because of its uni-lateral, "in
    the national interest" motivated actions - eg. Kyoto.
  • As the Pew Research
    Centre in Washington found in its May, 44 nation, international public
    opinion survey: "the war has widened the rift between Americans and
    Western Europeans, further inflamed the Muslim world, softened support
    for the war on terrorism, and significantly weakened global public support
    for the pillars of the post-World War 2 era - the UN and the North Atlantic
    alliance".
  • Hardly a model
    that will be adopted by acclamation!
  • And that's before
    Arnold Schwarzenegger was elected Governor of the 6th largest economy
    in the world.

Secondly - there
is the European Union model.

  • Again has some
    advantages such as democratic institutions, creation of powerful economy,
    and strong record in the human rights field, the European Court of Human
    Rights in Strasbourg etc. It may be very helpful to Europeans.
  • But it is also
    selfish - agricultural policy; and often unable to act - Bosnia/Kosovo.
  • Further it is
    moving towards being a single European government; whereas the UN should
    not aspire to being a "world government;
  • And it must be
    acknowledged, French and German hypocrisy over their Iraq War position
    sits very badly with their covert trade with Saddam's regime in illicit
    goods and services.
  • So in summary
    I would argue that while the UN may require some reform, thus far it
    has proven to be the best international forum available for dialogue
    between civilisations. And most likely will continue to so do, although
    in some "reformed" format.

In particular the
UN has established human rights concepts, or generally accepted universal
standards, the use of which assist in the maintenance of a civil society
both inwardly and outwardly. These standards might need strengthening,
protection and education about their meaning, but they still provide the
best template for action.

Returning then to
my earlier question as to: "what are these elements of commonality between
Western and other civilisations?"

I believe the answer
lies with the above mentioned "UN inspired human rights values", as they
relate to relationships between individuals and groups in a society.

What Rights?

  • Rights securing
    life, liberty and security of a person;
  • Equality before
    the law and right to a fair trial;
  • Right not to be
    discriminated against in society by government/organisation/individuals
    because of: race, sex, religion, social status.
  • Right to participate
    in the political process and elect the government; allowance for majority
    rule and protection of the minority.
  • Right to freedom
    of thought, religion and association.
  • Unfettered access
    to economic, social and cultural rights.

It is only by adherence
to values and principals that are secularly based that the
clash between civilisations can be mitigated.

Secular not religiously based

Let us not forget
that in the past, value systems based on religion were very destructive.
The 20th century witnessed a return to such difficulties. In saying this
I'm not arguing that any one religion is to blame. Simply making a statement
based on observation.

Australian Story

Now turning to Australia
and in particular the community of the Mornington Peninsular; where does
this leave us?

Some people here
also held the view that clashes were inevitable between different communities
within this country.

Two years ago, when
I took on this job, the Pauline Hanson phenomenon was in full swing and
its growth was being largely fuelled by the belief that such clashes were
already happening. Consequently she and her adherents generally supported:
reduction in the policy of multiculturalism, return to assimilation, even
more restrictive changes to our immigration policy and harsh treatment
of asylum seekers, as well as re-introduction of tariff barriers, dramatic
changes to our taxation model and radical downsizing in the social security
regime.

In other words a
Fortress Australia approach or as they would say in South Africa: a "laager"
mentality.

The current Government's
reaction at the height of the Hanson firestorm was confusing at best in
its initial stages. On one hand the Government's 1999 official statement
fully endorsed the report of the National Multicultural Advisory Panel
which was unambiguous in affirming that enhanced multicultural policies
would continue, with an added emphasis on making these policies as inclusive
and relevant as possible to all Australians, particularly indigenous Australians.

And on the other
hand you had Tampa, the Pacific Solution and the "children overboard"
affair which because of their association with people from the Middle
East, challenged these multicultural sentiments whether intended or not,
and certainly had a demonising effect on Australian public opinion.

All of which gave
rise to the perception that the gap between government policy and Pauline
Hanson, was not as broad as might be hoped.

In my view the majority
of Australians prefer the model of a "modern" society. They wish to have
state and church separated, an economy driven by profit motives but with
a broad based safety net. They enjoy Australia being in the forefront
of economic and social development.

But we also recognise
that there are some Australians, who maybe in a minority at different
times or over different issues.

For example for many
Moslem Australians, religion is an integral part of their whole community
and lifestyle. Other Australians, for example on the economic front, believe
that we should limit our consumption and save resources for future generations.
Some members of our community, such as retirees may have different views
on the allocation of relatively scarce community support facilities.

So how do we best
deal with these "mini-clashes" of civilisations on our home ground?

First, we need to
have a strong set of secular standards in order to accommodate our differences.
And I believe that we have such standards - these are human rights standards,

which in the popular
mind are associated with the United Nations. They are the "good behaviour
rules", "the grease which oils the wheels".

In other words we
need to insure that community values in this country intersect with human
rights values. This is the secular roadmap that we will all need to consult,
no matter what our religious belief or stance on economics or community
resource allocation, as we navigate our way through a community that aspires
to civil discourse and behaviour.

These standards,
especially those already fully incorporated into our domestic laws, such
as sex, race and disability need to be the subject of mass education.
Additionally we also need to strengthen the menu of standards by creating
better ways to implement them, especially in the field of civil and political
liberties (eg bill of rights).

To sum up we should
continue to create a human rights culture based on the knowledge and understanding
of the existing human rights and anti-discrimination laws. It is important
to create respect for other cultures and tolerance of religious differences.

As Kofi Annan: said
"...the perception of diversity as a threat is the very seed of war".
Between, and within civilisations, dialogue and good conflict resolution
skills are the preferred methods of dealing with such cultural tensions.

Conclusion

But for our dialogues
to be real, not based on mantras, they need to aim for better understanding
of the differences. They need to use the human rights principles as a
point of departure and then move to where the differences are, to more
particular examples. They need to explore and not be afraid of discovering
where the real differences lie and try to understand the other point of
view.

Accordingly obligations
are created on both the majority exponents of any particular issue in
the community at any moment in time and the minority exponents of a contrary
position.

The majority must
ensure non discrimination; the minority must appreciate that its values
are not obligatory on all and retain a degree of flexibility where private
and public life intersect. Respecting separateness and its associated
values and lifestyles, brings with it an obligation to remain engaged
with broader society.

Australia has most
successfully achieved this to date but overseas experience tells us to
be watchful; ultimately all our human transactions are enhanced by the
degree to which we respect each other's human rights.

Last
updated 24 October 2003

See Also