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Rights and Freedoms

Detention of Asylum Seekers:
Key Themes

Paper delivered by Dr Sev Ozdowski OAM, Human Rights Commissioner



6-9 DECEMBER 2001

Thank you for inviting
me to speak today. Firstly I would like to acknowledge the traditional
owners of the land on which we are now meeting, the Gadigal people.


The Election has
been held - the result is to hand and it is clear that all of us have
a lot of work ahead.

Many different interpretations
have been placed on the election - especially the campaign itself; but
one thing is crystal clear, a majority of Australians have little understanding
of human rights and they certainly don't associate human rights with asylum

There were earlier
"straws in the wind" of course, but at the time we were all
reluctant to draw any definitive conclusions. For instance public opinion
surveys seemed to be demonstrating growing "equality fatigue"
such that in 1991 - 64% said we were yet to achieve equal rights and 62%
that minorities were unfairly treated, but by 1999 the majority were saying
[except for disability] that equal opportunity had been achieved for women
and migrants.

But the Tampa, the
election and the associated public opinion surveys have crystallised for
all of us the reality: a majority of Australians do not associate asylum
seekers with human rights.


On one level this
conclusion could lead to an outbreak of depression and despair, that in
the 21st century a so-called enlightened first world country such as Australia
is capable of producing reactions such as these. On the other hand why
the surprise? We who labour in the vineyard know how tenuous and fragile
advances in human rights tend to be; that one small step forward is very
often succeeded by two very large ones backwards, to paraphrase one V.I.

(Co - incidentally,
today is the anniversary of the creation of the infamous secret service
the CHEKA in Soviet Russia in 1917, that notorious destroyer of human
rights; so it seems appropriate to recall Vladimir Illyich Lenin if only
to remind us that even the most monolithic and unchanging of structures
can be rooted in extremely fragile foundations!)

So I think we should
approach our task with renewed enthusiasm and determination because the
election has provided us with a map which very clearly defines the road
ahead, one with many turns and probably (unfortunately) a number of steep
dips but inevitably, rising steadily upwards to the broad sunlit pastures
of tolerance and compassion. (TO PARAPHRASE WINSTON CHURCHILL)


This then is the
first message for today: "November 10 was a wakeup call for all Australians
who care about human rights and their fellow human beings".

It was also a sharp
reminder to people like us, who have taken their cue from the principles
espoused in the Universal Declaration of Human Rights and subsequent standards
that we should never take anything for granted; arguably it was evidence
that much of the work we have been involved with over the last twenty
five years, valuable as it may have been, has gone essentially unnoticed
by a majority of our fellow Australians - if not unnoticed, then the message
we thought they were absorbing was either not so (a benign interpretation),
or at worst, was producing the opposite result to that which we intended.

This leads to the
first substantive issue I want to raise today and it echoes my call for
a renewed effort on communication that I've just mentioned.


I refer to the need
to de-couple border protection and immigration control from human rights
issues. Currently all three subjects are hopelessly intertwined in Australians'
minds, with any reference to each word immediately causing a chain reaction
of linkage back to border protection and sovereignty. The reality of course,
is that all three issues stand alone and while they may occasionally overlap
- the automatic linkage is clearly erroneous, both under HR principles
and at a practical level.

Australia's right
to defend its borders and maintain its sovereignty has never been questioned
by HR advocates, but nor will it be at risk from the small, sad, flotilla
of leaky boats with their desperately fragile cargo. There is of course
a far more dangerous and pernicious threat to Australia's borders; I refer
here to the international drug trade which by implication mainly arrives
in Australia by sea and air in increasing amounts, posing possibly the
most serious threat to the maintenance of Australia's foundations imaginable
- and one can only wonder why the rhetoric of border protection and sovereignty
is rarely marshalled with anything like the vigour employed against asylum


So the first message
has to be decoupling of border protection from asylum seeking - and the
method? One that goes by the unoriginal name of the "repetition principle".
Meaning, that it is only by repeating the same message over and over again
until you are saying it in your sleep, only then, is it possible that
the wider community will start to actually absorb what you are saying.

Speaking to a knowledgeable
audience such as this, I do not intend to spend much time on the subject
of immigration, asylum seekers and human rights. We all know there needs
to be a decent discussion in this country on migration levels and such
a discussion only touches peripherally on that of refugees. I don't need
to explain to this audience why Australia needs to be vigilant in ensuring
its own compliance with international conventions and its treatment of
asylum seekers. BUT these are the issues which you and I must talk about
over and over again as we move around the community, because clearly these
facts are not understood by most Australians and it is only by better
understanding, we can achieve the necessary mind-shift on this debate.


Another important
aspect of that dialogue is the need to always personalise and humanise
your facts. A simple story about an actual asylum seeker, by name and
history can do more to awaken your listeners' interest than any amount
of information about ICCPR or CROC.


On the specific score
of understanding of our human rights obligations, I am attempting to broaden
the community's knowledge by the "Human Rights Dialogue". Many
of you here will have been involved in these consultations, where experts
such as yourselves interact with the community on topical human rights
issues in an effort to develop a fuller perspective. I intend to continue
this initiative in the expectation of altering, at least some of the community's


And we are necessarily
talking here of a fundamental shift in mind-set in the majority of Australians
because we are operating in a democracy. By this I mean unless we can
achieve sufficient recognition for our cause such that we affect the electoral
process - in other words the potential to change the outcomes of elections
and persuade decision-makers of the importance of upholding international
principles of human rights - then we are making life very hard for ourselves.

Again, November 10
is instructive - both major parties wished desperately to win the election
and opinion polling is now the single most dominant weapon in the election
armoury. If the opinion polls had shown that human rights for asylum seekers
was resonating more with the focus groups than border protection, I guarantee
you would have seen a policy shift on the issue.

So, we must be prepared
to present our case to the Australian people with such coherence and logic
that we can persuade them to change their minds and therefore their votes.

Let's face it - that's
what the Greens have done. The progress from the early 70's in Tasmania
to now, in electoral terms is astonishing - culminating with their success
in this election.

This gives rise to
my E-theory: Education, Explanation and Elucidation resulting in electoral
impact encourages the executive arm of government to change policy.

What other tools
do we have to work with in this educative process?


Well, obviously HREOC's
visits to the detention centres and the monitoring of conditions becomes
an important method of ensuring that the key issues are kept before the
community. I will be reporting in February next year to the new Parliament
about my visit to detention centres undertaken during 2001. This coupled
with the complaints process administered through HREOC, and by way of
example - Christmas Island and the conditions under which asylum seekers
are being administered, is currently the subject of the complaint process
- provide us with plenty of opportunities to present the issues to the
wider community, in a matter of fact, unflamboyant fashion.

However the big opportunity
for 2002 will be the Inquiry into Children in Immigration Detention, which
was announced last week. Many of the organisations represented here today
assisted the Commission with the preparation of the Terms of Reference
and I thank you for that. Many of you will have already received the Terms
of Reference (anyone who wants them please let me know and I will arrange
for copies to be sent) and will be readying yourselves for lodging a submission.
As material is received and so long as it is not confidential, it will
be published on the Commission's web site. This will give all of you access
to useful educative material during the course of the Inquiry, which I
encourage you to use.

Obviously whilst
the Inquiry is in progress, impartiality on the Commission's part will
limit certain commentary, but no such stricture applies to you. I expect
public hearings centred on and around the detention centres to occur in
June/July and these will obviously provide much valuable information.


As an aside, many
of you have commented since the announcement, on the proposed length of
the Inquiry. It is our belief, based on other public Inquiries conducted
by the Commission, that November 2002 is the minimum time necessary to
complete the job. The credibility of the Report's findings must not leave
itself unnecessarily open to the accusation (from the usual suspects),
that it was a "down and dirty" job designed only to reinforce
views already held by a small clique of HR practitioners with additional
support from the "chattering classes". No - to be effective
as a tool in our education campaign aimed at the broader Australian community,
which remember we need to ultimately influence sufficiently for them to
vote accordingly - the Report must be extremely thorough and robust. It
will take the best part of a year to review submissions (due by March
next year) to question DIMIA and ACM, hold public meetings and then write
the Report.


However this does
not stop NGOs from continuing to apply public pressure along the lines
many of you have already been espousing. In many ways you are at the vanguard
of the process, a group who should be applying the most rigorous principles
to all that we do - and like all vanguards you are necessarily risk takers,
adopting positions designed if necessary to cause discomfort as you force
us all to examine our consciences.

I fully support you
in this important task and welcome your ideas and recommendations. Naturally
you will be making submissions to the Inquiry and I urge you to engage
with this process to the fullest extent possible - the quality and rigour
of your arguments could, in the final analysis, make a big difference
to the outcome.


In summing up I believe
that education, in the broadest sense of the word, aimed at the general
Australian community, must now become the overriding focus of the human
rights movement in order for us to achieve the kind of outcomes that Australia's
international human rights obligations require.

This is not to say
we do not continue using all of the legal, media and lobbying strategies
employed so successfully in the past, but rather there has to be a realisation
that future significant changes will come from the ballot box and from
influencing decision makers. In order for that to happen we all need to
work to achieve the necessary mind-shift amongst the Australian people.
I am confident that ultimately we will all prove equal to the task.

Thank you.

updated 1 December 2001