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Waverley Council's Refugee Week: Dr Sev Ozdowski (2002)

Rights Rights and Freedoms

Waverley Council's Refugee

Speech by Dr Sev Ozdowski,
Human Rights Commissioner at the Waverley Library Theatrette, 9 October


It is my pleasure
to acknowledge the presence of Cr Paul Pearce, Mayor of Waverley, Councillors
and staff of the Waverley Council, Mr Howard Glenn, National Director
of Australians for Just Refugee Programs, our excellent performers and
last but not least volunteers who have made tonight's celebrations possible.
Ladies and Gentleman, all.

Firstly, I would
like to acknowledge the Dharawal people who are the traditional
owners of this land and a timely reminder that we are all immigrants to
this vast continent. Thank you also to Mrs Norma Simms for the welcome
to the Land.


Because of my work
on the National Inquiry into Children in Immigration Detention involving
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 this topic, I am taking advantage
of all appropriate forums to develop my arguments in the hope that in
time a sufficient number of Australians will re-examine their attitudes
to refugees and ultimately encourage all sides of politics to substantially
amend the current policy settings.

Current Policy

Australia maintains
a mandatory detention policy for most asylum seekers.

This requires that
all those who come to oheir country of origin. In the case of people who
land on the excised territories of any of the Christmas, Cocos or Cartier
Islands or Ashmore Reef, they are removed to Papua New Guinea or Nauru
under the colloquially named "Pacific Solution".

In contrast, this
mandatory detention policy does not apply to people who are already in
Australia and who have applied for asylum. That means that they do not
have to face detention while awaiting a decision on their refugee status.

Most of these people
who come to our shores without authorisation see themselves as refugees
and are seeking asylum in Australia, for example people from Iraq, Iran
or Afghanistan.

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.
In fact, for example, some 70% of unauthorised and about 53% of the "Pacific
solution" arrivals are recognised as refugees. In contrast, only
15% of applications from people already in Australia are gaining such
accreditation. 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. In fact the Director-General
of ASIO recently stated that out of 6,000 boat people vetted by ASIO in
the last few years none were identified as a threat to the security of

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

What is the Rationale for
Mandatory Detention?

The key purpose is
to undertake rudimentary health, identity, security and refugee status
backgrounding checks. An initial period of mandatory detention, thereby
enabling these checks 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 also 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 recent
case involved a child being held for more than 5 years in detention before
his claims were recognized.

Judicial Review

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, the Australian parliament, with the exception of the constitutional
protections afforded the High Court, 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.

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 judgment on what is being
given up, if you have nothing by which to measure it.

Border Protection issue

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 detention?

If the answer is
deterrence of other aspiring asylum seekers pushed by unscrupulous "people
smugglers", then clearly there should be doubts about:

  • whether the relatively
    small numbers of arrivals justify such a costly (both in economic and
    social terms) response,
  • the long term
    sustainability of the policy, and
  • its high moral
    and human rights cost.

Just look at the
raw numbers; Australia's total immigration intake at present is about
100,000 per year. During the peak of the "boat people" crisis
there were only about 4,000 unauthorised arrivals per year. That is only
4% of our overall intake.

Focusing on the long
term sustainability issue, camp style detention effectively began in the
early 90's and one would expect the cumulative effect 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.

Proportionality and High Moral

In any event, issues
of proportionality and high moral cost arise 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 mediaeval 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.

Australia in a Multilateral

Finally, we come
to the vexing subject of adherence to United Nations inspired human rights
treaties and conventions. Australia has ratified a range of treaties of
high relevance to the present situation. For example, it ratified:

  • Universal Declaration
    of Human Rights
    : Art.14(1) of the Convention states that "All
    people have the right to seek and enjoy in other countries asylum from
  • the Geneva
    Convention Relating to the Status of Refugees of 1951
    : Art.311(1)
    "Contracting parties shall not impose penalties, on account
    of their illegal entry or presence, on refugees who coming from a place
    where their life of freedom was threatened…are in their territory
    without authorisation."
  • International
    Covenant on Civil and Political Rights
    : Art.9 "No one shall
    be subject to arbitrary arrest or detention".
  • Convention
    on the Rights of the Child
    : Art.37 "Detention of a child
    shall be used only as a measure of last resort and for the shortest
    appropriate period of time". Or, Art.3 "In every situation
    affecting the interest of a child or a family, the interests of the
    child must come before all others".

However, due to

  • limited enforceability
    of some international instruments in the Australian domestic system,
  • 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

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 commonsense 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.

Using this criterion,
treaties implying moral obligations towards refugees become just as important
for our long term future as those which help secure our economic and trading


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

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

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 policy, that change is essential.

This means that "ginger
groups" such as your " Waverley Refugee Welcome Zone",
"Refugee Council of Australia" or "ChilOut" must be
prepared to go out among your general community and argue the case for

Otherwise we all
run the risk of simply preaching our message to the converted.

Australia is a democratic
country. Any 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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