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Submission to the National

Inquiry into Children in Immigration Detention from

(Fr) Frank Brennan SJ AO


Letter

to Mr Philip Ruddock MP 31/01/2002

Letter to Mr Philip Ruddock MP 22/02/2002

Letter to Mr Philip Ruddock MP 21/03/2002

Letter to Mr Philip Ruddock MP 03/04/2002

Letter to Mr Philip Ruddock MP 29/04/2002

Letter to Mr Philip Ruddock MP 06/05/2002

Letter to Mr Philip Ruddock MP 09/06/2002


January

31, 2002

Mr Philip Ruddock

MP

Minister for Immigration and Multicultural and Indigenous Affairs

Parliament House

Canberra

ACT 2600

[Fax number removed]

This month I have

returned from my 15 month appointment as Director of the Jesuit Refugee

Service in East Timor. Yesterday I attended the Woomera detention facility

at the invitation of various persons who are clients of [name removed].

At the request of those persons, I then spoke to the media to explain

what I saw and what I heard in my visit to the centre. I also had the

benefit of discussions with three members of your Immigration Detention

Advisory Group (IDAG) - [names removed]. Today I spoke to [the chief of

staff] from your office. I intend to respond to the invitation from inmates

at the detention centre to return regularly. I hope to be able to attend

for one week each month over the next three months. I will be in Canberra

the week commencing February 12 and would appreciate the opportunity to

meet with you or your advisers.

Though an opponent

of the bipartisan detention policy, I have no interest in agitating for

a reversal of that policy so soon after an election which has given the

government a resounding mandate for the continuation of the policy which

was first instituted by your predecessors Mr Gerry Hand and Senator Nick

Bolkus. But I, like many church and community leaders do have an interest

in ensuring that any detention policy is applied in the most humane, transparent

and non-capricious manner possible.

I have been out

of the country these last 15 months so I do not claim to be across all

the complex discussions that have occurred about the Woomera facility.

I am anxious to spell out what I have seen and heard this last 24 hours

so that you and your officers might be more readily assisted in assessing

the perceptions of the inmates at Woomera and the complaints which they

make to members of the Australian community.

You will appreciate

that I have no interest in demonising you, the Prime Minister or any of

your officers. It is essential that citizens of good will co-operate with

government in seeking a better outcome especially for all the children

and those adults who are bona fide refugees being held in detention

for periods far longer than previously intended by government, and through

no fault of their own.

I think it would

be useful if I set down an account of what I heard and saw, then providing

some personal reflections. Having been out of the country for so long,

I was better positioned to put the blunt question to inmates, including

delegates: "Why do people sew their lips? Why are you on hunger strike?

Did any adult sew the lips of children?"

The visit of the

IDAG group was significant not because any final outcome was negotiated

but because people who have been in despair thought that for the first

time in many months there were officials with the mantle of government

authority who were prepared to listen to them, and to acknowledge the

legitimacy of their grievances about delays and perceived unfairness in

the processes of their claims. Also these officials acknowledged some

of the extraordinary anomalies that have occurred in the administration

of the government policy in the wake of the events of 11 September.

For five months,

these people have suffered further protracted detention through no fault

of their own. During this time the Afghans have had no contact with family

members back home during the blanket bombing of their country. Your letter

of January 18 left them with the perception that they were to be abandoned

in the Australian desert with no timeframe for the processing of their

claims. They thought they were going to have to rot in Woomera until the

situation in Afghanistan was sorted out. The majority of the Afghan inmates

are Hazaras who have no expectation that the situation back home will

be sorted out. They have long been persecuted as an ethnic minority and

they will continue to be persecuted no matter what promises are made government

to government.

Since September 11,

inmates of all three nationalities have been told that it is no longer

an option to go to third countries even if they have visas for countries

such as Syria, because the Australian authorities cannot provide transport.

DIMA officials have told them that their only option has been to return

home. There are 16 persons who have had enough and want to go home. Some

of them have been in detention for 2 years. But even they have had to

wait another three months in detention unable to return home.

There are persons

who have been waiting up to nine months for an answer after their third

interview with DIMA officers. There are persons who have been granted

a TPV by the RRT but they have been waiting up to five months for a police

check during which time they have endured undignified, intrusive, unreviewable

interrogation by security police (ASIO) who claim the authority to provide

information from the applicant's "green book" to the security police back

home who may well have an interest in misrepresenting the applicant as

a criminal so that the applicant is returned to face persecution and even

death. Applicants claim that their "green book" is available on the Internet

and therefore accessible to security police back home who will punish

persons for their claims of earlier persecution.

There are more than

48 women and children in the facility whose husbands and fathers are now

lawfully residing in Australia and they are despairing that the children

have to suffer further detention in such an isolated place when they could

be with their fathers. Even when families are being released into the

community, one of their number has to remain in detention.

There are many complaints

about translators and the reliance on language experts who study transcript

highlighting supposed inconsistencies of linguistic usage which are then

relied upon to question an applicant's credibility. In the limited time

available to me, I could not get across the detail of all these concerns

about translators and language experts. But as I understand, the Hazaras

have been particularly concerned that their translators are often their

traditional ethnic enemies whose speech patterns are markedly different.

That is why it was very important that IDAG promised to provide five Hazaraghi

interpreters once you had resumed the processing of claims. The inmates

believe that IDAG has guaranteed that proper language experts will be

provided for all applications including Federal Court appeals and that

all language objections from DIMA which have not been responded to will

be cancelled.

Though there has

been much media talk about the proposed closure of Woomera, I understand

that the IDAG discussions with the delegates and hunger strikers focused

more on the need for fair and prompt processing of applications. Given

the delays since September 11, people who have finished their third interview

are now entitled to a prompt response. To my surprise, people understand

IDAG to have represented that those who completed their interviews more

than six months ago will now not be rejected in their applications.

They also believe that those whose applications were accepted by the RRT

more than six months ago will now receive a TPV. IDAG has agreed to use

their good offices with you to urge your use of the s.417 power to issue

visas to the Afghans still in detention. You will understand that I am

communicating to you what I have been told is the people's understanding

of what IDAG has communicated to them. I have not attempted to verify

any of these matters with IDAG members.

Since September 11,

the Iraqis and Iranians as well as the Afghans have felt a tightening

of control in the facility and an abandonment by government of their claims.

"If you wanted to see a psychologist, there is no point in asking - unless

you cut yourself." "If you have no money but you need to call home, there

is no point in asking - unless you cut yourself". Access between compounds

has been restricted. There has been a divide and rule approach by management.

Even IDAG met only with the Afghans and not with the Iranians and Iraqis.

People are being labelled as criminals and treated as criminals.

Your IDAG members

were the first persons wearing the government mantle who were perceived

to be listening and understanding after months of silence, absence, delay,

and public abuse of these people as criminals during an emotive election

campaign. In his public statements these last 24 hours, [one IDAG member]

has acknowledged that the majority of Hazara inmates fear persecution

back home no matter who is in government. They want fair, quick and transparent

determinations because they are confident that any fair-minded person

would accept that they are refugees.

Though I believe

the blanket detention policy and the Pacific solution are morally reprehensible,

that is a matter for another day given that I live in a democracy where

that is not the prevailing public opinion nor the moral assessment of

our lawmakers. Given that detention is an integral component of the government's

present border protection policy, it is essential that the time delays,

uncertainties, and psychological trauma exacerbated by the events of September

11 and the federal election now be put behind us as quickly as possible.

Because of those events, every inmate in Woomera (including the bona

fide refugees) will have spent an additional five months in detention

- five months of despairing isolation which drove people to sew their

lips so that they might be heard. They have now been heard. Surely it

is time for government and the community to respond with a renewed commitment

to a determination process which is "fair, just, economical, informal

and quick". Now that the election is over, surely it is time for government

and all major political parties to concede that asylum seekers are not

criminals and that their detention should not be any more dehumanising,

isolating or remote than the detention imposed upon convicted criminals.

It will not be too

long before protracted detention of children in the heated isolation of

Woomera will be seen to be a moral obscenity especially when some of them

have fathers living in Sydney and Melbourne, happy to resume their parenting

responsibility. If the media were allowed inside the one kilometre fence

to show ordinary Australians the sight of women with little children behind

razor wire in the middle of the desert, many (like [an IDAG member] and

myself) would surmise that there must be a better way. Incidentally, all

persons assured me that no adult sewed the lips of any child. Children

themselves sewed their lips. Given that the adults responsible for those

children, especially those government officials in loco parentis,

are unlikely to be held accountable for the harm suffered by those children,

there is even more reason for their release into the community where their

parents or responsible community groups could assume that responsibility.

I look forward to

further constructive dialogue so that this dark episode in Australia's

history might be put behind us as quickly as possible, subject to the

legitimate constraints of a democratically endorsed border protection

policy. By post, I will also provide a copy of my recent address to the

national conference of Supreme and Federal Court judges. I will provide

a copy of this letter to [name removed], President of the Australian Catholic

Bishops' Conference. Should any of your staff want to contact me urgently,

my mobile phone number is [number removed].

Yours sincerely,

(Fr) Frank Brennan

SJ AO

cc. [President, Australian

Catholic Bishops' Conference]


22

February 2002

Mr Philip Ruddock

MP

Minister for Immigration and Multicultural and Indigenous Affairs

Parliament House

Canberra

ACT 2600

[Fax number removed]

Thank you for our

meeting of 13 February 2002 and the assurance from yourself and your officers

that we can work co-operatively in seeking a more humane outcome for those

who are held in immigration detention. I have just completed my most recent

visit to the Woomera IRPC. The Afghani delegates were very pleased to

receive yesterday's assurance from [your chief of staff] that the Afghanistan

government representatives would visit only the handful of Afghani detainees

in Port Hedland who are wanting to return home. We are ad idem

that the human rights and dignity of detainees must be maintained.

As in my previous

letter of 31 January 2002, I will set out the major matters of concern

from my visit this past week with some suggested policy options. I have

maintained contact with IDAG through [name removed] and had useful discussions

with [the Woomera Department Manager] from your department.

This week, the centre

was more routine than at the time of my first visit during the closing

stages of the hunger strike on 30 January 2002 though there were several

reports of recent attempted hangings. When leaving on Tuesday, I was approached

by three boys speaking through the razor wire, demonstrating their cuts

which they had inflicted to attract attention and to press their demands.

I am told this mimicking of self-harm by children is now a real problem,

with many adults being convinced that self-harm is still the pre-condition

for being heard. I was told about one 11 year old boy who had attempted

to hang himself this week "because his father lives here in Australia".

Some delegates are

now wondering why the "camp" is still so closed with minimal exchanges

possible between the various compounds now that everyone has completed

their "third interview". In the past, detainees could move more freely

between the compounds. Now they can make only one two-hour visit each

week. It is gratifying that there are no unaccompanied minors remaining

at Woomera. I heard favourable reports of the alternative detention regime

for women and children in the Woomera housing complex. Once security and

health checks are complete, I trust you will soon be able to effect the

reunion of all families who have at least one member lawfully living in

the Australian community. Everyone knows that families with small children

are unlikely to abscond and escape detection by the authorities.

Bridging Visas for the Afghanis

There are about 150

Afghan detainees in the Woomera IRPC who have not yet received primary

decisions in relation to their applications for protection visas. Each

of them has now been in detention for more than six months since they

applied for their visa. There are 3 or 4 persons who have been waiting

more than nine months for a primary decision. Whereas your officers indicated

at our recent meeting that only 29% of all detainees are yet to obtain

a primary decision, 151/231 of the Afghani Woomera detainees were still

awaiting a primary decision on 13 February 2002. Given the uncertainty

and change in Afghanistan since 11 September 2001, it is unlikely that

credible adverse decisions could be made against those who establish that

they are Afghan nationals (as distinct from Pakistanis), and this would

be especially so in the case of those who are Hazara.

Under s 72(1)(c),

you have power to determine that such persons are eligible non-citizens

who would then be eligible for a bridging visa of some description. I

appreciate that it is unlikely that you would exercise this power immediately,

given the government's attempts to sell the financial incentive solution

to Afghan nationals who may want to abandon their applications for protection

in Australia.

Given that it will

be a long time before non-detention countries and UNHCR start processing

Afghan claims, it would be in the public interest that bridging visas

be granted once Afghanis are held in detention longer than other applicants

or once there is no prospect of their applications being credibly processed

within a reasonable timeframe. Afterall, sustained detention when there

is a suspension of visa processing through no fault of the applicants

is not in the public interest. In the absence of judicial review or warrant,

such sustained detention could even be unlawful.

Afghanis whose applications

have been rejected by the RRT

Those Afghanis who

have been rejected by the RRT, some of whom have been in detention now

for two years, are not eligible for a bridging visa. It may be possible

for you to consider substituting the RRT decision with a decision more

favourable to the applicants, granting a protection visa or some other

class of visa. I appreciate that in exercising your discretion under s.417,

you are bound by other provisions of the Act including s.36 which stipulates

that "a criterion" for the grant of a protection visa is your view that

the applicant is entitled to invoke Australia's protection obligations

under the convention. It may be arguable that this is not the only criterion

for a protection visa. Of course, you are also at liberty to grant any

other class of visa without the need for the applicant to submit the prescribed

forms. You have used s.417 in rare circumstances for humanitarian reasons

when an applicant is in need of protection or humanitarian assistance

even though he or she is not strictly found to be a refugee.

Another option would

be the grant of a special category visa created by regulation under section

32. If the situation in Afghanistan remains intractably unstable, there

may be a need for a special category visa for those awaiting determination

of their refugee claims or for those deserving special humanitarian assistance

once their refugee protection claims have been rejected. It is unlikely

that you will be able forcibly to return any detainees to Afghanistan

in the foreseeable future. Having been party to the bombing of their country,

we do have some humanitarian obligations to those who are here and fear

returning at this time.

There may be a need

to reopen some cases in light of the changed circumstances in Afghanistan

(pursuant to s.48B). I have heard some detainees say that their claim

to persecution by the Taliban was the most pressing claim some months

ago but that they now have a well founded fear of persecution by the new

government linked to warlords.

Palestinians and Iraqis whose

applications have been rejected by the RRT

There are some detainees

who having exhausted all appeals from a primary decision and are still

in detention because the government is unable to return them home in safety

or to remove them to a third country. The four Palestinians in this situation

wrote to you yesterday. Such persons should no longer be held in immigration

detention. Their ongoing protracted detention is unrelated to the processing

of claims or to the preparation for removal or deportation from Australia.

Except for a constitutional challenge to their detention, they have no

recourse to the courts. And they can be released from detention only if

you grant them a visa of some description. Once again you could consider

substituting the decision of the RRT (under s.417) or issue a special

category visa. The only other option would be more humane detention in

a less isolated place unless and until they can return home in safety.

There would still

be the problem of the nine Iranians who have now been in detention for

more than two years at Woomera. They have no intention of returning home

and are trapped by the inaccessibility of any third country since the

events of September 11. We all now face the problem since September 11

that there are some detainees who are forced to remain in detention because

they are unable to go to any third country.

Since returning to

Australia, I have noted your comments to the Australian Anglican Synod

on 27 July 2001:

Detention is not

punitive nor meant as a deterrent. But it is essential that unauthorised

arrivals are not allowed to enter the community until we are able to

establish their identity and that they do not constitute a security

and health risk.

Detention ensures

that they are available for processing any claims to remain in Australia

and that importantly they are available for quick removal should they

have no right to remain.

The situation for

people who overstay their visa is fundamentally different. We know who

they are and have already assessed that they do not constitute a danger

to the Australian community.

..

Nobody is forced

to remain in detention. Detainees can choose to leave detention by leaving

Australia. They can go wherever they wish to any country where they

have, or can obtain, the right to enter, and we will do our best to

facilitate that."

I have also noted

your recent comment in Medical Journal of Australia (21 January

2002, Vol 176, No 2, p.85): "Detention is not arbitrary. It is humane

and is not designed to be punitive."

I presume your comments

about deterrence and the non-punitive intent of the detention are related

to the constitutional doubts about the validity of legislation authorising

administrative detention of persons without access to the courts (now

confirmed by the privative clause) when their detention is neither relevant

nor incidental to the processing of their claims and when the detention

is neither relevant nor incidental to their removal or deportation in

the foreseeable future. But I note your remarks to the Parliament on 19

February 2002 (Hansard p291):

Late last year,

...we were able to pass certain laws which strengthened our territorial

integrity. This strategy has been successful in deterring potential

illegal immigrants from making their way to Australia.

In light of the present

government's detention policy, you could well argue that you were acting

in the public interest by creating a special class of visa permitting

release of those persons whose ongoing detention would undermine the constitutionality

of the mandatory detention regime and seriously call into question the

claims that detention is neither punitive nor meant to be a deterrent.

You will have noted

the Afghani delegates' statement to the Prime Minister on 19 February

2002:

Might we take this

opportunity to assure you that no adult person in this Centre sewed

the lips of any child. We hope you will have the opportunity to set

right the record on this matter which has offended our dignity very

greatly.

I will maintain contact

with your office and with IDAG. I will return to Woomera on 25 March 2002.

Thanks again for your continued openness to dialogue on these difficult

issues.

Yours sincerely,

(Fr) Frank Brennan

SJ AO

cc. [President],

Australian Catholic Bishops Conference


March

21, 2002

Mr Philip Ruddock

MP

Minister for Immigration and Multicultural and Indigenous Affairs

Parliament House

Canberra

ACT 2600

[Fax number removed]

On 11 March 2002,

I provided your office with a draft of the paper I am using during our

present national speaking tour on "Australia's refugee policy - facts,

needs, limits". On 15 March 2002 I advised that I was also making public

comment about the Pacific solution in the following terms:

The Pacific solution

will need to be abandoned quickly, not so much because it is morally

reprehensible and diplomatically gross but because it is economically

unsustainable once the Australian taxpayer appreciates the cost and

because it prostitutes the constitutional integrity of small Pacific

island countries. The constitutions of PNG and Nauru both contain bills

of rights which set clear limits on the use of detention and on the

requirement for free access to legal assistance. Being constitutional

guarantees, these restrictions cannot legally be negated with a cheque

book approach. These restrictions cannot be removed by national parliamentary

legislation nor by executive government policy nor by bilateral government

negotiations. For as long as we pursue the Pacific solution, our government

in our name is engaged in illegal people trading.

Yesterday, your

Chief of Staff, [name removed] kindly offered the following clarification:

Asylum seekers

on Nauru and Manus are NOT detained. IOM do not run and manage detention

centres. There is a fence around the compound but it is single strand

in most cases and ringlock in others.

You may wish to

consider this detention - however it most clearly is not, either technically

or practically. Hence neither we, nor the Nauruan and PNG governments

are in breach of constitutional law. However I do understand that our

particular frame of reference will determine our perception of these

issues.

At the very least,

I hope you will understand the ease with which citizens like myself could

be mistaken for thinking that asylum seekers on Nauru and Manus ARE detained.

Afterall DIMIA's own Fact Sheet No 76 Offshore Processing Arrangements

states: that "at 31 December 2001, 1118 unauthorised arrivals were detained

at Nauru" and that "Currently 216 people are detained at Manus Island."

You will recall that

Ms Julia Gillard, the Shadow Minister for Immigration, accompanied you

on a visit to the Pacific facilities in February. Writing on page 1 of

the Sunday Age, 10 February 2002, she described the "detention

facility" and "detention centre" in each place. She received no correction

from you or your office. She confirmed to me last night that the asylum

seekers are kept in detention. The major national newspapers have continued

to publish maps and statistics of the persons held in detention in Australia

and in the Pacific facilities. No correction has ever been issued.

I have not had the

opportunity to visit these facilities in the Pacific. But I note that

Bishop Ambrose Kiapseni, Bishop of Kavieng, issued a statement on 13 March

2002 regarding the asylum seekers at Lombrum Base, Manus Province. He

asks:

Why are we keeping

people innocent of any wrongdoing in PNG behind barbed wire? Is it because

our neighbour and benefactor has asked us to do this thing? Shouldn't

our own laws in our own country take precedence over requests from our

neighbours?

Are the men, women

and children we are imprisoning to be seen, now, as a commodity, to

be sold back to Australia for the value of the improvements at Manus?

Is this good?

Despite the correction

offered from your office, I will continue to describe the situation at

Nauru and Manus as one of "detention" which is contrary to the constitutions

of both countries. I suggest it is time to seek formal legal advice from

the Australian Government Solicitor and the Attorney General on a number

of legal and constitutional matters:

Are asylum seekers

in Nauru and PNG being detained?

Is their detention

contrary to section 5 of the Nauru and section 42 of the PNG constitution

respectively?

If not, are those

lawfully in detention being accorded their procedural constitutional rights

most exhaustively stated in s.42(2) of the PNG Constitution:

A person who is

arrested or detained-

shall be informed promptly, in a language that he understands, of the

reasons for his arrest or detention and of any charge against him; and

shall be permitted whenever practicable to communicate without delay

and in private with a member of his family or a personal friend, and

with a lawyer of his choice (including the Public Solicitor if he is

entitled to legal aid); and

shall be given adequate opportunity to give instructions to a lawyer

of his choice in the place in which he is detained, and shall be informed

immediately on his arrest or detention of his rights under this subsection.

You will appreciate

that there are also other constitutional questions to be addressed here

in Australia regarding ongoing detention of those who cannot be returned

home or to a third country and of those whose claims to refugee status

cannot be processed in a reasonable time. In view of the High Court's

stipulations in Chu Kheng Lim And Others v The Minister For Immigration,

Local Government And Ethnic Affairs And Another, could I also suggest

that formal legal advice be obtained on the following questions:

For what length of

time might government lawfully hold a person in migration detention without

judicial review or warrant once all appeals have been exhausted and when

it is not possible for government to deport the person or remove the person

to a third country?

For what length of

time might government lawfully hold a person in migration detention without

judicial review or warrant when there is no realistic prospect of processing

a claim for a visa because of the uncertainty and change in the situation

of the applicant's country of nationality?

The first question

is germane especially for the Iraqis and Palestinians still held in detention

despite the exhaustion of their appeals. You will appreciate that, especially

since September 11, it is not possible in their case to make the claim

as you did to the Australian Anglican Synod on 27 July 2001:

Detention is not

punitive nor meant as a deterrent. But it is essential that unauthorised

arrivals are not allowed to enter the community until we are able to

establish their identity and that they do not constitute a security

and health risk.

Detention ensures

that they are available for processing any claims to remain in Australia

and that importantly they are available for quick removal should they

have no right to remain.

The situation for

people who overstay their visa is fundamentally different. We know who

they are and have already assessed that they do not constitute a danger

to the Australian community.

..

Nobody is forced

to remain in detention. Detainees can choose to leave detention by leaving

Australia. They can go wherever they wish to any country where they

have, or can obtain, the right to enter, and we will do our best to

facilitate that.

The second question

is germane to the applicants from Afghanistan as well as some applicants

from Iraq. I appreciate there has been an increased output of determinations

since late January. As of 19 March 2002, I understand there are still

85 Afghans at Woomera who have been waiting more than six months for a

primary decision and 85 Iraqis awaiting a primary decision after seven

months. It is very troubling to learn that part the delay in the processing

of their claims has been caused by the introduction of "quality assurance"

checks in your department.

I will return to

Woomera next week and will write again at that time. I hope there will

be the opportunity for us to meet again in April. Meanwhile I am grateful

to your office for the assurance that the "many other inaccuracies in

(my) speech" will be dealt with "more formally in a letter in due course".

Today and tomorrow I will continue to express public dissatisfaction with

the government claim that asylum seekers subject to the Pacific solution

are not being detained.

Yours sincerely,

Frank Brennan SJ


3

April 2002

Mr Philip Ruddock

MP

Minister for Immigration and Multicultural and Indigenous Affairs

Parliament House

Canberra

ACT 2600

[Fax number removed]

Since I last wrote

on 21 March 2002, I have completed my national speaking tour and my third

visit to Woomera. I had the opportunity to spend over a week at Woomera

though access to the centre was denied on the Saturday, Sunday and Monday.

I was conducting a church service for Good Friday in the Oscar compound

when the "break-out, break-in" occurred. I then spent the next couple

of hours in company with Christians and Sabean Mendeans from other compounds

who were unable to return to their accommodations.

I had the opportunity

to speak with the three-member Opposition parliamentary delegation of

Ms Julia Gillard, Senator Rosemary Crowley and Mr Leo McLeay who visited

the Woomera IRPC last Thursday. Also I met with [a senior officer] from

your department and [a representative] of ACM. I have had ongoing discussions

with [name removed], your Woomera manager and [name removed], the Centre

Manager from ACM.

My protracted presence

in the centre last Friday night brought a number of issues into sharp

relief for me. No doubt, there will be many reviews and complaints about

the actions of all the various actors on either side of the fence that

night. I am prepared to assume and to state publicly that all authorities

including ACM, DIMIA, APS and the South Australian police were acting

as best they could and in good faith. Throughout the week I was impressed

by the professionalism and commitment of the senior ACM and DIMIA management.

No matter what the professionalism and commitment of senior management,

I think the regime at Woomera is fraught with ongoing problems which are

insuperable and which are wreaking havoc with the lives not only of detainees

but also of those charged with the supervision of their detention and

processing.

I spent two hours

with men, women and children who had come from church and who were unable

to return to their accommodation and unable to find sanctuary in an alternative

compound because they were threatened by another detainee disturbed by

their religious practices. That detainee was finally apprehended by half

a dozen ACM officers in full riot gear backed by a water cannon truck

which had been moved into position. Meanwhile two other detainees were

on the roof threatening self-harm exacerbating a situation of mass hysteria.

Children in my midst were highly traumatised. One child remonstrated with

his mother saying he should attack an ACM officer because that is the

only way that you get a visa! Yesterday I learnt that these church goers

had suffered the same fate as other detainees having their clothing and

property strewn about by ACM officers presumably searching for contraband,

while they were then held in the compound mess overnight with no possibility

of sleep. I understand one five-year-old child was abandoned in one compound

that night as the mother and other siblings had escaped. Yesterday, I

met a mother with her seven-year-old son. She was adamant that she would

not attempt escape on the Friday evening but she wanted to exercise her

rights and show the protesters and the media that there were women and

young children being held behind razor wire. The young boy carries bruises

on his left knee and right ankle from the baton blow he received last

Friday. Children whose parents had no interest in escaping were hit by

tear gas and witnessed scenes of extraordinary violence.

In such a situation,

ACM is expected to apply all force necessary to detain those intent on

escape while respecting the rights and dignity of those, including children,

who are patiently awaiting migration decisions from your officers in Canberra.

This is an impossible task. Let me highlight some of the structural problems

which are insuperable no matter what the training and cultural sensitivity

of ACM staff. These problems are further exacerbated by your remarks about

the South Australian police.

At times such as

last Friday night, the Woomera IRPC is like a Commonwealth privatised

prison. In the past the Commonwealth has not been in the business of running

prisons. The detainees, including the children, are entitled to a range

of services which in Australia are usually provided only by State governments

and not by the Commonwealth. You will recall the Commonwealth standoff

with Sir Joh Bjelke Petersen in 1978 over the management of the Aboriginal

reserves in Cape York. In the end, Prime Minister Fraser was stymied because

the Commonwealth was unable to deliver the basic community services such

as police, health, education, local government and child protection. An

institution such as the Woomera IRPC cannot be conducted with due regard

for the rights and dignity of detainees unless there is coordinated service

delivery by Commonwealth and State officials. Having imputed political

motivations to the South Australian police and their superiors when APS

was caught flatfooted, you have jeopardised the prospect of non-partisan

co-operation in the delivery of welfare and security services to detainees

in a remote part of South Australia.

The detention regime

at Woomera is no longer, if it ever was, designed primarily to facilitate

the processing of migration claims and the removal or deportation of persons

from Australia. Last Friday night, it had all the hallmarks of a prison.

The treatment of all detainees since then with the withdrawal of privileges

and the punitive and indiscriminate soiling of clothes and other possessions

highlight the problem. In an ordinary prison, you can institute a regime

of rewards and punishments. At Woomera, you cannot. People's eligibility

for a visa and the length of their detention is completely unrelated to

their good or bad behaviour in detention. The bad behaviour of a minority

of detainees is sure to test the patience and judgement of ACM officers

especially at times of great tension and sleep deprivation.

You are now running

a detention centre with a remnant caseload of detainees who understandably

are getting more restless. Last year, there were up to 1,500 detainees.

Now it is almost down to 300. As you have rightly pointed out, all but

one of those who escaped and who have not returned to detention were persons

who had already been rejected as refugees. Because of the post-September-11

situation, you have an increasing caseload of rejected applicants who

remain in indeterminate detention because you cannot move them to any

other country and you cannot send them home. Of course, these persons

will get restless and take any opportunity to escape. And of course they

will become more of a disciplinary problem in your detention centre. They

have nothing to lose and nothing to gain. And as I have written previously,

there are good grounds for thinking that their detention without judicial

warrant or supervision is unconstitutional. It is worth noting that the

unreturned escapees are in no way representative of the large remaining

Afghan and Iraqi caseload almost half of whom are yet to receive a primary

decision after more than seven months detention.

I had several meetings

this past week with the three Palestinians who have now written to you

again. In the last month, they have become more restless because each

of them has family, including children, in the Gaza Strip. Your officials

can offer them no advice or assistance except for the assurance that they

will be released from detention when they can be taken to another country.

Meanwhile, in detention in Woomera they are completely isolated and unable

to help their families. Over some days, I assisted them in the preparation

of their letter to you where they have written:

[A]re we to presume

(given the present situation in Palestine and the predicament of stateless

Palestinians elsewhere seeking a place to live) that we are to stay

in Australian detention without a court order or review for the term

of our natural lives? Can you give us any indication when we might be

allowed to go free? Even criminals have the right to know. Please help

us. We are desperate to leave Woomera. Each of us has family members

living in the Gaza Strip where the situation is presently very dangerous.

We want to be released quickly so we can help our families, especially

our children who are living in war conditions at this time. While your

government keeps us locked up and tells us there is no solution for

us, our children are at risk. Let us go free so we can perform our duties

as parents.

During this past

week, I have come to appreciate more the enormous strain under which ACM

staff and your own officers are working at Woomera. Your policy has now

resulted in tear gas and baton being applied, even if it be unwittingly,

to children as young as five years. The "state" being their protector

and their warder, this is now properly classified as institutional child

abuse. Your policy is also resulting in oppressive work conditions for

staff. The legal federal framework for maintaining law and order and for

delivering basic services in the centre is as flimsy as the security fences

that were breached on Friday. As the detention population at Woomera declines,

the mix of disaffected "rejectees" and patient applicants awaiting a decision

will get worse. Your recent comments regarding the South Australian police

will not improve federal-state relations with the delivery of services

especially when your policy is resulting in proven child abuse. The discrimination

suffered by the 50 or more Sabean Mendeans will increase unchecked. My

three hours in the detention centre on the evening of Good Friday convinced

me that it was time to put the message to you very plainly despite its

public unpopularity and despite your government's immunity to moral outrage:

"Minister, this is no place for kids." When children end up in the sterile

zone against the razor wire with tear gas and batons around them in Australia,

it is time for all parties including the Commonwealth government to stop

blaming others and to effect policy changes so that it can never happen

again.

With the post copy

of this letter, I will enclose a copy of the April issue of Eureka

Street which carries the published version of my speech from the national

speaking tour. I noted your remarks on ABC Radio on 22 March 2002 when

you dropped the March 20 defence that asylum seekers are not detained

on Manus Island or on Nauru and when you expressed reservations about

my giving gratuitous advice to Pacific countries about the interpretation

of their Constitutions. You will appreciate that I have no interest in

offering advice to other countries unless that advice be sought. As an

Australian citizen and lawyer, I am anxious that my government abide by

the constitutional provisions of other governments when a breach would

work an interference with the rights, liberties or dignity of persons

invoking the protection obligations of my government. Once again might

I express my gratitude to your office for the assurance that the "many

other inaccuracies in (my) speech" will be dealt with "more formally in

a letter in due course". I hope we will have the opportunity to meet again

during my forthcoming month in Canberra commencing on April 8.

Yours sincerely,

(Fr) Frank Brennan

SJ AO

cc. [President],

Australian Catholic Bishops Conference


April

29, 2002

Mr Philip Ruddock

MP

Minister for Immigration and Multicultural and Indigenous Affairs

Parliament House

Canberra

ACT 2600

[Fax number removed]

Thank you for your

letter of 11 April 2002 and for the assurance that "the Government has

been well advised in developing its policies" in relation to the Pacific

solution. Having viewed the ABC Foreign Correspondent program on

17 April 2002, I continue to express the view that the asylum seekers

on Manus Island are being deprived of their liberty contrary to the PNG

Constitution and without the provision of legal services or information

about same in accordance with the PNG Constitution.

I look forward to

our scheduled meeting on 5 June when we might have the opportunity to

canvass the many matters raised in my correspondence since we last met

on 13 February 2002. Meanwhile there may be a more urgent need to clarify

some misunderstandings which have occurred since Mr Stewart Foster, your

Director of Public Affairs has made public statements first on your department

web site (between April 18 and April 24) and then in the Canberra Times

on April 25. I had cause to respond publicly on the ABC Lateline

program on April 26 and in the Canberra Times today.

On 18 April 2002,

the Canberra Times carried a report of a presentation I had made

in Brisbane at Parliament House for the launch of the Uniting Church's

social justice centre. The paper accurately reported my observations from

my visit to Woomera over the Easter period: "I saw children who had been

hit by tear gas. I met a seven-year-old boy with bruises to the left knee

and right ankle from a baton blow." These remarks were consistent with

what I wrote to you on 3 April 2002. You will recall that I had also reported

to you: "I understand one five-year-old child was abandoned in one compound

that night as the mother and other siblings had escaped." I also gave

details of the trauma suffered by children unable to return to their accommodations

after the Good Friday church service.

As has been customary

since we met on 13 February 2002, I had emailed copies of my letter to

your Chief of Staff, [name removed], the Assistant Secretary for Unauthorised

Arrivals and Detention Services Branch, [name removed] and the Assistant

Secretary for Onshore Protection, [name removed], all of whom had attended

our meeting on 13 February. Also I had emailed a copy to [name removed],

your departmental manager at Woomera. Having heard nothing from you nor

from any of them, you can imagine my surprise when I discovered the following

letter from [the Department's Director of Public Affairs] on your government's

website on 22 April 2002:

Contrary to Father

Frank Brennan's claims in the media (PM just like Sir Joh, says advocate,

18 April, p2) this Department has no record of injuries to a 7-year-old

sustained during the disturbance at the Woomera detention facility on

Good Friday.

In fact, the only

reported injuries to detainees were to adults - all with minor injuries.

The most serious injuries were to 17 ACM officers who sustained injuries

ranging from bruising from thrown missiles to lacerations inflicted

from a detainee armed with a razor blade.

If Father Brennan

has information or evidence of mistreatment of detainees he should report

it to the appropriate authorities for investigation.

Detention is not

punitive. It is administrative in nature and is a result of arriving

in Australia without authorisation, that is, illegally. It has nothing

to do with subsequent claims for asylum.

Furthermore, contrary

to Father Brennan's assertion, primary decision-makers are extremely

well equipped to discharge their decision-making responsibilities. They

receive extensive and specifically targeted training on Iraq and Afghanistan.

This targeted

training, which has been ongoing since early 2000, includes intensive

workshops and seminars presented by leading international experts including

representatives from UNHCR.

This letter had been

posted on the same day that the Canberra Times carried a report

of what I had reported to you about injuries to children at Woomera two

weeks before. I spoke to [the Department's Director of Public Affairs]

by phone on 22 April 2002 and stated my presumption that he knew nothing

of my letter to you of 3 April 2002. I was gratified that was the case.

Afterall, how could anyone in good faith publish such a letter knowing

that I had written to you what I had seen and heard, having received no

feedback or query from any departmental officer or member of your staff?

But I was mystified that the Public Affairs Department would have promptly

published such a letter without having checked the matter with the Minister's

office, the Onshore Protection Branch, the Unauthorised Arrivals and Detention

Services Branch or the Woomera branch office. I then sent [the Department's

Director of Public Affairs] an email:

Further to our

conversation at 12.15pm today, I trust you will be able to correct your

letter of 18 April 2002 on your web site with the same speed that you

were able to publish your letter in the first place (2.41pm on the day

of publication of report about my remarks in the Canberra Times).

My letter of 3 April to Mr Ruddock is attached for ease of reference.

If there is no correction, the reader will be left to assume that a

letter to your minister immediately upon return from witnessing such

events does not constitute the provision of "information or evidence

of mistreatment" "to the appropriate authorities for investigation".

If the minister is not the appropriate authority, I would appreciate

notification from you as to who would be the appropriate authority for

the purposes of my avoiding further adverse comment on your government

web site.

I sent another email

on 23 April 2002:

Further to my email

yesterday, I note that your erroneous letter is still displayed on your

web page. Given that the letter is now unlikely to be published in the

Canberra Times, could I suggest that you simply remove the letter

from your web site. If that is not an attractive option for you, could

I suggest that you display my letter to the Minister of 3 April 2002

alongside your letter. If you do not pursue either option by 2.41pm

on Thursday 25 April, I would propose taking up the matter with your

minister unless you could advise some other appropriate authority with

whom I should pursue the matter.

I would have thought

a one week airing of erroneous remarks about a citizen without prompt

correction (especially when you have conceded that you had not read

my letter of 3 April 2002 when you had posted your own letter on the

web urging me first to provide information or evidence to the appropriate

authorities) would have been sufficient time and cost to the citizen

for you to achieve whatever political purpose you have sought by such

publication.

If your letter

remains published on the web without correction, I presume you are wantonly

publishing remarks adverse to my reputation when you know that I have

acted at the first opportunity to provide the appropriate authority

with information and evidence about the mistreatment of children in

your detention centre. And I will treat the matter as such when I communicate

with your minister. What saddens me about your behaviour is that you

will appreciate from my ministerial correspondence these last three

months that I have expressed ongoing appreciation of DIMIA officers

with whom I have been privileged to work very professionally. It would

be a pity if your "Public Affairs" department were to create static

in such a sensitive area.

Then I phoned [the

Department's Director of Public Affairs] again at 3.40pm on 23 April.

He was in a meeting and unavailable to come to the phone. I left a message

with another DIMIA officer that I had sent two emails and if there were

any difficulty in receipt of same, [the Department's Director of Public

Affairs] should contact me. The offending letter was then removed from

the website. On the afternoon of 24 April 2002, I sent this email:

I am gratified

to note that your website was updated at 1.34pm today and that you have

withdrawn from publication the letter which was erroneously critical

of me. You will appreciate that my concern has been not purely academic

nor self-interested. As I understand the situation, your minister is

the guardian of the children who were hit by tear gas and baton on Good

Friday. It would be very misleading for the public if any public servant

accountable to the minister were to state publicly and knowingly that

children were not injured on that occasion. Also it is essential that

all information and evidence of such child abuse be brought to the attention

of your minister and the relevant state authorities at the earliest

convenience. It would be very regrettable if the public were left with

the perception that citizens such as myself did not satisfy ourselves

that reports were made to the relevant government authorities at federal

and state levels. I am so satisfied.

In future, despite

the tight time constraint in which you may wish to respond in the media,

please do not hesitate to contact me if you think my remarks are erroneous

or my processes unbecoming, and be assured that I am not in the habit

of making such public statements without first bringing such concerns

to the attention of your minister. Given our different overseas commitments,

Mr Ruddock and I are not to meet again until June 5 but I will rehearse

the history of this matter in my next correspondence with him.

On 24 April 2002,

I received an email from [the Department's Director of Public Affairs]:

I will be out of

the office from 24/04/2002 until 29/04/2002. Please direct all messages

to [name removed] on 2184.

I replied by email

on 24 April:

Thank you [name

removed]. I trust I will not have any reason to trouble [name removed].

[The Department's

Director of Public Affairs] original letter was then published without

amendment in the Canberra Times on 25 April 2002. Today I published

this response:

[name removed],

Director, Public Affairs, Department of Immigration and Multicultural

and Indigenous Affairs, (Injuries minor, CT, April 25) says that

his "Department has no record of injuries to a 7-year-old sustained

during the disturbance at the Woomera detention facility on Good Friday."

He then claims there were no reported injuries to children at Woomera

on Good Friday. He advises that if I have "information or evidence of

mistreatment of detainees", I "should report it to the appropriate authorities

for investigation".

As [name removed]

well knows I was inside the Woomera detention centre on Good Friday.

I then returned and met several detainees, ACM staff and DIMIA staff

on the following Tuesday. Next day, April 3, as [name removed] well

knows, I then wrote a four page letter to his Minister Mr Ruddock reporting

what I had seen and heard. I wrote, "I met a mother with her seven-year-old

son. The young boy carries bruises on his left knee and right ankle

from the baton blow he received last Friday. Children whose parents

had no interest in escaping were hit by tear gas and witnessed scenes

of extraordinary violence."

And the department

says it has no record of injuries to children even though department

officials and ACM management at Woomera know what happened and so does

the Minister. Meanwhile the department in Canberra does have records

which it happily publishes of injuries to 17 ACM officers. Who should

I tell? To date there has been no point in telling Mr Ruddock or [name

removed].

Today I have received

the following email from your chief of staff:

[The Department's

Director of Public Affairs] is correct in asserting that there were

no reported injuries of detainee children at Woomera - you assert differently.

This does not necessarily mean that there weren't any, just that they

weren't reported. Nor were any detected during the usual post-incident

medical checks.

However without

details of the names of the people involved it is impossible for us

to check with them about the nature of their injuries. You may wish

to continue to assert that people have been injured, however unless

you are prepared to give names and dates and any other relevant details,

we are unable to verify your assertions, and will continue to assert

that none were reported.

We look forward

to your continued cooperation.

Given that the ACM

manager was one of the people who told me about children being hit by

tear gas "because the wind happened to be blowing the wrong way", and

given that at least two of those children were later pointed out to me,

and given that your departmental manager was one of the people who told

me about the five-year-old child being abandoned in the compound, and

given that I actually saw the bruises to the seven-year-old boy from the

baton blow and heard his mother's report of the incident, and given that

I was with the Sabean Mendean children unable to return to their accommodations

after the Good Friday service, my claims in the media including the report

in the Canberra Times of 18 April 2002 were not only accurate and

credible but irrefutable by your public affairs director in Canberra.

Given the political handling of these issues, please credit me with not

having the naivety to claim that your department had records of any injuries

or abuse to children. In so far as [the Department's Director of Public

Affairs] has said anything right about this issue, he has not said anything

"contrary to Father Frank Brennan's claims". As for formal reports of

these incidents, I have checked again with the lawyers who assure me that

a formal report of the tear gas and baton incidents was made to the South

Australian Child Protection Authority. I am assured that the injuries

to the seven-year-old boy were entered on his medical record on 3 April

2002. If I am provided with any further information which I am liberty

to disclose to you or the public, I will happily do so. Should you want

to record more formally in Canberra the injury and abuse to children,

I suggest you have some of your Canberra officers speak with the departmental

and ACM managers at Woomera who know about the tear gas and abandonment

incidents and who I have found to be credible, professional and concerned

for the well being of these children.

Though pleased that

[the Department's Director of Public Affairs] has withdrawn his very misleading

letter from the departmental website, I suggest that we all learn from

this experience and institute a protocol for dealings between me and your

public affairs department to avoid further misunderstandings. I too look

forward to continued co-operation. Given your absence overseas, I will

contact [your chief of staff] and seek a meeting with her, [the Department's

Director of Public Affairs] and other relevant Canberra departmental officers

in the near future.

Yours sincerely,

(Fr) Frank Brennan

SJ AO

cc. [President],

Australian Catholic Bishops Conference


May

6, 2002

Mr Philip Ruddock

MP

Minister for Immigration and Multicultural and Indigenous Affairs

Parliament House

Canberra

ACT 2600

[Fax number removed]

Your office has asked

that I set out the matters for discussion at our next meeting on 5 June

2002. Since we last met on 13 February 2002, I have sent you letters dated

22 February 2002, 21 March 2002, 3 April 2002, and 29 April 2002. I have

made two further visits to Woomera and I have completed a national lecture

tour. After we meet on 5 June, I will deliver a public lecture that evening

at the ANU. In July I will write a detailed assessment of comparative

immigration detention regimes.

1. The Pacific Solution

In your letter of

11 April 2002, you advised me that the facilities on Manus Island and

Nauru "are not detention centres". And yet the recently enacted Migration

Legislation Amendment (Transitional Movement) Act 2002 speaks of "the

detention of the person in a country in respect of which a declaration

is in force (s. 198D(3)(c)). And the bills digest for the Migration Legislation

Amendment (Transitional Movement) Bill 2002 speaks of the removal of persons

"to a place such as a 'Pacific Solution' detention facility on Nauru or

Papua New Guinea".

Even Senator George

Brandis and Mr John Hodges in the Senate Select Committee on a certain

Maritime Incident have referred to the "detention centres" in those places

and the "detainees" kept therein. In his evidence on 1 May 2002, Mr Hodges

said, "Nauru is by far the worst of the detention centres."

Given the grave constitutional

doubts about the legality of migration detention in those places, I would

appreciate further elucidation about the legal advice received which assures

you and the government of the legality of this aspect of the Pacific solution.

2. The Utility of the TPV

as a Deterrent

Many of those Iraqi

women and children found to be refugees in Nauru have husbands and fathers

who are already lawfully resident in Australia with a temporary protection

visa. Though the restrictions on the TPV might deter some people from

taking the perilous boat trip to Australia, others aware that family reunion

is not permitted and knowing that each onshore determination means one

less place in the offshore program will be attracted to coming illegally.

TPV holders who are refused the right to travel and return to Australia

have restricted work opportunities and less capacity to assess the security

situation elsewhere. These disincentives combined with the denial of the

fundamental right to be reunited with family have adverse effects disproportionate

to the desired deterrent effect. TPV holders should have the same capacity

and services available to them to allow them to be integrated into the

Australian community and to participate in Australian life while they

are here.

3. The Protection of Children

in Detention

Following up my extensive

correspondence relating to events at Woomera on Good Friday, I have been

concerned by:

  1. The incapacity

    of ACM to provide a suitable atmosphere for children in a detention

    situation where an increasing percentage of the detainees are in indeterminate

    post-rejection detention awaiting removal from Australia.

  2. The incapacity

    of ACM or any other contractor to run the prison-like aspects of a detention

    centre at crisis times when there is no system of rewards and punishments

    applicable as in a prison.

  3. The difficulty

    of effective federal-state co-operation providing for the best interests

    of children in detention when State governments understandably do not

    share the same ideological commitment to the long term detention of

    children.

  4. The incapacity

    of your department at one and the same time to espouse the government

    policy, defend ACM practices at times of crisis, and protect and adequately

    investigate complaints about the mistreatment of children.

4. The Legality of Detention

for those rejected

I am particularly

concerned about those Palestinians and Iraqis who have been rejected and

who have made written application to be removed from Australia, but who

must wait in indeterminate detention through no fault of their own. Their

indeterminate and unreviewable detention is not for a migration purpose.

Given the post- September-11 situation, there is a need for regular independent

review of the detention of these persons and for independent supervision

of the departmental efforts to remove such persons in security. You will

recall that in Lim's Case, the High Court upheld immigration detention

in part because the detainee could exercise the option at any time to

leave Australia. This fact has also been part of your rationale for unreviewable

detention. Post-September-11, this is no longer the case. Also at the

time of Lim, there was a strict time limit on detention. I would

like to discuss the prospect of periodic judicial review of post-rejection

detention, permitting the release of persons on bail provided they have

fulfilled health, security and identity checks and provided the court

is satisfied that any person bailed is likely to be available for a return

to detention immediately prior to removal from Australia.

5. The Legality of Detention

for those awaiting character checks

I have been disturbed

to learn that some persons found to be refugees are being held in detention

for an additional six months or more awaiting a character check. This

is the case even when the detainee has done all in his power to co-operate

with inquiries and after ASIO has made extensive inquiries. There should

be a time limit on such ongoing detention such that a person is deemed

to have passed the character check if authorities are unable to uncover

adverse information on a person by that time.

6. The unreliability of Primary

Decisions on Afghans and Iraqis

I have noted the

assurance of the Director of Public Affairs on 18 April 2002 that "primary

decision-makers are extremely well equipped to discharge their decision-making

responsibilities. They receive extensive and specifically targeted training

on Iraq and Afghanistan". I had expressed strong concern about the RRT

appeal rates in my address to the Uniting Church Social Justice Centre,

Brisbane the previous day. In my longer published paper I said:

Let me give a few

statistics which show just how shonky our determination process is for

those being held in detention, the overwhelming majority of whom are

proved to be refugees (even conceding that the Afghan approval rate

has gone down from 95% to 77% and the Iraqi rate from 90% to 79%). Since

1993 (to 30 June 2001), the RRT set aside 11.4% of all primary decisions

appealed. But it set aside 69% of all Afghan decisions appealed and

81.9% of all Iraqi decisions appealed. So far this financial year, the

RRT has set aside 87% of all Iraqi decisions appealed (109 of 126 cases)

and 69% of all Afghan cases appealed (176 of 257 cases). Meanwhile it

has set aside only 7% of decisions appealed by members of other ethnic

groups. If you were an Afghan or Iraqi fronting up for a primary decision,

how would you feel? During the last financial year, the RRT set aside

11% of all primary decisions which were appealed but in the same time

it set aside 37% of all primary decisions appealed by persons in detention

while they waited on average another two months in detention, following

the many months they spent awaiting a primary decision.

I have not heard

any credible explanation for the disparity in these results.

7. Alternatives to Universal

Detention and TPVs.

I hope we will have

time to discuss alternative arrangements to render the present detention

policy more humane and effective. I would commend the criteria for detention

set out in the recently released UK Home Office's White Paper Secure

Borders, Safe Haven (paras 4.76 and 4.77):

Although the main

focus of detention will be on removals, there will continue to be a

need to detain some people at other stages of the process. Our 1998

White Paper set out the criteria by which Immigration Act powers of

detention were exercised and confirmed that the starting point in all

cases was a presumption in favour of granting temporary admission or

release. The criteria were modified in March 2000 to include detention

at Oakington Reception Centre if it appeared that a claimant's asylum

application could be decided quickly. The modified criteria and the

general presumption remain in place. There has, however, been one change

in terms of the detention criteria as they relate to families.

Families can in

some instances give rise to the same problems of non-compliance and

thus the need to detain as can be encountered with single adults. Naturally

there are particular concerns about detaining families and it is not

a step to be taken lightly. Although true of all decisions to detain,

it is especially important in the case of families that detention should

be used only when necessary and should not be for an excessive period.

It was previously the case that families would, other than as part of

the fast-track process at Oakington Reception Centre, normally be detained

only in order to effect removal. Such detention would be planned to

take place as close to removal as possible so as to ensure that families

were not normally detained for more than a few days. Whilst this covered

most circumstances where detention of a family might be necessary, it

did not allow for those occasions when it is justifiable to detain families

at other times or for longer than just a few days. Accordingly, families

may, where necessary, now be detained at other times and for longer

periods than just immediately prior to removal. This could be whilst

their identities and basis of claim are established, or because there

is a reasonable belief that they would abscond. Where families are detained

they are held in dedicated family accommodation based on family rooms

in Removal Centres. No family is detained simply because suitable accommodation

is available.

8. Up to Date Statistics and

Correction of Previous Errors

Your office has previously

offered to correct the errors in my address published in the April issue

of Eureka Street. It is some time since your departmental fact

sheets on detention have been updated. I would appreciate receipt of corrections

and up to date figures of those in detention, those detainees awaiting

a primary decision, those detainees awaiting removal having exhausted

all appeals, the number of children in detention, the number of unaccompanied

minors in detention, the average and maximum times spent in detention

as at June 5, and the number of those awaiting visas having been found

to be bona fide refugees.

9. The Role of the Department

and your office

My dealings with

[name removed], Director of Public Affairs, DIMIA has highlighted the

problem for any citizen wanting to co-operate with your office in ensuring

greater transparency, greater efficiency and less capriciousness in the

operation of your detention centres. I have written to [name removed],

Secretary of DIMIA, asking that the "Public Affairs Department not publish

criticism of me without first checking with the Minister's office lest

(the) department once again engage in publication without knowledge of

the facts, including the facts of any communication between me and the

Minister when he is the appropriate authority to whom information should

be conveyed". I would appreciate a protocol for my access to your office

and to the Department.

I look forward to

our discussion and hope we can set up further co-operative arrangements

between me, your office and your department so that together we can render

the implementation of the immigration detention policy more reputable

and bearable for all who are affected by it.

Yours sincerely,

(Fr) Frank Brennan

SJ AO

cc. [President],

Australian Catholic Bishops Conference


June

9, 2002

Mr Philip Ruddock

MP

Minister for Immigration and Multicultural and Indigenous Affairs

Parliament House

Canberra

ACT 2600

Thank you for the

benefit of our wide-ranging discussion on 3 June 2002. I appreciate your

availability and willingness to receive full departmental briefings on

the matters of concern which I raise with you. Enclosed is a copy of the

address I gave to the public lecture series at ANU on 5 June 2002.

While mandatory,

open-ended and judicially unreviewable detention remains your law and

policy, there are still some significant issues which occasion me concern.

I noted your comments to the Parliament in Question Time on 3 June 2002

after our meeting when you said:

Up until now,

an important aspect of being able to maintain the integrity of our borders

has been to ensure that if people arrive in Australia without authority,

they are detained until such time as we are able to deal with a number

of matters, particularly their health, character and any potential security

risk that may be associated with their presence, to ensure that people

are available for processing and to ensure that, if they have no lawful

basis to remain in Australia, they are available for removal.

In the light of

the Lim decision, I am still worried that such detention is unlawful

in two situations: (a) when there is excessive delay in the issue of a

visa simply because the character check has failed to disclose adverse

information about a successful applicant; and (b) when an unsuccessful

applicant cannot be returned home or to any other country even if he or

she has requested removal from Australia. The High Court may rule such

detention constitutional, but then again in accordance with Lim,

the Court could take the view that detention without time limit, without

guaranteed release on request, and without release within a reasonable

time in light of September 11 developments would be punitive, a deterrent

or a purported exercise of the Commonwealth's judicial power thereby requiring

regular judicial supervision and review of such open ended detention.

I note your comments about the Palestinians in your letter of 3 June 2002.

But the Palestinians in Woomera have already received written notification

that they may not return to the Gaza Strip through Egypt. They have also

received oral advice from the department that no other route is open at

this time. Absent security concerns which I have not heard, it is high

time they were released from detention pending the real possibility of

their return home.

Once again, I recommend

the need for regular judicial supervision of ongoing detention for those

who have been rejected as refugees and who cannot be moved. Given the

small caseload, I cannot see why regular bail conditions would not mitigate

the risk of people's disappearance and absorption into the community.

With 60,000 overstayers in the community at large, this small caseload

with strict reporting requirements would cause little trouble. Why should

they remain in detention while others who have gained an entry visa under

false pretences are permitted to remain at large in the community with

no reporting conditions?

I continue to be

troubled by your rationale that detention is in part to "ensure that people

are available for processing". And yet your RRT rejection rate for primary

decision makers dealing with Afghans and Iraqis (the main groups in detention)

discloses that detention in remote locations does nothing to improve or

expedite the due processing of refugee claims. Between 1 July 2001 and

30 April 2002, the Refugee Review Tribunal (RRT) set aside 68% of all

Afghan decisions appealed and 87% of all Iraqi decisions appealed. So

far this financial year, the RRT has set aside 112 of the 129 Iraqi decisions

appealed and 182 of the 268 Afghan cases appealed. Meanwhile it has set

aside only 8% of decisions appealed by members of other ethnic groups

(332 of 3926 cases). Since our meeting last week, I have made further

inquiries which confirmed my suspicion that Afghans and Iraqis in detention

who have been rejected by the primary decision maker inevitably appeal.

So it is not an instance of a smaller sample of more appealable cases.

The only other explanation you have offered for these intolerable discrepancies

is that Afghan and Iraqi cases are more dependent on issues of credibility

and linguistic analysis which give rise to more room for legitimate differences

of opinion by decision makers. Detention in a more accessible venue or

release into the community would definitely assist primary decision makers

to perform their task more credibly.

I continue to argue

that Australia should be at least as decent as European countries in dealing

with asylum seekers who come without visas or documentation. I note your

comment to the Parliament on 3 June 2002:

I notice that there

are some who argue that we ought to adopt the failed policies that have

been used in Europe. The United Kingdom had 88,000 asylum seekers last

year-twice what they had five years ago. They have lost track of more

than 270,000 failed asylum seekers. France received 47,000 claims last

year-up from something of the order of 21,000 five years ago. More than

90 per cent of people who are rejected asylum seekers in France cannot

be located when people look for them to send them home. Mandatory detention

has been a very important part of the program that was introduced by

governments to deal with these issues.

The task in Australia

remains very manageable. I will continue to agitate publicly for a return

to decency on the basis that we have so few asylum seekers arriving by

boat compared with other countries and that we have such a small caseload

that we could readily track them in the community if they were detained

only for health, security and identity checks and then again only within

one month before their removal or deportation. Additional detention should

be permitted only by judicial order and with judicial review and supervision.

Despite your recent

adverse comments about the Australian judiciary, I note that you have

not refuted my concerns about the legality of the Pacific solution preferring

simply to observe that no court proceedings have been instituted in Nauru

and that the action in PNG was struck out for non-appearance by counsel

on 6 May 2002. I concede that the PNG government may well have issued

conditional visas to the detainees on Manus Island but any visa with a

condition amounting to detention would still be unconstitutional.

I continue to be

worried that your desire to avoid "Convention plus" outcomes for asylum

seekers applying for protection will result in breaches of the international

human rights of successful applicants. For example, how can it be argued

that the TPV holder in Australia is able to exercise the right to found

a family when he or she is denied the right to be reunited with family

while enjoying the benefit of justified protection? How can it be argued

that our law now protects the family of the TPV holder as "the natural

and fundamental group unit of society"? (Article 23, International Covenant

on Civil and Political Rights).

I appreciate your

personal apology for the behaviour of your departmental Director of Public

Affairs in twice publishing such a misleading letter about my activity

following the injury to the seven year old boy who was injured by baton

and tear gas during the Easter protest at Woomera. I look forward to a

satisfactory outcome of [the Secretary of DIMIA's] departmental inquiry

of this matter so that we may all identify more readily the structural

and personnel problems which result in such errors occurring. You will

appreciate that my prime concern is the well being of the children and

others who suffer abuse in detention without adequate investigation.

I will return to

Australia again on July 3 and expect to visit Woomera again during the

following week. I will arrange another appointment with you in August.

Yours sincerely,

(Fr) Frank Brennan

SJ AO

cc. [President],

Australian Catholic Bishops Conference

Last

Updated 23 June 2003.