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Submission to the National
Inquiry into Children in Immigration Detention from
(Fr) Frank Brennan SJ AO
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
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]
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
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
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
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
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:
- 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.
- 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.
- 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.
- 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
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.