How did one of the world’s most-successful multicultural countries made up of refugees and immigrants end up harming children who came to us seeking protection and help? One of the answers to this question is secrecy.
Successive Australian governments, both Labor and Coalition, have dehumanised refugees and kept Australians in the dark about what really goes on in the offshore detention centres on Nauru and Manus Island.
The cornerstone of the strategy is to limit public access to information. The policy started by the Rudd Labor government in 2013 has been put into overdrive by the Abbott and Turnbull Coalition governments.
There are three pillars to the secrecy strategy:
outsourcing the centres to other sovereign nations;
outsourcing the centres’ operations to private contractors; and
imposing a gag on current and former detention staff through the Border Force Act.
Australian journalists have found it very difficult, bordering on practically impossible, to obtain visas to visit Nauru. Applying for a media visa for Nauru comes with an A$8,000 fee – which is non-refundable even if the application is rejected.
The only journalists to be granted visas in the last two years filed stories that did not properly investigate or challenge the Nauruan and Australian governments’ versions of the situation for refugees.
This means the two governments directly and indirectly control who is allowed onto the island to tell the refugees’ stories of how they are treated. This leads to speculation that serves no-one – not the refugees nor the Australian government nor the public.
The second issue with outsourcing refugee processing to another country is that neither Nauru nor Papua New Guinea has Freedom of Information (FOI) laws. This means an important journalistic tool is missing when it comes to seeking information.
This, combined with the poor FOI history of Australia’s Department of Immigration and Border Protection (and its predecessor), which have repeatedly blocked and delayed requests, makes obtaining raw and unspun information about offshore refugee processing a time-consuming and frustrating task.
Wilson Security is contracted to provide security in the offshore centres.
The 2010 amendments to the federal FOI Act significantly strengthened the requirement on government agencies to obtain information from a private contractor when asked to do so.
However, contracting out adds another layer of complexity to using FOI effectively. The practical consequences are longer processing times, delays and the increased possibility of the contractor claiming the information can’t be released due to commercial-in-confidence issues.
In July 2015, the Australian Border Force Act came into force. Its controversial disclosure offence section extended the questionable Australian tradition of limiting public servants’ right to public speech and participation in public debate.
The section effectively stops current and former staff, including those from volunteer organisations such as Save the Children, speaking out about conditions in refugee detention centres.
It is nigh-on impossible to see how this gag section can be in the public interest. But it is easy to see how it is in the government’s political interest.
The consequence of the fortress of secrecy built on these three pillars is that Australians don’t know what is being done in their name on Nauru and Manus Island.
It also means the refugees are dehumanised. Suffering children and families become numbers instead of human beings.
Every one of the nearly 1,300 refugees currently on Nauru and Manus has heartbreaking and crucial stories to tell. If Australians were allowed to hear and see those stories, the centres would have been closed a long time ago.
If offshore detention is to continue, the Australian government should:
stop outsourcing to private contractors. The Department of Immigration and Border Protection should run the centres to allow for proper accountability;
be completely transparent about the centres’ operations. Redact personal information, but publish as much as possible, including incident reports;
facilitate access to the centres for journalists and members of the public; and
scrap the gag section on detention centre staff, current and former, in the Border Force Act.
We don’t need a Senate inquiry or royal commission to figure out what needs to be done. More than enough evidence is available thanks to the Nauru files, former detention centre staff sharing their experiences, and the Australian Human Rights Commission’s report on children in immigration detention. The government must do the decent and right thing by the refugees and the Australian public.
In normal circumstances, deaths of asylum seekers, sexual assaults on adults and children, and widespread severe mental illness – including self-harm – attributable to the length and conditions of offshore detention would demand a reconsideration of the policies that allowed these events to occur.
And yet, the Australian government and the Labor opposition maintain an unwavering, untested, bipartisan assertion: no-one will be resettled in Australia, as that will encourage people smugglers.
By extension, Australia will not accept New Zealand’s offer to resettle 150 refugees, as that will provide an equivalent incentive to the people-smuggling trade.
The historical evidence suggests the government’s fears are unfounded. People smuggling will not revive simply because refugees are resettled in Australia. There are good reasons to believe refugees currently stuck in offshore detention on Nauru and Manus Island can be relocated to Australia and New Zealand without this leading to a revival of boat traffic.
Offshore processing and turning back boats on the high seas were introduced in 2001 and again in 2013 in response to a growing number of boat arrivals.
Between 1999 and October 2001, more than 10,000 asylum seekers arrived on Christmas Island by boat. Between June 2011 and September 2013, 40,000 people arrived. But when offshore processing and turnback policies were introduced, the boats stopped arriving in both periods within months.
But what happened to the asylum seekers detained offshore during the Howard government years?
From 2001 to 2008, of the 1,153 refugees and asylum seekers resettled from Nauru and Manus Island, 705 went to Australia, 401 to New Zealand and 47 to other Western countries. Resettlement of all but 82 occurred under the Howard government, with most occurring from 2002 to 2004. A further 483 people were found not to be refugees and returned to their countries of origin.
The resettlements occurred without fanfare, while maintaining the official policy of offshore detention and processing, and boat turnbacks. From 2002 to 2007, 18 boats arrived with 288 asylum seekers. In addition, one boat was turned back with 14 passengers.
This analysis suggests the threat of offshore detention and processing and boat turnbacks is a clear deterrent to prevent people coming to Australia by boat. Importantly, the deterrent effect does not rely on a blanket ban on resettlement of refugees from Nauru and Manus Island to Australia and New Zealand.
Accept for the moment that offshore processing and boat turnbacks are necessary to deter asylum seekers from travelling by boat to Australia.
Accept that these policies stem an uncontrollable flow of humanitarian migration through Indonesia to Australia, prevent people drowning at sea and enable Australia to resettle more refugees through the UN High Commissioner for Refugees’ resettlement program.
The policy issue in 2001 and 2013 was the uncontrollable arrival of boats. But the issue now is where and when to resettle refugees and asylum seekers who have been sent to Manus Island and Nauru since the reintroduction of offshore processing. On this issue, there is no plan.
The government has made some meagre efforts to organise resettlement in Cambodia. It claims refugees are also free to resettle in Papua New Guinea. But nobody believes these are viable long-term solutions.
If this analysis of the incentives proves to be wrong, and it turns out that resettling refugees from Nauru and Manus Island in Australia and New Zealand does increase the number of asylum-seeker boats attempting to reach Australia, we know from the experiences of 2001 and 2013 that the combination of offshore detention and boat turnbacks is an extremely effective deterrent – one that can swiftly be reinstated.
In July 2013, the month Kevin Rudd announced no asylum seeker arriving by boat would ever be resettled in Australia, 4,338 people arrived by boat in Australia. After Rudd announced the new policy, the number dropped to 1,650 in August and 861 in September. None of these asylum seekers ended up in Australia, instead being transferred to Nauru or Manus Island.
In October 2013, when the new Coalition government added a turnback policy to offshore processing and resettlement, 346 people were intercepted and transferred to Nauru or Manus Island. This dropped to 222 in November, then rose to 369 in December. And then, in the 31 months from January 2014 to the present, there has been just one boat with 158 passengers transferred to Nauru.
In addition, from January 2014 to July 2015, 20 boats were intercepted and turned back to Indonesia or other countries in the region, carrying a total of 633 passengers.
At any time offshore detention and processing have been in place, the number of boat arrivals has been very small. We can be confident that, if necessary, a vigorous reinstatement of regional processing and the turnback policy would once again “stop the boats”.
But at this time, in light of the ongoing and intensifying humanitarian crisis on Nauru and Manus Island, there is no case for maintaining the inflexible bipartisan line on resettlement.
Alex Reilly, Deputy Dean and Director of the Public Law and Policy Research Unit, Adelaide Law School
The links below are to articles reporting on persecution news from Germany.
A writ of summons was registered in Australia’s High Court on Wednesday on behalf of 859 detainees at the Manus Island detention centre. This is a class action initiated against Australia, Papua New Guinea, the two countries’ immigration ministers, PNG’s attorney-general and the companies that administer the centre.
The detainees want the High Court to use its original jurisdiction in judicial review of their transfer to and detention on Manus Island. They seek an injunction to prevent their removal to Nauru or elsewhere until the court hears the matter.
This action follows the PNG Supreme Court finding that the detention on Manus Island is unconstitutional. The PNG Constitution contains a Charter of Rights that strictly limits the circumstances under which people may be deprived of liberty.
As Australia forcibly transferred the detainees, they were not responsible for their own unlawful entry to PNG. Therefore, no constitutional exception could permit their legal detention.
Following the Supreme Court decision, PNG Prime Minister Peter O’Neill announced the Manus Island centre would close. He asked Australia to “make alternative arrangements for the asylum seekers”.
O’Neill’s Australian counterpart, Malcolm Turnbull, said Australia would not accept the detainees. Australia’s immigration minister, Peter Dutton, described them as PNG’s responsibility.
The detainees argue their detention is illegal on international, constitutional, administrative and civil law grounds. They are asking the High Court to declare that their detention constitutes:
forcible deportation, due to their expulsion from Australia and transfer to Manus Island, contrary to international law;
torture (an international crime that can never be excused), inhumane and degrading treatment;
rape and other crimes of sexual violence;
denial of fundamental human rights, particularly a fair hearing and legal representation;
murder (notably the violent killing of Reza Barati in February 2014), grievous bodily harm, assault and robbery; and
unlawful death, false imprisonment, trespass and negligence.
The detainees request relief via the ancient writ of habeas corpus. They want to be brought before the High Court so its judges can determine whether their detention is legal.
The detainees hope the court will then issue a writ of mandamus. This would order the government to bring them to Australia to process their refugee claims.
Finally, the detainees seek a writ of prohibition, to prevent their transfer to any other place until the case has been decided and their claims assessed.
The detainees are seeking damages and costs. They may also take action in PNG for compensation. A PNG legal representative of many detainees estimates that up to A$1 billion could be owed.
This action echoes earlier high-profile claims, like the Tampa case. In such cases, human rights lawyers seek to vindicate the rights of asylum seekers who lack access to Australian courts due to their forcible offshore detention.
The High Court will hear the application on May 23.
The refugees would not face the same level of risk were they to be resettled in Australia. Yet PNG law has offered more substantial rights protection to them than Australian law.
The stark contrast between Australian and PNG law is in the relative degree of formal protection for human rights. Whereas PNG has a Charter of Rights enshrined in its Constitution, Australia lacks constitutional protection. Its government has rejected legislative protection for human rights.
Though Australia professes deep commitment to human rights standards in its foreign relations, it refrains from entrenching these international norms domestically. This position reflects a cultural attitude that the Australian “fair go” is sufficient protection against the excessive use of government power.
The experiences of Indigenous peoples in Australia before the law put the lie to this belief. And if adequate human rights protections are not the universal experience of people in Australia, what hope for asylum seekers who lack access to Australian courts and are demonised in public discourse?
The most recent High Court action challenging Australia’s offshore detention arrangements in Nauru failed. The court found the government was acting in accordance with its constitutional and legislative powers.
However, the majority of judges did regard Australia as bearing at least some responsibility for the detention of asylum seekers in Nauru. This may undermine the government’s argument that detainees on Manus Island are PNG’s sole responsibility.
This new action’s distinguishing feature is a request that the High Court use its universal jurisdiction for the first time. The detainees argue that Australia has no legal power to forcibly deport and arbitrarily and indefinitely detain asylum seekers in torturous, inhuman or degrading conditions without legal rights.
If the claim succeeds, it will entirely undermine Australia’s inhumane practices in relation to “those who come across the seas”.
Amy Maguire thanks Jay Williams, barrister-at-law of Frederick Jordan Chambers, for providing the original writ of summons used to initiate this action in the High Court.
It is hard to credit that two asylum seekers in Nauru could set themselves alight on Australia’s watch and the stories receive, compared to much else, so little attention in our hyper media cycle.
One would think the death of an Iranian man last week and the self-immolation of a Somali woman would be huge news, putting a great deal of pressure on the government as we move towards the election to outline an exit plan for Nauru.
But in the campaign the future of those on Nauru will be something neither side will be anxious to talk about.
Manus Island hit the headlines recently when the Papua New Guinea government announced, following a judgment of its Supreme Court, that the centre there will close.
Australian and PNG officials are now in negotiations that Australia hopes will find a way to keep the centre going. In a Tuesday statement the two governments said they’d continue “to work together on a road map”, meeting “regularly in the coming weeks”, which suggests the matter is being pushed safely beyond the election.
The government and the opposition are bipartisan on offshore processing. When it arises, the issue plays in favour of the Coalition, but it is not one Malcolm Turnbull seems naturally comfortably with. For political reasons Labor obviously tries to avoid it. That means the government isn’t being held to serious account – despite efforts by the Greens – in the way it is on much more minor matters.
In her valedictory speech on Wednesday, Labor MP Melissa Parke described the present system as “a festering wound that is killing off people and eroding our national character and respect”. Some in Labor are deeply unhappy and a few have been recently vocal about the ALP’s approach, but most don’t want the boat rocked.
As for the Liberals, those who used to speak up for asylum seekers have either left the parliament or gone quiet.
Amid his Wednesday media round of budget questions Turnbull was asked whether he ever thought he’d be defending keeping people in a position where they were so desperate they were killing themselves.
Turnbull sympathised with “the mental anguish that many of them are in … we grieve for them”, before swinging into the mantra that to keep our borders secure, people who sought to come to Australia by boat couldn’t be allowed to settle here.
Pressed on their future, Turnbull said the people on Nauru could move around there (it is an open centre); those on Manus judged to be refugees could settle there. There were also third-country options, while non-refugees were being encouraged to go home.
There was a hint of blame, when he suggested many had been led to believe they could end up being admitted to Australia.
Immigration Minister Peter Dutton has taken up a shovel to lay blame, bluntly heaping it on the activity of advocates. In a Tuesday statement on the Somali woman, Dutton said it was “of grave concern” she would “resort to such an extreme act of self-harm”.
“I have previously expressed my frustration and anger at advocates and others who are in contact with those in regional processing centres and who are encouraging them to engage in behaviours they believe will pressure the government to bring them to Australia. These behaviours have intensified in recent times, and as we see, have now turned to extreme acts with terrible consequences.
“Advocates and others who proclaim to represent and support the interests of refugees and asylum seekers must hear a clear message that their activities and these behaviours must end.”
In parliament on Wednesday, the Greens’ Adam Bandt challenged Dutton with a highly provocative question. “Aren’t you just showing pure cowardice by blaming the advocates helping the vulnerable, instead of accepting responsibility for your actions?” Bandt asked, then added: “Can’t we do better than this Labor-Liberal policy of not drowning, but burning?”
It was Manager of Opposition Business Tony Burke who jumped up to declare this was deeply offensive to all MPs. Bandt had to withdraw his “burning” line.
Dutton’s allegation must be deeply offensive to many advocates. More to the point, it is a cop-out – responsibility for what has become, in academic jargon, one of those “wicked problems” has to lie with the government.
Desperation and apparently extensive mental health problems mean the situation on Nauru is only likely to get worse. Having people there indefinitely is not a viable proposition. A workable strategy is needed, which also keeps the Australian border secure.
One of the debates of the coming campaign should be the search for practical answers. But it is a debate the government and opposition are not prepared to have, and nor are the media willing or able to give them a hard enough time to force them into it.
It’s a case study in how interests and circumstances conspire to push some issues off-stage in an election.
A “draft” cabinet document recently leaked to the media suggests the idea that refugees are a potential source of terrorism and radicalisation will soon shape Australia’s humanitarian resettlement policy.
If implemented, refugees – not just boat arrivals – would be seen as a security issue. By offering only temporary residence and making Australia a less attractive destination, it makes deterrence the aim of the entire refugee program.
Viewing all refugees through the security prism, and further restricting their rights, is a tactic to try to manage the much larger global refugee crisis. The number of refugees and internally displaced people exceeds 60 million. This is the highest since the end of the second world war.
Since the 1990s, various deterrence strategies have eroded the rights of those seeking protection onshore in Australia after having arrived by boat. These have included temporary protection visas, mandatory detention, the excision of the migration zone, the Pacific Solution and regional processing and resettlement.
If the leaked policy document is accurate, now all refugees are to be put into the category of – at best – temporary residents.
The justification for this punitive policy is the perceived connection between refugees and terrorism. The document links the outcome of earlier humanitarian policies and asylum decisions to terrorism and extremism. It points out that individuals who arrived on humanitarian-linked or refugee visas – Man Haron Monis, Farhad Jabar and Abdul Haider – have committed recent terrorist acts.
The document also identifies previous humanitarian programs as having contributed to radicalisation and the increased risk of terrorism. It says the special humanitarian program for Lebanese refugees during the civil war in the late 1970s is evidence refugees can import “extremism”, and “unsuccessful integration” can make young Muslims more receptive to extremist beliefs.
It puts forward the Lebanese Sunni Muslim experience as a warning. It argues they are today the:
… most prominent ethnic group amongst Australian Sunni extremists.
But the ethnic stigmatisation of Lebanese Sunni Muslims highlights shortcomings with the contemporary understanding of radicalisation and terrorism. It equates ethnicity with “extremism” and the potential for radicalisation with social environment.
The equation of Lebanese Sunni migrants with extremism is historically and politically inaccurate. The Lebanese civil war was primarily a sectarian struggle over power-sharing.
Seeing Muslims in Australia through the security lens has led to the intensification of surveillance to intercept and prevent terrorist plots. Since September 11, seeing Muslim diasporas in the West this way has only reinforced the formation of transnational Muslim identities.
In other words, “Muslim” is now a transnational category targeted to manage transnational risk, not only in Australia but also Europe and North America. Muslim culture and practices are no longer merely about difference because difference has become a political marker to question national loyalty.
New laws stripping dual citizens involved in terrorism of their Australian citizenship are an expression of the ultimate sanction against disloyalty. But this might play right into the hands of Islamic State recruiters, who point to the West’s targeting of Muslims as a threat as evidence of the historical victimisation of Muslims.
The further restrictions on rights to asylum set out in this document are not primarily about terrorism or Muslims, but about the global refugee crisis. The reality of globalisation is we are deeply connected with different parts of the world. What happens there reverberates here. Terrorism is one dimension of that interconnection and appears to be here to stay.
We are facing this global refugee crisis because of our profound failure of political vision in the Middle East. The present wave of international terrorism is a symptom of the impact of a regional political conflict played out in Syria and Iraq. Australia cannot solve the global refugee crisis by deeming refugees as part of the overall terror threat to deter them from coming.
Refugee policy and counter-terrorism strategy should not be collapsed into the same space.