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.
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.
The Nauruan government announced earlier this week that it will remove the remaining restrictions on the liberty of the asylum seekers detained there, and process all pending claims for asylum. It initially said it would process the claims in a week, but has since backtracked from that commitment.
Many have claimed that the announcement is a strategic move to undermine a constitutional challenge to Australia’s offshore detention regime, heard by the High Court this week – although the Australian government has denied this. So does the policy change spell the end of the challenge?
While that question can only be answered after the High Court’s decision, the hearings give a hint. The short answer is that the Nauruan government’s announcements have already had a much greater effect in the High Court than on Nauru itself.
The plaintiff in this case is a Bangladeshi woman who was detained on Nauru before being brought to Australia during her pregnancy. If the case fails, she, her ten-month-old baby and more than 200 people now in Australia will be sent back to Nauru or Manus Island.
The case, together with a similar one relating to Manus Island, began as a challenge to the Commonwealth’s power to spend money on offshore processing centres. This was on the basis of recent High Court cases that found that legislation was generally required to authorise the Commonwealth entering into contracts and spending money, subject to certain exceptions.
Not unusually, parliament intervened. In late June, the major parties combined to pass “emergency” authorising legislation, which applied retrospectively.
This meant the plaintiff was forced instead to argue that the emergency legislation was invalid because it did not fall within the Commonwealth’s powers to make laws set out under the Constitution. As the High Court’s questions made clear, this is a difficult argument to run. The authorising legislation appears clearly related to at least two of the broadest legislative powers of the Commonwealth – the power to regulate aliens and the power to engage in external affairs.
The plaintiff’s main argument now was that the Commonwealth, by in effect detaining asylum seekers on Nauru, went beyond its constitutional power to detain. The argument rested on two main steps.
First, previous cases had established certain constitutional limits on the executive’s power to detain asylum seekers in Australia. These limits included that such detention must be limited to permissible purposes and limited in time to what was reasonably practicable to effect that purpose, and that the courts must be capable of supervising the legality of that detention.
Second, these constitutional limits did not apply to detention on Nauru. The effect of this was that the offshore processing regime enabled Australia to do outside its borders what it could not do inside. This would in effect subvert the High Court’s role in supervising the constitutionality of executive power.
At the heart of this was an argument that the Commonwealth was to be treated as, in substance, detaining the asylum seekers. That argument rested on the evidence that the Commonwealth funded, authorised and controlled the offshore processing regime.
This is a difficult argument to run. Similar arguments failed last year before the High Court. As High Court justices pointed out this week, there is nothing in either the Migration Act or the Memorandum of Understanding that requires Nauru to detain asylum seekers.
Nauru’s announcements over the past week significantly undermined the plaintiff’s main argument. This argument rests on there being unconstitutional detention, and now there is no detention.
As a consequence, the Commonwealth argued that all of the questions (and associated remedies) in the case relating to the Commonwealth’s future conduct were no longer relevant.
The Commonwealth is also now arguing that it is not useful for the High Court to consider the legality of past detention. This is because deciding that question will not produce any real consequence for the plaintiff.
That might surprise lay observers, but Australian courts have long held that the courts should not decide cases where it can serve no useful result. While a claim for compensation could have been such a result, the case was never argued in this way – as the Commonwealth duly pointed out.
From this week’s hearings, it certainly seems that these sudden changes to policy in Nauru have dramatically weakened this constitutional challenge – if not yet the companion challenge to the constitutionality of offshore processing on Manus Island.
Yet again, it seems, the government may have successfully outmanoeuvred legal challenges by changing the law and the facts on the ground.
For the asylum seekers on Nauru, other facts on the ground remain much the same. They are still unsafe, separated from their families and unable to leave Nauru for a real life.
The link below is to an article reporting on the recent 4 Corners program and the Australian detention centres on Manus Island and Nauru. I have seen the program and it has confirmed my view that our asylum detention centres are a disgrace and should be shut down. We as a country need to reconnect with the principles of compassion and humanitarianism.
The link below is to an article reporting on the detention of a Christian woman in Sudan without charge.
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‘Religious police’ raid apartment; no official charges.
LOS ANGELES, March 28 (CDN) — Friends and family of two Indian Christians arrested after a prayer meeting in Saudi Arabia in January have tried in vain to secure their release.
The two Christians were incarcerated for attending the prayer meeting with other Indian nationals and accused of converting Muslims to Christianity, though the government has not produced formal charges, sources said.
Yohan Nese, 31 and Vasantha Sekhar Vara, 28, were arrested on Jan. 21 when mutaween (religious police) raided an apartment where the two had lingered after attending the prayer meeting. Religious police interrogated and beat them to the point that they suffered injuries, according to sources. During this time, religious police who were cursing at them allegedly tore up and trampled on Bibles and Christian material they had confiscated, said a source who spoke to the men.
Authorities asked them how many Christian groups and pastors there are in Saudi Arabia and Riyadh and asked their nationalities. The religious police also put pressure on the two to convert to Islam, according to sources.
The next morning, Jan. 22, authorities took the two Christians to the Religious Court in Riyadh. The court sentenced them to 45 days in prison. At 2 p.m., police filed a case at the local civil police station, according to a source who requested anonymity.
To date the Christian Indians have been in prison for 67 days. Their family and friends say they still have not been able to obtain a document with official charges but know from the prisoners that the charges are religious in nature, according to the source. At the time of their detention, the Christians were not engaging in religious activities.
On Jan. 22, 15 mutaween in civilian clothes came back to the apartment they had raided the previous day, destroyed valuable items and wrote Islamic slogans on the walls with spray paint, the source said.
Nese and Vara’s situation in prison is “horrible,” said the source. The two men are cramped in a prison cell with only enough room to stand.
“There is no place to even sit,” said the source. “Only two hours a day they are sleeping in shifts. When brother Yohan is sleeping, brother Sekhar needs to stand, and when brother Sekhar wants to sleep, brother Yohan needs to stand. They have been doing this for more than a month. I don’t know how many more days they have to continue this.”
Since the arrest, other Christians have been too frightened to meet for prayer.
One week after his arrest, Vara was able to use a phone to call his family and pastor in India. His wife, Sandhya Vara, who is expecting their first child in three months, said she has not heard from him since.
“There were no Muslims in their prayer meeting, but they are accusing them of converting Muslims into Christians,” she told Compass by phone. “We got married eight months ago, but he’s very far from me now and he’s in very much trouble, and I’m six months pregnant.”
She and his pastor in India have communicated numerous times with the Indian embassy but have received no response.
“I have been complaining to the Indian embassy,” she said. “They cannot call me or give me any information. There is no help. So many times I informed them and they cannot give any reply and cannot take any action.”
Vara had worked in Saudi Arabia for more than seven years. Last summer he came to India and got married, returning on Jan. 9 to his post in Riyadh, where he worked as a supervisor for a catering company.
“Vasantha is from my church,” said his pastor in India, Ajay Kumar Jeldi. “He is very God-fearing, good, prayerful, supporting the pastor and working for the youth.”
The morning of his arrest, Vara called Pastor Jeldi and told him he planned to go to the evening prayer meeting in Riyadh. After the meeting, Vara, Nese and four other unidentified Christians lingered at the flat where the gathering had taken place. At around 7:30 p.m. two mutaween in plainclothes and one policeman in uniform raided the apartment.
On the phone with his pastor back in India, Vara said he was in prison for religious reasons and that he had been pressured to convert to Islam, but that he had refused.
“If I have to die for my God, I will die for him here,” he told Pastor Jeldi. “God will help me.”
The pastor said that in his sole conversation with him a week after his detention, Vara requested prayers for his release.
Typically in Saudi Arabia, a foreign worker’s documents remain with the employers who sponsor them in order for them to work in the country. Saudi employers are typically the only ones who can secure their employees’ release on bail.
“Only their sponsors can bring them out,” Pastor Jeldi said. “He has the right to bring him out, and no one else has the right to go and pay the bail or anything. Only the sponsor can have that responsibility.”
Since his arrest, Vara’s employer has handed his passport to local authorities and told them he is no longer responsible for him, according to the anonymous source.
“He doesn’t want him to work in his company anymore,” said the source.
The Saudi “religious police” or Commission to Promote Virtue and Prevent Vice (CPVPV) is a government entity that includes 5,000 field officers and 10,000 employees, along with hundreds of “unofficial” volunteers who take it upon themselves to carry out the CPVPV’s mandate, according to the U.S. Commission on International Religious Freedom.
“Despite the fact that the CPVPV is not allowed to engage in surveillance, detain individuals for more than 24 hours, arrest individuals without police accompaniment, or carry out any kind of punishment, its members have been accused in recent years of killing, beating, whipping, detaining, and otherwise harassing individuals,” the commission stated.
In the raid, authorities confiscated anything of value in the apartment, including two musical keyboards, a guitar, two sound boxes, a sound mixer, four microphones, music stands, power extension boxes, a laptop, mobile phone chargers and a whiteboard. They also confiscated 25 Bibles and other Christian materials, the source said.
The other Indian Christians at the apartment escaped.
The anonymous source said he has informed the Embassy of India in Riyadh of their arrest numerous times.
“I have lost hope in them,” he said, “because the only thing they are always saying is that this is a religious case, so we can’t do anything.”
Pastor Jeldi said he thought someone must have complained about the group of Christian Indians who were meeting regularly, causing authorities to act.
Nearly 7 million foreigners live and work in Saudi Arabia, of which an estimated 1.5 million are Indian nationals.
Human Rights Watch has reported that Saudi Arabia systematically discriminates against migrant workers and has called for the government to “abolish the sponsorship system for migrant workers, in particular the requirement for employer consent to transfer employment and to obtain an exit visa.”
According to the U.S. Department of State’s 2010 Report on International Religious Freedom, with rare exception, expatriate workers fear government interference with their private worship. The reasons for this interference can range from the worship service being too loud, having too many people in attendance or that it occurs too often in the same place, according to the report.
Riyadh was the stage for another raid and mass arrest of Christians in early October 2010. Arab News and other press reported the arrest of 12 Filipino Christians and a French Catholic priest celebrating mass in a private apartment. There were 150 Filipinos in attendance. The employers of the 12 Christian foreign workers secured their release, and the Philippine embassy negotiated their repatriation. The Catholic priest was also released within days.
“Saudi officials do not accept that for members of some religious groups, the practice of religion requires more than an individual or a small group worshipping in private, but includes the need for religious leaders to conduct services in community with others,” stated the State Department’s religious freedom report. “Foreign religious leaders continue to be prohibited from seeking and obtaining visas to enter Saudi Arabia and minister to local religious communities.”
Report from Compass Direct News
After stopping 5,100 Bibles in 2009, authorities withhold 30,000 Malay-language copies.
KUALA LUMPUR, Malaysia, March 14 (CDN) — The detaining of 30,000 copies of the New Testament, Psalms and Proverbs in the Malay language at Malaysia’s Kuching Port has “greatly disillusioned” the nation’s Christian community.
The books, imported from Indonesia by the local branch of Gideons International for distribution in schools, churches and longhouses in Betong, Saratok and other Christian areas in Sarawak state, have been detained at the Kuching Port since January.
Authorities told an unnamed officer of the importer on Jan. 12 that he could not distribute the books in Sarawak state, on the island of Borneo, since they “contained words which are also found in the Quran,” according to online news agency Malaysiakini. The officer was ordered to transport the books to the Home Ministry’s office for storage.
Last week, when the same officer enquired of the Home Ministry officials on the status of the Malay Bibles, authorities said they had yet to receive instructions on the matter.
This is not the first time government authorities have detained Malay-language Bibles, and Bishop Ng Moon Hing, chairman of Christian Federation of Malaysia, decried the action.
“The CFM is greatly disillusioned, fed-up and angered by the repeated detention of Bibles written in our national language,” Ng said. “It would appear as if the authorities are waging a continuous, surreptitious and systematic program against Christians in Malaysia to deny them access to the Bible in [Malay].”
An earlier consignment of 5,100 copies of the Good News Bible in Malay, imported by the Bible Society of Malaysia, was detained in Port Klang in March 2009. Together with this latest seizure, the total number of Bibles seized and remaining in possession of the Home Ministry amounts to 35,100 copies.
The CFM, representing a majority of Christians in Malaysia, released a statement on March 10 asserting, “All attempts to import the Bible in Bahasa Malaysia [Malay], i.e. the Alkitab, whether through Port Klang or the Port of Kuching, have been thwarted” since March 2009.
Prior to March 2009, there had been several such incidents, and “each time, tedious steps had to be taken to secure their release,” according to the CFM.
A significant 64 percent of Malaysian Christians are indigenous people from Sabah and Sarawak states who use the Malay language in their daily life. Christian leaders say having Bibles in the Malay language is crucial to the practice of their Christian faith.
Christians make up more than 9 percent of Malaysia’s nearly 28 million people, according to Operation World.
This latest Bible book seizure has irked Christians and drawn criticisms from politicians spanning both sides of the political divide.
The Sarawak Ministers Fellowship issued a statement registering its “strong protest,” describing the detention of the books as “unconstitutional” and in violation of the 18-point agreement for Sarawak in the formation of Malaysia.
Representing the opposition political party, People’s Justice Party (Sarawak Parti Keadilan Rakyat) Chief Baru Bian described the withholding as “religious harassment” and “a blatant disregard of our constitutional right as Christians in Malaysia.”
Chua Soi Lek, president of the Malaysian Chinese Association, a political party within the ruling coalition National Front, proposed that Malay Bibles be allowed to be printed locally. The deputy chief minister of Sarawak, Dr. George Chan, expressed the state government’s willingness to publish the Malay Bible locally.
Home Minister Hishammuddin Hussein was quoted in The Star newspaper today as saying, “The issue … is being resolved amicably with the parties concerned,” though how this was taking place was not apparent. The home minister has reportedly said the books had been withheld pending an appeal over the use of the word “Allah” in The Herald catholic newspaper.
Secretary-General of Malaysian Muslim Youth Movement Mohamad Raimi Abdul Rahim has called for the government to enforce the ban on use of the word “Allah” by non-Muslims nationwide, including in Sabah and Sarawak.
In a controversial court ruling on Dec. 31, 2009, Judge Lau Bee Lan had allowed The Herald to use the word “Allah” for God in the Malay section of its multilingual newspaper. The Home Ministry filed an appeal against the decision on Jan. 4, 2010, but to date there is no indication as to when the case will be heard.
Report from Compass Direct News