HYPOCRISY AND HUMAN RIGHTS
Julian Burnside
It is not difficult to articulate the core elements of any human rights framework: we should acknowledge as inalienable rights those conditions which are generally regarded as indispensable for a decent human existence. Human rights do not depend on, or arise from, membership of a particular society. They arise from the fact of being human. The distinction is clearer when regard is had to the legal treatment of other creatures. We acknowledge the existence of other species, and the law protects them to some extent. But we recognise a difference of kind between human beings on the one hand and the rest of the sentient world. To give some simple examples, the laws of all civilized nations recognise a qualitative difference between killing a human and killing an animal; they recognise a qualitative difference between stealing property, however valuable, and kidnapping a person. It is the quality of humanness, then, which carries with it a set of unique considerations; these considerations are ultimately formulated as rights.
The origin of recognisable human rights discourse can be found in the second half of the 18th Century. Tom Paine published ‘The Rights of Man’ (and was prosecuted for sedition); the American colonies declared their independence from Britain; the French rose up against the aristocracy.
In 1776 the American colonists signed the Declaration of Independence. Its opening words are as memorable as they are noble:
“.--We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--"
The French Revolution proclaimed the ideals of ‘Liberty, Equality and Fraternity.
However the record of human rights is stained with hypocrisy. High ideals are voiced and approved, but they are frequently not matched by performance.
The ideals of the French Revolution were not evident in the Terror which settled in blood the accounts of ages. One hundred years later, Captain Dreyfus was prosecuted for alleged espionage, but the prosecution was a monstrous fraud, driven by the deeply ingrained anti-Semitism in the Army and the Church.
And 100 years after the Declaration of Independence, the US Supreme Court had to interpret the words of the preamble, in a suit brought by Dred Scott. He was a slave, but he had lived 13 years in a non-slave state. Relying on English precedents, he sued for a declaration that he was a free citizen of the United States. The Court held, by a 7:2 majority, that the words “all men are created equal” did not refer to African Americans. The language of the judgment is shocking to modern ears:
“The question before us is whether (African American slaves) compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for … citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority …
They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect … (they were) bought and sold, and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it.” (emphasis added)
In 1945 the allied forces mounted the world’s first prosecution of war criminals. Europe lay shattered and the world held its breath in horror as the first films of Belsen concentration camp were made public. In his closing address at the first Nuremberg trial, Robert Jackson, chief prosecutor for the US, said:
“It is common to think of our own time as standing at the apex of civilization, from which the deficiencies of preceding ages may patronizingly be viewed in the light of what is assumed to be "progress". The reality is that in the long perspective of history the present century will not hold an admirable position, unless its second half is to redeem its first."
In the aftermath of World War 2, it looked as though the second half of the 20th Century might, indeed, redeem the first. In 1948, the Universal Declaration of Human Rights set the style for human rights thinking. Its prefatory words set the tone:
"Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law …"
The Declaration articulated, in high prose, the essential values of a dignified humanity. Subsequently the International Covenant on Civil and Political Rights embodied as binding commitments most of the ideals of the Universal Declaration of Human Rights. It makes great promises. Its signatories – almost every country in the world – promise each other to secure for their citizens the essentials of a decent human existence.
But the rhetoric did not prevent the genocide in Rwanda, the terrible ethnic cleansing in former Yugoslavia. It was powerless to prevent the stain of Apartheid in South Africa, the widespread disappearances and torture in Chile arranged by General Pinochet or the killing fields of Pol Pot’s Cambodia.
And while the resounding phrases of the Universal Declaration were being crafted and polished, America was making a secret deal with Japanese war criminals. These men, scientists, had run the notorious Unit 731 in Harbin. There they performed medical experiments on untold thousands of Chinese civilians. These experiments, including vivisection of pregnant women, were as bad as anything done by Mengele in Auschwitz but they are less well known: the Americans granted the scientists privacy and immunity in exchange for their research results.
In Australia, we pride ourselves for our human rights record. Here is a prominent Australian speaking in November 2000:
“I want to talk about the centrality of human rights to our foreign policy objectives, and our decision to make effectiveness the guiding principle of our actions. …
The second reason for our distinctive approach to human rights has more to do with an Australian way of doing things. Our approach is pragmatic but it is also firmly rooted in an ideological commitment to liberal democratic ideals. I believe this blend of the practical and the idealistic very much reflects the character of Australia. A separate public forum could no doubt be dedicated to discussing what core Australian values are - or if they even exist - in the year 2000. Personally, I have no qualms in saying that one of our abiding values is that of a fair go for all.
Australians care about human rights because they believe strongly in a fair go, they support the underdog and they take particular exception to abuses of power. They see justice and human dignity as the self-evident right of all people. They also prefer to cut through the rhetoric and do something useful…."
A fair go for all is probably as close as we, in Australia, get to a shared core value.
Let us consider the legal rights of refugees against that core value. First, a couple of important facts: It is not an offence to come to Australia and seek refugee status. We have an obligation under the Refugees Convention to consider all claims to refugee status. If a person establishes their refugee status, we have a legal obligation to protect them.
Shortly stated, a refugee is a person who does not wish to return to their country of origin owing to a well-founded fear of persecution on racial, religious or political grounds.
Incidentally, the prominent Australian who uttered those fine words about a fair go was the Minister for Foreign Affairs, Alexander Downer.
Let me turn to the way we treat people who seek asylum in Australia. The Howard government has introduced two policies which are an affront to decency. One a policy of deflection, and the other a policy of detention. We try to stop them from getting here, by taking them from the high seas and locking them up in Nauru, or on Manus Island. If they get here, we lock them up in the Australian desert.
Alexander Downer, in the speech I just referred to, went on to say this:
"… human rights are central to the maintenance of a peaceful world and our nation’s security….
It follows that it is very much in Australia’s interests for government to work out how best to deliver an effective human rights policy. It is also, of course, in the interests of the ordinary people of the world who just want to live their lives free from the fear of poverty, war and tyranny. But I want to emphasise the word effective because this is the litmus test for everything this government does in the human rights field….
This audience will be well acquainted with my view that you do not measure a government’s interest in human rights by the decibel reading of its public criticism of others. You measure it by what it actually does…"
What Australia actually does involves gross violations of human rights: a fact which has drawn criticism from every significant human rights body in the world. What Australia does in fact is deny refugees a fair go. So why is it, I wonder, that refugees are so unpopular; and why is it that a majority of decent Australians are prepared to see refugees’ human rights ignored? I suspect that it is a result of a couple of things. Principally it comes from ignorance of the most important facts. So I want to start by dealing with the facts of the refugee situation.
The government's recent hard-line stance on the refugee issue is officially justified in the name of our sovereignty. To guard our sovereignty, the government calls boat people “illegals”, and it locks them up.
It is the great lie on which government policy rests. People who come here informally are not illegal. They commit no offence by arriving without papers, without an invitation, seeking protection. They may be locked up for months or years, but our moral conscience is lulled to sleep because we are told they are "illegals".
The government likes to call it a crisis. It is not a crisis at all. The refugees we are talking about are the 4000 or so who - until the Pacific Solution - arrived informally in the country each year. 4000 is to be compared with the orthodox migration stream of about 100,000 per year. On any view of things an additional 4000 in a year does not constitute a crisis.
One of the reasons we don’t have a crisis in terms of numbers is that our geography insulates us from most of the world’s refugee problems. It is quite difficult to get here in a small leaking boat. By contrast, countries adjacent to the trouble spots in the world have millions of refugees coming across their borders. For us to complain about 4000 is seen as somewhat petty when you consider that Africa has a total of five and a half million refugees; Asia has about eight and a half million.
By any measure, we have a small number of people who come here seeking help and protection because of a legitimate fear of persecution, torture or death in the place from whence they have fled. Our reaction to them in the last few years has been little short of astonishing.
The second fact, which is not only overlooked but is misrepresented by the government, is that immigration policy and refugee policy are entirely different things. Immigration policy is a reflection of demographic, social and economic considerations which cause a country to determine how many people it will admit as permanent migrants, and to decide what skills and ethnic origins will be favoured. It is reasonable, when referring to immigration policy, to say “we will decide who comes to this country and the circumstances in which they come”. As an expression of immigration policy, that is unexceptionable. You may disagree with the policy settings, but the principle is perfectly good as a statement of immigration policy.
Refugees have a quite different claim on our hospitality. Refugees are fleeing persecution, torture or death; they seek our protection. If they manage to get to Australia, we have an obligation under international conventions to offer them the protection they are seeking. It is self-evidently wrong to decide on demographic grounds whether to save this or that person from torture or death. Imagine if the same thinking were evident in civil rescues! Imagine the outcry if the emergency services decided to help this crash victim but not another, based on the relative social utility of the 2 victims.
Refugee policy stands apart from orthodox migration policy: by deliberately ignoring the distinction, the Howard government betrayed our ordinary human decency and stole away our reputation as a decent and generous people.
The Pacific Solution was introduced in the course of the Tampa case. It was on the second day of the Tampa case, on the Sunday morning, that the Commonwealth Solicitor General announced the formation of an agreement with Nauru to take the refugees on board the Tampa.
The Pacific Solution debauches the Constitution of Nauru. That Constitution, being a modern instrument, contains in it a guarantee that you will not be detained except after a proper trial. In other words you can’t be imprisoned except by being found guilty of an offence. There are some limited exceptions to that principle. The only one presently relevant is that a person can be detained without trial if they have entered the country unlawfully and are being held either for deportation or for extradition.
Now that exception simply can’t operate in the case of the people who are intercepted on the high seas and are dumped on Nauru. Take the Tampa people for instance. I have seen their visa application form. It’s a fairly slack piece of work: it is a bulk application - an application for visas for the “people on the attached sheet”. 438 names are listed on the attached sheet. It is signed by a member of Nauru’s own Immigration Department. So, far from being unlawful entrants, they were entered on the request of their own Immigration Department pursuant to an agreement with our government: an agreement under which Nauru get stupendous amounts of money. But it cannot be said they were entering the country unlawfully.
The website of Australia’s Immigration Department for some time boasted proudly of how many people were being “detained on Nauru”. Then someone pointed out this minor embarrassment that the Constitution of Nauru forbids detention without trial. The website was quickly changed. Now Mr Ruddock says that in fact they are not detained, they are held pursuant to the conditions of their visa. And their visa, as it turns out, requires them to stay within Topside Camp or Statehouse Camp. In other words, the visa condition requires them to be detained.
It’s obvious nonsense, because you cannot validly force a person to remain in detention merely by imposing detention as a condition on their visa, and especially where the person did not seek to enter Nauru in the first place. In any event, it is quite apparent that none of them knew what sort of visa was being applied for on their behalf and in addition, none of them would be allowed to leave the country even if they asked to. So there they are: on a visa which requires them to stay locked up, but if they don’t like the visa conditions they can’t leave the country anyway. Complete nonsense.
There is another vice in the Pacific Solution. Article 5 of the Nauruan Constitution provides:
“A person who is arrested or detained shall be informed promptly of the reasons for the arrest or detention and shall be permitted to consult in the place in which he is detained a legal representative of his own choice.”
The refugees on Nauru have repeatedly asked for access to lawyers. Those requests have been ignored by Nauru, Australia and the IOM. When a group of Australian lawyers tried to go to Nauru to help the refugees, they were refused visas. When they asked the Chief Justice of Nauru, who lives in Melbourne, to hold a sitting of the Court in Melbourne, he refused. The legal rights of the refugees on Nauru have been completely ignored, and all the evidence suggests that it is Australia’s Department of Immigration which is calling the shots.
These facts alone are deplorable. Unfortunately, the matter does not rest there. Early in 2002 the parliament passed further amendments to the Migration Act which empower the Department to remove refugees from Nauru, by force if necessary, and bring them to Australia for “temporary purposes”. A refugee brought to Australia in this way is not allowed to apply for a visa, and may not challenge the fact or circumstances or their detention, removal or treatment. Sections 198B and 494AB provide:
198B Power to bring
transitory persons to Australia
(1) An officer may, for a temporary purpose, bring a transitory person to Australia from a country or place outside Australia.
(2) The power under subsection (1) includes the power to do any of the following things within or outside Australia:
(a) place
the person on a vehicle or vessel;
(b) restrain
the person on a vehicle or vessel;
(c) remove
the person from a vehicle or vessel;
(d) use
such force as is necessary and reasonable.
(3) In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.
494AB Bar on
certain legal proceedings relating to transitory persons
(1) The following proceedings against the Commonwealth may not be instituted or continued in any court:
(a) proceedings relating to the exercise
of powers under section 198B;
(b) proceedings relating to the status of
a transitory person as an unlawful non‑citizen during any part of the
ineligibility period;
(c) proceedings relating to the detention
of a transitory person who is brought to Australia under section 198B,
being a detention based on the status of the person as an unlawful non‑citizen;
(d) proceedings relating to the removal
of a transitory person from Australia under this Act.
(emphasis
added)
These provisions were used in early September 2002 to bring 6 Afghans to Australia from Nauru. They had been rescued by the Tampa. The Commonwealth wanted them to give evidence against the people smugglers who had brought them on their ill-fated journey. Despite the efforts of lawyers in Australia, they were forced to give evidence on 19 and 20 September, and on 21 September they were taken back to Nauru.
Once back in Nauru, they had just 11 days in which to make an agonizing decision: should they accept the government’s “repatriation” package of $2,000 and return to Afghanistan, or stay on Nauru and face the possibility of life imprisonment without trial. They know that they if they return to Afghanistan, they will be hunted down by the smugglers’ mafia for having given evidence. But they fear for the safety of their families in Afghanistan, about whose fate they know nothing at all. By the government’s own act, these people now have a new basis for claiming refugee status; but the legislation prevents them from lodging a valid visa application, either in Australia or on Nauru.
As they left the Perth detention centre on 21 September, they were weeping with fear and anguish, convinced that their lives were ,at last, irretrievably blighted. No person should be placed in such a position; no government should treat human beings this way. The misery of these people is our government’s way of protecting our sovereignty. Meanwhile, the people smugglers are in Perth, with full access to the Australian legal system and the protections it offers.
I won’t deal separately with Manus Island, because exactly the same arguments apply. Its Constitution enshrines a similar guarantee against arbitrary detention.
This is the Cargo Cult theory of constitutional reform. Australia has suborned 2 of its poverty stricken neighbours into doing whatever suits Australia’s policy. To protect our national Sovereignty we have compromised theirs. In the process, we have destroyed lives of pathetic, vulnerable, powerless people. That the government got an electoral advantage out of this shabby arrangement makes it even more disgraceful.
John Winston Howard showed his superb political skill in crafting the Pacific Solution, and for that he deserves our undying contempt.
In the speech I mentioned earlier, Mr Downer said:
"Bit by bit, leaders of governments that suppress human rights are being made to feel uncomfortable, however much they bluster and hide behind sovereignty arguments…."
Perhaps Mr Howard should listen to his Foreign Minister's speeches.
When a person arrives in Australia and seeks asylum, they tell their story to an officer of the Department. The officer decides whether to believe the story and, if so, whether the story makes out a valid claim for refugee status. If the applicant is knocked back, they can go to the Refugee Review Tribunal. The quality of "justice" dispensed by the RRT is quite distinctive. The RRT members do not have to be lawyers. They are appointed for a short term but can be re-appointed. If their decisions please the government, their chances of re-appointment appear to improve. Applicants are not entitled to be legally represented at RRT hearings. The decisions of the RRT are often a matter of life and death, literally, and yet the decisions of the Tribunal are almost completely immune to correction by a Court.
Until late 2001, the Migration Act contained a provision to the effect that a decision of the RRT could not be overturned by a court merely because it contained an error of law, or because it was so unreasonable that no reasonable person could have made it. Reflect on that for a moment: the decision maker is not a lawyer; his or her re-appointment depends on the government’s good opinion; the applicant probably speaks little English and cannot be represented by a lawyer; the decision will determine whether that person is sent back to the threat of torture or death: but if the decision is wrong in law or so unreasonable that no reasonable person could reach it, then there is no legal remedy.
So much for a fair go.
In October 2001, the government decided the scope for judicial review of RRT decisions should be reduced. And in June 2002 it reduced the scope even further: the Migration Act now provides specifically that the RRT does not have to afford natural justice to applicants.
Anyone who says that the RRT gives all asylum seekers a fair go is a liar or a fool.
Now let me turn to our policy of indefinite mandatory detention; what we do to people who actually get to Australia. Before going into the details, I think it is interesting to look at the matter as a question of ethics or morality. It is said by all sorts of commentators that the policy of harsh treatment in detention centres is part of the government’s deterrence strategy. The deterrence aspect of the policy is rarely acknowledged by the Minister. The reason is not hard to see: the people who come here are innocent of any offence but we lock them up. The government calls them “illegals” but not one of them is ever charged of any offence by virtue of having arrived without documentation or without an invitation. It is not an offence under Australian law to enter the way they do. So they’re not illegals, and yet they’re locked up. Locked up, according to the received view, in order to deter others.
We know that about 85% of them end up being accepted as genuine refugees, although they may be locked up for months or years before their claims to refugee status are accepted. In the few years before the Tampa affair, we received about 3000 informal arrivals a year who were genuine refugees: they had a legitimate claim for our protection. In the nature of these things, they were profoundly traumatised when they arrived, but we locked them up and treated them harshly. This was done, it seems, in order to dissuade other people from following them. That is the psychology of hostage-taking although the hostages in this instance are already traumatised.
This policy simply uses refugees as an instrument of government policy. Locking up innocent people and harming them, as an instrument of government policy, is an appalling thing to do. It is shocking to think that our government is instrumentalising innocent, traumatised people in order to force other people to change their conduct.
Indefinite mandatory detention needs to be understood in its details to appreciate just how terrible it is.
First, it is mandatory: the Parliament has legislated that people who arrive in without a visa will be locked up. No court says they must be locked up, and no court has the power to release them. Refugees are the only group in our society who can be locked up indefinitely without a judicial order.
And it is indefinite. The worst criminal, when convicted of a crime, will receive a head sentence (a maximum) of X years and a non-parole period of Y years. When the iron door closes behind him he can begin to count the days until he will be free again. Absent misbehaviour in prison, he will be released when the non-parole period is up.
But refugees can’t do that. Try to imagine being a traumatised person, in a foreign country, in hideous conditions with no idea when if ever you will be released. How is it possible for anyone to retain hope for the future in those circumstances? How surprising is it that people held like this gradually disintegrate as people and regress to modes of behaviour Mr Ruddock pleases to call “inappropriate”: trying to kill themselves, mutilating themselves, and so on. It adds insult to injury that Mr Ruddock is prepared to suggest that such behaviour – utterly predictable in the circumstances – is nothing but an attempt to manipulate the Government. It betrays his utter lack of humanity.
The conditions are characterised both by the hopelessness of not knowing how long they will be there, and desperate uncertainty. This affects children especially. People held in detention centres get moved around arbitrarily, without warning. So that someone who is in Woomera today may be moved overnight to Curtin which is 2000 km away. Children wake up and find that yesterday’s playmate has gone; and when they ask their parents “where has my friend gone” their parents truly cannot answer. People simply disappear from their lives with no explanation, and other people appear in their lives, likewise with no explanation.
These are shocking places. 80% of our asylum seekers are held in the desert camps, Woomera, Curtin and Port Hedland. We have several camps in the cities: Villawood in Sydney, Maribyrnong in Melbourne and there is a small detention centre at the Perth airport. But the metropolitan camps hold at most 20% of the people. So most of them are hidden away in the desert behind tall palisade steel fences topped with razor wire. When the Baxter camp at Port Augusta comes on stream it will not only have the palisade fences and two rows of razor wire, it will have an electrified fence as well. According to an Assistant Secretary of the Department of Immigration, speaking recently, it is wrong to call it an electrified fence: it is an “energised fence”. The use of double speak in this realm of discourse is disturbingly common.
These are desperate places. In the camps the food is frightful; the accommodation is terrible, Woomera had no trees until very recently. It has now got a lot of trees because a UN working group have recently come out to inspect it: in the last three months they have planted 1500 trees and painted every building inside and out. There are only one or two trees at Curtin. One of them is a suicide tree: desperate detainees jump from it in an attempt to die.
These are miserable places. The Government’s own advisory group in January described Woomera as a ‘cage in the desert’. What a condemnation of the Government policy that is. If you go to Maribyrnong the detainees can tell you there will be an official visit in the next couple of days because the common areas have been painted. They know it. They know that if there is any maintenance it means there is an important visitor coming.
These are shocking places physically. But the psychological conditions are much worse. Detainees are highly dependent on the goodwill of the guards, and the guards, like guards in most institutions, very often show signs of sadism because they are all-powerful and their victims are entirely without power. Some of them are good people. But good people can do bad things, and the stories you hear about them are extremely depressing. Kate and I went to Maribyrnong about six or eight weeks ago. We were in the 7-9pm visiting slot. Going there is a very interesting experience, you should try it if you have doubts about this question. When you go there you are confronted with the palisade fence and you press a button on a gate and eventually one of the guards will press the button that releases the gate. You step through the gate and you are then in a cage and at the other end of the cage there is another gate where you press another intercom button. And after a few minutes they will press a button and you are now out of the cage and you can walk across to the reception area.
The reception area is glassed in and also has an electrically controlled door. You press the buzzer and after a few minutes the guard inside will press the button and release the door so you can step inside. You then fill out a form giving your name and address and the names of the people you want to visit inside and your connection to those people and you identify yourself with a passport or license. We both wrote down the same two names. We had gone to see them. There had been a hunger strike. We had taken some food. The guard said Kate could go through, so she goes through the electrically operated glass door. She is then in another glass cage, and steps through a metal detector and waits at another door, electrically operated, until it suits the guard to release it. This way, after a few minutes in the glass cage you are then released to the reception area proper where the detainees are.
But then the guard said to me “Ah, there is a problem with your’s Julian”.
“Is there?”
“Yeah”, he said.
“What’s the problem?”
“Well you have written ‘barrister’ ”.
It was so. He knew I was a barrister: he had ribbed me previously for my involvement in the Tampa case.
“You can’t come in, because lawyers’ visiting hours are 9-5”.
I said “Hang on. Other people can’t come 9-5, lawyers can, but surely the fact that I am a lawyer doesn’t mean I can’t come during the evening visit”.
He said, “Well, there is a rule”.
“It couldn’t mean that”. I said.
“There’s a rule”.
“Can I have a look at it?”
“No, you can’t look at it - it’s confidential”.
So I said “Well that’s a bit of a problem, because I’m actually a barrister for one of them” (which I was - I was going to court for him the next day) “and I am just a friend of the other. So, what do I do there? Can I alter it on the form?”
“No you can’t, because I know you are a barrister now.”
So I said, “Well what do I do, for one I am a friend, and the other I’m a barrister?”
“Well, you need two forms”.
“Ah, I see. Can I have another form please?”
“No.”
“Why.”
“There’s a rule: only one form.”
After this diverting exchange, he asked me to leave. I spent the next 2 hours sitting in the street until Kate had finished talking to the people I had wanted to see. Now it occurred to me that I could give him some trouble about this. He must have known so. But, despite the risk that I may make trouble, he was prepared to flex his authority simply because he could.
How do you imagine he treats people who are powerless? What is he going to do with those refugees who cannot say or do anything by way of complaint or retaliation? It has other unhappy echoes. Let me tell you a story.
A family fled a middle-eastern country because they are members of a persecuted minority. They are mother and father, two daughters aged 10 and 7. They had been regularly persecuted by the prevailing majority in their country of origin; they had had a very hard time, and got in a taxi at 2 o'clock one morning and fled: they never returned to their home. They reached Australia after 15 days on a boat. In Curtin, the 10 year old girl especially began suffering, and her suffering became increasingly apparent. After six months she had lost interest in eating, she had stopped playing with other children, she was losing weight, she had lost any interest in caring for herself, she would not brush her teeth or wash herself, she was simply existing from day to day … and scratching herself constantly. Scratching and scratching until her flesh would bleed.
A psychologist became concerned about this child because her condition was deteriorating so badly. He came and saw her, and reported to the Department that the child’s condition was bad; that she needed proper medical attention and quickly. Nothing happened. Three months later he came and saw her again. He wrote a report which was very plain in its terms.
“She is fearful of going to the toilet alone. This is exacerbated in the Woomera Detention Centre since the toilets are a long distance from the family’s room. …
“She will not engage in self-care activities. She has trouble sleeping. She tosses and turns at night and grinds her teeth and is having nightmares”. These are common symptoms among children in detention centres.
"She doesn’t eat her breakfast or other meals and throws her food in the bin, she is preoccupied constantly with death saying 'Don’t bury me here in the camp, bury me at home with my grandfather and grandmother.' "
Those are the words of a 10 year old girl.
“She carried a cloth doll the face of which she coloured in blue pencil. When asked by an interviewer to draw a picture, she drew a picture of a bird in a cage with tears falling and a padlock on the door. She said she was the bird.”
The report ends by saying
“It is my professional opinion that to delay action in this matter will only result in further harm to this child and her family. The trauma and personal suffering already endured by them has been beyond the capacity of any human being.”
Two months after that report was written nothing had been done. Another report was written. The child at this stage was almost catatonic. Eventually the Department decided that it would move the family from Woomera to a metropolitan detention centre, because in the city there was a possibility of competent medical attention. You must understand that distance is a major difficulty with the desert camps. They are a long way from anywhere. They were sent to the city in early January of this year and the psychologist sent a very strongly worded recommendation that the 10 year old girl in particular should get immediate attention, and have a clinician assigned to her for daily care. Three weeks later no one had seen her; three weeks later, on a Sunday night, when her parents and her sister were having dinner, she hanged herself. 10 years old…
She was taken to hospital; her mother accompanied her. A refugee lawyer who had been handling the family’s refugee claim went to the hospital. He got there at about 8 o’clock. He went to the Intensive Care Unit. The ACM guard knew him well. He said he wanted to speak to the mother and child. He was refused permission to see them: because lawyer’s visiting hours are 9-5.
What are we doing to these to these people? Early this year, with my wife Kate Durham, I started a campaign to encourage people to write letters to asylum seekers in detention centres. The idea worked. Now thousands of Australians are writing to detainees. We started getting replies. The replies are probably the best way of understanding what is going on in these places and what consequences they have.
This was written in March 2002 in Port Hedland:
“Thank you very much for your letter you sent to me. I got it the other day. I was thinking all Australians are heartless and racist but I am now thinking positive that there is people who cares to think about me. I’m 17 years old. I came in Australia when I’m 16. On June 23 I will turn 18. I have been in this centre for 22 months, almost two years, without any contact or hearing from my family. I know that you can’t do anything but by just writing to me gives me hope.”
And this was written in May 2002 in Maribyrnong:
“I’m thankful for your support and sympathy to give us hope and fresh spirits. Days and nights are very boring and we waste our time and our lives. We miss our spirits and only our bodies move without any spirit. With the best wishes to all people who struggle for human rights. They know human is human.”
And this was written in Port Hedland in February:
“I saw this government what they say to people about us. They told us this people is criminal and terrorist. Boat people is not normal people. But we are just human like other people. In my country I was a wrestler and very famous and going to every country. But now I lost everything from my life. I lost my love, my life and I think if I stay in here maybe I will lose my mind. From two week ago I decided to go back to my land. Actually I don’t know what happened to me in Iran but I just know to die in my country much better than to die in detention centre.”
This man left Australia voluntarily 2 weeks after that letter was written. He was arrested at the airport in Iran when he arrived. He has not been heard of since.
The quality of the guards can also be judged from the letters. This was written in Curtin in May 2002:
“In Curtin on 19 April 02 Friday women and children and all other people are having dinner in mess of camp. Suddenly 12 person of ACM’s guards arrived in the mess and closed the doors and turned over the tables and beat the people. Everybody was terrified, women and children were screaming loudly. They left the camps area and didn’t come to camp until 5 days. During these five days same area was closed and they didn’t serve food to people. People was using of food which was in the kitchen. After passing 5 days police and ACN party arrive in detention centre and collected the knives which were on the floor in the kitchen and they were serving just one meal in the day.”
If I am critical of the Howard government in this moral disaster, I am no less critical of the Opposition for its complicity. This letter was written on 20 May 2002. It tells of an incident that happened on 24 April in Port Hedland:
“There was happened a sad incident on 24 April in this centre. In the morning of that day a group of Labour Party people had a visit from our centre but they didn’t talk with any one detainees. One of Afghan detainees (and he gives the number) requested to visit them but was rejected. This man 40 got to a very dangerous physical condition. He was crying and in treating but was not allowed to meet the group. Since several months ago this man had passport and visa for another country but Immigration Department did not accept to send him. This man wanted to leave camp and go away but they would not send him. He wanted to discuss this matter with that group. After the group left the centre the man threw himself from a tree. When we reached the place he was unconscious and bleeding from his ears and we thought he was dead. After about 30 minutes he was taken to hospital in Perth. Now it is about one month that he has been in a coma.”
He later recovered consciousness, but in August - lost and despairing - he again tried to kill himself.
In the desert camps it is necessary to queue to get a bar of soap if you want to have a shower. According to reports we have heard it is common to get to the head of the queue and be turned away and told to come back in half an hour and get the soap then. In the first year and a half of Woomera’s operation there were two working toilets for 700 people and even now, (except when the UN is visiting) the toilets are splattered with blood from suicide attempts or self-mutilations. If a woman has her period she must write out an application form for sanitary pads and hand it to the nurse. She will then be given one pack. If she needs more than that she has to write another form and explain why it is she used more than one pack.
In Woomera, earlier this year, a friend of mine saw a 12 year old girl walking around wearing a nappy. It is a common sight in the desert camps. When asked why that was so she was told that the distress has made the child incontinent.
It has been observed frequently in the desert camps that children regress by years in their behaviour in every possible respect so that children of 4 or 5 regress to bedwetting every night. Even young adolescents are incontinent.
This is what we are doing to people; people who are innocent and who come here asking for our compassion and our help. It is a humanitarian catastrophe from which the government makes political capital; a humanitarian catastrophe which most Australians are prepared to ignore.
This was written in Maribyrnong in February:
“Today I had two visitors who came to my visit for the first time. One of them was journalist another was a girl 25 years old. They had not any information about detention centers and couldn’t believe and the girl was crying after we talked to her. But I believe we don’t must look at our situation like sentimental people and you must look very deeply to these circumstances so that what we are eating and that we have a lot of suffering are on the second level and firstly you must see why the people are coming here and why we are staying a long time in detention. I don’t must be sensitive and don’t must cry because the cry make happy the enemy and finally I write for you difference between camp and zoo. In the zoo the human care for animals. In detention center the animals care for humans.”
Is it possible to do any worse by these people? As a matter of fact, the government has a way to add salt to the wound. After the damage that is inflicted on these people, when they are released from detention, they get a bill for the cost of being held. I have in my Chambers one example of this in which the man is told the conditions of his release are that he must not work and he must make immediate arrangements to pay the sum of $214,000 for his stay in Port Hedland and Woomera. The going rate is about $120-$140 per day per person. We do it presumably to make them feel even more hopeless than we have managed to make them feel in their months or years of detention.
I want to finish by reading this letter which, I confess, I find profoundly disturbing. It was written in February of this year in Port Hedland:
“I want to thank you for writing a letter. It is the first letter I have. I need to write someone outside because I don’t have anyone outside I need to write some letter because I forget everything in these two years in detention. I am very happy this time because I see some good Australians support us. Please Catherine, we need freedom like every human. I have two years and I don’t hear anything about my family in my country. Dear Catherine, I am very happy to write for you because it is the first time I write one letter. Please don’t forget us we are humans.”
Where has this country got to that, in a time of great prosperity, we can take a tiny fragment of damaged humanity and drive them to the point that they need to remind us - ever so gently and politely - that they, too, are humans?
This is a scandal which will haunt us for decades. The human misery we have inflicted on thousands who have arrived looking for help is incalculable. Our complete abdication of moral responsibility - leave aside legal responsibility under international conventions - is reprehensible beyond words. It is quite clear that, as a country, we have learnt nothing at all from the stolen generation. And whereas many people did not know of the stolen generation until years afterwards, in Australia today we do know what is happening. Knowing what we are doing to refugees, we voted back a Government on a promise to be even harsher. How anyone can justify such treatment of innocent human beings is a matter we must all wrestle with. Locking up innocent people is a terrible crime. Locking them up indefinitely in shocking conditions is a terrible crime. The crime is not diminished by alarmist rhetoric.
In twenty years time our children or grandchildren will ask, “What did you do to try and change this?”. Those without an answer will show themselves to be complicit in the great crime of Australia in the twenty-first century.
CONSTITUTION OF NAURU, Article 5
Protection of personal liberty
5.
(1) No person shall be deprived of his personal liberty, except as authorised
by law in any of the following cases:-
(a)
in execution of the sentence or order of a court in respect of an offence of
which he has been convicted;
(b)
for the purpose of bringing him before a court in execution of the order of a
court;
(c)
upon reasonable suspicion of his having committed, or being about to commit, an
offence;
(d)
under the order of a court, for his education during any period ending not
later than the thirty-first day of December after he attains the age of
eighteen years;
(e)
under the order of a court, for his welfare during any period ending not later
than the date on which he attains the age of twenty years;
(f)
for the purpose of preventing the spread of disease;
(g)
in the case of a person who is, or is reasonably suspected to be, of unsound
mind or addicted to drugs or alcohol, for the purpose of his care or treatment
or the protection of the community; and
(h)
for the purpose of preventing his unlawful entry into Nauru, or for the purpose of effecting his expulsion, extradition
or other lawful removal from Nauru.
(2)
A person who is arrested or detained shall be informed promptly of the reasons
for the arrest or detention and shall be permitted to consult in the place in
which he is detained a legal representative of his own choice.
(3)
A person who has been arrested or detained in the circumstances referred to in
paragraph (c) of clause (1) of this Article and has not been released shall be
brought before a Judge or some other person holding judicial office within a
period of twenty-four hours after the arrest or detention and shall not be
further held in custody in connexion with that offence except by order of a
Judge or some other person holding judicial office.
(4)
Where a complaint is made to the Supreme Court that a person is unlawfully
detained, the Supreme Court shall enquire into the complaint and, unless
satisfied that the detention is lawful, shall order that person to be brought
before it and shall release him.