What's
it about?
I have a vague memory of Woomera as a site for rocket and missile testing, a sort of
outback Cape Kennedy. Nowadays much of the economy of that community depends on a business
that is far closer to the ground. According to one local, a fair percentage of the economy
is now dependant on the asylum seeker detention camp.
Lip-sewing; rock-throwing; hunger strikes; damage to Commonwealth property and more.
There are also reports of drinking disinfectant and self-mutilation - it seems a long way
from the days when Australia reached for the stars from the same location. All in a place
where temperatures hover at 40 degrees, about 6 hours drive from Adelaide, and in the
middle of the desert.
Despite the public opinion in favour of detention, few of us are satisfied with the
present state of affairs. In this Lawspot we investigate whether the law is sufficient to
deal with this situation.
International law
Countries have different systems of laws, as they have different views of the laws of
other countries. So be it, and as we can see in the American reaction to European
criticism of their treatment of Taliban combatants, it can be taken or left as pleased. I
was shocked, however, to tune into CNN the other night and find the Woomera
"story" the main item on the hourly news, and then ditto on BBC. And it was not
an attractive picture. It is true that we should not necessarily heed the rebukes of
European countries or foreign media, themselves no strangers to hypocrisy. But sometimes
we see ourselves better through the eyes of others, and at the least, it should give us
reason for pause.
And if we ignore international opinion, what of international law? In a Departmental
briefing paper Mr Ruddock said: "Australia's Migration Act 1958 requires that all
non-Australians who are unlawfully in Australia must be detained and that, unless they are
granted permission to remain in Australia, they must be removed from Australia as soon as
practicable. This practice is consistent with the fundamental legal principle, accepted in
Australian and international law, that in terms of national sovereignty, the State
determines which non-citizens are admitted or permitted to remain and the conditions under
which they may be removed.''
Barrister Julian Burnside QC has spoken on this legal issue: "A small truth
conceals a great lie. It is true that sovereign nations can decide who may enter their
territory. But Mr Ruddock conveniently overlooks other international laws and obligations
concerning the treatment of refugees." He cites the May 2000 Human Rights and Equal
Opportunity Commission opinion that the detention regime is in breach of international law
and comments: "Australia's systematic detention of refugees directly breaches our
international obligations."
What the law can do
Who are the people who seek asylum in Australia? It is difficult to believe that they
are other than those at risk of persecution, torture or even death because of their
political or religious beliefs. And the results of legal proceedings bear this out -
approximately 90% of asylum seekers from Afghanistan are eventually found to have genuine
claims for legal refugee status.
There must be a lesson from the legislation that was passed by the Howard Government in
1999 with regard to the Kosovars and East Timorese, who were permitted to reside in
Australia under "safe haven visas" in recognition that it was still unsafe for
them to return to their homelands. This approach allows us to combine pragmatism with a
genuinely caring philosophy that should underlie our legal process.
Obviously steps must be taken to control the inflow of refugees to Australia. Issues
such as our neighbours' capacity to control their borders and apprehend people smugglers
are important. These and other tactics provide practical alternatives to stem the flow of
refugees; but they will never altogether stop the flow of refugees, and we must decide how
the law will deal with those that continue to arrive uninvited.
Solutions
Talkback radio is full of quite reasonable callers who demand, "why do these
people jump the queue?" Fair question, except that there are no queues in Iraq or
Afghanistan, because we do not have diplomatic representation in those countries. And
there are also those who label the asylum seekers as lawbreakers. This is a serious
misunderstanding, because our migration laws make provision for undocumented refugees, and
they have legal status under international law.
My major concern is not for the refugees themselves, but for the rule of law in
Australia. Laws must be based on a foundation of morality, because in any great democracy
the law is the foremost democratic institution. To label asylum seekers as criminals under
the law is demeaning to ourselves; to treat them as such is to breach the covenant we have
with the rule of law.
Here are some ideas for positive changes in the law once an asylum seeker arrives
without documentation:
- They should be detained in humane conditions for the time necessary to process their
arrival, and then be released into supervised custody in the community, optimally with
members of their cultural groups.
- Detention should be for the purposes of verification of identity; to make a
determination of the elements of their claim; to investigate the destruction of
documentation; to determine whether there are any national security issues.
- Children should not be detained for longer than a few days. There is significant
evidence that detention can be especially damaging to children, and we have no right to
punish these innocents with a life-long sentence of emotional trauma.
- Political and diplomatic efforts should be made with our regional neighbours to
undertake humane and reasonable efforts to control their borders.
- We should increase our intake of refugees who "join the queue". Why, we must
ask, has Australia reduced by more than 50% its refugee intake at the same time that the
worldwide numbers of displaced persons has increased markedly. On a per capita basis, we
accept only one-third of the number of refugees as Britain. In truth the world's poorest
countries accept the greatest numbers of refugees (for instance, in 2000 Pakistan hosted
over a million refugees).
It is time to take the heat out of this important debate and apply democratic
principles of the law that are reasonable, moral, practical and effective.
By Geoffrey Winn
Creative Director
www.law4u.com.au