2 JANUARY 2012
The following article was published in the University of Western Sydney's GradLife alumni journal - Volume 3 Issue 2 November 2011. It is an article of such importance as to merit publishing it in as many places as possible to give the matter as much publicity as possible:
Opinion piece:
ten years on from the Tampa - refugees denied fundamental rights
UWS Law School Professor Michael Head reviews the controversial Malaysia Solution.
Inflated claims have been made by some lawyers about the August 31 High Court ruling on the refugee 'Malaysian Solution' - such as that the court has become a 'people's court' and a de facto court of human rights.
In reality, the court's decision was an extremely narrow one. It leaves in place the system of 'onshore' detention within Australia - a system that denies fundamental legal and democratic rights to asylum seekers, such as to seek political protection without being penalised, and not to be detained without trial.
It should be recalled that in 2001, the High Court permitted the forced removal of the Tampa refugees to Nauru, and in 2004 the court ruled that the government could keep refugees detained within onshore Australian detention centres indefinitely, even in violation of international law, including the International Covenant on Civil and Political Rights.
The latest High Court decision was based on an interpretation of specific sections of the Migration Act and the Immigration (Guardianship of Children) Act.
In particular, section 198A(3) of the Migration Act was interpreted to reflect obligations under the international Refugee Convention. These obligations are minimal: not to deport someone who is officially classified as a refugee to face political persecution and not to punish people making protection applications.
As several judges made clear, the ruling does not prohibit other versions of so-called offshore processing, as long as they satisfy these very limited requirements.
The High Court decision leaves intact mandatory detention, that is, the imprisonment of all asylum seekers arriving in boats - a punitive regime that, in effect, violates the Refugee Convention by seeking to deter refugees from exercising their right to seek asylum. Australia is the only country to maintain such compulsory detention, which was first introduced by a Labor government in the 1990s.
Much of the commentary surrounding the court's ruling was guided by the conception that detention is acceptable as long as the Australian government remains in control of the process. This standpoint ignores the fact that the treatment of asylum seekers in Australian facilities is punitive and degrading, and has caused immense personal suffering.
Across Australia's detention network, incidents of self harm, most often through attempted suicide or mass hunger strikes, have escalated. According to statistics obtained by the Ombudsman from the Immigration Department, there were 1132 instances of actual or threatened self-harm in 12 months - an average of three per day. In just one week during July, there were 50 such incidents.
In line with the reaction of successive governments to any challenge by incarcerated refugees to the denial of their fundamental rights, the federal government has responded with repression, including the use of tear gas and rubber bullets. Desperate protests by inmates, attempting to draw public attention to their plight, have been met with the arbitrary removal of demonstrators to high-security prisons and threats by government ministers to retaliate by stripping refugees of their right to seek asylum.
The experience of the past two decades suggests that the conditions inside the detention centres will only worsen as asylum seekers wait longer and longer for decisions on their visa applications. The High Court late last year held that detainees on Christmas Island could not be denied access to the courts. Given the numbers of detainees and the lengthy nature of the official and judicial processes, however, many are likely to remain imprisoned, waiting months, if not years, for appeal outcomes.
The government's move to circumvent the latest ruling reveals a contempt for basic legal norms. Its draft legislation effectively repudiated the requirements of the Refugee Convention, placed all power in the personal hands of the immigration minister to declare any country an 'offshore processing country' in the 'national interest' and precluded any overriding vote by parliament.
More fundamentally, the entire political establishment, including the Greens, advocate some form of 'border protection' regime, which ultimately means using military force, in one way or another, either to physically 'turn back the boats' or to otherwise block refugees. Intrinsically, it denies the right to flee persecution and seek asylum, which means nothing if countries shut their borders.
Political and media commentators generally attribute this policy to widespread public hostility to refugees. An interesting opinion poll conducted by Fairfax Media, however, found just 25 percent support for 'offshore processing'.
To the extent that anti-refugee sentiment exists among certain layers of the population, it is largely the result of political and media campaigns aimed at fomenting xenophobic fears about the country being 'under siege' or facing 'invasion' by hordes of aliens responsible for driving 'Australians' out of jobs, lowering their wages and cutting their living standards. Such rhetoric has always been used in times of economic crisis to deflect domestic discontent away from the real culprits - the political and ruling elite and the profit system itself.
Not only the right to asylum but a more basic democratic principle is at stake in this issue: that all people should have the elementary right to live and work with full citizenship rights in any country of their choosing. Without that fundamental right they can be denuded of virtually any other civil and political right.
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