Briefing to the Experts Committee on the Racial Discrimination Convention

As we sit here today, there are one-hundred and eighty seven people who have been kept in detention by the Australian Government in remote locations for over three years. Their detention was ordered administratively, and is not subject to individual judicial review, even by the High Court of Australia. Since at least December of 2001, and sometimes for much longer, they have been kept in immigration detention because of the way they arrived in Australia – by boat – and their failure to convince Australian authorities of a claim for asylum. They are primarily from four countries – Iran (72), Afghanistan (62), Iraq (32) and Sri Lanka (18), several are stateless, and many are children.

They have been “awaiting deportation” now for years, to countries which will not accept them, so they are kept in maximum security imprisonment indefinitely until they “choose” to return to their country of origin. Through well-founded fear, mental illness, hope for a reprieve, or despair, the ability to “choose” freedom is severely impaired. There are probably more than this number who have been detained for over three years, but there is no independent monitoring – and numbers are hard to get. We are hardened to long term detention in Australia – there are over a thousand people in immigration detention this week, but we are concentrating our efforts on those who’ve passed the three year mark.

Their indefinite detention has been confirmed as arbitrary by the UN Working Group on Arbitrary Detention; it has been described as cruel, inhuman and degrading as regards the children, by the Australian Human Rights and Equal Opportunity Commission. Yet it is lawful, because the Australian High Court has found that even if it contravenes international human rights law, the Australian Constitution gives the Parliament powers to make laws affecting “aliens”, as long as the intention is not punishment, simply removal. Fifty-four of these people are kept by Australia outside the reach of Australian law on Nauru, a State dependent on Australia’s funds and goodwill for its existence, but where the rule of law is absent.

There is occasional media attention to the situation of these long term detainees, but these people are the remnant of several thousand who have been granted asylum after arriving by boat and being in detention in dreadful camps. Most people think that the issues are all over – in the five years since your Committee last examined Australia, the treatment of these asylum seekers has been at the centre of Australian political and cultural life – and most Australians are tired of it. Last month when a mentally-ill Australian permanent resident was found amongst the detainee population, there was an outcry that the Government could treat an Australian like an asylum seeker. The implied acceptance of the treatment of asylum seekers was disheartening.

The absence of any review, and the lack of application of any human rights standards, means that these people are suffering all the known consequences of long term arbitrary detention, compounded by a lack of hope. It is no coincidence that all the long term detainees are from a small group of nationalities – that is the nature of flows of refugees and asylum seekers.  But nor is their nationality unrelated to their treatment – they are clearly part of the class of “aliens” that are most feared or discriminated against in Australia.

Of the several thousand who arrived by boat in the four years to 2001, approximately 90% received refugee status, but of a new “temporary protection” status introduced to deter others arriving by boat. Predominantly Afghans and Iraqis, most of these refugees are, in 2005, still waiting to find out if they are able to stay permanently in Australia, or whether they will have to return, voluntarily or involuntarily, to their country of origin. Meanwhile, they are denied by law access to certain settlement services made available to other refugees and migrants. In particular, they are denied the right to be reunited with their family in Australia, and to leave and return to Australia.

Australia is, of course, not alone in failing to provide the protections called for in the Universal Declaration of Human Rights to those who seek asylum. Australia is not the only country who justifies racially discriminatory treatment of people by asserting that they are “illegal immigrants” rather than refugees. There are even suggestions in public debate that other countries in Europe are examining favourably Australia’s harsh regime. But the big difference between Australia and Europe, Canada and the United States is the absence of any enforceable human rights standards for these people. There is no Bill of Rights, Charter of Rights and Freedoms or European Human Rights Convention.

The only real human rights safeguards we have are those developed, and committed to, by previous Australian governments through the United Nations framework. The ICCPR, CERD, CEDAW, and CROC provide the primary basis for Australian national human rights law – and even here we have exempted ourselves from some key provisions, made exceptions on the basis of our Federal system of Government, or most offensively, refused to apply these standards to “aliens”. Indeed the last five years in Australia are an object lesson in why compromising the core human rights standards is a very bad idea, as our Government has found more than enough “wriggle room” to keep hundreds of people, including children, in arbitrary detention.

It is sometimes surprising to participants in the UN human rights system how seriously Australian non-governmental organisations take the processes. But it needs to be explained that the only sanction available for these serious human rights abuses is the sanction of international opinion. It is a sanction of great concern to the Australian government, as indicated in two simple ways: by the effort it goes to justify its position at this meeting, with senior representatives from at least three Government Departments here; and by the vehemence with which it attacks anyone from the UN which makes a criticism.

My colleagues speaking today, and those from the other non-governmental organisations who have contributed reports to this Committee, have outlined other serious issues, particularly those for indigenous Australians.
We hope that one day we will achieve some Constitutional protection of human rights in Australia, so that we can come to the UN bodies again as a contributor to the advancement of human rights. Meanwhile, we look to you for clear and considered language to assist us in addressing the abuses which continue, so unnecessarily, in Australia.

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