Borderline: Australia's Treatment of Refugees and Asylum Seekers in the Wake of the Tampa (Reportage (Sydney, N.S.W.).)

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Dreamed I saw a building with a thousand floors, A thousand windows and a thousand doors, Not one of them was ours, my dear, not one of them was ours. W.H. Auden ‘Twelve Songs’

Books published in the

R E P O RTAG E

series

Borderline: Australia’s response to refugees and asylum seekers in the wake of the Tampa PETER MAREs Fit to Print: Inside the Canberra Press Gallery MARGARET SIMONS Reconciliation: A Journey MICHAEL GORDON

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R E P O RTAG E

UNSW PRESS

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A UNSW Press book Published by University of New South Wales Press Ltd University of New South Wales UNSW Sydney NSW 2052 AUSTRALIA www.unswpress.com.au This project has been assisted by the Commonwealth Government through the Australia Council, its arts funding and advisory body. © Peter Mares First published 2001 Reprinted twice with postscript 2001 Second edition 2002 This book is copyright. Apart from any fair dealing for the purpose of private study, research, criticism or review, as permitted under the Copyright Act, no part may be reproduced by any process without written permission. Inquiries should be addressed to the publisher. National Library of Australia Cataloguing-in-Publication entry: Mares, Peter. Borderline: Australia’s response to refugees and asylum seekers in the wake of the Tampa. Includes index. ISBN 0 86840 789 5. 1. Refugees — Australia. 2. Refugees — Australia — Interviews. 3. Refugees — Government policy — Australia. 4. Asylum, Right of — Australia. 5. Detention of persons — Australia. 6. Australia — Emigration and immigration — Government policy. I.Title. (Series: Reportage (Sydney, N.S.W.)). 325.210994 Cover design Di Quick Cover image Paul Harris/Sydney Morning Herald Printer Ligare

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Foreword by Neville J. Roach Preface and acknowledgements Terms and abbreviations used in this book

vii x xiv

Introduction

1

1

The new peril

9

2

Water in the desert

35

3

Salt in the wounds

62

4

The minister for misery

100

5

In the wake of the Tampa

121

6

A credible process

142

7

A safe haven?

176

8

The absent embrace

192

9

The never-ending story

210

Compassion is a vice

230

Background notes

266

Index

278

10

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For Tim, my father 1925–2001

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)RUHZRUG by Neville J. Roach It is a great honour and privilege to have been given the opportunity to write a foreword to the second edition of a book described by Australia’s pre-eminent literary critic, Peter Craven, as ‘a testament to the power of Australian journalism at its best’. My task is all the more rewarding because the subject is of great importance to the Australian nation and one that is very dear to my heart. In his postscript to the earlier edition of Borderline, Peter Mares seemed to clutch at the straws of hope in the form of a report by the Human Rights Sub-committee of the Joint Standing Committee on Foreign Affairs, Defence and Trade, which, he said, ‘is an encouraging sign that some politicians are willing to make a serious effort to search for alternatives to Australia’s current system’. The postscript was completed in late August but, ironically, before 26 August 2001 — the fateful day when the Tampa received its first call for help and Australia’s political landscape changed forever. If any politicians remain who are ‘willing to search for alternatives’, there are none on the Coalition side and only a few in the Opposition. Only the Democrats and the Greens stand out for their courage and consistency in adopting the politically risky stance of opposing the Government’s increasingly harsh and extreme policy. We are fortunate that Peter has decided to update Borderline to cover our post-Tampa period, one destined to feature more notoriously in our history than Bodyline ever did — only this time the ruthlessness is all on our side! In this second edition Peter Mares once again provides a comprehensive account of how Australia’s present approach to asylum seekers has evolved. He continues to adopt a rigorous approach to the facts, relying on painstaking research and first-hand experience. For those like me, who find it increasingly difficult to see any redeeming features in the Government’s ‘zero tolerance’ policy, he is painfully fair and even-handed, forcing us to re-examine our

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attitudes and to recognise our prejudices. His honesty is something we must all emulate if Australia is ever to find its way out of the horrible malaise we find ourselves in, without leaving our community permanently divided. Although he is scrupulously fair, Peter is not ambivalent or lacking in courage. He does not shy away from making strong critical comment as he sees fit. For example, he does not resile from calling Philip Ruddock ‘the minister for misery’ and pointing out the futility and damage to our national interest of the ‘Pacific solution’, saying that, despite its enormous cost, ‘significant numbers of those asylum seekers it [the Government] is so determined to “deter and deny” will almost certainly end up living in Australia. Meanwhile, the “Pacific solution” has created ill-feeling within the defence force, distorted foreign-aid spending, fostered further dissension in already troubled island states and done significant damage to Australia’s international standing.’ Peter’s negative forecast regarding our international image has unfortunately become all too true, with even the president of Nauru, who first gave life to the ‘Pacific solution’ when it seemed likely to be still-born, subsequently describing it as a ‘Pacific nightmare’. In his preface to the first edition Peter wrote, ‘I have unashamedly adopted a journalistic style in writing this book, with the aim of making it as engaging and readable as possible’.The new edition retains that style, making his work, for all his scholarship and rigour, enjoyable and interesting, even for readers who would not normally care to pick up a book on such a ‘serious’ subject. I hope it will be widely read, so that many more Australians can form a better informed view than one based on the Government’s call to panic stations and the Opposition’s tentative and timid response. While the book largely tells a sorry tale — it is impossible to write lightheartedly about so much misery matched by so little compassion — it is not without hope.Throughout the book we see Peter looking for positive signs, searching for solutions. He canvasses options to the ‘all or nothing choice’ the Government presents to the electorate, saying, ‘Surely, as a nation, it is not beyond us to find a response to the unauthorised arrival of asylum seekers on our shores that is compassionate without being weak?’. The Government, of course, will not look for such an outcome, preferring the ‘we win, the asylum seekers and the Opposition lose’ strategy that has served it so well. In fact, it has now ratcheted up its extreme policy one further notch by seeking to exclude all of Australia’s northern islands from our immigration zone, challenging and taunting Labor to continue its me-too approach. One hopes Labor will take a leaf out of Borderline and finally have the courage to grasp the opportunity to distance itself from the Government by saying, ‘thus far and no further’.

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Transcending politics, Borderline is above all a story of human suffering and Peter’s desperate urge to make an appropriate human response. This comes through in his gut-wrenching description of the helplessness he feels when he sees the trauma in the faces of some refugees newly released from Woomera.‘I watched the Afghan refugees sitting at their desks,’ he says, ‘and wished I had thought to cut a spray of that bright yellow wattle from the tree on the nature-strip, to bring it inside the grey walls of the community centre as a small gesture of greeting.’ Would that Australia could offer such a bright welcome!

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3UHIDFH DQG DFNQRZOHGJHPHQWV Borderline was originally published in April 2001. A great deal has changed since then, especially with the Tampa affair, which brought in its wake a dramatic shift in Australia’s approach to asylum seekers and a fundamental rewriting of Australia’s refugee laws.This revised edition aims to bring the first edition of Borderline up to date. Some of the original text remains, but a great deal of new information has been added, particularly in the form of testimony by professionals who have worked inside Australia’s immigration detention system and who now feel compelled to speak out about their experiences (chapters 2 and 3). I have added an entirely new chapter on the Tampa affair and the ‘Pacific solution’ (chapter 5), and I have completely revised the chapter on Australia’s legal regime (chapter 6) to explain and analyse the sweeping post-Tampa changes. Much else is new, including additional detail about the human and social cost of the temporary protection visas (chapter 8) and the approach of the Labor Party to the refugee issue (chapter 10). Other material from the original edition of Borderline has also been updated, including the statistical information provided throughout the text and the sorry story of East Timorese asylum-seekers in Australia (chapter 9). One thing remains constant: the question of Australia’s treatment of refugees and asylum seekers is still a hotly debated and divisive issue in Australian society — one that cuts across the traditional political fault-lines of right and left.This revised edition of Borderline adopts a critical stand — as the original one did — towards current government policies but aims to do so on the basis of accurate facts and reasoned arguments. I recognise that the unauthorised arrival of asylum seekers in Australia poses complex policy issues and I am mindful of the fact that a majority of Australian voters have clearly indicated their support for a government that promises to control the borders and run an orderly migration program. In this sense I seek to engage in a meaningful way with the arguments of the

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Immigration minister and to suggest workable and politically viable policy alternatives. This is largely a book of stories, told by people who willingly opened their doors and their lives to me.They shared often painful personal experiences with a journalist who offered them nothing in return. I was shown great hospitality, even though the people I spoke to were surviving on very modest incomes. In the light of the treatment they had received as asylum seekers in Australia, their generosity was shaming. I hope that I have at least done justice to their stories and I thank them for showing me so much trust. I have adopted assumed names for most of the asylum seekers and refugees interviewed for this book. This was done out of respect for their privacy as they seek to build new lives in Australia, and in the interests of protecting any of their relatives who may still be at risk elsewhere in the world. There is always a danger in going from the particular to the general; in taking an individual’s story as proof of a more widespread reality. I acknowledge that this is a risk in writing a book based on personal interviews, especially when people are relating their experiences in detention. In that hot-house environment rumours run rife, and small incidents can be blown out of proportion. A simple stuff-up can be misconstrued as malevolence. I have attempted to guard against exaggeration and error by cross-checking stories and facts.While incidents related in the text were experienced by one individual or family, I have only included stories that were confirmed by separate sources, or which clearly fit with the general pattern of detention-centre life as portrayed in independent studies and reports. There were many claims and allegations that I chose to omit from the text and I believe that, overall, I have erred on the side of caution in describing problems in the system. I have unashamedly adopted a journalistic style in writing this book, with the aim of making it as engaging and readable as possible. As a consequence, I chose not to use footnotes. However, the background notes for each chapter (placed at the end of the book) provide details of the various sources upon which I have drawn. Journalists often rely heavily on the much more detailed research carried out by academic specialists.This is certainly true in my case and I would like to acknowledge the debt that I owe to the many writings of Dr Mary Crock of the University of Sydney, and Dr Savitri Taylor of La Trobe University. In addition, both Mary Crock and Savitri Taylor were kind enough to read a draft of the original edition of this book to check for errors and omissions, particularly in my treatment of legal issues. The final text is more accurate and more comprehensive as a result of their input. I would also like to acknowledge my many borrowings from the work of other Australian journalists, particularly in preparing this revised

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post-Tampa edition of Borderline, which necessarily involved less reporting from primary sources than the original. In the first edition of the book I was very critical of the Australian media’s failure to pay adequate attention to the asylum seeker issue and of the sensationalist nature of much of the reporting that did occur. Some of those criticisms remain in the opening chapter, but things have changed since then, at least at the quality end of the media. Many journalists are now working tenaciously to ferret out hidden facts and document personal stories. I would like to acknowledge in particular the work of my colleagues at ABC Radio current affairs, at the ABC TV programs ‘Four Corners’ and ‘Lateline’, SBS TV’s ‘Insight’ and ‘Dateline’ programs, the reporting of Russell Skelton and Penelope Debelle in the Age, Aaron Patrick in the Australian Financial Review, Andrew Clennel in the Sydney Morning Herald and Megan Saunders and Victoria Laurie in the Australian. I would like to thank the following people for providing information, introductions, or comments on draft chapters: Susan Kneebone, Sherron Dunbar, Pat McGorry, Ida Kaplan, Chris Conybeare, Karyn Anderson, Gleb Webster, Steven Wolfson, Margaret Piper, Kerry McGrath, Paul Fisher, Dr Paul White, Sameer Saaid, Chris Masters, Matt Brown, Jonathon Hunyor, Mary-Anne Kenny, Kerry Murphy, Nic Maclellan, Grant Mitchell, David Manne, Eve Stagoll, Nehal Bhuta and Liz Biok. I also received assistance from many other people who would prefer not to be named. I would also like to acknowledge my colleagues at Radio Australia and Radio National, who have been tolerant of the occasional absences and distractions caused by my work on this book, and who have brought to my attention many news reports, press releases and publications that I may otherwise have overlooked.Work on the revised edition was completed with the support of a visiting research fellowship from the Institute for Social Research at Swinburne University. I would like to thank my mother Peggy, and my sister Helen, for a steady supply of useful press clippings and other references, and my sister Sarah for her advice on the sections of this book that deal with the impact of detention on mental health. The book is dedicated to my late father Tim, who provided me with the Shakespeare and Auden references and the lesson in family history. I would also like to thank the minister for Immigration, Multicultural and Indigenous Affairs, Mr Ruddock, for agreeing to be interviewed and his press secretary, Steve Ingram, for arranging the appointment.Whatever my criticisms of Mr Ruddock — and they are many — it must be acknowledged that shying away from defending his policies or hiding behind officials are not among them. He generally makes himself available to the media. Staff in the public affairs section

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of the Immigration department have been patient and helpful in responding to my requests for information. This book was originally inspired by seeing the tireless work of Martin Clutterbuck and Carolyn Graydon, who worked as lawyers with Melbourne’s Refugee and Immigration Legal Centre. Both Carolyn and Martin are now working in East Timor. Throughout the writing of the original book they assisted me with information, suggestions and feedback. I am grateful to Peter Browne, who had enough faith in my writing ability to commission this book. Peter provided helpful comments on the original text and generally shepherded me through the whole process with patience and sensible advice. He also assisted me greatly in preparing this revised edition of Borderline, even though he no longer works for UNSW Press. I also want to acknowledge the support, advice and encouragement of Robin Derricourt, John Elliot and the other staff at UNSW Press. I am indebted to Roderic Campbell, who was a rigorous and sympathetic editor of both editions. It was a pleasure and an education to work with him. Finally, I would like to thank my wife Julie Shiels, who has been a constant source of support and ideas and my most incisive and useful critic. Without her love and encouragement, no edition of this book would ever have been started, let alone finished. Whatever faults remain with the text are my responsibility alone.

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ACM Australasian Correctional Management Pty Ltd.The private company contracted to manage Australia’s immigration detention centres. APS Australian Protective Service. A Commonwealth agency that provides security to politicians and other VIPs. Until 1997, APS was responsible for running Australia’s immigration detention centres. ASAS The Asylum Seekers Assistance Scheme.This government-funded income-support scheme is administered by the Red Cross and is available to asylum seekers in the community who, after six months, are still awaiting a primary decision on their case from the Immigration department. asylum seeker An asylum seeker is someone who is seeking protection as a refugee under the 1951 Convention, but whose application for refugee status has not yet been decided by the relevant authorities. Alternatively, an asylum seeker may also seek protection under other international agreements, such as the CAT, CROC or ICCPR (see below). boat people This term was originally coined to describe people fleeing Vietnam after communist forces reunified the country in 1975. In Australia it has come to be applied to anyone who arrives in the country by boat in an unauthorised manner. Some people find the term pejorative; however, it is a useful and apt description and now so widely used as to be part of the general lexicon. CAT Convention Against Torture CONVENTION I have used ‘the Convention’ as shorthand for both the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. Australia is a signatory to both the Convention and the Protocol. CPA Comprehensive Plan of Action.The multilateral plan developed to deal with the repatriation and resettlement of Indochinese boat-people.

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CROC Convention on the Rights of the Child deportation In the technical terminology used by the Immigration department, ‘deportation’ differs from ‘removal’. If someone is ‘deported’ from Australia, it is usually because they have been convicted of a criminal act; they are then barred from returning to this country in the future. A person who is determined to be an ‘overstayer’ or an ‘unlawful non-citizen’ is not deported, but rather ‘removed’ from Australia. There may be restrictions relating to that person reapplying to come to Australia, but they are usually of a temporary nature, or else linked to the payment of costs incurred before the Refugee Review Tribunal. DIMA / DIMIA The Department of Immigration and Multicultural Affairs as it was known from 1996 until the November 2001 federal election. After the election, it was officially renamed as the Department of Immigration, Multicultural and Indigenous Affairs (DIMIA). I have used both acronyms in the text according to the context. I also refer to it as the Immigration department or simply ‘the department’, particularly in references prior to 1996, when it was known under other names, including the Department of Immigration and Ethnic Affairs. exclusion zone The twelve-mile stretch of ocean extending offshore from any piece of Australian territory, a zone over which Australia retains full sovereign rights, including the right to control the movement of all vessels. HREOC Human Rights and Equal Opportunity Commission IAAAS Immigration Advice and Application Assistance Scheme.This funding scheme, administered by the Immigration department, assists asylum seekers with their applications for refugee status. ICCPR International Covenant on Civil and Political Rights illegal This is the commonly used (and derogatory) term for an unlawful non-citizen. migration zone The area of Australian territory from which one is entitled to lodge an application for an entry visa. (This term only came into common use after the federal government declared certain pieces of Australian territory to be outside the migration zone, thereby making it impossible for people arriving on such territory to seek to enter Australia as refugees or migrants.) offshore / onshore The ‘offshore’ refugee and humanitarian program encompasses people who are overseas; they are selected by Australia for permanent resettlement from refugee camps and other places of need. ‘Onshore’ refugees and asylum seekers are people who travel to Australia under their own steam, either legally or illegally, and whose claims for refugee status or humanitarian entry are determined after their arrival in this country.To confuse matters, legislation passed in September 2001 excised certain parts of Australian territory from the

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‘migration zone’ (see above). Asylum seekers landing at these ‘excised offshore places’ (Christmas, Cartier, and Cocos Islands and Ashmore Reef) can no longer seek protection as refugees under Australia’s onshore program; they are now officially described as ‘offshore entry persons’. overstayer A visitor to Australia who has not departed before the expiry of their visa. refugee Article 1A of the Convention (see above) defines a refugee as a person who ‘owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country ...’.Throughout the text I have generally adhered to this technical definition of a refugee, rather than the commonly used meaning of ‘someone fleeing from their home for whatever reason’.The exception is in discussing the situation of the Kosovars and East Timorese who found temporary refuge in Australia, but whose claims for protection were never tested against the Convention definition. I have referred to these people as ‘safe-haven’ refugees. Refugee Review Tribunal (RRT) The Refugee Review Tribunal was created in 1993 to hear appeals against decisions by the Immigration department to reject applications for asylum. SIEV Suspected Illegal Entry Vessel: the acronym used by Coastwatch, the Royal Australian Navy and the federal government’s people-smuggling task force to describe boats entering Australian waters without authorisation. SUNC Suspected Unlawful Non-Citizen: the acronym used by Coastwatch, the Royal Australian Navy and the federal government’s people-smuggling task force to describe people attempting to enter Australian territory without a visa. temporary protection visa (TPV) The temporary protection visa, which was introduced in October 1999, grants a three-year stay in Australia to refugees who arrived in the country unlawfully (as opposed to a permanent protection visa). Holders of TPVs are eligible for income support but have limited access to resettlement services. UNHCR United Nations High Commissioner for Refugees unlawful non-citizen This is the technical term used in the Migration Act to describe people who are in Australia without authorisation. WCC The Wackenhut Corrections Corporation, the parent company of Australasian Correctional Management (see ACM above).

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I am descended from refugees.The way my father told it, or at least the way that he remembered it was told to him, my grandmother’s ancestors were Huguenots (French Protestants) who fled to Britain after Louis XIV revoked the Edict of Nantes in 1685. Apparently, the family, which went by the name of Gascoyne, subsequently managed to make a life in their adopted country as silk weavers at Spitalfields in London. I suspect that my family history is unremarkable; that if most of us delved back far enough, we would find links to ancestors who were persecuted and forced to flee their homes for political, religious, racial or other reasons. Such is the history of the world. In the hills outside Adelaide, where I grew up, many of the early settlers had been German Lutherans who came to Australia in flight from religious persecution in Prussia and Silesia. Their contribution to the establishment of a thriving wine industry is frequently acknowledged; the solid architecture that they bequeathed South Australia constitutes a major tourist attraction.Yet, in times past they were regarded with the same suspicion that attaches to today’s ‘illegal immigrants’. During World War I many towns in the Adelaide Hills dropped German-sounding names that dated back to the middle of the nineteenth century. Today I live near Acland Street in St Kilda, a vibrant shopping strip that is renowned throughout Melbourne for its cosmopolitan style and for the quality of the cakes lavishly displayed in the front windows of its European bakeries. Without the influence of émigré communities from World War II Europe, Acland Street would have little of its current character. Of the 6 million people who have migrated to Australia since the end of World War II, almost 600,000 have settled here under humanitarian programs. No doubt some of those people have been a burden on society — just as there are people born in Australia who may turn

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out to be corrupt, delinquent, criminal or lazy. But the dynamism and energy of refugees in general must be acknowledged. Despite the added challenge of learning a new language and adapting to a new culture, refugees and their children frequently prove to be highly creative, productive and committed citizens. Education is highly prized and there is a determination to build new and better lives out of past trauma and displacement. Hong Kong’s reputation as an economic powerhouse is often attributed to the mindset of its residents, most of whom were refugees from mainland China. In Australia five of the eight billionaires identified in 2000 by the Business Review Weekly’s annual ‘Rich 200’ list were people whose families originally came to this country as refugees: Frank Lowy, Richard Pratt, Harry Triguboff, Boris Liberman and John Gandel. Refugees are often motivated by an intense gratitude to their adopted nation — a gratitude repaid with public service. In this regard one need only think of Sir Gustav Nossal,Australian of the Year for 2000.Who is to say that there is not a future Sir Gus amongst the detainees at Woomera? Or that the children of detainees in Port Hedland won’t go on to become prize-winning scientists. That there is not a tycoon-inwaiting locked up on Nauru? The current response to asylum seekers in Australia — the fear, the suspicion, their detention in desert camps or on remote islands — can be usefully compared to the experiences of the so-called Dunera Boys during World War II. In 1942 the Dunera transported 2542 men from England to Australia. They were mostly Austrians and Germans who had been interned in camps in Britain, even though they were in fact refugees from the Nazis, many of them being Jewish, and were eager to contribute to the war effort. After suffering great abuses on the overcrowded ship during their voyage to Australia, these ‘friendly enemy aliens’ then continued their detention at a camp in the rather desolate surroundings of Hay, New South Wales. A champion of their cause, Benzion Patkin, visited the camp and described the ‘unendurable’ inner sufferings of the detainees in his book The Dunera Internees: ‘They felt as if they were not only in a physical desert, in which the camp was situated, but cut off completely from any human kindness and compassion’. There are unmistakable echoes with the feelings expressed by today’s immigration detainees.As we know, many of the Dunera boys went on to become famous Australians, contributing greatly to the intellectual and cultural life of the nation. Later, Winston Churchill admitted that the Dunera episode was ‘a deplorable mistake’ and the treatment they received is generally acknowledged now to be a matter of national shame and regret. In the future, Australia’s detention policy and the so-called ‘Pacific solution’ are likely to be judged in the same way.

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Towards the end of 2000 public debate about the detention of asylum seekers intensified, after a nurse went public with allegations that a boy had been sexually abused in Woomera detention centre. A belated investigation by the South Australian Department of Family and Youth Services, eight months after the alleged incident, found that the claims of abuse were not substantiated. A separate federal government inquiry carried out by former diplomat Philip Flood, AO, found it ‘inexcusable’ that the nurse’s initial report of suspected abuse was not acted upon, nor drawn to the immediate attention of the relevant federal and State authorities. Since the Woomera story broke, the media has devoted considerable attention to investigating conditions in Australia’s immigration detention centres and to the plight of children in detention, in particular.The detention centres have also been pushed onto the news agenda by the force of events — break-outs, protests, riots and acts of self-harm behind the wire. Yet, public scrutiny and critical media coverage has failed to induce reform in the bi-partisan policy of mandatory detention for asylum seekers who arrive in Australia unlawfully. In fact, the opposite is true — increased debate has coincided with a significant toughening of Australian policy to deter refugees and asylum seekers from our shores and a sharp contraction of the legal rights of those who do set foot on Australian territory. After 26 August 2001, when the Norwegian merchant vessel Tampa and its 433 rescued asylum seekers steamed into the Australian consciousness, the rules of the refugee game in Australia were completely re-cast. The sustained efforts of refugee advocates, of church groups and human-rights activists over ten years, the numerous critical reports by the Human Rights and Equal Opportunity Commission and the Commonwealth Ombudsman, the damning evidence before various Senate committees, all these counted for nothing as the exalted desire for border protection became the ultimate determinant of policy. Public fear was heightened by the September 11 terror attacks in New York and Washington and any remnant of public sympathy demolished by fallacious claims that asylum seekers had thrown their children overboard. The opposition supported the government in pushing through eight new pieces of legislation in the last week of parliament and on 10 November the Coalition swept back into power in a khaki election.The Australian tendency to panic at the sight of a boat on the horizon had helped to deliver John Howard a third term in office. Between November 2001 and August 2002 no new asylum boats were detected trying to reach Australia from Indonesia.There are many factors that may have contributed to this change, such as the fall of the Taliban in Afghanistan, increased efforts by the Indonesian authorities to crack down on smuggling operations and the tragedy of 19 October

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2001, when 353 people drowned on an overloaded boat that sank in the Indian Ocean.The federal government is probably right, too, when it claims that the so-called ‘Pacific solution’ has succeeded in deterring boat arrivals. The prospect of risking a dangerous and expensive sea voyage only to end up in a remote Pacific detention centre has no doubt caused some asylum seekers to reconsider their options. The question is whether this benefit is worth the cost, in human and financial terms. Certainly, the ‘Pacific solution’ has done nothing to assist distressed and displaced people find a durable solution to their plight. < > There is a contradiction at the heart of Australian society. Like the United States and Canada, Australia is one of the world’s true immigrant nations. If we are not Aborigines, then we are migrants, or their recent descendants. Yet, this is a nation hostile to its foundations. For much of our brief history we have been preoccupied with controlling our borders to prevent the entry of others.The White Australia policy is recent, not ancient history; its influence is still felt. There is much concern at the moment about our falling birthrate and about the great burden that an aging population will place on future generations, and still we seem determined to keep out people who are willing to risk their lives to come here in order to establish a better future for their families. This book is a small plea for us to reconsider our approach — for us to contemplate the heresy that it is in the national interest to adopt a more generous attitude to asylum seekers and refugees. Borderline was originally published in April 2001.This present edition has been revised to include developments since then, particularly the Tampa affair and its repercussions. However, much of the original text remains, in the hope that this serves to map the course of policy over time and to show how Australia came to steer global refugee policy into new and uncharted waters. At the outset, it is important to briefly outline the current administrative and legal procedures for dealing with refugees and asylum seekers in Australia. Australia currently has an offshore refugee and humanitarian program, and an onshore refugee program, with a combined intake of 12,000 people per annum. Offshore refugees are those who apply to come to Australia from overseas.They fall into two broad categories. In one category — the special humanitarian program — are applicants who can demonstrate ‘some connection to Australia’ and who ‘have experienced substantial discrimination amounting to gross violation of human rights’. Their applications to come to Australia must be spon-

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sored by an Australian citizen or permanent resident, or by an Australian organisation.The second broad category is for refugees with ‘a strong need of resettlement’ in a safe country. Most of these refugees will be referred to Australian authorities by the United Nations High Commissioner for Refugees (UNHCR).The federal government pays for the airfares and other costs associated with resettlement. Onshore refugees are those who make it to Australia under their own steam, either legally or illegally, and who subsequently apply to stay here long term.When they seek Australia’s protection, they do so under the provisions of the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees.Australia is a voluntary signatory to both these international agreements (referred to simply as ‘the Convention’); as such, it is obliged to offer protection to anyone who meets the Convention definition of a refugee. Article 1A defines a refugee as a person who: «RZLQJWRDZHOOIRXQGHGIHDURIEHLQJSHUVHFXWHGIRUUHDVRQVRIUDFHUHOLJLRQ QDWLRQDOLW\PHPEHUVKLSRIDSDUWLFXODUVRFLDOJURXSRUSROLWLFDORSLQLRQLVRXWVLGH WKHFRXQWU\RIKLVQDWLRQDOLW\DQGLVXQDEOHRURZLQJWRVXFKIHDULVXQZLOOLQJWR DYDLOKLPVHOIRIWKHSURWHFWLRQRIWKDWFRXQWU\«

Australia has a sophisticated system in place for determining whether or not people meet this definition.A person who comes to Australia in search of such protection is known as an ‘asylum seeker’. Asylum seekers who enter Australia lawfully (for example, on a tourist or student visa) are usually not detained and can live freely in the community. Provided that they apply for refugee status within forty-five days of arrival, such ‘lawful’ asylum seekers can also obtain a work permit. Asylum seekers who enter unlawfully (that is, without a valid visa) are detained in privately run immigration detention centres. Since September 2001 certain remote parts of Australian territory (the Indian Ocean territories of Christmas and Cocos Islands, Ashmore Reef and Cartier Island in the Timor Sea and offshore resource and other installations) have been excised from the operation of the Migration Act. A person who makes landfall at such territory may be detained there, or moved to a detention centre in another excised place, or even to a detention centre in another country (for instance, Nauru and Papua New Guinea). The express purpose of this policy is to prevent such asylum seekers from setting foot on the Australian mainland. An asylum seeker who arrives in an excised territory cannot apply for asylum under Australian laws and will be processed under a different set of rules, with fewer procedural safeguards and fewer appeal rights. The federal government maintains its refugee-determination procedures accord with the international practice of the UNHCR. If an asylum seeker does manage to enter Australia’s ‘migration

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zone’, then the first step in the refugee-determination process is a ‘compliance interview’, at which frontline officers must be convinced that the person is making a valid application to ‘invoke Australia’s protection obligations’. The interview may occur at an airport immigration counter in the middle of the night; or it might occur when Australian officials first make contact with boat people who have landed on a remote part of the coastline. Interview questions will focus on how a person got to Australia, what assistance was provided by peoplesmugglers and how much money was paid. Officers will not ask a person directly if they are a refugee or if they have come to Australia to seek asylum.An interpreter will be employed at the interview if necessary.At most airport interviews, though, the interpreter is not physically present and the service is provided via the telephone. An asylum seeker who does not give a clear indication at the airport interview that they fear persecution in their country of origin and that they are seeking to stay in Australia as a Convention refugee may well be turned around immediately and put on the next flight out. In 1999–2000, of the 1695 people who landed at airports without authorisation to enter Australia, 1340 were refused immigration clearance and removed from the country within seventy-two hours and 354 were assessed as presenting information that may engage Australia’s protection obligations. If a person enters the ‘migration zone’ by boat, and officials deem that they have failed to invoke the Convention, then that person will be kept in ‘separation’ detention, without access to any kind of legal advice, and without any opportunity to make contact with family or friends, until removal from Australia can be organised. Asylum seekers who do cross that initial threshold — the compliance interview — are then permitted to make a formal application for refugee status. Asylum seekers who are in detention will be assisted in their applications by a registered migration agent (often, but not always, a lawyer) and an interpreter. This service is paid for by the Commonwealth, and there is pressure on the migration agents to get the job done quickly. If a detail is missed at this initial stage, however, it can prove disastrous later in the process. Federal assistance can also extend to community-based refugee claimants, though it is more difficult for them to access such assistance, because of funding shortfalls and the priority given to detention cases.The ability of asylum seekers who are not in detention to obtain qualified advice depends on whether they have the resources to pay the fees of a migration agent, and on their connections and their luck. The written application and all accompanying documents must be submitted in English, or with an accredited English translation. However, the Commonwealth will provide an interpreter for interviews.The primary decision on an asylum seeker’s case will be made by

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a delegate of the minister — that is, by one of the staff members at the Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) qualified and entitled to make such determinations. Asylum seekers in detention are all interviewed by the DIMIA delegate before a primary decision is made. For applicants living in the community, the DIMIA officer can make a determination ‘on the papers’ alone, if it is felt that an interview is unnecessary. If the application is rejected at the primary stage, the asylum seeker can then appeal to the Refugee Review Tribunal, which is supposed to take a completely fresh and independent look at the merits of the case. For asylum seekers in detention, there will be further brief contact with a migration agent, often a different person to the first one, to help prepare this second submission. Migration agents are not funded to accompany their clients to the hearings, however, and many asylum seekers must face the tribunal alone. A single member of the tribunal will interrogate the refugee claimant directly or through an interpreter. If the claimant is accompanied by an adviser, that adviser generally has no right to address the tribunal on points of law or fact, although it is general practice for the tribunal to permit the adviser to make an oral submission at the end of the hearing and to invite the adviser to state if there are any further questions they believe ought to be asked of the applicant. If the case fails at the tribunal, the asylum seeker can seek leave to bring an appeal before the High Court, the highest judicial body in the land, which has the power to review questions of law under the Constitution. Appeals must be lodged within thirty-five days and leave to be heard will only be granted in exceptional circumstances. Prior to September 2001, asylum seekers also had limited appeal rights before the Federal Court, but this was effectively nullified by legislative amendment.When all else fails, the asylum seeker can ask the minister for Immigration to use his discretion to grant a visa on compassionate grounds. If the application is successful at any stage, the asylum seeker is then recognised as a refugee.An asylum seeker who arrived in Australia lawfully (and was, therefore, not in detention) will be granted permanent resident status, access to resettlement services and the right to sponsor family members to join them in Australia. An asylum seeker who arrived unlawfully (and who was in detention) must make do with a three-year temporary protection visa with limited entitlements. The temporary protection visa came into operation in October 1999 and initially held out the prospect of permanent residency (and the right to sponsor family to Australia) if the risk of persecution in a refugee’s homeland continued after three years. In the wake of the Tampa, however, the regulations relating to permanent protection visas were

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substantially tightened. Refugees who apply for a permanent protection visa after 27 September 2001, and who arrived unlawfully, must now demonstrate why they were unable to obtain effective protection in any country where they spent seven or more consecutive days before reaching Australia. In other words, they must demonstrate why they did not seek asylum at the UNHCR office in a transit country such as Indonesia or Pakistan. If refugees cannot meet this test, then the best they can hope for is renewal of their temporary visa for another three years. The visa does not allow refugees to re-enter Australia if they depart for any reason, effectively preventing them from visiting immediate members of their own family who may have found refuge elsewhere. Refugees with temporary protection visas are also prevented from applying for a visa to stay in Australia for any other reason (even if, for example, they marry an Australian citizen) without first leaving the country. Without the personal intervention of the minister for Immigration these temporary refugees can never gain permanent residency and never sponsor their spouse or children to join them in Australia. In 1998–99, 7274 asylum seekers had their applications finalised by the Immigration department. Only 979 were granted protection visas. The other 85 per cent of applicants failed to meet the Convention definition of a refugee and were required to leave the country. In more recent years the proportion of applicants granted protection visas has risen, reflecting a changing mix of asylum seekers, with more compelling cases from countries such as Afghanistan and Iraq. In 2000–2001 the Immigration department finalised the cases of 14,672 people who had made onshore applications for refugee status and it has granted 5577 protection visas. In other words, around two-thirds of all applicants were rejected.These ‘failed’ asylum seekers are regarded as ‘unlawful non-citizens’ and the Commonwealth regularly organises the removal of such people from Australia. In the period 1996–2000, for example, 1452 boat people arrived illegally in Australia from China: all but five of them were returned. Australia is one of only ten countries in the world that does actively resettle refugees and the minister for Immigration frequently lauds the generosity of our ‘offshore’ humanitarian and refugee intake. But, as Savitri Taylor has argued, behind the alibi of a generous ‘offshore’ resettlement program shelters the more miserly and punitive treatment of ‘onshore’ asylum seekers.That is the subject of this book.

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In early February 2000 Dr Mohammed Taha Alsalami, a medical scientist, received an urgent and rather unusual request. Officials from the Department of Immigration and Multicultural Affairs (DIMA) wanted him to travel immediately to the remote Curtin air base, near Derby in the far northwest of Australia, which is used as a detention centre for asylum seekers. At the time Curtin was holding 1147 people who had come by boat to Australia seeking asylum; most of them were fleeing persecution in Iraq and Afghanistan. A dangerous situation had developed amongst the asylum seekers and DIMA was hoping that Dr Alsalami would have the skills to defuse it. Dr Alsalami is a prominent figure in Sydney’s Muslim community and a founding member of the Organisation for Human Rights in Iraq, so DIMA knew that he would have the cultural affinity and the moral authority necessary to command the trust of the detainees. He was also a known quantity. A few years earlier Dr Alsalami had helped the department to deal with a difficult situation at Sydney’s Villawood detention centre, and he had been serving for the previous three years as a member of the minister’s Refugee Resettlement Advisory Council. On the morning of Monday, 7 February, Dr Alsalami began the nine-hour trek to Curtin air base. First he flew to Perth, then on to Broome, and next he journeyed more than 200 km by road to Derby, finally arriving at Curtin in the enervating afternoon heat. What he found there shocked him. There were hundreds of people sitting in the yard, Dr Alsalami recalls. ‘As soon as they saw me coming, escorted by the authorities, they thought I must be someone from the government’, he says, ‘and they became very excited.’ The people sitting around in the yard had entered the seventh day of a hunger strike. ‘I can’t explain about how much they were unhappy, unsatisfied,’ says Dr Alsalami. He explained that their treatment at Curtin made them wonder whether they could

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really be in Australia at all, which they thought of as a country with a reputation for tolerance and for upholding human rights. They had expected to be treated with dignity. The protest was well-organised. Occasionally, before the heat of the day had peaked, or after it had eased, men would rise from the ranks of the crowd to speak, or rouse protesters with the chant ‘Where are human rights? Where is freedom? We want freedom!’.There was also a large, professionally drawn banner, which depicted the dictator Saddam Hussein expressing gratitude to DIMA for its cooperation in locking up his critics. Some hunger-strikers were refusing water. Already, before Dr Alsalami’s arrival, the detention-centre clinic had received patients who had collapsed from dehydration. Most dramatically of all, a core group of between a dozen and twenty men had sewn up their lips. ‘I saw them,’ says Dr Alsalami, ‘their mouths still stitched. It was dreadful.’ The men had sewn their lips together using ordinary needles and thread available in the camp for mending clothes. According to Dr Alsalami, they could not open their mouths more than half a centimetre; they could barely talk and he struggled to decipher their indistinct mumbles. He believes the men would have been incapable of taking any sustenance, except via a straw. < > Lip-stitching has now become a more familiar form of protest in Australia’s immigration detention centres, but at the time the incident at Curtin was unprecedented.When I heard a brief news item about it on the radio, the image would not leave me. I found the act both appalling and compelling. People who render themselves dumb, I reasoned, must surely have a pressing need to be heard, an urgent story to tell. I wanted to know more.What had pushed the men to that extreme? Were conditions in the detention centre really so bad? I began trawling through reports on the story, but found few answers to my questions.At that stage the detention of asylum seekers was not an issue to which the media had devoted much attention, even though there were some 3000 people locked up in the camps. Their arrival in the country had provoked a storm of interest; their continued presence went almost unremarked and my rough media survey of the Curtin lip-stitching protest revealed a remarkable and depressing similarity of coverage. In the Age newspaper in Melbourne, the Curtin hunger strike rated three side-bar news briefs, each about fifty words long.Two of the Age stories were almost identical. Both used the word ‘bizarre’ to describe the lip-stitching protest and each one quoted Immigration department

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officials as saying that the hunger strike was now all but over.The Age also described the protest organisers as ‘ringleaders’ — hardly a neutral term (the Concise Oxford Dictionary defines ‘ringleaders’ as ‘the chief instigators in a mutiny or a riot’). Coverage in the Age of the Curtin protest was dwarfed by another inter-State story, the fate of a ‘feisty ferret’ that bit a Queensland policeman on the penis. The compere of ABC Radio’s ‘AM’ program also used the term ‘bizarre’ to describe the lip-stitching. However, the ‘AM’ report was unique in that, along with sound-bites from Richard Court (premier of Western Australia at the time) and the minister for Immigration, Philip Ruddock, it also included an alternative view of events from Jackie King of the Refugee Council of Western Australia. The Australian demonstrated some originality by eschewing the epithet ‘bizarre’. Instead, the headline described the protest as ‘grisly’.The article quoted Mr Ruddock as saying that he would not be ‘coerced’ by the detainees nor would he respond to ‘intimidation’. The Sydney Morning Herald initially carried a forty-word side-bar news brief about the hunger strike and then a slightly longer story on the lip-stitching two days later. Perth’s Sunday Times and the West Australian devoted more copy to the story than their east-coast counterparts, which provided space for extra adjectives. ‘Bizarre’ cropped up again; ‘gruesome’ was thrown in for good measure.The West Australian also followed up with reports on a subsequent joint visit to Curtin by Mr Ruddock and Mr Court; apparently, they spent an hour listening to the detainees’ concerns. Afterwards, Mr Court declared that the detainees ‘had a nerve to be complaining’ and that they ought to show ‘a little bit of gratitude’.The premier then chastised the asylum seekers for their ‘irresponsibility’ in bringing children to Australia. He admitted that seeing the children ‘sort of tugs on the heart strings’, but said that the detainees ‘should have had the decency not to subject their children to that illegal activity’. The ‘illegal activity’ the former premier was referring to is that of entering Australia without a valid visa. For this, they were locked up without charge and without recourse to a magistrate.They were unable to apply for bail. Yet, none of the detainees at Curtin would ever be prosecuted in relation to this supposed ‘crime’. They were destined either to be allowed to remain in Australia or returned overseas, depending on whether or not they were recognised as refugees under the accepted international definition. If they were recognised as refugees, they would be accorded the protection that Australia promised to provide when it signed the relevant international agreements — the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. If they were not recognised as refugees, then, barring personal intervention by the minister on

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humanitarian grounds, the Immigration department would remove them from Australia. Asylum seekers who arrive in Australia without a visa are treated as though guilty, until proven innocent, and must, by Australian law, be held in detention, along with their children. No court has the power to order their release. There is provision to release certain people on bridging visas for compassionate reasons, but the eligibility criteria are extremely limited and instances of release are rare. All the news reports of the Curtin protest relied heavily on the official version of events as supplied by DIMA in Canberra, and that is hardly surprising. No journalists are allowed into Australia’s six immigration detention centres except on occasional guided tours, during which detainees are kept at a distance.Those people who do have regular entry — such as doctors, nurses and lawyers — are often reluctant to speak to the media for fear that it may jeopardise their future access to the detainees, or their future contracts with the Immigration department or Australasian Correctional Management (ACM), the private company that runs the camps. In an effort to find out more, I began making my own inquiries, and quickly ran into my own brick walls. Father Lorenz, the priest at nearby Derby told me that he had no idea what had been going on at the camp recently, though he did tell me how much trouble he had had getting permission to conduct a Christmas Mass there. I phoned lawyers, and refugee advocates and Amnesty International, but no one had any more information than I had.There were people who probably could have answered my questions, but they did not return my calls. Eventually I, too, was left with the official view of events supplied by DIMA in Canberra. When I called the department to ask about the hunger strike, a surly media spokesman made it clear that I was wasting valuable time — I was inquiring about an issue that had been adequately covered and which was fading appropriately into history.What he did, reluctantly, tell me was that the protesting asylum-seekers had wanted their applications for refugee status dealt with immediately and that they wanted to be moved to open camps in the city while they waited. An understandable demand, but one never likely to be met. I began to resign myself to failure. I had been unable to uncover any more detail about the events at Curtin in early February.Then came an unexpected break, via the internet. In March Chris Masters presented a ‘Four Corners’ program about the detention of asylum seekers, and particularly about the use of sedatives to dope people against their will before they are removed from Australia by private contractors. Afterwards, he and producer Matt Brown hosted a live discussion on the net. One contributor posted a message about the hunger strike at Curtin.That is how I came in contact with Dr Alsalami.

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< > Dr Alsalami was pleased to find someone interested in following up the story and in our long conversation he painted a detailed picture of events. Much of what he told me was later confirmed by another witness to the protest at Curtin, who must remain anonymous. According to Dr Alsalami, at least 300 people took part in the hunger strike; most of them, if not all, were Iraqis.Afghans in the detention centre looked on with sympathy and some skipped a few meals themselves, but more as a gesture of solidarity than an act of protest. This ethnic divide is easily explicable. It arose out of the Iraqis’ mistaken belief that they were being discriminated against in the refugee assessment process, and that Afghans were receiving preferential treatment. It was, in fact, true that Afghans tended to be processed and released more quickly from Curtin; but this was the result of bureaucratic procedure — it was not from prejudice.When assessing claims for asylum, the Immigration department will attempt to verify, where possible, the refugees’ identities and authenticate any documents that they carry with them. As a rule the Afghans have no such documents, because it is such a long time since in their homeland there was any regime functional enough to issue even something as basic as a birth certificate. So, because there were no papers to check, the Afghans were processed more quickly and some were released ahead of Iraqis who had been locked up for longer. A senior DIMA officer had apparently made an earnest attempt to explain this discrepancy to the detainees. It is hardly surprising, though, that such bureaucratic machinations should remain opaque. Nevertheless, this ‘discrimination’ issue might never have sparked a hunger strike, if it had not been for much broader and more wellfounded complaints about the conditions in detention. According to Dr Alsalami, the conditions at Curtin were ‘subhuman’. People complained about finding snakes in the camp, about the shower facilities being inadequate, about queuing for hours in the hot sun to wait for meals. The mess could only seat 250 people at a time, which meant detainees were forced to eat in shifts. A detainee who requested a pair of nail-clippers to clip his toe-nails was told to use his teeth. Above all, the detainees complained about being cut off from the rest of Australia and the rest of the world — there was no telephone, no access to the media and no ability to send or receive mail. According to a former detainee, there had in fact been a pay-phone and a television set at Curtin when he was first sent to the camp in early October 1999. He claims that both were taken away when the number of new arrivals continued to swell, and as the public debate hotted up over the introduction of a new temporary visa for refugees. The

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television was eventually returned, but detainees were only allowed to use it for watching videos and were not allowed to tune in to the evening news. In his brief stay at Curtin Dr Alsalami was given around 400 letters to post or telephone numbers to call on behalf of the detainees. He says he tore pages out of his diary for people to write on; others thrust at him messages and phone numbers scribbled on scraps of cardboard ripped from old cartons. For many, it was their first opportunity in three or four months to contact friends or relatives, to reassure them that they were still alive. Among the detainees at Curtin was a Bedoon. (The Bedoon are stateless Arabs who live in Kuwait, but are discriminated against by the Kuwaiti government.) When Dr Alsalami contacted the Bedoon’s friends in Sydney, they wept tears of joy and relief. They had already carried out a funeral service for their friend, so firmly did they believe that he had been lost at sea during the crossing from Indonesia.‘I cannot believe that we do that to people,’ Dr Alsalami observes. ‘It is unAustralian. Perhaps it’s not right that the people come to Australia in such a way, but it’s also not right that we punish them.’ There were many intellectuals amongst the detainees, Dr Alsalami told me; there were doctors, lawyers, engineers, scientists, and religious leaders. Dr Alsalami even recognised one man — a dentist who had fixed his teeth during a visit he made to a town in Iran five years earlier. ‘I was very ashamed to see him in that camp. He was very wellknown and had a great name amongst the Iraqi people in that town.’ Dr Alsalami wrote to Mr Ruddock, describing his experiences at Curtin and documenting, over seven pages, the detainees’ numerous complaints. He also made a full report to the minister’s Refugee Resettlement Advisory Committee, of which he is a member. Dr Alsalami’s view is that, instead of holding people incommunicado, the government would do better to alleviate their suffering and anxiety. ‘Sooner or later we will release them and those people will need a great deal of rehabilitation. The situation in the camp was very volatile and very dangerous. It could have prompted violence against themselves and against others.’ In an effort to prevent the Curtin detainees doing further harm to themselves, or to others, Dr Alsalami spent many hours talking with the protesters. He painstakingly explained to them the history of the White Australia policy, multiculturalism and the non-discriminatory procedures for assessing refugees. ‘I want to bring them to understand how we do things here in Australia,’ he says.‘That this is a democratic country, but bureaucratic as well. I was very open with them and tried to make them understand that the government was under great pressure from the public about the way they had come to Australia.’

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He told the men who had stitched their lips that he understood their motivation — how they wanted to express their anger and frustration in the strongest possible way. But he tried to explain that their action would rebound on them:‘People in Australia don’t understand,’ he told them.‘They think you are crazy, you are weird.’ He was eventually able to convince them to go to the clinic to have the stitches removed.‘I am medical scientist, I try to help,’ he says. ‘It was dreadful.’ None of this background emerged in the reporting of the Curtin protest. The media’s shallow treatment of the event shows how effectively the federal government had enforced a black-out on news from Australia’s six immigration detention centres. In late 2000, after allegations of child sexual abuse at Woomera detention centre, conditions in Australia’s immigration detention facilities became a focus of national concern. Since that time many journalists have devoted a great deal of effort to investigating the issue and growing numbers of people employed in the detention centres have also decided to speak publicly about their concerns, despite the secrecy provisions included in their contracts. In early 2000, however, that public debate had not yet started. Of course, even without knowledge of the detailed background provided to me by Dr Alsalami, the media could still have treated the Curtin protest differently. Instead of being called ‘bizarre’, ‘gruesome’ and ‘grisly’, the hunger strike could have been tagged as ‘desperate’; alternatively, the noun ‘protest’ might have been left unadorned by adjectives. After all, symbolically the act of sewing your mouth partly shut is, in itself, eloquent. It communicates the frustration and anger of those made mute and impotent. To steal the words of the Reverend David Pargeter, a Uniting Church minister and co-convener of the alliance ‘Justice for Asylum Seekers’, it shows what people may do when the only power they have is over their own bodies. In response to the Curtin protest, Amnesty International warned that detainees could resort to more extreme forms of self-harm. It was a warning that would prove prescient. By early 2002 it had become almost commonplace to read media reports of detainees damaging their own bodies, whether it was by slashing themselves, banging their heads against brick walls, swallowing shampoo, overdosing on pain-killers, refusing to eat or, indeed, suturing their lips. Given the restrictions on access to the detention centres, it is safe to assume that media reporting does not reveal the full extent of the problem and that many incidents continue to go unreported. Figures compiled by the Commonwealth Ombudsman give some insight into the extent of the problem.The statistics were put together as part of an investigation into the way in which ACM reports incidents in the detention centres to the Immigration department. The figures show that between October 1999 and November 2000 there were 121 reported incidents of actual

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or threatened self-harm in Australia’s six immigration detention centres. In addition, ACM reported a total of sixty-eight hunger strikes. In other words, incidents of self-harm or hunger strikes were occurring almost every second day.The situation appeared to worsen significantly in 2001. Statistics obtained under a freedom of information application by the Catholic Commission for Justice, Development and Peace showed that there were 264 incidents of self-harm in Australia’s immigration detention centres in the eight months between 1 March and 30 October 2001 — an average rate of one incident every day. | Mr Ruddock characterises the boat people as ‘those who have the money, those who are prepared to break our law, those who are prepared to deal with people smugglers and criminals’.The boat people are damned by association, insidiously tarred with the brush of venality. However, the payment of money bears no necessary relationship to the legitimacy of a person’s flight. During World War II Danish fishermen who helped Jews flee to safety from the Nazis charged a fee for carrying them in their boats. More recently, Chinese dissidents employed people-smugglers (or ‘snakeheads’) to escape to Hong Kong after the 1989 Beijing massacre.As a character comments in Thomas Kenneally’s novel Schindler’s Ark, ‘There are times when the only people left to do business with are crooks’. Jews trying to survive the Nazis could hardly afford to be choosy about their associates. The same is true of the boat people. Brokers who move people for money may be cynical, exploitative and cruel, yet they are meeting a real need. Much of the demand for the smugglers’ services is driven by the desperation of refugees seeking sanctuary from persecution. In 2001 the United Nations High Commissioner for Refugees (UNHCR) identified 21.8 million people around the world as ‘people of concern’ because they had been displaced from their homes and lacked security. Add to this the vast numbers of potential migrants — people who are not in flight but nonetheless wish to search out a better life for themselves and their families — and two things become clear: first, the smugglers’ market is potentially enormous; second, the trade may still be in its infancy. According to various estimates, around 4 million people attempt to illegally enter a country each year and the worldwide people-smuggling business is worth up to $10 billion per annum. It is not only legitimate enterprises that profit from economic opportunities opened up by globalisation.As one criminologist puts it,‘organised crime depends not on victims, but on customers’ (though this does not preclude illegal migrants ending up dead in sunken boats or in hermetically sealed lorries). In order to carry out their customers’ wishes, the smugglers

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must be ingenious; they must learn to circumvent the ever-more intricate barriers erected in the countries they are trying to enter.As a business, theirs may be immoral and illicit but it is a business nonetheless and, like the drug trade, it will continue to thrive against repressive measures, to mutate and to innovate as long as there is a substantial profit to be made. As Andreas Schloenhardt has observed in an economic analysis of migrant trafficking for the Australian Institute of Criminology: ‘[T]he drug dealer exists because the legal market does not satisfy the public’s desire for certain narcotics.The “loan shark” exists because the existing banking regulations in many countries leave potential customers unserved. The migrant trafficker exists where legal ways of cross-border migration are denied to people willing or forced to move abroad.’ McKenzie Wark has referred to migration as ‘globalisation from below’ and as long as the imbalance between the ‘overdeveloped’ and ‘underdeveloped’ world is not addressed, the number of people seeking to move will only increase. It is the restrictions imposed on legal migration by developed nations that forge the demand for alternative, illicit routes. It may be comforting to think of people-smugglers as the embodiment of evil, but it is probably more useful to regard them as rational, calculating business figures, who make a sober assessment of the ratio between profit and risk in relation to their trade. < > Khalil is grateful to the people-smugglers. ‘They saved my life,’ he says simply. Khalil is a tall, good-looking young man with a fair complexion and a round face. He does not match the stereotype of the swarthy, bearded Afghan so frequently presented on our television screens. Afghanistan is at the cross-roads of Asia, and Khalil’s features show influences flowing from the East rather than the West. He is a member of the minority Hazara tribe, descendants of Genghiz Khan’s army. I met Khalil in Dandenong, one of Melbourne’s eastern suburbs, in a flat which he shared with two other men, also Afghans. It is April 2000 and Khalil and his friends have only recently been released from detention.Their flat is empty, apart from a worn, green Salvation Army sofa that cost $70 and a small coffee-table, on which Khalil serves me tea and fruit-cake.As he shares his story, Khalil’s shoulders drop and his open smile turns into a frown. Khalil fled to Australia at the age of eighteen, leaving behind his parents and five younger brothers and sisters. Eight months have passed since then, and he has had no news of his family in Afghanistan because it is impossible to contact them:‘There is no postal service, no telephone,

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no electricity, no fax machine, no media, nothing,’ he says. He relates how his family scraped together US$5000 to send him out of Afghanistan because, as a young man of fighting age, he was particularly at risk from the Taliban militia, who were then ruling Afghanistan.The Taliban had its support-base in the dominant Pushtun tribes, who are Sunni Muslims.They targeted the Hazara minority, who are Shiah, in reprisal for their association with opposition forces. It has been well-documented that in August 1998 Taliban forces massacred more than 2000 Hazaras in the northern city of Mazar-i-Sharif and there is no doubt that Khalil would have been at risk in his homeland. The first time Khalil had ever been on a boat, or even seen the ocean, was when he made the smugglers’ crossing from Indonesia with twenty-six other people. He was terrified. He could see water leaking into the vessel. ‘There was a 95 per cent chance of death and a 5 per cent chance of life,’ he says. ‘But better to die on the way than to be killed by the Taliban.’ On landing in Australia, he was detained and then taken to Curtin. He says a DIMA officer addressed his group soon after their arrival at the detention centre and told them that Australia could do nothing for them. They were told that they had no invitation to come to the country, that they had broken the law and that they were ‘queue-jumpers’.At that point Khalil was truly afraid that he would be sent back to Afghanistan. The image of the ‘queue-jumper’ is potent because it deeply offends our sense of fair play. It raises the question — why should we give favoured treatment to people who can afford to buy their passage to Australia? The image has power because it contains an element of truth. People who can afford to raise the money to pay the smugglers are, of course, more fortunate — or less unfortunate — than those who have no money at all, and who must remain where they are, no matter what. No doubt one could find people in Afghanistan who have suffered more than Khalil.That does not make him any safer there, nor does it give us cause to deny him sympathy and sanctuary.The fact that a person has money, or has access to money, does not invalidate their claim to refugee status, nor reduce their need for protection.Again, the comparison with Nazi Germany is apposite: for many Jews, being well-off did not save them from the concentration camps. Khalil’s response to the queue-jumper argument is more fundamental. ‘But there isn’t any queue,’ he says to me, again and again. He is right. The selection of refugees for resettlement is more like a lottery than an orderly process. The annual number of refugee and humanitarian places in Australia’s immigration program is fixed at 12,000 (which combines both onshore and offshore applicants).That’s 500 fewer than in 1990, and down from an annual 20,000 at the beginning of the 1980s. In the 2000–2001

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financial year, 4000 of the 12,000 places in the migration program were nominally set aside for Convention refugees, who are mostly referred to Australian offices by the UNHCR. Another 4000 places were set aside for entrants under the special humanitarian program, who, while not Convention refugees, ‘have experienced substantial discrimination amounting to gross violation of human rights’. Applicants under the special humanitarian program ‘must demonstrate some connection with Australia’. Most will be sponsored by a relative — a husband, wife, brother or sister, for instance, or a son or daughter, or perhaps an uncle or aunt. In former times they might have tried to come to Australia under the family reunion program, but the size of the intake under this program has halved in the ten years since 1990, and almost 80 per cent of places are now taken by spouses and fiancé(e)s.The remaining places go to parents or dependent children. For a refugee who has no family connection with Australia the chances of getting a visa are remote. Applicants also stand a better chance of being resettled if they speak English, and if they are skilled.This makes it more likely, in the language of policy, that immigration officials will ‘identify resettlement in Australia as the appropriate solution’. However, applicants with health problems are likely to be rejected. Take the case of Shahraz Kayani. Mr Kayani came to Australia from Pakistan in 1996 and was subsequently recognised as a refugee. On Australia Day 1999 he took out Australian citizenship.At the same time he tried unsuccessfully to bring his immediate family to join him in Australia. Mr Kayani’s application was twice rejected by DIMA because his ten-year-old daughter Annum suffered from cerebral palsy, and she was assessed as likely to place too great a burden on the Australian health system. (DIMA estimated that her care would cost Australian taxpayers $750,000.) On 2 April 2001, after five years of banging his head against a bureaucratic brick wall, Mr Kayani took his case directly to Canberra. He doused himself with petrol and set himself alight outside Parliament House, suffering burns to more than 50 per cent of his body. Specialists at Sydney’s Concord Hospital were unable to save him and he succumbed to his injuries eight weeks later. Mr Kayani had applied to bring his wife and daughters to Australia under the ‘split family’ provisions of Australia’s humanitarian migration program. Later, the Immigration minister said that Mr Kayani should have applied under the family program, a different strand within the system.According to the family’s spokesman, however, no one ever told Mr Kayani this. No one told him that his application would have more chance of success if it were submitted under a different category (a category where the family, rather than the government, would have picked up the tab for his daughter’s initial medical bills). In any case, the ‘split family’ category under which Mr Kayani did apply is specifically

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designed for people in his situation — that is, refugees granted permanent protection in Australia and separated from their immediate relatives. So Mr Kayani’s family was standing in the right ‘queue’, but had run up against an invisible barrier — an impossible one to pass for someone like his daughter. The case exposes the myth of an orderly queue for refugee applications.As David Corlett argues in the University of New South Wales Law Journal (December 2000), a more appropriate metaphor is ‘a “refugee heap” out of which very few are plucked for resettlement in countries such as Australia’. Statistically, European refugees stand a better chance of making it to Australia under the offshore program than do their counterparts in Asia, Africa and the Middle East. Of the 45,147 offshore refugee and humanitarian visas issued by Australia between 30 June 1996 and 1 July 2001, 45 per cent were given to people in Europe. In the financial year 2000–2001 there were just 2300 places available for the entire Middle East and 1970 places for all of Africa, despite the huge refugee populations in those regions. In September 1999 the waiting list at just one of Australia’s offshore posts in Africa — Nairobi — was almost equivalent to Australia’s global annual humanitarian intake. Australia’s Nairobi office deals with thirty-four countries, including those in the troubled Horn of Africa, and has three (two full-time and one part-time) Australian staff members.According to a High Commission document, there was a backlog of 8000 applicants in September 1999, with a further 2000 applications yet to be registered. I was told that Islamabad, which covers Iran and Afghanistan, had an even bigger log-jam. However, when I subsequently sought clarification of the length of the offshore waiting-list from DIMA, I was given a different story. According to DIMA, in August 2000 there were 16,542 offshore applications for refugee and humanitarian entry on hand around the world. The posts with the largest ‘pipelines’ were said to be Vienna (4856), Belgrade (3713) and Islamabad (1245). Either Canberra officials count the figures differently than their colleagues overseas, or else a very large number of applications had been rejected very quickly in the intervening eleven months. Normally, the process is grindingly slow. On average, it takes eighteen months for an applicant’s paperwork to finally make its way to the top of the pile for consideration. Then it has, at best, a one-in-five chance of success. The first test is to check whether the applicant is already registered as a refugee with the equally overburdened UNHCR office. If not, then the resettlement request will usually be rejected out of hand.This provides a convenient filter to ease the bureaucratic load; it does not, however, guarantee just outcomes. At my meeting with Khalil in his Dandenong flat, I asked why he did not try to come to Australia on the ‘legitimate’ route, via the

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UNHCR and the Australian High Commission in Islamabad. He looked at me, somewhat incredulous at the naivety of my question. At the time of our meeting, the Taliban were still in power in Kabul.‘You know Pakistan supports the Taliban,’ he told me. ‘Afghan refugees are killed by the Pakistani authorities in Pakistan.’ Khalil said he was afraid of the guards who control the entrance to the UNHCR compound. ‘Everyone is afraid. Not just me.’ Khalil’s fears may have been exaggerated, but they were not without foundation. Pakistan was one of only three countries in the world that recognised the Taliban regime and the Taliban movement was largely a creation of Pakistan’s powerful military intelligence service. Afghan armed groups operated with impunity in the country and refugees were not safe, even in the three main refugee camps. Taliban soldiers would visit the camps to forcibly conscript young men into the ranks of their army. Most Afghans live outside the camps in any case; if they arrived in the country after 1992, they are officially regarded as illegal immigrants. They have no right to work and no right to education. They are not at great risk of being forced back to Afghanistan, but it cannot be said that they are offered adequate protection as prescribed by the 1951 Refugee Convention: in any case, Pakistan is not a signatory to the Convention. Although Pakistan has generously shouldered a huge refugee burden for more than two decades now, since the Soviet invasion of Afghanistan, most Afghans live in Pakistan on sufferance so far as local officials are concerned.The Afghans are subject to the whim of the authorities in a system that is notoriously corrupt.‘How could I get inside the embassy or the UNHCR?’ asks Khalil.The only way, he says, is by paying lots of money, ‘thousands of dollars’. Again, Khalil’s story of corruption is probably exaggerated. The UNHCR in Pakistan would not be the only international organisation in a developing country to have guards that demand bribes before letting people through the gate. But there is also anecdotal evidence to suggest that the problems in Islamabad went deeper. In late 1999 concerns over corruption in the refugee-determination process forced a purge of locally engaged staff in the Islamabad offices of a number of international organisations and diplomatic missions. DIMA denied that any locally engaged staff were dismissed from the Australian High Commission as a result of concerns about corruption in the processing of visa applications. The department also insisted that the transfer of any expatriate officers out of Islamabad at the time was made to meet operational needs, not from any concerns about the way the post was managed. The problems at another refugee hotspot are more fully documented. United Nations investigators have found that corrupt staff at the UNHCR in Nairobi extorted millions of dollars from refugees

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seeking resettlement places. Bribes were levied at every stage of the process, from a US$25 fee to get in the compound gate, to a fee of $100 or $200 to secure an interview. Kenya hosts some 250,000 displaced people, mostly from Ethiopia, Somalia and Sudan. In 1999, when the Nairobi corruption scam was operating, some 9000 of these refugees were resettled in developed countries, including Australia. The United Nations senior investigator into the scandal, Frank Montil, estimates that sums of more than $5000 may have been paid to secure successful resettlement, a figure on a par with that paid to people-smugglers to secure entry into a developed country. Dr Nouria Salehi, OAM, believes that there have been similar problems in Islamabad. She estimates that 80 per cent of the Afghan refugees who have come to Australia through ‘legitimate channels’ have actually paid money to do so. Nouria has lived in Australia since 1981 and before that she lived in France. By birth, however, she is Afghan. By day Nouria works in a Melbourne hospital; by night she runs a restaurant. She opened the Afghan Gallery in Brunswick Street, Fitzroy, in 1983, long before that street became a trendy cafe-strip. Her aim was to help Afghan refugees to get to Australia: if she could guarantee them a job on arrival, they were far more likely to get a visa. In all, she has sponsored thirty-five Afghan families to settle in Australia. The system has changed now and she can no longer sponsor people for jobs in the restaurant, but she uses it to provide training opportunities for recently resettled refugees and continues to devote all the profits to helping Afghans living in Pakistan, especially widows. When I ask her about the problems in joining the ‘queue’ for resettlement in Islamabad, Nouria, already passionate, goes into overdrive. ‘They asked them to go to UNHCR and bring a paper that they are a genuine widow, or a genuine refugee. In a country like Pakistan it is impossible to get a piece of paper if you don’t pay money.You should pay for the bribery money, then you get a piece of paper. So they cannot get anything.’ Nouria claims to know of dozens of people in this situation. According to her, when these people lodged their applications with the Australian High Commission, they were asked to go and register with the UNHCR. And when they went to the UNHCR, they could not even get inside the door.‘So,’ relates Nouria,‘they stayed outside the door asking for the paper but were told “no, no, no, we don’t know you”. Some people had money and were clever enough to pay the money and get the paper. People who cannot afford to pay, cannot get it. So then they receive a rejection letter from the Australian High Commission saying that, sorry, we cannot accept you, because the UNHCR does not accept your case.’ Nouria’s portrayal of the situation raises an interesting question of relative moral values: is greasing the palm of a gate-keeper to move

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your file along a bureaucratic chain more legitimate or less legitimate than paying a people-smuggler to move your body along the human pipeline? There is another aspect to the problem, too. If a country is not a signatory to the Refugee Convention, then it falls to the UNHCR, rather than to the national authorities, to make determinations of refugee status. In a country like Pakistan with more than 1 million refugees, it would be a waste of UNHCR resources to conduct individual interviews. The general circumstances which brought the refugees to Pakistan are well-known and clearly form the basis for a well-founded fear of persecution. So, for the most part, individual status determination is not done.This means that few Afghan refugees are listed on the UNHCR’s books for potential resettlement in a third country. Applicants who wish to come to Australia will usually be nominated by family members who are already residents, under the special humanitarian component of our migration program. This category is not strictly a refugee program, yet the Australian High Commission in Islamabad still insists applicants register with the UNHCR prior to their application being considered. As a result, applicants can end up in a catch-22 situation. Australia says they must register with the UNHCR before they can be considered for resettlement, and the UNHCR says it cannot help, since migration to Australia under nonrefugee programs is not part of its mandate. In any case, even if there were such a thing as a functional ‘queue’ for refugees to get to Australia, many people coming on boats would probably not know about it, or know how to join it. Many of the more recently arrived boat people are Afghans and Iraqis who have come to Australia from Iran, Pakistan and other countries in West Asia and the Middle East.Yet, until July 2001, no Australian immigration staff were stationed in Iran to process visa applications. In Iraq there is not even an Australian embassy. The Australian embassy in Damascus closed in August 1999, and visa applications from people living in Syria must be processed in Beirut. There were no DIMIA officials in Afghanistan under the Taliban. During the war in the Balkans, refugees from Bosnia or Kosovo who wanted to seek resettlement in Australia had to lodge applications with the Australian embassy in Belgrade, the headquarters of the very regime that was oppressing them. Initially, their applications would be handled by locally engaged Serbian staff. Similar problems exist in other refugee-producing, or refugee-sheltering countries, as the Immigration department explicitly recognised in its 1994 annual report. It noted that the offshore refugee program was hampered because people were ‘in countries where conditions are changing constantly and access is difficult for Australian migration officials’. In other words, Australian

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officials often cannot reach those in need, and those in need often cannot reach Australian officials. In spite of this, would-be refugees are repeatedly told that they should apply to come to Australia through ‘the proper channels’. Even if refugees can reach an Australian diplomatic post, they may find the door shut in their face.As former Jakarta correspondent Louise Williams has documented, during the late-Suharto era and the earlyHabibie era, East Timorese wanting to come to Australia to study had to fill out their visa application forms on the footpath. The Australian embassy would not even allow East Timorese to enter the diplomatic compound for fear that they might embarrass Canberra by seeking asylum there. In so-called ‘refugee-producing countries’, people seeking to come to Australia on tourist or student visas will be assessed against a ‘risk profile’ to weed out any applicants deemed likely to seek asylum after arrival. So, for example, in October 2000 two Pakistanis were unable to take up invitations to attend an international conference in Melbourne because their visa applications were rejected. Even applications for transit visas may be subject to scrutiny. Soon after the Fiji hostage crisis and coup of May 2000, the federal government introduced a visa requirement for citizens of Fiji wishing to transit through Australia to other destinations. This was presented as a measure designed to prevent George Speight, the coup-leader, and his undesirable associates from sneaking into the country, but it also created a frontline barrier to potential asylum-seekers. The notion of a ‘queue-jumper’ is largely something manufactured by government. Mr Ruddock has given new impetus to the term by collapsing Australia’s onshore and offshore refugee programs into one category. This means that every ‘boat person’ who is granted refugee status in Australia denies a visa to a refugee applying from offshore, from one of those overworked posts such as Islamabad or Nairobi; each one of them denies a visa to a refugee waiting patiently, in the minister’s mind at least, in some squalid and crowded camp. The more refugees who arrive uninvited on our shores, the fewer Australia will resettle from overseas.This wasn’t always the case. Under the previous minister, Nick Bolkus, the two categories were kept separate, so that short-term fluctuations in the arrival of asylum seekers in Australia did not disrupt the operations of the offshore program. By collapsing the onshore and offshore categories into one, and by freezing all offshore applications in the 1999–2000 financial year because of the large number of boat arrivals, Mr Ruddock pits communities against one another: a Somali family waiting for a needy relative to be granted a visa in Nairobi could feel understandably resentful towards an Afghan who comes by boat and is granted refugee status

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onshore. Yet, both are refugees in fear of persecution and in need of resettlement.Who dares judge which one is the more deserving? Australia effectively divides refugees into categories of ‘good’ and ‘bad’. ‘Good’ refugees are selected through our diplomatic missions overseas; their plane fare to Australia is paid by the Commonwealth and they are immediately entitled to permanent residency and to the full range of refugee resettlement assistance programs. ‘Bad’ refugees get here under their own steam, and are locked up until their case is determined.After release, these ‘bad’ refugees receive a three-year temporary protection visa, which means having to live with continued uncertainty and to remain isolated from family members in other countries because they cannot travel outside Australia.The case of Mr Kayani, the Pakistani who set himself alight outside Parliament House, is an indication of the kind of distress that can result. The situation that caused Shahraz Kayani such emotional agony — living as a refugee in Australia but separated from his immediate family — is now replicated by thousands of people released from immigration detention centres since late 1999.‘Bad’ refugees receive a special assistance allowance (equivalent to 90 per cent of the dole), access to Medicare, rent assistance and work rights, but they are barred from the benefits available to ‘good’ refugees, such as temporary housing and English tuition. ‘Bad’ refugees who wish to study must pay, up front, the full fees that apply to an overseas student. The new temporary protection visas were implemented in October 1999 to deter asylum seekers from coming to Australia by plane or boat.They did not come into legal force until 20 October 1999, but a quick glance at the Immigration department fact sheet on 1999 boatarrivals reveals that the new visas effectively came into operation from 24 August onwards. Between those two dates sixteen boats arrived, carrying a total of 504 people between them. Of those 504 boat people, 439 have been recognised as Convention refugees in need of protection, but only 25 have been granted permanent protection visas. The rest have had to make do with temporary protection visas. In Perth eight Afghan refugees camped out in Bateman Park in protest over this issue. Although Coastwatch officials had picked them up on Ashmore Reef on 26 August 1999, almost two months before the new, restrictive, temporary visa came into effect, the refugees were unable to see a lawyer until 17 October. By that time, they were told, it was too late to lodge their applications for refugee status under the old rules. Khalil is in the same situation and feels aggrieved for similar reasons. He says he arrived in Australia in late September 1999, immediately requested refugee status, and was interviewed by a DIMA officer. It was more than a month before any follow-up occurred, he says, and he was not given an application form to fill in until after the new regulations

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came into force.Together with more than one hundred other detainees at Curtin, he wrote to Philip Ruddock in imperfect, but impeccably polite English:‘… with consideration of the fact that the enactment of the new law apply’s only to the future cases not the previous ones, our request from the honourable minister with respect to all law of the land is to consider and apply the former law about the refuges, to us, not the new regulations. If we were not able to submit the application for protection visa to authorities before 20/10/99 that was not our fault. Since as a helpless and oppressed people we are in detention long time before 20/10/99, we don’t even have our own choice for eating and sleeping how, then, could we have access to solicitors and authorities dealing with the matter?’ Khalil and his fellow-detainees did not receive a reply to their letter. The restrictions placed on him by the stringent conditions of the temporary protection visa leave Khalil deeply troubled about his future. More than anything else, he wants to study, but this is impossible unless he can find thousands of dollars to pay the up-front fees as an overseas student.When I point out that at least he has permission to work and earn money, he becomes indignant. ‘The government has given me protection and I want to give something back to Australia,’ he retorts. ‘If I cannot study, how then can I help Australia? I cannot even help myself. Someone who cannot help society can become a robber, can steal, can become corrupt,’ says Khalil.‘I want to be a human, I want to be a perfect man in society. I don’t want to turn to drink or drugs. Australia is a democracy. Everyone has human rights, but not me. Now I am feeling that I am also persecuted by Australia.’ Government policy has ensured that Khalil’s integration with this society will be protracted and painful. Khalil’s boat has been allowed behind the breakwater to shelter from a wild sea, but he still has no place to drop anchor. He has been granted physical safety in Australia, but no emotional mooring. In August 1998 Michael Wooldridge (federal minister for Health until November 2001) launched a GP’s manual on refugee health. In his speech he noted that ‘creating uncertainty and insecurity … is one of the most dangerous ways to add to the harm that torturers do’. At the launch the minister attacked the views of Pauline Hanson’s One Nation Party for its ‘spurious claim … that, at best, Australia should only be a temporary haven for refugees before they are sent back again when “things are better”’. Dr Wooldridge warned that the policies of One Nation would ‘continue the suffering of refugees who have been tortured and could well complete the insidious work that torture began’. One year later, One Nation’s ‘deeply flawed and dangerous’ proposal was approved as official policy for all refugees who arrive in Australia without a valid visa.

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The regulations could have been disallowed by a combined opposition vote in the Senate. But the federal Labor Party decided to vote with the government, even though Con Sciacca, the shadow minister for Immigration, told the ABC’s ‘AM’ program that the new measures ‘would not stop one illegal immigrant from coming to this country’. He pointed out that Labor had tried a similar approach in government in 1990 and abandoned it as a costly failure.Among other problems, the policy results in double-handling, because each asylum case has to be assessed twice: once when the applicant arrives in Australia and again when their temporary visa expires. So, why did the Labor opposition support a government policy which is a proven failure — one that punishes vulnerable people? The answer is that the Australian Labor Party (ALP) was too scared to take a principled stand. Caucus believed that to oppose the changes in the Senate would be like handing the Coalition a big stick with which to beat up the Labor Party; it feared that the government would blame the opposition every time another refugee boat landed on our shores. The ALP’s lack of spine is a symptom of the Hansonist poison that continues to course through the Australian body politic; its debilitating effects further exaggerated by breathing in an atmosphere of panic, and being fed a diet of animosity. By playing on deeply rooted popular fears, the government has engendered a mood of crisis around the issue of boat-arrivals and promoted an attitude of hostility towards asylum seekers and refugees. Previous Labor governments did the same thing and much of the media has gone along for the ride. < > There is a deeply held, yet irrational anxiety that Australia is perpetually in danger of being overrun; that our sovereignty is brittle and our borders are weak. It is as though this continent were a rickety lifeboat, and all the world’s oppressed and poor are desperately swimming towards us, threatening to drag us under. This is clear in the metaphors used to describe unauthorised boatarrivals, which are invariably compared to natural disasters. We are warned that we are in danger of being ‘swamped’ by ‘a flood tide’ of ‘illegal immigrants’ (or simply ‘illegals’). They threaten to ‘inundate’ us in ‘waves’, and even in ‘tsunamis’. There is a ‘rising tide’ of would-be immigrants, reported to be ‘massing in their thousands’ in nearby Indonesia. This imagery is disturbingly reminiscent of the language used to describe Chinese immigration a century ago. As historian David Walker writes in Anxious Nation:‘The Chinese were presented as a vast mass of humanity … Their movements were described as tidal.

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They “flooded” into the colonies … Floods and tides obliterate boundaries and destroy recognised landmarks.They carry all before them.’ In celebrating the centenary of federation, we should remember that fear of Asian immigration was one of the issues that helped pull the States together; that one of the first pieces of legislation passed in the new parliament was the Immigration Restriction Act 1901. The birth of the Commonwealth also marked the beginnings of the racist White Australia policy. Then, Chinese immigrants were accused of bringing with them all manner of vice and disease.Today, Senator Ross Lightfoot sounds a similar warning on the boat people. In a letter to the editor published in the Australian he wrote, ‘these people are criminals — worse, if they bring with them communicable, pandemic, epidemic or parasitic diseases (and they are from areas where contagious diseases are rampant), then innocent Australians could suffer’. The boat people, the senator claims, ‘threaten the peace of mind and sense of security of many Australians, by way of their divergent lifestyle, culture, outlook and values’. The senator claims to speak on behalf of ordinary Australians. Yet, popular opinion on refugee issues in Australia is neither uniform nor logical. For example, at first glance most Australians would probably support a law that prevented claims for refugee status on the basis of China’s one-child policy; nevertheless, we are outraged to learn that a Chinese woman, eight months pregnant, was deported from Australia and suffered a forced abortion on her return home.The public showed great generosity towards the Kosovars and the East Timorese who came here under the ‘safe-haven’ visas, and there was a popular appeal to allow some of them to settle here; even so, there is huge public animosity towards Afghans and Iraqis arriving by boat. As arrival numbers peaked late in 1999, the minister for Immigration, Mr Ruddock, fanned the panic with talk of ‘a national emergency’ and, in one press release, he invoked the language of war, referring to an ‘assault to our borders’.The media extended the imagery with words like ‘invasion’ and ‘armada’. Again, this plays on deep-seated fears of invasion and the historical anxiety about the empty and defenceless north of Australia. In the late nineteenth century the radical utopian and labour activist William Lane developed a theory of ‘swarming populations’. He believed that nations, like beehives, reached a critical stage of over-population, at which point mass emigration became inevitable. According to David Walker, Lane calculated that China had an annual ‘swarming population’ of 65 million and believed that there was no land ‘so convenient and so promising, so unoccupied yet so hospitable’ as Australia. There was a rash of invasion narratives around this time, in which a defenceless and morally weak Australia was overrun by more calculating and ruthless Asians.

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The genre is still with us. In 1991 Eric Willmot published a novel called Below the Line, in which Australia is divided along the old Brisbane Line. The area above the line is known as ‘South Irian’ after being overrun by Indonesians, who set up a puppet-government, installing an Aboriginal man as president. Indonesia launched the invasion by hiding ‘forward spike troops’ among waves of refugees. With hundreds and thousands of boat people landing on the northern coastline, Australia was ‘being invaded in an insidious and unrecognisable way’. Below the Line may not have been a particularly successful novel, but it is an indication of the continued currency of the invasion-fear in the public mind. In a commentary piece recently the historian Geoffrey Blainey also revived the theory of ‘the empty north’. Referring to the arrival of boat people on the New South Wales coast, he warned:‘… it is not certain whether Australia in the next 200 years will be allowed to retain the whole of such a land mass and simultaneously insist that it must remain sparsely populated.This, in human terms, is one of the last of the world’s empty zones … In nearer Asia, as distinct from Europe, governments might not always see merit in Australia occupying such a huge area, on the doorstep of Asia, and refusing to allow the normal processes of human settlement inside it.’ More popular than Blainey’s writings is the teenage fiction of John Marsden. In his invasion series that begins with the novel Tomorrow, when the war began, a group of resourceful, rural schoolkids find themselves cast in the role of bush guerrillas, carrying out hit-and-run attacks against a foreign invader. In the tradition of the nineteenth century invasion narrative, Australia is portrayed as naive and complacent, a target ripe for the picking. As one teenage character says to another: ‘Corrie, we were still innocent. Right up to yesterday.We didn’t believe in Santa Claus but we believed in our other fantasies.You said it.You said the big one. We believed we were safe. That was the big fantasy. Now we know we’re not, and like you said, we’ll never feel safe again, and so it’s bye-bye innocence.’ Marsden’s war scenario is dressed somewhat uncomfortably in the clothes of social justice and multiculturalism. The aggressor is never identified by race or nationality and the most astute and morally virtuous of the teenagers recognises the invasion was driven by poverty: ‘… if you’d lived your whole life in a slum, starving, unemployed, always ill, and you saw the people across the road sunbaking and eating ice cream every day, then after a while you’d convince yourself that taking their wealth and sharing it around your neighbours isn’t such a terrible thing to do.’ Despite the trimmings, Marsden’s fantasy series conforms to the key element of William Lane’s nineteenth century beehive analogy — the

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belief that plentiful Australia is at risk from over-populated countries elsewhere:‘They came swarming across the land, like locusts, like mice, like Paterson’s Curse. We should have been used to plagues in our country but this was the most swift, sudden and successful plague ever. They were too cunning, too fierce and too well organised. The more I’ve learnt about them, the more I can see that they must have been planning it for years.’ Tomorrow, when the war began went through three editions and nineteen reprints in the six years following its first publication in 1993. In the island continent the fear of invasion is alive and well. If this helps to explain the panicked reaction to unauthorised boat arrivals, then it also underlines the need for a sober and dispassionate assessment of the ‘threat’ that they pose to national security. Between November 1989 and November 2001, 259 boats landed in Australia without authorisation, carrying a total of 13,489 people. Seventy per cent of those people arrived after July 1999 as smugglers began organising bigger boats carrying more passengers, representing a quantitative and qualitative shift in the nature of the problem. However, the number of boat arrivals is still dwarfed by the number of overstayers. As of 30 June 2000, there were thought to be close to 60,000 people in Australia who had failed to leave before their visas expired. More than a quarter of these overstayers had been in the country for more than nine years. The largest groups of overstayers are from the United Kingdom (10 per cent) and the United States (8 per cent).Their presence is just as illegal as that of the boat people, but it does not cause a public panic. Nor do overstayers usually get locked up. Once found, most are given a bridging visa on an undertaking that they leave the country voluntarily by a certain date (this is known as a ‘monitored departure’). Others leave at their own expense, but are escorted to the airport by immigration officials to ensure that they actually get on a plane and go (a ‘supervised departure’). Only a small proportion of overstayers are placed in detention before being forcibly removed from Australia. It has become routine to talk of a ‘crisis’ when referring to the boat arrivals, but such words should not be used lightly. At the same time that the number of boat arrivals began to rise in Australia in the last quarter of 1999, Tanzania received 50,000 refugees from Burundi. At one point 25,000 people crossed from East to West Timor in a single day. In the first eight months of 1979, 531 boats arrived in Hong Kong carrying 46,000 refugees from Vietnam. Iran lives with the daily crisis of 1.5 million Afghan refugees and 400,000 Iraqis. Media reports rarely put Australia’s ‘crisis’ in this international context. We seem to be fixated by the pull factors — the attraction that brings people to Australia — rather than the push factors that force them to leave their homes in the first place. There is little analysis of

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why it is now Afghans and Iraqis seeking to come to Australia, rather than Vietnamese, or Chinese or Khmer, who made up the previous four peaks on the boat-arrival charts. Could it be that they come here for the same reasons that they seek refuge in other countries? In 1999 more than 50,000 people from Iraq and Afghanistan sought asylum in Europe. Khalil’s story provides an insight into why many Afghans do not feel safe sheltering in Pakistan and seek to move on. The situation is similar for refugees in Iran. In the first months of 2000 there were numerous reports of Iranian authorities forcing refugees back across the border to Afghanistan. Iraqi refugees were also being deported, under a law that decreed all unregistered refugees had to leave Iran before the end of March, a deadline that was subsequently extended. It is no surprise that Iraqi refugees will try to seek out the services of a people-smuggler rather than be sent back to their homeland under Saddam Hussein. In November 1999 Amnesty International reported that: ‘Gross human rights violations are taking place systematically in Iraq. They range from arbitrary arrest and detention, to torture, extrajudicial and judicial executions after unfair summary trials, ‘disappearances’, and forcible expulsions on the basis of ethnic origin.’ Australia supports the decade-old economic embargo against Iraq, which has had a crushing impact on the civilian population.According to a United Nations expert committee reporting to the Security Council, the embargo has led to ‘an acute deterioration in the living conditions of the Iraqi population and severe strains on its social fabric’. The committee concluded that ‘almost the whole young child population was affected by a shift in their nutritional status towards malnutrition’; it further concluded that infant mortality rates in Iraq are now among the highest in the world and that only 41 per cent of the population has regular access to clean water. These push factors are rarely mentioned in media coverage of the boat people story.To ignore the varied and complex motivations of asylum seekers is flawed journalism; to attack their credibility is a calculated political act. This is a well-practised art. Gareth Evans and Bob Hawke publicly questioned the validity of applicants for refugee status from Cambodia, because their arrival in Australia raised doubts about the success of the Canberra-initiated Cambodian peace-plan; the Suharto-friendly Paul Keating questioned the legitimacy of East Timorese asylum-seekers on the basis that they should go to Portugal. The current minister for Immigration also applies in liberal doses the acid of disbelief to asylum seekers; the media generally allow him to get away with it: the effects are corrosive. The public affairs officer from DIMA told me the hunger-strikers at Curtin detention centre were upset because they had been given

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unrealistic expectations by the people who smuggled them to Australia. He said that they had been told they would end up in Sydney and Melbourne and be able to work straightaway. I asked how he knew that this was the case, given that he otherwise seemed to have a pretty sketchy grasp of their situation. He answered that the minister, Mr Ruddock, had said so. At other times the minister has run exactly the opposite line, saying that asylum seekers ‘know exactly what is going to happen to them’ when they arrive in Australia. He told Paul Heinrichs of the Age that the asylum seekers ‘know they are going to be detained, they have a rough idea how long, they know the procedures, they have been fully schooled on what they need to say’. Mr Ruddock said that they even have the audacity to ask for Pert 2-in-1 shampoo and for orthodontic treatment for their kids. The minister obviously finds it hard to believe that someone with a bit of money can be a refugee. By the same token, if you have no money, you can’t be a refugee either; then, you must be an economic migrant in search of a better life. In an interview with Melbourne’s Herald Sun, Mr Ruddock claimed that the ‘so called boat people are flying first class into Indonesia and Malaysia before boarding rickety vessels for Australia’. The interview was carried on the front page, under the screaming banner headline ‘Alien Scam’.The article claimed to be an ‘insight’ report into the problem of illegal immigration. In fact, it was little more than a series of unsubstantiated and tendentious assertions by unnamed departmental officials. The article concluded that boat people were ‘exploiting a loophole in migration laws that grants people from Iraq and Afghanistan almost certain permanent residency’.What the Herald Sun calls a ‘loophole’ is in fact Australia’s international obligation to offer protection to people at risk of persecution. < > The Curtin hunger-strikers drew attention to themselves, but failed to get the Australian media to take a serious look at conditions in the camp, or to fundamentally question the policy of mandatory detention. They also failed to achieve their primary demands: they were not moved to an open camp in the city. However, their dramatic action was not in vain. Dr Alsalami spent most of his forty-eight hours at Curtin in long and painful negotiations; in going back and forth between the detainees and representatives from DIMA and ACM. Emotionally, it was an intense and exhausting experience, but eventually a settlement was reached that promised improvements in the camp. Detainees now have

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access to four telephones and a fax machine; they would also now be allowed to receive visitors, were any able to make it all that way to Curtin.Television, video and newspapers are available in the detention centre. According to the Immigration department, children detained at Curtin are now taken on a weekly excursion to Derby to visit the swimming pool; in September 2000, a year after Curtin was recommissioned as a detention centre, a playground was belatedly erected within the camp. It was also revealed that charges of child sexual abuse have been laid against two male detainees at Curtin, prompting the Human Rights and Equal Opportunity Commission to repeat its concern ‘that the detention environment places children at risk of sexual and physical abuse’. After inspecting the detention centre in late July 2000, the Commission noted that it was normal for staff at Curtin to call detainees by a number rather than by name, a practice which breaches one of the government’s primary standards for immigration detention — namely, that ‘each detainee is treated with respect and dignity’.The Immigration department insists that numbers are only used ‘to ensure that there is no misunderstanding due to mispronunciation when calling a detainee to the administration area’, but anecdotal evidence from former detainees suggests the practice has been routine in Curtin and elsewhere. In the report on its July 2000 inspection, the Human Rights and Equal Opportunity Commission noted improvements in the ‘comfort, utility and aesthetics’ of the centre, and welcomed the creation of a consultative committee to provide a formal mechanism for communication between detainees and the management. Dr Alsalami kept in touch with the people he met at Curtin and, like the Human Rights and Equal Opportunity Commission, says that conditions did improve for the detainees. As he puts it: ‘Definitely, they made their point by the hunger strike’. Yet, it seems the government failed to draw a more general lesson from the events of February 2000 and heed the sober counsel of the moderate Dr Alsalami. In the weeks and months that followed, not just Curtin but all of Australia’s immigration detention centres became sites of protests, riots, hunger strikes, suicide attempts and acts of self-harm, including lip-stitching. In January 2002, two years after the Curtin hunger strike, hundreds of detainees at Woomera in South Australia began refusing food and more than forty resorted to sewing shut their mouths. Annie Sparrow was working as a doctor in Woomera at the time. Four months later, the memory of what she had witnessed still brought her to tears.‘It was too sad for words,’ she told me. ‘I saw people stitching their lips who felt forgotten, people who had been there upwards of eight months or even a year, people who had done their utmost to comply with detention centre rules and immigration department requirements during that

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time, and who had never before been part of the hunger strikes or the riots.’ She says people were driven to such an extreme measure because the only form of control they had left was what went in and out of their mouths. ‘By lip-stitching they are saying “we are absolutely helpless”. It is the deepest expression of despair.’

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Until recently Australians were not accustomed to seeing water cannon and tear gas in action. Now reports of tear gas and water hoses being used to quell riots in remote detention centres are all too familiar. In the course of 2001 there were at least eight major disturbances at immigration detention facilities, three in Port Hedland, three in Curtin and two in Woomera.There were further outbreaks of unrest at all three centres in the first quarter of 2002. In some cases detainees set fires and razed buildings, and wielded bed-posts and iron railings as weapons in their clashes with guards, who responded not only with tear gas and water cannon but also with batons and capsicum spray. The first major detention-centre riot occurred at Woomera in August 2000, when water cannon was used as a form of crowd control for the first time in Australia’s history.The August riot followed a mass break-out and protest in June. After that, the authorities had clearly prepared for further trouble — an old RAAF fire-truck fitted with water cannon had not been made ready at Woomera by chance. Perhaps detention-centre administrators recognised the shortcomings of their earlier fall-back plan, under which a local emergency services crew was put on stand-by to provide makeshift crowd-control. I had discovered their plan when I visited Woomera in April 2000. Four months before the riot, and less than six months after Woomera had begun operations, it was blindingly obvious that very serious problems existed at the detention centre. < > There were bright lights, sudden and sharp against the dark horizon.At first I thought that must be the town itself. It was after midnight. The Greyhound was six hours north of Adelaide and we were due to arrive at Woomera any moment now. But then the coach turned right, off the

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highway, and travelled down a neatly kerbed, modestly lit street. We could have been back in the northern suburbs of Adelaide. This, I realised, was Woomera — tidy town par excellence. The floodlights on the desert horizon had been my first glimpse of its satellite suburb, Woomera West, the site of Australia’s largest detention centre. With its population of around 1400, the detention centre held almost five times more people than the town itself. The bus driver dropped me off next to the cinema and pointed the way to the hotel, the Eldo — not, as I first thought, a contraction of Eldorado but the acronym from European Launcher Development Organisation, the body responsible for the Blue Streak, the Redstone and other rockets launched at Woomera during the 1950s and 1960s, and now on proud display at the missile park by the town’s main intersection. The rocket range gave life to Woomera. In its heyday the town boasted a population of around 7000 people, though access was restricted to authorised personnel until 1982. Today Woomera is still run by the Defence department, with a mayor, or ‘area administrator’, appointed by Canberra. When work on the rocket range slowed, the town was sustained by another secretive military installation — the satellite-tracking station at nearby Nurrungar, with its giant ray domes, known as the golf balls in the donga (or desert). Now that too has gone. The last United States military personnel have pulled out, leaving Woomera depleted and in need of a new industry. When there was a sharp increase in arrivals of boat people on Australia’s northern coasts, it appeared to offer a nice fit with the town’s under-utilised facilities and its isolation. The detention centre had certainly been a lifeline for the Eldo Hotel. As I walked there from the bus stop,Woomera appeared deserted, apart from a plague of grasshoppers, but behind the Eldo’s formidable brick walls the Boomerang Bar was doing good business. About thirty people, men and women, were playing pool and drinking, while the juke box sang ‘I wanna have sex, on the beach, on your naked body’. Several patrons were wearing sandy brown uniforms, and had ID tags looped onto their belts.The Eldo had become the main wateringhole and feeding-place for the one hundred or so guards employed by Australasian Correctional Management (ACM), which was running the detention centre. Officially known as the Woomera Immigration and Reception Processing Centre, the detention centre was being run by ACM under contract from the Immigration department. The next morning I meet Dr Tom Atherton, the local Uniting Church minister, who takes me on a tour of the town. ‘The American presence defined the town. Now it has no definition,’ he says. ‘Woomera is in mourning.’ If I need evidence to support his claim, then

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I find it at the local snack bar, where we stop for a cappuccino and a chat with the proprietor Susan Rotherham. She had just farewelled her sister-in-law, who’d left Woomera after twenty-nine years, to move to Darwin.‘People want to stay here,’ she says,‘but they just can’t get a job.’ I ask about the detention centre. Isn’t that providing work? ‘We were told it was going to boost the town,’ she replies,‘but so far it hasn’t done that.’ In fact, some locals are working in the administration section of the camp, others are working in the kitchen and tradespeople are getting plenty of jobs in construction.The local supermarket is doing OK too, selling cigarettes, biscuits, drinks and other goods to the detainees via a weekly order service.The detainees pay for the goods with money that they brought with them to Australia, or with money earnt working in the camp. The pay is low and the prices high. A former detainee who worked five-and-a-half hours a day in the detention centre kitchen said she earned credits of $30 per week. She said a one-litre bottle of softdrink cost $5, and a Mars bar cost $4. Susan Rotherham’s cafe is not sharing in this lucrative, if rather questionable trade. But her main gripe is that the detention centre guards, or officers, are flown in and out of Woomera on six-week turn-arounds. She claims that they earn $13,000 for a six-week stint (a claim I hear repeated by many others in Woomera), but says that very little of the money stays in the town.‘It’s an obscene waste of money,’ she says, and she wants to see the guards, and their families, stationed permanently in the town to help bring Woomera back to life. After all, it’s not as if Woomera is short of accommodation. Tom Atherton drives me past rows of vacant transportable houses, all for sale, and blocks of empty brick flats. He shows me the town’s three ovals, one with floodlights ‘as good as the MCG’, the swimming pool, the bowling alley, the community hospital and the miraculous green lawns of Breen Park. By the standards of rural Australia, Woomera is massively over-supplied with services. After the Americans left, the population plummeted. In October 1999 there were 1200 people; six months later, at the end of March 2000, just 325 and falling. Of course, the exotic new residents brought involuntarily to Woomera West were not included in this head count.Tom, who left Woomera soon after my visit, had sadly watched his own congregation shrink from seventy to seven.At least the establishment of the detention centre down the road provided a new focus for the final months of his ministry. It was early November 1999, the start of the fierce South Australian summer, and five months before my visit, when the government announced that four hundred ‘illegal immigrants’ would be detained at Woomera West. They were to be housed in former army barracks, which were, according to Mr Ruddock, ‘not thought appropriate for

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air-conditioning’. He described them as having ‘flow-through ventilation’. Tom Atherton was concerned. Woomera is a town where temperatures can soar into the high forties, where even the local boarding-kennels are air-conditioned. Together with the local priest, Father Jim Monaghan,Tom went on television and, in his own words, ‘squealed about the air-con’. The public response was immediate and vitriolic: twenty-five phone calls and an equal number of letters, almost all of them hostile. He was called ‘a dickhead’ and told to ‘fill his pews and mind his own business’.According to some of his callers, the ‘invaders’ from the Middle East would ‘jump the fence and breed like rabbits’. Undaunted, Tom agreed to speak about the issue on the John Laws program. He fielded more abusive calls, and weathered Laws’s own scorn.‘If you’re so worried about it, why don’t you pay for the air conditioners yourself,’ Laws said. ‘Put your money where your mouth is.’ ‘I wasn’t quick enough,’ says Tom, ruefully adding that he should have said something in response. Tom Atherton is no firebrand.You don’t send a rabble-rouser to be Uniting Church minister in a defence town like Woomera.He is loquacious, but his views are considered. He has a thoughtful, inquiring manner that betrays his academic training.Tom was badly burned by his media experience, but he continued to speak out about conditions in the detention centre. By the time we meet in April he has realised that airconditioning was the wrong issue to focus on. Now, four months after the Woomera detention centre opened, his concern is less for the detainees’ physical wellbeing than for their mental and spiritual health. The mood of the detainees swings from ‘excited and excitable’ to ‘flat and frustrated’, he tells me.‘Up and down, and looking for signs in your eyes of help. It’s a classic sign of depression.That is their condition,’ he says. ‘To slap them in the clink in this environment is, I think, a touch inhumane.’ Tom Atherton gained some insight into the wellbeing of the detainees because, occasionally at least, he was allowed a glimpse behind the barbed wire. Every second Monday Tom and his Catholic counterpart, Father Jim Monaghan, held a joint worship for non-Muslims. (Islamic observances were conducted by clerics among the detainees.) Around 150 people attended the service. Most were not actually Christians at all, but followers of the Gnostic Mandaean sect from southern Iraq, a sect which was traditionally hostile to Christianity.The prophet of the Mandaeans is John the Baptist and their liturgy is in ancient Aramaic, the language of Christ himself. They are known in Iraq as ‘Subbi’ or ‘baptisers’, because ritual immersion is a key feature of their religious practice. It is a rite which cannot be observed in the detention centre.

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The worship service would begin with a simple song, jointly sung, in English. Then Father Jim would read a lection from the Old Testament and Tom would give a homily, with one member of the congregation providing simultaneous translation into Arabic. Tom tried to identify with the situation of the detainees:‘My themes have been Jesus the refugee, or Abraham the Iraqi.These guys are in prison and there is a long history of Jewish and Christian people being in prison and of having to go to a foreign country. There are many Old Testament heroes like Abraham or Jesus himself, who had to flee a country, or go to another one, unknown and insecure.’ A couple of guards would sit in on the worship, and word got back to Tom that his homilies were regarded as too political. ‘It is not just political, it is theological,’ he retorts.‘God identifies with the depressed, the under-privileged and the poor, the wretched of the earth — and they are in that category. So we love them and God loves them; it is the fundamental Christian gospel.’ The ecumenical service may not seem entirely appropriate for members of a sect that officially regards Jesus as an apostate, but Tom says the response was very positive. ‘You can tell by their eyes, you know.Their eyes light up and of course they sense that this guy has an affection for them.They seize on the potential helpers, as we all would, caught in prison or in detention.’ Father Jim Monaghan agrees: ‘I mean it is not that we’ve got anything terribly flash to offer, but we’d be the only visitors that they would have that aren’t there in some official capacity. And so we have no particular axe to grind or whatever, and so they can relax a bit with us. It is a social event because we go in with some simple little songs in English that are a bit bouncy and happy. And as everybody’s energy runs out with trying to translate everything, then we just kind of devolve into sitting down and eating a pile of cakes and lollies and things like that.’ Children made up one-third of the non-Muslim congregation.Tom Atherton engaged them by trying out his limited Arabic:‘Oh dear God, my Arabic’s pathetic,’ he says.‘How old is this child, I ask. I can say five but I can’t say six, so they follow me around trying to correct my Arabic. They feel empowered because I am struggling with their language, rather than be disempowered because they are struggling with my language.’ Both Tom and Jim believed that, at the very least, the children should be allowed to leave the detention centre for outings, to make use of Woomera’s vastly under-utilised facilities: ‘It’s just such a waste of resources that those things are not used and it is so cruel to keep children cooped up like that,’ says the priest. ‘The security issue would be minimal, because the children are not going to run away, they’re not

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going to leave without their parents.You could hold the parents hostage in the camp, against the return of the children, if you wanted to be as bloody-minded as that. But why not let the whole family group come out and have a picnic or something, or why not let the kids come out and play on an oval.’ When I met Jim and Tom, in April 2000, their concern for the welfare of the detainees had just escalated. For the previous two Mondays they had not been allowed into the detention centre.They were told to suspend their worship visits because Shiah Muslims in the camp were preparing to celebrate the tenth day of the month of Muharram, which commemorates the martyrdom of Imam Husayn, the emotional highpoint of their religious calendar. The two clerics found it unfair for minority groups to be prevented from celebrating their faith because a more dominant religious community was preparing for a festival, and wondered whether the Shiah feast-day is the only reason for their exclusion from the camp. DIMIA is reluctant to have independent observers monitor conditions in its detention centres, particularly when things are tense. However, as Tom and Jim point out, external visitors provide some diversion for the detainees.The chance to speak to a neutral outsider is a way to let off steam, to gain perspective and to counter the cauldron effect of extended detention. Proof that the atmosphere in the camp is stretched to breaking point comes on the night of Monday, 10 April.There is a disturbance, a fence is pushed over and two detainees escape. The men miraculously make it as far as Port Augusta, 170 km south of Woomera, but are arrested when they ask a service-station attendant to change US dollars and call a taxi. The cause of the disturbance at the camp, and the details of exactly what happened, remain sketchy. According to an Immigration department spokeswoman, ‘the violent behaviour of a large number of detainees … resulted in significant damage to Commonwealth property’. Certainly, the situation was serious enough for detention centre authorities to call out the local fire-brigade — and not for a fire. Lynton Stephens was the doctor at Woomera hospital at the time. When he saw the fire-truck heading up to the camp, he naturally made some calls to find out what was going on. According to the doctor, the truck was parked next to the detention centre fence, its lights flashing and siren blaring, with an officer sitting ready at the water cannon. Lynton Stephens understands that this was meant primarily as a form of intimidation, to deter the detainees from approaching the fence, but that if push had come to shove, the water cannon would have been used — if, for example, a group of detainees had attempted to scale the fence and breach the roll of razor wire that runs along the top.

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According to other sources in the town, the fire-truck had also been called out to the detention centre in similar circumstances on at least one prior occasion. Dr Stephens was deeply concerned about the use of the fire-truck as a form of crowd control because Woomera Emergency Services also run the local ambulance. The same officers perform both tasks. So, if water cannon were used, then an emergency services officer could find himself squirting detainees off the fence at one moment, and rushing back to pick up the injured in an ambulance straight after. When I asked the Woomera Area Administrator, Joe Van Homelen, about the incident, he referred me to ADI Ltd, the now-privatised corporation formerly known as Australian Defence Industries, which runs the Woomera Emergency Services on a commercial basis. A company official at ADI referred me back to Joe Van Homelen, saying nothing happens without the Area Administrator’s knowledge. Both men confirmed that the truck had been called out to the detention centre, but refused to discuss the circumstances in which the call-out had occurred. Dr Stephens’s concerns did not end with the fire-truck. When the detention centre opened, he agreed to provide medical services to the detainees. It was a lucrative adjunct to his job at the hospital, which, with the declining town population, no longer kept him at full stretch. But Dr Stephens became concerned at the way the camp clinic was set up. He believed nurses were getting out of their depth and carrying out procedures that would ordinarily require greater supervision. Dr Stephens cited the use of the sedative midazolam, given intravenously to calm a detainee who was extremely agitated. Dr Stephens says that midazolam is a strong respiratory suppressant that can slow breathing and lower blood pressure to dangerous levels. He says that to administer it intravenously requires greater monitoring than was possible in the detention centre clinic. In any business it is essential to minimise costs and ACM runs the Woomera detention centre on a commercial basis. In simple terms, the company will turn a profit only if the cost of running the camp is less than the price the government pays to ACM for the service of keeping people locked up, fed and healthy. Dr Stephens believes that in the medical arena this creates a conflict of interest. Although he was never aware of any policy directives to limit or cap medical treatment, he did run up against some obstacles to routine practice. For example, Dr Stephens attended one detainee who was suffering from painful gastric reflux.The patient had already been treated with the standard medication Zantac, but had not responded. So Dr Stephens wrote out a script for a more expensive drug called Omeprazole, a more powerful medication used to treat reflux oesophagitus and ulcers.Two weeks later, the patient presented once again and the symptoms were undiminished.

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Upon inquiry, Dr Stephens discovered that his prescription had never been filled. He learnt that a sister in the clinic had torn up the script and thrown it in the bin, apparently because the medication was too expensive. The detainee eventually obtained his medication, but suffered two weeks of needless discomfort in the meantime. In mid-February 2000 Lynton Stephens chose not to continue the work at the detention centre. He wrote to ACM, telling the company that, with 1400 inmates, the detention centre required the services of a full-time medical practitioner. Dr Stephens told me that the medical issues in the camp were complicated by the fact that many of the detainees were victims of severe torture and trauma; on several occasions during treatment sessions, Dr Stephens came across the scars of Taliban whips on the chests and backs of detainees from Afghanistan. I sought a response from ACM to Dr Stephens’s concerns, but my phone calls and emails went unanswered. As well as taking me on a tour of the town, Tom Atherton, the Uniting Church minister, was kind enough to lend me his car so that I could drive the few kilometres out to the detention centre. I would have walked, but I thought that trudging up the highway would make me a bit conspicuous in a town that seems to have more cars than people. I need not have worried, because I was destined to become conspicuous anyway. I drive as far as I am permitted.There is a gate across the road, with a large red stop-sign and a warning: ‘NO UNAUTHORISED ENTRY. BEYOND THIS POINT TRESPASSERS WILL BE PROSECUTED.’ The gate is more of a symbolic barrier than an effective one. To the left it abuts the property of the local earthmoving firm, Wagnitz Building Contractors. To the right it is attached to a cyclone fence, which stops abruptly just 15 metres beyond the bitumen. The truncated fence-line is forlorn against the vastness of the desert. It would be a simple matter to skirt the fence and walk on, to reach the detention centre proper. The only thing that stops me doing so is the presence of a uniformed guard sitting sentry in a pre-fab hut next to the gate. One side of the gate is open, allowing vehicles to trickle in and out; builders in utes and four-wheel drives, trucks delivering supplies; lawyers or immigration department officials in city sedans. Most just honk or wave at the guard and drive cheerfully on. It is evident from the guard’s interest in the number plate of Tom’s car, which she notes down assiduously, that I won’t be granted the same liberty. My official request for permission to visit the camp had already been rejected in Canberra. I park the car and walk away from the gate and around the back of the Wagnitz office. Here a semi-trailer is busy delivering a load of metal

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and a broad young bloke in a ’dozer is scooping up sand to mix concrete.Wagnitz is evidently doing well from the expansion of Woomera West. I ask the ’dozer driver for permission to walk across the property to get a closer look at the detention centre. He gives me a sunburnt grin and waves me forward, a security pass dangling from the belt loop of his jeans. ‘Don’t get too adventurous,’ he says, ‘or they’ll be out after you, quick smart.’ Behind Wagnitz lies a tangle of old junk: scrap-metal, second-hand timber, an abandoned school-desk sinking into the red sand. There is also a ramshackle collection of outhouses and bare dirt paddocks housing bored ponies. I feel like a skulking schoolboy as I make my way along the fence-line, but I also enjoy a boyish sensation of victory as I realise that I am now well past the gate on the road and into forbidden territory. I push forward as far as I dare, to get a closer look. The perimeter fence is at least 4 m high, the tips of the posts angled inwards and topped with a forbidding coil of barbed wire. One section of the fence is sagging; presumably at the point it was pushed over during the disturbances of 10 April, when the two detainees absconded. A banner in Persian is strung against the wire; red writing on yellow cloth — not a protest banner, I find out later, but a devotional exhortation to mark the tenth day of Muharram. Behind the fence I can see low-slung buildings. As the camp population has rocketed upwards, the original 1950s brick barracks with their ‘flow-through ventilation’ have been augmented by prefabricated, transportable buildings that are equipped with air-conditioning. There are also two rows of large, dark green canvas tents.The tents appear empty and I learn later that they are intended to accommodate the overflow, should there be a sudden influx of new arrivals. A cooling breeze takes the heat out of the day and keeps the sticky South Australian flies circulating. I am too far away to make contact with anyone, but I can catch a glimpse of life behind the wire. A child sitting in the shade, a woman carrying a blouse just washed, a young man with his head wrapped in a T-shirt as shelter against the sun.They are stick figures beneath an immense and glorious sky. The boss at Wagnitz is friendly but turns down the offer of a chat. I want to know what he is actually building out at Woomera West. He waves a fat contract in the air, which he’s just received from the construction company Thiess. ‘There’s lots of legal stuff in here and I haven’t read it yet,’ he says. I get the impression that had I arrived earlier, before that intimidating contract landed on his desk, then he might have been more forthcoming. That reluctance to talk about what goes on at Woomera West is shared by other contractors at the site. Most, like the guards, have signed

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secrecy clauses, and are required to report any media approaches to ACM management. Still, word filters out, in various ways. It is 2 pm in the afternoon when I walk past the offices of the Woomera Area Board, where the sign in the window says ‘Dog licences may be paid here’. Across the road a blue-and-white minibus pulls out of the community hospital. The driver is wearing the ACM uniform and the four or five passengers appear to hail from the Middle East. One wears a black Nike baseball cap and trails an arm out the window, a piece of paper folded carefully between two fingers.The man catches my eye, glances from me to the paper, which he waggles almost imperceptibly, then glances away at the ground. I give a quick nod and he lets the paper drop.The bus drives off, and, endeavouring to affect an air of nonchalance, I saunter over to retrieve his missive. It is an envelope; scrawled on the outside, back and front, are the words ‘S.O.S. Please help us’. Inside are two letters in broken English.The first, again under the heading S.O.S., contains the following request: 'HDU P\ IULHQG :H DUH KRPOHVV LPLJUDQW·V WKDW ZH OLYH LQ :RRPHUD GHWHQWLRQ FHQWUH:HKDYHQRWKLQJVWROLYHDQGZHDUHLQEDGVLWXDWLRQSOHDVHFDOO81RIILFH IRUXV7KDQN\RXIRU\RXUNLQG

The second letter is in the same handwriting, and is more personal: 'HDUP\IULHQG,·P,UDQLDQKRPHOHVVLPLJUDQWP\QDPHLV$ DQGQRERG\NQRZ WKDW , KDYH DUULYHG WR$XVWUDOLD RU QRW SOHDVH FDOO P\ SKRQH QXPEHU LQ ,UDQ RQ KXPDQLW\WKDQN\RXIRU\RXUNLQGWKLVLVDELJKHOSIRUPH

There are two names and two Iranian phone-numbers at the bottom of the page. I was not alone in receiving this kind of plea from detainees at Woomera. Lawyers, migration agents, medical staff and others visiting the camp told tales of similar folded notes tucked discreetly into their palms, out of sight of the guards. Most were requests to contact relatives in the Middle East. Some recipients dared not fulfil the request, believing that it was a federal offence to do so. Others went ahead and made the phone calls, as I did. (The Iranian men who contacted me were eventually recognised as refugees and granted visas to stay in Australia, but only after spending almost a year in detention.) One such entreaty came from an Islamic cleric, or mufti. His request was carried out and the mufti’s family in the Middle East was alerted to his whereabouts after months of worry.They had had no news and feared the worst. The mufti was a big, austere man with a beard to match his position; a man of authority and stature amongst the Woomera detainees. When he learnt that a message had at last been transmitted to his family, the mufti initially tried to control his emotions. But months of suppressed anxiety were too much for him; deep

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guttural moans racked his body and his relief burst forth into tears. According to clause 11.1 of the Commonwealth’s Immigration Detention Standards, ‘Contact between detainees and their families, friends and the community is permitted and encouraged except when in separation detention. The contact is facilitated through detainee access to telephones, through regular visits and letters.’ Indeed, in Port Hedland detention centre in Western Australia, in Maribyrnong in Melbourne and in Villawood in Sydney, detainees have access to a pay-phone. By working in the kitchen, they can earn money to buy a phonecard, or else they can buy one with whatever money they had with them on arrival in Australia. After the hunger strike at Curtin, the camp there also has a pay-phone. In Woomera, after four-and-a-half months of operation, there was no public phone for the detainees to use.The explanation given for this was that Woomera West was still ‘a site under construction’. A spokesman from the minister’s office told me alternatives were being investigated, such as the use of mobile phones, until a fixed phone-line could be installed. As far as I could ascertain from other sources, there was no technical reason why a phone could not have been installed immediately. However, there is another obstacle to phone contact, and this is where the rider ‘except when in separation detention’ of clause 11.1 comes into play. It is DIMIA policy to hold new arrivals separate from detainees who have already passed through the primary stage of an application for political asylum. One reasonable justification for separation detention is that it allows new arrivals to be screened for infectious diseases, but this is a matter that can be resolved quickly.The other aim of separation detention is to prevent ‘coaching’. DIMIA believes that if new arrivals mix with longer-term residents, or are able to contact people outside the camp by telephone, then they will be ‘coached’ on their rights — rights of which they are not otherwise informed. For example, detainees may learn that they have the right to see a lawyer and to apply for refugee status. DIMIA also fears that they may be ‘coached’ on how to handle the interview section of the asylum process, an interview which can transform their official status from the damning classification of ‘illegal immigrant’ to the liberating status of ‘refugee’. Detention centres like Villawood and Port Hedland have different sections for different classes of detainee. Until mid-May 2000 Woomera still had only one combined area, which meant that all detainees were effectively being held in separation detention, regardless of how far their refugee application had progressed. DIMIA’s preoccupation with ‘coaching’ suggests that there is little official confidence in Australia’s much-vaunted refugee-determination procedures, or in the capacity of departmental delegates to distinguish

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between a genuine story of persecution and one quickly stitched together after a few quick words of advice. And, problematic as the department’s logic may be, the coaching issue does not explain why detainees could not even send out letters.The detention centre opened at the end of November 1999; but it was mid-March, another threeand-a-half months, before any mail from the detainees started passing through the Woomera post office.When I raised the issue of mail with the department, a spokesman told me: ‘There are no restrictions on detainees’ correspondence at any detention centre’. I pressed the matter and rephrased my question.‘Had there been any such restrictions in the past?’ I asked. The answer came back, also rephrased:‘DIMA’s communications policy in respect of detainees at all detention centres allows for them to send and receive mail.This policy has been in place for a considerable time and pre-dates the opening of Woomera.’ A fundamental question remains unanswered: if Commonwealth policy was fully implemented at Woomera, if detainees had the right to send out mail, and were informed of that right, then why were they surreptitiously pressing secret notes into the hands of visitors, or dropping them from the window of a mini-bus? ‘Some of the detainees have said to me that they feel lost,’ says the Reverend Tom Atherton.‘They have fallen off the planet and their relatives back home in Iraq, or wherever, might think that they are dead … because boats do sink.’ On the day that I travelled to Woomera, Mr Ruddock announced that up to 220 boat people had died while attempting the crossing from Java to Christmas Island, after their vessel went missing in monsoonal seas. Obviously, such news must cause acute distress to families back in Iraq or Iran, who know that their brother or son or granddaughter is attempting that same journey. Yet, at Woomera, the minister’s department was holding 1400 people incommunicado, and some of them had been in that situation for at least four months. ‘There’s the Red Cross for prisoners of war, there’s an ability for that basic information to get communicated,’ says the local priest, Father Jim Monaghan. ‘If you are a prisoner in an Australian jail, you are allowed to make a phone call, and these people, who have not actually committed a crime, and who certainly have not been charged with anything, are not allowed those ordinary, very basic human rights, which are rights, but which are being treated as privileges and withheld from them.’ The priest describes the Woomera detention centre as an ugly kind of environment: ‘It’s degrading, and if there was some family of mine locked up behind there, I’d be very angry, I reckon. I’d be militantly against it.As it is, even with these people who I don’t know from a bar of soap, it just looks wrong, it just looks how you would cage up stray animals or something like that.’

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Father Jim draws a parallel between the uncertainty experienced by the townsfolk of Woomera and that of the plight of the detainees up the road. As the Americans left and facilities closed down, rumours began to spring up. One concerned the fate of the bowling alley, with stories that it would be moved to Kalgoorlie, or Roxby Downs or Alice Springs. Finally, it was confirmed that the bowling alley would stay. But, says the priest, the rumours were debilitating to the community and give a suggestion of the much greater turmoil that must be in the hearts of the detainees:‘With very little information coming in to them, apart from scraps here and there, rumours, gossip, a few words from a guard and recalling what they might have heard in Indonesia on the journey or what the people-smugglers might have told them and their experience with the various layers of bureaucracy that they are meeting, it must be terribly draining, and internally it must lead to a real imbalance of emotions in people.’ In early June 2000 that ‘imbalance of emotions’ tipped off the scale. After three days of protests, around 500 detainees pushed down a perimeter fence and marched into town, carrying banners and chanting ‘freedom’. The men organised prayer-sessions in the car-park, while their children made a beeline for the playground. (A set of plastic play equipment had been donated to the detention centre but was still lying around unassembled.) There were some clashes during the initial break-out; three ACM officers were reported injured and several detainees claimed to have been beaten. Later, in the town centre another ACM guard was punched to the ground and kicked. Overall, though, the protest was disciplined and peaceful and the authorities also acted with restraint, waiting for the passion of events to run its course before negotiating a return to the detention centre. As the protest dragged on overnight, children and nursing mothers were fed and supplied with blankets against the cold.When the final back-down came the next day, the detainees managed to save face by insisting that they return to the camp via the local church. A pause in its quiet surrounds allowed them to maintain some dignity and to exert a degree of control over the humiliating process of their re-incarceration. According to sources in the town, the June protest coincided with a rumour in the camp that no one would be given a visa until after the Sydney Olympics.The story was baseless, but its spark fell on dry tinder. In six months of operation not a single person had been released from the Woomera camp. Detainees believed the Olympics rumour because it accorded with their distorted reality. They had no objective context against which to assess the validity of such information. In late May 2000 — six weeks after my visit, and six months after the camp opened — a pay-phone was installed at Woomera. Detainees with the money to buy a phonecard could at last make direct contact

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with their families overseas; visitors described long queues as detainees waited their turn to speak to anxious relatives. However, at first the payphone could only be used to make international calls. A Woomera detainee was not at liberty to call people in Australia, such as members of their own ethnic community, lawyers or, of course, journalists. Although they now had television in the camp, the detainees were only allowed to watch sport and movies, not news programs.There was still no access to newspapers nor to radio. Apart from the Olympics rumour, other events may also have contributed to the uncertainty in June. In mid-May construction was completed on a second stage at the detention centre. Detainees could now be divided into two groups: those who had entered the refugee-determination process, and those who had failed to cross that initial threshold and now faced removal from Australia. Initially, some 180 detainees were separated out, causing considerable distress in the camp. In one case a brother and sister found themselves on opposite sides of the wire. After the June protest I rang Father Jim Monaghan to get his perspective on events, but he said he could no longer speak to me about the situation in the detention centre. Since our meeting in Woomera in April, the Immigration department had made it clear that the priest was not exempt from the conditions that applied to other people going in and out of the camp for professional reasons: contact with the media was not appropriate. Shortly after the June break-out, the minister for Immigration, Philip Ruddock, paid a visit to Woomera. The camp was quickly spruced up in his honour; pot-plants were put out in front of the detention centre offices; the gravel was raked and wayward plastic bags were tidied away. A few weeks later the first Woomera detainees were released into the community. The minister denies that the releases were accelerated owing to the protest in the camp, but some lawyers who worked at Woomera are mystified as to why the process of refugee determination had been taking so long, particularly for clear-cut cases.There are claims of a deliberate go-slow; allegations that the long delays were meant to serve as an additional form of deterrence to future boat-arrivals. Given the cost of keeping people in detention, I find such theories hard to believe. The minister’s own explanation is that delays are caused by the difficulty of carrying out character checks, to ensure that the people about to be released do not pose a threat to society. As someone with detailed knowledge of the system explained to me, this means that people are held in detention, even after DIMIA is satisfied that they meet the Convention definition of a refugee, until they are given a security clearance by ASIO (the Australian Security Intelligence Organisation). ASIO — referred to euphemistically by DIMIA officials as ‘another

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organisation’ — was ill-equipped to deal with the sharp increase in applications for asylum and had been struggling to work through the backlog of checks. Since the Woomera asylum seekers were ignorant of this background, there is little doubt that the chain of events would have left them with the impression that dramatic protest was the only way to draw attention to their plight. From their perspective, the June demonstration drew a visit from the minister and was promptly followed by the release of some detainees. This might help explain what happened two months later, in late August 2000. < > ‘It just washes them away like rag dolls,’ said Dave Kirby, as he relayed the action to ABC Radio via mobile phone. Mr Kirby was standing on the roof of his Shell service station several hundred metres from the Woomera detention centre, describing how a determined group of detainees tried repeatedly to push their way through the fence, only to be forced back by the jet of water. ‘It blasts them away from the fence and they get back up again and come charging in.’ An Immigration department spokesman later confirmed to me that the ‘security forces’ who fired tear gas and sprayed water from the water cannon (or ‘fire hoses’, as he put it) were not public officers in the service of the state; they were private guards employed by ACM, the commercial company that runs the detention centre. The ACM guards were backed up by South Australian police and by members of the federal government security agency, Australian Protective Service. In all, some 300 officers were deployed to contain the eighty or so rioters.The government said that the rioters converted fenceposts into spears and clubs, and fired stones at the guards with home-made slingshots. It said thirty-two security guards were injured. According to the Australian, ‘when the guards themselves read this figure in the press … they chortled at the number and official description of “soft tissue injuries”’. The Immigration department later allowed journalists to inspect and photograph six buildings that were torched during the unrest, but no injured guards were made available for interview.The trouble began on a Saturday night, when guards used tear gas to assert control over detainees throwing stones, but it was Monday morning before journalists got wind of the story and rushed to Woomera. Dave Kirby’s roof was about as close as they could get to the action. The scenes at Woomera were ugly, and did great damage to the reputation of asylum seekers and refugees. Subsequent riots there, and at other detention centres, have reinforced popular perceptions that people who come to this country uninvited are dangerous criminal

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elements who pose a threat to the peace and security of Australian society. If they riot and burn down buildings, the reasoning goes, then they are not the sort of people we want in this country.The riots are taken as proof of why mandatory detention is necessary. An alternative view is that the frequency of violence in Australia’s detention centres shows that the system itself is seriously flawed. The recent statistical record shows that the majority of asylum seekers who enter Australia’s detention system will ultimately be recognised as refugees under the 1951 Convention and released into the community after detailed background and character checks carried out by federal government agencies, including ASIO. In other words, most people passing through Australia’s detention centres are fleeing persecution and most are of good character.Those involved in acts of violence are usually young men but there are also women and children locked up in the detention centres.This means that women and children are being placed in a situation where, on the basis of recent experience, it can be predicted that violence is likely to break out. A situation where — if the Immigration department is to be believed — some detainees are stockpiling caches of weapons. A situation of considerable risk and great stress. Nine hundred children passed through Australia’s detention centres in the year 2000.Thirty of them were detained for more than a year. The great majority of the 732 people held at Woomera at the time of the first riot in August 2000 kept well away from the violence. The detainees were a mix of nationalities including Iraqis, Iranians, Afghans, Kurds, Palestinians and Pakistanis.There were Shiah and Sunni Muslims, Christians and members of minority Gnostic sects.There were perhaps as many as one hundred children in the camp, and some people had been held at Woomera continuously since the centre opened nine months earlier. There are known to have been incidents of rape in the camp and some detainees carry a burden of extreme personal trauma, due to torture, incarceration or other abuses in their homeland. The minister for Immigration, Mr Ruddock, suggested that the unrest could only have been provoked from outside. He blamed ‘wellmeaning’ groups like the Refugee Council of Australia for sparking the violence, accusing them of encouraging detainees to protest in the hope of obtaining a better deal from the government. It is hard to see how the Refugee Council might have incited such activity, given that the detainees had been kept in virtual isolation from the outside world, without access to newspapers, radio or television. In the weeks immediately preceding the riot, hundreds of people had been released from Woomera after being officially recognised as refugees. The minister suggested that the ringleaders were people who had failed to jump that hurdle and now faced imminent removal from Australia. It is not hard to imagine the build-up of tension as some detainees walked

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free, while others received rejection notices. However, at the time of the riot, only a handful of people had actually exhausted their appeal rights and been finally refused refugee status. Largely overlooked in the discussion of the Woomera violence was the existence of another larger group of around sixty detainees; they, arguably, had greater reason to feel aggrieved because they had been excluded from the process of seeking asylum altogether. These were people ‘screened out’ at the compliance interview conducted shortly after they stepped off a boat onto Australian soil. It was determined that they ‘had not sought to engage Australia’s protection obligations’ because they had not mentioned the words ‘refugee’ or ‘asylum’, or indicated any serious fear of returning to their homeland in their first contact with Australian officials. A mother may have said, for example, that she came to Australia ‘for the sake of her children’.That comment would not be interpreted as a call for Australia to consider her a refugee. She would not be informed of her right to apply for refugee status, nor of her right to see a lawyer. The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the United Nations General Assembly in 1988, states (in Principle 13):‘Any person shall at the moment of arrest and at the commencement of detention or imprisonment, or promptly thereafter, be provided by the authority responsible for his arrest, detention or imprisonment, respectively with information on and an explanation of his rights and how to avail himself of such rights’.The Body of Principles goes on to say (in Principle 17) that a detainee is entitled to legal counsel and ‘shall be informed of his right by the competent authority promptly after his arrest’. Unfortunately, these international principles do not find watertight backing in Australia’s Migration Act. In fact, Section 193 of the Act effectively removes any obligation on an officer of the Commonwealth to inform a detainee of his or her legal rights, if that detainee has not successfully cleared immigration. Boat people seeking asylum fall into this category and since late 1994 it has become routine departmental practice not to advise them of their right to see a lawyer or of their right to apply for refugee status. Those people in Woomera who were ‘screened out’ at the first hurdle had watched other detainees receive professional advice, had seen them lodge formal applications for protection visas and heard about their interviews with Immigration department officials. The ‘screened out’ detainees had no real understanding of why they were being refused the same opportunity and in the weeks before the riot some of them became frantic and despairing. It is quite possible that this was a primary cause of the violence at Woomera in August 2000. It has been documented by ABC TV’s ‘Lateline’ that a similar situation was the spark for violence that broke out at the Curtin

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detention centre almost one year later on 1 June 2001. An Immigration department press release said the disturbance involved a group of about fifty people who had been told that they had ‘no legal basis on which to remain in Australia’. What the press release did not say was that these fifty people were Hazaras from Afghanistan, members of an ethnic group known to suffer intense persecution by the ruling Taliban militia. Nor did it reveal that the claims for refugee status by this group had not been formally assessed — like the inmates in Woomera, they had been ruled out of the system altogether after a cursory on-arrival interview, when it was deemed that they were not seeking to engage Australia’s protection obligation under the 1951 Refugee Convention.The Hazaras had been held in separation detention for up to three months, without access to telephone, television or radio.Their repeated requests to see a lawyer had produced no results, except taunting from guards who told them they would first have to find the money to pay for one. The Hazaras went on a hunger strike and after several days a group of ten men who continued to refuse food were moved to an isolation block.There they began bashing their heads against the walls and slashing themselves. When one of the Hazara men collapsed, his friends mistakenly believed that he had died, and the unrest escalated into a riot. The Hazara men were later admitted into the refugee-determination process, found to be refugees and given temporary protection visas to stay in Australia. In late May 2001, after five major disturbances at Port Hedland and Curtin in as many months, the Secretary of the Immigration department, Bill Farmer, told a Senate committee that the population of Australia’s detention centres was becoming ‘increasingly noncompliant’. He suggested that the escalating violence in the centres reflected the fact that there was a growing proportion of detainees who had had their applications for refugee status rejected. Mr Farmer said that around one in three detainees were now in this category. In theory, these ‘failed’ asylum seekers are awaiting removal from Australia; in practice, many of them face indefinite detention because there is nowhere for Australia to send them. Australia has agreements with some countries, such as China, to return nationals who arrive here without authorisation, but such agreements are largely lacking in the Middle East. Australia has no diplomatic ties with Iraq and so cannot return people there. It is very difficult to find countries willing to accept the return of displaced Palestinians. (The only country to which Australia returned Palestinians between July 1999 and April 2002 was Syria.) Until the fall of the Taliban it was impossible to conceive of returning people to Afghanistan. Iran will only accept the return of people who depart Australia voluntarily.

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Of the 1550 people in immigration detention in Australia in April 2002, one had been recognised as a refugee and was awaiting release into the community. The rest could be divided into three broad categories. The first group (444 detainees) had never sought asylum (and were presumably ‘overstayers’ who had failed to leave Australia after their visas expired). The second group (589 detainees) were in the process of applying for refugee status (including court appeals). The final group (516 people) were ‘failed’ asylum seekers awaiting removal from Australia.These detainees had either been rejected at all levels of the refugee-determination process, or had been ‘screened out’ of the process on arrival. The majority of these detainees (334 people) had been in detention for at least one year. Most of these ‘lifers’ (as they are disparagingly called by some detention-centre officers) were Afghans, Iraqis, Iranians and Palestinians. Among them were nine people who had been locked up for more than three years. It is hardly surprising that some of these detainees may feel — in Mr Farmer’s words — that ‘they have nothing to lose’. While Australian diplomats and immigration officials try to twist the arms of foreign governments, hundreds of people face indefinite detention. Their only ‘crime’ is that their claim for refugee status was not strong enough. This does not mean that they sought to abuse the system (although some abuse no doubt occurs). For most asylum seekers the difference between success and failure is a matter of degree.As Guy Goodwin-Gill, professor of International Refugee Law at Oxford University, told me in an interview, amongst those who fail to qualify as refugees under the 1951 Convention, ‘we do often find a very significant number who have valid reasons, other valid reasons, for not at present being required to return to their countries’. Under most European systems, such people are allowed to remain in the host country, although not necessarily with the same entitlements as a Convention refugee. Under Australia’s all-or-nothing system they risk being locked up indefinitely, unless the minister for Immigration chooses to use his discretion to grant them a visa. To acknowledge the conditions that may give rise to violence in the detention centres is not to excuse arson, riots and attacks on staff. Detainees who commit criminal acts should be prosecuted. Legal proceedings can also help to lift the veil of secrecy that surrounds the detention centres, clarifying what took place and why detainees were moved to violence. We know, for example, that violence in Port Hedland on 11 May 2001 was sparked when an Iranian teenager resisted ACM officers who were attempting to move him, along with four men, to the police lockup.What happened next is disputed. According to one account, baton-wielding guards beat the Iranian youth, even though he was handcuffed. The minister’s office denies this and says

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that the riot began because ‘someone had started screaming that officers were beating them’ — in other words, a deliberate false alarm. It’s hard to believe that guards would beat a handcuffed detainee. But we know that this is exactly what happened just a few months earlier, in January 2001, when an officer twice beat a detainee with a baton on the arms, legs and body. During the first attack the detainee was held by other guards; during the second attack he was handcuffed on a bed. The officer was the centre’s operations manager, effectively second-incharge at Port Hedland.After pleading guilty to the attack, he was given a suspended sentence by the South Hedland Magistrates Court. This bashing occurred directly before a riot at Port Hedland on 21 January and was probably the catalyst for that unrest. After the riot the minister called for greater powers for detention-centre officers. He wanted to make it easier to use sedatives — or chemical restraints — to control threatening behaviour by detainees and he wanted to give ACM officers the power to conduct strip searches, including searches of children as young as ten years of age. After some amendment, this measure was passed through parliament with the support of the opposition Labor Party. It is a disturbing sequence of events. An officer brutally bashes a detainee, other detainees riot and the minister’s solution is to give the officers even more power. If any of Australia’s correctional institutions were to have such an appalling record of violence it would be seen as cause for a judicial inquiry to take place into the operation of the prison system. As Professor Richard Harding, the inspector of Custodial Services in Western Australia commented on ABC TV’s ‘Lateline’ program, if a riot breaks out in a closed institution ‘it is always because the bulk of the population find what is going on unacceptable’. If the conditions in the immigration detention centres were replicated in Australia’s jails, he said, ‘they would become ungovernable’. < > One year after my visit to Woomera, the construction program that had kept Wagnitz Building Contractors so busy was completed, and the facility was equipped to incarcerate up to 2000 people as Australia’s premier immigration detention centre. It was divided by internal fences into different compounds, called Oscar, India, November, Sierra and Mike, so that new arrivals could be kept apart from detainees whose applications for refugee status were in progress, and so that detainees who were regarded as difficult to manage could be separated out.The Immigration department spent $20 million on the capital works, including $1.7 million to upgrade the perimeter fence that was pushed over in the June 2000 protest. The cyclone-mesh, 4 m in height and

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topped with barbed wire, was augmented with a much more solid, and even more forbidding barrier, made from closely spaced steel palisades. In addition to the added security, some improvements were made to camp life. Radios confiscated from detainees upon their arrival were given back, and from October 2000 daily newspapers were delivered to the camp for the detainees (although deliveries were halted again whenever there was any trouble). It became possible to make local calls from the pay-phone (as long as you had the money to purchase a card to operate the phone). A better equipped medical centre was opened. It had a first-aid area with three beds and two separate consulting rooms.The centre was staffed with general and psychiatric nurses, psychologists and medical practitioners. The doctors worked Monday to Friday and a doctor was on call overnight and throughout the weekend. Nurses were rostered to work day and night shifts so that the medical centre was always attended by at least one nurse. Psychologists’ services were provided during the day. Belatedly, DIMA and ACM also took up the suggestion made months earlier by the Reverend Tom Atherton and Father Jim Monaghan, and organised excursions into Woomera township for children and adults to visit the swimming pool. On weekdays children were also given the opportunity to leave the camp in the mornings to attend classes at Woomera’s disused Catholic primary school (although the right to schooling would be withheld if a child was perceived to be misbehaving in the detention centre). Despite the improvements Woomera could not throw off its reputation as a ‘hell-hole’ and the centre continued to be plagued by outbreaks of unrest, hunger strikes, suicide attempts and acts of self-harm. Psychologist Lyn Bender went to work at Woomera in early March 2002. She had responded to an advertisement inviting expressions of interest to work in the detention centres.Within a week of putting her CV in the mail, she was called by ACM to ask if she could start at Woomera immediately. Lyn Bender was amazed to be offered the work without any kind of interview, not even questions over the telephone. ‘It seems a pretty strange way to hire staff for such a stressful and unusual job,’ she says. On the day she arrived, the first thing Lyn Bender saw was around fifteen people lying in shallow graves that they had cut from the rockhard ground. Some had asked their fellow detainees to ‘bury’ them by shovelling dirt into the graves until only their faces were left exposed and some ended up in the medical centre suffering from dehydration after lying all day in the hot sun.The protesters were mostly Iraqis.They had made signs saying things like ‘If you are going to kill us, then let us die!’,‘Try to think of our position’, or simply ‘Help us please!’ Some of the protesters were on hunger strike and some drank shampoo. Some

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slept in their graves overnight. Other hunger-striking detainees camped out near by, constructing makeshift shelters from blankets. Lyn Bender was appalled. ‘I didn’t see it as a staged thing,’ she says. ‘It was just so confronting.’ Psychiatric nurse Dr Glenda Koutroulis had already been employed at Woomera for about a week. She says it was ‘chilling’ to watch the men at work and then realise that they were digging graves. She saw the protest as a symbolic expression of the way the men felt. ‘They would often say to me that they were dead in Woomera,’ she says. ‘They would often say to me “We would be better off in our own country where death would be quicker. Here it is like torture, it goes on and on and on and on.”’ Lyn Bender has worked as a registered psychologist since 1990 and has a master’s degree in Education, with a major in counselling. She spent eleven years working for the Melbourne Lifeline service, the last four as manager. Dr Glenda Koutroulis is a psychiatric nurse who has a doctorate in sociology. She has been working in the medical system for thirty years. Nothing either woman had done previously in their professional lives prepared them for Woomera. A few days into the job, Lyn Bender was confronted by a man with a razor threatening to cut his throat. One of Dr Koutroulis’s first experiences was to have a group of boys flock around her with stones and pieces of glass in their hands. ‘They were saying “Miss! Miss! We cut ourselves! We cut ourselves! Cutting good! Cutting very good! We get visa!”’ She says she had the impression she was working in a giant intensive-care unit.‘I have never come across a confined population of people who exhibit such distress,’ she says. ‘There were people with their heads hung low behind the wire.There was no range of expression, there was no animation.’ After working at Woomera both women felt compelled to speak out, despite the secrecy provisions in their contracts with ACM. Interviewed independently of one another, they gave consistent accounts of the extent of the problems. Both women say that during the six weeks they worked at Woomera there were daily incidents of self-harm. On some days extra mattresses had to be put on the floor of the clinic to treat all the wounded. During the same six-week period they estimate that there were around fifteen suicide attempts serious enough to require the detainee be taken to hospital for a medical examination. Hanging was most common, although there were also overdoses and wrist-slashing. In one case during a riot at the centre, a woman who had been experiencing bouts of psychosis walked into a burning building. In another incident a young boy deliberately drank shampoo. Sometimes suicide attempts and acts of self-harm were not taken seriously by the guards, and detainees were not always referred to the medical centre nurse or to the psychologist for attention. ‘I can’t think of any other place where I have worked where attempting to

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hang yourself would not be considered a serious suicide attempt,’ says Dr Koutroulis.To treat the suicide attempts as ‘sham’, she says, displays a crass approach to the problem that diminishes and demeans how people are feeling. ‘It is just another component of the disrespect that the people felt there.’ The most fundamental problem when Lyn Bender and Glenda Koutroulis started at Woomera was not a shortage of medical staff. At that time five hundred detainees were attended by two doctors, three psychiatric nurses, three general nurses and two psychologists, although the number of health personnel would vary over time according to how many people were in detention. Most medical professionals were employed on short-term contracts, so that staffing could be cut back quickly if the number of detainees went down, or increased quickly if there was an upsurge in numbers, or in the level of protests and disturbances. Regardless of the size of the medical team, Lyn Bender says, it could not adequately address the detainees’ problems because they were confronting symptoms of psychological distress caused by the detention itself. Lyn Bender says a visit to the clinic to complain about a headache, a stomach ache or a sore foot was the only legitimate way in which detainees could seek some sort of care. Not that she thinks that patients were malingering. She believes that most genuinely experienced pain produced ‘by the stress, the constriction, the boredom, the uncertainty, the fear, the trauma’. She says the detainees would come into the medical centre because they could not stand it in the compound any more. When they could not stand the medical centre anymore they would go back. Then they might commit an act of self-harm, which led to them being separated out and put in an observation room. When they could not stand the observation room any more, they would return to the compound once again. ‘It was like birds flapping against a cage,’ she says. ‘No place was any good, but they just had to keep moving.’ Dr Koutroulis cites the case of one disturbed man who was comforted by being in the medical centre, but who was not allowed to stay there. She says he would collapse in the compound in a screaming fit, having lost all sense of where he was. Fellow detainees or ACM officers would bring him to the medical centre for treatment and he would settle down. After an hour or two he would be taken back to the compound and he would collapse screaming once again. Dr Koutroulis says this would happen ‘over and over and over again, three or four times a day’. Many detainees were prescribed anti-depressants and sleeping tablets. Some had become heavily reliant on the pain-killer Panadeine Forte, which contains the opiate codeine. Staff in the medical centre would joke about them getting their daily fix. Dr Koutroulis says to view them as ‘addicts’ was misleading because it ignored the dynamics

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of detention-centre life. She says that forced withdrawal in detention ‘could give rise to more risky and hurtful behaviours’ than the continued prescription of Panadeine Forte under medical supervision. Lyn Bender says that ACM was ‘very proud of the fact that there had never been a “successful” suicide at Woomera’. The company had deployed High Risk Assessment Teams, whose job was to keep watch on anyone who had committed or seriously threatened self-harm. Sometimes there were as many as sixty people on the high-risk watch list during Lyn Bender’s time at Woomera and there were never less than forty. In the most serious cases the detainee would be put in solitary ‘observation rooms’ and checked every two minutes. Detainees judged to be slightly less volatile would be checked every fifteen minutes, which would almost certainly involve being woken up at night by the beam of a torch and the squawk of an officer’s walky-talky. After that the level of observation might be reduced to once every thirty minutes, or once every one or two hours, depending on the risk assessment of the detainee in question. Lyn Bender says that the assessment teams did ‘foil the suicides’ but did not ‘reduce the behaviours’ associated with acts of self-harm. ‘The whole way of managing suicide was inappropriate and based on their [ACM’s] fear of liability, not on the good of the person.’ According to Dr Koutroulis, the word ‘prevention’ was not in the vocabulary at Woomera. One day she asked an officer for the name of a detainee who had attempted suicide.The officer replied ‘I don’t know. I don’t get that fucking close to them.’ Like many staff, the officer would simply call detainees by the immigration department code number given to them on arrival in Australia. Dr Koutroulis says the detainees ‘were always being herded and called by a number’ and eventually came to see themselves as animals and to see Woomera as a zoo. She witnessed medications being dispensed to detainees through the wire mesh of security fences so that nurses would not have to enter the compound. Dr Koutroulis describes it as the most degrading experience of her professional life. One detainee said to her,‘If you Australians think that I am an animal, then tell me that I am an animal so that I come to think of myself as an animal and don’t expect to be treated like a human’. The assessments of life in Woomera offered by Lyn Bender and Glenda Koutroulis are based on only six weeks’ experience working in the detention centre in March and April 2002 but the general thrust of their comments is supported by another psychologist with more extensive experience there. Harold Bilboe worked at Woomera for a total of fourteen months between September 2000 and January 2002. He says that long-term detention ‘raises serious clinical concerns’ because it results in the ‘traumatising’ of individuals in a way that could have a

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long-term psychological impact on both adults and children. Harold Bilboe was particularly alarmed by the case of a six-year-old Iranian boy called Shayan Badraie, who became the subject of national debate in the media in August 2001, after ABC TV’s ‘Four Corners’ program broadcast footage smuggled out of Villawood detention centre. The secretly recorded video pictures showed the boy lying listlessly in his parents’ arms while Shayan’s father Mohammad described his son’s condition. ‘Our child won’t drink water, he won’t eat and he doesn’t move for four or five days at a time. He’s very fearful and anxious and just sits in a corner not speaking.’ By the time the footage was recorded, Shayan and his family had already been in detention for seventeen months. Harold Bilboe had met the family when he first went to work at Woomera.‘That child was normal when he arrived at Woomera,’ he says. ‘He witnessed incidents of violence and self-harm and became more and more withdrawn.’ When the parents’ claim for refugee status was rejected at the Refugee Review Tribunal, the family was moved from the main compound into the Sierra compound, where self-harm and conflict were ‘a daily occurrence’. Harold Bilboe says Sierra was used to hold ‘high-risk’ and ‘difficult’ detainees and the Badraie family was the only family in the compound.At the time, the ratio of men to women in Sierra was about sixty to one. As a result women did not leave their rooms, even to eat meals. Harold Bilboe says it was ‘totally inappropriate’ for the family to be detained there. As Shayan’s contact with other children diminished and the general incidence of self-harm and violence around him increased, so the boy’s withdrawal accelerated. Harold Bilboe wrote a report to ACM (and copied to DIMA) urging that Shayan and his family be transferred elsewhere. There was no action. He wrote another report. Still there was no response. Two months later, after Harold Bilboe wrote a third report, the Badraie family was finally transferred to Villawood. The psychologist was surprised that no one in the new detention centre bothered to make contact with him to discuss the case or seek background information on Shayan’s condition.After the ‘Four Corners’ program went to air, the Immigration minister suggested that Shayan’s malaise was the result of pre-existing family problems. He was echoed by some media commentators, who hinted that Shayan’s parents had encouraged him to refuse food and drink as a way of getting the family out of detention. Harold Bilboe says it is outrageous to blame the parents in this way. Finally, in August 2002, after the Federal Court directed the Refugee Review Tribunal to reconsider the Badraie case, Shayan and his family were recognised as refugees and granted temporary protection visas to stay in Australia. Lyn Bender’s advocacy for her clients in Woomera did not endear her to ACM and two days before the end of her contract, she was asked

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to leave. Shortly before midnight, as she was about to knock off from what would be her last shift, a guard asked her to attend to a young man from Iran. He was just seventeen years old when he arrived at Woomera. Now he was an adult, having spent more than twelve months in detention. She took the young man to her office, and, as there were no interpreters available in the detention centre at that time of night, she dialled the Telephone Interpreter Service. As soon as they could communicate, the young man confronted her: ‘Don’t talk to me about hope or patience,’ he said.‘Don’t tell me to wait. I have been here a year and you are my eleventh psychologist.’ He reeled off a list of the anti-depressants and other medication that he was taking, and told her how deeply unhappy he was. ‘I am all on my own. I am the youngest adult in my compound. I have no one to talk to. I am persecuted in my own country and now I am persecuted here too. Why are you doing this? I can’t stand any more.’ The young man had already attempted suicide several times. He had jumped from the roof of a building. He had cut himself. He had drunk shampoo and he had been on a hunger strike. He said he would keep trying to kill himself because he had no hope. After listening for an hour, and acknowledging the truth of his statements, Lyn Bender managed to calm the young man down. But she parted from him with a heavy heart. ‘I felt really terrible because I was leaving,’ she says. ‘He was very much a motherless young kid and there was nothing I could say that would actually provide a bridge of support for him in the future.And I think that is appalling management of suicidal people.’ < > By early 2002 it was clear that the enormous sums of money ploughed into creating a purpose-built immigration detention centre at Woomera had been wasted. The Immigration minister, Philip Ruddock, announced that parts of the facility would be closed and its capacity reduced. The members of his own detention advisory group called on him publicly to shut it down altogether.The government had invested yet more money to construct another centre 200 km further south, at Baxter, near Port Augusta.With a capacity to detain 1200 people, Baxter is only slightly less barren than Woomera, although closer to services.The facility is divided into nine compounds, smaller than those at Woomera, which Mr Ruddock says will make it ‘more effective in distribution and management of detainees’. He also says that the environment ‘without razor wire’ would have ‘much more amenity associated with it’. What he did not say is that the razor wire would be replaced by an electric fence designed to give a non-lethal, but stunning jolt to anyone who tried to scale it.

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On the wall of the dining-room of Woomera’s Eldo Hotel, clashing violently with the electric blue carpet, is a huge patchwork quilt made by local schoolchildren.The quilt celebrates the history of Woomera. It shows black gibber stone against the sandhills and native animals around a waterhole; there is grey-blue saltbush and the brilliant red of the Sturt Desert Pea; there are the domes of the satellite base and its radar dishes, and the dramatic centrepiece — a three-dimensional black and silver rocket, 2 m long, with cloth flames spewing from its tail. I can’t help wondering how the quilt might one day be updated. How will the children of Woomera depict the detention centre up the road with its reputation for suicide attempts, self-mutilation, hunger strikes and riots?

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It was because she was in a hurry that Fatima decided to serve up plain boiled rice with dinner. She will not do it again. In her homeland Fatima would usually fry the rice in a little oil before cooking it and make it fragrant with spices. But that night she was late home from her studies, the kids were hungry and she was in a rush to get them fed. When she brought the steaming bowl to the table, the three children first stared in disbelief, and then burst into tears. For nine-and-a-half months at the detention centre, plain boiled rice had been standard fare at lunch and dinner. It symbolised the monotony of their lives in detention — their boredom, their complete lack of control, their absence of choice. When the children saw their mother put a bowl of plain white rice on the kitchen table, it brought fear and uncertainty welling back up to the surface and tears spilling down their cheeks. They laugh when they tell me this, but the story reveals wounds still tender. It is March 2000 and Fatima and her family have only been ‘outside’ for six months.We are sitting in the sparsely furnished loungeroom of their temporary home in a nondescript street in an industrial Melbourne suburb. They seem to be settling in well. The neighbours’ kids have been knocking on the door, asking Fatima’s children to come out and play, but she wants them to stay inside because it is nearly time to eat. Although our appointment had been arranged long before, my arrival has caught Fatima off-guard.We seem to have got our dates confused and she was not expecting me until the next day. She serves milky tea, intensely sweet and flavoured with cardamom, and apologises for not preparing a traditional meal as she had planned. Instead, Fatima insists on ordering (and paying for) a takeaway treat of pizza and coke. After the meal her two daughters play happily on the carpet, engrossed with their Barbie dolls, while Fatima’s son, the eldest, joins in our conversation.

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Ahmed is still at primary school, but he seems almost grown-up. He is acutely aware of his family’s precarious financial situation and talks about getting a part-time job as soon as he turns fifteen, so that he can contribute to the household income.Ahmed keeps a mindful eye on his little sisters and is attentive towards me as a guest, although initially suspicious about the purpose of my visit. Soon after we begin talking, he discreetly asks Fatima who I am and why I am asking so many questions. Fatima relays the question to me. I tell Ahmed about my plan to write a book about asylum seekers in Australia and that I want to build up a picture of life in detention, particularly as it affects children. My answer seems to allay his concerns and he begins to relax.‘Ahmed is the man of the family,’ jokes Fatima, in gentle praise of his protective attitude towards her. He beams and squirms in his chair with embarrassed pleasure. Ahmed says he wants to study to be a doctor, so that he can help find a cure for cancer. For most of the time in detention he could not even go to school. If his mother had not been so tenacious, Ahmed would have missed a whole year. In Maribyrnong detention centre, where Fatima was held, Ahmed was for a time the only child of primary school age and there were no primary classes on offer. Fatima asked if he could be enrolled outside the detention centre. She was rebuffed, even though a local school was willing to accept him as a pupil and even though she was willing to cover any associated costs from her own savings. Fatima was told that it was impossible for her son to attend an external school because he did not have a valid visa.At that point she might have given up but for some friendly advice from a sympathetic cleaner in the detention centre, who told her that school for her son was a right, not a privilege. This view is supported by the government’s own Immigration Detention Standards. Paragraph 9.4.1 states unequivocally that ‘social and educational programs appropriate to the child’s age and abilities are available to all children in detention’. Fatima pursued the school option and encountered fresh obstacles. First she was told that there was a problem with ensuring Ahmed’s safety, then it was the cost of the uniform, then the problem was with the extra resources required for a detention officer to escort him to and fro. Eventually, with the help of her lawyer and the intervention of the Human Rights and Equal Opportunity Commission, Fatima won the battle, and Ahmed got to go to school. By then he had already been in detention for six months. This was just one of Fatima’s many campaigns in detention; campaigns that, as a fluent English-speaker, she was better equipped to wage than most detainees. ‘At first,’ she says, ‘there were no toys, no pencils, no paper, nothing. Outside, there was just dead grass and one tree. There was no play equipment, not even a soccer ball. It was like leaving the children in the desert.’

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Neither was there any milk for the children.‘The only milk was the coffee milk,’ she tells me, indicating with two fingers on the bottom of a cup how much each person was allowed. By saving her own milk and the coffee milk to which the children were entitled, Fatima managed to prepare a bottle for her youngest, still a toddler, to go to sleep with each night. Other food for children, like cheese and fruit, were also scarce.‘Once a week we got an apple,’ says Fatima,‘and once a week we got a banana. One per person per week.’ Breakfast in the detention centre is served at 7:30 am, lunch at 12:30 pm and dinner at 5 pm.At 9:30 pm there is supper of tea or coffee with sweet biscuits, the culinary high-point of the day, according to Ahmed. ‘Everyone looked forward to the cookies,’ he says. ‘We were supposed to get two each but there were never enough.’ Sometimes one of Fatima’s children would be asleep, or simply not hungry, at the regular mealtime, and she would put something aside in the fridge for later on. Using money she had brought with her to Australia, Fatima also bought supplementary supplies of bread, milk, juice and peanut butter. She tried to avoid bringing these precious extras to the table at mealtimes because then she would feel compelled to share them with other detainees. However, getting to the kitchen out of hours to feed her children depended on the whim of the officer on duty. Again, as a fluent speaker of English, Fatima was in a better position than most other detainees. On one occasion a Somali woman wanted to get formula to settle her baby, who had woken up crying at midnight.The formula had been supplied by members of the Somali community outside the detention centre, but the guard on duty initially refused her access to the fridge. She made a fuss and he eventually relented, but only after checking for himself that the infant was actually crying.Two years after Fatima and her children had been released detention the same problems were identified at Woomera. Despite the clear statement in the Immigration Detention Standards that ‘the special needs of babies and young children are met’ (Paragraph 9.3.1), an investigation carried out for the State government of South Australia found that the provision of food was so regimented at Woomera that children under five could not be fed outside adult mealtimes. According to South Australia’s Social Justice minister, Stephanie Key, if children do not eat the adult food in the dining mess ‘then they just don’t eat’. The finding was disputed by the Immigration department and by John Hodges from the Immigration minister’s Independent Detention Advisory Group, who says that detainees at Woomera are able to keep food for children and babies in separate fridges near their sleeping quarters. Ahmed says that there was never enough food, that people in the detention centre were always hungry and that the quality of the food was poor.There is no objective evidence that immigration detainees in

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Australia are underfed, or that their diet is in any way nutritionally inadequate, yet Ahmed’s complaints are echoed by almost all former detainees that I have spoken to, regardless of whether they were held in Port Hedland, Curtin,Villawood or Maribyrnong. Meals are also one of the few ‘events’ that break up a detainee’s day, so it is hardly surprising that food becomes the focus of gripes and dissatisfaction. Fatima’s experience with rice indicates how difficult it is to cater to the tastes of the culturally diverse populations at the detention centres. Detainees from China prefer a short-grain rice that tends to clump together; they may object to the aroma and texture of Fatima’s preferred long-grain variety with its separate grains, even more so if the rice is flavoured with a spice like cardamom. A detainee from Angola or Croatia will have different tastes altogether. Giving detainees more control over their diets can ameliorate this problem. According to the Human Rights and Equal Opportunity Commission, the quality of food at Port Hedland improved dramatically in October 1998 when innovations by the catering manager allowed most detainees to eat meals cooked by a chosen member of their own cultural group.At the time there were just twenty-five people in a centre designed to hold more than 800. As detainee numbers began to climb again, variety was reduced, although in May 2000 detainees could still choose between four separate menus: halal, Asian, Indian or vegetarian. Mustafa, his wife and their three children were in detention at Port Hedland in 1999 as numbers began to swell with the arrival of new boats. ‘When we first arrived [in February], it looked OK,’ he recalls. ‘The detention centre was not too crowded. It looked new and we felt the staff were very kind.’ As the detention centre began to fill up, Mustafa says, pressure on the staff increased and their mood began to change. ‘It is very bad for them. Their temper is getting bad. They would say to us, “Why you run from your country? Why we are feeding you? Why don’t you speak English?”.’ Mustafa’s three boys were aged seven, five and four when they arrived in Port Hedland. By that stage the family had already spent more than eighteen months in international limbo, as ‘refugees in orbit’ looking for a safe place to land. Mustafa is from Algeria, but he had been working and studying in Saudi Arabia since 1993. He had remained there three years longer than his permit allowed because he was afraid to go back to his homeland. Government forces had killed his brother, and two other members of his politically active family had been imprisoned and tortured. In 1997, fearful of being forced back to Algeria by the Saudis under an accord agreed by the Arab League, and with no hope of obtaining a legitimate travel document, Mustafa bought false passports for his family and they tried to make their way to Canada. The ruse was detected in Singapore and he and the family

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were put in detention: Mustafa in one jail, his wife and the boys in another. They spent a year there while the Singapore authorities tried to work out what to do with them. Eventually, Mustafa came up with a solution, which they accepted. He organised, via a fellow detainee, to pay US$2000 to contacts in Bangkok to get another set of false passports sent to him in jail. Singaporean officials turned a blind eye, and, armed with fake Danish travel documents, Mustafa and his family were shoved across the border into Malaysia. They immediately took a train north to Thailand. The family then spent another six months holed up in a single room in Bangkok while Mustafa tried to organise tickets and visas to go somewhere else. He paid US$5200 to smugglers who arranged seats on a flight to Holland, but again the plan came to nothing. Check-in staff at the airport were suspicious and demanded that he produce further proof of his Danish identity, such as a driver’s licence or a credit card.When he failed to do so, they turned him away. Mustafa went back to the smugglers and asked for a refund.They refused and threatened to turn him over to the Thai police if he made trouble. Friends sent Mustafa the last of his savings from Saudi Arabia. He had just enough money to try again. This time the destination was Australia, but the smugglers told Mustafa he could not fly directly from Bangkok. ‘Everyone knows Bangkok is a transit point for Australia,’ he says. ‘The airport checks are very tough there.’ So Mustafa and his family flew back in the direction from which they had originally come a year-and-a-half earlier, west to Tanzania via the United Arab Emirates. Immigration officials in Tanzania immediately suspected that their passports were false and demanded US$1000 in bribes before they would let the family into the country. Mustafa bargained them down to $200. The family then got visas for Zambia and travelled on by train. From Zambia they went overland by bus to Zimbabwe, where Mustafa paid $90 for visas at the border. He chuckles in recounting this part of his ordeal because the inexperienced young border official was apparently convinced that Mustafa really was a rich Danish tourist, with plans to visit Victoria Falls and play golf. Harare is one of the few African cities with direct flights to Australia. Mustafa bought tickets on a Saturday morning so that the travel agent could not insist on checking his documents with the Australian High Commission or the Danish Embassy. The flight left on the following Monday. ‘When we landed in Australia it was really amazing,’ he says. ‘I had tried too many times. I did not believe that I could succeed. I thought the bad luck is following me everywhere. I thought when I try to land in Australia, the land will move beneath me so that the plane cannot touch down.’

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After arriving in Sydney, Mustafa and his family presented themselves at the border as refugees. They were initially detained at Villawood detention centre, where they met other Algerians, including other children.‘We felt happy, for one-and-a-half years my boys had not met any other children who spoke their own language. They had had no one to play with,’ says Mustafa.Two days later, his family was transferred to Port Hedland.‘I expected to be locked up for six months,’ he tells me.‘I thought in myself, better to expect the worst thing’. Even so, he underestimated. Detention in Port Hedland was ‘paradise’ compared to Singapore, according to Mustafa. Even so, it was very hard for the children:‘When they see some of the other families going out, like some Iraqi families who left after just twenty days in detention, it was very hard for them. In the end we tried to stop the children from seeing when other people left.The kids ask every day “when is our visa coming? when is our visa coming?” “Very soon”, I would say, “very soon.” One of my kids got hold a piece of paper with some writing on it and showed to other kids in the detention centre and said “See, this is my visa! I got my visa!”.’ Mustafa worked long hours cooking rice in the detention centre kitchen. ‘I started at 6 am and worked until 12 noon,’ he says. ‘Lifting heavy bags of rice, 25 kg each, carrying two at time, working in the hot steam. Always sweeping the floor. After lunch I would start again at 2 pm and work until 6 pm or 7 pm. I would finish at dinner time.’ Initially, Mustafa says, he was paid $10 per shift, or about $1 per hour. After a newspaper story drew attention to the low wages, the pay was increased to $15. Mustafa says the heavy lifting has left him with a bad back. Despite the conditions, however, the competition for the kitchen jobs was intense. ‘With 700 people in the detention centre, it was very tough to get a job,’ he explains.‘If you know the kitchen manager, they let you work and sometimes they give you respect because they know you have a family. I needed the money for the kids.They grow out of their clothes and need new ones. I also bought them sweets as a treat.’ If there was no work in the kitchen, Mustafa would try for other jobs, such as cutting the grass or weeding. Sometimes he would help his wife when she managed to get rostered for a week of toilet-cleaning duties, for which she would earn $5 per day. Mustafa says that musters were carried out at Port Hedland every few hours.The different sections of the camp would be closed off from one another and detainees would have to wait while the guards walked around to count the number of people in each area to make sure that no one was missing. At night the security checks were more intrusive. As a family, Mustafa and his wife and children were entitled to their own room, but this was no guarantee of privacy. ‘It was a very

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punishing time,’ Mustafa recalls. ‘Sometimes, when the guards come to check, they wake you up and you cannot control yourself. Some officers talk loudly on the two-way radio and wake the children.’ In Port Hedland checks are only carried out three times per night, unless there have been escapes or disturbances. In some detention centres, such as Villawood in Sydney and Maribyrnong in Melbourne, where Fatima was held, the Australasian Correctional Management (ACM) officers check the dormitories every hour. ‘The guards throw the door open and then slam it shut again with a bang,’ says Fatima. ‘They would have their two-way radios turned up loud and would shine a big flashlight into the room to count us. Sometimes they would shine it direct into your eyes. Every night they woke up the children.’ ‘Yes,’ says Richard, ‘many of my fellow officers are bastards to the detainees and treat them like dogs.’ He is an ACM officer who has worked for the company for more than two years. At the risk of losing his job, Richard agreed to answer my questions about life in the detention centres. Contact with the media is a clear breach of his contract. ‘Some officers are just extremely inconsiderate,’ he says. ‘Even if I turn my radio down, sometimes the officer I am with does not and they open doors loudly and shake their keys and so on.’ Richard explains it is sometimes necessary to shine a torch onto a detainee’s face if they are ‘under obs’ (that is, under observation) as a potential suicide risk or escapee. When someone is considered to be at risk of suicide, an officer needs to be completely sure that the detainee is all right. In the case of potential escapees the officer needs to confirm the exact identity of the person in the bed. ‘It’s rude but if anything was to happen and we mark the obs sheet as “OK”, then the consequences are high.’ Richard is mindful of the detainees’ welfare and the stress of their situation: ‘I really feel sorry for the long-term detainees who have to live in the appalling conditions day-in day-out, never knowing how long they will have to endure it.’ Other officers may disparagingly label Richard a ‘carebear’ but medical professionals who have worked in detention centres confirm Richard’s account of the attitudes of officers. Psychologist Lyn Bender says some officers ‘really tried’ to help detainees while others ‘operated out of a very strict military model, though not perhaps in an abusive way’.A few she describes as ‘sadistic’. Lyn Bender says ACM boasts that it provides detention-centre officers (they do not like to be called guards) with six weeks’ training, but she says people are being transferred from providing security in industries like mining, where people skills are a low priority, to a situation where people skills are paramount. The result was that some officers were ‘flailing around’ because they had ‘no idea of people’s distress or how to manage trauma’. The Australian Workers’ Union, which represents detention-centre officers, has also complained about inadequate

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training. After touring the Port Hedland detention centre and interviewing staff, the union’s director of Occupational Health and Safety, Yossi Berger, accused ACM of seeking to save money by skimping on training. ‘Fatigued, poorly trained, at times distressed and sometimes abused officers … are exploited by ACM and opportunistically managed,’ he wrote.‘It is a calculated, delinquent and offensive failure under the simple requirements of duty of care.’ < > Australia is not alone in detaining asylum seekers. Many countries routinely take people into custody for brief periods when they are first apprehended in order to carry out identity and health checks. Custody is also common for failed asylum-seekers who refuse to leave a country voluntarily. Nevertheless, the Australian policy of mandatory and indefinite detention for asylum seekers who cross the border without authorisation is a far more severe and inflexible regime than that imposed in countries with comparable political and legal systems. In Canada, for example, officers of the Immigration and Refugee Board have considerable discretion as to whether or not to resort to detention. An official guide to the Immigration and Refugee Protection Act 2001 says that detention may be imposed where officers have ‘reasonable grounds to believe’ that a person is likely to pose ‘a danger to the public’, that his or her entry to Canada is inadmissible ‘on grounds of security or of violating human or international rights’, that a person’s identity has not been established, or that a person will not turn up to interviews and hearings to determine their status. In the latter situation the Board’s Immigration Division can impose a bond or other reporting requirements as an alternative to detention. When detention is imposed, it must be reviewed by the Immigration Division within forty-eight hours, then again at least once during the next seven days, and again at least once during each subsequent thirty-day period. The guidelines affirm the principle that ‘a minor child shall be detained only as a measure of last resort’.The United States initially detains asylum seekers who arrive at airports or other immigration checkpoints without valid visas. People who lodge a claim for refugee status after being detected living illegally in the United States are also detained. However, around 40 per cent of asylum applicants are subsequently released to stay with friends or relatives while their claims are assessed. Asylum seekers in Britain also have a chance of being detained although, once again, it is not routine procedure. Detention can be used when authorities believe there is evidence that an asylum seeker will abscond, or when an asylum seeker has been refused refugee status and faces imminent removal from the country. There were 71,700

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applicants lodged for refugee status in the United Kingdom in 2001, but as of December that year only 1410 asylum seekers were in detention. The Blair government is committed to expanding detention capacity to 4000 places, and is keen to use detention to achieve its stepped-up target of removing ‘failed’ asylum seekers from the country at a rate of 30,000 per year. Human-rights groups are alarmed by the broad discretion granted to immigration officials to detain asylum seekers and the fact that their decisions are not subject to judicial scrutiny, given that, as in Australia, detention can continue indefinitely. Nevertheless, a system of mandatory detention comparable to Australia’s is unlikely. Humanitarian concerns aside, the major disincentive to mandatory detention is the prohibitive cost of keeping so many people locked up. According to DIMIA’s website (Fact Sheet 73 ‘People Smuggling’), the average cost of keeping a person in immigration detention in 2000–2001 was $120 per day and the overall cost of detention to the taxpayer, excluding the cost of capital works, was $104 million. Detention accounted for more than one-third of the $299 million that the department spent on ‘the enforcement of immigration law’ in 2000–2001. < > Australia’s detention policy is not only expensive, it is also illogical. In fact, it is quite perverse and can serve to reward honesty with punishment.Asylum seekers are only detained if they enter the country without valid documents. So, people who approach the immigration desk at the airport and admit to travelling on a fraudulent passport in order to seek refuge from persecution will almost certainly be locked up. If their application for refugee status is successful, they will be granted a temporary protection visa valid for three years, which restricts their access to most resettlement services. By contrast, a person who clears immigration first and then turns around five seconds later and says ‘I am a refugee’ will usually not be put in detention. Instead, that person will be eligible for a work permit and allowed to live freely in the community while his or her asylum application is assessed. Success leads to permanent residence. So, overseas students or tourists or business people or visitors on transit visas who lie about their original intention in coming to Australia, or who subsequently seek to stay in Australia as refugees after their arrival, are treated far more generously than people who have been compelled, through whatever circumstance, to engage the services of a people-smuggler or to travel on false documents. Yet, it could be argued that it is people in the latter category that are more deserving of our sympathy and generosity. Their circumstances

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are often, though not always, more desperate than those of the former group; the recent record certainly shows that they are far more likely to qualify as refugees. Since 1999, the majority of asylum seekers who arrived in Australia unlawfully have been granted protection under the 1951 Convention. By contrast, the acceptance rate for asylum seekers in the community is closer to 10 per cent.‘Unlawful’ asylum seekers are also much more likely to have their claims recognised on appeal. In 2000–2001 the Refugee Review Tribunal overturned the Immigration department’s primary decision in 36 per cent of the cases submitted by asylum seekers in detention, whereas only 6 per cent of community applicants succeeded at the tribunal. However, to pre-judge the relative worthiness of different categories of refugees like this is a morally dubious exercise. It only serves to illustrate that any distinction between ‘lawful’ and ‘unlawful’ asylum-seekers is arbitrary and meaningless. There is no basis to suppose that unauthorised arrivals pose a greater risk to Australia than people who arrive on valid visas; nor that their claims for refugee status are more likely to be bogus; nor that they are more likely to opt out of the refugee-determination process and abscond without trace into the community. Regardless of how people get to Australia, they must meet exactly the same strict criteria if they are to ‘qualify’ as refugees. Australia’s illogical distinction between ‘lawful’ and ‘unlawful’ asylum-seekers leads to the even more ludicrous distinction, gaining hold in the media, between ‘legal’ and ‘illegal’ refugees. It also appears to violate the 1951 Convention on Refugees, to which Australia is a signatory. Article 31(1) of the Convention states: 7KH &RQWUDFWLQJ 6WDWHV VKDOO QRW LPSRVH SHQDOWLHV RQ DFFRXQW RI WKHLU LOOHJDO HQWU\RUSUHVHQFHRQUHIXJHHVZKRFRPLQJGLUHFWO\IURPDWHUULWRU\ZKHUHWKHLU OLIHRUIUHHGRPZRXOGEHWKUHDWHQHGLQWKHVHQVHRI$UWLFOHHQWHURUDUHSUHV HQWLQWKHLUWHUULWRU\ZLWKRXWDXWKRULVDWLRQSURYLGHGWKH\SUHVHQWWKHPVHOYHVZLWK RXW GHOD\ WR WKH DXWKRULWLHV DQG VKRZ JRRG FDXVH IRU WKHLU LOOHJDO HQWU\ RU SUHVHQFH

The Refugee Convention does not prohibit detention, but Article 31(2) does restrict its use: 7KH &RQWUDFWLQJ 6WDWHV VKDOO QRW DSSO\ WR WKH PRYHPHQWV RI VXFK UHIXJHHV UHVWULFWLRQVRWKHUWKDQWKRVHZKLFKDUHQHFHVVDU\DQGVXFKUHVWULFWLRQVVKDOORQO\ EHDSSOLHGXQWLOWKHLUVWDWXVLQWKHFRXQWU\LVUHJXODUL]HGRUWKH\REWDLQDGPLVVLRQ WRDQRWKHUFRXQWU\7KH&RQWUDFWLQJ6WDWHVVKDOODOORZVXFKUHIXJHHVDUHDVRQ DEOHSHULRGDQGDOOQHFHVVDU\IDFLOLWLHVWRREWDLQDGPLVVLRQLQWRDQRWKHUFRXQWU\

Conclusions of the Executive Committee of the High Commissioner’s Programme (the UNHCR’s governing body, of which Australia is a member) and Guidelines prepared by UNHCR at the request of the

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Executive Committee both support the view that Australia’s mandatory detention regime is, at least in part, in violation of Convention obligations. The United Nations Human Rights Committee has found that Australia’s mandatory detention policy can breach Article 9.1 of the International Covenant on Civil and Political Rights (ICCPR), which says, in part, that ‘no one shall be subjected to arbitrary arrest and detention’. In 1993 the Human Rights Committee was asked to look into Australia’s treatment of an asylum seeker subjected to prolonged detention. The federal government argued that detention was justified because the asylum seeker had arrived unlawfully and might abscond if not detained.The Committee was not convinced. In its decision, handed down in 1997, the Committee agreed that illegal entry ‘may indicate a need for investigation’ and that the likelihood of absconding ‘may justify detention for a period’. It found, however, that Australia had offered no evidence as to why the particular asylum seeker in question should still be locked up.The Committee found that this detention was ‘arbitrary’ under Article 9.1 of the ICCPR. In response to the United Nations Committee’s criticism, the federal government did tinker with detention policy, introducing a category of ‘eligible non-citizens’, who can be released from detention on bridging visas.To be released, a person must be at least seventy-five years of age, or the spouse of an Australian, a former victim of trauma or torture, or a child for whom release is ‘in their best interests’. In practice, these exemptions are rarely invoked. For example, so far as children are concerned, it is invariably felt to be in their best interests that they remain with their parents, who are usually in detention themselves. Australia has always imposed strict visa requirements on foreign visitors and detention provisions have been enshrined in law for more than four decades under the Migration Act of 1958, but the legislative cornerstone of the hard-line policy of mandatory detention for boat people was more recently laid. The history of that legislation suggests that mandatory detention is government’s knee-jerk response to the widely held, deeply rooted but totally irrational public phobia about the risk of invasion. It is a ‘solution’ out of all proportion to the size of the ‘problem’; a policy formulated, not in sober debate, but in flustered panic at the unauthorised landing of a relatively small number of boats on Australia’s shores. < > On 26 April 1976 twenty-five-year-old Lam Binh steered a decrepit wooden boat into Darwin harbour. On board were his seventeen-yearold brother and three friends. Six other members of Binh’s family had also been among the passengers when fishing boat KG4435 snuck out

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of Rach Gia port in southwest Vietnam in February that year, but they had succumbed to violent attacks of seasickness and left the vessel to stay at a refugee camp in Thailand. Binh did not like the look of the camp, so he and his four remaining passengers continued their journey. For two months they were shunted from one Southeast Asian port to another, being supplied with fuel, food and water on condition that they kept moving on.As Bruce Grant recounts the story, Binh navigated the final sixteen-day crossing from Timor with the guidance of a page torn from a school atlas. He arrived in Darwin with US$100 in cash and with fuel, food and water to last just four more days. +HURXQGHGWKHSRLQWDQGVDZ6WRNHV+LOOZKDUIWKHEXV\FHQWUHRIWKHSRUWRI 'DUZLQ+HEURXJKW.*DORQJVLGHDERXWPLGGD\/DP%LQKWKHQFDXJKWWKH DWWHQWLRQRIDILVKHUPDQZRUNLQJRQDERDWQHDUE\¶:KHUHLPPLJUDWLRQSHRSOH"· /DP%LQKDVNHG¶:HIURPVRXWK9LHWQDP· 7KHILVKHUPDQWROGWKHPWRVWD\ZKHUH WKH\ZHUHDQGGURYHRII$VWKHZKDUIZDVFURZGHG/DP%LQKDQFKRUHG.* DERXWPHWUHVDZD\,PPLJUDWLRQRIILFLDOVDUULYHGLQDSLORWERDWDQGVWHSSHGRQ ERDUG/DP%LQKWDNLQJDGHHSEUHDWKPDGHDVSHHFKKHKDGUHKHDUVHGPDQ\ WLPHV¶:HOFRPHP\ERDW0\QDPHLV/DP%LQKDQGWKHVHDUHP\IULHQGVIURP VRXWK9LHWQDPDQGZHZRXOGOLNHSHUPLVVLRQWRVWD\LQ$XVWUDOLD·

Lam Binh, his brother and their friends became Australia’s first boatpeople and were accepted as refugees. In the next six years around 2000 Vietnamese boat-people followed in Lam Binh’s wake. This was a time of great instability in Indochina. Vietnam invaded Cambodia to oust the Khmer Rouge. In response, China invaded Vietnam to teach it a lesson. Hanoi’s communist regime pursued Vietnam’s ethnic Chinese minority in a relentless campaign of persecution, forcing hundreds of thousands to flee the country altogether. In all, about 1 million people fled Vietnam and Cambodia during that period, but most ended up in camps elsewhere in Southeast Asia or in Hong Kong. Only a tiny proportion made it all the way to Australia. As Nancy Viviani has commented, it is surprising how sensitive Australian politicians and bureaucrats are to fears of a mass influx of boat arrivals, given that ‘the experience of the greatest exodus in the history of Southeast Asia simply did not result in such an influx in Australia’. The Liberal prime minister, Malcolm Fraser, and his minister for Immigration and Ethnic Affairs, Michael MacKellar, displayed considerable generosity and good sense in responding to the first boatarrivals. They successfully undercut the attraction of sailing south in a leaky boat by holding out the prospect of organised resettlement to Indochinese refugees holed up in camps in Southeast Asia. Less than a decade after the scrapping of the White Australia policy, Australia was offering a permanent home to around 15,000 Vietnamese refugees

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every year. By comparison, the Labor Party’s response was alarmist and opportunistic. Shortly before the 1977 election, Bob Hawke (then ALP president) called for Australia to stop accepting refugees who simply landed on its doorstep. He received backing for the comments from the opposition leader, Gough Whitlam.Whitlam may have swept away the last remnants of the White Australia policy while in office, but he had little sympathy for refugees from Indochina. Clyde Cameron, a former minister for Immigration in Whitlam’s government, recollects that Whitlam exploded when the issue was discussed in a cabinet meeting in 1975, declaring that he was ‘not having hundreds of fucking Vietnamese Balts coming into the country’. Whitlam clearly believed that the Vietnamese would be antithetical to the Labor Party, like earlier refugees who fled Soviet communism in the Baltic states. The arrival of Lam Binh and those who followed him alerted government to the fact that Australia had no formal mechanism for dealing with onshore asylum seekers. The few people who applied were dealt with on a case-by-case basis by the minister for Immigration, who had the discretionary power to grant an entry permit. In response, the government set up the DORS (Determination of Refugee Status) Committee in 1977 to assist the minister in making determinations, although those Vietnamese who failed to meet the definition were allowed to stay anyway, under an amnesty offered to illegal immigrants in 1980.There was little need to invoke the DORS committee to assess asylum seekers landing in Australia by boat in the 1980s. Arrivals petered out in 1981 and the boat people did not reappear on Australia’s horizon until the end of the decade. In November 1989 a vessel codenamed ‘Pender Bay’ arrived in Broome with twenty-six people on board.There were two further boats in 1990 and eight more in 1991. By the end of 1992, fifteen boats had arrived, carrying a total of 654 people. Like those who preceded them in the late 1970s, many of these new arrivals were from Vietnam, although they had come to Australia indirectly, via camps in Indonesia, or from resettlement sites for SinoVietnamese refugees in southern China. Others were Chinese nationals or Cambodians. The boat people once again became the focus of public anxiety; after 1989 almost all of them were detained. Initially, they were held in semi-secure facilities in the Westbridge migrant hostel in Sydney (now Villawood detention centre). It was a low-security operation and when asylum seekers began to abscond, the government toughened its approach. In 1991 the first remote detention centre was established — at Port Hedland,Western Australia. The detention policy had firm political foundations and enjoyed bipartisan support in parliament, but some of its legal underpinnings were decidedly weak. Section 89 of the Migration Act of 1958 required that

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people be held in custody if they arrived at an airport without valid documentation. This section appeared immune to legal challenge. Under Section 88 of the Act, unauthorised entrants were also taken into custody if they arrived by boat and disembarked without permission. In this situation, however, custody was to last only until the boat once again departed Australia. In the case of asylum seekers, it was obvious immediately that the vessels on which they arrived were never going to leave. Refugees’ lawyers soon began to pick away at the gaps in the legal mortar of the detention policy as it applied to boat people. In 1992 they used flaws in the Act to press for the release of fifteen Cambodian asylum-seekers who had been in custody for more than two years.The government recognised that its house was in danger of tumbling down and rushed into action. Less than forty-eight hours before a Federal Court judge was to hear the application on behalf of the Cambodians, the Migration Amendment Act 1992 was pushed through parliament. The Act required that a ‘designated person’ who was a non-citizen ‘should be kept in custody until he or she leaves Australia or is given an entry permit’. The term ‘designated persons’ was applied to boat people who had arrived in Australia after 19 November 1989.The Act also stated that no court was ‘to order the release from custody of a designated person’. The lawyers for the Cambodians did not give up so easily.They challenged the amendment in the High Court, arguing that it breached the Constitution by usurping judicial power. That action failed. However, all but one of the judges commented that the detention of the boat people may have been unlawful prior to the passing of the Amendment Act in May.This unlocked the possibility of further legal action to seek compensation for wrongful imprisonment. The government also slammed that door shut before it could be opened further. A new section was added to the Migration Act; it stated that, where wrongful detention was proved, any damages payable would be fixed at the amount of one dollar per day. Further amendments have entrenched the detention policy to the point where it is unassailable in the courts. Bi-partisan political support for detention has also been shored up, even though the policy remains hotly contested by professionals who work in the field. Every time immigration detention has been subjected to scrutiny through parliamentary inquiries an overwhelming majority of submissions has called for the policy to be scrapped or drastically modified in relation to asylum seekers; on all but one occasion, however, the final report has ignored those calls and endorsed the status quo. The exception was a June 2001 report by the Human Rights Sub-committee of the Joint Standing Committee on Foreign Affairs, Defence and Trade.The report

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forged rare agreement between political rivals from all parties on twenty separate recommendations to improve the operation of Australia’s immigration detention centres, including such straightforward proposals as expanding the range of newspapers available to detainees; broadening educational, sporting and exercise facilities; granting greater access to detention centres for community organisations, including religious and welfare groups; providing asylum seekers with regular updates on the status of their applications for refugee status and offering detainees classes about life in Australia.The most controversial recommendation was for the introduction of a fourteen-week time limit on detention for asylum seekers who had received security clearances. The minister for Immigration dismissed the recommendation out of hand, describing it tersely as ‘extraordinarily naive’. < > The most dramatic shift in policy after the 1992 amendments was the decision to contract out detention to the private sector. In April 1997 the government released a ‘Request for Proposal for Provision of Detention and Transfer of Persons Detained under the Migration Act’ to seventeen selected organisations, including the Australian Protective Service (APS), the government agency then in charge of running the detention centres. Five organisations submitted detailed proposals and the tender was won by Australasian Correctional Management (ACM), the wholly owned subsidiary of the United States-based Wackenhut Corrections Corporation, which is itself majority-owned by the parent company,Wackenhut. Wackenhut is an intriguing corporation, with 68,000 employees and an annual turnover in 2001 of US$2.8 billion. The official company website hosts an online shop, at which customers can order a pair of cuddly, plush velvet Wackenhut Bears (US$21.95) with ‘a round adorable face’ and ‘a royal blue T-shirt printed with the Wackenhut logo’. For the more serious shopper there is the formidable B.O.S.S., the Body Orifice Security Scanner, which at US$4500 provides ‘A Safe, Non-Intrusive Method of Detecting Objects Concealed in Body Cavities’. The B.O.S.S. ‘is commonly used in corrections facilities to scan inmates for weapons and contraband objects’ such as razor blades, paper-clips and knives that may be ‘hidden in anal, vaginal, oral and nasal cavities’. Security is Wackenhut’s business and the United States government is its major customer.Wackenhut guards top-secret nuclear facilities for the Department of Energy, including the Savannah River Site (where weapons-grade plutonium is produced) and the Nevada Test Site. The company has been continuously involved in providing security to

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United States satellite and missile programs since 1957 and guards some twenty United States embassies and diplomatic missions worldwide. Among the enormous array of other products on offer at Wackenhut are airport and airline security services, protection against kidnapping and extortion for senior executives and VIPs, alarm systems, highway toll-collection, fire prevention, emergency medical aid, investigative services and armoured transport. The company is named after its founder, George R. Wackenhut, who is now in his eighties. Before starting up a private security firm in 1954, George Wackenhut spent three years working as a special agent for the FBI.Today he lives in Florida in a mock castle ‘with an atmosphere of England in the late Middle Ages’. In the words of Britain’s Observer ‘Life’ magazine, he is ‘a more than usually right-wing businessman … who once took it upon himself to keep files on three million Americans he suspected of crypto-communism’. When Observer journalist Andrew Billen asked George R. Wackenhut about persistent claims that his company has done undercover work for the CIA or other secret service agencies, the corporate patriarch emphatically denied the suggestion and pondered where such claims could spring from.‘I had a man on the board who was a CIA director and had been a three-star admiral in the navy’, he said. ‘Another three-star general who had been head of defence intelligence [General Joseph Carroll]. We had [former deputy director of the CIA] Frank Carlucci who left us and became Secretary of Defence.We had all these military types and intelligence types on the board and people started to put two and two together and concluding we were in intelligence work.’ There are no obvious spooks on the current board of the Wackenhut Corrections Corporation (WCC), the Wackenhut company that owns ACM, but there are strong links to government. The board includes a former attorney-general, a former education adviser to President Reagan and a former director of the Federal Bureau of Prisons. WCC was founded as a division of the Wackenhut Corporation in 1984 and was separately listed as a public company on the New York Stock Exchange in 1994 (though a majority of its shares remain in the hands of the parent company). The first facility operated by the company was an immigration detention-centre in Denver, though its main income comes from the explosive growth in private prisons and juvenile detention centres. In the ten years from 1986 the number of beds in private prisons in the United States grew at a compound rate of 44 per cent per year, and WCC company literature happily informs shareholders that the capacity of federal prisons in the United States is expected to grow 50 per cent between 2001 and 2006, thanks to ‘[e]nhanced sentencing laws, and the growth of the overall population between the ages of 15 to 24 — statistically the age group that

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commits the most crime’. In its annual report for 2001,WCC claimed ‘a 22 per cent share of the United States private correctional market’ and ‘a 56 per cent share of the international private correctional market’. (The company does not seem nearly so concerned as Australian government ministers are to distinguish between the niceties of the ‘correctional’ detention of convicted criminals in prisons and the ‘administrative’ detention of unauthorised migrants and asylum seekers in detention centres.) The report describes the firm as ‘a world leader in government-outsourced correctional management, medical and mental health rehabilitation services’ and ‘the largest private detention and immigration services provider in the world’. However, the company’s record is not without blemish. In February 2000 the United States Justice department accused Wackenhut guards at a juvenile detention centre in Louisiana of violating inmates’ rights by ‘habitually using excessive force and allowing fights over basic items like and food and clothing’. According to the New York Times, the report found that the facility ‘fails to provide reasonable safety, improperly uses chemical restraints, and provides inadequate mental health, medical and dental care’.The company expressed disappointment with the report and said the issues had been ‘overstated or simply sensationalised’. Nevertheless, Wackenhut reluctantly concluded that ‘it would be in everyone’s best interest for Wackenhut to seek an alternative use for the facility’ and juvenile detainees have since been relocated. In December 1999 the Houston Chronicle reported that twelve former employees of Wackenhut Corrections Corp. were charged with raping or sexually harassing sixteen women inmates in a Texas state jail between 6 May 1997 and 6 August 1999. The company has since implemented a policy under which ‘only female employees will be allowed to work in the living quarters of female correctional institutions’. On 31 August 1999 Wackenhut correctional officer Ralph Garcia was killed during a four-hour riot by prisoners at the Guadalupe County Correctional Facility in New Mexico. A riot in April 1999 at another Wackenhut facility at Hobbs in New Mexico left thirteen guards and one prisoner injured.The incidents prompted an independent inquiry into the state’s prison system. Wackenhut Corrections Corp. defends its record and argues that the people involved in such incidents ‘represent only a fraction of our inmate population’. The corporation has contracts to manage 43,000 ‘offender beds’ in fifty-nine correctional institutions and detention facilities in North America, Europe and Australasia. Annual reports show strong growth in annual turnover, although profit results are more volatile. In 2001 Wackenhut Corrections Corp. reported a net profit of US$19.4 million on revenue of US$562.1 million.Without the contribution of its Australian subsidiary ACM, the bottom line would have

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been much less satisfactory for shareholders. ACM contributed about one-fifth of the company’s global revenue and accounted for a similar proportion of overall profit. Wackenhut came to Australia in the early 1990s and teamed up with the construction giant Thiess and the local security firm ADT to create Australasian Correctional Services. This new joint-venture company promised to provide ‘single point accountability in the financing, design, construction, management and operation of correctional facilities’. Australasian Correctional Services won the contract for a new 600-bed Correctional Centre at Junee, New South Wales, which became Australia’s largest prison when it opened in April 1993. After this facility was completed, ACM became responsible for its ongoing operational management. Now, ACM also runs the Arthur Gorrie Remand and Reception Centre in Brisbane (since July 1992), the Fulham prison in Victoria (since 1997) and the Melbourne Custody Centre, which it took over in March 1999. Its work in immigration detention dates from November 1997. ACM showed no interest in discussing its commercial activities with me. My phone calls and emails to company headquarters in Sydney went unanswered. However, financial statements lodged with the Australian Securities and Investment Commission (ASIC) revealed a post-tax profit of $11.9 million on a turnover of $208 million in the year ended 31 December 2001.This was slightly down on the previous year. Before that, however, profit had almost doubled on an annual basis, from $4.1 million in 1998, to $7.5 million in 1999 and $14.75 million in 2000. Operating revenue had also jumped sharply year-byyear, up from $76 million in 1998, to $102 million in 1999 and $191 million in 2000. On the information lodged with ASIC, it is impossible to determine what share of that income comes from the immigration detention centres, and what share comes from the private prisons that ACM manages for various State governments. ACM also has a contract, via its subsidiary, Pacific Shores Healthcare, to provide medical services to correctional facilities in Victoria, and some of the money paid to it by the Immigration department is for transport services rather than detention, including at times, the removal of failed asylum seekers from Australia to their country of origin. However, it is safe to attribute ACM’s 250 per cent growth in revenues and 350 per cent increase in profit between 1998 and 2000 to the increase in unauthorised boat-arrivals and the consequent increase in the number of people in immigration detention. The 2000 annual report of the parent company, Wackenhut Corrections Corp. states that ‘compensated resident days’ (that is, the days for which ACM was paid to keep people in detention in Australia and New Zealand) increased from 1.1 million in 1999 to 1.8 million

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in 2000 and this increase was ‘primarily due to higher compensated resident days at the immigration detention facilities’. The explanatory notes to the financial statements in the annual report reveal that Australia’s Immigration department was the United States corporation’s third-largest customer, after correctional authorities in Florida and Texas, and accounted for 11 per cent of WCC’s consolidated revenue. At the exchange rate used in the accounts of US$0.56 to the Australian dollar, this equates to payments from the Commonwealth government to ACM of around $105 million in 2000. In 2000 the Australian subsidiary was responsible for almost half of the corporation’s US$19 million in global profit. The explosive growth in ACM’s income from immigration detention slowed in 2001, but the 2001 annual report for Wackenhut Corrections Corp. shows that DIMIA payments once again accounted for 11 per cent of its global revenue of US$562.1 million. At an exchange rate of US$0.51 to the Australian dollar, this is equivalent to payments of around $121 million dollars. The cash-flow from Australian taxpayers to ACM may soon be shut off. ACM’s initial three-year deal to provide detention services to the federal government should have expired on 22 December 2000. It was extended by mutual consent for a further twelve months on the same terms and conditions to give the Commonwealth additional time to negotiate with ACM (or, more exactly, with its affiliate company, ACS, Australasian Correctional Services Pty Ltd) on its offer to extend the contract for a further three-year term. Under a general ten-year agreement signed between the two parties, the Commonwealth was required to enter into these exclusive negotiations in good faith, before it could make ‘an approach to the market’. In the end the Immigration department was not satisfied that the ACM/ACS offer ‘represented the best value for money’ and on 25 May 2001 the government announced that the provision of immigration detention services would be put out to tender.The minister for Immigration said he expected a decision to be made by December of that year, but the tender process appeared to move exceedingly slowly.The contract with ACM was extended once more, until the tender process could be completed and ‘new service delivery arrangements’ put in place. In March 2002 the minister announced yet again that the contract would go to tender. He said that tenders would be let in May, a full year after the original announcement of the tender process. In fact, this did not happen until July 2002.A new contract was expected to be in operation by the end of the year. According to the Immigration department, the process is slow because it is ‘very complex’ and requires ‘detailed articulation’ of the department’s requirements. An ‘exposure draft’ of the tender document had also been released ‘to obtain industry comment’ and ensure that the tender process is ‘as robust as possible’.According to John Hodges from

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Philip Ruddock’s Independent Detention Advisory Group, the contract ‘will be tightened a lot in lots of areas’ resulting in ‘a better detention standard’. In the meantime, ACM itself had come under new ownership. In March 2002 Wackenhut Corp. and the Danish firm Group 4 Falck signed ‘a definitive merger agreement’. Wackenhut shareholders were paid US$33 per share, a 14 per cent premium on the current shareprice and double the price, of US$16.70, at which Wackenhut shares were trading just six months earlier. (The September 11 terror attacks had given a huge boost to the stocks of security firms, with Wackenhut’s share-price jumping 44 per cent on the day trading resumed.) The merger valued Wackenhut at US$570 million and created the largest security company in the world. As a result Group 4 gained majority control of Wackenhut Corrections Corp. and its Australian subsidiary, ACM. This reduced the level of competition in the bidding to run Australia’s immigration detention-centres, since Group 4 and ACM accounted for two of the four organisations short-listed to participate in the tender process. One of those bidders — the public-sector agency Australian Protective Service (APS) — has since dropped out.The APS was placed under the control of the Australian Federal Police, after which its bid was withdrawn because of concerns about the potential for a conflict of interest if the same agency were responsible for running immigration detention centres and for investigating complaints inside them.After the withdrawal of the APS, the only other bidder left in the running was Management & Training Corporation Pty Ltd. If Group 4 does win the contract, either in its own right, or via its new ownership of ACM, then the appointment will be controversial. Group 4 has 140,000 employees in fifty countries and an annual turnover of US$2.5 billion. It is already active in the private prison industry in Australia and has hit the headlines because of the high suicide rate at Melbourne’s brand new Port Phillip Prison. A coronial inquiry found that Group 4 had contributed to the suicide of four prisoners during the prison’s first six months of operation, by failing to remove hanging points or to provide adequate staff training. More recently Group 4 has been embroiled in controversy surrounding a fire at the Yarl’s Wood immigration detention centre in Britain. On 14 February a fire destroyed around 40 per cent of the £100 million purpose-built complex, which had opened only two months earlier. According to the Guardian, the blaze began during a disturbance that followed an incident in which a woman was being restrained by Group 4 staff. It later emerged that no sprinkler system had been installed at Yarl’s Wood, which had the capacity to hold 900 people, making it the largest immigration detention facility in Europe. The fire-fighters’ union later

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claimed that for an hour its members were prevented from tackling the blaze by Group 4 guards, who were seeking to prevent the escape of any detainees. Group 4’s insurance company are now demanding £97 million in damages from the local police under an obscure 1886 law called the Riot Damages Act, which allows private firms and individuals to sue police over riot damage. Many of us find the very idea of private prisons and detention centres repugnant, but that does not mean conditions will necessarily be worse in a privately run facility than in one under public-sector management. How such facilities are run will depend on a range of factors such as the degree of transparency and accountability, the incentives on offer to ensure that detainees are treated with decency and compassion, and the penalties imposed for failing in that duty of care. Not long after the detention centres were privatised, the Immigration department stated that its contractual agreements with ACM were intended to deliver ‘a high level of quality in the services provided, a high level of accountability for the delivery of those services and provide cost and efficiency savings to the Commonwealth in the long term’. Clearly, there is the potential for these aims to be in conflict with one another. In particular, the pursuit of cost-savings has the potential to compromise the delivery of high-quality services. Under its detention contract, ACM has agreed to share with the Commonwealth any savings achieved in carrying out its operations (clause 3.2). This raises another conflict because the Immigration department, which is supposed to regulate ACM’s operations, becomes its partner in the pursuit of increased profits and reduced costs. Certainly, the company does appear to have cut the cost of detention. According to the Immigration department’s annual reports, the cost of detention per detainee per day went from $120 in 1995–96, to $130 in 1996–97 and to $145 in 1997–98. In 1998–99, the first full year of ACM control, the cost per detainee fell back to $112 per day. But just how were these savings achieved? It seems that, in some cases at least, charities inadvertently assisted ACM’s cost-cutting efforts. Under Clause 8.2.2 of the Detention Agreements between the Commonwealth government and ACM, the company is required to provide detainees with adequate clothing suitable for the climate.When the Woomera detention centre first opened in late 1999, ACM was keen to source this clothing, and other material goods, from charitable organisations. Ray Hartigan is the South Australian logistics administrator for the Society of St Vincent de Paul. He was approached, he told me, in December 1999 by the then manager of the Woomera detention centre to provide clothing for 500–600 asylum seekers. Mr Hartigan agreed to provide the clothing for $5 per kilo — a significant discount,

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he says, on the usual rate of $8 per kilo.This apparently straightforward commercial agreement went awry when ACM managed to source about 1.5 tonnes of goods for free from another section of the St Vincent de Paul Society. Mr Hartigan says ACM then offered to pay $1 per kilo for the clothes he had supplied, instead of the $5 he thought they had already agreed to. ‘We to-ed and fro-ed in the normal commercial way about how unfair and unreasonable that was,’ says Mr Hartigan. ‘I then received a payment for 300 kilos at $2 a kilo, which was $600, and … that went nowhere near the covering of the transport, the bales, the cost of putting the stuff up there.’ In the end, Mr Hartigan says, he received $2100 from ACM, for 2 tonnes of clothing: at $5 per kilo, the originally agreed price, this should have sold for $10,000. When commercial relations broke down with St Vincent de Paul in February 2000, ACM management at Woomera looked for an alternative supplier and turned to the Uniting Church in Adelaide. Church worker Scott Litchfield received the request.‘It was a series of faxes that came through which had … extensive lists of what was required in the centre in the way of clothing for men, women and children. It listed itemised stuff. It went right through basic personal clothing, but also a whole lot of stuff to do with setting up the centre — including curtains and other things to be used in facilities to house people.’ Woomera management was not offering payment for the goods, Scott Litchfield says.‘It was expected that they would be given free.We were not offered any money and it was expected that we would offer these as donations as we’d give to other people who are in need.’ After making some inquiries about the nature of ACM’s contract with the federal government, the Uniting Church in South Australia decided not to meet the request to supply goods to Woomera. However, the obvious need of people in detention leaves charitable organisations facing an ethical dilemma, and some assistance is provided. For example, the St Vincent de Paul Society in New South Wales continued to provide clothing for detainees in the Villawood Detention Centre in Sydney, even though the nominal fee paid by ACM for the goods was not enough to cover the Society’s costs. The pressure to reduce costs also raises important questions about the use of detainee labour in the detention centres. It is obviously in ACM’s interest to employ detainees at prison labour rates to provide services within the detention centre, rather than pay award wages to workers brought in from outside. Most former detainees I have spoken to say they were keen to work — despite earning a pittance — because it helped to break the monotony of incarceration. But the government’s Immigration Detention Standards, to which ACM must adhere, make no reference to the use of detainee labour.There are no prescribed pay

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rates, conditions or hours to be worked, for example.The only relevant standard is 5.1, which says that the Commonwealth Occupational Health and Safety Act is to apply in all detention centres. But even this requirement comes under the general heading of safety; it does not relate specifically to detainee labour. How then are detainees’ rights to be protected from the pressure to cut costs and boost profits? Certainly, there was little protection offered to Port Hedland detainees in the ‘Resident Miscellaneous Workers Contract’ that they were expected to sign each Monday before commencing work for the week. The contract directs detainees to report to an officer when they believe they have finished their job. If the officer agrees that the job is completed to his or her satisfaction, then the detainee can be ‘paid’ their points. However, detainees are warned that ‘Officers have the final say in weather [sic] your job has been completed or weather [sic] you have to return and complete your job to a satisfactory level’. If any of the rules in the contract are broken then ‘the Residents job will be Terminated’ (capitalisation and underlining in the original) and ‘the resident will not be re-employed for a period of eight weeks’. The potential for abuse and victimisation is obvious, yet the contract contains no mechanisms for dealing with disputes or providing mediation. In fact, it explicitly states that the detainees’ representatives, the Resident Committee, ‘will have NO say in where a resident works’ and ‘will have NO say in the outcome of termination of employment’. Some medical professionals who have worked in ACM detention centres are concerned that the drive to minimise costs can compromise patient care. In May 2002 the Age revealed that ACM had refused to vaccinate adult detainees at Woomera for such diseases as polio, hepatitis B, tetanus and diphtheria, despite recommendations from the Communicable Diseases Network to do so. The Immigration department defended ACM’s decision to restrict vaccinations to children on the basis it was not policy to inoculate adults and that the expense would be too great. The president of the Royal Australian College of General Practitioners, Dr Paul Hemming, described this as ‘outrageous’. He suggested that any saving was a false economy because the cost of vaccination was ‘minuscule’ compared to the cost of treating people should they become ill. Dr Annie Sparrow, who did two brief stints at Woomera in 2001 and 2002, cites the example of a lack of interpreters as another example of cost-cutting compromising patient care. There were more than 1000 people detained at Woomera when she worked there. Most were from the Middle East. Dr Sparrow says often there were only three interpreters; one female Arabic interpreter, one male Arabic interpreter and one male Farsi (Persian) interpreter.There were no female Farsi interpreters on site during the time that she worked there (although one was

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appointed after she left).‘It is incredibly degrading and demoralising to be discussing women’s gynaecological problems with a male interpreter and even worse to be doing it via a telephone interpreter service,’ she says. She says it was particularly difficult to communicate effectively with children via a telephone interpreter service. ‘I could not see that provision of a health service was a fundamental priority,’ she says. Psychologist Lyn Bender describes the case of a young man whose glasses were broken. He claimed that they were broken by an ACM officer; the officer maintained that it was the young man’s fault. Either way, ACM refused to replace the glasses unless he paid for them himself. The man had no money and so had to live without his glasses, which he usually wore all the time. He was severely restricted in his activities and began suffering headaches. Eventually, after two months without glasses, he resorted to slashing himself in protest.The response of the guards was to taunt him for being so silly as to cut himself on a Sunday when nothing could be done about the glasses anyway. ‘Didn’t he know that in Australia Sunday was a holiday?’ they asked him. The ‘solution’ was to offer the man a pair of glasses from the lost property box. At this point Lyn Bender intervened, warning that the use of the wrong prescription could further damage his eyesight. When Lyn Bender left Woomera, the man was still without glasses and had been told to put his complaint in writing. She was given to understand that no arrangements were going to be made to have his eyesight assessed since he could not afford to pay for new glasses. Educational staff have also voiced concerns about the underresourcing of teaching in detention centres. Inese Petersons is a registered primary school-teacher in South Australia who was contracted to work as an ‘Education Officer’ in Woomera between May and August 2001. She says she was offered an attractive salary package — much higher than a teacher’s pay — and before starting she had paid little attention to what was happening in the detention centres. She says she expected to ‘be teaching children, and possibly adults in an educational setting … that there would be a school and there would be adequate resources and that there would be adequate teachers and the usual things’.The reality was rather different. When she began working at Woomera, Inese Petersons was one of three teachers catering to 1500 detainees, including around 300 children. Over the next two-and-a-half months staff numbers fluctuated from a low of two teachers to a high of five. She says a ratio of 300 detainees to one teacher was supposed to be a minimum requirement under policy guidelines but she says this target was achieved in only five of the ten weeks that she worked there. Class sizes fluctuated from two to fifty-two people and varied with the mood in the detention centre.

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‘Learning was a high priority for most detainees but coming to classes often depended on their daily dispositions,’ she says. ‘Given their psychological states, often it appeared to be a diversion at best, and I found that they only kept coming to classes regularly, if it was relevant to their needs.’ The trauma of the adult asylum-seekers’ experiences in getting to Australia, and of their treatment in detention, left them with very little mental energy to devote to learning. ‘I found that their main focus and preoccupation was with getting a visa and its attendant problems.’ Children were generally eager to attend classes. ‘As students I found them to be extremely willing, extremely polite — attentive.They were very keen to learn; they certainly tried very hard. I would provide most of them with hard copies of lessons and they would all do homework, bring it in for me to look at the next day.’ Each teacher was rostered to teach six one-hour classes per day and it was ‘a monumental task’ to try to get around to teaching everyone. The teachers were assisted by some fifty detainee aides, who spoke good English and had other skills to offer. Included among these aides were information technology specialists, musicians, librarians, artists, teachers and athletes. They were ‘paid’ in points by ACM at a rate equivalent to $1 per hour. Inese Petersons says that without their ‘generous and concerned efforts’ there would not have been an education program in Woomera at all. ‘Given the shortage of staff and continual staff turnover and the lack of resources, teaching was often a haphazard affair,’ she says. Each teacher spent only one hour per day with each group of students so it was extremely difficult ‘to deliver an appropriately comprehensive educational program with any continuity of learning’. The teachers and their aides tried to provide five to six hours of teaching per week to primary school-students and four to five hours per week for secondary school-age children and adults.When there was a shortage of teachers, adult classes were rearranged or cancelled to give priority to teaching children. Inese Petersons concludes that ‘a positive and meaningful education program’ was not possible under the circumstances. She cites the treatment of detainees, the detainees’ physical, mental and emotional states, environmental conditions, and the extreme lack of resources, both material and human as working against the best efforts of teachers to deliver a good program. There is an obvious potential for conflict between achieving ‘cost and efficiency savings’ and delivering ‘a high level of quality’, but there did seem to be some improvement in conditions at the outset after ACM took over the running of the detention centres from the Australian Protective Service (its government predecessor). In the first two years critical independent observers credited ACM with marked improvements in the conditions in detention centres. In 1998 the Human Rights and Equal Opportunity Commission

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(HREOC) released a report ironically called ‘Those who’ve come across the seas’ (a title taken from the national anthem, which continues ‘we’ve boundless plains to share …’). HREOC’s investigations were mostly carried out while the Australian Protective Service was running the detention centres, and its conclusions were damning. In a followup report published in early 2000, HREOC stated that it was ‘impressed with the efforts of both DIMA and ACM to enhance the physical conditions, the opportunities for activities and the support services in detention.Very substantial improvements have been made in a wide range of areas. The criticisms made by detainees and recorded here were generally made in an overall context of satisfaction with their treatment and the conditions.’ HREOC praised improvements such as the introduction of excursions for children at Villawood, for most detainees at Port Hedland and those detainees playing soccer at the Perth detention centre. It noted the expansion of English classes in some centres, and the introduction of High Risk Assessment Teams to reduce the risk of self-harm by detainees.The Commission concluded that the changes were ‘attributable in large part to the transfer of detention service provision to ACM and the opportunity that transfer created for DIMA to design and impose immigration detention standards’. The initial impression of the Commonwealth Ombudsman was also one of considerable improvements in the operation of detention centres under ACM’s management. The Ombudsman’s 1998–99 annual report comments that the transfer of management brought improvements in the standard of care, including increased recreational activities and equipment, increased opportunities for religious observance and a better understanding of detainees’ needs. Both bodies continue to monitor conditions in detention, however, and to investigate a range of complaints.Along with its praise for ACM, HREOC found plenty of things to criticise; the Ombudsman’s office immediately followed up its report with another inquiry. Senior Assistant Ombudsman John Taylor says his organisation decided to initiate a new investigation following ‘a number of complaints about standards within detention centres, treatment by ACM staff and other issues’. He notes that new centres had opened at Curtin and Woomera since the Ombudsman’s previous investigation in 1996, raising ‘issues of accountability in remote areas’. He is also aware of media reports on the suturing of lips and the provision of medical treatment to female detainees. In its follow-up report released in early 2000 HREOC identified continuing problems for detainees in getting legal advice, and reported overcrowding, inadequate recreational facilities and inadequate phonelines at some centres. It noted that there were ‘possibly inappropriate

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limits on expenditure on health care, especially dental and psychiatric care and the possibility that some medical staff and contractors are constrained by budget or contract pressures at the expense of their patients’ well-being’. At a policy level, this HREOC report also voiced concern that the structure of the contracts between DIMA and ACM led to a focus on security, rather than on detainee welfare.While the company is expected to adhere to the department’s Immigration Detention Standards as an overall requirement of its contract (known as the Detention Agreements), it is security breaches, such as escapes, that attract immediate monetary penalties. According to HREOC: ‘Achievement of the balance between security and care is undermined by the contractual arrangements between DIMA and ACM. The balance is upset when a monetary penalty is imposed for every escape but implementation of the Immigration Detention Standards is a matter of contract compliance only. The increasing emphasis on security … can be traced to the imbalance in these contractual arrangements.’ If the Immigration department is dissatisfied with ACM’s management of the detention centre, it can issue a ‘default notice’ instructing the problem to be rectified. Default notices may be related to security breaches, or to the welfare of detainees in such areas as health care, the handling of psychiatrically disturbed detainees or the use of force and physical restraints. If ACM fails to rectify the fault within a specified period, the Immigration department can then take other measures.The ultimate sanction is to terminate the contract. However, as legal academic Dr Savitri Taylor comments,‘the contractor would be well aware of the practical constraints on the Commonwealth using the ultimate remedy of termination’. In an evaluation for the Sydney Law Review of the accountability mechanisms of the ACM contract, Dr Taylor noted that achieving the Immigration department’s standards would require money and effort. ‘It is to be expected, therefore, that a rational contractor will strive harder to achieve standards for which it is held accountable in practice, than to achieve standards for which it is held accountable only in theory.’ It is impossible to find out to what extent ACM is actually held accountable in practice for breaches of the Commonwealth’s detention standards in relation to detainee welfare. The performance measures linked to standards such as ‘dignity’ or ‘privacy’ have been deleted from the publicly available version of the Detention Agreements between ACM and the Commonwealth ‘for commercial reasons’, as have details of the ‘performance-linked fee’ that ACM can expect to earn if it achieves those performance measures. As part of my research for this book, I lodged a Freedom of Information request, asking DIMA for details of default notices, remedy notices or other documents issued to ACM for breaches of the Detention Agreements. The aim was to

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discover how actively the department oversees ACM’s management of detention centres. The request was turned down — again, on commercial grounds. Research for the second HREOC report (published in 2000) was carried out when the numbers of people in detention were low. Port Hedland was then the only remote detention facility in operation. Woomera and Curtin were not open.There is no doubt that conditions are better when there are fewer detainees to look after. It was easier, for example, to provide occasional trips outside the camp for detainees in Port Hedland and there was more variety in the food available. Excursions, more diverse menus and other improvements to conditions are much harder to achieve in detention centres that are full. HREOC noted, for instance, that overcrowding remained a problem in Stage One of the Villawood detention centre in Sydney, with the result that there were inadequate recreational facilities, and ‘no opportunity for privacy … including during ablutions’. HREOC and the Commonwealth Ombudsman must also contend with the fact that ACM is notified in advance of their visits.A detainee at Maribyrnong told HREOC: ‘You guys are coming today so they cleaned the bathrooms three times and sprayed with perfume. This should be done all the time.’Another claimed:‘Lunch today is only the third barbecue. It’s because you guys are here. Why can’t they have it more often? Organising the barbecue today is deceptive, as if it’s something they do all the time.’ Psychologist Lyn Bender, who worked at Woomera in March and April 2002, describes how guards organised games of cricket and soccer during visits to the centre by a team of auditors and a delegation from the State government of South Australia to investigate the welfare of child detainees. She says the officers ‘were suddenly playing conspicuous cricket and soccer in front of the compound with much loud cheering and noises and fuss made’, although she had never witnessed such games previously. She says the children understood exactly why the guards were doing this, but their faces nevertheless lit up with excitement.‘It is what happens in an abusive environment,’ she says. ‘The tiniest of gestures is just fallen upon like starving ravenous people fall upon food.’ Lyn Bender says the games petered out again after about a week. Richard, the ACM officer who confided in me, confirms that there is always a clean-up before independent observers come in to inspect conditions. For example, he says, if extra mattresses are being used by detainees to sleep on the floor owing to overcrowding, those mattresses will be placed out of sight before the official visitors arrive. The Ombudsman has the powers of a Royal Commissioner, which means that it could demand entry to the detention centres for its officers at any time without notice. It chooses not to do so. ‘They control

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the facilities. It is simpler to organise it with their concurrence,’ explains John Taylor.‘The Ombudsman only has recommendatory powers. Most of our formal powers are rarely used because we find that departments are generally and genuinely interested in improving their performance, so we tend to negotiate, if you like, outcomes and opportunities, to do our business. It is simpler in the long run.’ < > Gerry Hand, a former minister for Immigration in a Labor government, promoted detention as a means to deter other asylum seekers from coming to Australia. ‘The Government is determined that a clear signal be sent that migration to Australia may not be achieved by simply arriving in this country and expecting to be allowed into the community,’ he declared, when presenting the 1992 Migration Amendment Bill on detention to parliament.The same justification has been used by subsequent ministers. In 1993 Nick Bolkus told the ABC’s ‘Lateline’ that detention was ‘an important part of our armoury in terms of ensuring that those who want to come to Australia think very seriously about whether they are refugees before they come here’. The present minister, Philip Ruddock, is more circumspect in reaching for this defence. Perhaps the minister does not want to expose himself to attack by human rights groups, because he knows that the use of detention for deterrence contravenes the 1985 UNHCR Guidelines on the Detention of Asylum Seekers. Instead, Mr Ruddock and DIMIA officials now tend to adopt the circular argument that detention is required under the Migration Act. In other words, it is policy because it is the law. It is also claimed that detention helps ‘maintain the integrity of Australia’s migration and humanitarian programs’, though what this means is never spelt out. Does it mean that we must lock up asylum seekers who arrive without a visa because they have broken our immigration rules? Is it meant to ensure the compliance of others? If so, then detention is really a form of punishment, an arbitrary term of imprisonment that is subject to no formal charge, no court of law and no set time-limits. Detention is also justified on the basis that detainees are ‘immediately available for health checks’.This may justify a brief period of initial detention on arrival, but it is no defence for keeping people locked up once any urgent public-health issues have been addressed.The same applies to identity checks. Detention may be warranted if serious doubts exist about a person’s true identity, or if a person refuses to cooperate in establishing their identity, but these cases will be the exception rather than the rule. Finally, it is argued that detention ensures that people are ‘readily available during processing of

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any visa applications’ and, if their applications fail, detention ensures that ‘they are readily available for removal from Australia’. This is selfevident but the benefit is hardly worth the extravagant cost. If this is the main motivation, Australia could move to a British-style detention regime, in which asylum seekers are only locked up at the end of the process, when their applications for refugee status have failed, rather than at the beginning. Other motivations for detention remain unspoken. One is to keep the anti-immigration lobby quiet by taking a tough line on ‘illegal immigrants’. As a former departmental officer puts it, ‘with the political culture we’ve got, you cannot let people wander around freely’. More insidious is the desire to limit the number of claims for asylum by locking people up and keeping them ignorant of their rights under Australian law. Achieving these dubious aims exacts a high toll. Regardless of how compassionately and professionally the detention centres are run, regardless of what level of external scrutiny is allowed to monitor conditions in detention, the policy of locking up asylum seekers is in itself an abusive policy. < > In the leafy surrounds of Royal Park, within a lion’s roar of the Melbourne Zoo, nestles a collection of low-slung, cream brick bungalows with gardens gone to seed. These are the offices of the Victorian Foundation for the Survivors of Torture, which has provided support and trauma counselling to asylum seekers and refugees since 1988. Psychiatrist Dr Patrick McGorry was a founding member of Foundation House and continues to work there as a clinical consultant, alongside his other work at the University of Melbourne. He has seen a great many asylum seekers in detention. ‘It is almost like a horrible sort of psychological experiment,’ he says. ‘It is a very demoralising experience being detained indefinitely and often for very long periods, without any sort of sense of when you are going to get out or what is going to happen with your case.There are examples of this in psychological textbooks where laboratory animals or even human subjects have been placed in these sorts of conditions and it has been shown that it is a tremendously demoralising and stressful experience for them. Depression is almost inevitable, severe stress and the effects of all that occur, and we are talking about people who have already been traumatised and who are already probably suffering from psychiatric problems of various kinds. So it is a system devised to maximise morbidity and suffering.’ Dr McGorry says prolonged detention ‘just erodes people’s sense of the future, their sense of themselves’ and you

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see people ‘dissolving away before your eyes’. He cites the case of a man from Sri Lanka, who was in detention for more than two years.‘If you saw pictures of him when he went into detention, then he was a very youthful-looking person, a very creative artist. He painted lots of great pictures. After two or three years of detention he was grossly overweight, dishevelled, looked like almost an elderly demented person. He was severely depressed, actively suicidal and in a terrible state when I first saw him.’ Detention, as Mr Ruddock is fond of saying, is no ‘holiday camp’; yet it could still be regarded as something of a haven compared to the conditions many refugees have previously endured. For many asylum seekers, though, being locked up in Australia compounds the injuries that they have already suffered.‘It’s like rubbing salt in the wounds,’ says Professor McGorry. ‘They come here expecting a better form of response, almost like a rescue, and what they get instead is further abuse, even though you could say it is trivial compared to what they have been through. But when it is poured into an open wound, it’s almost experienced as being worse than the original thing.’ On the basis of his sixteen months’ work at Woomera detention centre, psychologist Harold Bilboe agrees. ‘When you meet the detainees when they first arrive there is a sense of euphoria,’ he says. ‘They are just happy to arrive and happy to be safe. They have this belief that Australia is the land of the free.’ Harold Bilboe says these positive impressions are gleaned from advertisements marketing Australia as a tourist destination, especially those produced during and after the 2000 Sydney Olympics. He says asylum seekers expect to find a country that supports multiculturalism, freedom of religion, freedom of association and freedom of expression. ‘Initially, 90 per cent of asylum seekers do not have a problem with detention on arrival,’ he says.They understand that health and security checks need to be made. Serious problems begin to emerge after people have been locked up for six months or more, with no understanding of what is happening to them or why the process is taking so long. He thinks that traumatisation of detainees is so serious that Australia could be guilty of psychological torture. Harold Bilboe says that medical professionals who do want to refer a detainee for psychiatric assessment find it almost impossible to do so. ‘In Canberra if someone was to self-mutilate or self-harm, then they would be put in hospital for six weeks with ongoing therapy under the supervision of a psychiatrist and no one would bat an eyelid.’ Usually the only psychiatric support that Harold Bilboe could get in his work with disturbed detainees was a tele-conference in which the psychiatrist would prescribe medication over the phone. ‘In one case I actually got the psychiatric support I needed,’ he says. ‘It worked out very well for that detainee because they were admitted to hospital and

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provided appropriate medication under the direction of a psychiatrist.’ The effect of detention on children and families is especially traumatic. My sister Sarah is a psychiatrist who specialises in child and family health. In early 2002 she and three colleagues were invited to accompany lawyers representing detainees on visits to detention centres. The lawyers asked them to conduct assessments and provide medico-legal reports for some of the children and families they were most concerned about. Sarah, two other child psychiatrists and a social scientist made these visits, and were shocked by what they observed. They wrote up their findings for a professional journal, warning that detention not only had an impact on individual adults and children, but ‘on the family process itself ’. In an article for the June 2002 edition of Australasian Psychiatry, they note that at the time of their visits to people in immigration detention centres (between December 2001 and March 2002) ‘there was no information about the extent of mental health problems in this population, no access to undertake such screening and no confirmed arrangements between State Departments of Health and Family and Community Services for provision of adequate mental health assessment and treatment for those families in need’. The Faculty of Child and Adolescent Psychiatry had repeatedly offered to undertake screening for mental health problems in detention centres, an offer subsequently echoed by the Committee of Presidents of the Combined Medical Colleges.The response from the Immigration department had been ‘inconclusive’. In their article my sister and her colleagues leave no doubt about their view of the detention of children, remarking that ‘psychiatrists have a moral obligation to oppose inhumane policies and practices’. They conclude that immigration detention ‘profoundly undermines the parental role, renders the parent impotent and leaves the child without protection or comfort in already unpredictable surroundings where basic needs for safe play and education are unmet’. The parents’ capacity to meet the emotional and physical needs of their children ‘is severely compromised by their own untreated depression and despair in the context of ongoing detention’. Parents have difficulty providing ‘comfort, care and protection, and transmitting hope about the future’. Lyn Bender witnessed this process of family breakdown when she provided counselling to an Iranian family detained for more than a year at Woomera. ‘The whole family was disintegrating,’ she says. She saw them after the thirteen-year-old son had tried to hang himself. As a result, the boy was placed with his father in an ‘observation room’. There are six observation rooms at Woomera, located on either side of a corridor behind the medical centre. The concrete block rooms are each about the size of a prison cell, with a toilet and a window so that

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they can be viewed from outside.An officer sitting at a desk outside can also monitor the rooms via closed-circuit video system. Lyn Bender says the rooms offer ‘the crudest form of safety’ for detainees, who are extremely distressed and threatening suicide. She says the rooms were also used like a lock-up, for the ‘management’ of detainees who became angry and who ACM guards felt needed to be restrained. Detainees have their meals in the room and are only taken out to be escorted by guards to go to a more private toilet or to shower. There is no television and nothing to do. For the thirteen-year-old Iranian boy and his father, she says, being in the room was torturous. She got them released after twenty-four hours, but the boy again threatened self-harm and they were readmitted. Lyn Bender says the boy needed to be taken out of the detention environment. ‘He was saying “If I could just be out, away from these fences, I wouldn’t want to kill myself ”’, she says. ‘You don’t see that as blackmail. That seemed perfectly reasonable to me. He’d just got to the end of his tolerance.’ Lyn Bender tried to get him admitted to Woomera hospital, but there was no space. The doctor at the hospital was concerned about the number of detainees already admitted for similar reasons. The boy’s mother was one of those detainees occupying a hospital bed. She had been suffering from depression, and her condition worsened after her son’s suicide attempt and she was hospitalised. ‘She was immobilised,’ says Lyn Bender. ‘She would not get out of bed, she would not talk, she was not eating.’ Lyn Bender also did a consultation with the boy’s ten-year-old sister but the girl refused to talk to her.‘She sat in my office … and tore up the paper towelling. Just sat there and tore it up and strewed it around the room. I think that was about how she was torn up inside.’ Lyn Bender believed the whole family needed to be removed from detention. ‘They were crumbling,’ she says.When she raised their case with ACM health-workers, it was as if she had not spoken. Lyn Bender came to see working at Woomera as like being a doctor in a war zone, where you patch people up so that they can go out and be injured again.‘In the end you feel complicit in a system that is abusive and destructive,’ she says. By attempting to make detention more bearable, she felt as if she was shoring up the system because, when public concern grew about acts of self-harm, government ministers could say, ‘we have a psychologist dealing with the problem’. Even in less extreme cases, or in cases where detention is not so prolonged, the situation for children is bleak. Lyn Bender says that in March and April 2002 the only facilities for children were play gyms designed for children under ten years of age.The children had already ‘wrung everything they could’ out of the equipment and she rarely saw it used. ‘I saw one lonely father with his ten-year-old daughter sitting

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there,’ she says. ‘He was sitting beside it and she sat on the slide. It was ghostly.’ Lyn Bender says she hardly ever saw children playing. ‘They were playing with rocks.They had pen and paper.That was about it.’ One physical manifestation of the psychological distress of child detainees is bed-wetting. In the article written by my sister and her colleagues, they describe seeing mattresses lying outside in the sun to dry. They were told that ‘many children, even up to the age of twelve, are incontinent day and night’. Paediatrician Dr Annie Sparrow confirms this. In her two short stints at Woomera she encountered a high incidence of incontinence ‘which is a physical manifestation of undue stress in children of all ages’. She says the best way to treat the children would have been to remove the source of their distress, in other words to take them out of detention. As this was impossible Dr Sparrow decided to prescribe medication. The alternative was to have children of up to twelve years of age wearing nappies at night, or continue wetting their beds, ‘which means they feel depressed and embarrassed, demoralised,’ she says.‘And, of course, parents are not in a position to easily wash and change the bed clothes.’The problem was so prevalent that Dr Sparrow ordered a dozen bottles of desmopressin or DDAVP. Each bottle cost about $70 and would last one or two months per child. Concerned about the cost, the manager of the medical clinic intervened and cut her order back to just two bottles. New reports of the destructive impact of detention come as no surprise to psychologist Maritza Thompson. She has been researching and documenting the phenomenon in Australia for the best part of a decade. Now a student counsellor at Southern Cross University and TAFE in northern New South Wales, she has a wealth of experience in working with refugees and asylum seekers both in detention and in the community. Maritza Thompson’s experience dates back to 1987, when she began providing settlement services to newly arrived refugees who had been released from prisons in Chile and other Latin-American countries. As a result of this work she began researching the psychological impact of torture and other forms of organised violence on refugees. As a native Spanish-speaker, Maritza Thompson focussed initially on refugees from Latin America who had been granted permanent residence in Australia. Over time she came into contact with other refugees, from countries in Africa, Asia and the Middle East, and with asylum seekers who were living in the community but whose future residency status remained uncertain. Then she met a refugee from Somalia who, along with her four children, had spent eighteen months in detention. Maritza Thompson began to ask herself what was happening to those asylum seekers who were still locked up in centres such as Port Hedland or Maribyrnong. She started to work closely with refugee lawyers, providing psychological reports to support clients’

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applications for protection visas, and giving briefing and debriefing sessions to assist clients in coping with appearances before the Refugee Review Tribunal. She began meeting asylum seekers in detention and before long was receiving calls from the manager at Maribyrnong detention centre — an Immigration department official — asking her to come in and assess people. ‘I was invited in by the detention-centre manager to assist with particular cases and to provide guidance to staff,’ she says. The relationship was cooperative. Maritza Thompson felt the detention-centre manager was genuinely interested in her professional advice, that he wanted to improve conditions and enhance the mental wellbeing of detainees. ‘I was able to work with the manager to get people out of detention if that was best treatment option,’ she says.The level of trust with both management and detainees built up to such an extent that Maritza Thompson was called in to help end a hunger strike by a group of forty-five Tamil asylum-seekers from Sri Lanka. As her practical experience and body of research grew, Maritza Thompson began developing a model for working with asylum seekers both inside and outside of detention. In 1994, in order to take her research a significant step further, she put a submission to the then Labor federal government, requesting permission to go to all detention centres in Australia to assess detainees.‘One of the aims was to demonstrate that we had an assessment package that would give a clear indication as to the psychological wellbeing and history of a person,’ she says.‘I believed it to be a successful tool to give an indication of where a person is at, and the history of that person.’ In Maritza Thompson’s view, an adequate assessment of asylum seekers on arrival is crucial to providing for the wellbeing of the individual or the family. While she was on a trip overseas, Maritza Thompson was informed that her submission had been approved.‘I thought that it was an amazing opportunity to go in and assess people in the most objective way possible,’ she says. ‘My intention was not to prove the government had it all wrong, but to look at how we could make it better. This would also facilitate the work of the people in detention centres.’ Maritza Thompson felt that she had some support from Immigration department officials for her work; but, when she returned from overseas, she was told that permission to undertake the assessments had been withdrawn. ‘I never understood why,’ she says. Psychiatrist Patrick McGorry, who supported Maritza Thompson’s submission, says he was not surprised that her work was blocked at the official level. ‘It is a sort of a repressive process. Governments always want to hide these things.’ He believes that the prospect of accurately documenting the level of morbidity in detention centres made the Immigration department nervous. ‘We didn’t have any trouble at all in going into Victorian prisons in the late 1980s and doing surveys of

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psychiatric morbidity.That wasn’t a problem because it was not a politically charged sort of issue and they were genuinely interested in finding out what levels of psychiatric problems there were, whereas in this situation it is very threatening to them.’ When Australia’s immigration detention centres were privatised in late 1997, Maritza Thompson found that her access to Maribyrnong came to an end. Only service-providers who had signed formal contracts with ACM were permitted to provide counselling and assessment services to asylum seekers in detention. She managed to continue her work by interviewing refugees who had been recently released from detention. With the assistance of Patrick McGorry, she compared the experiences of detainees to three other groups: to normal migrants, to offshore refugees who had been resettled in Australia with the status of permanent residents, and to asylum seekers living in the community. There were survivors of torture and other forms of organised violence included in all groups. ‘I wanted to better understand survivor strategies in the face of extreme suffering,’ she says. ‘To explore whether there are differences in the psychological impact of torture and other forms or organised violence on refugees with permanent residence, asylum seekers in the community and asylum seekers in a detention centre.’ What she found was an ascending scale of mental illness, from migrants at the low end to asylum seekers in detention at the top, with resettled refugees and asylum seekers living in the community at points on the scale in-between. Not surprisingly, survivors of torture and other forms of organised violence exhibited higher levels of depression, anxiety and phobias than those who had not experienced such traumatic events and Maritza Thompson found that the symptoms varied according to a person’s status in Australia.Those with permanent residence were likely to exhibit fewer signs of ill-health, whereas the uncertainty of being an asylum seeker in the community was a stress factor that could re-ignite the trauma that a person had already been through. The worst mental-health problems, however, were found amongst asylum seekers in detention. Maritza Thompson says that the experience of detention broke down the coping mechanisms that had enabled refugees to deal with their trauma before they came to Australia. The sense of helplessness and the hopelessness they experience can trigger off all the trauma that a person has been through, so that they are condemned to re-live their worst experiences. Maritza Thompson says that ‘any sense of personal control’ is lost because asylum seekers who come to Australia with a sense of hope have no understanding of why they are then locked up. ‘In their own country, they know they are in prison for a political purpose or because of their religion,’ she says. ‘Here they do not understand why they have been

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imprisoned. “What have I done wrong? Is it my skin colour? Is it my political views? Is it my religion?” Numbness overtakes their minds.’ She says that detainees, because they are often separated by language barriers and ethnic differences, are effectively silenced, which ‘colludes with the practice of torture and trauma’. The findings of Maritza Thompson and Patrick McGorry lend scientific weight to the view that detention is a direct contributor to the severity of psychological distress in asylum seekers. In 1998 the minister’s Refugee Resettlement Advisory Council reached a similar conclusion. After examining the settlement needs of refugees who had been held in detention, it concluded that former detainees were an especially vulnerable group.The committee recommended that they be given special assistance with the process of resettlement in Australia. Instead, the reverse has happened.With the introduction of temporary protection visas in October 1999, former detainees are now denied access to most refugee and migrant support services, including Englishlanguage classes funded by the Commonwealth. Many asylum seekers eventually become members of the Australian community. As migrants, they confront the challenges of adjusting to life in an adoptive country. They must deal with an unfamiliar social system, a foreign culture, a new language. As refugees, they may carry the scars of trauma experienced in their homeland or in flight. Detention adds to this burden and can only be regarded as a peculiarly short-sighted and punitive policy. It requires refugees to show enormous resilience. < > ‘When we first got out,’ says Fatima, ‘the kids and I went to bed at 7 pm and slept until 10 am the next day.’ In detention, she says, her second child was ‘jumpy and scared of everybody’. She was not eating or sleeping and was too scared to go to the toilet at night, even though it was in the same room. ‘Now she goes on her own,’ says Fatima ‘even though it is down the hallway. She is laughing and playing. There is a huge difference in the kids.’ Mustafa, too, says his children are getting better now. The family was finally released from Port Hedland after seven-and-a-half months.‘I cried,’ he says.‘I could not believe it.’ Mustafa now lives in Brisbane and is doing a computer course. His oldest boy is at primary school.‘I am trying to help him with his English,’ says Mustafa. ‘He has trouble concentrating. He thinks school is for playing only. He has trouble waking up in the morning and doing homework at night. It’s hard to get him on track.’ Mustafa’s biggest concern is for his youngest son, now four-anda-half, but barely talking. He puts it down to the experience of

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detention, especially in Singapore, where they spent the most time. ‘The children could not speak there.When they speak the guards shout at them, always shout at them to keep quiet.’ He hopes to find a kindergarten place for his son; he hopes interaction with other kids may speed his healing. And Mustafa himself? ‘I feel bad,’ he says ‘I don’t trust the days. I don’t feel that I’m getting very well. I feel that, anytime, maybe things could change. Even when I see the police now in the road, I fear them. I check everything. Do I have my driving licence? Is the car registration OK? I don’t feel stable yet.’

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The helpful man outside the Knox Community Arts Centre directed me to park on the grass.Tonight’s star performer had drawn a big crowd and the car-park was already full. It was a hot night in early March 2000 and from my inner-city home I had ventured into the foreign territory of Melbourne’s outer east to witness the minister for Immigration, Philip Ruddock, conduct a community consultation on Australia’s 2000–2001 Migration and Humanitarian Program. It was the penultimate meeting in a nationwide series of consultations ‘intended to be meaningful’, the minister said, because the government ‘should take into account the views of the Australian community as a whole’. Having first mistakenly stumbled into a Weight Watchers’ session, I then found my way into the main auditorium. I knew I was in the right place when I saw burly men in suits with wires behind their ears.They were keeping a wary eye on the scruffy young guy hawking copies of the Green Left Weekly. Just inside the door was a table cluttered with pamphlets promoting local events: the Stringybark Bush Festival, the Knox Garden Competition and screenings of the Ferntree Gully Film Society. Also on offer there was tea or coffee and biscuits, and there were glossy Department of Immigration and Multicultural Affairs (DIMA) booklets with titles like ‘Population Flows’ and ‘Protecting the Border’. Philip Ruddock had come to middle Australia to sniff the wind and to spread his wisdom. The local member for the constituency of Aston (the highly regarded Peter Nugent, who has since passed away) introduced the minister. ‘Phil,’ he said ‘is well-known as a man of ability and compassion,’ with ‘a long record in the human rights field’. He pointed out that Mr Ruddock is also ‘the father of the house’, having served as a member of parliament continuously since 1973, longer than any other sitting member — longer even, by one year, than his veteran leader John Howard. Philip Ruddock’s parliamentary career began when he won

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the seat of Parramatta at a by-election.A former president of the Young Liberals in New South Wales, Mr Ruddock was then just thirty years old, married, armed with a law degree from Sydney University and equipped with brief professional experience as a solicitor.The name of the minister’s seat has changed since then — from Parramatta to Dundas and, more recently, to Berowra — but his presence in the parliamentary chamber has been constant. It was a long time before the stellar promise of this precocious parliamentary presence found ministerial fulfilment; but, when Philip Ruddock was finally appointed to the portfolio in the first Howard ministry, he came to the job well-prepared. In the long drought of opposition during the Hawke–Keating Labor governments he had served two stints as shadow minister and sat for seven years on joint parliamentary committees dealing with migration issues. His continuity in the portfolio since 1996 contrasts with the frequent shifts under Labor, when there were six different ministers in seven years in the 1980s, before a measure of stability was achieved under Gerry Hand (1990–93) and Nick Bolkus (1993–96). At the Knox auditorium Mr Ruddock’s performance is polished and professional, if perhaps a little tepid. He begins by outlining the goals of the immigration program and illustrates his points by calling up coloured graphs and charts from a laptop at the lectern. His dominant metaphor is ‘getting the balance right’ and the first image projected on the screen is a set of scales.The words ‘humanitarian’ and ‘environmental’ are on one side; ‘economic’ and ‘social’ on the other. The minister says that the economic stimulus provided by migration must be weighed against the carrying capacity of a nation with limited water and fragile soils; that the humanitarian impulse to help the needy is held in equilibrium by the social implications of accommodating refugees and their families. The minister moves on to outline three competing visions for Australia’s population in the century ahead.The first scenario is the high-migration model favoured by some business groups, which call for Australia’s net migration intake to be set at 1 per cent of existing population per year. The red line on the graph trends alarmingly upwards, predicting an ‘inevitably rising’ population, which would hit 65 million in the year 2097. According to the minister, the business groups’ goal of 1 per cent net migration betrays ‘a certain lack of realism’. The second scenario is net zero migration, the model pushed by sections of the environmental movement and by groups such as One Nation, which say that Australia should take just enough migrants to replace the number of people who permanently depart the country each year. With falling birthrates, this would see Australia’s population slump from 20 million to 14 million within the next century. The green line on the graph sags in a depressing downward arc,

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heading inevitably towards zero.The minister’s final forecast is reassuring — according to him, if we hold fast to current government policy, Australia’s population will increase gradually for the next forty years before settling comfortably at around 23 million. This favourable outlook is represented on the graph by a blue line, which rises gently and unthreateningly before charting a stable course between the extremes of green and red. Philip Ruddock presents himself as a demographic moderate; a supporter of immigration in the national interest, at a pace that most Australians can be comfortable with. His is the reasonable middle way between the disastrous poles of inundation and decline. It is also the route of fiscal responsibility. According to the minister’s neat charts, for every 1000 people who enter the country as skilled or business migrants, there is a net gain to the Commonwealth budget of $36.7 million over five years. By contrast, family migrants cost the budget $1.8 million over the same period, while 1000 refugees and humanitarian entrants represent a much bigger burden, draining government coffers of $21.5 million. The minister’s message is simple: skilled and business migrants mean a richer Australia; family and humanitarian migration put a hole in our collective pocket. Again, the minister speaks of ‘balance’. He is proud to have cut back family visas so that they now make up less than half the places in the migration stream (down from two-thirds of all places under Labor). In practice, this means that the family category is now largely a spousal category; 85 per cent of family visas are taken up by wives, husbands, fiancé(e)s and de facto partners who cannot reasonably be denied residence in Australia. In 1998–99 there were 24,740 persons in the spousal category, almost two-thirds of them women. In that same year 6 per cent of migration places went to dependent children (2070 persons), 10 per cent to parents (3120 persons) and the rest to ‘other family members’. The government has now capped future parental intake at 500 places per year because it has found that parental migrants impose ‘a significantly higher ongoing cost to the Australian community’. The minister happily pointed out that with 20,000 applications already pending, the waiting list to bring aged parents to Australia is now forty years. Seen in narrow economic terms, migrating grandparents threaten to do nothing more than exploit the generosity of Australia’s public health system; their contribution to family stability, informal childcare, housework, cultural maintenance and general happiness cannot be so easily quantified. If grandparents are seen as an unproductive drain, then refugees and humanitarian migrants are an economic black-hole. But here the minister seeks to burnish Australia’s credentials as a good international

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citizen, a nation that is willingly shouldering more than its fair share of the global burden of misery. In the face of criticism of his policies toward asylum seekers, the minister’s constant refrain is that, per capita, Australia has the most generous refugee-resettlement program of any country in the world. He illustrates the point with another powerpoint presentation. It is a bar chart listing seven of the ten official resettlement countries: Denmark, Sweden, Norway, Canada, New Zealand, the United States of America and Australia. Along with Finland, the Netherlands and Switzerland, these are the only nations that have consistently provided permanent residence to refugees identified by the United Nations High Commissioner for Refugees (UNHCR) as people in urgent need of resettlement. A horizontal blue bar next to each country charts the resettlement places as a proportion of population — and, indeed, on this measure Australia leads the way, marginally ahead of Canada, the United States and Norway. But the second measurement on the chart rather undercuts the minister’s argument. This is another horizontal bar, coloured red, which plots the number of places granted by each nation to onshore applicants, that is, to asylum seekers who turn up uninvited within their borders and then request protection as refugees. On this measure,Australia is much less generous. If the red and blue lines are combined, then it becomes clear that Australia actually takes in far fewer refugees per capita than Denmark, Sweden, Norway and Canada. Until 2000, the minister’s claim that Australia led the world in refugee resettlement may have been technically correct in its own narrow terms — that is, when calculating the number of refugees selected for formal resettlement from offshore locations as a proportion of national population. However, a critical appraisal of international refugee statistics casts serious doubt on Australia’s claims to be a global leader in the refugee generosity stakes. In May 2001, when the UNHCR ranked the top forty asylum countries in order of their total refugee population, Australia came in at number thirty-three.When the statistics were re-worked to rank the top forty host countries for refugees as a proportion of national population, Australia did not even make the list. The UNHCR calculated that Australia hosted three refugees for every 1000 inhabitants. Armenia, which is ranked number one on the list, hosts 80 refugees per 1000 inhabitants; Iran, ranked sixth, hosts 27 refugees per 1000 inhabitants and Denmark, ranked fourteenth, hosts 13 refugees per 1000 residents. In its World Refugee Survey 2001 the United States Committee for Refugees calculates the ratios rather differently, but the outcome is no more kind to Australia. Including Palestinians in the equation (which the UNHCR does not), the Committee concludes that the ratio of refugees to the total population in Jordan is 1:3. In Iran the ratio is 1:36, in Thailand 1:285 and

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in Canada 1:566. The Committee does not include Australia in its tables, but applying the assumptions used in its equations, the relevant ratio would be 1:1145. The nub of the issue, as many other commentators have pointed out, is control — in Australia asylum seekers and refugees are seen through the lens of national sovereignty.The overwhelming view amongst parliamentarians and bureaucrats (and, one suspects, the people) is that Australia alone should decide who is deserving of its generosity.‘We as a society are saying that we want to call the shots on who we admit,’ says Chris Conybeare, who was Secretary of the Department of Immigration from 1990 to 1996. He believes this national sovereignty approach has been embedded in Australia’s refugee policies from the beginning: ‘In Australia the impulse to run a refugee program really emerged from an objective philanthropic idea in the community, from churches, refugee organisations, and so on.The impulse was to look at how Australia should fashion its position to reflect its own sense of values, as to what should be done to help suffering people. That impetus continues to inform the refugee program more than anything else.’ One corollary of this, says Chris Conybeare, is the notion that you can make decisions about who should be a refugee in the same way that you make decisions about people applying to come to Australia on the basis of their professional skills or their family connections: ‘You erect a screen and an objective set of principles based on the Refugee Convention and make decisions just like a points test’. Chris Conybeare says that Australia can no longer rely on geographic isolation to provide a natural barrier to population flows and he notes that our universal visa system ‘amounts to a massive act of market intervention in international movement of people’. Asylum seekers who arrive in Australia spontaneously pose a fundamental challenge to this regulatory model and the notion of sovereignty that underpins it. Refugees who arrive by boat and breach our maritime boundaries, or who land at our airports without valid documentation, are refusing to play by our rules, and they pay a penalty for that indiscretion. The minister denies that this approach is punitive. If we could only look at the situation from the opposite perspective, then we would see that Australia actually rewards the good guys: ‘Treating refugees differently depending on whether they arrive lawfully or unlawfully does not mean we are penalising unauthorised arrivals.What it does mean is that we are being more generous in cases where people play by the rules of the international protection arrangements and where they comply with Australia’s laws.’ This is a bit like saying that there is no penalty involved in failing an exam, merely a reward for those who pass. But it is quite clear that, even

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if we accept the minister’s logic, there are two classes of refugees in Australia: people who arrive unlawfully are second-class refugees, destined to receive only second-class treatment. When I put this categorisation directly to Philip Ruddock he bridled, but it is the inescapable inference of his own arguments. < > I travelled to Canberra to interview the minister in late June 2000.The national capital was its usual frosty self and my mid-morning flight was delayed for an hour because of mist shrouding the runway. When we finally landed, the city was basking in bright winter sunshine. The hill of lawn that rolls over Parliament House glistened a spectacular, inviting green; inside, the building still felt cold. Having never worked in the Canberra press gallery, I have not been in a position to befriend the parliament’s imposing architecture; its corridors remain an unfamiliar maze. Despite the visitor’s pass flapping on my chest, despite the camouflage of suit and tie, I am constantly expecting someone to challenge my presence, to question the purpose of my clearly confused wanderings. I approach the parliament as an outsider and always leave feeling both impressed and diminished, attracted and repulsed in equal measure. I have a lurking suspicion that I might imbibe some of the building’s hidden power if I were to spend more time there; that its grandeur might bolster my confidence, its generous proportions swell me with authority. On the other hand, it might just crush me. It was a sitting week and, when question time ran late, my afternoon appointment with the minister was delayed. I cooled my heels in the antechamber, and took in the contemporary artwork; there was a dot painting,‘Rainbow Dreaming’, by Queenie McKenzie (at the time Mr Ruddock was also the minister assisting the prime minister for Reconciliation; subsequently, he became minister for Indigenous Affairs), and ‘52 Displacements’, a series of small mixed-media pieces by Imants Tillers.These modest works were somewhat overshadowed by a lurid blue banner adorning the end wall. It showed the Australian crest surrounded by an abundance of native flora and fauna; green tree-frog, Sturt’s desert pea, platypus, waratah, and so on. Underneath were the words ‘What it means to be an Australian’. Clearly, this was meant as affirmation of our national identity, but the banner seemed to me to pose an unanswered question. Katrina, the minister’s receptionist, was in a state of perpetual motion — never sitting, moving constantly from phone to computer to type in messages for ministerial staff. During the brief interludes between calls she busied herself with methodically clipping and filing newspaper stories and with the sorting and date-marking of incoming

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mail. Apart from the prime minister and the treasurer, the minister for Immigration receives more correspondence than any other politician. In 1999 it was 38,000 letters. I notice that Katrina is carefully tearing off the stamps and putting them in a drawer. ‘The minister collects them,’ she explains, ‘and he gives some to charity to raise money.’ The minister as philatelist and philanthropist. This was a chink of insight into the person behind the position; the kind of information that, coming to Parliament House, I had hoped to gather. I wanted to get some sense of Philip Ruddock, of his philosophy and motivation. I did not believe — and still do not — that the demonising of Mr Ruddock as the ‘minister for misery’ helped to explain much about Australia’s policies towards asylum seekers and refugees.We cannot lay the blame at the feet of one man alone. I had come to Canberra in the hope of getting Philip Ruddock to put aside his ministerial mask, at least for the odd, unguarded moment. A senior refugee-welfare worker who knows Mr Ruddock well had told me that ‘he is actually a decent bloke’ even though he has ‘an arrogant demeanour’. Philip Ruddock has poured more money into torture and trauma services for refugees than any previous minister, and he has been far more willing than any of his predecessors to invoke ministerial discretion to grant visas on compassionate and humanitarian grounds. A direct appeal to the minister under s417 of the Migration Act is the final recourse for asylum seekers who have been rejected under Australia’s refugee-determination procedures. Mr Ruddock has been known to make late-night phone calls to people he trusts in order to discuss difficult cases before making a decision.As our interview gets under way, I try to get him to open up on these issues, to talk about what it means in personal terms, but he hangs tough:‘It is a big responsibility for anybody who is a decision maker,’ he says. ‘I don’t shy away from making decisions.’ I put it to him that he must hear many heartrending stories; that at times such decisions must be difficult, even agonising.‘Do I have trouble making those decisions and do I agonise about them?’ he responds rhetorically.‘Well, the simple answer is no and if I had trouble it would be enormously difficult to fulfil the responsibility. You have to be capable of taking tough decisions and being prepared to back your judgement.’ When I was first shown into the ministerial office, it struck me that Philip Ruddock was much stockier than I had realised. He was a more substantial figure than he appeared on television, or had seemed on the stage at Knox. He also looked tired and slightly irritable, as I find government ministers invariably do when observed at close quarters; there was a determined set to his jaw. For most of our interview he sat at a slight angle, talking half to me and half to the air, or perhaps it was to his press officer, Steve Ingram, who was also present during the inter-

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view. I sat at the corner of the large, ministerial desk, reaching across with a microphone to catch his words. I asked the minister how he explained the sudden surge in unauthorised boat arrivals during the second half of 1999. He said there was no simple answer, and that many different factors came into play. ‘I think we are a much more mobile world,’ he said. ‘I think that there is a lot more wealth in many parts of the world. I think that there is a greater knowledge of what is going on in different parts of the world.’ He agreed that there were push factors, which had ‘encouraged’ Afghans and Iraqis to leave countries in the Middle East where they had, until now, found temporary refuge. In the minister’s view, frontline states in the Middle East refugee crisis — Pakistan, Iran and Jordan — have not received enough help in accommodating people fleeing Afghanistan and Iraq:‘There have been other crises that have occupied the world’s attention in the last twenty years, which have taken people’s eye off what is happening in places like Pakistan, and Iran and Jordan. The international community has focussed on the Great Lakes Region of Africa, on Kosovo. I mean you’ve had a number of very significant crises since the problems first emerged with Afghanistan, and more recently with Iraq, and they have assumed a great deal of the resources that are available.’ It is not a point that I have heard the minister raise elsewhere; perhaps if he had there might be a little more public understanding of the boat-peoples’ flight. The second factor that Mr Ruddock identifies in explaining increased boat-arrivals brings him to a more familiar theme — the growth of people-smuggling. ‘It’s become a lucrative and profitable business,’ he says, ‘and they are in the business, like most businesses, of looking for new areas for exploitation. For instance, I have no doubt that what we saw when boats were coming down the east coast of Australia, bringing Chinese, very much larger boats which had navigational aids and equipment, that they were in the business of market development. Now why has it stopped? Well, the answer is very simple. Essentially, in Australia few Chinese engage our protection obligations and they can in fact be sent back, and there is nothing more galling to a people-smuggler than to find his clients back, unsuccessful, and it stops. And we have not had a boat arrival from China now for something like twelve months or eighteen months.’ The minister then makes the same point in reverse to explain the surge in arrivals from the Middle East.The increase in asylum applications from Iraqis, Afghans and Iranians ‘reflects the generosity of our refugee and humanitarian program’. He says the 14,000 Iraqis and 5000 Afghans already settled here act as a pull factor in the sense that ‘they are able to talk about Australia, write about Australia, encourage people

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to think about Australia’. He says that relatives or friends in Australia encourage some people to come by boat, that they send money to help pay the smugglers. He claims that some Australian residents are actively engaged in running the trade. ‘Then you’ve got to look at how you deal with that outflow,’ he continues. ‘Now, normally we would deal with an outflow of people, where they have non-bona fide claims, by sending them back, but we are now dealing with a group of people whose claims are generally upheld.’ I am taken aback by this statement. The minister’s unmistakable inference is that these recent arrivals to Australia — this group of people ‘whose claims are generally upheld’ — are not ‘bona-fide’ refugees. Surely, if a claim is ‘upheld’, that person is then a ‘bona-fide’ refugee? ‘I use the word advisedly,’ he replies.‘One suspects that the very high level of approvals in Australia reflects the difficulty in being able to disprove what people tell you and so they [the refugees] deserve, quote, “the benefit of a doubt”.’ In the minister’s view Australia’s refugee-determination procedures are excessively generous and for this he blames the courts.‘We’ve got a gloss,’ he asserts, ‘a judicial gloss that develops over a period of time from the individual decisions that are taken that means that we are dealing with a different Convention to the one that the international community has accepted.’ The minister backs up his argument with statistics, pointing out that when the UNHCR assesses Iraqi refugee applications in Jordan, or in Syria, only 15–20 per cent are accepted, whereas Australia has an acceptance rate for Iraqis close to 100 per cent.‘My own judgement is that it is much easier through the system that we operate for people to get claims up, than it is if the UNHCR is having to do the same work.’ At first glance, the minister’s argument appears compelling, but there are statistics and there are statistics. According to its provisional statistics for the year 2000, the UNHCR only recognised 17 per cent of Iraqi asylum-seekers applying in Jordan as refugees (of 10,269 cases finalised, 1790 applicants were granted refugee status). In Syria the recognition rate was 16 per cent (4850 cases finalised, 778 granted refugee status). In the same year in Australia 88 per cent of Iraqi applicants were granted refugee status (2175 refugees out of 2466 cases finalised). However, approval rates below 20 per cent in Jordan and Syria do not mean that more than 80 per cent of Iraqi applicants were rejected in those countries; the statistics are skewed by large numbers of cases in which no official decision is made.These cases — described as ‘otherwise closed’ — may include asylum seekers who move on to other countries, who withdraw their applications or who are granted residency on other grounds. (More than half the Iraqi cases considered in Jordan were ‘otherwise closed’ in

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2000, as were 40 per cent of cases in Syria.) The UNHCR also recorded relatively high recognition rates for Iraqi applicants assessed in Kuwait (64 per cent) and Lebanon (43 per cent) and high approval rates were recorded in some other developed countries which, like Australia, have their own refugee-determination system (Belgium, 70 per cent; Canada, 67 per cent; Germany, 58 per cent). If, instead of Iraqis, a comparison is done on approval rates for Iranian asylum-seekers, then the situation looks different again. In 2000 Australia recognised about 31 per cent of Iranian asylum-seekers as refugees (of 647 cases finalised, 200 applicants were granted refugee status). This was half the UNHCR recognition-rate of 63 per cent for Iranian asylum-seekers in Turkey in the same year (of 3499 cases finalised, 2197 were granted refugee status). In Pakistan the UNHCR approval-rate for Iranian asylum-seekers in 2000 was 48 per cent. In Canada, where the government does assessments, it was 63 per cent. In other words, in international comparisons, Australia appeared extraordinarily tough on Iranians who apply for refugee status. The fundamental point is that it is possible to read refugee statistics in all sorts of different ways, and produce all sorts of different outcomes. The 1951 Convention does not prescribe the mechanisms that treaty signatories should use to determine whether or not a person fits the definition of a refugee.As a consequence, asylum seekers are assessed in varying ways around the world, according to different legal and political regimes. This means it is hazardous to make direct comparisons between particular results in particular countries. For example, Sweden appears at first glance to be extremely tough on asylum seekers, accepting less than 3 per cent as Convention refugees. However, Sweden allows around 40 per cent of all applicants to stay on humanitarian grounds; in the year 2000, 80 per cent of Iraqi applicants and 75 per cent of Afghan asylum-seekers were allowed to stay in the country. Arguably, the best test of Australia’s generosity towards refugees is arrived at if the statistics are broadened to include asylum seekers from all source countries. If this is done, then Australia’s refugee-recognition rate appears to be very much in line with that of comparable nations and with the UNHCR. In the year 2000 the total average recognitionrate for asylum seekers by national governments and the UNHCR around the world was 19.9 per cent — or 26.4 per cent if the ‘otherwise closed’ category is removed from the statistics. Australia approved between 24 and 25 per cent of asylum claims in the same period. In other words, there was nothing particularly generous about our recognition-rate in comparison to other countries. Philip Ruddock worries that refugees who arrive illegally will ultimately overwhelm our offshore resettlement program. He points out that most of the people arriving by boat are young men; that for each

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of them who ends up being granted permanent residence there are, on average, more than three close family members overseas who would then be entitled to join them. This is one reason for the introduction of temporary protection visas, which render refugees ineligible to sponsor relatives to Australia.The minister also fears that the unauthorised arrival of asylum seekers, particularly boat people, threatens to undermine the efficacy and credibility of Australia’s migration program overall. ‘It creates, in the minds of the Australian public, a cynicism in relation to the programs generally,’ he says, ‘and it then enables the xenophobia, the Pauline Hansons of this world, and so on, to focus on it in a way which undermines the benefits.’ Mr Ruddock is concerned that the antagonistic response to unauthorised arrivals will gradually erode public support for the humanitarian component of our migration intake. In other words, ‘onshore’ arrivals put the ‘offshore’ resettlement program at risk. He thinks Australians should feel ‘very proud’ to have one of the largest per capita refugee-resettlement programs in the world, with around half-a-million members of our population settled here under refugee programs. ‘I don’t like to see that program undermined,’ he says. ‘I don’t like to see places being lost for those that we know are refugees, to those whom, at best, would have what I call marginal claims.’ In the minister’s view, the claims of boat people and others who arrive unlawfully in Australia to seek asylum are ‘marginal’, even when those people are recognised as refugees by Australia’s rigorous and much-praised refugee-determination procedures. In other words, I say to him, they are second-class refugees. ‘Well, no,’ the minister replies. ‘I’m simply saying, that those who have the money to engage smugglers … they are [the ones with] claims that get up at the margin.They are not those who are assessed as having a priority of need. Yes, I am concerned that the priority of need cases miss out.Yeh. Not ashamed of saying that at all.’ As Mr Ruddock readily admits, this is his major defence. People who criticise his policies fail, he says, to own up to the logic of their own position. ‘If what you are saying is that the people who ought to be accommodated are those who have got the money to engage people-smugglers to get here, that that is where your priority should lie, well, you know, have the courage to defend it. But I don’t find too many that want to do that.’ Inevitably, my discussion with the minister turns to the issue of ‘queue-jumping’. The image of the ‘queue-jumper’ provides the most potent and marketable justification for the government’s tough asylum policies. ‘Queue-jumpers’ (or, as the minister also puts it, people with ‘marginal claims’) are snatching scarce visas from the hands of the most needy, those who are identified for resettlement by the UNHCR and offered a place through Australia’s offshore humanitarian and refugee

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program. I put it to the minister that this problem could be easily solved if the two programs, ‘offshore’ and ‘onshore’, were kept separate: if the 12,000 precious resettlement places were quarantined from the unpredictable annual fluctuations in boat arrivals and other ‘onshore’ claims for refugee status. This was the situation under Mr Ruddock’s predecessor, Nick Bolkus. Moreover, the UNHCR has made it abundantly clear that it believes ‘onshore’ and ‘offshore’ intakes are qualitatively different and should not be confused. I also questioned the accuracy of the government’s queue-jumping analogy, given that most ‘offshore’ places go to people who are sponsored by relatives or community organisations in Australia. The minister swivelled around in his beige leather chair to face me.The tables were turned as he became the interviewer, I the subject. 58''2&.$UH\RXWHOOLQJPHWKDWLVTXHXHMXPSLQJ" 0$5(6 1R QR QR ZKDW ,·P VD\LQJ LV WKDW PRVW SHRSOH FDQ·W HYHQ MRLQ WKDW TXHXHRUFDQ·WKDYHDQ\KRSHZKHQWKH\JHWWRWKHKHDGRILWRIKDYLQJDQ\ VXFFHVV 58''2&.%XW,PHDQWKDWLVLQIDFWULJKWLVQ·WLW0RVWSHRSOHDUHQRWJRLQJWR JHWUHIXJHHUHVHWWOHPHQWSODFHV$XVWUDOLDKDVWKHODUJHVWSHUFDSLWDUHIXJHH SURJUDP LQ WKH ZRUOG  SODFHV DQG WKHUH DUH  PLOOLRQ UHIXJHHV DQGSHRSOHRIFRQFHUQDQGGLVSODFHGSHRSOHDURXQGWKHZRUOG1RZ GRHVQ·WWDNHPLOOLRQ 0$5(6:K\QRWDWOHDVWTXDUDQWLQHWKRVHIURPRQVKRUHDUULYDOV" 58''2&.:K\QRWWDNHPLOOLRQ" 0$5(6PLOOLRQSHRSOHDUHQ·WDUULYLQJRQRXUVKRUHV,PHDQZKDW,DPVD\ LQJLVZK\QRWTXDUDQWLQHWKHDQGDOORZWKHRQVKRUHFDWHJRU\WRJRXS DQGGRZQ" 58''2&. 1R QR QR /HW·V GHDO ZLWK WKH LVVXH RI SULQFLSOH ILUVW :K\ QRW  PLOOLRQ" 7KH LVVXH RI SULQFLSOH LV WKDW WKHUH DUH SHRSOH ZKR KDYH UHIXJHH UHTXLUHPHQWVDQGKHUHLV$XVWUDOLD:K\QRWPLOOLRQ"
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At this point the minister laughs. He knows that he has found out the weak point in my position — a loose end that cannot be neatly tucked away. Support for refugees and for the Convention implies that all asylum seekers should have their claims honestly and fairly assessed, and that all who qualify as refugees shall find protection. But where would I, as a heart-on-sleeve liberal, draw the line on people seeking asylum in Australia? Would there come a point where I switched sides to join those calling for the pipeline to be blocked? Would 50,000 applications per year, like in Switzerland, be too many? Or 100,000, like in Germany and the United Kingdom? I am forced to confront the fact that the imagery of waves and floods does not simply wash past and leave me untouched; deep down, I share some of the popular fear of invasion, if only on a subliminal, irrational level. But, while the minister makes a point of principle, his scenario is ultimately abstract and irrelevant.There are not 100,000 people arriving on our shores, let alone the 21 million, and there is no reason to think that there will be anything like this number in the foreseeable future. Australia’s armoury of defences, both natural and artificial, is far too comprehensive. This does raise other ethical dilemmas. Do I, as a writer sympathetic to refugees, support or oppose the $5000 fines that are imposed on international airlines to discourage them from bringing passengers to Australia without the proper documentation? Or the posting of Australian officials to major airports in Southeast Asia as Airport Liaison Officers, where their job is to help airline counter staff detect false documents and visas? Because, let’s face it, every day such measures prevent legitimate refugees from availing themselves of Australia’s protection, seeing that they simply cannot find a way to get here. There are flaws in the minister’s argument, too. In rejecting the idea of quarantining Australia’s ‘offshore’ refugee and humanitarian program from the fluctuating number of ‘onshore’ arrivals, he says: ‘We have a program and the program is 12,000 and we have a budget appropriation to accommodate 12,000 people. What you are saying is, put that priority aside, take the cost whatever it is, in terms of whoever turns up. The message that you would be sending to the rest of the world, would be “all you’ve got to do is get to Australia and you will be accepted and there will be no consequences”.’ The minister may not like to admit it, but this is exactly how the situation stands under the Convention: whoever lands here and can demonstrate a well-founded fear of persecution is entitled to our protection. Supposing unauthorised arrivals jumped to 20,000, or 30,000, or even 40,000, and all those people were able to demonstrate a wellfounded fear of persecution, Australia would then be obliged to offer them protection.We may have set a humanitarian intake of only 12,000

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places, but no quotas are set on our international obligations under the Refugee Convention. Philip Ruddock has a reputation as a man of principle, a man active in the church, as one who has a sharp intellect. Much has been made of his membership of Amnesty International; he is a past president and past secretary of the parliamentary Amnesty group, and frequently sports the Amnesty badge on his lapel (though the organisation has requested that he desist from doing so while carrying out his ministerial duties). Mr Ruddock has been known as a leading ‘wet’ within the Liberal Party; a ‘small l’ liberal, who believes economic rationalism should be tempered by compassion. In the past he has demonstrated his readiness to sacrifice ambition rather than abandon principle. On 1 August 1988 John Howard, then opposition leader, was interviewed by radio jock John Laws. Howard had just launched the idea of ‘One Australia’ as an alternative to multiculturalism, which he labelled as divisive. His policy also called for immigration to be based more on skill and less on family reunion. Asked if this could mean fewer immigrants from Asia, Howard replied ‘It could. Because if you have less family reunion, you may have less coming from Asia. It shouldn’t be an aim … but that could happen. I would never want to see Asian immigration stopped.’ Despite his careful qualifications, Howard had started a bushfire. He had reintroduced the question of race into decisions about Australia’s migration intake. Later that day he spoke on the ABC’s ‘PM’ program and fanned the flames. He said that ‘some people’ believed Asian immigration to Australia was proceeding too quickly. Asked to clarify his own views, Howard answered that ‘it would be in our immediate term interest and supportive of social cohesion if it were slowed down a little, so that the capacity of the community to absorb it is greater’. Despite the scorching heat he had generated, Howard refused to back away from his words and the conflagration drew forth more brazen commentators. John Stone, the shadow Finance minister fuelled the debate by declaring bluntly: ‘Asian immigration has to be slowed. It’s no use dancing around the bushes.’ Ian Sinclair, the leader of the National Party and Howard’s putative deputy in office, concurred.The White Australia policy was only recently buried, and its grave was proving rather shallow. Others within the Liberal Party launched a rearguard action to quench the blaze; a former prime minister, Malcolm Fraser, former Immigration ministers Ian Macphee and Michael MacKellar, the New South Wales Liberal premier, Nick Greiner, and the Victorian Liberal leader, Jeff Kennett — all criticised the Howard stance. They were joined by several sitting Liberal MPs, including Philip Ruddock. The then prime minister, Bob Hawke, sought to exploit the division in

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opposition ranks by introducing a motion to parliament enshrining the principle of a non-discriminatory immigration policy. Philip Ruddock was one of four Liberals who defied their leader by crossing the floor to vote with the government. It was an act of political bravery that deserves to be honoured, and perhaps Philip Ruddock has paid the price. Under John Howard’s leadership the man who once broke ranks has been placed in an unenviable position: in the portfolios of Immigration, Multicultural Affairs, Reconciliation and (since November 2001) Aboriginal Affairs Mr Ruddock has been given scant room to exercise any liberal instincts. They are issues on which the prime minister and the majority of cabinet are determined to show little, if any, generosity.As an adviser to Mr Ruddock told me: ‘He genuinely struggles with the attitudes of some of his colleagues in cabinet’. But the adviser adds the rider that the minister ‘is also incredibly ambitious and will toe a particular line if need be’. As I interviewed Philip Ruddock in his office in Canberra in mid2000, refugees were being readied to leave detention centres around Australia. In fact, the following day the minister announced that more than half the entire detainee population — 1700 people in all — was to be released over the next six weeks.Their claims of persecution had been recognised, but this was not sufficient to make them bona-fide refugees in the eyes of the minister.They would not be given any government assistance in finding housing, or in learning English; even non-government organisations in receipt of Immigration department funding had been warned not to help them. These people enter the community under a cloud of doubt and innuendo. After the break-out at Woomera detention centre in June 2000, the minister described the detainees as ‘people who may have substantial criminal records, who could be murderers, could be terrorists …’. While unveiling a video depicting the perils of the peoplesmuggling routes — leaky boats, sharks, crocodiles, and detention in the desert — Mr Ruddock announced that a war criminal responsible for ‘many, many killings’ was among recent arrivals to Australia and implied that a significant minority of the detainees may be terrorists.According to the Age, the minister said that at least one in ten illegal arrivals could interest anti-terrorist bodies. Democrat Senator Andrew Bartlett describes this as ‘fatuous, outrageous, disgraceful, vilification’. Senator Bartlett argues that it is false and divisive to assert that some refugees are more deserving than others, especially when the definition of a refugee under the 1951 Convention is already so narrow. ‘It is pretty hard to meet [the Convention definition] unless you are seriously fleeing persecution,’ he says. ‘Even then, you’ve got to have your life threatened for the right reasons.’ He admits

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that it is a difficult issue for governments, but says vilifying the boat people is counter-productive:‘All it does is reduce community sympathy across the board towards refugees’. Some of Mr Ruddock’s critics told me that they believed he had been ‘captured’ by his department. They point to the similarities with Labor’s Gerry Hand, a man who came from the left, was seen as sympathetic and compassionate, and who proved to be an extremely tough minister.This line of argument presents the Immigration department as an immutable bureaucracy, tinged with the institutional legacy of the White Australia policy. It is a simplistic view that does no justice to Mr Ruddock; it portrays him as passive, when he is clearly active; as ignorant of the issues, when he is obviously well-informed. Former departmental head Chris Conybeare says it is probably more accurate to say that the bureaucracy is sheltering behind the politician, especially when the minister ‘is being very hairy-chested’ and vowing to fix complex problems with harsh action. Politics is ‘the principal driver of day-to-day developments’ in the Immigration portfolio, according to Mr Conybeare, and this is no surprise since it is at the heart of debates about national identity.‘There are hundreds of thousands of interests jockeying for position,’ he says,‘seeking to use the immigration program for their own ends.’ In some ways this makes the immigration issue too hot to handle, and in the past there has been a largely bi-partisan approach to the portfolio at a federal level. As Bob Hawke once said, ‘I don’t think there is any other issue of importance on the Australian political agenda of which it can be said there is such an implicit pact between the two major groupings’. In the words of a former Liberal shadow minister, Jim Short, it’s about ‘not scratching too hard’. The bi-partisan effort to silence Howard after his ‘Asian migration’ comments in 1988 is evidence of this ‘implicit pact’ in action; politicians from all sides struggled gamely to stuff the race cat back in the bag. For asylum seekers, this implicit pact has had a shadow side. It has brought a conspiracy of silence on the detention policy. All major parties support detention and, despite the raft of critical submissions presented to a number of parliamentary inquiries, there has been little debate or dissent on the floor of the house. Alternatives to detention have rarely been given serious political attention. As journalist Margo Kingston wrote presciently in 1993: ‘There appears to be a shared fear by pro- and anti-detention forces that there is a dark underbelly of Australian opinion, fed by racism, resentment at outsiders demanding resources in desperately hard times, and fear of “queuejumpers” subverting our laws which, if prodded, could explode into an ugly, perhaps uncontrollable, force in Australian politics’. In 1996 the beast of Australian politics rolled over, and its ‘dark underbelly’ was exposed. The antagonistic balance between Labor and

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the Coalition was upset by Pauline Hanson’s One Nation Party and the issue Jim Short preferred not to scratch was revealed as a nasty sore. Under a Howard government there was no turning back; the disaffected who flocked temporarily to One Nation represented a lucrative block of voters waiting to be won over.According to Chris Conybeare (who regards himself as politically non-aligned, though he was one of five departmental heads forced to retire from the public service in 1996 after the Coalition won office), the Howard government found ‘rich pickings’ from the immigration area in general, and from refugee issues in particular.The adoption of tough rhetoric was designed to keep the opposition on the back foot:‘It allows them to quite mischievously differentiate themselves from previous government approaches,’ he says. ‘There is an accurate perception that these issues raise fears out in the wider community, fears that can be developed and manipulated to the advantage of the incumbent government.’ Philip Ruddock rejects any suggestion that he is engaging in the politics of fear. He says ‘it is not scaremongering to look to the hard facts about the influx of unauthorised arrivals’. But there is no doubt that the asylum-seeker/boat-people issue plays strongly in marginal electorates. No one knows this better than Labor Senator Nick Bolkus, Mr Ruddock’s predecessor in office, who also had to cope with a sudden surge in boat arrivals in late 1994 and early 1995:‘This is a frightened country,’ he says.‘For decades now we’ve been afraid of someone invading us from somewhere and I think that mentality still permeates much of the country. It is amazing the cross-section of the people who are infiltrated with this fear, the degree of xenophobia that exists as well, and envy.’ Senator Bolkus says that the ‘atmospherics’ of the issue are very important, given that talkback radio can generate a vicious loop of misinformation and urban myths. For example, the myth that Muslim and Asian refugees are guaranteed jobs and given brand new cars and houses.‘We have people holding seats in the western suburbs of Sydney and similar areas across the country who were getting the urban myths pounded into them,’ says Senator Bolkus.‘They’d bring it to Canberra, they’d bring it to Keating, they’d bring it to Hawke and they expect policy to be made on the basis of those urban myths.’ Senator Bolkus accuses Mr Ruddock of playing to that gallery, to ‘the nark mentality in the community that always wants something to gripe about’. ‘If you go through Ruddock’s performance, go through his press statements, go through his announcements, for every one time he says something positive about migrants, there’s probably nineteen times that he beats a drum that resonates with the One Nation electorate and that I think is the indictment of this minister. His job should be to create awareness of the positives of migration. But he’s out there

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playing the tune that Pauline Hanson likes to hear, too often for the interests of his portfolio and the interests of the nation.’The trouble is that, even in opposition, Labor dances to much the same melody. At the time of my visit to Canberra, Mr Ruddock’s opposite number in the shadow cabinet was the ebullient Con Sciacca. It would have been hard to find two more contrasting characters to interview, although both are solicitors, both highly articulate. Where Mr Ruddock’s answers were measured and pedantic, Mr Sciacca’s were unruly and passionate. Mr Ruddock speaks with the rounded vowels of a sandstone university, his careful tennis lobs land neatly inside the baseline. Con Sciacca’s vowels are flat and broad; he says ‘haitch’ when using the abbreviation UNHCR, and talks about refugees being ‘gen-yuwine’. His game plan was less intellectual than the minister’s; it was based more on instinct.With firmly hit ground strokes, force can compensate for a lack of control. Despite the dramatic difference in style, both men play by the same rules and compete in the same political arena. Had Labor been in office during 1999, its response to the sharp increase in boat arrivals may not have differed from the Coalition’s; indeed, as one party insider suggested to me, Labor’s approach could have been even tougher. It was Labor that originally legislated to introduce mandatory detention for asylum seekers who arrive in Australia unlawfully; the party still stands by its policy. Con Sciacca told me that he’s ‘not a great supporter of detention’, but, like Mr Ruddock, he defended it with reference to criminals and terrorists: ‘It is true what the present government and the present minister say and that is that there are many of these people who are coming over, or at least some of them, who destroy their identification, who destroy their documents, who in fact are not who they say they are, which could therefore mean that you could well be allowing terrorists or criminals into the country.’ Mr Sciacca accused Philip Ruddock of putting too much emphasis on detention, and said a Labor government would try to get people out quicker, especially those ‘who are obviously just victims of the peoplesmuggling gangs, particularly the women and the children’. But he admitted that there are domestic political pressures to be tough. Once more he echoed the minister, describing asylum seekers who arrive by boat as ‘queue-jumpers’ and ‘illegals’, as people ‘who have been able to find the money to pay people-smugglers’ and who take resettlement places away from refugees waiting patiently in camps overseas.‘The fact is that there is not a great deal of sympathy among the Australian public — and, indeed, I think the public of the whole western world — to people who jump queues, who come in here illegally,’ said Mr Sciacca. ‘The fact is that it is not politically a smart thing for any government or opposition to be supporting illegal immigrants.’

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For Philip Ruddock, the ideal world is one in which there are no onshore asylum seekers in Australia, just an offshore refugee and humanitarian resettlement program.‘We have water borders,’ he says, to explain why Australia should not expect to be a country of first asylum for refugees. The minister asserts that people generally arrive in Australia after passing through many other places where they could be safe and he believes that is where they should take refuge. If they cannot ultimately return home, or if they cannot be integrated into the first country that receives them, then the search for a resettlement place begins.This is where Australia fulfils its global responsibilities, while the UNHCR makes the judgements about who is in greatest need, and who may have reason, such as family connections, to go to a particular part of the world. ‘Isn’t that the ideal world?’ the minister asks. ‘Where the judgement is, who has the most pressing need for a resettlement place, rather than seeing those places being essentially auctioned to those who have the money to engage organised criminals to bring them to Australia?’ If the minister was right, if there could be no question that those people Australia resettles from ‘offshore’ are in all cases more deserving than self-selecting ‘onshore’ asylum seekers, then his argument would be more persuasive. But, as I have noted earlier, almost half the people Australia resettles each year come from Europe, not from the Middle East or Africa — regions accommodating greater numbers of refugees with far fewer resources. Are European refugees, living on the borders of affluence, really those most in need of Australia’s help? Most people resettled through the offshore program already have links with Australia; this connection is more significant in the selection process than their relative level of desperation or persecution. The real issue is not the relative needs of refugees; it is control — control of the border and control over the selection of future Australian residents. Australia has signed the 1951 Refugee Convention, but finds it an affront to national sovereignty. Successive governments have been irritated by their obligations under the Convention, and reluctant to provide sanctuary to those who knock on our doors uninvited. Our excuse — that we help enough in other ways through the generosity of our offshore resettlement program — is inadequate. Liberal party polling suggests that Philip Ruddock is one of the government’s best-performing ministers, admired for his consistent, tough line on boat people. He has been rewarded in the party room with standing ovations from his Liberal colleagues and he stuck with the portfolio after the November 2001 election to face off against a new shadow minister, Julia Gillard. Mr Ruddock denies that his approach to the issue is electorally driven or that he has suffered from a hardening of the heart whilst in office. ‘Despite what people say, I am not a per-

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son who has changed or is lacking in compassion.’ He says that his ultimate priority is the offshore resettlement program, which he wants to protect at all costs. But if this is true, his tactics are self-defeating. By vilifying boat people and other asylum seekers who arrive in Australia unlawfully, he puts the credibility of all refugees in question; he helps to burrow away at public acceptance of the resettlement program itself. He scratches at the wound exposed by Pauline Hanson, instead of applying a healing salve. Some observers believe Philip Ruddock is a modern-day Faust, a man whose grandiose ambition has led him to sell his soul. I am not convinced. I still believe that he sees himself as a man of principle and that he would cross the floor of parliament once more if circumstances were to require it. If the issue of race was again slammed rudely onto the immigration table, then Philip Ruddock would get up from his chair and walk away.That is a line in the sand that he will never cross. But this principled position has been fundamentally devalued by his actions in office. I come reluctantly to the conclusion that Mr Ruddock is one of the government’s frontline players in the shabby politics of division. In the contest for electoral advantage it is a sure way to score quick goals; but, when the game is done, we may find the playing surface wrecked and that sportsmanship has been abandoned. When talkback callers demand that the boat people be towed back out to sea, or when letters to the editor suggest that the best way to deter further boats is to send the navy out to sink one, there is surely a need to offer calm words, to counsel moderation, to remind Australians of the international legal obligations that we have signed up to. There is, in short, a need for leadership. Playing politics with refugees and asylum seekers is gambling with very high stakes; it puts tolerance and understanding at risk, and threatens established legal principles.At such moments one longs for the wisdom and eloquence that Shakespeare grants Sir Thomas More, as he portrays him attempting to calm an angry mob, a mob demanding that foreign refugees be expelled from England. Grant them removed and grant that this your noise Hath chid down all the majesty of England, Imagine that you see the wretched strangers, Their babies at their backs, with their poor luggage Plodding to th’ ports and coasts for transportation, And that you sit as kings in your desires, Authority quite silenc’d by your brawl, And you in ruff of your opinions cloth’d, What had you got? I’ll tell you: you had taught How insolence and strong hand should prevail,

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How [order] should be quell’d, and by this pattern Not one of you should live an aged man, For other ruffians, as their fancies wrought, With self-same hand, self reasons, and self right, Would shark on you, and men like ravenous fishes Would feed on one another. On my visit to interview the minister in Canberra in June 2000, Democrat Senator Andrew Bartlett accused the government of scaremongering and wedge politics.‘They have quite deliberately set out to generate community concern, as a way of then demonstrating how tough they can be on this imagined threat.’ He warned that the government was playing with fire and in danger of getting burnt. It had gone to such lengths to create the perception of a major crisis, that it was ‘copping a bit from the community’ for letting boat people out of detention at all. Senator Bartlett suggested that the government could be caught in a web of its own making and come under pressure to cave in to the ‘tow ‘em back out to sea brigade’. His comments proved prophetic. Within eighteen months, the government had indeed ordered the navy to tow asylum boats back out to sea.

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On the morning of Sunday, 26 August 2001, the Norwegian merchant vessel Tampa was en route from Perth to Singapore when Captain Arne Rinnan received a telex message from the Rescue Coordination Centre of the Australian Maritime Safety Authority in Canberra. The telex alerted him to the fact that a crowded wooden ferry was in distress nearby in the Indian Ocean. Any vessel within ten hours of the ferry was asked to make for it immediately, to render assistance. It took Captain Rinnan about four hours to reach the wooden boat, the Palapa 1. ‘We were the first ship at the scene,’ recalled the Norwegian captain later. He said the Tampa was directed most of the way by Coastwatch 583, an Australian coastal surveillance plane. ‘They were hanging over the ship as long as they had fuel and after that they returned to Christmas Island.’ The sea was rough and when Captain Rinnan found the wooden boat it was already breaking up in the heavy swell. First officer Christian Maltau was lowered onto the ferry, so that he could secure lines to the Tampa. As the Palapa 1 rode up against the side of the freighter in the waves, it began to fall apart even more quickly. Christian Maltau was joined on the disintegrating ferry by the Tampa’s third engineer.The two sailors hauled passengers up from the stricken boat to the safe arms of their colleagues on board the ship. Australian authorities had told them to expect to find eighty or more people on the Palapa 1 and Christian Maltau told his colleagues to report to Captain Rinnan on the bridge for every ten people that came aboard. The count quickly climbed above 100, then 200, then 300. Christian Maltau could hardly believe that so many passengers could emerge from such a small boat.‘We passed 400 and it just seemed like the boat never got empty,’ he said when recounting the drama to reporters.After three hours the rescue was complete and 433 asylum seekers had joined the twenty-seven crew aboard the Tampa.

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Captain Rinnan says it was lucky the container deck was not completely full and that the containers that were loaded on board were empty. He opened the doors of one container to create some general shelter for the rescued asylum seekers. Two other containers were turned into toilets. ‘We put a bucket in there,’ he says. Another container was opened and reserved as a place for women to rest in. Captain Rinnan found the Palapa about 75 nautical miles from Christmas Island and about 250 nautical miles from the Indonesian port of Merak. Although closer to Australian territory than to Indonesia, the distressed boat was technically in the Indonesian maritime rescue zone. Australian authorities had coordinated the rescue because their attempts to alert their Indonesian colleagues to the situation had drawn a blank. By now, however, Captain Rinnan had made contact with Indonesia’s search and rescue agency and received permission to land the rescued asylum seekers at Merak. As he steamed towards Java, however, five men came up onto the bridge to speak to him. According to Captain Rinnan, ‘they were in an aggravated mood and they said that if we did not head to Christmas Island then they would go crazy or start jumping overboard’. Captain Rinnan says he felt the situation was ‘a little bit threatening’. He says he did not know what the men meant by ‘going crazy’ and was concerned that things might get out of hand. Captain Rinnan consulted with Australia’s search and rescue authorities. He was told it was up to him, the ship’s master, to decide what to do. He told them he would turn around and head for Christmas Island, which was only four hours distant. Captain Rinnan expected to reach Christmas Island shortly after midnight. Initially, everything appeared straightforward and he says he was told by Christmas Island police that they would board the ship about 1 am. However, as the Tampa neared Australian waters, Captain Rinnan received another call from Canberra.This time it was an official in the Immigration department, warning Captain Rinnan that he risked prosecution for people-smuggling unless he turned back to Merak.The captain maintained his course for Christmas Island, but did not immediately test the resolve of the Australian government. He observed Canberra’s warning by stopping outside the 12-mile exclusion zone as he waited for advice from his employer, the Wallenius Wilhelmsen Line. By daybreak it was clear to Captain Rinnan that ‘some politics got into the picture’. Internationally, the Tampa was the subject of a heated diplomatic argument between Australia and Norway. Domestically, the container vessel and its rescued asylum seekers had become the dominant feature on Australia’s pre-election political landscape. Early in the morning on Monday, 27 August, as the sun was just rising over Christmas Island, Prime Minister John Howard convened the

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cabinet’s National Security Committee in Canberra. At lunchtime he held a media conference to declare that the Tampa ‘will not be given permission to land in Australia or any Australian territories’. The port at Flying Fish Cove was ordered to close, so that no boats could set out from Christmas Island to reach the Tampa. Captain Rinnan says he ‘tried to fulfil Australia’s requirements not to enter the territorial waters’. He kept the vessel just outside the 12-mile zone around Christmas Island, requested medical assistance for his rescued passengers and waited. By evening, no help had arrived. The stand-off continued throughout Tuesday while furious diplomatic work went on behind the scenes, between Norway, Australia and Indonesia. On Tuesday evening Captain Rinnan renewed his appeal for help, this time signalling medical distress on board in the form of a ‘pan-pan’ emergency call, one notch below a ‘mayday’. He repeated the call roughly twelve hours later, on the morning of Wednesday, 29 August. By now Captain Rinnan was deeply concerned for the welfare of the rescued asylum seekers and his ability to provide for them. He felt the situation was getting worse and worse. ‘The sanitary condition, the health condition and also the food problem. It was a big problem for us.’ In their public comments, Australian government ministers had said repeatedly that help was on its way to the Tampa but by late on Wednesday morning no assistance had materialised. Captain Rinnan decided he had waited long enough. ‘We could not do that any more because no one was coming out to help us.’ Three days after rescuing the passengers from the sinking ferry Palapa 1, the master of the Tampa defied the instructions of the Australian government and entered the waters around Christmas Island. Captain Rinnan says Australian authorities then told him that they would only render medical assistance if he sailed the Tampa back outside the 12-mile zone. ‘I refused,’ he says. ‘If I went outside again I did not know what would happen then. So I told the commander I would stay put, two to four miles off the coast’. Eventually, as Captain Rinnan puts it laconically, the Australian defence force came to his ‘assistance’. Around lunchtime he was told that a boat was coming out from Flying Fish Cove to help him. It turned out to contain SAS commandos with orders to secure the ship. Medical assistance was finally provided to the asylum seekers that afternoon. When the federal government decided to take a stand against the Tampa, there was an election in the wind and boat people were once again at the top of the domestic news agenda. Prior to the Tampa three asylum boats had arrived in the space of six days carrying almost 1000 people between them. The total number of arrivals for the month of August had already reached 1212 people. If the asylum seekers aboard the Tampa had been allowed to land, then the number of boat people

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arriving in August 2001 would have been a record, eclipsing the previous peak of 1245 arrivals in November 1999. There is some evidence to suggest that the government had been preparing to use the defence force to take firm action against asylum boats for some time. On 26 March 2002 Norman Banks, commander of HMAS Adelaide, told a Senate hearing that a prime ministerial task force had discussed using the navy ‘to intercept and deter’ boats carrying ‘large numbers of potential illegal immigrants’ as early as 1999. Commander Banks witnessed these discussions when he was working as a staff officer, Maritime Operations, at Australian Defence Force Strategic Command in Canberra. By late 2001, he said, those discussions were ‘becoming a reality’. Peter Charlton of Brisbane’s Courier Mail newspaper has written that defence force personnel told him that the SAS ‘had been training for such a contingency for some time’. When action was taken against the Tampa, however, it seemed that the government was acting out of political instinct rather than implementing a carefully crafted strategy. It did not appear that the full implications of its stand had been thought through. First,Australia wanted to send the boat and its rescued passengers back to Indonesia but, with no preparatory groundwork done in Jakarta, the Indonesian government would have none of it. The Indonesians were angry and insulted that their Australian counterparts had made the plan public in Canberra without even a phone call to Jakarta to discuss the matter first. The Foreign minister, Hassan Wirajuda, accused Australia of ‘megaphone diplomacy’. In any case, there was no way that Captain Arne Rinnan could now sail to Merak because the Tampa was neither equipped nor insured to set out to sea with that number of passengers on board. The UNHCR offered Australia a way out of the impasse. If Canberra allowed the asylum seekers to land and be processed on Christmas Island, then it would find other countries willing to resettle those found to meet the definition of a refugee contained in the 1951 Convention. New Zealand and Norway were both willing to assist under this scenario. Other countries, such as Britain and Canada, were in the process of being consulted. To the Howard government this looked too much like a back-down. It was reluctant to allow the Tampa asylum-seekers any access to Australia’s legal process. Instead, the government tried to push emergency legislation through parliament to give it sweeping powers to force the Tampa — and any subsequent asylum boat — back out to sea. The bill would have enabled the prime minister or his Immigration minister to empower (‘whether orally or in writing’) any customs officer, Immigration department official, police officer or soldier, to exercise ‘his or her absolute discretion’ in directing the master of any ship, and any person aboard any ship, ‘outside the territorial sea’ of Australia. No court would have had the power

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to review such action and no officer would have been subject to civil or criminal prosecution for enforcing such a directive. As the opposition leader, Kim Beazley, pointed out, the bill would have made it legal ‘to order a boat that was sinking out to sea and people would drown’. Up to this point the opposition had supported the government’s stand on the Tampa, but the provisions of the bill were so sweeping that Labor refused to pass it. By Saturday, 1 September, it looked as if the government’s impulsive decision to block the Tampa might backfire. Its draft legislation had been defeated, Indonesia’s president was refusing even to take a phone call from John Howard and Australia’s actions had provoked a storm of international criticism. SAS commandos were on board the Tampa but the ship was going nowhere and remained inside the 12-mile exclusion zone around Christmas Island. Meanwhile, human rights lawyers were preparing to take action in the Federal Court that could force the government to bring the asylum seekers ashore. Newspapers described John Howard as ‘desperate’. The political commentator, Paul Kelly, described the Tampa affair as an ‘inept saga of crisis management’. Writing in the Weekend Australian he said ‘the astounding feature of the drama’ was that John Howard ‘went in without any exit strategy’. However, as Paul Kelly also noted, Australia’s diplomatic resources had been ‘fully mobilised’ to ensure the prime minister would have a victory over the Tampa and the government had not yet exhausted all its options. Urgent cables had been sent to the heads of Australian diplomatic missions around the region, instructing them to sound out their host governments about the possibility of warehousing asylum seekers on Australia’s behalf. Diplomats were given to understand that they had an open chequebook to get results.The pressure was coming from the Department of Prime Minister and Cabinet. The gut response in the responsible ministry, the Department of Foreign Affairs and Trade, was that the policy was wrong and that it would damage Australia’s reputation and its bilateral relations with other countries. Resistance to the policy ran to the highest levels of the department.The official government aid agency, AusAID, was even more alarmed, aware that the sweeteners on offer to regional countries to detain asylum seekers on Canberra’s behalf could ultimately come from its budget. The government cast about for help from a traditional ally, New Zealand, from an aid-dependent Papua New Guinea, even from a posttrauma East Timor that, on 30 August, was in the process of voting in its first-ever free elections. Informal approaches were also made to a number of Pacific island nations including Fiji, Kiribati, Palau and Tuvalu. In the end, it was near-bankrupt Nauru that agreed to help. New Zealand agreed to accept families and a number of unaccompanied teenage boys from the Tampa refugees — a total of 132 people.

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The rest were to be left in two camps in the lunar landscape of Nauru, the world’s smallest republic — an island 22 kilometre square, rendered mostly uninhabitable by decades of phosphate mining. On the afternoon and evening of Monday, 3 September, more than eight days after being rescued at sea, the asylum seekers were transferred from the open deck of the Tampa to the Australian naval vessel HMAS Manoora. Only the four Indonesian crew members of the Palapa 1 were taken to the Australian mainland, where they would face prosecution for people-smuggling. The week-long deployment of elite SAS commandos to Christmas Island cost $3 million per day, or about $50,000 for each of the Tampa’s rescued passengers, more than the cost of detaining all the asylum seekers in a mainland camp for a full year.This marked the beginning of a huge spending spree, as the government made clear that it would spare no cost to counter the ‘threat’ posed by unarmed civilians seeking sanctuary in Australia. As the asylum seekers were transferred from the Tampa to HMAS Manoora, Prime Minister Howard announced the ‘saturation surveillance’ of Australia’s northwestern approaches. The Fremantle-class patrol boats routinely used to provide coastal surveillance were bolstered with the deployment of five naval vessels: the guided-missile frigate HMAS Newcastle equipped with two Seahawk helicopters, the Anzac-class frigates HMAS Warramunga and HMAS Arunta, the supply ship HMAS Westralia and the transport ship HMAS Manoora. Four PC3 Orion aircraft were also deployed to dramatically increase surveillance flights. The cost of this ‘shield of steel’ was estimated at $20 million per week (although this includes the fixed costs of running the warships and paying wages, which the government would have incurred wherever they were deployed). In the weeks following the Tampa, asylum boats continued to test the government’s resolve, but none were allowed to land. The navy’s mission was to ‘deter and deny’ — that is, to deter asylum boats, or SIEVs (suspected illegal entry vessels), from entering Australian waters and, failing that, to physically deny them entry. If both these measures failed, then the navy had orders to repair and resupply the asylum boats, so that they could be towed back out to sea and sent back in the direction of Indonesia. If this also failed, then the asylum seekers, or SUNCs (suspected unlawful non-citizens) were to be taken to a ‘designated holding area’ and managed in ‘a compliant state’ pending a government decision on their ‘transfer and/or transportation’ to an offshore detention-centre, initially in Nauru, and later on Christmas Island or in Papua New Guinea. The mission was to be achieved ‘without loss of life or serious injury to any party’ and the primary objective was clear: ‘At no stage were unauthorised arrivals to have access to the Australian migration zone’. Navy commanders were under no illusions about the

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politically sensitive nature of the operation. As Commander Norman Banks of HMAS Adelaide was to testify before a Senate Committee, he understood that decisions about what to do with individual asylum boats were being made at prime ministerial level. John Howard immediately invested the decision to divert asylum seekers to a foreign country with a dignified title — the ‘Pacific solution’ — suggesting a degree of foresight and planning that did not accord with reality. A more appropriate label would have been ‘the Nauru fix’. Australia has long lectured its near neighbours on good governance, and in recent years the aid program has stressed fundamentals of accountability and sustainability. In Nauru these principles went out the window. On 9 September 2001 Peter Reith, then Defence minister, flew to Nauru in an RAAF jet to hammer out a deal with President Rene Harris. Twenty-four hours later, after three faceto-face meetings, the two men signed an agreement.As ‘a humanitarian gesture’ President Harris agreed to provide ‘a temporary processing site for those people who were rescued at sea by the MV Tampa’. In addition, he agreed to detain another 500 or so asylum seekers, including 237 picked up by the navy just two days earlier from an Indonesian boat called the Aceng, which had been trying to reach Australia’s Indian Ocean territory of Ashmore Reef. President Harris and Defence Minister Reith agreed that the asylum seekers would only be held in Nauru for six months, but this time-frame was not included in the formal Memorandum of Understanding between the two countries, which allowed for the arrangements to remain in place ‘as long as is reasonably necessary’. In return for Nauru’s help, Peter Reith promised that Australia would cover the entire cost of transporting, housing, feeding and processing the asylum seekers. In addition, Australia granted Nauru benefits worth nearly $20 million.The package included the type of measures that had previously been requested by Nauru, but rejected by the Australia’s official aid agency, AusAID, on the basis that they set a bad precedent (a ‘moral hazard’, to use the business terminology).The bulk of the money ($13 million) went towards providing fuel and equipment to keep Nauru’s generator running.The generator not only supplies Nauru with electricity, it also powers the desalination plant that is the island’s only source of potable water.This allowed the government of President Rene Harris to duck US$1.5 million in unpaid bills to its previous supplier, Pacific Petroleum. According to Richard Reddy, CEO of the Saipanbased company, Nauru owed Pacific Petroleum payment for two shipments of fuel — one made in March 2000, the other in June 2001. As Nauru was unable to pay the entire sum, the company had struck a deal under which it would keep supplying fuel on a ‘cash up-front’ basis, as long as Nauru reduced arrears on the outstanding debt by about

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US$100,000 per month. Mr Reddy says that when Australia stepped in to provide diesel for the generator as part of the ‘Pacific solution’, Nauru stopped paying its debts to his company.Australia also agreed to pick up around $1 million worth of Nauru’s $2–3 million in unpaid debts to the Australian health system.This was no doubt welcome to Nauruan citizens seeking continued medical attention for chronic illnesses — Nauru has the highest rate of late-onset diabetes of any country in the world — but it contradicts the basic philosophy of Australia’s aid program, which is meant to focus on preventative public-health measures such as promoting an improved diet and increased exercise to improve the general wellbeing of the population. In December 2001 the Foreign minister, Alexander Downer, went to Nauru to negotiate a second deal with President Harris. This time, the promises made were more circumspect, and more in line with the principles of Australia’s foreign aid budget, taking the form of scholarships, health and education programs, the building of a waste-management system and water-tank repairs. Nauru, nevertheless, emerged with promises of $10 million in development assistance, in return for agreeing to detain an additional 400 asylum seekers.The assistance to Nauru signalled a significant reorientation of Australia’s aid priorities.The total amount pledged by Downer and Reith was greater than all AusAID funds to Nauru between 1993 and 2001. There is no doubt that Nauru needed all the help it could get. Nauruans were once the richest people in the Pacific, at least on paper. Now the country is essentially bankrupt. The Nauru Phosphate Royalties Trust was built up over decades from a share of mining profits and once held assets worth A$1 billion, but the trust fund has been losing money for years through failed investments in hotels, aviation, fishing and other ventures. Successive governments have mortgaged and re-mortgaged properties just to meet the interest payments on Nauru’s outstanding debts. It is a constant juggling act and the tempo increases each year.As more and more of its financial balls go astray, the government must rotate more quickly the assets it has left, in a vain attempt to satisfy its audience of restless creditors. The result is a succession of crises:Air Nauru, which provides the only service in and out of the country, has been repeatedly grounded because Qantas has withdrawn maintenance services over unpaid bills; Nauru has almost run out of basic foods and other essential goods as deliveries are delayed for weeks at a time because of unpaid debts to the shipping line that transports them; the telecommunications carrier Reach (50 per cent owned by Australia’s Telstra) has restricted phone services out of Nauru, because Nauru Telecom has not paid its bills, which means the only reliable way to make an international call is to buy a pre-paid phone card and go to the central Telecom office.

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Nauruan medical doctor Kieren Keke says Australian assistance as part of the ‘Pacific solution’ has done nothing to address the root cause of these problems. If anything, he says, it has made matters worse, by creating unrealistic expectations of future rescue packages and by reducing the pressure on the Nauru government to get its forlorn economic house in order. Dr Keke is an opposition politician and one of the founders of The Visionary, a critical newsletter that began appearing in Nauru in 2001. He points out that the A$20 million in assistance promised to Nauru under the first agreement was equivalent to almost half the government’s annual budget, enough to give it ‘leeway to make some major changes’, reduce annual deficits and pay off some external debt. Dr Keke says there has been no shift in the government’s behaviour, however.‘Australia providing money to pay for bills is just extending government patterns of spending,’ he told me. ‘They are not providing anything that is changing the way we are doing things to get control of our finances.’ The Foreign minister, Alexander Downer, defended the second asylum-seeker deal with Rene Harris, saying, ‘the truth is we would have to be providing Nauru with a fair bit of assistance at this time no matter what’. Alexander Downer claimed ‘a coincidence of national interests’ between Australia and Nauru on the asylum-seeker issue. Nauru MP Anthony Audoa saw it rather differently, however. He told me Australia was treating an economically desperate Nauru just like a prostitute. ‘If you dangle money in front of her, you think she will not accept it?’ he asked. Nauru’s economic woes have a long genesis but it was only after the Tampa entered Australian waters that the nation’s plight won Canberra’s special attention. Prior to that, Nauru did not even rate a separate line item in the AusAID budget. It was grouped together with five other ‘small island states’, including Palau and Niue, sharing between them a total annual aid grant of $10 million per annum. The $6.8 million promised to Nauru in the 2002 federal budget was an increase of almost 200 per cent on the previous year’s allocation. In 1998 Australia closed its High Commission in Nauru and in August 2001, just prior to the arrival of the Tampa, Prime Minister John Howard signalled his attitude to Pacific Island nations in general by declining to attend the Pacific Islands Forum meeting in Nauru. Mr Howard sent his Defence minister instead, even though Peter Reith had already announced his imminent resignation from the parliament.The message was not lost on Pacific leaders, who also noted that the Foreign minister, Alexander Downer, and his opposition counterpart, Laurie Brereton, cancelled their scheduled attendance at the signing of the Bougainville Peace Treaty, because they were too caught up in the political excitement generated by the Tampa affair.

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One month after making its original arrangement with Nauru, Australia struck a similar pact with Papua New Guinea. The deal was finalised at a meeting in Sydney at 11:30 am on 8 October, three days after a federal election had been called, and just half-an-hour before the government was required to switch into caretaker mode and desist from making major decisions. Earlier that morning, in the same meeting, Australian officials had agreed to provide Papua New Guinea with $20 million in assistance to reform the troubled PNG Defence Force. In evidence before a Senate Estimates Committee, government officials insisted that there was no linkage between the promised $20 million and the agreement to detain asylum seekers at the Lombrum naval base in Manus Province. Officials also denied that the detention agreement had anything to do with the fact that a $34 million re-prioritisation of Australia’s aid to Papua New Guinea was completed in a remarkably swift nine days in the midst of a national election campaign. As well as covering all the costs of detention at the Lombrum naval base,Australia promised to assist with the refurbishment of the Lombrum Base Hospital, the grading and levelling of roads, the supply of generators and the construction of a water-treatment plant and a sanitation and sewage system. Canberra also promised ‘technical and other assistance’ to help Papua New Guinea deal with its own problems of the illegal movement of people.The Catholic Bishops Conference of Papua New Guinea and Solomon Islands noted ‘with amazement’ the haste with which Papua New Guinea was drawn into an ‘Australian election issue’, especially when so little had been done to assist thousands of refugees who had fled into Papua New Guinea from the neighbouring Indonesian province of Papua (Irian Jaya or West Papua). The Memorandum of Understanding signed between Canberra and Port Moresby had a time-limit of six months, and only committed Papua New Guinea to take a specific group of around 200 asylum seekers rescued at sea by HMAS Adelaide. Canberra was soon pressing Port Moresby to extend the duration of the agreement to twelve months and to increase the number of people detained in Manus up to 1000. Prime Minister Sir Mekere Morauta agreed to these changes three months later, but along the way Australia’s persistence caused serious upheaval in his government. His Foreign minister, John Pundari, vehemently opposed the extension of the asylum-seeker agreement and was sacked by Sir Mekere. The deal was also criticised by Sir Michael Somare, Papua New Guinea’s elder statesman and its founding prime minister, who complained that parliament had not been given an opportunity to debate the issue. After leading his National Alliance party out of the government and on to the opposition benches, Sir Michael accused Sir Mekere of working ‘in isolation’ on the asylumseeker issue. ‘I would hope that the Australian government and the

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Australian people would not take Papua New Guinea as a dumping ground for refugees.’ (Later in 2002, elections saw Sir Michael Somare move back into office as prime minister. In his first official comments he said he would honour the agreement struck with Australia, but ruled out accepting more asylum seekers in the future.) Similar criticisms were voiced by the Pacific Conference of Churches and other regional church and non-government organisations. In a joint statement, this broad alliance of church and nongovernment groups said that the aid deals on offer from the Australian government would ‘make Pacific Island Governments part of the process that solicits money/profits out of trade in human trafficking’. Noel Levi, secretary-general of the Secretariat of the Pacific Islands Forum, warned of an ‘emerging refugees market’, which would expose ‘small and vulnerable economies to further social and economic problems’. Vanuatu’s prime minister, Edward Natapei, and Fiji’s president, Ratu Sir Josefa Iloilo, both spoke publicly against taking up Australia’s request to detain asylum seekers. Mahendra Chaudhry, Fiji’s opposition leader, described the ‘Pacific solution’ as ‘a shameful display of chequebook diplomacy’, which was ‘tantamount to offering a bribe’. Dr Greg Fry, a Pacific affairs specialist at the Australian National University, characterised Australia’s actions ‘an abuse of power’, and he argued that it was no coincidence that the first successful approach was made to Nauru. ‘The vulnerable and small societies of the Pacific did not just happen to be approached by Australia,’ he wrote,‘they were approached because they were vulnerable and dependent on Australia’ (emphasis in the original). The detention deals Australia struck with Nauru and Papua New Guinea appeared to violate fundamental laws in both countries.Article 5 of Nauru’s constitution states that no person ‘shall be deprived of his personal liberty’ unless convicted or charged with an offence, or unless reasonably suspected of ‘having committed, or being about to commit’ an offence. Exemptions are only allowed for such purposes as ‘preventing the spread of disease’, preventing ‘unlawful entry into Nauru’ or to provide ‘care or treatment or protection of the community’ in cases where a person is of ‘unsound mind or addicted to drugs or alcohol’. The Papua New Guinea Constitution offers similar rights, including under Section s.42(2), that a person who is detained ‘shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained, and shall be informed immediately on his arrest or detention of his rights under this subsection’. Public questions about the constitutionality of the ‘Pacific solution’ appeared to spark some concern in the ranks of the Immigration department. Fact Sheet No 76 ‘Offshore Processing Arrangements’ on the department’s website originally stated that ‘at 31 December 2001, 1118 unauthorised

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arrivals were detained at Nauru’ and that ‘Currently 216 people are detained at Manus Island’ (my emphasis). After Marc Purcell from the Catholic Commission for Justice Development and Peace raised questions at a departmental briefing about the legality of detention and access to lawyers, the word detained was replaced with the word located. As in Australia, the detention centres in Nauru and Papua New Guinea were made off-limits to the media, making it difficult to get an accurate picture of conditions for the asylum seekers held there. Greg Roberts, one of the few journalists to travel to Manus, reported in the Age (5 February 2002) that asylum seekers held there ‘have been injured trying to escape, have potentially fatal diseases and have staged hunger strikes and wrecked property in violent protests against detention’. Australian authorities denied Greg Roberts’s report that fifteen detainees had contracted malaria; however, a subsequent visitor there admitted that malaria was ‘a bit of a problem’ at Manus. John Hodges, a former Immigration minister, visited Manus in late February 2002 as a member of the Immigration minister’s Independent Detention Advisory Group. On 1 May 2002 he told a Senate Committee hearing that ‘a couple of cases of malaria’ had been reported there. He said the problem arose because detainees failed to take the preventative medicine that was given to them.According to Greg Roberts’s report, however, the first asylum seekers were not initially provided with prophylactic treatment when they arrived at Manus. John Hodges described the Manus camp as having ‘very pleasant surroundings, because it has the water on one side and the jungle on the other’ and there ‘is no barbed wire or razor wire’. He said the quality of food was good and there was an abundance of running water. Mr Hodges admitted, however, that ‘the facilities are just not as good’ as the detention centres in mainland Australia. He described the facilities in Nauru, which held three times the number of detainees held in Manus, as ‘by far the worst of the detention centres’. John Pace who inspected the Nauru detention centres on behalf of Amnesty International, found conditions ‘harsh’ and health facilities ‘basic’. He said that medical staff from the International Organisation for Migration (IOM) were doing their best but this was ‘nowhere near providing the essential psychological care’ that was needed. He was informed that many detainees in Nauru were exhibiting symptoms of Post Traumatic Stress Disorder, such as ‘nervousness, anxiety, aggressive attitude, muteness, distrust, withdrawal, lack of focus and concentration, often shivering of hands when interviewed [and] outbursts of crying’. After his trip to Nauru the Foreign minister, Alexander Downer, described the camps as ‘practical and efficient’. He said the catering was good and that the asylum seekers had ‘various things to do’ such as playing volleyball and soccer or watching ‘twenty-one different chan-

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nels on television’. Mr Downer also had ‘a good look at the sanitation, the ablution blocks’ and found them to be ‘pretty good’.The detainees had a different view. In a letter faxed to a refugee-support group in Melbourne in April 2002, the detainees complained of water shortages and overcrowded conditions. The fax made particular reference to the situation of children and their capacity to ‘develop physically or mentally’.They complained that children ‘have no access to formal education except for the language programs’. In May 2002 there were 351 children in the camps in Manus and Nauru, and they had been detained for between six and nine months.The educational and recreational opportunities on offer to them were even more restricted than the meagre options available to children held in Australia’s mainland detention-centres. An inquiry by the Human Rights and Equal Opportunity Commission into the situation of children in immigration detention in Australia did not extend to those held overseas. | The federal government’s response to the Tampa may have been questionable policy but it was certainly good politics.As a government MP, Ian Causley, noted later in parliament: ‘I’ve never had an issue in my political career — and that spans 18 years now — which has made so many people come up to me in the street, without any urging whatsoever, and say, “Don’t back away”’. When John Howard put his foot down and said ‘keep out!’, the people of Australia roared their collective approval.The government was seen to be standing up to the peoplesmugglers and the ‘illegals’, the legions of ‘queue-jumpers’ who, in the words of Kim Beazley, then opposition leader, ‘flout’ Australia’s generosity.As Ian Causley put it in parliament:‘The Australian people want strength … someone who is prepared to stand up and be strong and defend their country’. The government’s tactics totally wrong-footed the federal opposition and, to be fair, Labor found itself in something of a no-win situation. Its support for a hard line against the Tampa served to legitimise the government’s actions and boost the Coalition’s credentials for strong and decisive leadership. This left Labor looking like a pale imitation of the real thing. Voters in search of more principled policy deserted the party and switched their allegiance to the Greens and the Democrats. On the other hand, if Labor had opposed the government’s stance on the Tampa, it would have received a mauling on talkback radio and in the tabloid press. This could have cost even more dearly on polling day. On the one occasion that the party did stand up to the government — in refusing to pass the first version of its Border Protection Bill — the effect was profound. Labor MP Julia Gillard, who

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became shadow Immigration minister after the 2001 election, says that for the next few days all her staff did all day was ‘take abusive phone calls from constituents’. The Tampa affair polarised public opinion like few issues before it and this worked to the government’s advantage. There is little doubt that the knee-jerk response of most voters was to support John Howard’s decision to refuse to allow the rescued asylum seekers to land at Christmas Island. In the campaign for the 2001 federal election there was no longer any need for the Coalition parties to debate unseemly preference swaps with Pauline Hanson’s One Nation Party. In the wake of the Tampa, the second preferences of One Nation supporters, if not their primary votes, were in the bag. On 10 November John Howard was swept back into office for a third term — a victory that had appeared unlikely just a few months earlier. It was a khaki election.The September 11 terror attacks in New York and Washington pushed defence concerns to the top of the political agenda, eclipsing debate around traditional electoral issues such as tax cuts or spending on health and education. As Australia despatched troops to join in the United States-led campaign against the Taliban regime and the Al Qaeda terrorist network in Afghanistan, government leaders and some sections of the media were quick to connect the global ‘war on terror’ with domestic concerns about ‘border protection’. Within forty-eight hours of the September 11 attacks Australia’s Defence minister, Peter Reith, had drawn an explicit link between the two, warning that the unauthorised arrival of boats on Australian territory ‘can be a pipeline for terrorists to come in and use your country as a staging post for terrorist activities’. The irony that Afghan asylum seekers were fleeing the very same ‘terror’ regime that Australia was helping to fight did not appear to concern him. Neither did it worry the millionaire talkback hosts who dominate the airwaves on commercial radio. On 12 September Alan Jones, the top-rating breakfast host on Sydney radio, confidently declared that the terror attacks had been carried out by ‘sleepers’ — terrorists who had been living quietly in the United States for years.Turning to the Australian context, he then posed the following rhetorical question: ‘How many of these Afghan boat people are “sleepers?”’. Prime Minister John Howard revived the theme just a few days before polling day, telling Brisbane’s Courier Mail newspaper that ‘[y]ou don’t know who is coming [on the boats] and you don’t know whether they do have terrorist links or not …’. Such fears were essentially dismissed by the head of the Australian Security and Intelligence Organisation (ASIO), Australia’s peak intelligence body.At a conference on terrorism in Hobart,ASIO chief Dennis Richardson asked why terrorists would enter Australia as asylum seekers ‘when they know they will be subject to mandatory detention?’.

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Amidst the fears and uncertainties unleashed by the September 11 terror attacks, the tough line on the boat people proved enormously popular with voters. As the Australian commented, it represented ‘one of the Government’s chief claims to national leadership’ and was the ‘main preoccupation’ of the election campaign. | As if on cue, another incident seemed to offer support to the government’s attitude towards the boat people. On 7 October, in the first full week of the election campaign, the Immigration minister, Philip Ruddock, announced that a group of asylum seekers trying to reach Australia had thrown children overboard ‘in a clearly planned and premeditated’ attempt to force their way into Australia. The story made immediate headlines and two days later, on 9 October, Prime Minister John Howard famously declared on radio, ‘I certainly don’t want people of that type in Australia, I really don’t’. On 10 October the Defence minister, Peter Reith, released photographs of children in the sea wearing life-jackets, which he presented as documentary proof of what had happened. He told ABC radio 774 in Melbourne that there were ‘a number of people, obviously RAN [Royal Australian Navy] people, who were there who reported the children were thrown into the water’. Yet serious doubts had emerged about the veracity of the original reports immediately after they were made public and, in fact, the ‘evidence’ on which the Immigration minister, the Defence minister and the prime minister had based their public statements turned out to be a third-hand report of a brief early morning telephone call between the commander of HMAS Adelaide and a senior officer in Canberra. The ministers had made no attempt to check the information. Prime Minister John Howard claimed that he had the information ‘confirmed in writing by the Office of National Assessment’. In fact, the ‘intelligence report’ that he quoted in an address at the National Press Club was little more than a regurgitation of the comments previously made by him and his ministers. In Robert Manne’s memorable phrase, the dog had caught its tail. After the election, it was revealed that the photographs purportedly showing children who had been thrown in the water were actually taken the following day, on 8 October, when the children were rescued after their boat sank and almost everyone from the vessel ended up in the water. Military officers and senior public servants were aware that the reports of children being thrown overboard were untrue and that the photographs did not depict such an event.With varying degrees of vigour, they had tried to correct the public ‘mistake’ of their political

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masters before the election. However, the three relevant ministers — the prime minister and the ministers for Defence and Immigration — claim this advice never reached them. (At one point the Defence minister even blamed a bad phone-line for his failure to understand this information when it was delivered to him directly by the acting commander of the Australian Defence Force.) By the time the story was corrected, the election was over and the government had been returned to office. No apology was made to the asylum seekers for the way in which they had been so publicly maligned. The ‘kids overboard affair’ prompted an inquiry by a Senate committee (formally called the ‘Select Committee on a Certain Maritime Incident’). At Committee hearings government senators sought to muddy the waters by demonstrating that whether or not children were thrown overboard, they did end up in the water as a result of the actions of asylum seekers in rendering their vessel unseaworthy. Government senators have also sought to introduce evidence that, on other occasions on other boats, asylum seekers may have threatened to throw children overboard or taken other actions designed to pressure the navy to take them ashore on Australian territory. This may be true; the fundamental point is, however, that these confrontations at sea were the end product of Australia’s decision to stop the asylum seekers making landfall at almost any cost. In choking off the maritime access route from Indonesia to Christmas Island, the federal government created the conditions in which it was indeed conceivable that children might end up overboard. When the children-overboard story first surfaced, I believed it. If this is an all-too-frank admission of my own gullibility, then at least I know that I was not alone in being taken in. I thought it was possible that parents would throw their children overboard with life-jackets on, and I believe it is possible that something like this might indeed happen at some time in the future. My own attitude towards asylum seekers who might resort to such desperate action is rather different to that expressed at the time by the prime minister. It is important to look at the context. On the afternoon of Saturday, 6 October 2001, HMAS Adelaide closed in on a 25-metre woodenhulled boat carrying 223 asylum seekers, which had set sail from Indonesia.An inflatable craft was launched from the Adelaide and pulled alongside the boat, which was called the Olong. Sailors warned those aboard that they were heading towards Australian waters without authorisation and instructed them to turn around. The sailors from HMAS Adelaide noted the presence of at least ten children on board, including a small child holding a sign that read ‘SOS’. Most of the passengers in the Olong were wearing life-jackets. The Olong ignored the instruction to turn around and the Adelaide continued to shadow the

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vessel. By early morning on 7 October the lights from Christmas Island were visible on the horizon. When the Olong was within 24 miles of Christmas Island (and, so, inside the area of ocean referred to as Australia’s ‘contiguous zone’), the inflatable craft pulled alongside once more and renewed warnings were issued.The vessel was told to ‘heave to’ in English, Indonesian and Arabic, the message being relayed from the sailors in the inflatable and by loud-hailer and radio from HMAS Adelaide itself. By early morning on Sunday, 7 October, the Olong was just a few kilometres outside the territorial waters of Christmas Island. A couple of hours before dawn, after conferring with his superiors in Canberra, Commander Banks of the Adelaide ordered a searchlight to be shone on the water 20–25 metres in front of the Olong, and over a period of twenty minutes four bursts of warning shots were fired into the illuminated patch of sea.The commander of the Adelaide described it as ‘firing aimed small arms — 5.56 mm Steyr — and 12.5 mm .50 cal. machine gun warning shots’ and he stressed that a ‘searchlight was used to illuminate both the weapon firer and the area in the water ahead of the vessel where the rounds were to land’. Still the Olong sailed on.The warship then manoeuvred ‘more aggressively close to the vessel to slow it down’, which ‘facilitated a distraction and allowed an assault type non-compliant boarding’ of the Olong by nine sailors armed with batons and pistols. The boarding-party took control and turned the Olong back in the direction of Indonesia. It was still dark and the boarding party reported that many of the asylum seekers ‘were angry, disappointed and making veiled threats to commit suicide, gesturing with wooden sticks and being very vocal’. One man jumped overboard but he was quickly recovered. After dawn broke more asylum seekers jumped overboard.Altogether fourteen people ended up in the water and were recovered by the sailors in the inflatable. By this time, Commander Banks was beginning to have concerns about whether or not the Olong was still seaworthy.Water was ‘coming out over the deck and running down the ship’s side’ and the asylum seekers were beginning to damage the boat, by tearing off equipment and heaving it into the ocean.The steering and engines were disabled at various times, and there were acts of ‘vandalism and arson’. Commander Banks sent an additional nine-member boarding party to the Olong in an attempt to restore control.A medical sailor in the party attended to some asylum seekers who appeared to be suffering from dehydration, rigging up a saline drip in the wooden boat’s coachhouse. However, Commander Banks says efforts to resupply the Olong with water ‘were not welcomed’ and some of the water was thrown overboard. In this situation, would it really have been so surprising if a child were thrown overboard with a life-jacket on? Why might a parent do that? Perhaps because they believed that it was their child’s only

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hope of rescue; stuck aboard a listing, wooden ferry, overcrowded with hysterical and desperate people, choked by diesel fumes, having had warning shots fired in the dark, and now being forced away from the place where you were hoping to find sanctuary, aboard a vessel that seemed destined to sink, a parent might indeed make the heartwrenching decision to throw their child into the water, hoping that at least their son or daughter would be rescued and taken to Australia aboard the sturdy grey naval vessel that was both the cause of their anguish, and their only hope of salvation. As we now know, this did not happen. No child was thrown in the water, and by mid-morning the boarding party had managed to move the Olong 24 miles north of Christmas Island and beyond the jurisdiction of Australia’s contiguous zone. The asylum seekers were provided with an orienteering compass (supplied from amongst the personal effects of a member of the ship’s company) and directed to Indonesia, even though Commander Banks recognised that the vessel’s steering was ‘certainly tenuous’ and the boat was only ‘marginally seaworthy’. The boarding party left the wooden boat and returned to the Adelaide, which steamed out of sight of the Olong but continued to monitor the vessel with electronic surveillance equipment. According to Commander Banks, the Olong was soon ‘dead in the water’. Noting the ‘deteriorating afternoon weather’ and the ‘general state of the vessel’, he ‘retained a reasonable concern’ for the safety of those on board. By early afternoon the passengers on board the Olong were signalling distress and Commander Banks decided to tow the vessel to Christmas Island. The mood aboard the Olong changed immediately. The asylum seekers were ‘almost delighted’ to be in the navy’s care. There was a sense of ‘bonhomie’ and ‘disturbances and aggression were no longer evident’. The tow proceeded without incident for twenty-four hours, until late on the afternoon of Monday, 8 October, the Olong began to sink rapidly.The Adelaide, with two inflatable craft already in the water, launched six twenty-five-man life-rafts and Commander Banks ordered a ‘controlled abandon ship’. He noted that the asylum seekers on board the Olong were particularly concerned for the safety of an infant, and insisted that the baby be passed into the inflatable craft before all others. Just as Commander Banks’s decision to tow the Olong had brought about a sudden shift of mood amongst the asylum seekers, so the dramatic and successful rescue effort brought about a rapid change of attitude on board the Adelaide. According to Commander Banks, some of his company had earlier made ‘derogatory comments about people from other countries and perhaps some comments which could be construed as being from the White Australia policy’. Once the ‘situation developed into a humanitarian assistance task,’ he said, the crew of

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the Adelaide ‘went about their business in a very humane and compassionate way and everyone chipped in and lent a helping hand, beyond their specialisation and their training and their category’. | In April 2002, six months after the Adelaide intercepted the Olong, the Immigration department and the UNHCR began handing down their first decisions on refugee applications submitted by asylum seekers diverted to Pacific Island detention centres. By mid-July all but a handful of cases had been finalised. Out of 1587 decisions made, 560 people were granted refugee status, including most of the asylum seekers who had been accused of throwing their children overboard from the Olong. Most Iraqis were granted refugee status while all but a handful of Afghans were rejected. If the cases had been assessed in August 2001, when the Australian government prevented the Tampa from landing its rescued asylum-seekers at Christmas Island, then the Afghans would almost certainly have been recognised as refugees too. (All but one of the 132 asylum seekers sent to New Zealand were recognised as refugees and granted permission to stay.) The situation in Afghanistan had changed dramatically in the intervening half-year and, after the fall of the Taliban, most Afghans could no longer demonstrate a wellfounded fear of persecution in their homeland. At the time of writing, most of the 560 people already recognised as refugees remain in detention awaiting resettlement, a process which could prove excruciatingly slow.The UNHCR and the Australian government have been casting about for countries willing to provide places, but the response has been limited. Apart from New Zealand, which has come to the party by resettling a further fifty-nine people, only Sweden, Ireland and the United States have shown any inclination to help out.While the Immigration minister, Philip Ruddock, talks of ‘burden sharing’, there is a strong view internationally that the refugees are Australia’s responsibility and that they should be resettled here.That is especially true in cases where refugees have strong family links to Australia, as it appears many do. Australia may also have to take a small number of asylum seekers who are not refugees under the Convention, but who cannot be returned to their homeland or to any other country — unless of course such people are to remain indefinitely detained in Nauru or Papua New Guinea. When the ‘Pacific solution’ first came into being as a way to resolve the stand-off with the Tampa at Christmas Island, the UNHCR agreed to play along.The agency undertook to assess the Tampa asylum seekers to determine whether or not they were refugees. Once Australia began expanding the program to detain the passengers from all

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subsequent asylum boats as well, the UNHCR would no longer play ball. A spokeswoman said it was ‘inappropriate’ for a country like Australia, with a ‘very sophisticated and very well developed refugee status determination procedure’, to ask UNHCR to process asylum seekers who have come within Australian territory. As a result, while the UNHCR agreed to process asylum seekers taken to Nauru from the Tampa and those from one subsequent boat, the bulk of the processing in Nauru and all of the processing in Manus was carried out by Australian Immigration department officials. Those officials were employed by the Australian government on their Australian salaries under Australian employment conditions, but the decisions they were taking were not made under Australian law. In essence, the federal government’s complex manoeuvres on the high sea were an elaborate effort to circumvent Australia’s own rules and procedures in relation to asylum seekers and refugees. The Immigration department says that it cost $72 million to set up and run the Nauru detention centre and $42.5 million to set up and run the detention centre in Papua New Guinea.This did not include the sweeteners offered to both countries and the cost of using the navy to intercept and transfer the asylum seekers. In order to fund the ‘Pacific solution’, the federal government was forced to more than double its budget for dealing with unauthorised boat arrivals in 2001–2002 from the planned $250 million to $572 million. The government also allowed for an additional $431 million in spending over the four years to 2006 ‘for the reception and processing of asylum seekers at offshore locations (third countries)’ and an additional $455 million over the same period to build, maintain and run a detention centre (including refugee processing) on the remote Australian territory of Christmas Island. At the same time as it announced this avalanche of new spending, the federal government halved its core contribution to the UNHCR from $14.3 million to $7 million in 2002–2003.Within the senior ranks of the refugee agency, the cut was interpreted as an act of retribution for the UNHCR’s reluctance to play along with the ‘Pacific solution’. The government rejects such charges, pointing out that it has created a new pool of $15 million, to which a range of international organisations working with refugees, including the UNHCR, can apply for funding for specific projects. It remains to be seen how much of this money goes to the UNHCR, and how much goes to other agencies which do not have a protection mandate under the 1951 Convention. (The International Organisation for Migration, for example, has been a more willing partner in the offshore detention of asylum seekers in Nauru and Papua New Guinea.) By August 2002 around 100 ‘Pacific solution’ refugees had been brought from Manus and Nauru to live in Australia. Others will probably follow. In short, despite the government’s elaborate and expensive

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Pacific game-plan, significant numbers of those asylum seekers it was so determined to ‘deter and deny’ will almost certainly end up living in Australia. Meanwhile, the so-called ‘Pacific solution’ has created ill-feeling within the defence force, distorted foreign-aid spending, fostered further dissension in already troubled island states and done significant damage to Australia’s international standing. | For Captain Arne Rinnan, now entering retirement, the Tampa affair will stand as the most traumatic and difficult event in a long career. In Norway he was given a royal honour, being made ‘a knight of the first class’.The UNHCR awarded Captain Rinnan, the crew of the Tampa and the Wallenius Wilhelmsen Line its annual prize for service to refugees: the Nansen Medal (a decision that, as High Commissioner Ruud Lubbers admits, implies ‘a certain criticism’ of the Australian government). On his final voyage in the Tampa in May 2002 Captain Rinnan was applauded by admiring crowds in Australia and New Zealand, although he remained a reluctant and generally media-shy hero. His view of his role in the whole affair is straightforward. ‘If we had not picked up these people they will have been drifting out in the Indian Ocean. So we only had one thing to do and that was starting picking them up and try to get them to shore, otherwise they would have been drowning out there.’

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In a back room in the Citizens Advice Bureau in Dandenong, Melbourne, is a cupboard full of tins. Once a week David Spitteler, an Anglican lay minister, comes to unlock the cupboard, replenish it and wait for customers — customers who don’t pay. The cupboard is stocked with tins of spaghetti, tomato soup and canned fruit.There are packets of oats and dried pasta, muesli, instant noodles, tea and long-life milk. On the bottom shelf there are pens, disposable razors, soap and shampoo. The cupboard provides a discreet service for asylum seekers who have no visible means of support. When customers come, David greets them and then sits in his office, out of view. He does not hand out the goods, or police what people take, allowing them the dignity of choosing for themselves, trusting them to take only as much as they need. Most stay for a chat as well. ‘They all want to talk,’ says David, who also runs a similar service once a week in inner-city St Kilda. Most of his supplies come via churches. Some congregations make a regularly monthly contribution. In other cases, David will be invited to speak at Sunday worship to explain the situation of asylum seekers and receive donations, either in cash or in kind. ‘Recently I spoke at a Baptist Church,’ he told me, ‘and the next Monday I got a cheque in the mail for $500.’ Such cash windfalls allow him to buy phonecards and tram tickets to give to asylum seekers, who would otherwise have no means of contacting relatives and no legal means of travelling about the city.Another welcome gift came from the executive of a clothing firm, who donated socks and underwear.While it is relatively easy to get donations of second-hand clothes from op shops, underwear cannot be recycled. Then there was the CEO of a pharmaceutical company who gave David Spitteler a supply of nonprescription drugs — cough mixture, headache tablets, antiseptic, and so on. Some asylum seekers in the community are not eligible for

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Medicare, so David has also set up a small network of GPs who are willing to treat them for free. Such acts of generosity are testament to the well of sympathy for asylum seekers that does exist in the community. It is also a powerful reminder of the role of the churches in maintaining a sense of conscience and public responsibility in Australia. Time and again it is churchgoers or clergy who step in to provide support to asylum seekers and refugees — whether it is through pastoral visits to detention centres, or advocacy, accommodation services or tins of food. The asylum seekers who come to David for help are supposed to be the lucky ones. They have avoided detention because they arrived in Australia lawfully — say, on a valid tourist or student visa — and then applied for asylum after clearing immigration. Provided they have submitted their application for asylum within forty-five days of arrival and paid the $30 fee, they are also allowed to seek employment. Mr Ruddock has disparagingly referred to this as ‘the thirty dollar work visa’. Asylum seekers who are granted work rights also qualify for Medicare and subsidised medicines under the Pharmaceutical Benefits Scheme. Asylum seekers rejected at the primary stage by the Immigration department maintain their work rights and Medicare entitlements while appealing to the Refugee Review Tribunal.‘Lawful’ asylum-seekers do not qualify for any Centrelink benefits and, consequently, cannot obtain a Health Care Card or similar concession card. This generally means they are ineligible for services provided by State governments, local councils and many community organisations. In addition, statutory authorities and private companies often require a Health Care Card before granting discounts on basic necessities such as power bills or public transport fares. If asylum seekers living in the community are indigent, their only option is to apply for help from the Red Cross under the Asylum Seekers Assistance Scheme (ASAS).This assistance scheme entitles certain asylum seekers to receive 89 per cent of the social security benefit that would be available to Australian citizens. But here, too, there are restrictions. In all but exceptional circumstances, assistance under this scheme is only available to asylum seekers whose application for a protection visa has been before the department for at least six months without a primary decision. Louise Spieler,ASAS manager for the Red Cross in Victoria, says her service sees two or three new people each week who come in the door looking for help but are not entitled to receive it under current rules. Some failed to apply for a protection visa in time to get a work permit, and some simply cannot find work; others fail to qualify for help because their refugee applications have already been rejected by the Immigration department and the Refugee Review Tribunal. An asylum seeker who appeals DIMIA’s decision to

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the Refugee Review Tribunal can only be granted ASAS in exceptional circumstances and no assistance can be given to those who challenge decisions before the courts. Similarly, asylum seekers appealing to the courts may find that their work rights lapse, though this depends on the type of bridging visa that they were issued with in the first place. As a result of these myriad restrictions and qualifications about 40 per cent of the asylum seekers who live in the Australian community have no right to work; many have no visible means of support. This is the situation for Anton, a Tamil from the Sri Lankan capital Colombo, who turns up regularly at David Spitteler’s food cupboard. He had been arrested in Colombo when he was still a student, in the late 1980s, and he claims that the military would subsequently return to his house whenever there were major incidents in Colombo, such as the 1993 assassination of President Premadasa. For a couple of years Anton worked as an accountant in Saudi Arabia. During that time he once went back to Sri Lanka for a visit, because his mother had to undergo a cataract operation. He says that then, too, the military came to the house to interrogate him.When Anton’s contract in Saudi Arabia ended in 1995, he was afraid to return home.‘Now my mother cries to me on the phone “don’t come, don’t come”, even though she is very sick,’ he tells me. I cannot judge the veracity of Anton’s story, but there is no doubting the hideous scars on his ankles. He says that they date from his first arrest, when he was beaten repeatedly with iron bars until he lost consciousness. For his first three years in Australia,Anton was able to work. He had a cleaning job in a hotel, which he liked because it brought him into contact with people and he was able to save some money. But the Immigration department rejected Anton’s application for asylum and, when his appeal was also rejected by the Refugee Review Tribunal, Anton’s work rights lapsed. Eighteen months later, his money has run out.While he waits for the Federal Court to hear his case, Anton survives on the goodwill of others, and on David Spitteler’s tins. Anton says he has stopped accepting invitations to go out with friends because he knows he cannot pay his way. His knows that his friends would shout him, but he cannot bear to accept their generosity any longer.‘Mostly I do nothing at home,’ he says. ‘Watch TV. Take my flatmate’s dog for a walk. I’m afraid of going mad.’ I suggest to Anton that he could probably find some cash-in-hand work to ease both the boredom and his financial problems. But he says, no, he is too afraid.‘If I was caught working for cash, even if I was just working for food, that would give them an excuse to lock me up and deport me straight away,’ he says. Clearly,Anton is not just an ‘economic

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refugee’, someone who has come to Australia to extract maximum profit from the system before being sent home again. His interest is not in accumulating money.Anton is truly afraid of returning to Sri Lanka. When Anton’s appeal to the Refugee Review Tribunal was rejected, he was told that the situation in Sri Lanka had got better.‘They did not really understand,’ he says.This is a common refrain from rejected asylum-seekers, and, of course, no one is likely to be happy when they have been refused a visa and face removal from Australia.Yet, beneath the complaints and the bitterness lie real concerns about the operation of Australia’s sophisticated refugee-determination procedure, with its built-in right of appeal to the Refugee Review Tribunal. Many asylum seekers feel that their true story does not get heard, and that the focus is on destroying their personal credibility. ‘It is a constant problem that has plagued refugee determination,’ says refugee lawyer Carolyn Graydon, who worked for several years at the Refugee and Immigration Legal Centre in Melbourne. She believes that there is a ‘fixation with credibility of applicants’, that genuine refugees are rejected on the basis of minor inconsistencies in their testimony. < > The interview room on the tenth floor of a city office block is about 3 metres by 4 metres. It has regulation blue office-chairs, a grey-blue carpet and pale yellow walls. There are no windows, just a glass panel in one door.The ceiling is slightly decayed.There is the constant background swish of air-conditioning. A DIMA staff member enters from a door on one side of the room; Ibrahim, together with his adviser and his interpreter, come in through a second door in the opposite wall. They meet in the middle of the room, over a desk equipped with glasses of water and recording equipment. After some introductory remarks to explain the process, the formal interview begins. Ibrahim is an Angolan military deserter. He was conscripted by the government to fight UNITA rebels. He could have been fighting against his own brother, who was press-ganged into service by the other side. In the confusion following a major battle Ibrahim fled to South Africa with two friends. He hopes that everyone back home thinks he was killed in action, otherwise his family may be punished for his desertion. But here, in the cramped interview room, Ibrahim does not get a chance to talk about any of this. The focus is on how he got to Australia. In his application for refugee status, Ibrahim has said that he came to Australia on a transit visa, and that he was en route to Tonga. Why Tonga? he is asked. Because it has no diplomatic links with Angola

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and he does not need a visa to enter there, he answers. How did he know this? He heard it on television, he says. He is asked where he bought his Qantas tickets and how he got a visa for Australia.The questions are pointed and specific; Ibrahim’s answers are infuriatingly vague and evasive. Then the DIMA officer asks Ibrahim why he had a Bible with him when he arrived in Australia. Not a Bible, he corrects her, a New Testament, though he does not seem to understand the distinction he has made. Perhaps it is a problem in translation.The interpreter, the only one in the State of Victoria who is qualified in the appropriate language, is struggling gamely to do an accurate job. Ibrahim says he found the Bible in a bookshop in Johannesburg. But you are a Muslim, the officer puts to him.Yes, answers Ibrahim, but I am also interested in other religions. Ibrahim slumps lower in his chair. He is digging a very deep hole for himself. This cat-and-mouse game goes on for some time, until the DIMA officer finally reveals her hand. She has made inquiries with the Australian High Commission in Pretoria and has on file the full details of Ibrahim’s application for a transit visa. It contradicts what he has just been saying. Do you want me to tell you what the file says, she asks, or do you want to tell me the truth? If I had told the truth at the Australian High Commission, he answers, if I told them that I came from the Angolan army, they would never have given us a visa. So what did you say to the High Commission? the DIMA officer demands. Ibrahim finally drops his deception. At the Australian High Commission in South Africa, he and his two friends claimed to be Christians who had been invited to a church conference in Nauru.This was how they secured the transit visas for Australia. The DIMA officer wants more; she wants to know who helped him. She warns Ibrahim, if you are not truthful, then it is hard for me to accept everything that you are saying. It is hard for me to believe that you really were a soldier. Gradually, Ibrahim reveals more detail about the man in South Africa who helped to arrange everything, who helped Ibrahim disguise himself as a pastor, who gave him a fake invitation to a fake church conference on fake letter-head, and fake confirmation on a fake fax of his fake accommodation in Nauru. His lies to DIMA had been designed to conceal this man’s identity, to protect the man’s business as a broker on the smuggling route through South Africa. Ibrahim may have paid the man money, but he is still indebted for the help he received, help that few others could or would offer. He feels that he owes the man his silence. The DIMA officer asks Ibrahim to sign a document authorising further inquiries to check out his story with churches in Angola, Nauru

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and Australia. He is not obliged to sign, he is told, but if he does not it may prejudice his case; she might assume that he really is a pastor, not an army deserter. Ibrahim signs. Anything you would like to add, he is asked. I am a soldier, holding the church paper to save my life, he says. I am a Muslim, not a Christian. It was not my choice to be in the army, I was forced. In the army I was fighting the devil and God all the time. The DIMA officer thanks him. If she wants to know more about his army experiences, she will invite him back for another interview. The session is over. His fate is in her hands. In the end, Ibrahim’s application for refugee status is successful. His decision to revert to the truth when confronted with DIMA’s evidence was the correct one. One of his co-deserters has been waiting in a separate room with no knowledge of what is going on and is interviewed immediately after Ibrahim. He independently confirms the details of the ruse that got them to Australia on transit visas. Ibrahim’s case could easily have turned out differently. Had he persisted in his vain attempt to protect the identity of his South African helper, his credibility would then have been destroyed and his entire testimony may have been disbelieved. He was never asked about his experiences in the army nor about what he feared might happen should he be returned to Angola. The whole interview turned on the manner in which he had made his way to Australia. Assessments of credibility are integral to refugee-determination procedures. But it has to be recognised, too, that asylum seekers may have reason to lie about peripheral details — particularly about such matters as how they got their visas or their airline tickets.This may make a case messy, but it does not invalidate a claim for refugee status, nor diminish the persecution that a refugee may fear in his or her homeland. Long-term observers of Australia’s refugee system believe that credibility is now increasingly being used as an inappropriate frontline test to weed out applicants, rather than being included as one consideration among many when weighing up the details of a claim.‘The credibility test sits up there in lights,’ says Sherron Dunbar, who has advised asylum seekers both as a social worker and as a registered migration agent for the past fifteen years.‘That means that you’ve got to prove that you can be believed.’ The increasingly frequent use of language tests is one of the ways in which the credibility of applicants is tested. For example, the Immigration department might question whether an applicant who claims to be from Afghanistan is really from Pakistan, given that ethnic and religious minorities such as the Hazara are found on both sides of the border. The department will send a cassette tape of the applicant’s speech to a company in Europe for analysis. At least a dozen European

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countries have begun to employ this kind of linguistic analysis in asylum matters since it was developed in the early 1990s by a Swedish agency called Eqvator. The Immigration department sends language samples to one of five European agencies, including Eqvator, at an average cost of $550 per assessment. DIMIA began using language analysis in early 2000; by May 2002 it had commissioned around 2800 such tests, for a total cost of $1.5 million. The department says the tests are necessary because many asylum seekers have lost or destroyed their identity documents and because DIMIA has identified ‘an increasingly sophisticated effort by people smugglers to intensively school Pakistani unauthorised arrivals … so as to present themselves as Afghan nationals’.The department says language analysis provides asylum seekers with ‘an opportunity to prove their true provenance by analysis of their vocabulary, accent, idioms and language structure’ and that ‘the bulk of assessments actually validate claims by individuals about their origin’. Refugee lawyers are concerned by the tests and the use of such tests remains controversial in Europe. When DIMIA uses linguistic analysis as grounds to reject an application for refugee status, it refuses to hand over a copy of the report or of the original tape-recording on which the report is based. Copies of the reports are provided by the Refugee Review Tribunal in cases of rejection, but the reports do not name the experts who conducted the analysis, nor provide any indication of their qualifications, expertise or methodology. In the words of refugee lawyer Kerry Murphy, there is ‘no way that the reports would stand up as expert evidence’ in court. The assumptions behind the language tests also present problems. For example, applicants who claim to come from Afghanistan might be rejected on the basis that they use occasional Urdu words (the dominant language in Pakistan) in their speech. The reality of Afghanistan’s recent history is that millions of Afghans have lived in Pakistan at some time or other and Urdu words may well have been introduced into local speech patterns by returning relatives or neighbours. In border regions people may have crossed back and forth over the frontier all their life. The introduction of language analysis has certainly produced some cruel outcomes. When Ali Asqar Bakhtiyari arrived in Australia, in October 1999, he was assessed as a refugee from Afghanistan and given a protection visa. When his wife Roqia arrived fourteen months later with their five children aged between five and thirteen years of age, the department decided, partly on the basis of language tests, that she was from Pakistan and denied her a visa. For eight months, until a former Woomera detainee chanced upon Ali Asqar in Sydney and recognised his name, Roqia remained unaware that her husband was living and working in Sydney and he remained unaware that his wife and children were locked up at Woomera. It appears that the Refugee Review

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Tribunal was also unaware of this fact. The decision rejecting Roqia’s application includes this sentence: ‘The tribunal does not accept that the applicant’s husband is an Afghan national as there is no evidence supporting this claim’.To confuse matters further, the department concluded that Roqia’s brother Mahzer — also detained in Woomera — was an Afghan, but had lived in Pakistan for at least two years (his application for refugee status was rejected). After a year in detention, Roqia and her two oldest sons were among protesters in Woomera who stitched their lips shut with thread, while Mahzer launched himself from the roof of a detention-centre building onto the razor-wire fence to draw attention to the plight of his sister and her children. The two boys later escaped from Woomera and, after weeks on the run, presented themselves at the British Consulate in Melbourne in an unsuccessful bid for asylum in the United Kingdom. They were returned to Woomera before their father could travel from Sydney to Melbourne to visit them.The Immigration minister has refused to intervene in the case and in April 2002 the Bakhtiyaris’ solicitors initiated High Court proceedings seeking to overturn the government’s decision not to issue visas to Roqia and her children. Three days later, the Immigration department served Ali Asqar Bakhtiyari with a notice of intention to cancel his visa, on the grounds that ‘it has been alleged’ he comes from Quetta in Pakistan, and that linguistic analysis suggested he spoke a Quetta dialect.The allegations against Mr Bakhtiyari were not sourced and the Immigration department refused to provide his lawyers with a copy of the language analysis report on which they had based their conclusions. This prompted the lawyers to commission their own expert assessment from a linguist specialising in Afghan languages at the University of Arizona. The linguist concluded that Mr Bakhtiyari’s speech provided ‘ample evidence to conclude that he has resided in Afghanistan and his speech is the same as the speech of other Hazaras living in Afghanistan’. However, a detailed investigation by Age journalist Russell Skelton suggested that Mr Bakhtiyari had not been truthful about his origins. Evidence of the problems with an over-reliance on ‘credibility’ has been put before numerous parliamentary committees, including a Senate Legal and Constitutional References Committee, which inquired into the operation of Australia’s humanitarian and refugee program in 1999–2000. In its submission to the inquiry National Legal Aid gave the example of an applicant from Pakistan who claimed to be an Ahmadi facing religious persecution.The DIMA case-officer did not interview the applicant, made no inquiries about his faith, and yet rejected the application on the basis of credibility. The officer wrote simply: ‘I have very great difficulty accepting the applicant’s claim that he is an Ahmadi …’.

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The credibility problem extends from the primary decision (that is, decisions made by Immigration department case-officers) to appeals before the Refugee Review Tribunal (RRT). The tribunal was established in 1993 to provide an independent review of departmental decisions. Its mission is to be ‘fair, just, economical, informal and quick’. Appeals are heard by a single member of the tribunal, who is supposed to follow a European-style inquisitorial model rather than the adversarial approach used in our courts. In theory, this should enable the presiding member to elicit as much information as possible from the applicant in a non-threatening manner.The aim is to discover the truth.The procedure is intended to be so friendly and straightforward that the applicant does not even need the assistance of a lawyer or migration agent. The reality is rather different. Tribunal members often fail to use their statutory powers of inquiry and, instead, treat the applicant as an adversary.While the tenor of a hearing depends greatly on the presiding member, Sherron Dunbar identifies an increasing tendency to try to catch the applicant out. As she told the Senate Committee: ‘What I have noticed over the past few years is a tendency for members to question the credibility of the applicant’s claim, often apparently even trying to trick the applicant into contradicting herself …’. She says she has noted the use of interrogation-style techniques such as ‘apparent indifference, coldness, challenging thrusts, multiple- and return-questioning about particular incidents, covert remarks that are not possible to interpret, insinuation’. The tribunal may doubt the credibility of an applicant whose testimony significantly expands on evidence presented to DIMIA at the primary stage of the case.This can leave asylum seekers in a no-win situation, particularly if they were poorly advised at the outset. Sherron Dunbar cites the case of a woman from El Salvador who was rejected by Immigration department officials at the primary stage. Her initial application had been prepared with the assistance of relatives, who failed to make out a proper case because they had no real understanding of the refugee-determination process. Sherron Dunbar helped the woman prepare her appeal to the tribunal: ‘We went to the RRT and we turned ourselves inside out to prove the details of her husband’s disappearance, her rape and the smashing of her house,’ recalls Dunbar. ‘We even drew pictures to scale because I thought they are not going to believe her.’ The response from the tribunal was to question why the information had not been produced earlier.The implication was that the extra detail had been fabricated to bolster the case.The appeal was lost. Other asylum seekers have been knocked back on the basis of contradictions between evidence presented to the tribunal and testimony given at the airport just moments after the applicant had first arrived in Australia —

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that is, before even having had the benefit of a rest, let alone professional advice. A decision based on credibility can be attractive to a decision maker because it is almost impossible to challenge at law. Powerless to act, the Federal Court has not, however, remained silent and judges have repeatedly expressed grave concern about the tendency to reject claims for refugee status on the grounds of credibility. In Selliah v Minister for Immigration (12 May 1999), Justices Einfeld and North commented:‘As commonsense, humanity and the Handbook of the United Nations High Commissioner for Refugees demonstrate, a person escaping persecution or worse, often not knowing if there will ever be an opportunity to see loved ones again, is likely to be quite distressed and nervous on arrival in a foreign country for the first time, obviously not knowing what might occur. … They will normally not be accustomed to official interrogation in English.They will have been travelling for several hours. What they say at that time should not be treated as definitive of a set of facts as, or treated as more likely to be true than, matters stated to department officials or the tribunal at a hearing some time later.’ The judges cautioned that the methods used in the tribunal ‘contravene every basic safeguard established by our inherited system of law for 400 years’ and pointed out that it was extremely unusual in other areas of the law for a decision to turn on questions of individual credibility alone: ‘With all the traditional criteria for hearing petitions of persons doing business before the courts, it is difficult, and rare, enough for cases to be determined on the basis alone of the general creditworthiness of a party or witness by reason of inconsistency between two or more statements the person has given in different and often stressful situations’. Similarly, in Sundararaj v Minister for Immigration (3 February 1999) in the Federal Court, Justice Burchett noted that: ‘The Tribunal should understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, culture and legal problems they face, should be recognised, and recognised by much more than lip service.’ In another instance, the Federal Court questioned the way in which a member of the Refugee Review Tribunal had decided that an applicant lacked credibility on the basis of ‘body language’ and ‘demeanour’. Justice Gray reasoned (Sivaganeshan Kathiresan v Minister for Immigration, 4 March 1998): ‘In an area in which cross-cultural communications

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occur, there is danger in giving too much rein to the “subtle influence of demeanour”. … The dangers of trying to assess the truthfulness of witnesses by reference to their body language, where different cultural backgrounds are involved, are well-known.They are exacerbated in circumstances … in which people claiming to be refugees have been subjected to abuse and torture by authorities in the countries from which they have come.Their behaviour towards persons in authority is bound to be influenced by their experiences.The problem is exacerbated even more when the evidence is given by way of an interpreter. Judging the demeanour of the witness from the tone of the interpreter’s answers is obviously impossible. Judging the demeanour of the witness from the witness’ own answers in a foreign language would require a high degree of familiarity with that language and the cultural background of its speakers. It is all too easy for the “subtle influence of demeanour” to become a cloak, which conceals an unintended but nonetheless decisive, bias.’ His Honour described the tribunal decision as resembling ‘a house of cards’, in which ‘disbelief of one fact is used as a reason to disbelieve another, and so on’. He noted that the applicant was disbelieved because of his failure to recall events, such as a bombing, which were supposed to have taken place when he was hiding in Colombo. However, as the judge pointed out, the tribunal had made a mistake. The events it referred to, and expected the applicant to know about, had actually taken place one year earlier. ‘There are dozens and dozens of Federal Court references to the tribunal’s obsession with the credibility of an applicant’, lawyer Mark Robinson noted. On behalf of the Law Council he told a Senate Committee:‘It is an inappropriate emphasis in decision making. It leads to error. It is also lazy, because the tribunal does not have to determine the real issues. It can simply say,“I don’t believe you. Next case, please”.’ Monash University researcher Susan Kneebone contends that, instead of having developed a non-adversarial culture in keeping with its original brief, the Refugee Review Tribunal is increasingly confrontational, a trend which ‘appears to be a response to moves by the federal government to discourage applications by on-shore refugee claimants …’. She describes the tribunal as ‘wedged between the courts and the executive in a culture of tension’. Dr Kneebone’s preliminary findings on the workings of the Refugee Review Tribunal were published in an administrative law journal and, in her own words, ‘provoked enormous controversy’. Rattled by the criticism, she went back to the tribunal to seek permission to observe more cases (tribunal hearings are held in camera to protect the privacy of asylum seekers), because, as she put it, she wanted to make quite sure she was being ‘fair and objective’. However, here academic freedom ran

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into a brick wall.‘I am not basically a controversial person,’ she told the Senate Legal and Constitutional Legislation Committee,‘and I thought this was the country where one could speak freely, but I have now been called in by two principal members of the Refugee Review Tribunal and effectively chastised … I approached the tribunal and asked whether I could get some information from them in each case, and in each case my request for information to work further with the tribunal was basically rejected.’ The autonomy of the Refugee Review Tribunal is qualified in key respects. It is a ‘portfolio’ tribunal, under the wing of the Immigration department, and appointments are made by the minister. In recent years several members have been appointed for short terms of just one or two years, hardly long enough to guarantee a fiercely independent spirit. The tribunal’s 2000–2001 annual report shows that nine of the tribunal’s thirty-two full-time members and six of its part-time members had been appointed for terms of two years or less. When the minister appointed eight new members in June 2002, all were given terms of just two years. The minister has also appointed former Immigration department officials to the tribunal, which has raised obvious concerns about a conflict of interest (given that the tribunal is meant to provide an independent review of the department’s decisions). As one former tribunal member told me, while the tribunal is certainly not ‘hand in glove’ with the department, neither is it ‘at arm’s length’. He concluded that the relationship was ‘more like wrist’s length’. In 2001, when members of the Refugee Review Tribunal raised concerns about the department’s heavy reliance on language analysis to reject applicants claiming to come from Afghanistan, DIMA was clearly not impressed and sought to convince the independent tribunal that it should see things the department’s way. DIMA sent a detailed ‘submission’ to the tribunal to ‘assist’ it in assessing such expert evidence ‘in the interests of maintaining consistency of interpretation in accordance with Australian law and policy’. The minister, Mr Ruddock, has made his view of the tribunal clear on several occasions. In December 1996 he criticised the tribunal for two decisions granting asylum to women who had suffered domestic violence. There were sound precedents for these tribunal decisions, which took their authority from a majority decision in the House of Lords; nonetheless, the minister warned that members would not be reappointed if they made decisions that went beyond the law. In February 1997 he told the Australian that if tribunals see themselves as ‘so independent that those who are responsible for determining what the law is cannot have a view’, then that ‘totally misconceives their role’. The minister also told a conference on administrative law that,

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while tribunals rightly have regard to the rights of individual applicants, ‘legislation not only establishes those rights but balances them against budgetary and other wider community interests’. In a press release in March 1997 the minister warned that he would take measures to give ‘a clearer articulation of my expectations and directions to Tribunal members’. In the same press release he announced the introduction of a $1000 fee on Refugee Review Tribunal appeals. The fee is only payable if the appeal fails; in fact, it is rarely enforced since most failed applicants are removed from Australia. However, the fee remains as a debt to the Commonwealth that must be cleared before the applicant can ever return to the country (along with a charge for the accumulated cost of any period that the applicant may have spent in immigration detention). The main effect of the tribunal ‘failure fee’ was symbolic — symbolic deterrence on the one hand, and, on the other, symbolic representation of Mr Ruddock’s view that the appeal process is a privilege rather than a right. The minister has also criticised the tribunal for being too slow in making decisions.There is now great pressure on the tribunal to meet productivity targets.According to the Refugee Review Tribunal annual report, the tribunal exceeded its notional target of 139 cases per effective full-time member in the year 1998–99. That means each member was expected to produce around three decisions each week. This is no small workload, given that the average hearing lasts about two hours and requires detailed preparation and extensive report-writing. While some cases may be relatively straightforward, the tribunal member is nonetheless being asked to adjudicate on matters of life and death.Weighing up the evidence, assessing it against known conditions in the home country, evaluating the claims in relation to Australian law and the 1951 Refugee Convention — all this is a strenuous intellectual exercise. I spoke to three former members of the tribunal (two who left voluntarily and one who was not reappointed). All believed that the quality of decision making had declined markedly since the Refugee Review Tribunal’s inception in 1993. ‘There was an erosion of independence right from the beginning,’ says one, ‘and it has not stopped with change of government [from Labor to the Coalition in 1996]. There is enormous pressure to produce decisions and produce the right decisions.’ Another believed decisions had become ‘shabby’ in recent years. There is certainly evidence that tribunal members overturn fewer departmental decisions than in the past. In its first three years of operation (1993–96), the tribunal overturned, or ‘set aside’, almost 17 per cent of departmental decisions under review; in the five subsequent years the set-aside rate slumped to an average of less than 10 per cent.

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A former principal member, Dr Peter Nygh, denies that this is evidence of a weaker tribunal. As he pointed out to another Senate Committee hearing in 1999, set-aside rates may vary owing to changes in the mix of asylum seekers: set-aside rates are likely to be lower, for example, if appellants come from the Philippines rather than, say, Somalia. Certainly, the tribunal found departmental decision-making to be frequently wrong in relation to applicants from several countries with notorious human rights records. In its eight years of existence to 30 June 2001, the tribunal overturned more than half the primary decisions made by DIMA officers in relation to applicants from Algeria, Bosnia Herzegovina and Zaire, while more than 40 per cent of decisions were set aside in relation to applicants from Armenia, Burma, Croatia, Iran, Somalia and Turkey. In the case of applicants from Afghanistan and Iraq, most of whom were in detention, the set-aside rates were 69 per cent and 82 per cent respectively. Given that, on average, it takes the tribunal sixty-four days to reach a decision on a detention case, this means that hundreds of refugees were detained for weeks or months longer than was necessary under the Migration Act, at great financial cost to the tax-payer and great personal cost to the individuals involved. In the RRT’s 2000–2001 annual report, the principal member writes that the tribunal ‘remains determined to maintain its independence’ and that decisions are not influenced ‘by either the Minister or his Department’. Addressing the Senate Committee in 1999, Dr Nygh also defended the tribunal’s independence from the minister: ‘May I say that in my time on the watch, as it were, as acting principal member of the tribunal, the minister has never sought to interfere with one single case before the tribunal, or sought to direct how it should be decided, or sought to direct the tribunal in general on how it should decide any particular cases’. There were allegations of interference under a previous principal member, however. In June 1997 tribunal member Dr Ken Chan was in the process of finalising two decisions favourable to East Timorese asylum seekers. He had delayed the decisions pending the outcome of a Federal Court case (the Jong case), which was handed down on 2 May. Dr Chan told the Australian (3 July 1997) that the tribunal’s principal member, Mr Shun Chetty, had called him into his office and asked him not to finalise a decision he was working on: ‘He [Shun Chetty] said that the minister’s office had contacted him and said the Government was in the process of making a policy decision on the East Timor cases’, Dr Chan said. ‘He asked me in view of that not to complete my decision.’ Dr Chan refused. He told the Australian that the decision was ‘for all intents and purposes finished’ and he felt it would be unfair to the applicant not to complete it. Dr Chan said he understood that Mr Shun Chetty subsequently tried to take the case away from him. He said he

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believed Mr Chetty’s actions were ‘very improper’, and potentially in breach of the legislative provisions that guarantee the right of tribunal members to make independent decisions. However, ‘independence’ is about more than interference in individual cases. Clearly, the process of appointment and reappointment is crucial to long-term guarantees of the tribunal’s autonomy. According to evidence presented to the Senate Committee, the principal member makes recommendations as to reappointments, which are based on an appraisal of the member’s work:‘The appraisal process takes place annually, and involves a consultation between the member and the Principal Member where the quality of decision-making and productivity are discussed’. A former tribunal member says that this appraisal process also involves a detailed report card, which does much more than simply compare the number of decisions made against productivity targets. The member’s set-aside rate is also recorded, broken down country by country, and then compared against the tribunal average for each nation. In other words, it is possible to see at a glance whether or not a member’s decisions are ‘generous’ towards asylum seekers generally, or towards any one nationality in particular.The former member who told me this says he was given to understand that the information was also being made available to the minister. The reappointment process was hit by controversy when former diplomat Bruce Haigh was dropped from the tribunal. The Australian (13 May 2000) reported that, despite endorsement from the tribunal’s principal member, Haigh’s reappointment was vetoed in cabinet, apparently because of his outspoken criticism of Australian policy towards East Timor. Controversy over the reappointment process casts doubt on the integrity and impartiality of the tribunal. One former member believes that the independence of the tribunal would be enhanced if appointments were for a single fixed term of four to five years, with no extension. He says that this would give members time to become expert and make use of their skills, but give them no reason to curry favour with the minister. He also fears that members who stay in the job too long risk exposing themselves to compassion fatigue and prejudice towards particular nationalities of asylum seekers. Others recommend creating greater distance between the tribunal and the minister, by removing it from the Immigration portfolio and placing it, instead, under the jurisdiction of the Attorney-General’s department. The quality of decision making at the Refugee Review tribunal is crucial to the quality of refugee decision-making in Australia as a whole for two key reasons. Firstly, as researcher Susan Kneebone has noted, ‘for most applicants the oral hearing is the first perceived opportunity

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to discuss the issues with an independent official’. In fact, in cases where the Immigration department has made a decision ‘on the papers’ (that is, without interview), this may be the applicant’s only chance to put their case in person. Secondly, and more fundamentally, an applicant who is rejected by the Refugee Review Tribunal has almost no right of appeal — essentially, the RRT decision is the end of the road for asylum seekers. | This was not always the case. Originally, as in all other areas of administrative law, decisions of the Refugee Review Tribunal could be challenged before the courts. However, in 1994 the then Labor government curtailed those rights with new legislation, which became known as Part 8 of the Migration Act. Part 8 ruled out any appeal against a Refugee Review Tribunal decision on the basis of a breach of ‘natural justice’ or ‘unreasonableness’. It barred appeals made on the basis that the tribunal took irrelevant considerations into account or failed to take relevant considerations into account. Neither could the court deal with allegations of ostensible bias or bad faith by the tribunal. As refugee lawyer Carolyn Graydon comments, this meant that judicial scrutiny of tribunal decisions was very limited and that it was ‘lawful for the tribunal to make an unreasonable decision, for the tribunal to not give natural justice to an applicant, for the tribunal to take irrelevant considerations into account, or not take relevant considerations into account’. Without judicial oversight and pressure to be accountable, she says, the standard of decision making inevitably declines.There is a temptation to make decisions ‘judge-proof ’ by basing them on matters which cannot be reviewed — for instance, as we’ve already seen, on an assessment of the applicant’s credibility. The Part 8 restrictions were justified on various grounds. First, the Refugee Review Tribunal was set up to provide a forum for an efficient and independent merits review, in theory rendering judicial review redundant. Significantly, though, the creation of the Administrative Appeals Tribunal was not seen to have the same effect and in other areas of administrative law judicial review remains an option. It can be argued that the life-anddeath nature of refugee cases should require the greatest number of checks and balances in the decision-making process; yet, in effect, it has the least. The second and more political justification for introducing Part 8 of the Migration Act was the complaint that the courts and ingenious lawyers were usurping the sovereign right of government to police the borders. As Gerry Hand, the former Labor minister for Immigration, saw the situation in 1993 (before Part 8 came into effect), lawyers were

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using the ‘oldest trick in the book’ — litigation with the sole purpose of prolonging their clients’ stay in Australia.The theory was, according to Mr Hand, that ‘the longer you can stay here the less chance there is of the Government rejecting or returning you’. He told the journal People and Place that it was dreadfully frustrating. ‘I know that lawyers were saying [to their clients],“You don’t have to worry, the High Court will stop this”, or “We’re in the Federal Court tomorrow and everything will be OK because the judge will let you stay”.’ Five years later the current minister, Philip Ruddock, echoed those concerns. He accused judges of ‘turning water into wine’ while overzealous migration lawyers were ‘making money out of other people’s misery’. He told parliament that about half-a-dozen ‘creative’ Federal Court judges were ‘out there on a frolic of their own’, ignoring the authority of the High Court. In Mr Ruddock’s view the Federal Court has ‘crippled’ the Refugee Review Tribunal through its attempts ‘to regulate and micromanage the way in which it undertakes its task’. He says that this has resulted in the worst of all worlds. ‘We have a system which is unduly complex, one which is time consuming and expensive, one which is technical to the point that you cannot be certain that their decisions are going to be able in the longer term to be sustained.’ The minister’s frustration is explained in part by the steady increase in litigation on refugee matters. In the year that Gerry Hand made his complaints fifty refugee cases were taken to the Federal Court. The restrictions imposed (via Part 8 of the Migration Act) on judicial review were meant to reduce that number; instead, appeals mushroomed. In 1998–99 there were 653 Federal Court applications to appeal Refugee Review Tribunal decisions. The Immigration department’s legal bill had blown out in equal measure: the annual cost of all litigation more than doubled, from $4.4 million in 1994–95 to nearly $9.5 million in 1997–98. To make matters worse, Part 8 of the Migration Act had the unintended consequence of clogging up the High Court as asylum seekers sought to pursue the only legal avenue left open to them. (The High Court’s jurisdiction is entrenched in s75(v) of the Constitution and cannot be restricted by legislation.) The seven judges of Australia’s High Court are charged with a formidable constitutional responsibility. It is absurd to have them hearing case matters at the first instance. As a Federal Court judge says, it is like asking the prime minister to direct traffic. In a High Court decision handed down in early 2000 (Re The Minister for Immigration and Multicultural Affairs; Ex parte Durarajasingham, 21 January 2000), Justice McHugh noted that a principal reason for the creation of the Federal Court in 1976 was to free up the High Court and give it ‘adequate time for research and reflection’ on matters of national importance. He noted that nowhere else in the world was a constitutional or ultimate appel-

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late court called upon to perform the kind of trial work forced upon the High Court by Part 8 of the Migration Act:‘The effect of restricting the jurisdiction of the Federal Court must inevitably impose on the Justices of this Court the dilemma of choosing between two unpalatable alternatives,’ he wrote. On the one hand, the court could prioritise ‘applications of persons held in custody and claiming refugee status’ but this would be ‘to the detriment of the Court’s general constitutional and appellate jurisdiction’. On the other hand, if the court chose to prioritise its ‘constitutional and appellate jurisdiction’, this would mean that asylum seekers are detained ‘for longer periods than is likely to have been the case if the Federal Court had retained all of its jurisdiction to deal with refugee cases’. According to the official Refugee Review Tribunal website, members made around 47,000 decisions between the inception of the tribunal in 1993 and 30 April 2002. In 34,000 of those cases, the department’s decision to deny refugee status was upheld. During the same period 4652 Refugee Review Tribunal decisions were appealed. In other words, around 14 per cent of asylum seekers who failed at the tribunal went on to seek redress from the courts. In 2001–2002 the proportion of asylum seekers seeking judicial review of a negative decision by the tribunal rose to more than 20 per cent.This was a remarkably high rate of appeal, given the restricted grounds on which a review could be sought. The reasons for the growth in applications to the Federal Court and the High Court are a matter of dispute. As far as the government is concerned, the problem is the same one that Gerry Hand identified in 1993: abusive litigants attempting to prolong their stay in Australia. There is some evidence to support this view. As Justice Wilcox of the Federal Court commented (Mbuaby Paulo Muaby v Minister for Immigration, 20 August 1998): ‘It is the experience of my colleagues, as well as myself, that a large proportion of these matters are commenced by a stereotyped form of application that is uninformative and bears little relationship to what the applicant says at the hearing. It seems the filing of an application for review has become an almost routine reaction to the receipt of an adverse decision from the Tribunal.’ However, a study by the Australian Law Reform Commission concluded that cases of abusive applicants using the court to delay their departure from Australia were ‘few in number’. The Commission told the Senate Committee that most refugee claims before the Federal Court concerned ‘cases where the refugee claim is arguable, and the facts as presented by the applicant disclose distressing circumstances …’. Few cases were clear-cut and the majority deserved to be heard. Again, this is borne out by statistics. In 3860 applications for judicial review finalised between 1 July 1993 and 30 April 2002, the courts set

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aside 726 decisions of the Refugee Review Tribunal. In other words close to one-fifth of all refugee appeals courts achieved a result favourable to the applicant — either because the court upheld the appeal and told the Refugee Review Tribunal to reconsider its decision or, in the majority of cases, because the minister voluntarily agreed to remit the case to the Refugee Review Tribunal prior to hearing. < > If it is not abusive litigants that caused the rise in refugee litigation, then perhaps it is the lack of adequate legal advice that is to blame. In the past asylum seekers could apply for legal aid, subject to a means test and a merits test. In other words, if they could not afford to pay for advice, they were eligible for free assistance as long as their application held out a reasonable prospect of success. In July 1998 the federal government cut off access to legal aid, and implemented the Immigration Advice and Application Assistance Scheme (IAAAS) in its place. The major concern with IAAAS is the limit on funding. According to National Legal Aid, the overall amount of money spent assisting asylum seekers halved after the introduction of the IAAAS. Moreover, while all asylum seekers in detention are guaranteed IAAAS support, very few places are made available for asylum seekers in the community. The Legal Aid Commission of New South Wales (the State where most asylum applications are lodged) received funding for just forty community cases in 1997–98.The money ran out well before the end of the financial year. As National Legal Aid told the Senate Committee: ‘Enquiries of other contractors showed that they too had no places available, and we had to turn people away who sought our assistance. Most did not speak English and would have had enormous difficulty preparing and lodging their own applications for protection visas.’ To many lawyers, the inadequacies of the IAAAS explained the increase in refugee litigation before the Federal Court, particularly by unrepresented applicants. As Justice Wilcox concluded in the Muaby case judgement (cited above), the solution is not to deny the right to judicial review, but to guarantee better access to independent legal advice and proper interpretation services. ‘If that were done, the number of applications for judicial review would substantially decrease. Those that proceeded would be better focussed and the grounds of review more helpfully stated.’ This view received support from the Senate Legal and Constitutional References Committee in its report ‘A Sanctuary Under Review: An Examination of Australia’s Refugee and Humanitarian Determination Processes’. In its year-long investigation, the Committee addressed many of the problems in the refugee-determination process

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which have been raised above. Its attention was drawn to the brevity and inadequacy of some protection-visa applications submitted with IAAAS assistance. This scheme is administered by DIMIA through competitive tender, which has the potential to create a conflict of interest for migration agents. Take the case of an asylum seeker who is abused while in detention, for example. The asylum seeker tells the migration agent about the problem, and asks the agent to raise the matter with the Immigration department. Will the agent, or the agent’s employer, be prepared to make a fuss with DIMIA while simultaneously tendering for a share of next year’s IAAAS funds? Anecdotal evidence suggests that at least some contractors are reluctant to rock the boat. I know of two registered migration agents who publicly criticised conditions in outback detention centres and who are no longer able to get work with IAAAS contractors. The overall thrust of the Senate Committee’s report was that the system would operate more efficiently if asylum seekers were better informed of the legal process and their rights within it.The Committee made numerous nuts and bolts recommendations to this effect. It called for the discrete funding of translations, interpreting services, medical and psychiatric assessments for asylum seekers. Currently, such costs are paid out of the standard payment available to migration agents under the IAAAS, inviting unscrupulous agents to cut corners in order to boost their own share of the fee. In relation to the Refugee Review Tribunal, the report failed to address deeper concerns about the tribunal’s relationship to the Immigration department and the minister, but it did recommend that officers from the Immigration department, the Attorney-General’s department and the Department of Foreign Affairs and Trade should not be tribunal members, a measure which would make the Refugee Review Tribunal at least a little more independent.The Committee also recommended that, in order to consider more complex cases, the Refugee Review Tribunal be able to convene two- and three-member panels. In all key respects the report was unanimous; the recommendations were weakly worded, the outcomes a compromise, but at least they had cross-party support. Arguably, the most important recommendation was that the Immigration department ‘investigate the provision of videos or other appropriate media in relevant community languages, explaining the requirements of Australia’s onshore refugee determination process’ and that this material ‘should be available to those in detention’. This proposal addresses one of the most disturbing aspects of current procedure — the deliberate decision not to inform immigration detainees of their legal rights. As the Committee noted:‘Under current law, an immigration detainee has a right to make an application for refugee status, and

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is provided with legal assistance … when making an application. However, the department and its agents are under no obligation to provide any information or services unless requested to do so. The onus, therefore, is on the detainee to expressly make a request.’ The Senate Committee was clearly very uncomfortable with this niggardly approach to fundamental rights. ‘The committee recognises that there is often a great disparity among asylum seekers in terms of knowledge, education, and financial resources, and any factor which limits the access of asylum seekers to information can severely disadvantage a genuine applicant …’. It would have been more satisfying to see the Committee confront the issue head on, and recommend in a more forthright manner that Immigration department officials simply advise all detainees of all their rights. Clearly, the senators believed that a less confrontational approach is better politics. The Committee’s response to increased litigation by asylum seekers was to recommend that Legal Aid Commissions be allowed to provide limited advice to asylum seekers on whether it was worth their while lodging an appeal for judicial review. In the Committee’s view this would have helped to unclog the courts by reducing the number of unrepresented appellants and weeding out cases that had no prospect of success. In the end, like most of the Committee’s recommendations, this sensible advice went unheeded. Instead, the government chose to tackle the problem of increased litigation by asylum seekers with a further sharp restriction on their access to the courts. To that end, the Immigration minister, Philip Ruddock, revived his push for a privative clause and it was voted into legislation by the parliament in late September 2001.The intention of a privative clause is to oust the jurisdiction of the courts in particular matters. In this instance the aim is to prevent the Federal Court from hearing any appeals by asylum seekers (or any migration matters). It does this by declaring that certain decisions made under the Migration Act are ‘privative clause decisions’ which are ‘final and conclusive’ and ‘shall not be challenged, appealed against, reviewed, quashed or called in question by any court’.The definition of a ‘privative clause decision’ is extremely broad. It is ‘any type of decision of an administrative character … made, proposed to be made or required to be made’ including ‘granting, making, suspending, cancelling, revoking or refusing … an order or determination … certificate, direction, approval, consent or permission (including a visa)’. The privative clause also exempts from legal challenge any actions taken prior to making a decision (such as ‘the taking of evidence or the holding of an inquiry or investigation’) and any inaction, such as ‘a failure or a refusal to make a decision’. For several years the privative clause (contained in the 1998 Judicial Review Bill) had been blocked by

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Democrat and Labor opposition in the Senate, but in the wake of the Tampa it sailed swiftly and unimpeded through the parliament. Expert opinion suggests that the privative clause is certain to be challenged before the High Court and stands a good chance of being declared unconstitutional. As the Refugee Council of Australia argued in a submission to a Senate Committee looking at the bill in 1999,‘to pass legislation that the Government knows will be challenged in the High Court on constitutional grounds is neither good governance nor the mark of a government interested in saving taxpayers’ funds’. In its dissenting report from that committee Labor accused government supporters of the Judicial Review Bill of placing ‘such great store in administrative efficiency, in the saving of money, in the husbanding of time, in the checking of applicants for judicial relief, that they are prepared to discount due process and the rule of law’. Labor argued that the bill would place ‘yet another distorting strain on the balance between the three arms of government’. When the opposition voted for it in September 2001, the only things that had changed were Labor’s electoral prospects. In a speech at a graduation ceremony in May 2002 Justice Hill of the Federal Court expressed concern at the government’s efforts to circumscribe the power of the courts. In uncharacteristically direct comments for a normally reticent judge he said the practical effect of the privative clause was to prevent him from upholding his judicial oath to do justice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

The Immigration minister hit back at Justice Hill by accusing him of straying into the realm of politics. ‘I do remember a time when judges who wanted to be able to involve themselves in the political process saw it as being more appropriate to resign from the bench and stand for parliament,’ he said. In another exchange between the bench and the minister, Mr Ruddock accused the courts of trying to defeat the legislative intent of the privative clause by ‘finding a variety of ways and means of dealing themselves back into the review game’.The minister said he would pass

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further legislation if the courts found ways to hear appeals against decisions made by the Refugee or Migration Review Tribunals. His comments were made as five senior judges prepared to sit as a full bench of the Federal Court to hear a test case involving five appeals that would provide a definitive judgement on the effect of the privative clause. When the case convened, Chief Justice Black called on Mr Ruddock to explain himself before the court, warning that members of the public might see the minister’s remarks as ‘an attempt to bring pressures on the court in relation to these appeals to which he is a party’. It is quite legitimate for the Immigration department to want to restrict the blowout in its legal bills. It is also reasonable to be concerned with the amount of court time taken up by immigration matters. But the tug-of-war between the judiciary and the executive is as much about control as it is about resources, a matter which goes to the heart of the fundamental doctrine of the separation of powers. The minister clearly resented the way in which Federal Court judges could overturn administrative decisions, without responsibility for the consequences. ‘At the end of the day,’ the minister told me, ‘no judge sits there and asks himself this question: “What will be the impact of my decision in this particular case on the pipeline of potential applicants that might follow …”.’ According to the minister, judges only take responsibility for the individual case before them, leaving the government to deal with the consequences. In response, parliament has decided to take control of migration laws, rather than allow them to be developed jurisprudentially. ‘It took the view that it was not an appropriate role for the courts,’ says Mr Ruddock. Legal counsel for the Attorney-General’s department defended the privative clause before the Senate Committee on the basis that it did not deny access to the courts, but rather widened the powers of the decision maker ‘so that the decision maker can lawfully make certain kinds of errors …’.This rather perverse logic has failed to quell considerable disquiet about the clause in the legal community. The new privative clause may also fail in its primary purpose — to reduce the level of litigation in refugee and migration matters. It certainly failed to have any immediate effect. In the eight months following the introduction of the privative cause, appeals to the Federal Court were running at the rate of 108 per month, which was almost identical to the number filed in the same period a year earlier. On 15 August 2002 a five-member bench of the Federal Court handed down its decision on the five appeals that formed the test case on the operation of the privative clause. The majority view of the judges was that the privative clause left little room for the courts to overturn decisions made by Immigration department officials or the Refugee Review Tribunal, even if those decisions were based on flawed

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processes or errors of law. However, the judges found against the government in two of the five cases, suggesting that not all judicial appeals on refugee matters in the future will be futile. And even if they were, this would not necessarily stop asylum seekers going to the courts.The privative clause does nothing to prevent the courts from hearing cases, even though it means the outcomes are largely pre-determined. Under the rules of natural justice, a judge is still obliged to provide the appellant with an opportunity to explain where an error of law might be found. In other words, asylum seekers can still appeal to the courts, they just have very little chance of winning. < > One crisp night in April 2000 I circumnavigated the almost empty town of Woomera with a group of lawyers. Beneath the vast spray of a cloudless desert sky, the half-full moon revealed kangaroos venturing across the perimeter road from the gibber plains to nibble at a few stillwatered front lawns. For the lawyers, this turn around town was a form of relaxation; an alternative to another night spent drinking at the bar.The group, nearing the end of a two-week stint in Woomera, was anxious to escape the strange reality of the town and return to the comfort of their city homes. They had spent the past fourteen days working as migration agents — taking testimony from asylum seekers behind the highwire fences of the Woomera detention centre, where at that stage some 1400 people were detained. The lawyers knew that I was a journalist.They knew they were not supposed to talk to me, but, as we reached the brow of the hill and the unearthly presence of the detention centre glowed, floodlit on the horizon, they began to give vent to their disquiet. These were not crusading lawyers. They were paid to do a specific job, and employed by one of the two mainstream commercial firms that had won the vast bulk of the work at Woomera through government tender under the IAAAS.While it was not their life mission to tirelessly advance the cause of refugees, they did not lack professional pride and respect for the rule of law.The lawyers found it offensive that the government would try to negate the judicial authority of the Federal Court through a privative clause. In part, their objection was based on principle; in part, it was driven by the recognition of how difficult it is to assess refugee claims accurately. In order to prove a claim for refugee status, asylum seekers must pour out their life story to a complete stranger; this includes, above all, examples of any abuse or torture they may have suffered.Women must recount their stories of rape; men must describe the humiliation of their floggings. A detail missed at this initial stage can

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prove disastrous, but there is pressure on migration agents to get the job done quickly because applications made from detention must be completed within three working days.The three-day rule is usually enforced strictly with ‘aeroplane people’ who arrive at major city airports; although, when there are mass boat-arrivals, and the very numbers render such a rule impractical, it has been relaxed at times, with the Immigration department’s agreement. Even so, migration agents and lawyers working with boat people in a detention centre ‘task force’ remain under intense pressure. They are expected to complete two or three visa applications every day.An asylum seeker who is rejected at the primary stage has seven working days to lodge an appeal with the Refugee Review Tribunal. Late applications are ruled invalid, without exception. Under the IAAAS, a detainee who appeals to the Refugee Review Tribunal is entitled to further assistance from a migration agent, but there is no guarantee that the advice will come from the same person who submitted their original application. In fact, if the applicant is in a remote detention centre such as Woomera, the migration agent preparing the second submission for the tribunal will often be a different person.There is no payment under IAAAS for an adviser to accompany the applicant to the tribunal; so, in many cases the asylum seeker must attend the hearing alone.This may involve sitting in a room to be interviewed, via remote video link-up, by the city-based tribunal member and interpreter. On at least one occasion the applicant was left to face the proceedings in handcuffs. If an adviser is present at these hearings, then the adviser is more likely to be sitting with the city-based tribunal member than with their client. One can only guess at the sense of desperation and abandonment that this might engender. In one instance an applicant slit his throat at the end of the hearing. The lawyers I met in Woomera spoke of their sense of relief when they encountered cases that were clear-cut — cases in which they could feel confident in saying, ‘yes, this person definitely fits the Convention definition of a refugee’; or ‘no, this person clearly has no valid claim, and has nothing to fear in their homeland’. According to these lawyers, the vast majority of applicants fell into a grey area somewhere between those two poles. Their applications could go either way; their fate might be determined by the wrong answer to a question, by the failure to elicit a key piece of information, or by a faulty translation.The lawyers were aware that asylum seekers might be intimidated by the interview process and, so, neglect to bring forward important facts; that, rather than answer a question honestly, anxious asylum seekers might give what they thought was ‘the right answer’, in an effort to please the questioner and smooth the interview process, but in so doing might inadvertently undermine their own case. The lawyers were conscious of the burden of responsibility this placed upon them

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and clearly derived some comfort from the knowledge that the Federal Court might ultimately review decisions made through this imperfect process. However restricted and limited, the court offered the asylum seeker a safety net against the fallibility of decision makers at the primary level and at the Refugee Review Tribunal. That safety net was swept away in the political backwash from the Tampa, along with numerous other rights and protections previously enjoyed by asylum seekers in Australia. < > On 26 and 27 September 2001, in the dying days of Australia’s thirtyninth parliament, eight bills were rushed into law. The Labor Party voted in favour of the bills in a desperate attempt to minimise the electoral fallout of the Tampa affair and the September 11 terror attacks by accommodating the government’s increasingly bizarre endeavours to bolster ‘border protection’. Bills that had been sent to the Legal and Constitutional References Committee for scrutiny and public debate were hauled back to the chamber to be given a quick bi-partisan stamp of approval. The effect of this raft of legislation was to fundamentally reconfigure the operation of the Migration Act in relation to refugees and to restrict the operation of the 1951 Convention under Australian law. Along with circumscribing asylum seekers’ rights of appeal to the courts as outlined above, the new laws prevent asylum seekers from engaging in class actions (Migration Legislation Amendment Act (No. 1) 2001). The level of transparency in refugee decisions was also reduced by legislation that removes the courts’ discretion to decide whether or not to name asylum seekers in the published versions of its decisions on refugee matters.This compounds an earlier restriction on the Refugee Review Tribunal (which can only publish those decisions that the principal member considers to be ‘of particular interest’) and means that courts can no longer publish the names of persons linked to proceedings involving protection visas. This provision is included along with much more fundamental changes in the Migration Legislation Amendment Act (No. 6) 2001.The Act allows the minister, or the minister’s delegates, to draw adverse inferences about asylum seekers who do not have identity documents, or who refuse to swear an oath or make an affirmation about the truth of their statements. It extends the government’s power to exclude refugee applications submitted by asylum seekers who have been convicted of serious crimes. This codifies an exemption that already exists in Article 1 (F) of the 1951 Convention, which states that the Convention does not apply to a person who ‘has committed a serious non-political crime’. However, the

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Australian legislation defines those crimes far more broadly than was contemplated in the Convention, extending the definition to include any crime that may attract a maximum sentence of more than three years’ jail (whether or not that maximum sentence is applied in the particular case). Escape from an immigration detention centre is also treated as a serious crime.The legislation prevents individuals from applying for refugee status if they were included in an application submitted by a member of their immediate family that has already been rejected. It is easy to see how a refugee at risk of persecution may be refused protection in Australia. For example, an application for refugee status is often made in the name of the father of a family, even though the mother or daughter may have a stronger claim to protection. There could be cultural reasons for this, or it may be the case that the family is trying to protect the daughter or mother from recounting painful experiences of sexual violence. Under the new law, if the father’s case fails, then the entire family can be excluded.The intention is to prevent abuse of the system through the repeated introduction of unfounded claims by successive members of the family. There are other ways to achieve this that are less likely to deny protection to refugees. In Canada, for example, each member of a family is required to testify as to why they are not willing to return to their country of origin. Act No. 6 also directs decision makers to discount anything that refugee applicants may have done while in Australia, such as joining protests that may have brought them to the attention of the authorities of their home country. The assumption is that, for example, an Iraqi asylum seeker who demonstrates against Saddam Hussein in Australia does so only to beef up his or her claim for refugee status, and not out of any profound opposition to the regime. As international lawyer Dr Penelope Mathew has argued ‘the provision is objectionable because it is basically disallowing the exercise of human rights in Australia’. Dr Mathew argues that the intention of Act No. 6 is to restrict the application of the Refugee Convention to the minimum number of people. It is a kind of race to the bottom, as developed nations compete with one another to devise the most restrictive refugee policies in the world, in the hope that asylum seekers will just go somewhere else. The legislation also seeks to define some of the wording of the 1951 Refugee Convention more precisely in Australian law — for instance, the concepts ‘persecution’ and ‘serious harm’.The Immigration minister says the changes to the Migration Act are designed to ‘restore the intention of the refugee convention’. Another view is that tying down words and phrases, such as ‘persecution’ and ‘serious harm’, in black-letter law is like putting a straitjacket on an international treaty intended to be flexible enough to deal with changing circumstances. Mr Ruddock is right when he says that the understanding of who is a

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refugee has changed since the text of the Refugee Convention was agreed at a meeting in Geneva half-a-century ago. One would hope so, given that international concepts of human rights have also evolved over the past fifty years. As Professor Guy Goodwin-Gill from Oxford University, the world’s leading authority on the 1951 Convention, says: ‘Like a law, no treaty is written in stone. If it doesn’t evolve … then it dies.’ Professor Goodwin-Gill was concerned by another piece of postTampa legislation — the Migration Amendment (Excision from Migration Zone) Act 2001.This Act carves pieces of Australian territory out of the ‘migration zone’. It prevents asylum seekers who land at Christmas and Cocos Islands in the Indian Ocean, at Ashmore Reef and Cartier Island in the Timor Sea, or at any ‘offshore resource and other installations’ from seeking a protection visa, or any other kind of visa to remain in Australia.The Act gives the minister the power to declare ‘any other island’ to be an ‘excluded off shore place’.As lawyer Nehal Bhuta commented wryly, he could find nothing in the Act ‘which would prevent Tasmania attaining that status’. The government says it will still meet its protection obligations under the 1951 Refugee Convention ‘by making an assessment for refugee status for any asylum seekers’. In essence, this provides the legal underpinning for the ‘Pacific solution’: refugee assessments will be carried out in accord with some vaguely defined ‘international practice’ but there will no scrutiny of the process and applicants will have no access to any of the protections provided for under Australian law (such as the right of appeal to the Refugee Review Tribunal). While seeking to diminish its international legal obligations with one hand, the federal government has extended the writ of its domestic legal powers with the other. An associated piece of legislation — the Migration Amendment (Excision from Migration Zone) (Consequential Provisions Act) 2001 — allows the government to detain any person who arrives at an offshore territory that has been excised from the Migration Zone or to remove such persons to another country (via the ‘Pacific solution’, for example). This legislation is necessary because the government’s authority to detain asylum seekers is based on the assumption that it is carrying out administrative procedures under the Migration Act to determine a person’s status. If a person is prevented from applying for a protection visa, then there is no administrative process to be undertaken, and the government’s right to detain a person comes under question. The stated aim of excluding Christmas Island and other territories from the Migration Zone is to deter boats setting sail for Australia from Indonesia.The new measure may equally spur the people-smugglers to new levels of daring — and expose their desperate passengers

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to even greater risks — as boats endeavour to make it all the way to the much more distant Australian mainland. If they do make it that far, then the government is ready with another weighty legal instrument, the new Border Protection (Validation and Enforcement Powers) Act 2001. This Act was originally conceived to retrospectively quarantine the government from legal action in relation to its treatment of the asylum seekers rescued by the Tampa — and, so, render irrelevant a potential challenge before the High Court. It enables Australian authorities to use ‘reasonable force’ to board vessels, to tow them back out to sea, or to detain the people on board and remove them to another place (such as Christmas Island or Nauru or Papua New Guinea).The Labor Party’s refusal to pass this legislation in its original form was based on an argument that its proposed provisions could have made it lawful to tow a sinking boat back out to sea but, as Nehal Bhuta comments, there is little in the ‘revised’Act to prevent this from happening. In practice, the Border Protection Act may also have unintended consequences. It may, for example, encourage smugglers to go to extra lengths to avoid detection at sea when attempting to land their passengers at remote locations on the Australian mainland, once again exposing asylum seekers to increased risks. Duncan Kerr, a former Justice minister in the Labor government, recognised this when he spoke in debate after the second reading of the bill in the House (19 September 2001). He pointed out that most people who came to Australia by boat in the past ‘sought to be detected’ by the authorities. ‘Now the rules will change. Now they will seek to evade our coastal patrols and to reach the Australian mainland, because they have a far better processing option.’ Nor does the legislation solve the problem of what to do with asylum seekers who do land at these places. As a transit country, Indonesia is unlikely to agree to take them back; and Nauru, like Papua New Guinea, will surely tire of being Australia’s dumping ground — a fact that the federal government appeared to acknowledge in the 2002 federal budget, when it announced plans to spend $200 million to build a 1200-bed detention centre on Christmas Island. The ‘Pacific solution’ may be destined to metamorphose into the ‘Indian Ocean solution’, but Australia will still be left with responsibility for a group of people who are either refugees or ‘failed’ asylum seekers, and who cannot be easily sent elsewhere. One of the reasons why mainland detention centres are gradually amassing a residual population of non-returnable ‘failed’ asylum seekers is that Australia has an all-or-nothing refugee-determination system. It only offers protection to those people found to be refugees under the 1951 Convention’s narrow definition. However, asylum seekers who fall outside this definition may nevertheless face serious risk if returned

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to their homeland. In its report ‘A Sanctuary under Review’ the Senate Committee sought to address this issue by calling for the AttorneyGeneral’s department to examine, in conjunction with the Immigration department, legislative amendments that could ‘explicitly incorporate the non-refoulement [non-return] obligations of the CAT [Convention Against Torture] and ICCPR [International Covenant on Civil and Political Rights] into domestic law’. Currently, Australia’s refugee-determination procedures offer no protection to such people, apart from ministerial intervention. Under Section 417 of the Migration Act, the minister can provide a visa to a rejected asylum-seeker, but the minister’s discretion is non-compellable and non-reviewable — in other words, no one can force the minister to address a particular case, and decisions made by the minister cannot be appealed to any court. In the financial year 2000–2001, applications for ministerial discretion involving 9224 people were finalised under s417 of the Migration Act and seventy-seven protection visas were granted. Clearly, individual applicants have a very slim chance of success. In comparable jurisdictions, such as the United Kingdom, asylum seekers would at least have other options. In the United Kingdom applicants who are not recognised as refugees under the Convention may still be granted ‘exceptional leave to remain’, on the basis that conditions in their homeland make it impossible for them to return home in safety. In 2001 one in ten asylum seekers were recognised as Convention refugees in Britain and one in five were granted ‘exceptional leave to remain’. The failings of ministerial discretion as an avenue of last resort were made abundantly clear in the case of the Chinese woman known as Ms Z, one of two cases that prompted the Senate’s 1999–2000 inquiry into the operation of Australia’s humanitarian and refugee program. After being sent back to China, Ms Z suffered a forced abortion when she was eight-and-a-half months pregnant. Material in DIMA files suggested Ms Z began expressing concerns about returning to China while pregnant, almost three months before she was finally removed from Australia. These concerns, and repeated verbal requests to be allowed to remain in Australia were never recognised as a request for ministerial intervention under s417. Ms Z was never advised to formalise her concerns in writing and the matter was never brought to the minister’s attention by DIMA officers. In fact, four days before her forced removal from Australia on 14 July 1997, departmental advice was provided to the effect that none of the group destined for return to China had any claim to stay in Australia that would fall within the guidelines of ministerial discretion. The minister was not briefed on the fact that Ms Z was in the late stages of pregnancy, even though ‘an officer at Port Hedland did receive confirmation from DIMA in

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Canberra that the policy for travel of pregnant women was 35 weeks at the latest’. The Senate Committee concluded that, by returning Ms Z to China, Australia may have breached its obligations under the Convention Against Torture. It concluded that ‘a better system needs to be put in place’ and that all detainees ‘must be advised of their right to make a s417 request regardless of the opinion of DIMA officers as to whether a detainee’s situation meets the Guidelines’. The Committee called for ‘a protocol on the “fitness to travel” of pregnant women’ to be developed ‘as a matter of urgency’, and recommended that pregnant women should be given special consideration ‘to remain in Australia until after the birth’ to ensure that they are not at risk of forced abortions. The Senate Committee also recommended that people making s417 requests should not be removed from Australia before the process is finalised (currently there is no such guarantee), that all asylum seekers be fully advised of the procedures available to them under s417 (which currently does not happen), and that all s417 requests should be considered in the light of Australia’s international obligations under the Convention Against Torture, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child. While such recommendations were welcome, they fell far short of turning ministerial discretion into an adequate safety net for vulnerable asylum seekers who fail to fit the narrow Convention definition of a refugee. As Senator Cooney (ALP) noted in his additional comments to the report ‘section 417 does not constitute a program, a system, an ordered process for dealing with those who claim humanitarian relief from Australia’. Senator Cooney called for the current system of refugee determination to be amended to encompass broader humanitarian concerns, such as is done in some comparable jurisdictions. | The tragic irony of the 1951 Convention is that the more generalised the violence in a given country, the less chance a national of that country has of being recognised as a refugee. The breakdown of law and order, or the prevalence of gang warfare or civil war all tend to negate the provision of the Convention which says that a person must fear persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’. For, if everyone and anyone is at risk of being killed or tortured, no one individual can then claim persecution, and the Convention fails to have force. This was the situation faced by asylum seekers from Afghanistan in

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late 2001 and early 2002.The Taliban regime — from which many of them had fled — had been ousted, but the situation in their homeland remained bleak and uncertain. A United States-led coalition continued to wage war against remnants of the Taliban and the Al Qaeda terrorist network. Fields were littered with landmines from more than two decades of fighting, buildings had been reduced to rubble, the irrigation system destroyed, swathes of the country were in the grip of severe drought, and gangs of armed bandits extorted money and goods at arbitrary checkpoints along rural roads. The UNHCR said it was not encouraging displaced people to return to the country because large areas of Afghanistan were still dangerous, minorities were still being persecuted and the political situation remained volatile. Tens of thousands of displaced people were nevertheless going home. In the six months after the fall of the Taliban some 500,000 Afghans returned spontaneously from neighbouring countries. On this basis the Australian government began to contemplate the return of Afghan asylum seekers from Australia and Mr Ruddock announced that the issuing of protection visas to asylum seekers from Afghanistan would be suspended indefinitely. This had a profound effect on Afghan asylum seekers still in detention. The news was officially conveyed in a letter, dated 18 January.The letter was accompanied by a summary of the positive changes that had taken place in Afghanistan. It informed the detainees that no decisions on protection visa applications ‘that would depend on assessments of conditions in Afghanistan’ were being made, because of ‘the lack of reliable information and the ongoing changes in Afghanistan’. Stripped of its bureaucratic obfuscation, the letter was telling Afghan asylum seekers that no visas were being issued. At this stage, more than a quarter of the 834 detainees in the Woomera detention centre were asylum seekers from Afghanistan. All had been in detention for at least five months. Now they were being told that they would be subject to a further period of incarceration that could last ‘some considerable time’.The letter said that it could be ‘a number of months’ before any visas were issued and that, in the light of this, the asylum seekers ‘may wish to consider’ whether they wanted to return home. In essence, the asylum seekers were being offered a ‘choice’ between abandoning their applications for refugee status on the one hand and indefinite detention on the other. It is hardly surprising that this ham-fisted pressure resulted in angry and desperate protests. Over the next two weeks there was a full-blown crisis at Woomera as more than 200 detainees took part in a hunger strike. At least forty asylum seekers stitched their mouths shut while others tried to hang themselves or to commit suicide by swallowing shampoo or pain-killers. The protests ended after fifteen days, after a promise that visa processing would be resumed.

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A few months later, the federal government tried another tack to get the asylum seekers to go home when 269 Afghan asylum seekers held in Australian detention centres were offered $2000 each (and up to $10,000 per family) if they agreed to abandon their claims for refugee status and return home.The offer was also extended to 754 Afghan asylum seekers detained in Nauru. Again, the parameters of the ‘choice’ put before the asylum seekers was strictly limited because the flipside of the government’s coin was indefinite detention. The issue could have been handled differently. Instead of offering the detainees a cruel choice between immediate return to their shattered homeland and continued incarceration, the minister could have created a new class of humanitarian visa to allow Afghan asylum seekers to be released from detention until the situation in their homeland stabilised.The minister has the power to create such a visa category by regulation and have it approved later by parliament. Humanitarian visas could be issued — subject to the usual health and character checks — by immigration officials who currently carry out refugee determination or by the Refugee Review Tribunal.They could initially be issued as one-year temporary visas, but could become permanent after that time if conditions in Afghanistan failed to improve. Under this scenario, asylum seekers would be counselled about the changes in their homeland and advised that they would be expected and assisted to return home in one year’s time if the situation stabilised, and if their claims for refugee status then prove unfounded. In the meantime they could be offered meaningful training opportunities to provide them with skills to enable them to contribute to the rebuilding of Afghanistan. This would be a much more constructive use of public money than continued detention at a daily cost of $120 per person. Delaying the return of displaced Afghans from Australia would have been in accord with international efforts to assist Afghanistan in the post-Taliban period. In May 2002 Erika Feller, head of the UNHCR’s international protection department, warned that bringing people back ‘precipitously’ would ‘only contribute to growing destabilisation of a country which is very fragile’. She suggested that Australia could better assist Afghanistan’s reconstruction by continuing to host displaced Afghans ‘for as long as is feasible’. A humanitarian visa category could also be helpful in dealing with non-refugees from other countries who cannot be removed from Australia because of chaotic or uncertain conditions in their homeland. As policy currently stands, ‘failed’ asylum seekers in this situation face indefinite detention. Most Australians are concerned about the protection of Australia’s borders and most Australians wish to see a stable and peaceful world. The two issues are interlocked. From the experience of Vietnam,

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Cambodia, Kosovo and East Timor, we know that once peaceful political settlement is achieved, the number of asylum seekers turning up on Australia’s shores diminishes dramatically. Making this linkage explicit could help win widespread political support for the concept of a humanitarian visa.As the ‘safe haven’ experience demonstrated in 1999, the Australian public can provide very generous support to displaced people whose countries are in turmoil.

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A huge roar of welcome surged up from the crowd as the small group of refugees climbed up onto the back of the truck that served as a makeshift stage. On that September Sunday in 1999 about 40,000 people had descended on the Victorian parliament. We chanted ‘Viva Timor L’este!’ and ‘Viva Xanana Gusmao!’, and stuffed coins and notes into the collection buckets passing through the crowd.The atmosphere was highly charged. This was more than a demonstration of political solidarity for us, having watched the unfolding disaster in East Timor. The rally provided an outlet for our pent-up emotions, for our outrage at events, for frustration at our impotence. Now a group of East Timorese was in our midst, recently evacuated from the besieged United Nations compound in Dili, newly installed in the Puckapunyal safe haven.We wanted to hug those refugees to our breasts, as much for our own comfort as for theirs. Six months earlier, the arrival of the first ‘safe-haven’ refugees from Kosovo prompted a similar rush of unrestrained generosity. Again, Australians had watched in distant anguish as columns of displaced and dishevelled people streamed over the borders into rudimentary camps in neighbouring states. Initially, the federal government was reluctant to act. On Easter Sunday, 4 April 1999, the minister for Immigration, Philip Ruddock, flatly declared that ‘flying planeloads of refugees into Australia would not be an appropriate response’ to the Kosovo crisis, despite pledges by the United States, Germany,Turkey and Britain to take in 100,000 people between them. The United Nations High Commissioner for Refugees (UNHCR) had not asked Canberra for assistance and the minister was holding fast to established policy: that Australia offers places for the permanent resettlement of refugees, rather than for ‘temporary outcomes’. It was a rational position; it was probably good policy, but it was politically

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unsustainable. Over the Easter break senior government ministers were pressed to act by members of their own families. After watching distressing television footage from the Balkans, children asked their politician parents why Australia was doing so little to help. The media chastised the government for being mean and hard-hearted. Talkback lines ran hot. When cabinet convened on the Tuesday after Easter, it was clear that something had to be done. Mr Ruddock took a rough briefing-paper to the meeting, canvassing a range of options. One option was to offer permanent resettlement to a large number of Kosovars by ‘borrowing’ places from the future annual refugee intake.This posed two problems. Firstly, refugees from other regions would be unfairly squeezed out. Secondly, permanent resettlement could play into the hands of the Serb leader, Slobodan Milosevic, by inadvertently supporting his brutal policy of ethnic cleansing in Kosovo. On the other hand, providing short-term refuge for the Kosovars presented its own difficulties. There was no legislative basis for the measure and no established procedures for dealing with such an intake. It would put a huge strain on the bureaucracy and it would be very costly. The cabinet debate was protracted and passionate, but, in the end, temporary refuge appeared to be the only option.The safe-haven visa was born. Conceived amidst intense domestic political pressure, and designed to offer a humanitarian response to a specific crisis, the safe-haven visa has since taken on a life of its own. It has evolved into a handy new implement in the tool-kit of refugee policy. John Howard announced the new visa and took the credit.‘I’m not prepared to see Australia turn its back on these people,’ he said. Mr Ruddock, made to look the villain in the piece, stood stoically by his leader’s side, hiding his emotions beneath a fixed grin.The prime minister was also on hand to personally hug and greet the first group of 400 refugees as they arrived in Australia. Offers to billet the refugees in private homes poured in from around the country; instead, they were accommodated at army barracks such as East Hills near Sydney, Puckapunyal in central Victoria, and Brighton on the outskirts of Hobart. The open-hearted response of local communities, particularly in country towns, defied the image of Australia as a nation antagonistic to new immigrants. For many people getting to know the Kosovars was a powerful experience and remarkable links were established with the refugees.When they taught English to the Kosovars, ESL (English as a Second Language) teachers employed at the safe havens felt that they were truly fulfilling their vocation.Tasmanian author Richard Flanagan described the response of his home State to the Brighton refugees in moving terms: ‘It might be expected that Tasmanians would ignore, or

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even show hostility to the government-sponsored refugees, since the island is routinely portrayed as rednecked and reactionary.Yet when one beleaguered community looked into the eyes of another worse off, it perhaps saw something familiar. … The Brighton Kosovars were flooded with offers of help and gestures of friendship. Business provided free clothes, free food, free meals, free tours. Cinemas offered free weekly tickets. … The Hobart newspaper, the Mercury, ran articles in Albanian. A commercial television news broadcast began with an introduction in Albanian. Far from being outcast, the Kosovars were taken in.’ John Howard basked in the initial glow of his government’s magnanimous decision to invite the Kosovars to stay. However, in contrast to the public’s generally warm-hearted response, the official treatment of the refugees was ultimately shabby and mean. As legal academic Michael Head wrote:‘The sites chosen for the refugees — disused and semi-used military barracks, usually in remote locations — seemed to be motivated by a desire to discourage the Kosovars from seeking to remain in Australia’. When one family led a protest about conditions at the Singleton camp, 230 km northwest of Sydney, they were portrayed as ingrates. With an invalid grandmother to care for, the family objected to the lack of privacy in shared facilities, and to the fact that bathroom and toilet facilities were hundreds of metres away from the wooden huts where they were to sleep. Government officials described the complaints as ‘totally unreasonable’ and suggested that the family could be sent back to Kosovo if they were dissatisfied with Australia. As David Brearly commented in the Australian, the charity on offer to the refugees was conditional: ‘A beggar’s gratitude is the prescribed response; anything less renders the whole deal suspect’. Once the government decided that it was time for the Kosovars to return home, the situation became predictably messy. Many were reluctant to leave, despite the offer of a ‘winter reconstruction allowance’ of $3000 per adult and $500 for each child, if refugees departed before 30 October 1999. Over subsequent months, reports of the desolate conditions confronting returnees once again made the government look hard-hearted. Critics noted that both Canada and the United States had taken in more Kosovars than Australia had, and offered them a permanent home. State premiers in Tasmania and South Australia began lobbying the federal government to allow the remaining Kosovars to stay. In the face of intense criticism, Mr Ruddock agreed in late October 1999 to receive personal submissions from those safe-haven refugees who wanted to remain in Australia. But it seems many Kosovars did not really understand the process. Clare Cunnington is an English teacher who was employed at the Bandiana safe-haven near Albury Wodonga. She says that many Kosovars wrote polite letters thanking the govern-

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ment for its help, and outlining the fact that they had no homes to return to. She says the refugees did not realise that they needed to demonstrate a well-founded fear of persecution in their homeland in order to qualify for an ongoing protection visa, nor that it might aid their cause to get independent legal advice. Some Kosovars were ultimately allowed to apply for refugee status, and others were eventually granted permission to stay on compassionate grounds, so that they could receive ongoing medical treatment or trauma counselling. But Clare Cunnington says many Kosovars did not trust the confidentiality of the letter-writing process and were reluctant to fully document their personal stories and fears in that way. By March 2000 there were fewer than 500 Kosovars left in Australia and those without permission to remain came under sustained government pressure to sign ‘voluntary’ consent forms and depart before the deadline of 8 April.The Kosovars were told that they would be transferred to detention in Port Hedland or Woomera if they refused to leave Australia. Citizens began hiding refugees who were on the run after absconding from the safe havens. Faced with imminent return, one Kosovar made her fear and confusion public in a letter to the Australian: :KHQ DV .RVRYR UHIXJHHV ZH DUULYHG DW 6\GQH\ DLUSRUW KXQGUHGV RI SHRSOH ZHUHWKHUHWRZHOFRPHXVWR$XVWUDOLD:HFULHGEHFDXVHZHZHUHKDSS\WREH VDIHDQGZHFRXOGQ·WEHOLHYHZHZHUHVWLOODOLYH«:HDUHVWLOOWLUHGWUDXPDWLVHG E\ RXU H[SHULHQFHV DQG ZRUULHG DERXW RXU IXWXUH DQG WKDW RI RXU LQQRFHQW FKLO GUHQ 7KH SUREOHPV LQ .RVRYR KDYH QHYHU VWRSSHG (YHU\ GD\ ZH UHDG LQ WKH QHZVSDSHUVVHHRQWKHQHZVDQGWKH,QWHUQHWWKDWWKLQJVDUHVWLOORXWRIFRQWURO 7RGD\,OHDUQHGP\IULHQGKDGEHHQVKRWLQD3ULVWLQDVWUHHW3ULVWLQDLVVXSSRVHG WR EH D VDIH SODFH :H NQRZ WKDW 1$72 DQG .)25 DUH LQ .RVRYR WR NHHS WKH SHDFHEXWWKH\FDQ·WEHHYHU\ZKHUHLQHYHU\KRXVHRULQHYHU\VWUHHW«,DP VFDUHGIRUP\IXWXUHWRR,KDYHVHHQWKHNLOOHUV,NQRZWKHLUQDPHV,DPDZDU FULPHVZLWQHVV/RJLFDQGH[SHULHQFHWHOOVPHWKDW,ZLOOQRWOLYHWRVHHP\HYL GHQFHKHDUG

As the departure deadline loomed, the mood at Bandiana safe-haven became increasingly depressed. Elaine Mason was working at the primary school, teaching grades one and two. ‘The children became increasingly tired, distracted, excitable, irritable and confused,’ she recalls. ‘Nightmares re-occurred more often. As their parents became more tired and distracted, the children haunted the school buildings before and after school. Children often burst into tears, something I hadn’t seen in months.’ The Kosovars twice marched several kilometres into Wodonga to protest against their removal and on Thursday, 6 April, Mr Ruddock and his parliamentary secretary, Senator Kaye Patterson, visited Bandiana. According to Elaine Mason, a spokesman for the Kosovars

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addressed the government representatives with dignity, gratitude and humility:‘With trembling lips he spoke of the dangers and deprivation they were being told to return to, especially of the grave risks faced by babies and little children.’ Mr Ruddock would not budge. ‘I saw people’s faces turn pasty grey with shock and despair. I thought some would faint,’ recalls Elaine. ‘Quiet sobbing filled the room.’ Over the next two days some of Elaine’s Kosovar friends began to slide into despair. One young woman took to her room and refused to eat; a small boy suddenly developed a stutter and began to behave erratically, a teenage girl tried to commit suicide and ended up in a Melbourne hospital. But, despite the pressure to leave, on Saturday, 8 April, only a handful of the remaining Kosovars were willing to depart from Australia. When Elaine Mason arrived to pack up the school equipment the following Monday, 10 April, she found that the safe haven had been transformed into a detention centre. Two Australasian Correctional Management (ACM) guards escorted her from the gate to the classroom. She was met by her remaining eleven pupils, who wanted to attend school as usual, keen to maintain some pattern in their now confused lives. But the guards told the children to go away.They were not allowed in the classroom: ‘The children were perplexed, stricken and hurt,’ says Elaine.‘I asked if they could help me pack up, but the request was denied. I was told not to talk to the children at all.The other teachers were told likewise.’ Later that day, Elaine and other teachers were called to attend a briefing with an official from the Department of Immigration and Multicultural Affairs (DIMA). ‘We were advised to avoid contact with the Kosovars, to withhold emotional and physical support and to speak with them only to advise them not to go to the Detention Centre,’ she says.‘He explained the ramifications of choosing the Detention Centre, the accrued expenses, the impossibility for them to come back to Australia within five years, if ever. I strongly felt that we were being pressured to smooth DIMA’s way in sending the Kosovars back as soon as possible without fuss or embarrassment to Minister Ruddock and the government.’ Three days later, on 13 April, Mr Ruddock insisted on the ‘7.30 Report’ that it was safe for ‘most’ Kosovars to return home, including those from Presevo, a Serbian town just outside the borders of Kosovo, which had been subjected to intensive ethnic cleansing. He said that he based his opinion on advice received from the UNHCR. However, the UNHCR’s public pronouncements were much more cautious. On the same day as the Ruddock interview, the head of the United Nations

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mission in Kosovo, Dr Bernard Kouchner, appealed for ‘an orderly and voluntary’ return of refugees. In an open letter he said that host countries should allow people to return at a pace that would allow relief agencies to provide the necessary support. He urged governments to ‘minimise’ forced returns, especially of those who are socially and ethnically vulnerable, and warned that an influx of refugees would ‘tarnish’ efforts to restore stability and law and order in Kosovo. In a press release he stated, ‘We already have problems with too many arriving simultaneously and with lack of regard for the dangers to ethnic minorities’. The federal government was undeterred. On Friday and Saturday, 14 and 15 April, the public-address system in the camp was used every half-hour or so to call the Kosovars to come forward and sign their ‘voluntary’ consent forms to return home. Heads of families were individually asked over and over again to sign the forms. Friends and supporters of the Kosovars gathered outside Bandiana and waited hours for permission to visit.They were eventually allowed in, but only in small, controlled groups. Each visitor had to nominate the particular family or person they wished to see. On Sunday, 16 April, the government flew 116 people back to Kosovo, although group members had refused to sign the form officially consenting to their departure. Another twenty-one Kosovars were transferred to immigration detention at Port Hedland, to await forced removal from Australia. The guests had outstayed their welcome; the safe-haven refugees had become that despised category of people — illegal immigrants. John Howard’s generosity had been expended, although it was Philip Ruddock who once again wore the opprobrium. A few days later, in a letter written from Sarajevo, a member of the United Nations Mission in Bosnia Herzegovina expressed his distress at the Australian government’s forced removal of the Kosovars. Claiming first-hand experience of the situation in Kosovo, Joel Cohen wrote to the Age: ‘Ethnic tension, political instability and general distrust prevail. Landmines dot the countryside and violent crime is rampant. Homes have been destroyed and jobs are few. In short, the immediate future for returning refugees will be one of survival rather than peace and stability.’ Similar concerns were expressed about the early return of East Timorese ‘safe-haven’ refugees sent back to the smoking ruins of their homeland at the start of the wet season.This time there was no cash on offer. Instead of $3000, each Timorese family was supplied with a 50kilogram bag of rice, a blanket and a plastic sheet. According to a ministerial staff member, this ‘rudimentary kit’ was designed to ‘tide them over for the first few days back in East Timor’. Even so, it came with conditions attached; to receive this generous ‘starter pack’, the refugees

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had to leave Australia before the expiry of their safe-haven visas on 8 December 1999. Many East Timorese were, indeed, keen to return, to seek out what was left of their homes, to search for lost relatives and to assist their nation on its path to independence. But some, especially single mothers with young children, were apprehensive.They asked if they could wait out the wet season and rebuild their strength in Australia before returning. Refugees at the East Hills safe-haven near Sydney claim that officials pressured them to leave, by alleging that revered resistance leader Xanana Gusmao was calling the centre every day and asking,‘When are my people coming home?’. In fact, Xanana Gusmao had asked the federal government to allow the refugees to remain in Australia until the situation in the territory stabilised.The refugees also claim that they were told to go back quickly or risk finding that all the best land in the territory had been settled in their absence. The federal government had initially been reluctant to bring many of the East Timorese to Australia at all. As with the Kosovars, the government’s hand was forced by public opinion and by the resolute determination of United Nations staff. In the days of orchestrated violence that followed the United Nations-sponsored vote on East Timor’s future, the United Nations compound in Dili became a sanctuary. As the town was looted and torched by pro-Indonesian militia, local and expatriate United Nations staff sheltered behind its walls. They were joined by relatives, by the few remaining journalists left in East Timor and by hundreds of Dili residents unable to flee to the hills. Many of the East Timorese initially camped in the adjacent block of land, where the United Nations kept its vehicles, but, as the militia and the Indonesian military continued their campaign of terror, they clambered, terrified, into the United Nations compound proper. My ABC colleague Diane Martin described how babies were tossed over the barbed wire to safety. Initially, the federal government only wanted to provide entry to the 350 locally engaged United Nations staff and their immediate family members. The decision to evacuate everyone in the compound was forced upon them by circumstance; some United Nations staff refused to leave unless all the East Timorese in the compound were also included in the rescue mission. After their arrival in Darwin, the inexperience of Australian health authorities in dealing with a large group of third-world refugees quickly became apparent.The primary health-check used on all migrants to Australia is screening for tuberculosis (TB) and this approach was also used with the refugees from East Timor. In fact, a chest X-ray for all refugees over sixteen years of age was made mandatory under the safehaven legislation. The key aim was to protect the broader Australian community from this infectious disease. Health and migration authorities have a well-oiled system for TB screening and the policy is deeply

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entrenched in the administrative mindset. In normal circumstances TB screening makes good sense. But these were not normal circumstances, and there were more urgent concerns that needed to take priority. TB is a serious disease and proved to be a major health problem amongst the Timorese, but it does not kill quickly; there is usually a relatively long period in which effective intervention is possible.The most immediate and lethal threat to the refugees themselves was measles. In third-world children with poor nutritional status, measles can have a 10 per cent mortality rate. Mass immunisation of refugee populations is the recommended course of action under internationally recognised emergency health guidelines. However, because the measles vaccine interferes with the Mantoux test to detect the presence of TB in children, Australian health authorities planned to hold off on immunisation until after TB screening had been completed. It took strenuous argument from public health professionals to bring the immunisation forward.Their arguments gained greater force when the first case of child measles was identified in the Puckapunyal camp just one day after the refugees arrived in Victoria. Mass vaccinations began two days later. As one doctor commented later:‘It’s just lucky there wasn’t a serious epidemic’. Measles is more damaging in children suffering from Vitamin A deficiency, and in such circumstances can easily lead to blindness. Current best practice in international refugee healthcare is to administer Vitamin A supplements where there is evidence that children are malnourished. Paediatricians identified symptoms of Vitamin A deficiency in the Timorese refugee children almost as soon as they arrived. Despite this, plans by public health professionals working in Puckapunyal to administer supplements initially encountered resistance, on the basis of cost. Neither was there any initial recommendation for blanket treatment for gut parasites despite strong grounds to assume that this was a primary cause of illness amongst the refugees. Diarrhoea was immediately identified as a major health problem. However, blanket worming was only introduced after lobbying by public health staff at Puckapunyal, whose tests of 111 stool samples showed parasites, often of multiple types, were indeed being carried by almost half the population. The information revealed by the tests has subsequently proved extremely valuable to health professionals working in East Timor itself, who had no ability to identify the types of parasites present in the local population. To be fair, healthcare arrangements for the East Timorese had to be organised in a tremendous rush. Many of the medical staff deployed to Puckapunyal had only two days’ notice to prepare for the arrival of the refugees, while those already working at the camp had set them themselves up to provide healthcare to the previous residents, the Kosovars.

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The Kosovars had already been through initial screening and inoculation procedures in Europe. As refugees from a more developed country, they were generally in better health and better nourished than the Timorese. As Europeans, they were also more familiar with a western medical regime, and more assertive, which meant that they were more likely to present themselves at a clinic to seek treatment for their ailments.The Timorese were reluctant to come forward and ask for help on their own behalf; providing them with adequate healthcare demanded a more pro-active, public-health approach. In short, the needs of the two communities were quite different. Even taking these matters into account, the general policy approach was still mean-spirited. Cost containment and protecting the Australian community from disease appear to have been the driving factors, rather than the health of the refugees themselves. ‘We were specifically told that we were not to undertake “screening,”’ says one doctor.‘We managed to get cooperation with microbiological and parasitic screening by arguing that it provided information needed to manage the population safely, but it was otherwise a struggle.’The doctor says that there was no systematic check on the health status of the 360 children at Puckapunyal and that in the end only about half the children were examined by nursing staff. Medical staff at Puckapunyal were told from the outset that their brief was ‘immediately necessary healthcare’. Surgery was to be available in Category 1 and 2 cases as defined under Federal Health guidelines, which include conditions ‘causing some pain, dysfunction or disability’.Yet, a paediatrician found himself running up against bureaucratic obstacles when he recommended a proper clinical assessment of a child with a cleft palate.A severe cleft palate can lead to chronic hearing problems and severely impede speech. It can make it hard for a child to eat adequately because swallowing is inhibited and this, in turn, can stunt a child’s growth. In Australia a congenital defect of this nature would be corrected before a baby was twelve months old. Untreated, the problem results in multiple disabilities and condemns a child to discrimination, greatly altering his or her life chances, even when there is no facial disfigurement. Nevertheless, in the case of the East Timorese refugee, the paediatrician had to counter official suspicion that he was recommending ‘cosmetic surgery’, something that was clearly outside the treatment guidelines. Pap smears were another issue of contention, as was anything to do with women’s health. Staff from the Mercy Hospital for Women carried out smears on twenty-eight women who displayed symptoms of reproductive ill-health. Three of the women were found to have cancer of the cervix, requiring surgery.This alarmingly high incidence led obstetrician Dr Desiree Yap to conclude that there was ‘an absolute

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moral obligation’ to offer screening to all the women at Puckapunyal. The recommendation was never acted upon, as pap smears were judged to be a ‘screening test’ and considered ‘non-acute’. This was at odds with the policy promise to provide ‘general practitioner services of the range available to the Australian community’. A pap smear has a total cost of about $40, from procedure to result. Dr Yap has a postgraduate degree in public health and has undertaken specialist training in refugee healthcare. She says that in the end she felt morally and ethically compromised by her involvement in providing care at Puckapunyal. Considering that many of the women were now the heads of their households and would return to a hostile environment, and that most had the added burden of young children, she believes that the lack of directed health programs was both morally questionable and out of step with international recommendations. Dr Yap was not alone in her concern at the treatment meted out to the refugees from East Timor. ‘This is a very affluent country and we had the opportunity to do more for them than we actually did,’ says another health professional who worked at Puckapunyal. ‘It was clear once the dust had settled, once DIMA had dusted themselves off, that the big focus was to get these people back out of the country again as soon as possible.They didn’t want them to put down roots.’ When it became apparent that the refugees would be repatriated to East Timor quickly, health workers began formulating an education program to prepare them for their return.The idea was to inform designated community members about issues such as basic hygiene, sanitation, disease identification and the use of insecticide-impregnated mosquito nets to prevent malaria.When DIMA in Canberra got wind of the education program, it called an immediate halt. DIMA then insisted on officially vetting all the educational material, and sought to prevent the inclusion of any information that might portray conditions in East Timor in a bad light. The trainers were expected to withhold accurate information about the physical conditions returnees would encounter in the territory, for fear that this might deter them from going back. Yet, such knowledge was obviously essential to properly prepare community members for their return. There was also a great deal of secrecy surrounding the refugees. One professional says that he had to submit information for a military security clearance before he was employed at the camp. He was told not to speak to the media or anybody else without official clearance and told not to bring a camera or tape-recorder into the camp. It was made difficult for journalists to enter Puckapunyal and representatives from the International Commission of Jurists were prevented from visiting the camp to conduct interviews with the refugees. The Commission was hoping to assist United Nations efforts to inquire into human rights

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crimes in East Timor, by inviting refugees to give personal testimony of any acts of violence that they had witnessed in the pre- and post-ballot period. To be useful, such testimony needs to be recorded as soon after the event as possible in interviews conducted by appropriately qualified legal practitioners. However, Mr Ruddock turned down a request from the International Commission of Jurists for access to the refugees. When the Commission’s Victorian representative, Spencer Zifcak, went to Puckapunyal, he was met by a polite DIMA official with specific instructions from head office to prohibit him from interviewing any East Timorese. Mr Ruddock claimed to be defending the refugees’ right to privacy; he wanted to spare the Timorese unwarranted intrusion in their already traumatised lives. One can hardly avoid the conclusion, though, that the ban on the International Commission of Jurists was really designed to prevent further strain on the relationship with Indonesia. Despite all that had occurred before, Canberra did not want to be seen to be providing any assistance to the process of identifying and prosecuting Indonesian military officers responsible for war crimes. The ban on the International Commission of Jurists also accords with the overall approach to the refugees, which was paternalistic and disempowering, rather than consultative and respectful, and suggestive of an official desire to control and contain their activities.The isolation of the camps made the refugees heavily reliant on the Immigration department and reduced their capacity for independent action. Of course, the refugees were free to leave the camps, although they would not have got far on the $27 per week per adult and $10 per week per child granted to each family to cover living expenses. The fact that many refugees did leave on excursions was mostly due to the hospitality extended to them by the Australian public, especially by members of the expatriate Timorese community. Assisting the Kosovars alone cost at least $100 million; this is five times the amount of money that Australia provided to the UNHCR global program in 1998. While it may appear miserly to question the spending of money on bringing Kosovars here, it is not unreasonable to suggest that the safe-haven money might have been better spent. For example, could more assistance have been given to more people, if Australia had spent $100 million supporting refugee camps in Macedonia and other frontline states in the Balkans? Would it have been better to fund reconstruction efforts in Kosovo itself, given that the refugees are going back to a shattered society? To cut the figures another way, Australia spent a minimum of $25,000 on each Kosovar refugee in 1999; in the same year Iran received less than $20 worth of UNHCR assistance for each one of the 4 million or so Afghan and Iraqi refugees living within its borders. Perhaps the $100 million would

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have been better spent there, reducing the motivation for refugees to leave Iran and turn up as boat people on Australia’s shores.This might, also, have spared us the additional cost of building new detention centres and processing asylum claims. Australia had fewer options in relation to the East Timorese inside the United Nations compound in Dili. To refuse to evacuate them to Australia would have meant leaving unarmed civilians at the mercy of the pro-Jakarta militia. In the case of both the Kosovars and the East Timorese, once we took them in as refugees, we also assumed a duty of care towards them. According to the basic conventions of hospitality, they deserved better treatment. Mr Ruddock has praised the efforts of Immigration department staff in managing the safe-haven program, saying that his officers ‘rendered an exceptionally outstanding performance in the national interest’. He pointed out that they had to develop and implement ‘a program to evacuate almost half as many people as we have under our whole refugee and humanitarian program, almost 6000 people, half-way around the world, and to manage them, that is to feed, keep, support, and to implement all of that … within weeks’. He noted that the safehaven project was carried out when the department was already under great strain owing to the increase in unlawful boat-arrivals. Certainly, many DIMA staff showed great dedication and professionalism in assisting the refugees from both Kosovo and East Timor. Ultimately, however, the government’s response to the safe-haven refugees was framed by same basic concerns that dominate policy to all asylum seekers: the determination to strictly control Australia’s borders and carefully screen entry into the country. From the outset, the safe haven offered to the Kosovars had a shadow side, because the government wanted to ensure that their stay would be temporary. John Howard made this apparent when he announced the policy. On the one hand, he declared that it was ‘the right thing for Australia to do’; on the other, he stressed that the Kosovars were to be ‘a special category of displaced people with the intention that they should return’. Their safe-haven visas were backed by special legislation, Section 37A of the Migration Act, which was passed unanimously through parliament. Regulations issued under the Act initially allowed for only one kind of visa — sub-class 448 (Kosovar safe haven (temporary)) visa.The law was drawn up in a hurry, but the drafters made sure that the government retained absolute control over the refugees’ fate. In accepting safe-haven visas, the Kosovars were explicitly prevented from applying to reside in Australia on any other grounds, including as refugees seeking asylum. Erika Feller, director of International Protection at UNHCR, argues that this provision could breach Australia’s obligations under the 1951 Refugee Convention:‘At

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law, the Convention cannot be “unavailable” for persons for whom it was intended, even while its application can be delayed. Put another way, temporary protection arrangements should be applied without prejudice to the grant of refugee status to the entitled, where it is necessary to ensure protection against continuing threat.’ The safe-haven visas can be extended, shortened or cancelled by the minister for Immigration, but there is no right to appeal such a decision before any court or tribunal. In short, the safe-haven legislation was designed to circumscribe the extent of Australia’s generosity towards the Kosovars, by extinguishing their legal rights. In June 1999 regulations under the safe-haven section of the Migration Act were quietly amended to create another visa — sub-class 449 (humanitarian stay (temporary)) visa.This enabled Australia to offer temporary sanctuary to refugees from other conflicts on the same restricted basis that the Kosovars had been offered theirs.The aim was to entrench the mechanism for international burden-sharing should another Kosovo-style situation arise. East Timor was no doubt considered as a potential case in point. Under the amendments the government maintained strict control of the application process; refugees had to be invited to apply for the safe-haven visa and the application could only be made offshore. When the East Timor crisis exploded, and the United Nations compound in Dili was surrounded, this latter provision proved to be a problem.There was no way that safe-haven visas could be issued offshore, prior to evacuation. The government changed the regulations once again, this time literally overnight, to allow safe-haven visas to be issued on Australian soil.The East Timorese were then granted their visas on arrival in Darwin. Since then the government has discovered that the safe-haven visa can be useful in other less dramatic, and far less public situations. On 22 January 2000 a boat codenamed ‘Busselton’ landed at Cape Fourcroy in Western Australia. But, unlike most recent arrivals in Australia, this boat was not carrying asylum seekers from the Middle East.The fifty-four passengers on board the ‘Busselton’ had fled from the strife-torn Indonesian island of Ambon in the Malukus, where clashes between Christian and Muslim militia have forced a quarter of the population from their homes. Just as the East Timorese asylum-seekers proved a sensitive political and diplomatic issue for the Keating government in the 1990s, so these Christian Ambonese posed a problem for the Howard government in 2000. There was no doubt that these people were fleeing a violent and chaotic situation, where there was a real risk to their personal safety.Whether or not they would qualify as refugees under the terms of the 1951 Convention was a more complex matter; it could be, for example, that they would be identified as fleeing civil conflict, rather than persecution. Even if it was found that they

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did face persecution, there would be a strong argument to say that the Ambonese could find effective protection elsewhere in Indonesia, and hence might not invoke Australia’s obligations under the Convention. Nevertheless, it would be a risk to allow the Ambonese asylum-seekers to enter the refugee-determination process at all; for all the imperfectness of the Refugee Review Tribunal’s independence, the government still cannot control its decisions. If the tribunal were to declare that the Ambonese were refugees, this would be tantamount to saying one of two things: either that Indonesia was persecuting members of its Christian minority, or that the Indonesian state was unable or unwilling to protect Christians from such persecution. Either way, it was an outcome to be avoided. Canberra did not want to further strain an already difficult relationship with Jakarta. The best result for the Australian government would be to repatriate the Ambonese quietly to Indonesia, and, for most of the people aboard the ‘Busselton’, this is what happened. After about two months in detention, thirty-nine of the boat people were found ‘not to have engaged Australia’s protection obligations’. In other words, they had not entered the refugee-determination process and had not been given access to lawyers or migration agents to advise them of their rights.The thirty-nine returnees were sent to Bali, and given $400 to help them return to Ambon. However, the other fifteen Ambonese were allowed to stay, and were granted one-month safe-haven visas at the discretion of the minister.The visas were renewed monthly until the end of June 2000, after which time they were given a series of visas, each of three months’ duration. Then, at Easter 2002, after lobbying by their legal representatives, the minister granted the Ambonese a safe-haven visa valid for one year.The Ambonese remain entirely dependent upon the goodwill of the minister and have no other rights. DIMA’s fact sheet on safe-haven visas makes this abundantly clear in its opening sentences:‘Applicants for this visa category must sign a declaration that they understand and agree to the Australian Government’s offer of temporary safe haven in Australia for a limited period and will leave Australia when the Australian Government requires. Holders of Temporary Safe Haven visas are legislatively prevented from making valid applications for any other kind of visas unless the Minister decides it is in the public interest for them to do so.’ When I asked Philip Ruddock about the use of the safe-haven visa for the Ambonese, he was defensive. He said it was reasonable to issue a safe-haven visa in cases ‘where we don’t think it is appropriate to immediately admit people to a protection system regime where claims have to be tested, but where you don’t immediately wish to send people back’. The minister’s language is telling. He talks of cases ‘where we don’t

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think it is appropriate to immediately admit people to a protection system regime’. In other words, the safe-haven visa may be used when the granting of refugee status to a national of another country is not ‘appropriate’ — such as, for example, when Australia’s political, diplomatic or economic interests are at stake. The minister told me that no one will be blocked from applying for refugee status under the terms of the 1951 Convention, but that they may be offered the safe-haven visa as an alternative. Just how real is this choice? We are talking about people who are in detention, who have no access to professional advice because they have not been informed of their right to request and receive such advice — people who have a limited understanding of Australia’s legal system and of their own situation within it. These detainees are being asked to choose between immediate release on a short-term ‘safe-haven’ visa that tightly restricts their legal rights, or continued detention while their application for refugee status is heard.The latter is an uncertain course, but one which would ultimately, if successful, afford them more durable and lasting protection. This is no simple choice; it is one which clearly requires a person to be well-informed and well-advised.Yet, the minister protests that he is not prepared to have ‘advocacy groups and advisers’ determine such issues: ‘I think they are matters that are between the parties and my officials when they work out what is the most appropriate outcome,’ he told me. < > The safe-haven visa has given the Australian government added flexibility. It allows inconvenient asylum seekers to be deflected from the formal refugee-determination system by granting them very shortterm, very restricted, very insecure status in Australia. What is once again revealed by this use of the safe-haven visa is the need for Australia to broaden its all-or-nothing refugee-determination procedures, to provide a category of humanitarian protection for people fleeing civil conflict or war. The Kosovars, the East Timorese, the Ambonese and many Afghans all fit into this category; so would many people from Angola, Somalia and numerous other countries. Such humanitarian categories are widely used in Europe in cases where people fail to meet the strict definition of a Convention refugee, but where to repatriate them would nevertheless be unconscionable. In Australia the only option open to such people is to appeal to the minister to exercise his discretion under s417 of the Migration Act. But the case will only be considered after an asylum seeker has already exhausted all appeal processes available under the refugee-determination system. In other words, an applicant must tie up scarce public

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resources pursuing an unwinnable claim for refugee status, even when there are compelling humanitarian reasons to immediately grant a visa on compassionate grounds. This is hardly rational policy. It seems designed to act as an informal filter, in the hope that asylum seekers will simply give up and fall by the wayside. Asylum seekers are persistent, however, as the high number of appeals to the Federal Court shows: either they must be very determined or very desperate. The Australian government could revisit the safe-haven visa, and fashion it into a meaningful humanitarian alternative to refugee status. Officials of the Immigration department or members of the Refugee Review Tribunal would be able to grant this kind of ‘humanitarian’ visa on the basis of clear criteria; it would be issued for a minimum of one year, and open to extension if conditions in the country of origin did not improve. After three years, there could be an option of permanent residence. People on humanitarian visas would not be restricted from applying to stay in Australia on other grounds, and would be granted rights to work and entitlements equivalent to Convention refugees. This humanitarian visa would almost certainly streamline refugee decision-making, reduce the backlog of appeals before the Refugee Review Tribunal and the courts, and relieve the government from the odious task of engaging private security guards to remove people from Australia to unsafe destinations such as Somalia, sometimes by means of the use of chemical restraints (sedatives) to ensure that they go quietly. Unfortunately, the government has chosen a rather different course. Rather than expand the safe haven approach to offer greater security to people displaced by civil war or other forms of conflict, the minister has chosen instead to reduce the protection offered to Convention refugees. In the past Australia was reluctant to offer ‘temporary outcomes’ to refugees; the ‘safe haven’ experience helped to change that, establishing public acceptance for the notion of temporary protection. Since October 1999, the temporary protection visa has been the only kind of visa available to refugees who arrive in Australia without authorisation.

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A more brilliant yellow is hard to imagine. It is 2 degrees outside and there is frost on the grass, but bright morning sun has set the wattle in the nature-strip singing. I am distracted by memories of a ditty that my brother used to recite: This here is the wattle, The symbol of our land. You can stick it in a bottle, Or hold it in your hand. Another memory springs to mind, of a story I overheard when I was a child, about an Australian who burst into tears at the sight of someone holding a spray of wattle on a London platform.After years abroad the expatriate knew it was time to come home. I doubt whether the Afghans on the bus noticed the brilliant wattle tree.The twenty-four men and two adolescents (aged seventeen and fifteen) had been released from Woomera detention centre the night before. Some had been there since the camp first opened in November 1999; it was now late July 2000. An eighteen-hour bus journey had delivered them from South Australia’s mid-north, to Melbourne’s inner-west; from cyclone fences in the desert, to a community centre in a suburban subdivision. The Afghans had arrived ahead of time and were already inside the besser brick building when I showed up.They were sitting, elbows on desks, like kids in a classroom waiting for something to happen; in the foyer officials milled around chatting, as if they too were waiting for someone to take charge. There were representatives from the Department of Immigration and Multicultural affairs (DIMA), from Centrelink and from the Victorian Department of Human Services. People from various churches and non-government groups were also

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there. They had come to join in a welcome ceremony for the new arrivals, the first group of boat people to be released in Melbourne on the new temporary protection visas (TPVs). Unfortunately, the plan fell flat when the bus came early. Gradually, things start to happen. More interpreters arrive, and more Centrelink staff bringing boxes of forms. They begin individual interviews with the Afghans. The refugees are eligible for a Health Care Card, which gives them access to the public health system through Medicare. They must also register with Centrelink so that they can receive special benefit payments equivalent to the government’s New Start allowance. Single men over twenty-one years of age are entitled to $344.90 per fortnight; men between eighteen and twenty-one years of age get $281.10 (unless they have more than $5000 in ‘available assets’, in which case special benefit will not be paid). For the first three months the refugees will receive the benefit without any conditions. After that they will risk losing their payments unless they abide by the government’s ‘mutual obligation’ requirements, such as applying for at least ten jobs per fortnight. They will be expected to meet these conditions even though they are not eligible for any federally funded English-language classes, nor for the full range of employment assistance programs. As interviews continue, some of the men waiting their turn trickle out into the foyer and, after a bit of encouragement, they begin to sort shyly through seven large cartons of clothes supplied by the St Vincent de Paul Society. The men hold up shirts and pants for size, slip jackets on and off to check the feel, and ask one another for opinions. The clothes gradually spill from the boxes and spread across the grubby beige carpet.The Afghans are already dressed in an eclectic selection of apparel, second-hand suits, padded jackets, sportswear, business shirts paired with jeans; the ‘new’ old clothes from Vinnies will add to the variety, but they also will keep out the Melbourne cold. The clothes were the brainwave of medical scientist Dr Nouria Salehi, the energetic and ever-resourceful proprietor of the Afghan Gallery restaurant, whom I had met in the early stages of my research for this book. Nouria jokes that some of the men may end up sleeping upstairs above the Afghan Gallery; she usually keeps spare towels and blankets there in case of unexpected arrivals, as well as another set of blankets in the boot of her car. The last time two Afghan refugees were released from the Melbourne immigration detention centre, it was Nouria who got called to go and collect them and they slept in the restaurant until more permanent lodgings could be found. When she learns that there are two minors amongst the latest group of refugees, Nouria approaches the officials and offers to have them stay at her place. Her straightforward generosity cannot be so easily

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accommodated. The Child Protection Agency would need to inspect the house, interview Nouria and carry out other background checks. So, instead of going home to Nouria’s house, the two adolescents go with the men to a backpackers’ hostel in the centre of town. DIMA would have been hard-pressed to find less appropriate lodgings for a group of Muslims. The backpackers’ hostel is part of a pub that attracts a rowdy crowd of drinkers and is located in a strip of Bourke Street notorious for heroin dealing. After one night at the backpackers’, many of the men were alarmed and discomfited. In the course of the second night, a Saturday night, they became so concerned that they made contact with members of Melbourne’s Muslim community and were transported to a mosque in the northern suburb of Preston. Finding stable long-term accommodation is one of the biggest problems facing Australia’s new ‘temporary’ refugees. They do qualify for rent assistance and can join the queue for emergency accommodation or long-term public housing, but they are not eligible for financial support in meeting the initial costs of setting up a household (such as buying beds or fridges). And if the Afghans have trouble settling into Australia, or need legal or financial advice, they will have to find help outside the traditional network of Migrant Resource Centres. These centres receive funding from the Immigration department but the minister has barred them from using Commonwealth funds to assist refugees on temporary protection visas. Mr Ruddock makes no apology for this and he has warned other community groups not to use Immigration department money to help people holding temporary protection visas. ‘It is certainly the case,’ Mr Ruddock said on ABC TV’s ‘Lateline’,‘that organisations funded to provide settlement services have been told that it is inappropriate to provide access to people who are here on a temporary basis.’ Mr Ruddock said that the support the refugees receive ‘was sufficient for Australians to remain viable in the community’ and therefore ‘ought to be sufficient for these people’.Any additional services would only be an incentive for more people to come to Australia illegally. Mr Ruddock’s Liberal Party colleague and friend, John Olsen, then premier of South Australia, saw the situation rather differently. He told ‘Four Corners’ that being denied English-language classes would hardly act as a deterrent to people who ‘put their life into their own hands to take a boat trip across difficult waters to get to Australia’. Current Australian policy, according to Mr Olsen, creates ‘two classes of refugees’. When it comes to Australia’s new ‘temporary’ refugees, the federal government has all but deserted the field. It falls to State governments and local communities to fill in the gaps between the bare boards of Centrelink payments and Medicare benefits. As premier of South

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Australia, John Olsen authorised the use of State resources — such as the use of the TAFE system for English-language training — to fill the void in services left by the Commonwealth. Similar initiatives have been taken in some other States. In Tasmania the State government provided grants to local councils to provide support services to TPVholders. In Victoria the State government paid the salary of a coordinator to help manage and organise services for ‘temporary’ refugees and funded projects designed to assist them to settle into Australian society, through support with training, education and job hunting. The Commonwealth’s refusal to fund services to TPV-holders inevitably generates greater demand on State-based agencies. According to the Victorian government, the impact was equivalent to a $5 million shortfall in federal funds to the State in 2001.While the Labor government in Victoria has voiced its opposition to the TPV policy, the State government of Queensland has gone one step further, adopting a formal policy that State-based agencies will not discriminate between refugees who hold temporary protection visas and refugees with a permanent right to stay in Australia. Both ‘classes’ of refugees are eligible for the same level of services. In response to these initiatives the Immigration minister issued a press release accusing Labor State governments of ‘funding incentives which will be used by people smugglers to encourage unlawful arrivals to Australia’. < > I decide not to seek an interview with the new arrivals in Melbourne. I don’t want to add to their stress. Besides, I had already spoken to some men in a very similar situation, who were from the first group of ‘temporary’ refugees to be sent to Adelaide. Those men had been released from Curtin and Port Hedland, not from Woomera, in April 2000; after a bus-trip spanning three days and nights they were taken to a Centrelink office, rather than to a community centre, for initial processing. Sensibly, the Centrelink office had opened early, at 7 am, to allow the refugees’ business to be conducted privately, and without disruption to other clients. But to Channel 7 this was evidence of a ‘covert conspiracy’. In tones of righteous indignation, and with backing music evoking shadowy intrigue, the ‘Today Tonight’ program described how a bus had been ‘laid on’ to ‘secretly’ bring thirty ‘illegals’ halfway across the country ‘to be granted visas, benefits and Medicare entitlements, all behind the locked doors of an Adelaide Centrelink office’.The report even claimed, completely erroneously, that the refugees were being given $2500 to ‘fight any attempt to remove them’ from Australia. ‘Today Tonight’ also called on the ‘outspoken’ Western Australian Liberal Senator, Ross Lightfoot, for an opinion. He declared that the

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refugees were ‘criminals … with no right to stay here’, and mischievously (if bizarrely) implied that they were receiving preferential treatment because they were Muslims. It was left to the minister for Immigration, Philip Ruddock, to add some balance to the story, by pointing out that people are only released from detention if ‘they clearly meet the refugee Convention definition’.This did not cut much ice with ‘Today Tonight’, which referred to Australia’s obligations under the Refugee Convention as ‘the UN loophole’. Two weeks after the ‘Today Tonight’ broadcast I am taken to meet some of those same men by Sameer Saaid, a case-worker with the Australian Refugee Association, a non-government organisation. During his lunchbreak, we scoot around between various houses in The Parks, in Adelaide’s northwest, before we find one group at home (none of the houses has a phone). I meet four men and one fifteen-year-old boy — a dentist, a shopkeeper, a shepherd, a farmer, who is constantly fingering prayer beads, and the farmer’s son. Sameer and Mohammed, who is the shopkeeper, act as dual interpreters: Sameer speaks Arabic, Turkish and Kurdish, but not Dari, which is the native language of the five Afghans. Mohammed also speaks Arabic. So, in this way, via Sameer and Mohammed, we are able to conduct a halting conversation — from English, to Arabic, to Dari, and back again. Occasionally, there is the additional breakthrough from Gulzari the dentist, who also speaks a smattering of English.The men are agitated, concerned for their short-term future.Their stay in this house has been strictly limited to four weeks, and half of that time has already elapsed. Sameer managed to find the accommodation by twisting the arm of a contact in the State Housing Commission. ‘They bent their own rules,’ Sameer tells me, ‘otherwise these guys would have been on the street and nowhere else.’ Sameer also feels hassled. He has no idea where he can accommodate the men next. And this is only the first group of ‘temporary’ refugees to be sent to Adelaide. More buses are on their way south from the camps in the desert. The government’s policy of dispersing refugees around smaller State capitals takes no account of the refugees’ wishes, or whether or not they may already have relatives or friends living in a particular city who can help them adjust to life after detention. As a matter of policy, the government has refused to take any temporary protection visa-holders from remote detention centres to Sydney and it has limited the numbers released in Melbourne, even though the larger, better-established Afghan and Iraqi communities in Victoria and New South Wales would be better placed to assist the temporary refugees than their counterparts in Adelaide, Brisbane and Perth. ‘The government is relying on local communities to help these people, but they don’t know what to do,’ Sameer tells me. ‘You are asking for help from people who are already relatively powerless.’

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The men all express a desire to learn and to work.They want help, but not handouts. ‘I do not like to get the special benefit,’ says Gulzari the dentist. ‘I would much rather work by my own hand. I know that they will not let me work as a dentist, but I hope that they will let me study some kind of course.’ Their biggest concern is for their families, scattered across Afghanistan, Pakistan and Iran. ‘The new law is very harsh on us,’ says Mohammed, referring to the conditions imposed by the temporary protection visa. Under the terms of the visa, the refugees cannot apply to sponsor their families to join them in Australia for at least three years; nor can they visit relatives living in safe countries abroad. If they leave Australia, they will not be permitted to return. ‘It is causing lots of anxiety and stress,’ says Sameer. ‘Still, we say thank you to Australia that they have accepted us here,’ adds Mohammed. ‘Our lives were in danger because of the Taliban. If they deported us back to Afghanistan, we would have been killed.’ I get a deeper insight into the agony of the ‘temporary’ refugee when I meet Hakim, another Afghan, who arrived in Australia by plane rather than by boat. Hakim was lucky in some ways. He only spent two months in detention before being granted refugee status. In June 2000 he is living in an outer suburb of Melbourne, sharing a flat with a compatriot and, despite the restrictions on his visa, he has even managed to find some free English lessons. But Hakim does not feel grateful to Australia; in fact, he is angry and upset. This is not immediately obvious when we first meet. ‘I am living like a single man,’ Hakim apologises, smiling warmly as he invites me in and immediately warms a bowl of spiced mutton soup in an aluminium saucepan.The flat is modest but tidy, a small gas stove keeps the cold at bay, and daytime television burbles away from a battered white portable on a desk in the corner. As our conversation proceeds, the television’s cheery tone becomes more and more incongruous. Hakim is forty-four, a father of five children and a grandfather of at least two. He’s not sure whether there may be more because he does not know the whereabouts of his wife and four of his children. Since he was jailed in 1994 Hakim has only had contact with his oldest daughter, who is living in Iran. An economist by training, Hakim spent two-and-a-half years in jail in Kabul under the Mujahideen. In 1996 he was able to escape when his jailers fled the city ahead of the vengeful advance of the radical Taliban militia. No friend of the Taliban either, Hakim spent the next six months in a state of perpetual movement, constantly shifting from house to house, never settling for more than a couple of nights. Eventually, he was able to leave Kabul and hide out in his mother’s village, where the Taliban’s influence was less pervasive.

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Hakim’s ‘crime’ was to be associated with the former communist regime in Afghanistan. Not that he was a communist, it was just that his professional training had offered an early escape route from military service. He ended up working as an adviser in the presidential palace under the Soviet-backed presidents, Babrak Karmal and Najibullah Khan.The association has tainted him for life. Hakim was not intent on coming to Australia; he simply decided to get out of Afghanistan. His family raised the money by selling a piece of land, and Hakim travelled to Pakistan with a nephew to find the smugglers. He was offered passage to England, but told that it would take several months to organise, whereas an opportunity to go to Australia was available immediately. Coming from a relatively wealthy background, Hakim paid a premium price to the smugglers on a ‘guaranteed arrival’ basis. No money was to change hands until he made contact with his relatives, advising them that he had landed safely in Australia. Now he wishes that at the airport, when he first arrived, officials had rejected his claims to be an asylum seeker and sent him straight back to Pakistan. ‘If I was deported [from Australia] I could have got my money back and tried to go somewhere else,’ he explains. Hakim’s anguish is caused by the knowledge that, while he is now safe, he must wait at least three years before he can do anything to trace his family or bring them to Australia. He wants to be allowed to go back to Pakistan or Iran to look for them, but this is impossible under the terms of his visa. Adding to Hakim’s uncertainty is the question of whether he will be allowed to settle in Australia permanently when his temporary visa expires. ‘If I stay here, I work, I read, I help Australian people,’ he says. ‘I buy a house, I plant a garden. I think like an Australian. Now I think like an Afghan, because maybe after two or three years, I have to go back.’ During our conversation, Hakim’s mood has shifted markedly. Bright at first, he is now increasingly morbid. He often rubs his palms against his forehead, drawing them down hard across his cheeks, as if trying to push away the pain.‘To come to Australia is a bad chance for me,’ he keeps repeating, angry at the treatment he has received, treatment he regards as dishonest. ‘When you came to my door,’ he says, ‘I helped you. I invited you in and offered you food. If I could not help you, I would say “sorry, I can’t help you, please go away”. If I invite you in, but offer you no food, offer you no bed to sleep in, then you would say “why did you ask me to come in at all, if you cannot help me?”. It is better to be honest at first, direct, face-to-face. Better for Australia to say, “I can’t help you, I don’t want refugees here.”’ Hakim uses his hands to describe the pressure he feels — two clenched fists, pushing against one another. ‘Pressure this way and this way,’ he says.‘When I don’t know where my future is, then the depres-

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sion problem comes back. There is no interest in living for me. Sometimes when I get out of bed in the morning, I am thinking,“why I am living? Here is not my family or my children. For what are you living?”’ Hakim is making a supreme effort to keep a hold on life. He takes anti-depressants, and attends regular counselling sessions at Foundation House for the survivors of torture (one of the few services not denied to ‘temporary’ refugees). He is busy learning English, picking it up again for the first time since he was a teenager, when he was top of his class. Back then he was taught by a friendly American called Paul, who gave Hakim his black Chinese bicycle when he departed Afghanistan. It is a fond memory of a time before the Soviet invasion, a time when life still held promise. I give Hakim a lift to a nearby TAFE college, where he is meeting friends to play volleyball; further evidence of his determination to stay sane, to keep going, to not give in.When Hakim has gone, I feel a mixture of relief and guilt. I have taken Hakim’s story, I have listened to him with a sympathetic ear, but I don’t have the generosity or selflessness to offer him real help. I am frightened by his yawning need.What would I do if he knocked at my door? < > When the temporary protection visa was first introduced, in October 1999, the aim was to make Australia a less attractive destination for refugees and asylum seekers and to deter people-smuggling. There is evidence to suggest that this may have backfired. One blunt effect of the policy was to make clear to refugees who had arrived in Australia without authorisation that there was no legal means by which they could bring family members to join them for at least three years.This may have encouraged some men who had already arrived to send for their wives and children to follow them on the boats. If refugees just setting out on the journey from their homeland or a country of first asylum were made aware of the policy, then the temporary protection visa may have been an incentive for whole families to leave together, so men may have taken wives and children with them, rather than going alone in an endeavour to establish a base for the family first. As Mary Crock and Ben Saul document in their book Future Seekers, children made up only 13 per cent of the asylum seekers arriving on boats in 1999. In 2001, after the introduction of the temporary protection visa, the proportion of children on boats rose to more than 30 per cent. The effect of the temporary visa in keeping families apart was thrown into stark relief in October 2001, when an asylum-seekers’ boat carrying 397 passengers sank in the Indian Ocean. The 19-metre

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wooden vessel left Indonesia on 18 or 19 October, apparently bound for Christmas Island. Some of the passengers had been reluctant to get on the boat when they saw how small and overcrowded it was but, according to the reports of survivors, they were forced aboard the boat at gunpoint. As soon as the boat set out, the passengers noticed a crack in the hull, and they were called upon to bail out the water that was seeping in. On the afternoon of 19 October, about thirty hours into the journey, the boat’s engines failed and it capsized in the ocean swell. As many as 200 people were trapped inside the upturned hull with no hope of escape. Others were thrown into the water and clung to planks that drifted past from the rapidly disintegrating vessel. Some survivors say that as they clung to the wreckage during the night a large boat appeared nearby. Searchlights were shone into the water and then the boat moved away again, without offering any assistance. Help only came some eighteen hours after the vessel went down, in the form of an Indonesian fishing boat well outside its normal hunting grounds. The fishermen say they were drawn to the site by luggage they found floating in the water. Forty-four people were rescued. There are many unanswered questions about the disaster.What was the role of the Indonesian police, who reportedly forced people aboard the boat? Were they in the pay of the smuggler, or were they involved in the kind of ‘dirty war’ tactics in which the Indonesian security forces are so well-versed? Was this ‘accident’ really engineered to strike a blow against the smugglers and their unwelcome passengers? How was it that this vessel — which has become known as SIEV (Suspected Illegal Entry Vessel) X — apparently escaped the intense surveillance network put in place by the Australian defence force during ‘Operation Relex’, the ‘deter and deny’ mission initiated in the wake of the Tampa? Tony Kevin, a former Australian ambassador to Cambodia, has made it his mission to discover the truth about SIEV X. He has established that the boat went down in international waters in the Indian Ocean and not, as officially reported, in Indonesia’s territorial waters in the Sunda Strait, between Java and Sumatra. This conclusion was independently confirmed by SBS ‘Dateline’ reporter Geoff Parish, who obtained a set of coordinates from the harbourmaster at Sunda Kelapa port in north Jakarta, showing the point at which the survivors were rescued.The coordinates show that the boat went down more than 50 nautical miles from the Indonesian coast and within the area under surveillance during Operation Relex. According to Rear-Admiral Geoffrey Smith, P-3 Orion aircraft were monitoring the Indian Ocean ‘as close as thirty-odd miles’ from the Indonesian archipelago. RearAdmiral Marc Bonser from Coastwatch described it as ‘probably the most comprehensive surveillance that I have seen in some 30 years of service’.

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Physical surveillance of the ocean was backed up by a sophisticated intelligence network, through which Australian Federal Police officers based in Indonesia would alert Coastwatch to the departure of asylum boats from Indonesian ports. Coastwatch received at least five intelligence reports about the SIEV X, beginning as early as August 2001, with information that the boat was being organised by a smuggler called Abu Qussey.According to Rear-Admiral Bonser, on 20 October, Coastwatch received telephone advice from the Australian Federal Police that the ‘Abu Qussey’ boat had departed for Christmas Island the previous day. Included in this information was ‘advice that the vessel was reportedly small and overcrowded’. (The full detail of the intelligence report remains classified.) Rear-Admiral Bonser testified to the Senate Committee that Coastwatch passed this information on to the defence force — specifically to the Australian Theatre Joint Intelligence Centre and to Headquarters Northern Command.This was confirmed by Colonel Patrick Gallagher, commander of the Australian Theatre Joint Intelligence Centre. He said that on Saturday, 20 October, after receiving ‘confirmation’ that the SIEV X had departed ‘with a large number of people’ on board, the centre immediately issued an urgent intelligence report to inform relevant commanders, including the commanders of Operation Relex.This involved direct phone calls to ‘duty staff ’, because this was ‘the way to get the attention of people out of normal working hours’. Of course, by this time the SIEV X had already gone down, but survivors were still in the water. Earlier, the Defence Maritime commander, Rear-Admiral Smith, had told the Senate Committee that at ‘no time under the auspices of Operation Relex were we aware of the sailing of that vessel until we were told that it had in fact foundered’ [on 22 October]. In the light of Rear-Admiral Bonser’s testimony, the navy was forced to amend its own evidence to the committee, although Rear-Admiral Smith continued to insist that much of the intelligence was ‘inconclusive’ and that there was no ‘specific confirmation’ of the vessel’s departure. It does appear that intelligence reports about the SIEV X were somewhat confused. According to Rear-Admiral Bonser, ‘Coastwatch received information that the vessel was expected to depart, or had departed, Indonesia on four different dates in August, anywhere within a seven-day block in September and on five separate dates in October’. Nevertheless, as Tony Kevin told the Senate inquiry into ‘A Certain Maritime Incident’: ‘Something went seriously wrong in the information chain in Australia’s border protection system during October 2001 that had terrible human life consequences’. When the SIEV X went down, HMAS Arunta was 150 nautical miles away and engaged in the process of intercepting another asylum boat (SIEV 6). Had it been alerted to the sinking it could have reached the site of the

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disaster in four or five hours, in time to save many more lives. Helicopters aboard the Arunta could have reached the site in thirty minutes. While details of Australia’s response to the SIEV X tragedy remain unclear, there was no room for uncertainty in the government’s attitude towards the survivors, including those who had relatives in Australia. When the disaster was reported in Australian newspapers, Ahmed Alzalimi recognised the distraught face of his wife, Sondos Ismail, who he had not seen in two years.The couple’s three daughters, nine-yearold Imman, seven-year-old Zahraa and five-year-old Fatima, had all drowned. Sondos Ismail’s sister, Sundus Alfaris, had also perished. Ahmed Alzalimi stopped eating and drinking when he heard the news. Five days later he collapsed and was taken to hospital by friends. As a refugee with a temporary protection visa, there was no way that Ahmed Alzalimi could travel to Indonesia to comfort his wife without giving up any right of return to Australia. The Immigration minister, Philip Ruddock, was unmoved by calls to grant him an exemption in these exceptional circumstances. Another survivor, Najah Zubaydi, had been attempting to reach Australia to join her daughters Anfal, aged nine, and Naba, aged eight, who were already living in Australia as refugees in the care of their grandparents.They had been apart for eighteen months, ever since the family separated in Iran. Najah Zubaydi lost her eighteen-month old son Karrar when the boat sank. Her brother Haydar Zubaydi and a sister, Najla, also drowned; another sister, Zena, survived.The Immigration department was willing to consider applications for resettlement from survivors such as Najah Zubaydi who had proven family links in Australia. Before this could happen, however, she first had to satisfy the UNHCR in Jakarta that she was a refugee under the 1951 Convention, and then pass the health and character checks required by the Australian authorities.This can include such things as obtaining police clearances from Iran, where she resided for some time after fleeing her homeland. Such documents are notoriously difficult to obtain. In other words, Najah Zubaydi had to remain in Jakarta and jump through all these bureaucratic hoops before she was allowed to enter Australia and be reunited with her surviving children and her parents. The minister ruled out giving special consideration to resettling other survivors of the disaster in Australia.A ministerial spokesman told the Age (3 November 2001) that it would be wrong to allow all the survivors to come to Australia because ‘hundreds if not thousands’ of asylum seekers would decide to risk their lives on unseaworthy vessels. The spokesman said it was also unfair to people in other tragedies and those dying of starvation in the world’s refugee camps. In March 2002, five months after the SIEV X sank, Sondos Ismail

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was finally reunited with her husband Ahmed Alzalimi in Sydney. In mid-June, eight months after the disaster, Najah Zubaydi was finally able to enjoy the comfort of embracing her surviving children in Adelaide. < > Prominent businessman Neville Roach, AO, says that the government’s treatment of the survivors of the SIEV X disaster was ‘the last straw’ that prompted him to quit his position as chairman of Philip Ruddock’s Council for Multicultural Australia in January.‘I felt I would not be able to respond positively to questions about Australia’s immigration and multicultural policies any more, especially to overseas audiences,’ Mr Roach told me.‘It would be impossible to explain why we had treated the unfortunate parents so coldly and harshly.’ Neville Roach says he felt that compassion had been ‘thrown out the door’ and he contrasts Australia’s approach to that of the Irish government towards the survivors of a freight container tragedy in December 2001, when eight people died. The Irish prime minister, Bertie Ahern, said that the five survivors had ‘suffered enough’ and that any applications they made to stay in Ireland would be ‘very sympathetically dealt with’. Ireland’s Justice minister, John O’Donoghue, indicated that whether or not the survivors qualified for refugee status they would be allowed to stay on humanitarian grounds: ‘I have no intention of saying “no room at the inn” to these human beings’. Neville Roach says he ‘cannot comprehend what prompted the minister to take so long to show the slightest compassion to the unfortunate parents’. He told ABC TV’s ‘Lateline’ program that it was ‘very sad’ to see the minister, with whom he had previously worked closely, adopting such fixed positions.‘My feeling is he has got himself into such an extreme position that he is unable now, I think, to show any flexibility on this issue at all.’ Writing in the the Age (4 February 2002), political commentator Robert Manne accused the federal government of recklessly endangering Australia’s reputation for racial tolerance. ‘I would once not have believed that, in the inflexible pursuit of policy, an Australian minister could for months coldly inform a refugee that if he visited his wife in Indonesia, after she had miraculously escaped death at sea but after the couple’s three young daughters had drowned, he would unfortunately be unable to return here.’ He warned that ‘the costs of all this cruelty’ would not be borne by the refugees alone. According to Ahmed Alzalimi, one ‘cost’ of the government policy will be to encourage people-smuggling. In an interview with the Age, prior to being reunited with his wife, he described being on a temporary protection visa as being like ‘a prison situation’. If refugees were

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denied the right to be with their families, he said, then ‘the families will have no option except to take the risk and come to Australia and this would open the door to the smuggler’. The temporary protection visa policy also puts added stress on the bureaucracy of the Immigration department itself.There are now some 8000 TPV-holders in Australia. Unless they decide to leave Australian voluntarily, all these refugees will have to have their cases reviewed after thirty months, to determine whether or not they are still at risk of persecution in their homeland. This amounts to a repeat of the whole refugee-determination procedure, both at the primary level and at the appeal level through the Refugee Review Tribunal. According to statistics prepared by the department, the review of cases will peak in the first quarter of 2003, when more than 2000 cases fall due. The most severe costs of government policy will be felt by the Australian community as a whole, because the temporary protection visa creates a marginalised and distraught community of refugees who live amongst us, but not with us. As a result, these ‘temporary’ refugees are likely to become high-demand users of health and welfare services. As a former Human Rights commissioner, Chris Sidoti, writes in the foreword to a report on TPV-holders in the State of Victoria: ,VLWLQRXURZQLQWHUHVWDV$XVWUDOLDQVWRKDYHSHRSOHKHUHIRUSHULRGVRI\HDUV ZKR DUH LQVHFXUH WUDXPDWL]HG GHQLHG DVVLVWDQFH WR OHDUQ (QJOLVK DFFRUGHG D GLVFULPLQDWRU\ VWDWXV WKDW LQKLELWV WKHLU LQWHJUDWLRQ LQWR WKH EURDGHU FRPPXQLW\ OHIW XQVXSSRUWHG E\ DQG ZRUULHG DERXW WKHLU VSRXVHV DQG FKLOGUHQ" 6XUHO\ DQG VHOIHYLGHQWO\LWLVQRW

The report he was introducing — ‘Politics of Social Exclusion: Refugees on Temporary Protection Visas in Victoria’ — identified ‘despair, disillusionment and unusually high levels of anxiety and health disorders’ amongst refugees on temporary protection visas. It also documents the difficulty faced by ‘temporary’ refugees in finding work and not only due to poor English-language skills and the lack of other training opportunities. Even refugees with professional qualifications and fluent English encounter problems because their insecure residency status makes them unattractive to prospective employers. All the refugees interviewed for the report expressed their appreciation for the special benefits payments they received via Centrelink, but said they nevertheless felt ‘insulted’ by this government handout and would much rather be working: ¶9LVDUHVWULFWLRQVDUHQRWEHQHILWLQJDQ\RQHLQFOXGLQJWKHJRYHUQPHQW·VWDWHGRQH RI WKH 739 KROGHUV ZKR EHOLHYHG WKDW LI SHRSOH KDG DFFHVV WR HGXFDWLRQ DQG WUDLQLQJWKHLULQFUHDVHGUDWHRIHPSOR\PHQWDQGRUEXVLQHVVHVWDEOLVKPHQWZRXOG UHGXFHWKHPRQH\WKHJRYHUQPHQWLVSD\LQJLQEHQHILWV,QGHHGKHDGGHG¶WKH ZRUNLQJ SHUVRQ ZLOO EH SD\LQJ WKH JRYHUQPHQW ZLWK WD[HV· $QRWKHU ZRPDQ

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SDUWLFLSDQWDGGHGWKDWWKLVNLQGRIDSSURDFKZRXOGUHGXFHLVRODWLRQLPSURYHVHOI HVWHHPDQGVHOILPDJHZKLFKLQUHWXUQZLOOUHGXFHWKHGHPDQGRQPHQWDOKHDOWK DQGSK\VLFDOKHDOWKVHUYLFHV

When a reporter from SBS TV’s ‘Insight’ program raised these concerns directly with the minister, Mr Ruddock (28 March 2002), he refused to acknowledge that there was a problem. He described the provision of English-language education to refugees as ‘delivering a service which helps someone in their life … [that] … doesn’t necessarily make our situation as an Australian community any better and more effective’. The reporter pressed Mr Ruddock on the issue, suggesting that forcing people to remain on the margins of society could not be beneficial to social cohesion.The minister responded by suggesting that the reporter wanted to ‘embrace’ people who had broken Australian law and who had taken the place of a refugee in far greater need.‘And what I’m saying is, “No, that embrace is not there”’. < > Impervious to criticism, the federal government has in fact moved to tighten the temporary protection visa regime even further. In the wake of the Tampa a new hierarchy of visa categories was introduced that seems intent on precluding most refugees who arrive in Australia without authorisation from ever gaining the status of a permanent resident. Any refugee who applies for a permanent protection visa after 27 September 2001 must now demonstrate why they were unable to obtain effective protection in any country where they spent seven days or more before reaching Australia. In other words, they must demonstrate why they did not seek and obtain asylum at the UNHCR office in a transit country such as Indonesia or Pakistan. If refugees cannot meet this test, then the best they can hope for is renewal of their temporary visa for another three years. Without the personal intervention of the Immigration minister, these temporary refugees can never gain permanent residency; they can never sponsor their spouse or children to join them in Australia. Neither can they leave and re-enter Australia. In the words of Chris Sidoti, the former Human Rights commissioner, the revised temporary protection visa regime offers refugees temporary protection, and permanent rejection. The denial of family reunion, he says ‘is a flagrant violation of the human rights of children, the most vulnerable of these vulnerable people’. The post-Tampa changes do not only affect refugees who arrived in Australia after 27 September 2001; they also capture any refugee who arrived previously and was granted a temporary protection visa

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but had not yet lodged an application for a permanent visa. Some refugees had already done so, because, owing to a bureaucratic anomaly, initially it was the only way they could qualify for a Medicare card. However, after that anomaly was fixed, there was no reason for TPV-holders to apply for permanent residence prior to the reconsideration of their case thirty months after the original visa was granted. The Immigration department and migration agents often advised their TPV-clients that it was in their best interests to wait, and to lodge their next application close to the time when it would be assessed, in order to ensure that all the relevant details were up to date. Refugees who took that advice now face the likelihood of being permanently denied the rights of a permanent resident because the new laws were brought in with immediate effect and with no warning or amnesty period. There is logic behind the government’s policy approach. As the minister explained in this exchange with Damien Carrick from Radio National’s ‘Law Report’ (2 October 2001) the new visa hierarchy was designed to offer incentives to refugees to seek protection at an earlier point in their journey and so undercut the attraction of the peoplesmugglers. However, Mr Ruddock accepts that his policy could also create a permanent community of second-class citizens: 3+,/,3 58''2&.,W·VDKLHUDUFK\DQGWKHEHVWRXWFRPHLVWRDSSO\IURPDVLW XDWLRQRIILUVWDV\OXP7KHVHFRQGEHVWRXWFRPHLVWRDSSO\LQDFRXQWU\ZKLFK PLJKWEHHQURXWHZKHUH\RXDUHDEOHDQGVHFXUHHQRXJKWREHDEOHWRGRVR 7KHWKLUGEHVWRXWFRPHLVLI\RXFRPHWR$XVWUDOLDDQGWKDW·VDYHU\GHOLEHU DWHKLHUDUFK\LQSROLF\WHUPV:KDWZH·YHGHWHUPLQHGLVWKDWLI\RX·UHSUHSDUHG WR E\SDVV VLWXDWLRQV RI VDIHW\ DQG VHFXULW\ ZKHUH \RX FDQ LQ IDFW SXW \RXU FODLPV IRU D UHVHWWOHPHQW SODFH LQ$XVWUDOLD LI \RX FDQ E\SDVV WKRVH SODFHV DQGJHWWR$XVWUDOLDWKHQ\RXRXJKWQRWWREHWUHDWHGDVJHQHURXVO\DVWKRVH SHRSOHZKRHVVHQWLDOO\DUHSUHSDUHGWRWDNHWKHLUWXUQLQWKHTXHXH '$0,(1 &$55,&. 6R ZH·UH WDONLQJ DERXW SHRSOH ZKR ZLOO UHFHLYH RQJRLQJ UROOLQJWHPSRUDU\YLVDVZKRZLOOQHYHUQRUPDOLVHWKHLUVWDWXVKHUHLQ$XVWUDOLD ZLOOQHYHUEHDEOHWRKDYHIDPLO\MRLQWKHPRXWKHUH7KDW·VJRLQJWRPHDQD SHUPDQHQWSRSXODWLRQRISHRSOHZKRDUHVHFRQGFODVVFLWL]HQV 3+,/,3 58''2&.,WPLJKWZHOOGRWKDW '$0,(1 &$55,&. %XW 0LQLVWHU ZH·UH PDNLQJ DV \RX VD\ VHFRQGFODVV FLWL ]HQVRXWRIWKHVHSHRSOH 3+,/,3 58''2&.7KDW·VULJKW '$0,(1&$55,&.7KDW·VRXWRISHRSOHZKRDUHERQDILGHUHIXJHHVHYHQXQGHU WKHYHU\SURVFULEHGV\VWHPZKLFK\RX·UHDOORZLQJWKHP 3+,/,3 58''2&.7KDW·VULJKW2QWKHEDVLVWKDWEHFDXVHVRPHERG\PD\KDYH

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DZHOOIRXQGHGIHDURISHUVHFXWLRQLQWKHLUKRPHFRXQWU\LIWKH\·YHE\SDVVHG RWKHUSODFHVZKHUHWKH\ZRXOGEHVDIHDQGVHFXUHLQRUGHUWRSXWWKHLUFODLPV LQ$XVWUDOLDWKH\DUHHVVHQWLDOO\WDNLQJSODFHVIURPSHRSOHZKRKDYHDPRUH XUJHQWQHHGIRUDUHVHWWOHPHQWRXWFRPH

The minister’s argument assumes that refugees who have come to Australia by boat have deliberately bypassed other opportunities to gain protection from the UNHCR. This is a big assumption. The problems with the notion of an orderly refugee ‘queue’ have been dealt with elsewhere in this book (see chapter 1). It may well be the case that a refugee en route to Australia was not aware of the protection on offer from the UNHCR, or was actively dissuaded or prevented from seeking such protection by people-smugglers. This was this case with Najib, a refugee from Afghanistan, who I met at the offices of the Refugee and Immigration Legal Centre (RILC) in Melbourne. Najib was taking part in a monthly clinic, organised by RILC, to help TPV-holders prepare for the thirty-month review of their visa, and to advise them about the impact of the post-Tampa changes. RILC organised TPV-clinics to fill the gap left by the Immigration department, which had failed, after ten months, to arrange any public information sessions to explain the new laws. The clinics catered for an enormous un-met need, with some clients travelling inter-State to attend. On a brisk Sunday morning in April 2002 I joined Najib and his interpreter in the cramped rear office of RILC migration agent Jaom Fisher. We sat squeezed between three fourdrawer filing cabinets and a small set of shelves containing some books and a few broken toys. Maps of Burma and Afghanistan were stickytaped to the walls and piles of papers in stacked manila folders made islands on the industrial-grade carpet. The long tendril of a pot plant climbed towards the light filtering through blue plastic blinds. Najib presented Jaom Fisher with his documents, including the temporary protection visa itself, carefully wrapped in plastic.The visa is a piece of light card that folds into three sections. On the front it says ‘Visa Evidence Card - Department of Immigration and Ethnic Affairs’, a name that has not been in use since 1996. Clearly, the Immigration department does not believe in wasting old stationery.When folded out flat, the panel on the left is affixed with Najib’s photograph, duly stamped by the Immigration department. Underneath is his signature. In the middle panel is Najib’s full name, nationality and date of birth. On the right-hand side is the visa itself, with the sentence ‘Holder permitted to remain in Australia until …’. Underneath the visa the following words stand out: ‘NOT VALID FOR TRAVEL’. The document looks worn, as if it has been fingered frequently, folded and re-folded, held close. Najib was granted a temporary protection

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visa in September 2001. His case will not be reconsidered by the Immigration department for another two years. Then his right to stay in Australia will be assessed against the conditions prevailing in Afghanistan at that time, particularly as they affect members of the Hazara minority. Najib has been separated from his wife and two sons for a year. He left Afghanistan when the Taliban began forcibly recruiting young men from his area to join their army. Earlier, his brother went missing, feared killed by the Taliban. Najib is dressed in blue jeans, white business shirt and a light nylon jacket and looks older than his twenty-three years. He is a simple man, with only limited schooling, although he has been gradually teaching himself English by borrowing books from the library to read at home after he knocks off from his job in a furniture factory. Najib remains impassive throughout the interview, responding to questions carefully and politely, but not volunteering information or raising queries of his own. Jaom Fisher explains to Najib that if he fears returning to Afghanistan in two years’ time, then the government will want to know why he did not apply for protection as a refugee at an earlier point on his original journey to Australia — in Pakistan, where he spent fourteen days, or in Indonesia, where he spent a week. Najib describes his journey and tells how in each stopping place — Quetta, Karachi, Jakarta — he and his fellow-travellers would be taken straight to a hotel.The smugglers insisted that they always stay in their accommodation and never venture out, for fear of being arrested by the police. Najib was scared.‘I had never left Afghanistan before. I could not understand the language,’ he says.The smugglers brought food to their rooms and told them to be ready to move on at any time. Najib says the smugglers did not tell him anything about his rights. ‘We had no idea about the UNHCR or anything like that,’ he says.‘The smugglers just said good things about Australia.They told us that once we arrived at Christmas Island we would be met and welcomed.’ Najib’s story is representative of some, though not all, refugees. Others, more worldly than he, may have had greater insight into the process of people-smuggling and refugee-protection. Their reasons for not seeking UNHCR assistance may have been different — perhaps they knew, for example, that refugee status in Jakarta was its own dead end. In the two years from January 2000 to December 2001, UNHCR Jakarta identified more than 500 asylum seekers as refugees but found resettlement places for just 65 of them. Among those who died in the sinking of the SIEV X were refugees who had already been granted protection by the UNHCR but decided to risk their luck on the journey to Australia rather than live in limbo in Indonesia.As the UNHCR regional representative, Raymond Hall, told ABC TV’s ‘Lateline’ program (24 October 2001), the SIEV X tragedy occurred in part because

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people who had been recognised as refugees in Indonesia had become ‘increasingly impatient at the lack of long-term solutions’ open to them. Mr Hall noted that Australia had been ‘very reluctant to accept people from Indonesia’ and suggested that this had made it more difficult to establish an ‘international burden-sharing arrangement’ to resettle the refugees. The stories that individual refugees tell of their journeys to Australia highlight the simplicity of the Immigration minister’s argument that refugees deliberately bypass situations of safety in order to seek ‘a desired migration outcome’.The reality is messier and more complex. At the end of their meeting at the RILC, Jaom Fisher asks Najib if he has anything else to add. ‘I want to thank the department of Immigration,’ he says.‘For providing assistance to me at this stage in my life when I had to leave my country. We wish to contribute to this country because they have been so helpful to us and we would like to assist the country in return.’ < > In July 2000, at the besser brick community centre in Melbourne’s inner-west, the Afghan refugees newly arrived from Woomera look stunned and apprehensive.Their faces give expression to the harsh reality of the refugee: the experience of loss, dislocation and uncertainty. No matter how good Australia’s refugee-determination and resettlement procedures were, they could never erase that trauma. But we can help to buffer it, and we have a positive obligation not to add insult to injury. I watched the Afghan refugees sitting at their desks and wished I had thought to cut a spray of that bright yellow wattle from the tree on the nature-strip, to bring it inside the grey walls of the community centre as a small gesture of greeting.

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‘Let them stay! Let them stay! Let them stay!’ It is lunchtime on a beautiful Saturday in Melbourne in November 1999 but the chanting crowd of around 300 people is oblivious to the fine spring weather. ‘Set them free! Set them free! Set them free!’ Angry voices bounce around the cavernous granite portico of Casselden Place, the city office-block housing the Victorian branch of the Immigration department at the top of Lonsdale Street. ‘Let them stay! Let them stay! Let them stay!’ The protesters have formed a rough ring around four men.Three of the men are Timorese. Standing together in a close group, they are gradually swathed in metres of red tape by the fourth man, dressed in a suit, who circles around them. And stuck on his back, to ensure that there is no mistaking the villain in the piece, he has a paper sign which reads ‘Minister for Immigration Philip Ruddock’. Before the street theatre, lawyer Carolyn Graydon had addressed the crowd through a megaphone, with East Timorese community worker Etervina Groenen acting as interpreter. Together they struggled to explain the latest development in a complex saga that dates back more than ten years. It is the story of some 1650 East Timorese who came to Australia to seek asylum. Some of them came here as long ago as 1989. Most arrived in late 1994 or early 1995, after a brief period in which the Australian consulate in Bali was, for reasons which remain obscure, unusually liberal in issuing visitor visas to people from East Timor. At the outset their story seemed like a straightforward yarn — these were East Timorese seeking refuge from the Indonesian military forces that had occupied their homeland. Others had arrived before them telling the same sad tale, and received a sympathetic audience here. But not this time. This time the listeners’ hearts turned to stone. Instead of reaching a quick, neat ending, this story wound its way through the law

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courts, creasing the brows of eminent judges and barristers; it reached behind the closed doors of the highest political council in the land and tumbled across the pages of newspapers. On occasion, the narrative came tantalisingly close to a satisfying conclusion, but then a new twist of plot would always push the dénouement away again. For the Timorese asylum-seekers this epic has become exceedingly tedious; they are cast as the central characters but have no influence over the storyline. Like Alice through the looking glass, they can see their destination, but have no idea how to reach it; each time they try to grasp something solid to call a future, it disappears into the indeterminate distance. In the meantime they live in limbo. ‘We don’t know if we can stay here or if we have to go back to Timor tomorrow,’ says Celia, an asylum seeker who came to Australia on a tourist visa when she was just sixteen years of age. Celia has now been in Australia for more than six years. ‘It’s really stressful, you just don’t know what is going to happen tomorrow, or the next week, or the next month.’ I met Celia by chance at the Springvale Aid and Advice Bureau, a busy rabbit-warren of a community centre in Melbourne’s sprawling eastern suburbs, where she has volunteered as a receptionist in order to get some work experience. Under the terms of her bridging visa, Celia is allowed to work, but she cannot undertake tertiary study unless she pays the full up-front fees applicable to an overseas student. Celia is wearing a snappy grey Mooks T-shirt and has a trendy haircut; she doesn’t look like a refugee living on the margin of society. In common with her Australian peers, Celia likes to go out looking good, she likes to have fun with friends, and she has dreams for the future.The difference in Celia’s case is that her dreams are on indefinite hold. I am surprised to learn that Celia could hardly speak English when she first arrived in Australia. She studied at a language centre before she could enrol to complete Years 11 and 12 at high school.After five years here Celia’s language skills were so good that she was employed as an interpreter by the Electoral Commission when it oversaw voting in Australia for the United Nations referendum in East Timor. As well as English, Celia speaks Indonesian, the Chinese dialect Hakka and the indigenous Timorese language Tetun. She says that, after the Timor referendum, her manager wanted to keep her on with the Electoral Commission. It didn’t work out; casual work was OK, but a permanent job was out of the question: ‘I couldn’t get the job because I’m not an Australian citizen,’ she explains. ‘I’m not even a permanent resident.’ Following a brief explanatory chat, Celia readily agrees to be interviewed for this book, so we commandeer an office in the community centre. However, once the tape-recorder is running, she becomes slightly shy and embarrassed, particularly when I ask her why she came

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to Australia in the first place.‘I came because my parents were so scared for my safety,’ she answers. Looking for more detail, I rephrase my question and ask again, only to receive a similar, general answer:‘I had experienced some troubles in East Timor and when my safety became really bad my parents asked me to come to Australia’. I begin to realise that my ungainly questions are thudding clumsily into a delicate issue. I am asking too much of Celia. I am an older man and we have just met. I can hardly expect her to be explicit about the kind of threat she faced as a sixteen-year-old girl in East Timor, where, like other women and girls, she was at risk from the everyday sexual violence that was part of Indonesia’s military occupation. Community worker Etervina Groenen, who came to Australia as a refugee, remembers what it was like to be a teenager in occupied East Timor:‘We were constantly harassed by soldiers, we couldn’t even walk down the streets without being sexually harassed. Even living in your house, it got to the point where we couldn’t even go out onto the verandah. I mean,Timor is a hot country, yet you could not even go out to sit because soldiers walk past, especially if you are girls. When they see you sitting on the verandah, they start to make a lot of remarks full of sexual connotation. It is scary.You feel that as a girl it is better to just lock yourself inside the house constantly.’ In 1994 Celia’s parents sent her to join her older brother, an Australian citizen, who had already been here almost twenty years. Her parents followed a few years later, after another deterioration in the general situation in East Timor. They do not speak English and have been unable to find work, so the family relies on government money provided through the Red Cross — the so-called Asylum Seekers Assistance Scheme (ASAS), under which some asylum seekers may receive financial assistance, but only if the initial processing on their case has taken longer than six months. Most applicants receive an answer well within that time and so never qualify for support. East Timorese asylum seekers became the exception because the Immigration department froze all processing of their cases. ‘It’s lucky we get assistance from the Red Cross,’ says Celia, who is totally bemused by the complexities that have held up her family’s application to stay in Australia.‘The Immigration never did a thing for us,’ she says.‘And I know a lot of other asylum seekers who were in the same situation like us.They never call us for the interview and they just freeze all our cases, so we just have to wait and wait and wait.’ Celia, her family, and hundreds of other East Timorese have been waiting for the final round of a complex legal joust to determine their nationality. The government’s argument was that people born in East Timor had an inherent right to Portuguese nationality and, therefore, had no right to refugee status in Australia.This argument was based on

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Article 1A(2) of the 1951 Convention, which says that a state is not obliged to offer refuge to a person who ‘has not availed himself of the protection of one of the countries of which he is a national’. In other words, East Timorese fleeing Indonesian persecution should have made use of their right to go to Portugal before seeking protection elsewhere. They would only have been entitled to knock on Australia’s door in the unlikely event that they were being persecuted, not just by Indonesia, but by Portugal as well. Surprisingly, the Portugal argument appears to have originated with the independent Refugee Review Tribunal, not with the Immigration department itself. In 1993 the tribunal began seeking submissions on the nationality of East Timorese asylum-seekers, including an expert legal opinion from Portugal. Exactly what prompted the tribunal to go down this previously unexplored path remains unclear, although a former principal member is adamant that it was not the result of political meddling from Canberra. Indeed, Commonwealth legal hounds were quite slow to sniff out the significance of the argument. However, once they had sunk their teeth into it, they were determined not to let go. Carolyn Graydon was working for the Refugee Advice and Casework Service when the Refugee Review Tribunal first raised the issue of Portuguese nationality in relation to a client. ‘I remember the response in the office,’ she says.‘We thought it was hilarious, you know, we couldn’t believe it. I think the letter may even have been folded into a paper plane and flown into the bin. It seemed to be so extraordinarily implausible, given the Australian government’s de jure recognition of East Timor as part of Indonesia. Little did we know that six years later, we’d still be fighting on this same issue.’ Solicitor Karyn Anderson says the emergence of the nationality argument is consistent with a fundamental shift in refugee law. The focus is no longer on whether a particular individual meets the definition of a refugee; the primary issue now is whether a state has any ineluctable obligation to help that person. ‘There is a real shifting of responsibility going on,’ she says.‘You’ve seen it already in the European Union. Countries are trying to avoid their obligations by arguing that an applicant should go somewhere else, and apply there.What it means is that refugees become pawns in a much larger political game, which is to shift responsibility, to get people out and basically force them to go somewhere else.They also become in many cases refugees in orbit, which I think is an inhumane and degrading treatment.’ Karyn Anderson says that the situation of East Timorese asylum seekers was rendered even more complex by Indonesia’s withdrawal from East Timor in 1999 and the territory’s indeterminate pre-independence status under a United Nations administration.

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But we are jumping too far ahead in this story. First we should return to an earlier point, when Indonesia controlled East Timor; when, alone among Western nations, Australia gave formal recognition to that illegal occupation. Under such circumstances it would seem self-evident that Australia would treat asylum seekers from East Timor as Indonesian citizens. After all, most East Timorese travelled to Australia on valid Indonesian passports, a fact recognised by one of the Commonwealth’s top legal minds, Henry Burmester, principal international law counsel in the Attorney-General’s department. In a written opinion for the Immigration department, dated 27 April 1995, Mr Burmester wrote:‘In the case of East Timor, Indonesian sovereignty has been asserted since 1976 and recognised by Australia since 1979. Indonesia is in effective control. It is, in fact, on the basis of Indonesian nationality and passports that the East Timorese are entitled to travel freely to Australia. In other words, it is implicit in Australia’s recognition of Indonesian sovereignty over East Timor that Australia takes the view that there is adequate connection between the people of that territory and Indonesia for their citizenship to be valid, and validly conferred.Accordingly, there is no reason for Australia not to recognise the Indonesian law conferring nationality on East Timorese. In the refugee context, the relevant fact is that under Indonesian law the persons in question are regarded as having Indonesian nationality.’ (emphasis added) This was consistent with arguments used by the Attorney-General before the International Court of Justice, when Australia fended off a Portuguese challenge to its bilateral treaty with Indonesia to exploit oil and gas in the Timor Gap. In its counter-memorial to the court, Australia argued that Portugal had no authority to represent the people of East Timor:‘Portugal can point to no basis on which its position can be identified with that of the people of East Timor. Its alleged sovereignty has not been accepted by the East Timorese people. … Even following military intervention by Indonesia in December 1975 neither side of the political division in the territory acknowledged any role for Portugal.’ On this basis, East Timorese were obviously Indonesian citizens. If they could demonstrate ‘a well-founded fear of persecution’ in Indonesia for a Convention reason, then Australia had an obligation to grant them refugee status. End of story? Not by a long shot. In July 1995 a Refugee Review Tribunal member, J.A. Gibbons, granted refugee status to a man from East Timor. He based his decision in no small part on the April 1995 opinion provided by Mr Burmester and on Australia’s arguments before the International Court of Justice. Mr Gibbons concluded that:‘With the extinction of Portuguese sovereignty over East Timor any right that Portugal had under its municipal law to determine the nationality of the East Timorese is no longer such

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that it can be recognised by an Australian Tribunal. In consequence, the Applicant cannot be held to have the nationality of the predecessor state, Portugal.’ Mr Gibbons’s reasoning was referred to the Attorney-General’s department for evaluation. Mr Burmester thus found himself in a very odd position. He was being asked to critique a tribunal judgement based on his own wise counsel. Without reference to his own learned opinion, provided just five months earlier, Mr Burmester reached a dramatically different conclusion this time:‘Portugal regards East Timor as a non-self governing territory of which it is still the Administering Power.This is an adequate connection to justify Portugal in conferring its nationality on persons from East Timor. In this regard, the recognition or non-recognition by Australia of a particular State as sovereign over East Timor is irrelevant.’ So, by this argument, people from East Timor should make use of their right to go to Portugal, and Australia need not concern itself with their claims for refugee status. Initially, the arguments about Portuguese nationality for East Timorese asylum-seekers had been confined to arcane debates in legal venues, but in the time that elapsed between Mr Burmester’s two radically divergent opinions the issue had become very public and intensely political. The episode which wrought this change occurred on 30 May 1995, when a boat carrying eighteen people arrived from East Timor. The fifteen men, two women and one child were the first and only asylum seekers from the territory to land directly on Australian shores. They received a great deal of attention, much more than the large numbers of ‘aeroplane people’ who had preceded them, and who had come via Bali. The Timorese boat-people, because they arrived without visas, were subject to mandatory detention under the Migration Act. About ten days after they arrived, psychologist Ida Kaplan went to interview the Timorese at Curtin air base, near Derby, where they were being detained.‘What was very striking about all of them was that they were terrified,’ she recalls. ‘They’d got on the boat, which was a pretty risky thing to do, with a sense that if they didn’t they would be pretty well doomed in East Timor, which meant that they were at risk of being detained and then tortured or killed. When they talked about East Timor, their fear was visible and they were so relieved to have arrived in a place where they were safe.’ Ida Kaplan helped write a submission calling for the East Timorese to be released from detention on the compassionate grounds of ‘trauma arising out of torture’. With an eye to public opinion, the Immigration department agreed. Unlike most boat people, the Timorese were set free within two months of their arrival and prior to their status being determined.

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This prompted outrage in Jakarta. Indonesia’s Foreign minister, Ali Alatas, declared bluntly that the Timorese ‘could not be classified as asylum seekers or those deserving refugee status’. He questioned their credibility, saying it was ‘very obvious that they are just trying to get maybe a better life in Australia’ and warned that Australia could expect a flood of similar arrivals if they were accepted as refugees. The very public issue of the Timorese boat-people proved to be an uncomfortable pebble in the shoe of an Australian government striving to waltz harmoniously with the Suharto regime. Recognition of Timorese claims for refugee status, even if it came via an independent tribunal, would amount to an open and official acknowledgement of Indonesia’s military brutality in East Timor. But the Portuguese-nationality argument offered Canberra a convenient side-step in its diplomatic dance with Jakarta. Paul Keating, the Australian prime minister, executed the move with alacrity, even though the evident hypocrisy made it less than stylish.‘Timorese people have Portuguese citizenship,’ he declared on a Perth radio station, ‘so, they have no refugee status, though the government has taken the view that Timor is part of Indonesia, is a province of Indonesia, those people still have Portuguese citizenship status.’ The minister for Foreign Affairs and the attorneygeneral chimed in with similar comments, all pre-empting any independent assessment of the asylum-seekers’ claims. Australian politicians have long held fears of Indonesia as an unstable archipelago that could send millions of refugees spilling south at any time. The tendency to appease Jakarta, and hang the principle, is also deeply ingrained, but it is rarely given candid expression. An exception was in July 1985, when the then minister for Immigration, Chris Hurford, let slip a few home-truths. Five asylum seekers had arrived on Thursday Island, off the tip of Queensland’s Cape York Peninsula, following an eight-month journey out of the Indonesian territory of Papua (Irian Jaya or West Papua). Mr Hurford said that the men, even if they were genuine refugees, would not be allowed to take up permanent residence, because Australia did not want to anger Indonesia or become a frontline state for its political dissidents. Mr Hurford said that ‘there were plenty of other places in this world’ where the men could go. Anticipating Ali Alatas by ten years, he argued that allowing the Papuans to stay would ‘open the floodgates’ to similar arrivals. Mr Hurford’s warning that Australia could be ‘deluged with people crossing the short distance in small boats to the islands and coastline of Northern Australia’ appears ominous. The surprising fact is, however, that very few refugees have arrived in this way from Indonesia — a fact which is all the more remarkable when one considers the upheaval that there has been in that country, and the brutality of the Indonesian mil-

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itary. Despite the mass killings of 1965, the invasion of East Timor, the separatist struggles in Aceh and West Papua, despite religious conflict in Ambon and ethnic clashes in Kalimantan, there never has been a sudden wave of Indonesian boat-people arriving on our shores. Notwithstanding this historical reality, the panic created by asylum seekers from Indonesia appears to quickly gnaw its way through moral fibre, tearing consistency to shreds. When Paul Keating labelled the Timorese asylum seekers as Portuguese, the shadow minister for Foreign Affairs, Alexander Downer, professed outrage.‘The Portuguese ambassador has confirmed to me today that East Timorese people do not have Portuguese citizenship,’ he said in response. ‘Not one of the 1300 East Timorese asylum seekers has applied for Portuguese citizenship. Not one of these people is by any stretch of Mr Keating’s vivid imagination, a Portuguese citizen.’To claim that they were Portuguese was ‘simply absurd and hypocritical’, added Mr Downer. ‘Lying for domestic political gain is one thing but to lie internationally is downright damaging.’ This brave solo performance did not weather his transition into office. Within a year the new Howard government, with Alexander Downer as the minister for Foreign Affairs, was dancing to different music, much more in tune with Jakarta’s tastes. Just as its Labor predecessor did, the Howard Coalition government used the Portuguesenationality argument to deny asylum to people from East Timor. Meanwhile, much to the disgust of the East Timorese community, some Labor politicians suddenly began courting the asylum seekers again, offering support for their cause from the safety of the opposition benches. < > The ethical vacuum behind Australia’s position in relation to East Timorese asylum-seekers is self-evident, but the Commonwealth’s legal argument did have substance. It had been given weight by no less a personage than the East Timorese resistance leader, Xanana Gusmao, after his arrest by Indonesian forces. In 1993, in his defence plea before an Indonesian court, Xanana declared:‘On 22 November last year, I signed a document in which I affirmed that according to international law, I continue to be, like all Timorese, a Portuguese citizen and before my own conscience I am a citizen of East Timor. … I appeal to the Portuguese Government never to abandon its responsibility towards East Timor.’ Inevitably, this vexed question of citizenship was put before the Australian courts.And the first important decision was handed down in the case of Jong Kim Coe.

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Mr Jong arrived in Australia in 1992 and applied for refugee status on 30 April, that same year. Fifteen months later, on 6 August 1993, the minister’s delegate rejected Mr Jong’s application on the basis that he did not have a well-founded fear of persecution. Mr Jong then appealed to the Refugee Review Tribunal: two-and-a-half years elapsed before the tribunal finally handed down its decision. In one sense the tribunal overruled the department. It found Mr Jong did indeed fear persecution at the hands of Indonesian authorities — because of his involvement with protests preceding the 1991 massacre at Dili’s Santa Cruz cemetery. But the tribunal found another, different reason to reject Mr Jong’s application for asylum. It ruled he was not entitled to refugee status in Australia because he had a right to Portuguese nationality and could, therefore, seek protection in Portugal. Mr Jong appealed again, this time to the Federal Court. Another year passed.Then in May 1997, a full bench of the Federal Court concluded that the tribunal’s reasoning was not good enough. The court did not dispute Mr Jong’s right to Portuguese nationality, but argued that a second question must also be considered: did Portuguese nationality afford Mr Jong effective protection as a refugee? This marked a decisive shift in the legal argument.The question of Portuguese nationality per se was no longer in dispute.The issue now was whether Portuguese nationality was a ‘merely formal’ matter or whether it was in fact ‘effective’. A second test case came before the courts. Like Mr Jong, Lay Kon Tji arrived in Australia early in 1992. Like Mr Jong, he applied for a protection visa as a refugee, was knocked back by the Immigration department, appealed to the Refugee Review Tribunal and waited years for a ruling.Again, the tribunal eventually found that Lay Kon Tji did have a legitimate fear of persecution in East Timor; but it also found that he was a dual national of Indonesia and Portugal and, for that reason, Australia had no obligation to extend him protection. Lay Kon Tji appealed the decision to the Federal Court and waited another twoand-a-half years for his fate to be decided. Finally, in November 1998, Justice Finkelstein ruled in his favour. ‘It was quite an unusual decision in that the court actually accepted fresh evidence,’ explains Karyn Anderson, who acted as Lay Kon Tji’s solicitor in the case. ‘Justice Finkelstein essentially found that Portugal did not afford effective protection, on the basis of a communiqué that the Portuguese government issued after the tribunal’s decision.’ That press release, issued by the Portuguese Embassy in Canberra, declared that people born in East Timor were not automatically Portuguese nationals. It said nationality laws must be applied in accordance with Article 293 of the Portuguese Constitution, which binds

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Portugal to ‘promote and guarantee the right to self-determination and the independence of East Timor’. According to Karyn Anderson, the legal implication of that clause is freedom of choice. In the words of the communiqué ‘citizenship … presupposes an individual and voluntary application that reveals the wish to become a Portuguese national’. Justice Finkelstein found in favour of Lay Kon Tji and sent the matter back to the tribunal for reconsideration. The Commonwealth immediately appealed. < > It was a blustery, grey Melbourne day and the last autumn yellow was falling from the trees in Flagstaff Gardens when the Federal Court convened to hear the appeal in Lay Kon Tji’s case six months later, on 24 May 1999. On the footpath outside the sparkling new Commonwealth Law Courts complex in William Street, the Timorese and their supporters waylaid commuters with another weary protest about their plight. There is a solid core of sympathy for the East Timorese in Australia and, as the asylum seekers’ fate was played out before the courts, the Sanctuary Network was standing by, ready to hide any Timorese facing removal from Australia.The Network was founded in Sydney in 1994 by Sister Kath O’Connor, a Josephite nun. It drew its inspiration from the practice of sanctuary in the early Middle Ages, when a fugitive from the civil authorities could seek the protection of the Church by grasping the knocker on a church door. By late 1999 the Network claimed to have 10,000 people signed up who were willing to break the law by harbouring Timorese asylum-seekers if the government attempted to send them to Portugal. From the ragged protest on William Street it was upstairs then to the hushed courtroom, where the Timorese took seats at the very rear, as if they doubted their right to take any place at all amidst such stylish formality. At the bench, associates turned the judges’ chairs 90 degrees to greet them, and we stood in choreographed ritual as the trio of Whitlam, Black and North trooped in, sat down and swivelled into action. The Commonwealth was represented by a pair of QCs; Lay Kon Tji by two sympathetic junior barristers, who had agreed to appear for a heavily discounted fee. His legal team could not afford to brief silk and his instructing solicitor did most of her work pro bono, on weekends, in the basement of the law library at Melbourne University. Two law students also volunteered to help on the case. Opening arguments focussed on whether Lay Kon Tji’s lawyers should be allowed to expand the matters under debate. As this was a crucial test case, they wanted to revisit the earlier decision in Jong’s

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case, and to re-open the whole question of Portuguese nationality before the full court. If the judges agreed to their request, it would mean further delay while both sides prepared further arguments. It would be at least August before the same bench of the court could meet again. The Commonwealth resisted Lay Kon Tji’s application; it wanted to restrict the court’s attention to the narrow question at hand, whether Justice Finkelstein was right and whether he should have admitted the Portuguese press-release as evidence. I had the sense that the judges were striving to be fair, striving to help the barristers to fully and clearly express their views, striving to understand. I was impressed by the thoroughness of proceedings, but I was overawed as well. As the arguments continued, I felt myself being swamped by the weight of legal detail. My thoughts drifted and I snuck a glance at the thirty or so Timorese asylum-seekers sitting at the rear of the room: silent, patient, hopeful, apprehensive. I had to leave the hearing. When I dashed back, later in the afternoon, the courtroom was empty. The case had been adjourned, destined never to re-open. Before the court could be recalled, the world changed.The United Nations conducted a referendum and the people of East Timor voted for independence; pro-Indonesia militia went on a military-backed rampage and, finally, Jakarta let go of the territory. The Federal Court had been due to reconvene on 8 October 1999, but in the wake of events in East Timor the minister for Immigration sought a delay, saying that ‘a favourable resolution’ of the status of the asylum seekers was close, rendering the case unnecessary. Counsel for Lay Kon Tji agreed to the adjournment because they were led to believe that the outcome ‘would benefit all East Timorese asylum seekers in Australia’. ‘We trusted them,’ says solicitor Karyn Anderson. But, when it came six weeks later, the resolution was far from favourable.The minister discontinued his appeal in the Federal Court, but dashed hopes of a special humanitarian visa which would allow the Timorese to stay. Mr Ruddock had been rolled in cabinet; his department had prepared a detailed submission arguing for a special visa category but it was knocked back on the basis that Australia was contributing billions of dollars to a United Nations peacekeeping mission designed to make East Timor safe. When the Commonwealth withdrew its appeal in Lay Kon Tji’s case, the original decision of Justice Finkelstein was left in place. The Commonwealth offered the same deal to another twenty-six East Timorese litigants whose cases were pending before the Federal Court. It admitted defeat, paid their legal costs and gave the applicants exactly what they had been seeking, which was a reconsideration of their case by the Refugee Review Tribunal. This was an empty victory,

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however, because the applicants’ claims of persecution would now be measured against East Timor’s new reality. Lay Kon Tji and his fellow asylum-seekers would have to demonstrate a well-founded fear of persecution, not under Indonesian rule, but under UNTAET (the United Nations Transitional Administration in East Timor). At first glance, such a case appeared hopeless. Surely the United Nations would not be allowing the persecution of people in East Timor on the basis of their ‘race, religion, nationality, membership of a particular social group or political opinion’ such that Australia would be obliged under the Refugee Convention to offer them protection within its own borders? But the situation was more complex than it appeared on the surface. Here, it is important to note that more than 80 per cent of the East Timorese asylum-seekers in Australia are ethnic Chinese, and that anti-Chinese sentiment is not uncommon in East Timor. Solicitor Karyn Anderson admitted that this was a road she was reluctant to walk; she felt that arguing persecution on the basis of Lay Kon Tji’s race was almost like promoting divisions in the new society of East Timor. But this was exactly the issue on which the fate of the asylum seekers now turned. Again, the matter ended up before the courts; this time the venue was the Administrative Appeals Tribunal, rather than the Federal Court. Dr Peter Nygh, the principal member of the Refugee Review Tribunal, referred the case of an East Timorese asylum-seeker known only as ‘SRPP’ to the Administrative Appeals Tribunal. This is allowed under s443(1) of the Migration Act in cases that involve an ‘important principle, or issue, of general application’; it was the first time, however, that this section of the Act had ever been invoked. Dr Nygh then sat on the three-member tribunal, with a Federal Court judge (Justice D.F. O’Connor) acting as tribunal president. On 5 October 2000 the Administrative Appeals Tribunal handed down its decision and ruled against the Commonwealth. It found that SRPP is ‘a person to whom Australia has protection obligations under the Refugees Convention’. The reasoning behind the tribunal’s decision makes interesting reading. First, the tribunal had to determine whether East Timor, in its transitional state, was actually a ‘country’, for the purposes of the Refugee Convention. It found that it was. Secondly the tribunal had to determine whether SRPP would have a right to enter East Timor under United Nations administration and be treated as a national. It found that he would. Then came the more substantial question of whether SRPP would face persecution in East Timor. The tribunal found that there was ‘an objective basis for the Applicant’s genuine fear’ of persecution, not because of any malevolence on the part of United Nations authorities in East Timor, but because SRPP is ethnic Chinese and a

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potential target for racially motivated attacks.The tribunal’s finding was based on statements by people familiar with the current situation in East Timor, including the UNTAET chief, Sergio Vieira de Mello. On 27 June 2000 Mr de Mello told the United Nations Security Council that he was ‘concerned by attacks on minority communities, namely the Muslims, the ethnic Chinese and the Protestants …’. He also expressed anxiety about the low priority given to prisons and courts, and the lack of funding for such matters: ‘… words can only feebly reflect the challenges we have to face each day in East Timor, challenges which I must confess we are often ill equipped to deal with’. The tribunal was not convinced that the United Nations transitional administration could protect SRPP from persecution, given ‘the concerns expressed by Special Representative de Mello, the reports on inaction of the police at present in relation to less serious crimes, and the virtual non-operation of the justice system, which lacks even the most basic facilities’. So, SRPP was found to be an East Timorese national who faced persecution if returned to that territory. But this was not the end of the matter.The tribunal still had to deal with the Portugal question. Here, it largely agreed with the arguments offered by Justice Finkelstein in the Federal Court two years earlier.The tribunal said that it could not make ‘a positive finding that the Applicant is a Portuguese citizen under Portuguese domestic law’. The tribunal recognised that the applicant may have a right to acquire Portuguese citizenship but noted that the application must be voluntary, and that all applications would be considered on a case-by-case basis, and success was not guaranteed.‘We are therefore not satisfied that the Applicant will receive effective protection in Portugal,’ the tribunal concluded. The Commonwealth had the option of appealing the AAT decision to the Federal Court but, much to the surprise of SRPP’s lawyer, failed to do so within the twenty-eight-day window available. Thus, the decision was left to stand as the final legal word on the matter. The case had been referred to the Administrative Appeals Tribunal on the basis that it involved ‘an important principle, or issue, of general application’ and enormous intellectual and financial effort was expended to argue the issues through to a clear and conclusive outcome. On the surface the result appeared to have profound and largely positive implications for other East Timorese asylum-seekers in Australia, of whom the large majority, like SRPP, are ethnic Chinese. The decision provided a compelling legal argument that all East Timorese of Chinese background could be seen as refugees entitled to Australia’s protection. To immediately grant them permanent residence under a special visa category would have saved time, money and administrative effort. There was also a compelling moral argu-

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ment that the same protection should be extended to the nonChinese amongst the asylum seekers, in recognition of the fact that they had now lived in Australia for several years. As a matter of basic human decency, the government had the opportunity to finally end the debilitating uncertainty which all the East Timorese asylum-seekers have been forced to suffer. ‘The fundamental thing is that people should be given the free choice of whether they want to stay here or go back,’ says Etervina Groenen. ‘A lot of them have really got absolutely nothing to go back to in East Timor.They have lost their land, they have lost their houses, they have lost their family members. Some are too traumatised, so they don’t even want to hear the word Timor mentioned.’ Etervina Groenen has one client who was raped, who lost a child in the Santa Cruz massacre, whose husband was gunned down.‘It is too painful for her to go back to Timor,’ she says. ‘I think the fact that you have stuffed up people’s lives for so long is really inexcusable, you really need to make a remedy and I think the only way is to create a special visa category for these people so that they can finally settle down, because if you send them back to Timor now, it’s just basically extending the uncertainty in their lives.’ Solicitor Carolyn Graydon agrees that there are very strong humanitarian reasons to allow the East Timorese to stay.‘They have been kept in a kind of frozen state, a limbo state,’ she says. ‘They did not come here with bogus claims trying to clog up our system, they came here with genuine refugee claims and they really have been political footballs, virtually from the time that they have arrived.’ The endless waiting and uncertainty has been a heavy weight on the asylum seekers, many of whom already shoulder a burden of pain from their homeland. Some people have died waiting. Lay Po Jung was one of the few East Timorese asylum-seekers to receive a favourable outcome from the Refugee Review Tribunal. Ms Lay was in her late sixties and had already been in Australia for seven years when the Refugee Review Tribunal decision was handed down in 1997. She was in constant pain from arthritis, which was so bad that some of her toes had been amputated. She had been disqualified from receiving income support through the Red Cross-administered Asylum Seekers Assistance Scheme, because the Immigration department had already rejected her case at the primary stage. In her role as a lay minister at St Matthias Anglican Church in Melbourne’s inner-city Richmond, Etervina Groenen gave Ms Lay financial help through the church, but this made the independent Ms Lay feel like a beggar.When the Refugee Review Tribunal granted her asylum, Ms Lay’s first thought was to pay Etervina back. ‘She came to me and she was very happy. She said “Now you can give that money to someone else who

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needs it”’. Ms Lay’s happiness was short-lived, because the Immigration department appealed against the tribunal’s decision.‘She did not understand why,’ says Etervina. ‘She was an old lady.’ A few months later Ms Lay was diagnosed with cancer. ‘When I visited her, she would say, “Well at least now I don’t have to go through the humiliation any more,”’ says Etervina. She believes Lay Po Jung was so destroyed by the process of seeking asylum that she lost the will to live.‘She said,“Well, you know, finally they can’t kick me out.” It’s quite sad because it’s true. She’s dead. She’s buried.What are they going to do to her?’ Solicitor Carolyn Graydon also knew Lay Po Jung. ‘I think it is just appalling that an individual like that could be so lost in the system,’ she says. ‘What is the government doing appealing the cases of elderly Timorese asylum-seekers who have been here for a very long period, and then have them dying while the litigation continues?’ Many of the East Timorese asylum-seekers have married Australian citizens and have children who were born here. Li Hiam Lai is an Australian citizen who fled East Timor with his brother in 1976 at the age of seventeen. He then emigrated to Australia from Portugal in 1982. His wife,Tjin Jun Lai, is an asylum seeker.The couple have two children: a three-year-old son, and a newborn baby. ‘Waiting for ten years is torture, isn’t it?’ Li Lai says to me when I meet him at the cluttered office of TECVIC, the Timor Ethnic Chinese Community of Victoria, located at the base of a high-rise tower block on the North Richmond housing estate. The room has flecked green lino tiles that remind me of my primary school and is equipped with cannibalised computers, their innards showing through dismembered grey carcases. The association’s latest newsletter is stacked in neat bundles on a table in the middle of the room. ‘We don’t know what is going to happen,’ says Li Lai. ‘It creates an environment of fear. My wife and I have two young children. If she has to go back to East Timor, then what will happen to them? Do they go or will they stay with me? As their father, of course I would keep them with me, but it is not good for them to be separated from their mother.’ Li Lai says his wife has nothing to go back to in Dili. The family home was destroyed and most of her relatives are in Australia. As the chair of TECVIC, Li Lai says he spends a lot of time counselling asylum seekers, and countering rumours. ‘Rumours constantly come up that people are about to be sent back,’ he says. ‘The uncertainty makes people more vulnerable to other social problems. Especially the youth. They get into trouble or mixed up in drugs.’ As psychologist Dr Ida Kaplan points out, the community already carries a burden of trauma. Dr Kaplan has had close contact with the East Timorese asylum-seekers since she began work at the Victorian Foundation for the Survivors of Torture seven years ago. She says the

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level of trauma is very high and crosses generations:‘For example, if you are working with a woman in her twenties she will report the rape of her mother which she witnessed as a child and she’ll talk about her own rape.’ Of course, Foundation House only sees clients who have been fairly severely traumatised, but Ida Kaplan says their stories build up a picture of systematic oppression and harassment that would have affected the entire population. ‘Most of our client group were not political activists, so we are not talking about things that occurred to the politically active.These things were characteristic of the general population. Very good examples were the way the Indonesian military would invade people’s homes, stay there for hours watching TV, insist that meals would be made for them, making sexually degrading remarks to women and daughters.’ ‘People often think that unless you are being constantly interrogated by the military there is no danger,’ says Etervina Groenen. ‘It’s not true.’ One of Etervina’s most painful memories appears almost trivial at first hearing. A soldier bought something at her family’s kiosk, threw the money on the ground and ordered her father to pick it up. ‘My father was quite taken aback,’ she says,‘and he said to me to go and pick it up.The soldier said “Not your daughter! You pick it up!”When I tell that story a lot of people, they say, well you’re lucky he paid the money. No, I’d rather he took the goods and walked out because basically the soldier did it on purpose to humiliate my father in front of his own daughter. For the next few months after that, my father found it very difficult to even face me. It was a power game. I’m the one who has got the power, I’m the one who has got the gun.’ Ida Kaplan says that witnessing of harm done to others is often more traumatic than the experience of direct harm to oneself, because of the helplessness involved: ‘In the witnessing people are forced to betray their most central values about life. So, for example, children are beaten in front of their parents who are forced to watch. It is an impossible situation because they often have other children to protect, so they do not even have the choice of sacrificing their own life to save that of their child.’ The impact on health and wellbeing can be dramatic. Some people re-experience the traumatic event as if it was happening again, ‘which means you can smell it, see it and hear it’, Dr Kaplan explains. Others have nightmares or display chronic over-arousal, constantly scanning their environment and jumping at noises, as if their system was on permanent alert. Alternatively, the mind may shut down, so that people become numb. ‘They’ll say that they’ve turned to stone,’ says Dr Kaplan. ‘You don’t just shut down to unpleasant memories, you shut down to things that might bring you joy, like your children.’

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She says the most common feelings are shame and guilt. ‘I don’t think it’s an overstatement to say that every survivor of torture carries significant levels of shame and guilt, because every survivor has been forced to fail to protect someone,’ says Dr Kaplan. She says these feelings may be the most destructive of all. ‘Shame and guilt actually prevent people from being entitled to life and they literally hide from others.’ Holocaust survivor Primo Levi gave voice to that shame in ‘The Truce’, when he described his liberation from Auschwitz. Levi and another survivor were dumping the body of a room-mate in an overflowing common grave with all the other sprawling corpses when the first Russian patrol arrived at his section of the vast camp in late January 1945. 7KH\ GLG QRW JUHHW XV QRU GLG WKH\ VPLOH WKH\ VHHPHG RSSUHVVHG QRW RQO\ E\ FRPSDVVLRQEXWE\DFRQIXVHGUHVWUDLQWZKLFKVHDOHGWKHLUOLSVDQGERXQGWKHLU H\HVWRWKHIXQHUHDOVFHQH,WZDVWKDWVKDPHZHNQHZVRZHOOWKHVKDPHWKDW GURZQHGXVDIWHUWKHVHOHFWLRQVDQGHYHU\WLPHZHKDGWRZDWFKRUVXEPLWWR VRPHRXWUDJHWKHVKDPHWKH*HUPDQVGLGQRWNQRZWKDWWKHMXVWPDQH[SHUL HQFHVDWDQRWKHUPDQ·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

Ida Kaplan says that anyone who has lost family members or had their human rights violated in other ways has been treated as if they are unimportant and dispensable. She says that this feeling is internalised and, in the Timorese case, only compounded by their experience in Australia.‘What happens for a trauma survivor is that they lose their sense of trust in the world, in other people and their self, they’ve been degraded and what they look for is some justice in order to restore their place in the world. So when people are refused refugee status on a legal technicality that is incomprehensible to them, this is experienced as a gross injustice.Their sense of being worthless is reinforced. It also deprives them of the means to repair what is being done because you can’t rebuild a future if no one is saying what it is going to look like.’

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< > Like the East Timorese asylum-seekers, the federal government, too, has been trapped in the twists and turns of this never-ending story. The Administrative Appeals Tribunal opened up a new page on which to write the final chapter and produce a happy ending. It was not to be. As with previous legal judgements in their favour, the Timorese victory in the case of SRPP before the Administrative Appeals Tribunal turned out to be hollow. Neither the Immigration department nor the Refugee Review Tribunal was obliged to see the decision as a legally binding precedent in relation to similar cases. For eighteen months the Immigration department simply ignored the decision. Then, in early 2002 the minister announced that decision making in relation to asylum seekers from East Timor would resume and that all remaining 1650 cases would be considered individually. Mr Ruddock blamed the long delay on ‘litigation’ (neglecting to mention that the last two rounds of legal action had been initiated by the Commonwealth and the Refugee Review Tribunal, and not by the asylum seekers) and on the ‘need to ensure that the situation in East Timor was clear enough and our information sufficiently sound … to finalise these cases reliably’. Mr Ruddock said that deciding the cases would allow the East Timorese ‘to move on with their lives’ and he added that it was ‘reasonable to expect’ those found not to be refugees ‘to return home’. Mr Ruddock had already indicated the direction of government action two months earlier in public comments that sent two new rumours coursing through the East Timorese community. One rumour was that the Australian government had already set a date to send people back; the other was that East Timor’s interim government had ordered all East Timorese asylum-seekers to return. In reality, the minister had not established a time-line for completing the process, although the Immigration department did indicate that it hoped to have all cases finalised by the end of 2002.The community legal groups and Legal Aid lawyers who had been representing the East Timorese were inundated with calls and inquiries from anxious clients and began gearing up to assist them in re-submitting their claims for refugee status.The reality is that few claims are likely to succeed, given the changed situation in East Timor, although many individual applicants may ultimately be allowed to stay. Asylum seekers who have married Australian citizens, or who have children born to Australian citizens, can apply for a spouse visa (as long as this is done before they have a primary rejection from the department); asylum seekers who have obtained professional skills since arriving in Australia may be able to apply for a visa to stay in Australia as skilled workers, and young people who have spent their ‘formative years’ in Australia (that is, years prior to turning eighteen) may be able

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to apply for a ‘close ties visa’ as long as they are no longer living together with their family. Others may be able to apply for special consideration by the minister on compassionate grounds — for example, if they have experienced torture or trauma, or if a member of their family requires specialist medical treatment that is unavailable in East Timor. However, this option is only open to them after they have been rejected both at the primary level and at the Refugee Review Tribunal. In other words, East Timorese asylum-seekers who have strong humanitarian grounds to stay in Australia must still jump through the hoops of the refugee-determination procedure before their cases can be considered by the minister.This will put unnecessary strain on the resources of the Immigration department and result in a blow-out in the backlog of appeals before the Refugee Review Tribunal. It will also create difficulties for many of the asylum seekers, leaving them without any form of income while their cases are put to the minister.A large number of East Timorese asylum-seekers remain dependent on support from the Asylum Seeker Assistance Scheme. Once asylum seekers have been rejected at the primary level this assistance will only be available in special circumstances. After rejection at the tribunal, support through this scheme is cut off altogether. The final chapter of the Timorese asylum-seeker story is now being written and the ending will be far from neat. The Sanctuary Network set up to provide refuge to Timorese asylum-seekers years earlier is no longer ready to spring into action. On the other hand, general refugeesupport groups have emerged all over Australia, and many citizens are so opposed to the direction of government policy that they have expressed a willingness to break the law and shelter people whom the government is determined to remove. Steve Bracks, the premier of the State of Victoria, where most of the Timorese asylum-seekers live, has written to the prime minister urging him to show compassion. Mr Bracks suggested that the Timorese should be allowed to stay for compassionate reasons to avoid ‘a potentially tragic outcome’. Demos Krouskos, chief executive of the North Richmond Community Health Centre, which provides services to Melbourne’s Timorese community, warned that uprooting families that had experienced dispossession, trauma and violence would have severe consequences for their health. ‘The emotional and psychological stresses would be very destructive,’ he said. | The Timorese story is full of ironies: the cruel irony that pro-independence East Timorese were forced to espouse the nationality of their invader Indonesia in an effort to escape that invader’s oppression; the bitter irony that Australia should loudly promote the right of East

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Timorese to be citizens of Portugal, when it stood apart from world opinion and recognised Indonesia’s complete sovereignty over the territory; the sad irony that Portugal, international champion of the East Timorese cause, should be forced to stress the conditional nature of the welcome on offer to its former subjects, for fear that welcome could deny them sanctuary elsewhere. At the end of the protest outside the Immigration department offices in Casselden Place on that fine spring day, the three Timorese men were cut free from the red tape, handed symbolic passports and welcomed to Australia with cheers.This fairy-tale ending to the asylum seekers’ story now seems remote.

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In early February 2002 Prime Minister John Howard described Australians — especially young Australians — as a ‘much travelled and much travelling people’. In this context he said the September 11 terror attacks were not only an ‘awful attack on a huge metropolis’ but also ‘an attack on the capacity of the world to maintain that human mobility, that easy movement of people, particularly amongst the young, which has become a constant characteristic of the experience of nations such as ours’. The Australian adorned his comments with the headline ‘PM the young travellers’ defender’ (4 February 2001). One can only presume the sub-editor was being sardonic. Five months earlier John Howard had prevented the Norwegian container-ship MV Tampa from docking at Christmas Island to disembark 433 asylum seekers rescued from a sinking vessel in the Indian Ocean. The prime minister called out the navy to intercept subsequent boatloads of Afghans, Iraqis and Iranians — most of them young, many of them, in fact, just children — in order to prevent them, too, from setting foot on Australian soil. John Howard’s comments give us an idea of what is really going on here:Australia, an affluent, developed nation, demands for its people the right of free travel throughout the world, while simultaneously constructing a fortress that will keep others from arriving on our shores — unless, of course, they too come from affluent, developed nations, or from the upper strata of society in poorer countries. If you can afford to visit Australia as a full fee-paying student or a wealthy tourist, then we will let down the drawbridge and grant you entry. So why did the government’s response to the Tampa and its rescued asylum seekers come as a shock to so many people? I am not trying to claim any special foresight or to pretend that I could see the Tampa, or some similar vessel, steaming across the political horizon through the pre-election waters of 2001.The point of my rhetorical question is to

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indicate that the treatment of the Tampa, and of subsequent asylum boats seeking to reach Australian territory, was entirely consistent with the thrust of Australian refugee policy prior to 26 August 2001; indeed, it was largely consistent with refugee policies as they have evolved elsewhere in the developed world. Simply put, the broad thrust of that policy is to stop people from ever crossing your frontier in the first place, in order to prevent them from invoking the protection obligations enshrined in the 1951 Convention on the Status of Refugees. Britain’s Foreign Secretary, Jack Straw, acknowledged this in June 2000, when he was still Home Secretary and responsible for immigration. At a public forum in London he put his finger on the fundamental contradiction at the heart of the 1951 Convention on refugees: it gives people facing persecution the right to claim asylum, but it does not oblige any nation to admit them so that they can make that claim. The consequence of this contradiction, as Jack Straw admitted, is that refugees are forced to break the law to escape the threat of persecution in their home country and seek safety elsewhere. The Australian government’s response to the Tampa laid bare the mechanisms by which asylum seekers are kept at bay. If we were not busy applauding the government, then we were shocked to see how crude the business of border protection really is. In fact, the very same processes have been operating for years, in an unobtrusive, bureaucratic way that does not discomfort us or offend our sensibilities. Australia has Immigration department officials posted at major airports in Southeast Asia, such as at Bangkok or Kuala Lumpur. The job of these ALOs, or Airline Liaison Officers, is to help counter-staff at the airport to detect document fraud — false passports, false visas — and to prevent people holding such documents from getting on a plane to Australia. In the 1999–2000 financial year a total of 353 people were intercepted by Australia’s ALOs in Kuala Lumpur, Singapore, Bangkok, Hong Kong and Denpasar.We will never know how many of these people were refugees. Without a visa to get you past immigration controls, the only ‘legal’ route to refugee protection in Australia is the government’s much vaunted offshore humanitarian resettlement program with its upper limit of 12,000 places per year. Given the limitations of that program and all the other barriers erected on the legal route to Australia, it is hardly surprising that thousands of asylum seekers were willing to sell their land and whatever other possessions they had in order to scrape together enough money to engage the services of a people-smuggler, and then risk a dangerous journey in an ill-equipped boat from Indonesia to an Australian territory in the Indian Ocean. When the federal government prevented the Tampa from disembarking its passengers at Christmas Island, it was simply taking the next logical step in policy, closing off another route by which refugees might

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actually make it past our border controls, and so make a call on our obligations under the 1951 Convention. This is not so different from what happens elsewhere. In late 1991 and early 1992, after President Aristide of Haiti was deposed in a military coup, some 38,000 Haitians tried to reach the United States mainland in small boats. The Coast Guard was deployed to intercept these ‘boat people’ and in a precursor to Australia’s ‘Pacific solution’, Caribbean and Central American nations were called upon to host the displaced Haitians on behalf of the United States. A number of countries acceded to Washington’s request in principle, although in the end domestic political opposition prevented the plan from being realised.As a result more than 12,000 Haitians were held for processing in an ‘offshore’ location — the United States naval base in Guantanamo Bay in Cuba. Many were ultimately found to be refugees and allowed to enter the United States. In May 1992, no doubt alarmed at the number of people who appeared to have a legitimate claim for protection in the United States, President George Bush (senior) switched tactics. Despite protests from the UNHCR, he ordered the Coast Guard to force intercepted boats back to Haiti, without conducting any assessment as to whether or not the people on board might be persecuted by the country’s military regime on their return. The peculiar politics of United States policy towards Cuba means that any Cuban who sets foot on United States soil is automatically allowed to stay as a refugee; however, under a deal struck with Havana, Cubans intercepted at sea are returned to their homeland. So, of course, the Coast Guard then does everything in its power to prevent Cubans from ever reaching the beach, and the Cuban boat-people make maximum effort to evade the Coast Guard. The result is increased risk all round. In The Price of Indifference Arthur C. Helton argues that the United States program of immediate return for Cubans and Haitians (and Dominicans and Chinese) intercepted at sea is part of a general trend towards unilateral policies of ‘containment’. He points out that Italy does the same thing with Albanians. Jeremy Harding has described how in the late 1990s, the Otranto Channel became a nightly battleground between the patrol boats of Italy’s Guardia di Finanza and scafisti ferrying Albanian migrants to the Italian coast in high-speed inflatable boats equipped with twin outboard engines. Dramatic actions on the high seas are still the exception, however. The routine mechanics of border protection are mundane and attract little scrutiny. In August 2001 the Australian government’s ideal scenario was that the Tampa and any subsequent asylum boats would be despatched back to Indonesia. This would have been done under the rubric of ‘regional cooperation’. If the boat people wished to claim

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refugee status, they could do so at the Jakarta office of the United Nations High Commissioner for Refugees.This is the local equivalent of European policy, by which a Tamil asylum seeker, for example, who flies to Warsaw and tries to cross from Poland into Germany may be turned around at the German border, under agreements that asylum seekers must have their refugee claim assessed in the first European country in which they set foot. (The key difference is that Poland has signed the 1951 Convention and undertaken not to send refugees back to a place of persecution. Indonesia has not.) Critics of the federal government’s response to the Tampa, myself included, pointed to the damage that it did to Australia’s international reputation but this argument may have been overstated. While many countries did indeed voice concern about Australia’s actions, politicians and bureaucrats around the world were also watching attentively, to see how the Australian experiment would pan out, and what might be gleaned from it to augment their own border defences. The British government subsequently toyed with the idea of despatching warships to intercept asylum boats in the Mediterranean. In league with Spain, Britain also attempted unsuccessfully to win European Union support for a policy of withholding aid from transit nations that fail to stem the unauthorised movement of people across their borders.Australia’s Immigration minister, Philip Ruddock, claimed some credit for ‘collaborating’ with the British government in developing its policies (a claim downplayed by the British government). It also appears that Australia tried to set up a kind of post-Tampa refugee-relocation deal with the United States. Australia agreed to take Cuban and Haitian refugees who were trying to make it to the United States, while urging the United States to resettle Afghan and Iraqi ‘Pacific solution’ refugees who had tried to reach Australia. After the issue hit the front page of the Australian, the minister’s office issued a media release asserting that talk of a refugee ‘swap’ was wrong. But if the intention was not to do a direct exchange with the United States, then at the very least Australia was looking to create a kind of refugee merry-go-round, in which asylum seekers might join the international protection system at one point but with no way of knowing where they might exit it again as a refugee.This is the inescapable implication of the minister’s comments in London in April 2002, when he first announced that Australia would take refugees from Cuba and Haiti: ‘What we’re looking to see is that people’s migration intentions of reaching Australia, even if they are refugees, is not realised — that is, that they will often go to places that they hadn’t anticipated they might be going to and hadn’t planned to go to’. Under this scenario the minimum requirements of the 1951 Convention are met.A person at risk of persecution is given protection

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as a refugee, but not in a place of their own choosing.To use one of Mr Ruddock’s favourite turns of phrase, refugees are prevented from achieving their ‘desired migration outcome’. A forward-looking Mr Ruddock says this approach ‘will be a very important part of the maintenance of the international protection system’. The merry-go-round policy rests on an assumption that refugees ‘shop’ for their destination of choice.There is no doubt some refugees will try to reach a country where they have relatives or friends but the primary consideration is to seek safety and a durable solution to their plight. Anecdotal evidence suggests, for example, that many refugees end up in Australia by default, because that was the destination on offer from the smuggler they happened to encounter: if they had been offered passage to Canada or the United States or Britain, they would have gone there instead. < > Historically, the movement of people across borders has always taken place. Individuals or families embark on such journeys for what are often very immediate and specific reasons, but their decisions are also driven by powerful social and economic forces operating over the long term. Repressive measures will not, therefore, halt the international process of migration, particularly in an era of globalisation, when the disparities between rich and poor countries are so acute. Tony McInerny, from the Australian Federal Police People-Smuggling Team, recognised this. In an article for the Australian Federal Police publication Platypus Magazine in September 2000, he pointed to the changes in the nature of people-smuggling operations to Australia via Indonesia: ‘ … these activities have moved from being relatively overt and amateurish, relying to a significant extent on family connections, to being increasingly covert, highly lucrative, professional criminal enterprises involving high levels of official corruption’. When Australia sharply increased the penalties for people-smuggling, Indonesian-based smugglers responded by using escort boats to remove as many crew members as possible from the main transport vessel before it entered Australian waters. They employed crew members under eighteen years of age, knowing that juveniles would be dealt with more leniently in the Australian criminal justice system. They began to ‘dump and depart’ — to leave passengers to fend for themselves on the first piece of available land (such as the remote Ashmore Reef) while they withdrew quickly to Indonesian waters. In his article for Platypus Magazine, Tony McInerny glumly concluded:‘Given the huge amounts of money to be made and the increasing suppression activity by law enforcement, people smuggling to

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Australia will become more “criminalised”, that is, it will continue to attract persons already engaged in other criminal activities such as drug trafficking, and it is likely to attract people prepared to use violence in order to defend and expand their operations. In the longer term the use of violence against the people smuggled can be expected (in order to maintain control of groups and to collect debts).’ If his views hold true in the post-Tampa world, then this suggests that the smuggling industry will mutate in ugly and unpredictable ways over time, in an effort to counter the raft of new restrictions introduced by the federal government. Noting the relatively small number of asylum applications in Australia, compared to those in most other developed countries, and the fact that most asylum seekers actually arrive in Australia lawfully, refugee advocates tend to downplay the impact of organised peoplesmuggling. They argue that our physical isolation provides a natural barrier against large numbers of people landing unlawfully on our shores. Perhaps this argument once held true, but it can be sustained no longer. Australia’s geography no longer renders it immune to the global flow of unauthorised migrants and refugees. If we accept that people-moving is now a highly sophisticated business, we must also acknowledge that the entrepreneurs who run the trade will, when assessing possible destinations for their cargo, draw Australia into their calculations no less than any other country. The question is how we respond to the challenge of people-smuggling without, at the same time, abandoning protection for refugees. It is possible, of course, to mount a defensible argument for scrapping border controls altogether; this is an argument that unites radical right-wing economists and international socialists. Radical economists recognise that open borders would maximise the return to capital.Talk of globalisation has become mundane and there is constant pressure, mostly from developed nations, to reduce national barriers to the transfer of goods, services, technology and finance. In the name of efficiency and growth, nation states have largely abandoned attempts to protect local manufacturers from foreign imports, or to retain domestic control of strategic industries, or to put limits on foreign investment. Calls to reintroduce such measures are ridiculed, derided as anachronistic and impractical.Yet, when it comes to the movement of people, sovereign rights suddenly resurface with a vengeance.The radical economist argues that, if we are really serious about competitive global free-trade, then we must unshackle all the factors of production, including labour.Without the unimpeded movement of workers around the world, talk of a global free-market is disingenuous. The radical international socialist dreams of a borderless world, too, though for different reasons. Frontiers, immigration checkpoints and

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visas form barriers between the wealthier countries and the poorer ones. They are the fortifications that protect privilege and excess, the castle walls behind which global riches are stockpiled for the enjoyment of the few. Removing those barriers would be a revolutionary step towards social justice. Few of us are willing to subscribe to such radicalism and there is not much point in advocating measures that have no chance of being implemented. No government is going to risk the electoral backlash that would result from an open borders policy. But that is not the only alternative. Australia’s minister for Immigration, Philip Ruddock, has often expressed his frustration with the workings of the 1951 Refugee Convention.When the federal government announced the results of its review into Australia’s engagement with the system of United Nations treaty committees in late August 2000, Mr Ruddock threw out a challenge to people like myself, who wrestle with the asylum-seeker issue. ‘There has been an absolute distortion of priorities,’ he said.‘We spend along with other developed countries something like $10 billion a year dealing with half-a-million asylum seekers, most of whom will not sustain refugee claims. The United Nations High Commissioner for Refugees has $1 billion to look after the world’s 21.7 million people who are refugees and people of concern. In any other circumstance, serious commentators would be writing about how obscene that is, they would be focusing on the privileged with money who exploit our systems and the needy who are left behind.’ Of course, most of the $10 billion that developed nations spend on those half-a-million asylum seekers is not spent for the benefit of the asylum seekers. The primary purpose behind spending all that money is to keep most of those asylum seekers out; to filter their applications, reject those who do not measure up to the Convention definition of a refugee and remove them. In Australia, unlike most other nations, we also spend a lot of that money locking up asylum seekers in desert camps or offshore places while their claims are assessed. In the 2001–2002 financial year the cost of the government’s strategy for dealing with unauthorised boat arrivals was $572 million. Nevertheless, Australia’s Immigration minister has a point.The 1951 Convention has no worth as an international instrument of protection if it does not discriminate between refugees and other migrants. In order to comply with the Convention, Australia and other western nations require a sophisticated (and, therefore, expensive) refugeedetermination mechanism. Otherwise, the Convention simply becomes a backdoor to migration. In 2000–2001 the cost of one small component of Australia’s refugee-determination system — the $11 million spent funding migration agents to provide application assistance to

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onshore asylum seekers — was almost equivalent to the government’s core grant to the UNHCR of $14 million. An alternative approach to the global refugee issue must address this glaring imbalance between the vast sums spent on managing the cases of a relatively small number of asylum seekers who reach the developed world and the miserable sums spent on the international protection of refugees in countries of first asylum. United Nations High Commissioner for Refugees Ruud Lubbers argues that it would be ‘a very good investment’ if just ‘3 or 5 per cent’ of the money spent by developed nations on asylum seekers within their borders was devoted instead to ‘finding solutions in the countries of origin’.The numbers of people setting out on the dangerous and uncertain journey to the West may then be reduced. Selling such an approach to voters may prove difficult, however. Recent election results in the developed world suggest that most voters support increasingly strict border controls and a tougher approach to asylum seekers, regardless of the cost. Australia’s November 2001 election was no exception.Yet it also saw an unprecedented number of prominent figures speak out against the government’s ‘Pacific solution’. This was not a partisan intervention in the campaign. Many of the most vocal critics were prominent Liberal Party figures, including Malcolm Fraser, Fred Chaney, Ian Macphee, John Hewson and Greg Barnes. All were equally harsh in their condemnation of Labor and its ‘me too’ approach to the issue. In response, these prominent Australians were derided as members of an ‘elite’, out of touch with the thoughts and feelings of ‘ordinary’ Australians. However insulting this observation (and it was intended as an insult), to some extent it was true; at the ballot box the voters of Australia endorsed the Howard-Ruddock approach to asylum seekers. Those of us who cheered Malcolm Fraser and his co-elitists from the sidelines can rail against the way in which such a sensitive and divisive issue was used for electoral gain, we can lament the way opportunism displaced leadership and we can deplore the sensationalism of the tabloid press and talkback radio. In the end, however, we cannot dispute the result: the majority view was with Howard. Nor is it helpful to see the election result as the inevitable product of deeply entrenched racism and xenophobia.This is to admit defeat, to declare that we, the Australian people, owing to our irredeemable failings, will always get the government and the policies we deserve. I would rather view it as Malcolm Fraser does.As he said on ABC TV’s ‘Lateline’, the 2001 election campaign appealed to the worst in our natures, rather than the best. In other words, alternative policy outcomes were, and still are possible.The challenge is to craft an approach, which is at once humane and politically achievable; to develop a policy that addresses deep

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public concern about the protection of Australia’s borders but nevertheless honours our obligations under international conventions. An alternative approach would target the people-smugglers but protect the rights of their passengers. This will require imagination and a degree of daring. Above all, it will require political leadership, in order to shift the popular mindset in Australia that we are somehow ‘under attack’ and that it is up to other nations, such as Indonesia, to make all the sacrifices. < > During the campaign for the 2001 federal election Australian voters might have been forgiven for thinking that the Indonesian government could stamp out unauthorised transit through its territory if only it chose to do so, as if cracking down on people-smuggling was as easy as pressing a button in Jakarta. Neither side of politics made any substantial effort to engender public understanding of the difficulties that Indonesia might encounter along the way. As Professor Tim Lindsey, an Indonesia specialist from Melbourne University, has pointed out, it is peculiar that Australians recognise the difficulty of patrolling our own long coastline and yet fail to appreciate how much harder that task is in Indonesia — an archipelagic state of some 17,000 islands. The Indonesian navy is poorly equipped and chronically under-funded. Indonesian immigration officials lack the necessary incentives, training and equipment to detect forged travel documents and to resist corruption. On top of all this, Indonesia is struggling to cope with some 1.25 million of its own ‘internal refugees’ — citizens forced from their homes by conflicts in Ambon, Aceh, Sulawesi, and elsewhere. Amidst these many challenges the Indonesian government has embarked on an extensive but little-known program of cooperation with Australia. Australia has trained Indonesian police and provided them with new equipment such as computers and binoculars. Australia also foots the bill, via the International Organisation for Migration, for intercepted asylum seekers to be fed and housed, often in local hotels, while their applications for refugee status are assessed by the UNHCR. The program began in January 2000 and during its first eighteen months resulted in the interception of some 1500 unauthorised migrants and asylum seekers in Indonesia. Philip Ruddock has refused to reveal the exact cost of the operation but, in August 2001, he told SBS-TV’s ‘Dateline’ program that the ‘amounts could run into several millions of dollars’. He described this as a ‘relatively small and modest’ investment when compared to the cost of holding people in detention in Australia. In the 2002 federal budget the Australian government

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committed itself to spending $4 million a year to assist authorities and international organisations in transit countries to detect and intercept illegal people-movement. It can be anticipated that the bulk of this money will be spent in Indonesia, which has been a transit country for 85 per cent of unauthorised arrivals.Australia has also promised to provide Indonesia’s national police force with five new patrol boats to counter the activities of people-smugglers. Indonesia has been reluctant to indulge a further Australian suggestion that it set up a processing centre for asylum seekers and illegal immigrants on a remote island. Australia offered to fund the camp, which would have been used as a central holding-place to detain people seeking to transit through Indonesia to Australia without authorisation. According to the Indonesian Justice minister, Yusril Ihza Mahendra, Australia’s ambassador in Jakarta raised the proposal three times with the Indonesian authorities. ‘Why doesn’t Australia use one of their own islands?’, the Indonesian minister asked. ‘We already have a lot of problems in this country.’ In the politically charged period between the arrival of the Tampa on 26 August 2001 and the 10 November federal election, Australia’s program of cooperation with Indonesia all but collapsed. The Indonesian government, enraged by Australia’s ‘megaphone diplomacy’ over the Tampa affair, unilaterally suspended the bilateral program to target and disrupt people-smugglers. Bilateral relations deteriorated to such an extent that Jakarta officials would not return the phone calls of Australian diplomats. Jusuf Wanandi, an influential Indonesian academic, declared the Australian election to be ‘an ugly political campaign in which racism, xenophobia and bigotry became the main tactics’. He said that it reduced Australia’s regional and international status to that of a pariah. The Jakarta Post expressed a similar view, warning that Canberra ‘should not presume that it is Indonesia’s duty to act as Australia’s forward defence line in stemming this flow of wretched people who seek a better life in the “lucky country” down south’. The Howard government should not view Indonesia ‘as some kind of “Nauru”, which would be willing to shelter these refugees, albeit temporarily, for a certain price’. After the election was over, the Indonesian Foreign minister, Hassan Wirajuda, broke through the bilateral tensions by shifting the debate to the multilateral stage. On a visit to Australia in late November 2001, the minister staked out Jakarta’s position: further tangible progress on the intertwined issues of people-smuggling, unauthorised migration and refugees could only be achieved through international cooperation. As a result, Australia and Indonesia were able to jointly host a ministerial-level conference on ‘People Smuggling, Trafficking in Persons and Related Transnational Crime’. The meeting was held in Bali in

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February 2002 and was attended by delegations from thirty-eight countries in Asia and the Middle East. As the official conference title makes clear, the meeting focussed on preventing the unauthorised movement of people around the region. The final communiqué contained a non-binding agreement to ‘work towards’ the increased sharing of information and intelligence, and for greater cooperation between law enforcement agencies, for tighter visa systems and improved detection of document fraud.The issue of offering protection to refugees was not on the agenda and in this sense the Bali meeting was a missed opportunity. Australia could have used the conference to forge a new deal in regional cooperation on refugee protection, offering a range of initiatives that would have formed the basis of a comprehensive and cooperative approach to this complex problem. This was the lead offered by the UNHCR, which called on Australia to resettle more refugees from the region as a way of countering the business of people-smuggling. In advance of the Bali summit the UNHCR’s regional representative, Raymond Hall, said he wanted the conference to consider a plan similar to the Comprehensive Plan of Action initiated in 1989 to tackle the problem of Indochinese boat people in camps across Southeast Asia and in Hong Kong. | The key elements of the Comprehensive Plan of Action were twofold. Firstly, it aimed to negate the reasons that led people to flee on leaky boats. Secondly, it aimed to shore up the protection offered to people identified as Convention refugees at risk of persecution.To achieve the first aim, citizens of Vietnam, Cambodia and Laos who wanted to leave their homeland were offered the opportunity of legitimate migration through the so-called Orderly Departure Program. Under this program, people could apply to come to Australia, the United States, and other countries, on the basis of family ties or because of their previous association with the United States-backed government in the former Republic of South Vietnam. Such people were known to face persecution and discrimination under Vietnam’s postwar communist regime. Secondly, after 1989, all boat people languishing in camps in Hong Kong and Southeast Asia had their claims for asylum assessed under procedures approved by the UNHCR. Developed nations promised to resettle all those people identified as meeting the Convention definition of a refugee.This alleviated the concerns of first-asylum countries like Thailand and Malaysia, which feared that they would be left alone to shoulder the burden of the Indochinese boat-people for evermore. Finally, those boat people who failed to demonstrate a well-grounded fear of persecution were repatriated to their homeland. Again, the

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international community assisted with the process, providing funds for resettlement grants and for international development projects to help create work for the returnees. The process was flawed in many respects. There were questions about whether the Convention test was applied uniformly. For example, in the Philippines the system appeared to be more generous in recognising refugees than it was in Malaysia, raising fears that some Convention refugees may have been screened out. The repatriation of failed asylum seekers was initially voluntary, although it was made clear that the only alternative was continued detention. But when the numbers putting up their hands for repatriation via the UNHCR petered out, bilateral deals were done between Vietnam and other countries, such as Malaysia and Britain (Hong Kong) to allow forced returns.This was a messy and often violent process, particularly towards the end. When I worked as a correspondent in Vietnam for the ABC between 1995 and 1997, I saw plenty of evidence of problems with the resettlement program: equipment donated by the European Union for employment projects was flogged off by corrupt local officials; returnees were subjected to petty harassment and discrimination; there was sometimes a failure to provide adequate protection for unaccompanied minors. Those boat people who did return voluntarily were usually deeply disappointed that not much had changed in their absence. In the camps they had been given a much rosier impression of contemporary Vietnam than actually was the case. Nevertheless, despite serious misgivings, the Comprehensive Plan of Action was a more palatable alternative than having people spend endless years in detention camps. It was better than having refugee boats being towed back out to sea to face the perils of typhoons and pirates. The Comprehensive Plan of Action also helped to engage a previously withdrawn and isolated Vietnam with the international community. For all these reasons, the Comprehensive Plan of Action could also provide a model for dealing with the current regional problem of asylum seekers from West Asia and the Middle East. According to Chris Conybeare, the former Immigration department Secretary, there is an urgent need to address the dynamics of the issue. Rather than adopting a purely preventative approach, we must recognise the push factors that force people to leave in the first place: ‘What appears to be signally lacking in the approach taken at the present time is preparedness to offer a settlement program for the three or four areas these people are coming from, like Pakistan, Jordan and Iran. The thing that does not appear to have been canvassed at all, is essentially establishing continuity with what we have done in prior decades, like the CPA [Comprehensive Plan of Action].That is, providing a formal, legitimate means of accessing resettlement programs within the refugee camps.’

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What he suggests is to promise ‘to take a certain component of those people in the camps and deliver on that. It would need to be carefully done in consultation with other resettlement countries and countries of first asylum.’ Chris Conybeare argues that even a modest program of a few thousand people per year could dramatically reduce the appeal of what the people-smugglers have on offer. ‘You would publicise a program like this to relatives and community organisations here, but also via representatives in the Middle East.You would set up a program to test the degree of hardship, applying UNHCR standards, and to assess whether someone was likely to require asylum as a Convention refugee. Then you would have created something to compete with the people smugglers in a major way.You take the contest right into the heartland of the people smugglers and undercut their market.You give some hope, some perspective to the refugees and create a process through which they can apply for resettlement.You demonstrate that people who meet the criteria actually get on planes and go.’ Maintaining the integrity of this special offshore program would require that it be de-linked from onshore arrivals. In other words, Australia and other developed nations would honour the pledge to resettle a certain number of refugees from hot spots overseas irrespective of the fluctuations in the number of refugees who arrived on their own initiative. The predictable objection here will be that no resettlement effort could ever make a dent on the huge number of refugees or reduce the demand for the services of people-smugglers. But this is not necessarily the case.As of January 2001, the number of people around the world identified by the UNHCR as ‘people of concern’ totalled 21.8 million. Around one-third of these people were internally displaced within their own countries, around one-tenth were returnees, who had already gone back to their country of origin and whose return and reintegration was being monitored. In other words, a little more than half of the people of concern were refugees or asylum seekers outside their homeland.This reduces the pool for potential resettlement to around 12 million people. Most of those 12 million are almost certainly intent on returning to their homeland when conditions allow. Repatriation is the preferred outcome for most refugees and the policy priority for the UNHCR. For argument’s sake though, let us assume that as many as half of these refugees are actively seeking permanent resettlement. Even on this basis, the resulting pool of 6 million people seeking a new home no longer represents such an unmanageable figure. United Nations High Commissioner for Refugees Ruud Lubbers, who is a former Dutch prime minister, outlined his ‘dream for the future’ soon after his appointment as high commissioner; he suggested

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that developed nations could set an annual refugee resettlement target of 0.1 per cent of their domestic population. As he told ABC Radio National’s ‘Europeans’ program (15 April 2001), ‘this would mean 350,000 people coming into Europe on resettlement programs … it would mean 270,000 in the United States, it would mean 125,000 in Japan’. On this basis, those 6 million refugees could find new homes in the space of eight years.As Mr Lubbers noted,‘if we could talk that sort of numbers of refugees by resettlement, we would be having much less pressure on the systems in Europe and countries like the United States and Japan’. Such arithmetic is simplistic and schematic, but it nevertheless points to the potential for alternative approaches to the issue. Australia could initiate an approach similar to the one described by Ruud Lubbers, and then encourage other countries to join it, with the aim of developing a Global Action Plan for chronic refugee problems.The guiding principle would be that repatriation is preferable to resettlement and the fundamental aim must be to create conditions that enable displaced people to return home. Nevertheless, a core element of a Global Action Plan on Refugees must be the creation of new, legitimate and orderly routes to safety in developed nations, particularly in cases of prolonged displacement, where the prospects of safe return are remote. There is little doubt that such a program could prove effective. As Hakim, the Afghan refugee who spent two years in jail in Kabul, said to me: ‘Why would people pay so much money and come on a dangerous way if they believed that they had a chance to come the legal way? Everyone wants to come the legal way.’ Of course, this approach would require an increase in Australia’s overall refugee and humanitarian intake. Under the Ruud Lubbers formula, Australia’s resettlement quota would be around 20,000 refugees per year.This is roughly equivalent to the annual number resettled here under the prime ministership of Malcolm Fraser and certainly well within our capacity as a nation. If Australia were to pioneer a new Global Action Plan on refugees, then the starting point would be to enter an agreement with Indonesia. Australia, perhaps in league with New Zealand, could guarantee to resettle all those asylum seekers identified as Convention refugees by the UNHCR in Jakarta. This is a matter of self-interest rather than altruism because, in the absence of such a policy, there is a strong incentive for asylum seekers and refugees to risk the boat journey on to Australia. A fundamental motivation for them is the realisation that the UNHCR in Jakarta has nothing to offer them. Certainly, they may be recognised as refugees under the 1951 Convention but, after that, they are left in limbo because the UNHCR cannot find third countries that are willing to resettle them; remaining in Indonesia is not an option

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either. Between January 1999 and August 2001 UNHCR Jakarta identified a total of 476 Afghans, Iraqis and Iranians as refugees in Indonesia but only eighteen refugees actually departed for resettlement in a third country. In 2001 Australia agreed to resettle just two refugees identified in Indonesia: a child whose father was already in Australia and a girl survivor of the SIEV X disaster. If Australia promised to resettle refugees identified in Indonesia, this would give asylum seekers the incentive to seek out UNHCR assistance at an earlier point in their journey. It would undermine the attraction of the people-smugglers and, as the SIEV X disaster shows, it could save hundreds of lives. Over time, such a policy may require Australia to resettle several thousand, mostly Middle Eastern refugees from Indonesia. Bringing those people to Australia in an orderly manner, after completing the appropriate character and health checks, is surely preferable to having the smugglers land them here in a totally unregulated fashion and tying up customs and naval craft in expensive transfers from Christmas Island and Ashmore Reef. Resettling greater numbers of refugees is a cheaper, and more palatable option than operating detention centres in remote Australia or on isolated Pacific islands. The problem inherent in such an approach is that it can generate its own pull factor, encouraging people to move to Indonesia from countries of first asylum (such as Iran or Jordan) in the hope of accelerating their ultimate resettlement. It is therefore imperative that, as with the Comprehensive Plan of Action on Indochinese refugees, the movement is not all one way. Australia would assist Indonesia to remove from its shores those people who were rejected by UNHCR Jakarta as nonrefugees.As part of this process, Indonesia would agree to take back any rejected asylum seekers who did travel on to Australia by boat. These ‘failed’ asylum seekers would be excluded from Australia’s onshore refugee-determination procedures to prevent ‘forum shopping’. The policy of accepting all refugees identified by UNHCR in Jakarta could also be subject to a time-limit — a period of, say, three or five years, during which Australia would assist Indonesia to upgrade its own border security and its laws on people-smuggling.This would give Jakarta an incentive to seriously address the issue of unauthorised transit through Indonesian territory. Increasing the opportunities for direct resettlement from countries of first asylum would also help to reduce the pull factor created by a bilateral refugee deal with Indonesia. A new Global Action Plan on refugees would also recognise the huge burden placed on countries of first asylum like Pakistan and Iran and would massively increase assistance to those frontline states. Unless conditions in countries of first asylum improve, then displaced people will continue to seek more

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durable solutions elsewhere. After the United States-led international intervention in Afghanistan in 2001, the Howard government committed an extra $40 million to support the work of UNHCR and other relief agencies in Pakistan and Afghanistan.This is a substantial sum, but it is less than the amount Australia spent to set up and run a single detention centre housing a few hundred asylum seekers in Papua New Guinea. In addition to targeted resettlement programs in crisis areas,Australia and other developed nations need to consider the option of increased migration generally.All developed countries face the problem of falling birthrates and aging societies. Refugees and migrants offer an obvious source of rejuvenation. In 1998–99 Australia accepted 80,000 migrants, including 12,000 entrants under the refugee and humanitarian program. Compare this to the 185,000 migrants accepted in 1969–70, the highest number in any year since World War II.Australia’s 80,000 intake in 1998–99 can be compared to the 55,000 people who migrated to New Zealand, which has a population of less than 4 million (as against Australia’s 19 million). In the same year the United States of America accepted 800,000 migrants and Canada accepted 200,000. While the barriers to legal migration remain so pervasive, people will continue to come by illicit means and, to paraphrase Mr Ruddock again, some will seek to exploit the Convention to achieve ‘a migration outcome’. If there was a meaningful prospect of lawful entry, the people-smugglers would then find it harder to drum up business. < > The development of a Global Action Plan on refugees should reduce the number of asylum seekers seeking to travel to Australia without authorisation, whether by plane or by boat. No solution will be perfect, however, and some refugees and some non-refugees will continue to arrive on our shores uninvited. Their presence is unsettling, because it reminds us that Australia is not shielded from the world’s upheavals.We cannot ignore the issues of poverty, war, environmental degradation and persecution just because they happen overseas and, seemingly, do not occur within our own apparently ordered and prosperous land.Asylum seekers prick the bubble of our deceit. They remind us that this is a small world, after all. How do we respond when our comfort is disturbed in this way? Do we shoot the messenger? Punish the supplicant? In an individual submission to the 1999 Senate Committee inquiry into the operation of Australia’s humanitarian and refugee program, Mrs Brenda Macintyre (a private citizen) concluded that ‘Australia has reached the stage where compassion has become a vice’. Mrs

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Macintyre may not represent the majority opinion, though it does seem that generosity is now generally regarded as a weakness, as a kind of moral failing. The minister for Immigration, Philip Ruddock, can sleep comfortably at night, knowing that his tough policies enjoy widespread support in the community. In crude terms, the current harsh regime represents the will of the people; the laws that support it were passed by parliament, and have been upheld by the courts. The arithmetic of the Australian electoral system has produced an outcome which affronts human dignity and international norms. In order to live more easily with the policy, we hide from its effects. We deny the self-evident abuse involved in locking people up for indefinite periods, even when we know that there are children and survivors of torture amongst those detained. We assuage our collective conscience with the thought that the asylum seekers may be criminals or terrorists-in-waiting. We can do better than this. The question is whether we will. The Immigration minister has presented the electorate with an allor-nothing choice. Thoughtful critics who suggest alternatives to the government’s harsh approach are branded ‘extraordinarily naive’, even when they come from the conservative side of politics. Demonstrators who call for an end to mandatory detention are accused of a hidden agenda. ‘They essentially believe that we could have no borders,’ Mr Ruddock said of protesters in June 2001. The minister’s unequivocal message is that, if we were to ease our current restrictions and controls on asylum seekers in any way, then we would be forced to abandon sovereignty altogether and relinquish any effort to control who enters the country. But these two extremes are not the only alternatives.There is a range of policy options in between. Surely, as a nation, it is not beyond us to find a response to the unauthorised arrival of asylum seekers on our shores that is compassionate without being weak? The first step would be to wind up the ‘Pacific solution’ and to process asylum seekers who arrive in Australia under Australian law. The excision of certain parts of Australia from the Migration Act would be revoked. It is odious to seek to avoid our national obligations under international law through such elaborate and contrived measures. The next question is what to do with asylum seekers once they are inside Australia’s borders. This need not be construed as a stark choice between the current system of mandatory detention or its total abolition. Current policy, which requires people to be detained until the assessment of their asylum claims is complete, is inhumane and unnecessarily expensive.An appropriate alternative would be a graduated system of detention, varying from high-security facilities at one end of the spectrum to the release of asylum seekers into the community under their own recognisance at the other.

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In an opinion piece for the Australian (22 December 2000), Mr Ruddock defended Australia’s detention policy by making comparisons with Britain and Canada, where asylum seekers are not routinely detained. In Britain, he said,‘it is believed that tens of thousands of asylum seekers have disappeared into the community’, including, ‘19,000 applicants [who] vanished’ in 1998 alone. He warned that in Canada 500 refugee claimants with tuberculosis were living in the community and ‘refusing treatment for their condition, posing significant public health challenges’. Mr Ruddock then posed a question, one which he said was ‘comfortably overlooked’ by critics of Australia’s detention policy: ‘ … given the enormous difficulties faced by nations lacking formal detention arrangements, which system operates with greater efficacy and fairness while dealing appropriately with crucial border integrity issues? The answer — unequivocally — is Australia’s system.’ | What if the limited ‘either/or’ menu offered to us by the minister were expanded? What if another system was included for comparison, too — a system like that in Sweden, in which detention is used, but sparingly, and with compassion; a system designed to ensure both the integrity of the border and the protection of refugees? Sweden can be usefully compared to Australia because the two countries receive roughly the same number of asylum seekers every year and, in both cases, people from the Middle East make up the largest group of asylum seekers (out of 11,231 asylum applications lodged in Sweden in 1999, almost one-third were lodged by Iraqis). Like Australia, Sweden is determined that ‘failed’ asylum-seekers will be removed from its territory, and not allowed to linger in the shadows of illegality. However, it could be said that the asylum-seeker ‘problem’ in Sweden is more serious than in Australia.With a population of only 8 million, Sweden has a much higher number, per capita, of asylum seekers. In addition, 70 per cent of the people who claim refugee status in Sweden arrive in the country either with no travel documents or with documents that are forged, a far higher proportion than is the case in Australia. In the past Sweden has also had to deal with a mass influx of asylum-seekers on a scale never witnessed in Australia. In the early 1990s, as a result of the Bosnian war, Sweden received up to 80,000 asylum seekers annually, and people were accommodated in high schools and hotels. Given these similarities and these differences, one might logically hypothesise that Sweden might have developed a system that was similar to the Australian system — or even harsher than it, perhaps. It might have developed a system that uses detention as deterrence, had

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the desire to control the border been seen as more important in shaping policy than its obligation to protect refugees and asylum seekers. In fact, the reverse is true. Over the three years from 1997 to 2000, immigration-detention policies in Australia and Sweden went in almost opposite directions. As Australia was privatising its detention centres, Sweden was going public, putting immigration detention in the hands of civil servants. Before then, detention centres in Sweden had been run by the police and sub-contracted to private security firms.Anna Wessel, the bureaucrat who was put in charge of detention for the Swedish Migration Board in October 1997, explains that the government made the change because it wanted to ‘civilianise’ the process. The government’s intention was that ‘the treatment of the detainees should also reflect the fact that they were not criminals so that we could not enforce limitations on their civil rights more than was necessary to obtain the purpose of detention. Apart from the fact that they cannot leave the premises, they are entitled to the same rights as any other person would be … which means we have to guarantee that they can have contact with the outside world, they have freedom of information.’ The Swedish government opened up the detention centres to nongovernment organisations, granting their representatives almost unlimited access.‘Of course, they cannot open the door and let the detainees out,’ Ms Wessel explains, ‘but, other than that, they’re free to come any time they want and they can move freely within the detention centre.’ Representatives from non-government groups are free to talk to the media, too, about what they find in detention centres, but, in any case, journalists can visit at any time and make their own reports. ‘We have implemented a very open policy towards the media,’ says Anna Wessel. ‘So they are also free to interview whoever wants to be interviewed — that’s important to remember.That’s the restriction we make.The decision on who is to be interviewed or not is not made by the Swedish Migration Board, it’s made by the detainee — him or herself.’ I was given Anna Wessel’s phone number by Grant Mitchell, a young Australian who spent 1999 working in Sweden’s largest detention centre, Carlslund, where he was employed by the Swedish Migration Board as an asylum-seeker case-worker.‘My main job was to ensure that they [the asylum seekers] were aware of all their rights while in detention and that their rights were maintained … to ensure their time in the detention centre was as humane as possible, and that their needs were met, and all of those kind of things.’ Fundamental to Grant Mitchell’s job was fully informing immigration detainees of their legal rights, including the right of each new detainee to apply to stay in Sweden as a refugee, regardless of whether or not the detainee had raised the issue. ‘It could be problematic at times for those who you knew did not have

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a chance at all,’ he says, ‘but it is their legal right and we were obliged under Swedish law to explain to them their rights to seek asylum.’ Grant Mitchell and his colleagues were each assigned personal responsibility for certain individual detainees and were rostered on shifts, so that a case-worker would always be available twenty-four hours a day. He says that he never felt any animosity from the detainees and that the relationship between clients and staff in the detention centre was usually very open and respectful.The case-workers (and all staff working with refugees for the Swedish Migration Board) were trained in the prevention of conflict and violence to help them minimise any disturbances that might be created by detainees who were depressed, agitated or suicidal.There were debriefing sessions after every shift and weekly meetings with workshops and role-playing to work through any traumatic incidents that had taken place. Grant Mitchell says the aim was to anticipate trouble and to forestall it through appropriate action — for example, by providing counselling to a disturbed detainee, by applying for permission for a troubled individual to be taken for a walk outside the confines of the detention centre, or by allowing them to make a brief international phone call. ‘[If] we felt a client really wasn’t coping, or a client was needing to have contact with friends or family, including family in the home country, we could actually let them make … brief calls, to their home countries.’These calls were paid for by the Swedish Migration Board.‘These people are seeking asylum, it is their international right to do that and they are being detained,’ says Grant Mitchell. ‘I think the Swedish government understood that it is the role of the state to make it as humane as possible and there was never any question of the expense to the taxpayer against making the life of someone who has been through a traumatic experience as easy as possible.’ Asylum seekers detained in Sweden have access to pay-phones and receive a small weekly allowance with which they can buy phonecards. They are allowed to keep and use personal mobile phones in detention, and they have access to email and the internet, which they may use to gather information — such as reports on recent events in their homeland — that will assist their application for asylum. While mindful of security issues, case-workers like Grant Mitchell do not have specific guard duties, nor do they make the decisions that will determine whether or not an applicant is accepted as a refugee. However, the case-workers do help their clients to keep track of their asylum cases, so that at any given time a detainee knows exactly what is happening with his or her application. Grant Mitchell stresses that by far the greatest difference between the Australian and Swedish systems is the number of people in detention. In fact, Sweden’s four detention centres can only accommodate

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120 people in total. (In Australia Woomera alone was constructed to hold 2000.) Although new arrivals are also routinely detained in Sweden, most are released again within a very short time and allowed to live in the community. The Swedish Aliens Act allows detention on three grounds.The first is for the purpose of identification, particularly if a person cannot show valid travel documents. The second reason asylum seekers may be detained is if there is a risk that they might drop out of the refugeedetermination process and ‘disappear’ into the community. The third reason for detention is when there is probable cause to believe that the decision that will be taken on a particular application will be a negative one, or if a negative decision has already been taken and there is a risk that the person might abscond, or when coercive measures may be necessary to enforce the decision to remove a person from Sweden. Anna Wessel from the Swedish Migration Board points out that, while a lot of people might fall under the provisions for detention within the framework of the law, detention is used only when it is assessed that other measures would not be effective.To prevent asylum seekers from disappearing into the community after their release, measures are used such as requiring them to report to the authorities two or three times per week. Of course, a few do abscond, nonetheless.‘It is something we work with,’ Anna Wessel says. If it is assessed that an asylum-seeker’s application will take more than four months to determine, as most do, then the applicant is entitled to work. All asylum seekers are offered housing, but if they have enough money to provide for themselves, they must pay for it. Alternatively, asylum seekers can arrange their own accommodation. Children are never detained in Sweden beyond the briefest possible period, because Swedish law bans the detention of children for more than six days. If it is deemed impossible to release an entire family, then one parent, usually the mother, lives with the children outside detention, while the other parent remains incarcerated.The ‘free’ parent and children are accommodated close to the detention centre so that they can easily visit the detained parent. In late 2000, in the first sign of any softening of Australia’s detention regime, the federal government agreed to trial this practice at Woomera. By April 2002, a total of twenty-nine women and fifty-eight children had taken part in the trial, under which they were accommodated in Woomera township while their husbands remained in the detention centre. The women and children lived in ‘a cluster of four, three-bedroom houses … which formerly housed Defence families’. One house was designated as a community house and was used for group activities and for receiving visitors. Outside visitors could not just drop in, however — they were required to contact the detention

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centre ‘well in advance’ to arrange a visit. The families managed the day-to-day running of the households, including cooking and cleaning and, according to DIMIA, there were ‘regular opportunities to participate in off-site excursions and other activities organised jointly with ACM’. Participation in the project was limited to a maximum of twentyfive women and children at any one time, and it was only open to women with ‘an application for protection under consideration’. In other words, it was closed to those whose application for refugee status had already been rejected. Male children over the age of twelve could not take part in the trial. (‘For cultural and practical reasons,’ according to DIMIA, ‘males over 12 years could not be appropriately accommodated in the Project.’) Volunteers who wanted to join the project had to be approved ‘as posing no character or management risks’. Even with this careful vetting of participants, DIMIA was taking no risks and the resulting program was more like a system of house arrest than release into the community. In DIMIA’s words, ‘[a]s the women and children are still formally in detention they are not able to freely come and go …’. During her time working at Woomera in 2002, psychologist Lyn Bender was providing counselling services to one of the women taking part in the trial. ‘It was a great improvement to being in the centre,’ she admits.‘The centre was so depriving, that just the fact that they were in what looked a normal house, with a garden and they had rooms, was wonderful. But they were still locked down.They could not go anywhere without the officers.’ Even trips to the local supermarket were conducted under guard, giving the local residents the impression that the women needed to be restrained, as well as foreclosing any likelihood of positive interaction with the local community. A key element of the Swedish practice is that the women and children can easily visit the father who remains in detention; in theory this was true in Woomera, too. According to DIMIA ‘the Department, through ACM, makes arrangements for them to visit friends and relatives at the IRPC everyday if requested’. According to Lyn Bender, however, a return trip to the detention centre was a relatively complicated affair, which the women had to arrange in advance with the officers who were supervising them.‘Everything is very difficult,’ she says, ‘even the most reasonable requests.’ Lyn Bender found that the trial could have a detrimental impact on the fathers who remained in detention. ‘One woman who I saw was very depressed because she felt her partner was missing her and their ten-year-old son but she felt she could not come back because the environment was so bad for her son,’ she says.‘I’d actually been with her husband some time that day when he had attempted to hang himself.’

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On learning this, the woman decided to move back to the detention centre. Lyn Bender describes it as a Catch-22 situation.‘You could join the trial but that meant your child did not have his father.The fathers tried to be noble about it but they got terribly depressed and that put pressure on the women.’ The Woomera trial was implemented in response to a suggestion by Grant Mitchell, who, after returning from Sweden, took on a job as coordinator of the Asylum Seeker Project with the Hotham Mission of the Uniting Church. Despite a decision to expand the trial, he believes a much more fundamental rethinking of the Australia’s detention regime is needed. As part of the Melbourne-based alliance, Justice for Asylum Seekers (JAS), Grant Mitchell has been central to the development of a detailed blueprint for a comprehensive ‘Reception and Transitional Processing System’ for onshore asylum-seekers, which outlines how an alternative system of graduated detention might work. Under the JAS model, detention on arrival would be maintained for all asylum seekers who enter Australian territory without a valid visa for such time as is necessary to carry out health, identity and background checks. Continued detention would be authorised in cases where asylum seekers refuse to cooperate with the authorities, where serious doubts arise about a person’s true identity, or where an asylum seeker is identified as posing a risk to society. ‘Failed’ asylum seekers may be returned to detention pending removal from Australia if there was reason to believe that they would abscond. Detention in these cases would be subject to judicial and administrative review. Generally, however, after completing the appropriate health and security clearances, asylum seekers would be given bridging visas and moved out of detention under a structured release program. Under the JAS model this would involve a range of different scenarios according to the circumstances for a particular family or individual. One option would be an open hostel arrangement, similar in some ways to the safe-haven camps set up for refugees from East Timor and Kosovo. In this way, asylum seekers could move freely into the community to seek work or engage in other forms of meaningful activity, but they would still live in a monitored and supervised setting. It may be appropriate to have a curfew, requiring asylum seekers to return to the hostel by a certain time each evening. This kind of accommodation might also be made available to asylum seekers who currently live in the community, often with no means of support. The next option, perhaps more appropriate to families or single women, would be for asylum seekers to be released into the care of a community organisation, which would assist them to find housing and other basic necessities. Finally, some asylum seekers would simply be released into the community on their own undertaking. Under either of these two scenarios, the asylum seekers would be

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required to live at a designated address and to report at regular intervals to a DIMIA office. In all cases, the asylum seekers would be required to sign a written undertaking that they would abide by the conditions of their bridging visas; if the conditions of release were breached, then they may be returned to detention. A fundamental component of the JAS model is that all children and their primary carers would be released from detention as quickly as possible. Sweden, unlike Australia, has a fall-back visa category for those asylum applicants who fail to meet the Convention definition of a refugee but would nonetheless be at risk in their homeland — for people who are seen as ‘in special need of protection’. In fact, far more people are granted residency in Sweden under this visa category than are granted residency as Convention refugees. Sweden also maintains a degree of tolerance towards non-refugees who, because they have nowhere else to go, cannot be removed from the country.Anna Wessel says such people are usually ‘stateless persons who come from countries like Kuwait and Saudi Arabia’. Most are Palestinians.The Swedish Migration Board works with these people and with diplomatic representatives from the countries involved ‘in order to try to return them to where they came from’. However, these people are rarely detained. According to Anna Wessel, ‘it would be inhumane to keep people detained for long periods of time if they can not be returned to their country of origin within a reasonable time because they are not accepted by that country’s authority’. Nevertheless, most asylum seekers in Sweden have their applications for refugee status (or special protection) rejected and are required to leave Swedish territory.‘We are fairly unique in that we do enforce our decisions more than other countries do,’ says Anna Wessel. ‘In Europe one of the problems is that a lot of negative decisions are taken on applications for asylum but very few are enforced and, of course, lots of people then remain illegally in Europe, but in Sweden we enforce as many as 80 per cent of the negative decisions taken.’At this point in the process ‘failed’ asylum seekers may be detained for a second time prior to being expelled. In this situation, says Grant Mitchell, case-workers again play a key role, preparing the detainees for removal from the country through motivational counselling. ‘We were given a lot of training about how to cope with, and how to help the client to cope with negative decisions of having to return to their country,’ he says. In April 2000 Grant Mitchell’s former boss, Anna Wessel, changed jobs. After two-and-a-half years in charge of detention for the Swedish Migration Board, she became head of the unit that ensures orders to expel failed asylum-seekers from the country are actually carried out. Anna Wessel says Swedish authorities rarely have to resort to coercion when removing failed asylum-seekers from Swedish

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territory, and she attributes this to the role of the case-workers and their close personal contact with detainees. A detainee has the same case-manager throughout the process, throughout the time of detention, and so detainees ‘have a knowledge of their case, of their situation, and also [the case-managers] serve as a link ensuring that they have contact with their legal assistance and they are well informed in their case,’ Ms Wessel explains. She feels that the case-managers ‘have been the reason that we have been so successful in convincing the detainees to cooperate once they have to go back to their country … Before the Migration Board took over responsibility for detention it was not unusual that you needed to use a lot of coercive measures to enforce a negative decision, to enforce an expulsion order, but these days that is extremely rare.’ I put it to Ms Wessel that, because of the system Sweden has implemented, because of the contact with case-officers, detainees or asylum seekers whose cases are rejected at least have a sense that they have been given a fair hearing.‘I’m not so sure that at that time they feel that they have been given a fair hearing,’ she answers, ‘but they are treated with respect for person.They can maintain their dignity and they respond to that.That is important.’ Compare this to the process in Australia’s detention centres, as described by psychologist Lyn Bender, who witnessed a young Afghan asylum-seeker at Woomera being told that his applications for refugee status had failed. Lyn Bender was with the man by chance; she had gone looking for him because his migration agent had expressed concern that he was potentially suicidal. She found him amongst a group of detainees who had been called to come and receive their ‘results’. They were waiting on the veranda of a ‘prefab’ building outside a row of cubicle-like rooms. The rooms were fully enclosed, with no windows and were just big enough to fit a small table and four chairs. Lyn Bender entered the room to find a young man from the Immigration department looking very nervous.‘You could tell he was going to give bad news,’ she says.The DIMIA man began a long-winded spiel. ‘Well I’m here to inform you your application …’. Eventually he reached the point and uttered the words ‘has not been accepted’. When the interpreter relayed this part of the message, the young Afghan ‘completely crumbled’ and started to weep. ‘He was already very vulnerable,’ says Lyn Bender.‘He looked quite ill. He was very thin, very pale.You could see his vulnerability a mile away and he just started weeping as though he’d been given a death sentence.’Amidst the Afghan man’s distress, the DIMIA official began a bland explanation of his appeal rights before the Refugee Review Tribunal, and the strict one-week time-limit within which he must submit his application. Lyn Bender says the applicant was hardly in a fit state of mind to absorb such information.

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‘He was so distraught, he would never have heard that.’Then a woman outside on the veranda started wailing loudly.The Immigration department official became agitated and insisted that the Afghan man leave his office.‘He’s got to leave! He’s got to leave!’ he said.‘He’s setting her off! She’s heard him. I’ve got to give her some news now.’Two detention-centre officers came in and prepared to forcibly remove the Afghan from the office. Lyn Bender intervened. She managed to calm the man down and escort him outside. From what she could see little effort was made to deliver such news with sensitivity.There was no provision for counselling to assist the man to cope with the rejection message that he had received. Delivering such news will never be an easy task but at least under a case-worker system there would have been some prior level of trust and familiarity built up with the applicant. The case-worker would have prepared the applicant for the potential of rejection and would be in a position to provide appropriate advice on what options now remained open to them. The Justice for Asylum Seekers alliance has proposed the introduction of a case-worker system in Australia as part of its alternative detention model. JAS suggests that an independent organisation such as the Australian Red Cross provide ‘information, referral and welfare support services to people claiming asylum, from the time of their arrival to the point of repatriation or settlement in the community’.The aim is to ensure that asylum seekers understand what is happening with their application, its progress and the likely outcomes, to ‘allow individuals a degree of control in making decisions about their future and over their own lives’. According to JAS such a system would ‘lessen the likelihood of psychological damage being caused by detention’ and result in ‘more effective and humane returns’ in cases where an application for asylum fails. The proposal for a case-worker system has won backing from the conservative Institute of Public Affairs. In a monograph generally supportive of the government’s tough approach to asylum seekers, Tess Rod and Ron Brunton recommend that Australia should consider introducing such a scheme ‘to help overcome the impersonal nature of the process, improve morale, and reduce disturbances in detention centres’.They argue that the increased costs ‘would probably be offset by a reduction in expenses flowing from trauma, violence and destruction of property’. The Institute of Public Affairs researchers reject the idea of community release for asylum seekers based on the Swedish model, however; they argue that it is Sweden’s national identity-card system that makes ‘a less stringent detention system’ possible. According to Tess Rod and Ron Brunton, the lack of such a system in Australia renders attempts to track down overstayers ‘costly, difficult and not entirely successful’.

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They maintain that asylum seekers who were released into the community would be just as difficult to locate. Anna Wessel from the Swedish Migration Board sees the situation rather differently. She says that the identity card ‘does not in itself help track down people’. Rather it is the asylum seekers’ eligibility ‘for welfare and healthcare if they have a known address and cooperate in their return’ that provides the incentive not to abscond. Ms Wessel would not comment directly on Australia’s detention policies. She did, however, respond to a concern often voiced here — that if a system for dealing with asylum seekers is regarded as generous, then a country risks being seen as ‘a soft touch’ and will be targeted by people-smugglers. She acknowledged that Sweden is now targeted by people-smugglers, just as the whole of western Europe is, but asserts that ‘for us at least, I don’t think it has so much to do with whether we are hard or soft … most of these people do not have a right to asylum in accordance with the Geneva Convention, they are people trying to improve their life situation and there is no reason for us to judge that; it’s just for us to assess whether they fit within the framework of the Swedish Migration Policy or not, and we will be targeted by smugglers whether we are hard or soft, that’s my assessment, for us.’ Anna Wessel readily admits that the Swedish system is expensive. But so is the Australian system. Locating the detention centres in remote areas adds to the financial burden on the Commonwealth by making it more expensive to provide associated services to the detainees, such as legal advice.As the authors of the JAS proposal for an alternative model point out, Australia already has a community-based system for dealing with asylum seekers — it is the system used to handle the majority of applicants who arrive in the country with a valid visitor visa. In 2000–2001 there were 2691 asylum seekers in the community claiming support through ASAS, the Asylum Seekers Assistance Scheme administered by the Australian Red Cross, at a total annual cost to the taxpayer of around $11 million. It costs more than this to detain the same number of people for just five weeks. A program of graduated release into the community, after initial health and security checks, and the introduction of a case-worker system, as recommended by JAS, could bring significant savings.And even if it was cost-neutral, it would surely be a more rational and humane use of resources. Of course, there would be a higher risk of people absconding — that cannot be denied. But does that risk outweigh the cost of our current arrangements? No system for dealing with onshore asylum-seekers will be perfect. As Anna Wessel says, ‘as long as you have regulated migration, there are always going to be difficult borderline decisions to be taken, that can always be questioned …’. The process of identifying Convention refugees is necessarily painstaking and expensive; remov-

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ing those people who fail to meet the definition of a refugee will always prove painful and traumatic. Facilitating the removal of non-refugees from Australia requires return agreements with the countries from which people flee.The aim must be to return ‘failed’ asylum seekers promptly and humanely, rather than the current practice of extended and sometimes indefinite detention.To be fair, the minister has been seeking to establish return agreements with countries in the Middle East, but he would probably have more success if Australia were seen to be leading the way on international refugee protection. Currently, we offer a negative example to the world. As Pakistan’s president argued in September 2001, if rich Australia refuses to let in a few hundred asylum seekers rescued by the Tampa, then why should his impoverished and stressed nation open its borders to thousands of Afghans fleeing the ‘war on terror’? While seeking to forge return agreements, we must also recognise that conditions in a source country may be so deplorable that no person can reasonably be returned there. To address this issue Australia needs a new visa category, as suggested in chapter 7, for people who do not fit the definition of a refugee under the 1951 Convention but cannot, in good conscience, be returned to their homeland. Personal intervention by the minister under s417 of the Migration Act is not an adequate safeguard. The final step in the revamping of Australia’s refugee-determination system would be a return to the previous practice of granting permanent residence to those people identified as refugees under the 1951 Convention, and allowing them to sponsor immediate family members to join them in Australia. The current policy of temporary protection visas is punitive and socially destructive. It tears at family bonds that are fundamental to social and psychological wellbeing. It is also a failed policy in its own terms. Rather than deter people-smuggling, the temporary visa system acts as an enticement to enter the country without authorisation, because it prevents desperate people from applying for family reunion through legal channels. < > In the wake of the Tampa there has been an unprecedented level of public action on the issue of asylum seekers and refugees.Thousands of Australians have written to columnist and broadcaster Phillip Adams to sign up for a ‘civil disobedience register’, expressing their willingness to break the law and provide sanctuary to asylum seekers who escape from detention. Malcolm Fraser and his co-elitists,Adams among them, have founded a national organisation called Australians for Just Refugee Programs, which a diverse range of luminaries has joined — including

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sporting heroes John Newcombe and Greg Chappell, the larrikin advertising guru John Singleton, the chancellor of the University of New South Wales, John Yu, and the former ALP president, Barry Jones. Local groups have sprung up in more than thirty country towns around Australia, holding public meetings and forming themselves into a loose network called Rural Australians for Refugees. Solicitors and barristers working pro bono have launched an array of legal challenges to the government’s detention regime and the ‘Pacific solution’, and offered free legal advice to detainees. Activists have blockaded DIMIA offices and organised bus tours to the remote detention centres. They have camped outside the wire to express their support for those inside and on occasion even assisted with escapes.The opposition to current policy cuts across party lines and involves people from a wide range of social groups and ethnic backgrounds.Volunteers have organised soccer teams for young refugees on temporary protection visas. Bosses have campaigned publicly for their Afghan employees on temporary protection visas to be allowed to stay in Australia. Professional bodies — including an alliance of all the major medical associations — have called for a change in government policy. Hundreds of concerned individuals have begun making regular visits to detention centres or corresponding with detainees. Despite this remarkable level of activity — which Phillip Adams has compared to the anti-Vietnam war movement — opposition to current policy remains a minority position and there are few signs that Australia’s approach to asylum seekers and refugees will be re-cast in the short or medium term. Change can only come through legislation, which requires the support of a major political party. As architects of the ‘Pacific solution’ the Coalition parties are not about to change tack; hope for the future thus rests with the Labor Party, should it manage to win office in future. After the 2001 federal election, Con Sciacca was replaced as shadow Immigration minister by Julia Gillard, a Labor lawyer from the Socialist Left faction in Victoria. In an effort to develop a new policy she initiated a process of consultation within the party, which she describes as ‘a healing process as much as an information- and ideas-gathering process’. Ms Gillard says ‘lots of Labor supporters and Labor members were deeply unhappy about where the Labor Party ended up on these issues at the last election’. That view was confirmed by party elders Neville Wran and Bob Hawke. When they conducted a review of the party’s political structures, the issue raised most frequently by party members was policy on refugees. Julia Gillard’s objective is to pin down a policy behind which the party can unite. It is a big ask.The message from active rank and file members is that they want to see a radical change of direction. Party conferences in

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Victoria, New South Wales, and Queensland have called for an end to mandatory detention, as has the National Labor Women’s conference. The push for change has the support of senior party figures — such as Carmen Lawrence, the Aboriginal affairs spokeswoman, and Duncan Kerr, a former Justice minister — but is strongly opposed by other powerbrokers in the party, including the New South Wales premier, Bob Carr, and the federal Labor frontbencher, Mark Latham. When I spoke to Julia Gillard in her office in Werribee, on the western outskirts of Melbourne, she was acutely aware of the dynamics of the issue in her own electorate of Lalor. She describes Werribee itself as ‘an urban growth corridor … an old country town which has been joined to Melbourne’; it attracts ‘the sons and daughters of the inner west’, who move out in search of a better life. It is populated by young home-buyers, for whom ‘it can all go terribly wrong’ if the husband’s overtime gets cut or if the wife loses her part-time job.‘You know people do struggle here … and it is easy, when you are under that kind of pressure to think any more for someone else necessarily means less for me,’ says Ms Gillard.‘I think the asylum-seeker debate fits in with that.’ She says most people have accepted the ‘boat people are queuejumpers’ argument, which offends their sense of fairness, and there are also ‘profound security issues in peoples’ minds’ post-September 11. Lalor also takes in the industrial suburb of Sunshine, a much more multicultural community than the ‘more Anglo-Saxon’ Werribee, but not one that is necessarily any more sympathetic to asylum seekers. Julia Gillard says the ‘queue-jumper’ image once again predominates.There is ‘an equivalence in peoples’ minds between their inability to get their aged mother to Australia and the asylum seekers taking places,’ she says. ‘And you know, we can stand back and analyse all of that and say that’s not right, that’s not right, that’s not right, but I can understand intuitively, instinctively, why people believe a whole lot of those things.’ She believes that the asylum seeker issue has become a ‘vent’ through which voters express their discontent about a range of other issues. Ms Gillard admits that Labor was caught out by the Tampa affair, because it had failed to develop a clear ‘Labor brand’ around issues about population, immigration and asylum seekers.‘So when the crisis hit … we had very little political room to manoeuvre, you know, very little political space left to us.’ She says the party should have been more vigorous earlier, anticipating the way in which the government would exploit the asylum-seeker issue for political advantage. ‘Race was increasingly a feature of Australian politics, we knew that from Pauline Hanson on,’ she says. ‘Race and asylum-seeker questions have increasingly been a feature of the politics of western European democracies and it was there, it was there to be used and it was used, and it was being used even prior to the Tampa. The Tampa just accelerated and

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mushroomed its effectiveness in a way that you could not have seen beforehand.’ Nevertheless, the shadow Immigration minister makes no apologies for Labor’s past policies nor for its support for the government over the Tampa. ‘I don’t think that Labor had any choice but to do what it did at that stage,’ she says. Ms Gillard is ‘not in the school that is now engaging in a round of hand-wringing’. After all, she says, Labor is the party that introduced mandatory detention. ‘And I don’t repudiate that history, I don’t look back to 1992 and say, “Gee, all of that was wrong”.’ Ironically, the Labor Party stands to gain from the success of the government’s post-Tampa policies. Despite its shortcomings, despite the huge financial cost, despite the diplomatic damage, despite the uncertainty and distress experienced by the asylum seekers themselves, the ‘Pacific solution’ nevertheless looks like succeeding, in its own narrow terms.There are many unanswered questions: what will happen to the refugees in Nauru or Papua New Guinea who cannot find a resettlement place? what will happen to the non-refugees, who nevertheless cannot be sent back to their homeland? — will they, like many ‘failed’ asylum seekers in Australia, simply languish indefinitely behind razor wire because they cannot be sent anywhere else? Nevertheless, the narrow aim of the policy — preventing the arrival of asylum seekers on Australia’s shores — appears to have been met. Since the Tampa, no asylum seeker arriving by boat has managed to access Australia’s refugee-determination system; between December 2001 and August 2002 no boats were detected seeking to enter Australian waters. Four alleged smuggling syndicate bosses have been detained and intelligence reports suggest the number of people arriving in Indonesia en route to Australia has dropped dramatically. The SIEV X tragedy has no doubt discouraged some asylum seekers in Indonesia from risking the onward journey to Australia.The changes in Afghanistan have also helped. With the demise of the Taliban, Afghan refugees in Pakistan and Iran have begun returning home in huge numbers and fresh outflows of refugees from Afghanistan itself have been halted, at least for now.There are still plenty of refugees from Iraq or Iran, Kurds and Palestinians and others, who are seeking a durable solution to their plight, but for the time being they have been effectively deflected or diverted from Australia. Smugglers will probably offer them passage to Canada, or the United States, or a European destination, instead. In the future new operators will emerge and seek to rebuild the syndicates in Indonesia or open new routes to Australia from the region. This will take time, however, and for now the government’s success is also a plus for Labor. For as long as the tough post-Tampa policies keep working, the boat people are removed from the domestic political

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equation, and Labor can seek to shift debate onto ground of its choosing. According to Julia Gillard, ‘the Labor brand’ at the next election will not be based around asylum-seeker issues but around ‘jobs and health and education and roads and the environment and all those sorts of questions which legitimately it ought to be’. It could actually be in the interests of the Howard government to see a minor resurgence in people-smuggling, so it can once again beat the drum of border protection and appeal to voters’ base fears at future elections. Julia Gillard is acute and politically tough. At our meeting I get the sense that she sees no point in defending issues of principle from the opposition benches. She is genuinely interested in exploring alternative policy approaches but is not about to endorse anything that could be an impediment on Labor’s road to power. This does not mean that there will be no change. Simon Crean, the opposition leader, has promised that Labor’s policy will be ‘tough on border protection’, yet ‘compassionate’. He has promised to return immigration detention centres to public-sector control and to open them up to the media.While he remains wedded to mandatory detention, Mr Crean has signalled that the policy could be redefined. In a media release he stated that ‘Labor believes that there is not just one form of mandatory detention’.This opens the way to variations on the current detention model, such as supervised hostels and reporting arrangements, particularly for children and family groups. As Julia Gillard puts it, ‘we’re clearly thinking of streams of detention’. The shadow minister also wants to speed up processing, so that asylum seekers spend less time in detention. ‘In all of the discussions I’ve had with individual detainees,’ she says, ‘the first thing that they have talked about is the length of time they’ve been in detention, the uncertainty about processing, the lack of feedback, the extended time that processing takes.’ She believes that if processing was faster ‘then a lot of issues about mandatory detention would fall away’. Such changes are welcome, but it is a bit like shutting the stable door after the horse has bolted. Labor may tinker with detention arrangements but if there are no boats arriving, then the only asylum seekers subject to mandatory detention on the mainland will be the few hundred who manage to slip past the Airline Liaison Officers with forged documents at foreign airports and reach Australia unlawfully by air. Without the boat people, immigration detention centres may well slip back into the obscurity they enjoyed for most of the 1990s. If any asylum seekers do try to reach Australia by boat, they will probably be detained at Christmas Island, described by the Hawke-Wran review of the Labor Party as a ‘natural holding-area’. Those assessed as refugees under the Convention would then be admitted to Australia ‘under an enhanced refugee program’. However, asylum seekers held

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there would have no right to apply for refugee status under Australian law, nor to appeal negative decisions to the Refugee Review Tribunal, since Labor supported the government in declaring certain parts of Australia, including Christmas Island, to be outside the operation of the Migration Act.There is no sign that Labor intends to revoke this legislation. Julia Gillard says that, both as a lawyer and a politician, it is her ‘natural instinct’ to say the law of Australia applies to all parts of the country. But when I asked her if Labor would rescind the legislation she was non-committal, saying it was a matter that needed to be reviewed. She would not commit herself, either, to scrapping the system of temporary protection visas, even though she believes that it has acted as ‘a push factor’ for people-smuggling and placed ‘an almost intolerable burden’ on some State governments, local councils and nongovernment welfare agencies. Nor does it seem likely that Labor will move to scrap the privative clause that was introduced to prevent asylum seekers from challenging negative decisions before the courts. Julia Gillard talks instead about the need to improve the quality of decision making at the primary level ‘so you get it done right the first time instead of spending perpetual rounds of appeals’. She would not even commit the party to increasing Australia’s overall refugee intake from the current quota of 12,000 per annum, saying that this was ‘a budgetbased decision’ which had to be made ‘closer to the election’ because of its financial implications. Political logic suggests that Labor will not move to rescind any of post-Tampa legislation that it supported in September 2001, in the dying days of the thirty-ninth parliament — not the tightened definition of a refugee in Australian law, not the bar on class actions, not the Border Protection legislation that empowers Australian military and customs officials to board boats, take over the helm and direct them elsewhere. The situation is not that different from November 1999, when Labor failed to use its numbers in the Senate to disallow the temporary protection visas; then, as now, Labor fears that such a stand would hand the Coalition a stick with which to beat it should any future boats arrive. The danger in this approach is that Labor will continue to see its support base erode, as disenchanted voters shift their allegiance to the minor parties and to the independents. The Coalition has painted Labor into a corner (although the undercoat was put down by the party itself while in office in the early 1990s). Labor’s inclination is to try to inch its way out; but John Howard stands ready to apply fresh colour wherever the opposition steps — witness the government’s attempts to excise fresh areas from the ‘migration zone’ in June 2002.A leap of faith by Labor might see it land with a crunch, but at least the party would be back in the middle of the room.

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< > Arnaud is an acquaintance of mine, the husband of a work colleague. He is ceramicist and drives a commercial van so that he can transport his wares to and from weekend markets. In late 2001, in his own personal protest against the detention of asylum seekers, he covered the back of his van — from the base of the rear window to the number plate — in grey ducting tape. He then wrote on the tape in fat, black texta pen: ‘Close Woomera, Compassion not detention’. ‘I don’t think I’d ever demonstrated against anything before,’ he says. ‘I had been living in Australia since the mid-1960s, which included the Vietnam War period, but this issue of refugees upset me more than anything I could ever recall.’ Arnaud lives in a conservative electorate in the foothills outside Melbourne. It’s a suburb that he describes as lower- to middle-class, home to lots of tradespeople. He works at home and is a long-term resident of the area, but no one in his neighbourhood commented on the sign. When he dropped his nine-year-old daughter at school, none of the other parents mentioned it.‘It was treated with absolute silence,’ he says. In the end Arnaud’s protest only lasted three weeks because, wherever he drove, he was acutely aware of the hostility that his sign aroused. ‘I was tailgated all the time,’ he says. ‘When I was overtaken, drivers would pass by me much, much closer than cars normally do.’ On one occasion a gang of ‘young hoons’ screamed out various obscenities. ‘In the end I took it off,’ says Arnaud, ‘because I felt at times that it was unsafe to drive with that sign on the back.’ Arnaud’s story is indicative of the deep rifts that have emerged in Australian society over the asylum-seeker question.The exploitation of the issue for political advantage has unleashed ugly passions: animosity, fear, anger, resentment. It has been rewarding for the government to polarise opinion on the issue, but this has all but shut out the possibility of constructive debate on policy alternatives. The present government’s policies may have the support of most Australians, but popular policy is not always good policy.The failings of the current approach are all too obvious. The harsh treatment of asylum seekers who arrived in Australia without authorisation, or sought to, continues to gnaw at our collective conscience. The prolonged detention of children, in particular, unsettles even the hardest heart. Australia has signed the 1951 Convention, but successive governments have been irritated by its obligations and reluctant to provide sanctuary to those who knock on our door uninvited.The Convention is an imperfect document. Born in the context of World War II and its immediate aftermath to address a specific European situation, and later

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massaged to suit the ideological requirements of the cold war, the Convention was never a blanket declaration of protection for those fleeing persecution. Nevertheless, it is the best embodiment that currently exists of the humanitarian impulse to offer aid to those in need and to nurture human dignity and decency. We should not turn our backs on it. Toughening our response to asylum seekers has only increased the level of conflict within the system; it has required higher, stronger fences, more tear gas, more water cannons, a deaf ear, a blind eye and a much harder heart. An approach which is mean and punitive, even when it is applied to non-citizens, ultimately weakens notions of tolerance, justice, fair play and openness in our own body politic.The more we seek to deter asylum seekers and refugees through harsh treatment, the more Australia comes to resemble those repressive nations from which they flee. The government, the Labor Party and, it seems, a majority of voters want to close their eyes to the global reality of forced human movement. We want to wish asylum seekers out of existence. We want asylum seekers to disappear; indeed, if they are in Nauru, or Woomera, or on a navy ship off Ashmore Reef, or on their way to Europe, then they are out of our sight. But whether or not they are visible, asylum seekers, refugees and unauthorised migrants will continue to unsettle us with their presence. No amount of money or wealth can shield us from this reality; even millionaires such as Oprah Winfrey, the talk-show host, or Boris Becker, the tennis star, have been confronted by boat people from Haiti and the Bahamas landing on their exclusive beachfront at Fisher Island in Florida. Whatever legal and physical fences Australia erects around its borders, in the longer term the pressure for greater ‘human mobility’ will continue to grow. In May 2001 fourteen Mexicans — men and teenage boys — died of exposure after trying to cross the Arizona desert to enter the United States. Smugglers had directed them onto a dangerous route known as ‘The Devil’s Path’ in order to avoid stepped-up border patrols elsewhere in the state. The Arizona desert itself only became a popular crossing-point after stricter border controls were introduced in California and Texas in the 1990s. Despite the obvious risks, people continue to set out on such journeys. As Jeremy Harding puts it, ‘to be driven by attrition is to prefer the devil you don’t know, or to give him the benefit of the doubt’. The irony is that the risk to the people being smuggled grows commensurately with increases in official efforts to stamp out the trade. As the Economist magazine editorialised under the headline ‘Let the huddled masses in’ (31 March 2001), developed nations ‘put up stronger barriers and force migrants to more dangerous measures’.This logic saw fifty-eight Chinese suffo-

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cate in the sealed back of a refrigerated truck while trying to cross the English Channel; and two boys from the Congo freeze to death after stowing away in the wheel-well of a Brussels-bound passenger jet, and 353 asylum seekers drown when the SIEV X sank on its way to Australia. Unless there is a fundamental rethinking of refugee and migration policy worldwide, to open up new, legitimate channels of movement, then we must expect to witness more such tragedies.

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Unless otherwise stated, all Australian statistics in this book are drawn from the official website of the Department of Immigration, Multicultural and Indigenous Affairs, online at <www.immi.gov.au>. International statistics are drawn from the official website of the United Nations High Commissioner for Refugees, online at <www.unhcr.ch>.

1 The new peril My analysis of media coverage of the hunger strike at Curtin incorporates the following reports: Sunday Times (Perth), 6.2.00; Age, 5.2.00, 7.2.00 and 9.2.00;‘AM’, ABC Radio, 7.2.00 and 8.2.00 (transcripts online at ); Australian, 7.2.00; Sydney Morning Herald, 7.2.00; West Australian, 12.2.00. The report on ‘Four Corners’ by Chris Masters was broadcast on 13.3.00 (transcript online at <www.abc.net.au/4corners>). The statistics on incident reporting in detention centres compiled by the Commonwealth Ombudsman were made public in Annexure G to: Philip Flood, ‘Report of Inquiry into Immigration Detention Procedures’ (February 2001).The statistics for incidents of self-harm in 2001 were published in ‘Damaging Kids: Children in Department of Immigration and Multicultural and Indigenous Affairs’ Immigration Detention Centres’, Catholic Commission for Justice, Development and Peace, Occasional Paper No. 12, May 2002. McKenzie Wark’s comments on migration are found in the preface to Anthony Burke, In Fear of Security: Australia’s Invasion anxiety, Pluto Press, 2001. In my comments on people-smuggling I have drawn on: Adam Graycar, ‘Trafficking in Human Beings’, presentation to the International Conference on Migration, Culture & Crime, Israel, 7 July 1999;Andreas Schloenhardt,‘Organised Crime and the Business of Migrant Trafficking: An Economic Analysis’, Australian Institute of Criminology Occasional Seminar, Canberra, 10.11.99; John Morrison, ‘The Trafficking and Smuggling of Refugees: the End Game in European Asylum Policy?’ (online at <www.unhcr.ch>). The case of Mr Shahraz Kayani (also spelt Sharaz Kiane) was investigated by the Commonwealth Ombudsman. The full report is online at:
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DIMA-KianeRept-aug01.html>. David Corlett’s ‘refugee heap’ image is found in ‘Politics, Symbolism and the Asylum Seeker Issue’, University of New South Wales Law Journal, vol. 23, no. 3 (‘The Refugee Issue’), December 2000. My analysis of the situation facing Afghan asylum-seekers in Pakistan draws on a seminar presentation by Middle East specialist Dr Paul J.White at Deakin University, 8.5.00. See also: Paul J. White, ‘Country Profiles Supplement’, in Migration Action, April–May 2000 (special edition: ‘Australia’s response to recent asylum seekers’); William Maley,‘Blaming refugee victims’, Sydney Morning Herald, 6.3.00. The corruption scandal at the UNHCR in Nairobi is reported in James Astill, ‘UN staff ran refugee extortion racket’, Guardian, 26.1.02. See also ‘U.N. investigates refugee bribery allegations’,‘AM’, ABC Radio, 22.2.01 (transcripts online at ), and Mark Riley and Mark Forbes, ‘UN officials suspect in people trade’, Age, 22.2.01. The refusal to allow East Timorese to enter the Australian Embassy in Jakarta was documented in Louise Williams, ‘Bias claim on Australian embassy’, Age, 14.7.98, and Gervase Greene,‘Embassy off limits for East Timorese’, Age, 15.7.98. The ‘risk profile’ assessment of visa applicants is described in: Glenn Nicholls, ‘Unsettling Admissions:Asylum Seekers in Australia’, Journal of Refugee Studies, vol. 11, no. 1, 1998. The separation of the onshore and offshore refugee and humanitarian intake under Nick Bolkus is confirmed in the Annual Report of the Department of Immigration and Ethnic Affairs, 1994–95, p.15: ‘Persons granted asylum on-shore are not included in the Humanitarian Program and are not subject to any quotas’. I am indebted to Dr Savitri Taylor for pointing me in the direction of the comments by Michael Wooldridge in his ‘Speech at Launch of GP’s Manual on Refugee Health and General Practice’, minister for Health and Family Services, 20.8.98. Con Sciacca’s comments about the temporary protection visas were made on ‘AM’, ABC Radio, 22.11.99 (transcripts online at ). David Walker’s book is Anxious Nation:Australia and the Rise of Asia 1850–1939, University of Queensland Press, Brisbane, 1999. Ross Lightfoot’s comments were contained in a letter to the editor, Australian, 24.11.99. For the connection between federation,White Australia and immigration policy, see: Kathryn Cronin, ‘A culture of control: an overview of immigration policy-making’, in James Jupp and Marie Kabala (eds), The Politics of Australian Immigration, Bureau of Immigration Research, AGPS, Canberra 1993; and Mary Crock, Immigration and Refugee Law in Australia, Federation Press, Sydney, 1998 (especially chapter 2 ‘Immigration Law and the Growth of Nationhood’). For Mr Ruddock’s comments on a ‘national emergency’, see Age, 18.11.99, and ‘More Illegals Arrive’, Ministerial Media Release MPS 164/99, 17.11.99. Radio National’s ‘Media Report’ conducted a spirited discussion on the issue of language choice in relation to the boat people with Paul McGeogh, the Sydney Morning Herald editor: see ‘How the Media Treats Ethnic Diversity’, ‘The Media Report’, ABC Radio, 27.01.00 (transcript online at ). Eric Willmot’s book is Below the Line, Hutchinson Australia, Sydney, 1991. Geoffrey Blainey’s comment appears in ‘The risks of keeping our tropics empty’, Age, 20.4.99.The Marsden quotes are taken from his books Tomorrow, when the war began, Macmillan, 1995, pp.107 and 171, and The Third Day,The Frost, Macmillan, Sydney 1995, p.4.

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Statistics on boat arrivals in Hong Kong in 1979 are from Bruce Grant’s The Boat People: An Age Investigation, Penguin Books, Melbourne, 1979, p.58. Mr Ruddock’s interview with Paul Heinrichs was published as ‘Holding back the tide’, Sunday Age, 21.11.99; his other comments were quoted in ‘Alien Scam’, Herald Sun (Melbourne), 13.10.99. The report on the Human Rights Commissioner’s visit to Curtin IRPC in July 2000 and the government’s response to it can be found at: .

2 Water in the desert A version of this chapter originally appeared as ‘Woomera’, in Eureka Street, July–August 2000. I have drawn on the following coverage of the August 2000 Woomera riot:‘The World Today’, ABC Radio, 28.8.00; Benjamin Haslem and Matthew Spencer, ‘Refugee advocates to blame: Ruddock’, Australian, 30.8.00; Matthew Spencer, ‘Desert town that trades on secrecy’, Weekend Australian, 2.3.00. Details of the 1 June 2001 riot at Curtin detention centre were broadcast on ‘Lateline’, ABC TV, 22.4.02 (transcripts online at <www.abc.net.au/lateline>). Further detail was reported by Andrew Clennel, ‘Self harm inmates won refugee status’, Sydney Morning Herald, 24.2.02. Further information on the violence at Port Hedland detention centre on 11 May 2001 can be found in Penelope Debelle,‘Fears for detainee sparked riot’, Age, 15.5.01. The comments by Bill Farmer, Secretary of the Immigration department, were made to the Senate Legal and Constitutional Legislation Committee on 30.5.01. For details of the bashing that preceded the riot at Port Hedland on 21 January 2001, see Natalie O’Brien, ‘Officer guilty of bash attack on refugee’, Australian, 27.4.01. Professor Richard Harding’s comments were made on ‘Lateline’, ABC TV, 22.4.02 (transcripts at <www.abc.net.au/lateline>). The ‘Four Corners’ program on Shayan Badraie and his family was broadcast on ABC TV on 13.8.01 (transcripts online at <www.abc.net.au/4corners>). See also print coverage of the case in: Robert Manne, ‘Innocence behind bars’, Age, 13.8.01; and ‘The shame of Shayan’, Age, 27.8.01; Matthew Benns and Frank Walker, ‘Growing up behind barbed wire’, Age, 12.8.01.

3 Salt in the wounds The Human Rights and Equal Opportunity Commission (HREOC) report into immigration detention is Those Who’ve Come Across the Seas: Detention of Unauthorised Arrivals, Commonwealth of Australia, 1998. The follow-up report, Immigration Detention: Human Rights Commissioner’s 1998–99 Review, was issued in 2000, though based on research carried out in late 1998 and early 1999; it is available online at <www.hreoc.gov.au/human_rights/asylum/index.html>.The government has published an official response to the initial HREOC report, Government Response to the Human Rights and Equal Opportunity Commission 1998 Report into Those Who’ve Come Across the Seas, the Detention of Unauthorised Arrivals, available from DIMIA. Discussion and criticism of the policy of immigration detention can also be found in: Commonwealth Ombudsman, Annual Report, 1998–99, pp.46ff; Commonwealth Ombudsman, Final Report to the Department of Immigration and Ethnic

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Affairs of Investigation of Complaints Concerning Onshore Refugee Processing, September 1997; Commonwealth Ombudsman, Investigation of Complaints Concerning the Transfer of Immigration Detainees to State Prisons, December 1995; Australian National Audit Office, The Management of Boat People: Performance Audit, Commonwealth of Australia, 1998; Asylum, Border Control and Detention, Joint Standing Committee on Migration, Parliament of the Commonwealth of Australia, February 1994; Mary Crock (ed.), Protection or Punishment: The Detention of Asylum Seekers in Australia, Federation Press, Sydney, 1993; Adrienne Millbank, The Detention of Boat People, Parliamentary Library Current Issues Brief 8, 2000–01, 27 February 2001. For debate about access to food for children in Woomera, see Penelope Debelle, ‘Report slams living conditions at Woomera’, Age, 17.4.02. The AWU’s complaints about ACM’s staff training were reported in Claire Harvey, ‘Detention guards privately trained’, Australian, 9.8.01. Details of the detention of asylum seekers in Canada are taken from documents supplied by the Convention Refugee Determination Division of the Immigration and Refugee Board of Canada (online at <www.irb.gc.ca/crdd>). For analysis of how Australia’s treatment of asylum seekers compares with other countries, see: David R. Cox and Alfred Van Amersvoort, The Wellbeing of Asylum Seekers in Australia: A Study of Policies and Practice with Identification and Discussion of the key Issues, Graduate School of Social Work, La Trobe University, February 1994. Statistics on the detention of asylum seekers in the United Kingdom are taken from the Home Office Quarterly Statistics (online at <www.homeoffice. gov.uk/rds/immigration1.html>). For a critique of British policies toward asylum seekers, see: Another Country: Implementing dispersal under the Immigration and Asylum Act 1999,Audit Commission, June 2000; Martin Bright and Burhan Wazir, ‘Asylum Barons cashing in’, Observer, 28.5.00; and numerous articles by Alan Travis in the Guardian, including ‘An A–Z of asylum seekers’, 21.4.00, and ‘Building Britain’s political prisons’, 11.5.00. The findings of the United Nations Human Rights Committee on the detention of asylum seekers in Australia are contained in A v Australia; Views of the Human Rights Committee, 30 April 1997: UN Doc. CCPR/C/59/D/ 560/1993. My recreation of the arrival of the first boat-people from Vietnam, the reaction of the Fraser government and the Labor Party opposition, and the subsequent development of Australia’s refugee-determination procedures is taken from the following sources: Bruce Grant, The Boat People:An Age Investigation, Penguin, 1979; Nancy Viviani, The Indochinese in Australia 1975–1995: From Burnt Boats to Barbecues, Oxford University Press, Melbourne, 1996; Gerard Henderson, ‘Australia’s Immigration Debate:A Most Unusual Unity Ticket’, in Michael Easson (ed.), Australia and Immigration: Able to Grow?, Pluto Press, 1990; Michelle Grattan, ‘Immigration and the Australian Labor Party’, and Colin Rubenstein, ‘Immigration and the Liberal Party of Australia’ — both in James Jupp and Marie Kabala (eds), The Politics of Australian Immigration, Bureau of Immigration Research, AGPS, Canberra, 1993. My analysis of the development of the detention policy relies on the following sources: Mary Crock,‘The Peril of the Boat People:Assessing Australia’s Responses to the Phenomenon of Border Asylum-Seekers’, in Hugh Selby (ed.), Tomorrow’s Law, Federation Press, Sydney, 1995; Mary Crock, ‘Charity in Chains: the detention of asylum seekers in Australia’, forthcoming; Kathryn Cronin, ‘A Culture of Control: An Overview of Immigration Policy-Making’, in James Jupp and Marie Kabala (eds), The Politics of Australian Immigration, Bureau of Immigration Research, AGPS, Canberra, 1993.

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An edited version of the original contract between the Commonwealth government and ACM was made available by the Immigration department: ‘Detention Agreements Between The Commonwealth of Australia and Australasian Correctional Services Pty Ltd’, DIMA, 27 February 1998. This document includes a schedule of the Immigration Detention Standards. Material regarded as commercial-in-confidence has been excised. Savitri Taylor’s detailed critique of the arrangements between DIMA and ACM can be found in ‘Protecting the Human Rights of Immigration Detainees in Australia: An Evaluation of Current Accountability Mechanisms’, Sydney Law Review, vol. 22:50, 2000. HREOC has released its own set of alternative guidelines on immigration detention in March 2000, available online at: <www.hreoc.gov.au /human_ rights/asylum_seekers>. The homepage of the Wackenhut Corporation is at <www.wackenhut.com>. There, you can order a copy of the founder’s biography: John Minahan, The Quiet American: A Biography of George R. Wackenhut, International Publishing Group, 1994. In researching Wackenhut, I have also referred to the following sources: Alyeska Pipeline Service Company Covert Operation, Report of the Committee on Interior and Insular Affairs of the U.S. House of Representatives, One Hundred Second Congress, Second Session, July 1992, United States Government Printing Office, Washington, 1992; Prison Privatisation Report International, Prison Reform Trust, London; All Posts Bulletin, Wackenhut corrections Corporate publication; Consultants Report on Prison Operations in New Mexico for the New Mexico Government, Inquiry into the New Mexico Prisons System, January 2000; ‘Wackenhut is out to prove that crime does pay’, Business Week, 17.12.90; Andrew Billen, ‘The Doncatraz File: A Man Called Wackenhut’, Observer ‘Life’ magazine, 3.11.96;‘Abuse is cited at prison for youths in Louisiana’, New York Times, 25.2.00; Eileen Baldry, ‘USA Prison Privateers: Neo-Colonialists in a Southern Land’, in Paul Moyle (ed.), Private Prisons and Police: Recent Australian Trends, Pluto Press, Sydney, 1994; ‘Privatisation of State Prison Systems’, by reporter Matt Brown, ‘Background Briefing’, ABC Radio National, 9.7.95. Information about the merger between Wackenhut and Group 4 Falck can be found in Julie Macken,‘Capturing the prison business’, Australian Financial Review, 22.3.02; and in Davide Dukcevich, ‘Group 4 Falck Buys Wackenhut for $570 Million’, Forbes.com, 3.8.02. The Group 4 Falcke website is at <www.group 4falck.com>. Information about the fire at the Yarl’s Wood detention centre, United Kingdom, comes from the following articles in the Guardian: David Barrett, ‘Profile: Yarl’s Wood Detention Centre’, 15.2.02; Steven Morris and Maria Margaronis,‘Yarl’s Wood blaze witnesses deported’, 22.3.02; Steven Morris,‘Police face £100 million Yarl’s Wood claim’, 4.4.02. The journal article on the impact of detention on families and children is: S. Mares, L. Newman, M. Dudley, F. Gale,‘Seeking Refuge, Losing Hope: Parents and Children in Immigration Detention’, Australasian Psychiatry, June 2002. For an overview of recent research on the mental health of asylum seekers, see: Derrick Silove and Zachary Steel, ‘The Mental Health and Well-Being of OnShore Asylum Seekers in Australia’, Psychiatry Research and Teaching Unit, School of Psychiatry, University of New South Wales; D. Silove, A. Steel, and C. Watters,‘Policies of Deterrence and the Mental Health of Asylum Seekers’, Journal of the American Medical Association, vol. 284, no. 5, 2.8.00.

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4 The minister for misery The title of this chapter is cribbed from the headline given to an opinion article by Robert Manne in the Age, 15.4.00. Most of the quotes in this chapter come from an interview with the minister recorded in Canberra on 26 June 2000, or from his public presentation at the community consultation on Australia’s 2000–2001 Migration and Humanitarian Program, held at the Knox Community Centre in Melbourne on 2 March 2000. I have also drawn on the minister’s public speeches (available online at <www.minister.immi.gov.au>) and media reports, including the following: Philip Ruddock, ‘Refugees need to abide by rules’, Financial Review, 29.11.99; Gerald McManus, ‘Ruddock on razor edge’, Sunday Herald Sun, 4.6.00; Paul Heinrichs, ‘Holding back the tide’, Sunday Age, 21.11.99; Brendan Nicholson and Paul Daley,‘War Criminal Slips in by Boat’, Age, 16.6.00; Robin Usher, ‘A liberal Liberal sells his soul’, Age, 22.4.00; Philip Rudddock, ‘Protecting the vulnerable’, Courier Mail, 8.8.00. The UNHCR rankings of countries in relation to refugees are found in the report ‘2000 Global Refugee Trends’, UNHCR, Geneva, May 2001 (online at <www.unhcr.ch>). The rankings prepared by the United States Committee on Refugees are found in its publication World Refugee Survey 2001. My recreation of the 1988 Asian-migration debate sparked by John Howard is taken from the following sources: Paul Kelly, The End of Certainty, Allen and Unwin, Sydney, 1994, pp.422ff; Colin Rubenstein, ‘Immigration and the Liberal Party of Australia’, in James Jupp and Marie Kabala (eds), The Politics of Australian Immigration, Bureau of Immigration Research, AGPS, Canberra, 1993. The quotes from Bob Hawke and Jim Short are both taken from Margo Kingston’s contribution to Mary Crock (ed.), Protection or Punishment: The Detention of Asylum Seekers in Australia, Federation Press, Sydney, 1993. For more detailed discussion of the culture of control in Australia’s migration and refugee programs, see: Kathryn Cronin, ‘A Culture of Control: An Overview of Immigration Policy-Making’, in James Jupp and Marie Kabala (eds), The Politics of Australian Immigration, Bureau of Immigration Research, AGPS, Canberra, 1993; Glenn Nicholls, ‘Unsettling Admissions: Asylum Seekers in Australia’, Journal of Refugee Studies, vol. 11, no. 1, 1998. More’s words are quoted from the play Sir Thomas More, in The Riverside Shakespeare, Houghton Mifflin, Boston USA, 1974, p.1691.

5 In the wake of the Tampa My recreation of the Tampa affair draws on daily reports in the Australian and the Age between 27.8.01 and 4.9.01 and on the following sources: ‘Tampa’s first captain relates drama’, ‘PM’, ABC Radio, 6.9.01; Michael Gordon, ‘All at sea’, Age, 1.9.01; David Marr and Marian Wilkinson, ‘Tampa Tantrums’, Age, 20.10.02; Eric Ellis, ‘First mate makes light of ocean rescue heroics’, Australian, 7.9.01; Maria Zijlstra, interview with Captain Arne Rinnan, ‘The Europeans’, ABC Radio National 5.5.02. Peter Charlton’s comments about SAS training for boarding boats at sea can be found in ‘Tampa:The Triumph of Politics’, in Howard’s Race:Winning the Unwinnable Election, edited by David Solomon, HarperCollins, Sydney, 2002. For critical discussion of the Tampa affair and the ‘Pacific Solution’, see:‘Adrift in the Pacific: The Implications of Australia’s Pacific Refugee Solution’, Oxfam Community Aid Abroad, February 2002;‘Sea Change:Australia’s new approach to asylum seekers’, United States Committee for Refugees, February 2002. Greg

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Fry’s comments are taken from his essay ‘The “Pacific solution?”’, which is found in William Maley et al.,‘Refugees and the Myth of the Borderless World’, Keynotes 2, Department of International Relations, Australian National University, Canberra. John Hodges’s descriptions of Manus detention centre were given in testimony to the Senate Select Committee on a Certain Maritime Incident (transcripts online at ). For background on Nauru’s economic plight, see Rowan Callick, ‘Parable of an unlucky country’, Australian Financial Review, 13.8.01. Nauru’s opposition newsletter, The Visionary, is online at <www.naoeroamo.com>. Details of conditions in Nauru are taken from John Pace, ‘Report of Mission to the Republic of Nauru: 8 to 13 November 2001’,Amnesty International; interview with Alexander Downer, ‘Asia Pacific’, Radio Australia, 11.12.01 (transcript at <www.abc.net.au/ra/asiapac>); and Russell Skelton, ‘Nauru detainees claim many have psychiatric “diseases”’, Age, 24.4.02. For discussion of the linking of the September 11 attack and asylum seekers, see: Gerard Henderson, ‘Unleashing a “sleeper” issue: ethnic suspicion’, Age, 18.9.01; and ‘Memo PM: vilification needn’t be part of border protection’, Age, 21.5.02. The Robert Manne quote is from ‘When trust goes overboard’, Age, 18.2.02. My account of the children-overboard affair is drawn from testimony to the Senate Select Committee on a Certain Maritime Incident, particularly that of Commander Norman Banks on 25 & 26 March 2002 (transcripts online at ). It also draws on, and was inspired by Aaron Patrick, ‘When the truth is all at sea’, Australian Financial Review, 19.4.02.

6 A credible process I am indebted to several people for comments and corrections on this chapter. Savitri Taylor provided a detailed explication of the work rights and other entitlements of asylum seekers in the community and kindly allowed me to draw on her article, ‘Do On-Shore Asylum Seekers Have Economic and Social Rights?: Dealing with the Moral Contradiction of Liberal Democracy’, Melbourne Journal of International Law , vol. 1, no. 1, 2000. I am also indebted to Dr Mary Crock for her suggestions and comments, and I have drawn extensively on Dr Crock’s work, in particular: Immigration and Refugee Law in Australia, Federation Press, Sydney, 1998; ‘The Peril of the Boat People:Assessing Australia’s Responses to the Phenomenon of Border Asylum-Seekers’, in Hugh Selby (ed.), Tomorrow’s Law, Federation Press, Sydney, 1995;‘Apart from Us or a Part of Us? Immigrants’ Rights, Public Opinion and the Rule of Law’, International Journal of Refugee Law, vol. 10, no. 1–2, Oxford University Press, 1998; ‘A Sanctuary Under Review: Where to from here for Australia’s Refugee and Humanitarian Program?’, UNSW Law Journal, December 2000; and (with Ben Saul), Future Seekers: Refugees and the Law in Australia, Federation Press, 2002. I would also like to acknowledge the assistance of Mr Kerry Murphy of Craddock Murray Neumann Solicitors, who provided extensive advice on the post-Tampa legislation and provided me with several useful background papers, including ‘Refugee applications in Australia’, a summary of the refugee-determination process, presented at the conference ‘The Integrity of Our Shores: Asylum Seekers and Refugees in Australia’, United Theological College, Parramatta, 20.10.00.

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Solicitor Nehal Bhuta also provided invaluable suggestions and corrections to the text. Statistics on Refugee Review Tribunal (RRT) decisions and judicial review are taken from the tribunal’s website at <www.rrt.gov.au>. For Mr Ruddock’s criticism of the RRT, see ‘Ruddock warns tribunal’, Canberra Times, 27.12.96; ‘Tribunal defends violence refugees’ status’, Australian, 6.2.97; ‘Ruddock challenged over refugee appeals’, Australian, 10.2.97. See also the minister’s speech to the 1997 National Administrative Law Forum, Canberra, 1 May 1997, and the minister’s press release ‘Sweeping Changes to Refugee and Immigration Decision Making’, MPS 28/97, 20.3.97. On Bakhtiyari, see Russell Skelton, ‘Looking for the real Ali Bakhtiyari’, Age, 23.8.02. For Dr Chan’s comments, see Mike Steketee, ‘Tribunal leader behaved “improperly” on Timorese’, Australian, 3.7.97, and ‘Refugee tribunal squeezed’, Australian, 6.6.97. For Susan Kneebone’s detailed legal critique of RRT operations, see ‘The Refugee Review Tribunal and the Assessment of Credibility: an Inquisitorial Role?’, Australian Journal of Administrative Law, vol. 5, February 1998. For the minister’s criticism of the Federal Court, see ‘Lawyers appalled at attack on judges’, Sydney Morning Herald, 8.12.98; ‘Judges accused of legal frolic’, Australian, 7.12.98; ‘Ruddock reignites judge row’, Australian, 17.12.98. Gerry Hand’s comments are taken from an interview in People and Place, vol. 1, no. 4, 1993. Details on the extent of refugee litigation and the Immigration department’s legal bills were taken from DIMA Fact Sheet 86, ‘Litigation Involving Migration Decisions’, as updated on 28 August 1998. This was subsequently replaced by DIMIA Fact Sheet No 9 (available at <www.immi.gov.au/facts>). The new version of the fact sheet does not give an annual cost for litigation. The Senate Legal and Constitutional References Committee report is titled A Sanctuary Under Review: An Examination of Australia’s Refugee and Humanitarian Determination Processes, Commonwealth of Australia, June 2000. In this chapter I have also referred to previous Senate reports: Migration Legislation Amendment Bill (no. 4) 1997, Migration Legislation Amendment Bill (no. 5) 1997, Consideration of Legislation Referred, Senate Legal and Constitutional Legislation Committee, Commonwealth of Australia, October 1997; The Migration Legislation Amendment (Judicial Review) Bill 1998: Consideration of Legislation Referred, Senate Legal and Constitutional Legislation Committee, Commonwealth of Australia, April 1999. All the Committee reports are online at <www.aph.gov.au/senate/committee/legcon_ctte/index.htm>. Transcripts of Committee hearings are online at <www.aph.gov.au/hansard/senate/commttee/ s-lc.htm>. Many of the cases I have referred to in this chapter were also quoted in submissions to the above inquiries. For a detailed analysis of the tug of war between the judiciary and the executive over refugee matters, see John McMillan, ‘Federal Court v Minister for Immigration’, Australian Institute of Administrative Law Forum, no. 22, 1999. Dr Penelope Mathew’s comments were made on 21.9.01 in evidence to the Senate Legal and Constitutional References Committee hearing on the Migration Legislation Amendment Bill (No. 6) 2001. The comparisons with Britain’s refugee-determination system are drawn from Jeremy Harding, The Uninvited: Refugees at the Rich Man’s Gate, Profile Books, London, 2000, and statistics on the number of people granted ‘exceptional leave to remain’ are taken from the British Home Office Quarterly Statistics, which can be found at <www.homeoffice.gov.uk/rds/immigration1.html>.

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For more discussion of the legislative changes post-Tampa, such as the privative clause, see: Nehal Bhuta, ‘Gunship Humanitarianism’, Arena, October–November 2001; and Mary Crock and Ben Saul, Future Seekers: Refugees and the Law in Australia, Federation Press, 2002.

7 A safe haven? My treatment of events surrounding the introduction of the safe-haven visa, and of public and government responses to the Kosovar and East Timorese refugees, draws on the following: John Zubrzycki, ‘Ruddock vetoes asylum’, Australian, 6.4.99; Gerard Henderson,‘Our response to the horror? Do nothing’, Age, 6.4.99; Michelle Grattan, ‘Backflip so quick details are yet to be settled’, Sydney Morning Herald, 7.4.99; Peter Cole-Adams, ‘PM about face with offer to 4,000 refugees’, Sydney Morning Herald, 7.4.99; Dennis Shanahan, ‘Anyone who had a heart’, Weekend Australian, 10.4.99; Richard Flanagan, ‘“Our Keith” Why can’t he stay?’, Age, 22.7.00; David Brearly, ‘From Wretches to Whingers’, Australian, 19.6.99; Penelope Green, ‘Refugees long to make lucky country their own’, Australian, 4.8.99; David Brearly, ‘Residence door ajar for Kosovars’, Australian, 5.11.99; Andrew West, ‘Refugees return kit lure’, Sunday Age, 28.11.99; Suzana Zymberi, ‘Why our Kosovo refugees fear their return’, letter to the editor, Australian, 29.3.00; ‘Doubts over refugees’ safety in Kosovo’, ‘7.30 Report’, ABC TV, 13.4.00 (transcripts online at <www.abc.net.au/7.30>);‘UN envoy appeals for orderly and voluntary return of Kosovo refugees’, UNHCR news release, 13.4.00; ‘Kosovars fly out leaving defiant 21’, Australian, 17.4.00; Joel Cohen, ‘Failing the Kosovars, shaming Australia’, letter to the editor, Age, 22.4.00; Kerry Taylor, ‘Half Kosovo refugees to stay: Ruddock’, Age, 29.6.00. The quotes from Bandiana safe-haven teachers Clare Cunnington and Elaine Mason are taken, with permission, from statutory declarations that they swore in an effort to document what they saw as abuses and improper process in the final weeks at Bandiana. Philip Ruddock’s praise of DIMA staff and the safe-haven program were made at a community consultation on the annual immigration intake, held at the Knox Community Centre in Melbourne, 2.3.00. For a social and legal critique of the safe-haven visas, see: Michael Head, ‘The Kosovar and Timorese “safe haven” refugees: a test for democratic rights’, Alternative Law Journal, vol. 24, no. 6, December 1999. Erika Feller’s comments were made in her presentation delivered at the ANU, Canberra, on 6.3.00, ‘Refugee Protection: An Unwelcome Responsibility? Emerging Issues Globally and in Australia’. Immigration department information on the safe-haven visa was taken from Fact Sheet 62 as updated on 3 February 2000 on the departmental website at <www.immi.gov.au/facts>. (This fact sheet has since been removed from the website.)

8 The absent embrace John Olsen’s comments on temporary protection visas were made in ‘The Queue Jumpers’, ‘Four Corners’, ABC TV, 16.10.00 (transcripts online at <www.abc.net.au/4corners/stories>). Statistics on the proportion of children arriving on asylum boats are drawn from Mary Crock and Ben Saul, Future Seekers: Refugees and the Law in Australia, Federation Press, 2002, p.77.

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Discussion of the SIEV X draws on testimony to the Senate Select Committee on a Certain Maritime Incident (<www.aph.gov.au/hansard/senate/commttee/ s-maritInc.htm>). Tony Kevin appeared before the committee on 1 May 2002; Rear-Admiral Smith appeared on 4, 5 & 11 April 2002; Rear-Admiral Bonser appeared on 22 May 2002 and Colonel Gallagher appeared on 11 July 2002. My discussion of the SIEV X, also draws on the following media reports:Tony Kevin, ‘353 Dead:This could be our Watergate’, Age, 10.5.02, and ‘Were lives lost in intelligence black hole?’, Canberra Times, 12.5.02;‘Dateline’, SBS TV,‘Cover-up or stuff-up’, 22.5.02 (transcript at <www.sbs.com.au/dateline>); Don Greenlees, ‘Overload kills on voyage of doom’ and ‘I have lost everything: mother grieves for three girls’, Australian, 24.10.01, and ‘Forced onto death boat’, Australian, 25.10.02; Kirsten Lawson,‘Admiral admits knowing of death boat’, Canberra Times, 23.5.02; Margo Kingston, ‘Organiser of doomed boat faces extradition’ and ‘Patsy not so easily deceived’, Sydney Morning Herald, 12.7.02; Craig Skehan, ‘Military made to admit it knew of ill-fated boat’, Sydney Morning Herald, 23.5.02; Cameron Stewart, ‘Fatal delay on boat’, Australian, 3.7.02; Russell Skelton, ‘The telephone call that could have saved 353 lives’, Age, 13.7.02; Phillip Adams, ‘Drowned by indifference’, Weekend Australian, 1.6.02. Information about survivors of the disaster and their relatives in Australia is drawn from the following articles: Penelope Debelle, ‘Devastated family waits to reunite’, Sydney Morning Herald, 18.4.02; Melissa Fyfe, ‘A broken man begs to see his wife’, Age, 3.11.01; ‘Survivor of boat-people tragedy granted visa’, Sydney Morning Herald, 21.3.02. The report on the social cost of the TPV policy in Victoria is: Fethi Mansouri and Melek Bagdas, ‘Politics of Social Exclusion: Refugees on Temporary Protection Visas in Victoria’, Deakin University, 2002; see also R. Mann, ‘Temporary Protection Visa holders in Queensland’, Multicultural Affairs Queensland, 2001. Mr Ruddock’s comments to SBS TV’s ‘Insight’ were made on the program ‘Time’s Up’, 28.3.02.Transcript available at <www.sbs.com.au/insight>. Perth-based reporter Victoria Laurie has written extensively on the human cost of TPVs for both refugees and community workers. See, for example: ‘Visas to limbo’, Australian Magazine, 17.2.01;‘The trouble with angels’, Australian, 29.8.01; ‘Visa bottle-neck heralds new crisis’, Australian, 5.2.02; ‘Three times removed’, Australian Magazine, 9.3.02. See also Arnold Zable, ‘Between sky and earth’, Age, 13.12.01.

9 The never-ending story In writing this chapter, I have drawn on transcripts of Refugee Review Tribunal decisions involving applicants from East Timor, especially: V93/01000 (29 May 1995), N94/02698 (28 July 1995), N93/00294 (29 November 1995), BN94/04549 (28 June 1996), V93/01124 (2 June 1997), N93/00583 (2 June 1997), N95/09002 (4 June 1997). I have also drawn on decisions in the following Federal Court cases: Jong Kim Koe v Minister for Immigration & Multicultural Affairs 306 FCA (2 May 1997); Lay Kon Tji v Minister for Immigration & Ethnic Affairs [1998] 1380 FCA (30 October 1998); Lay Kon Tji v Minister for Immigration & Ethnic Affairs [1998] 1597 FCA (23 November 1998). The opinions of Henry Burmester are cited from: Re: Indonesian Nationality of East Timorese: Opinion, Attorney-General’s Department, Office of International Law, 27.4.95; Nationality of East Timorese Applicants for Refugee

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Status: Opinion,Attorney-General’s Department, Chief General Counsel, 20.9.95. Xanana Gusmao’s comments about Portuguese nationality are quoted in ‘Viva Timor L’este! The defence plea of Xanana Gusmao’, Inside Indonesia, June 1993. Comments by Chris Hurford, the former minister, are taken from ‘Hurford wary of angering Indons’, Age, 18.7.85. I have also drawn on other media coverage of the East Timorese asylumseekers, including: Gareth Boreham, ‘Timor asylum strains Jakarta ties’, Age, 21.7.95; Penelope Debelle, ‘East Timor – A friend betrayed’, Age, 22.7.95; Russell Skelton, ‘Confrontation looms over East Timor’, Age, 28.7.95; Lindsay Murdoch, ‘Illegals likely to pour in – Jakarta’, Age, 31.7.95; Karen Middleton and Paul Chamberlin, ‘Boat people not refugees, says Keating’, Age, 11.10.95; Karen Middleton, ‘Asylum policy turnabout on East Timorese’, Age, 16.8.96; Thom Cookes,‘Thousands offer to hide East Timorese’, Age, 21.4.97; James Button,‘Birth of an underground’, Age, 3.5.97; Debra Jopson, ‘Church body backs hiding refugees’, Sydney Morning Herald, 28.11.98. The decision of the Administrative Appeals Tribunal is: ‘SRPP’ and Minister for Immigration and Multicultural Affairs [2000], AATA 878 (5 October 2000) no. N2000/399. The Primo Levi quote is taken from his book If This is a Man and The Truce, Abacus, London, 1998.

10 Compassion is a vice Jack Straw’s comments were reported in Alan Travis, ‘Straw wants to rewrite Geneva refugee convention’, Guardian Weekly, 15–21.6.00. Arthur C. Helton’s book is The Price of Indifference: Refugees and Humanitarian Action in the New Century, Oxford University Press, 2002. (His account of the United States policy on boat people from Haiti is at pp.86–101.) Jeremy Harding’s book is The Uninvited: Refugees at the Rich Man’s Gate, Profile Books, London, 2000. (He describes Italy’s efforts to intercept Albanians at sea at pp.10–28.) Allegations of a refugee ‘swap’ with the United States are reported in: AAP, ‘Australia to take refugees from Haiti and Cuba’, Canberra Times, 23.4.02, and Greg Sheridan, ‘New trade with US: refugees’, Australian, 18.5.02. The Immigration minister responded in a press release on 18.5.02 (MPS 35/2002). Tony McInerny’s article is ‘People smuggling — an inhuman trade’, Platypus Magazine, Australian Federal Police, no. 68, September 2000. Mr Ruddock’s comments on the obscene sums spent on dealing with asylum seekers were reported on Radio Australia’s ‘Asia Pacific’ program on 29.8.00; transcript available online at <www.abc.net.au/ra/asiapac>. Malcolm Fraser’s post-election comments were made on ‘Lateline’,ABC TV, on 14.11.01 (transcripts online at <www.abc.net.au/lateline>). For Tim Lindsey’s critique of Australia’s approach to Indonesia over the boatpeople issue, see ‘Australia, Indonesia and the Boat People’, The Diplomat, vol. 1, no. 1, April 2002. Details of Australia’s program of cooperation with Indonesia to tackle people-smuggling were reported by the SBS TV ‘Dateline’ program ‘Tropical Transit Lounge’, 22.8.01 (transcript online at <www.sbs.com.au>). Jusuf Wanandi’s comments on the Australian election were first published in the Jakarta Post and later reprinted in the Australian, ‘Great nation reduced to a Pacific pariah’, 16.11.01. The Jakarta Post editorial ‘Australia “besieged”’ appeared on 12.11.01.The comments by Indonesia’s minister for Justice,Yusril Ihza Mahendra, were reported by Agence France Presse, Jakarta, 23.10.00. For details of how

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bilateral relations between Australia and Indonesia declined during the 2001 Australian federal election campaign, see Mike Seccombe, ‘Jakarta’s silence left envoys all at sea’, Sydney Morning Herald, 19.10.01. The call for a new regional deal on refugees by the UNHCR’s Raymond Hall were reported in Lindsay Murdoch, ‘Take more refugees Australia urged’, Age, 30.1.02. Mrs Brenda Macintyre’s comments can be found in: Submissions to Senate Legal and Constitutional References Committee, Inquiry into the Operation of Australia’s Refugee and Humanitarian Program; vol. 1, submission number 11. For an official description of the ‘alternative detention arrangements’ for women and children at Woomera, see DIMIA Fact Sheet 83 (<www.immi.gov.au/facts>). The Justice for Asylum Seekers model for a graduated detention system is outlined in ‘Alternative approaches to asylum seekers: Reception and Transitional Processing System’, Justice for Asylum Seekers Detention Reform Working Group, June 2002. The Institute of Public Affairs monograph on Australia’s asylum and refugee system is:Tess Rod and Ron Brunton, Who Gets To Stay? Refugees, Asylum Seekers and Unauthorised Arrivals in Australia, Institute of Public Affairs, Current Issues Series, January 2002. For details of success in breaking-up people-smuggling rackets, see Don Greenlees and Kimina Lyall, ‘Tide turns against people-smugglers’, and ‘Smugglers’ pipeline choked off ’, Australian, 27.4.02. See also ‘People smuggler caught’, Australian, 18.6.02. The Hawke-Wran policy suggestions on asylum seekers were reported in Michael Millett, ‘ALP proposes a Christmas Island solution’, Sydney Morning Herald, 10.8.02.

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,QGH[ ABC programs: ‘AM’, 11, 27; ‘Europeans’, 242–43; ‘Four Corners’, 12, 59, 194; ‘Lateline’, 51, 54, 90, 194, 203, 208–09, 237; ‘Law Report’, 206–07; news, 49; ‘PM’, 113; Radio 774, 135; ‘7.30 Report’, 180 ACM: accountability of, 82, 88; centre management by, 49, 53–54, 57–58, 60, 83–88, 89, 94, 180, 250–51; charities and, 82–83; cost-savings and, 41–42, 69, 82–86; criticism of, 87–88, 89; finances of, 79–80; guards from, 37, 39, 47, 53, 56, 68–69, 85, 180, 251; prisons and, 79; provision of services by, 41–42, 55, 87–88; recruitment procedures of, 55, 59, 69, 85, 97; and riot control, 49, 53–54. See also Wackenhut Administrative Appeals Tribunal, 157, 221–22 Afghani refugees, 9, 13, 17–18, 25–26, 52, 53, 107, 134, 139, 148–49, 172–74, 192–94, 196–99, 243, 254 Age, 10–11, 32, 84, 132, 181, 202, 203 airport arrivals: 6, 66–67, 112, 166, 197, 210, 231; numbers of, 6, Algerian refugees, 65ff, 98–99 ALP. See Australian Labor Party Alsalami, Dr Mohammed Taha, 9–10, 12–15, 32–33 amnesty for refugees, 74 Amnesty International, 12, 15, 31, 113,

132 Angolan refugees, 145–47 ASIO, 48, 50, 134 asylum seekers in Australia: assistance for, 6, 143–44, 160–61, 165–66, 212; cabinet debates on, 177, 220; characterised, 14, 50, 92, 109, 184; demonised, 3, 16, 25, 28, 32, 108, 114–15, 120, 134, 135; diplomatic considerations and, 23, 24, 31, 215, 216; documents and, 13, 148, 214; failure to invoke Convention by, 6, 52; failure to seek first asylum by, 8, 205–06, 212–13, 215, 216, 218, 222, 232–33; ‘illegality’ and, 11–12, 16, 71, 109–10, 117, 181; ‘lawful’ vs ‘unlawful’, 5–6, 50, 70–71, 143; and nationality questions, 31, 212–20; protest by, see detention centres; public response to, 3, 28, 117, 123, 133–35, 177–78, 215, 219, 230–31, 237–38; push/pull factors impelling, 3, 16, 18, 21, 30–31, 52, 65–66, 107–08, 176, 182, 188, 197–98, 199, 202, 203–04, 208, 211–12, 260; repatriation of, 6, 8, 52, 171–72, 173–74, 178–81, 241; rights of, 7–8, 11–12, 51, 143, 161–62, 172, 189, 211. See also boat people; detainees; detention of refugees in Australia; ‘Pacific solution’; refugee-determination in Australia; refugees in Australia Asylum Seekers Assistance Scheme,

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xiv, 143–44, 212, 223, 228, 256 AusAID, 125, 127, 128, 129 Australasian Correctional Management Pty Ltd. See ACM Australian, 11, 49, 125, 135, 153, 155, 156, 179, 233, 247 Australian Federal Police, 201, 234–35 Australian Labor Party: bi-partisanship and, 3, 27, 74–75, 115, 116–17, 125, 261–62; refugee policy, 24, 117, 258–60, 261–62; and Tampa, 133–34, 167, 259 Australian Protective Service, xiv, 49, 81, 86 Australian Security Intelligence Organisation. See ASIO Bartlett, Senator Andrew, 114–15, 120 Baxter (Port Augusta) detention centre, 60 Bedoons, 14 boat arrivals: factors affecting, 3–4, 23, 30–31, 73, 188, 199, 260; numbers of, 8, 25, 30, 73–74, 123–24, 136, 215, 260; reactions to, 27–28, 72, 73–74, 110, 123, 133–34. See also defence force; ‘Pacific solution’ boat people: Ambonese, 188–89; Cambodian, 74, 75, 240–41; children, 199; from China, 74; diverted, 121–24, 126, 130, 136–39; East Timorese, 215; lost at sea, 3–4, 46, 199–200;Vietnamese, 30, 72–74, 240–41 Bolkus, Senator Nick, 24, 90, 116–17 border protection: legislation, 124–25, 170; policies, 124, 126, 136, 230–34 Bosnian refugees, 23 Cambodian refugees, 74, 75, 240 Catholic Commission for Justice, Development and Peace, 16, 132 Centrelink, 193, 195 Channel 7: ‘Today Tonight’, 195–96 charitable organisations, 82–83, 142–43, 193 children in detention: 72, 84, 85, 95, 148; abuse of, 3, 33; conditions for, 33, 50, 63–64, 67, 89, 94; inquiries into, 3, 133; open



accommodation trial, 250–52; outings for, 39–40, 55, 87; psychological health of, 39, 56, 59, 89, 93–95, 179–80; schooling for, 55, 63, 85–86, 133; in Sweden, 250. See also detainees; refugees in Australia ‘children overboard’, 3, 135–39 China: immigrants from, 28; refugees from, 8, 28, 107, 171–72 Christmas Island: 137, detention on, 126, 170, 261; and migration zone, 5, 169–70; and Tampa, 122 churches’ involvement in refugee issues, 16, 36, 37–40, 83, 131, 132, 142–43, 219, 223, 228, 252 Citizens Advice Bureau, 142 Comprehensive Plan of Action, 240–42 Convention Relating to the Status of Refugees (1951): definitions under, 5, 71, 256–57; limitations of, 53, 114–15, 167, 170–71, 172–73, 231, 236, 263–64; misrepresentations of, 11, 32, 196; obligations for states under, 5, 109, 112–13, 187–88, 213, 233–34; restrictions applied to, 167–69. See also non-refoulement Conybeare, Chris, 104, 115, 116, 241–42 Courier Mail (Brisbane), 124, 134 Curtin detention centre (Western Australia), 9–10, 13–15, 26, 32–33, 35, 51–52 defence force: border protection role of, 123, 124, 126, 130, 135, 136–39, 200–02; liaison with government, 135–36 detainees: numbers of, 36, 50, 53, 84, 85, 127, 128, 130, 133, 173; psychological health of, 14, 34, 46–47, 50, 55–60, 85–86, 91–95, 97–98, 132, 215, 251–52, 254; religious affiliation of, 38, 39, 40, 50; self-harm by, 9–10, 15–16, 33–34, 52, 55–56, 60, 149, 173, 251; time in detention, 50, 53, 59–60, 75, 133, 148, 173, 197, 215. See also children in detention

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detention centres: break-outs from, 40, 47, 74; chemical restraint and, 41; conditions in, 3, 13–14, 32–33, 37–38, 40, 52, 54–58, 64–65, 85–87, 132–33; contact with outside from, 13–14, 33, 40, 44–46, 47–48, 50; education programs in, 85–86, 87; hunger strikes at, 9–10, 13, 16, 52, 56, 173; isolation of, 9, 13–14; media coverage of, 10–12, 15, 49, 51, 59, 84, 132; medical care at, 41–42, 55, 56–58, 84–85, 92–93, 132; ministerial visits to, 11, 48–49, 179–80; new, 37–38, 54, 60, 180; overcrowding at, 87, 89; protests at, 9–10, 13, 25–26, 33–34, 35, 47, 49, 51–52 , 55–56, 133; religious observance at, 12, 38–39, 40, 87; riot control at, 35, 49–50; secrecy surrounding, 12, 43–44, 48, 49, 96–97, 132; security at, 39, 40–41, 60, 67–68, 88; sexual abuse in, 3, 33, 50; work for detainees at, 37, 45, 67, 83–84, 86 detention of refugees by Australia: bipartisanship over, 3, 74–75, 115, 117, 261–62; conflicts with UN covenants, 51, 72; cost of, 54, 70, 79–80, 82, 126, 170, 174, 236–37; inquiries/investigations into, 3, 33, 52, 65, 75–76, 86–90, 115; legal challenges to, 75, 125; legislative backing for, 72, 74–75, 169, 170, 246; and open accommodation trial, 250–52; in Pacific, 126, 127, 130, 132; political responses to, 11, 54, 74, 91, 215; privatisation of, 76, 80–82; psychological effects, see under detainees; public responses to, 3, 28, 38, 75, 245–46, 257–58, 263; reasons given for, 5, 12, 45, 49–50, 52–53, 70, 90–91, 117, 169, 170–71; in separation, 6, 45, 48, 52. detention of refugees elsewhere: alternative models, 53, 69, 246, 247–54, 255–57; in Britain, 69–70, 81–82; in Canada, 69, 247; proposed for Indonesia, 239; in

Sweden, 247–50, 251, 253–54, 255–56; in United States, 69, 232 Downer, Alexander, 128, 129, 133, 217 Dunbar, Sherron, 147, 150 Dunera boys, 2 East Africa, 21–22, 30 East Timor: asylum seekers from, 24, 210–12, 218, 223, 224; conditions in, 182, 212, 221–22, 225; nationality question and, 214–20, 222; refugee-determination and, 155, 182, 212–13, 214–15, 218, 220–22, 223–24; refugees in, 30; repatriation to, 181, 185; safehaven refugees from, 181–86; under UN administration, 220–22; war crimes investigation and, 185–86 El Salvadoran refugees, 151 Federal Court of Australia: 7, 59, 75, 158; cases cited, 151–52, 155, 159, 218–20; privative clause and, 162–65, 262 Fiji, 24, 131 Foundation for the Survivors of Torture, 91–92, 224–25 Fraser, Malcolm, 73, 113, 237 Gillard, Julia, 133–34, 258–62 Greiner, Nicholas, 113 Group 4 Falck, 81–82 Gusmao, Xanana, 217 Hand, Gerry, 90, 115, 157–58 Hanson, Pauline. See One Nation Party Hawke, Robert (Bob), 31, 74, 113–14, 115 Herald Sun (Melbourne), 32 High Court of Australia, 7, 75, 158–59 Hodges, John, 64, 80–81, 132 Howard, John: 230, 122–23, 125, 177, 262; and ‘One Australia’, 113–14; on refugees, 134, 135, 187 Human Rights and Equal Opportunity Commission, 63; reports by, 33, 65, 86–88, 133 humanitarian program. See under offshore refugee program

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immigration: history of, 1–2, 240–41, 243, 245; policies, 90, 101–02, 258–60, 261–62; politics of, 26–27, 113–14, 115–16, 119, 133–35 Immigration, department of: and administration of detention, 40, 48, 80–81, 84, 86–89, 93, 250–51; annual reports, 82; Detention Agreements, 82–84, 88; explaining detainee disturbances, 40, 49, 52; Immigration Detention Standards, 33, 45, 63, 87, 88; media control by, 12, 15, 31–32, 49, 131–32; and waiting lists, 20; research impeded by, 96; role in refugee-determination, 7, 45, 140, 145–47, 149, 204, 206, 212, 227–28, 254–55. See also safehaven program Immigration and Ethnic Affairs, Department of. See Immigration, department of Immigration and Multicultural Affairs, Department of (DIMA). See Immigration, department of Immigration, Multicultural and Indigenous Affairs, Department of (DIMIA). See Immigration, department of Independent Detention Advisory Group, 60, 64, 81, 132 Indonesia: boats depart from, 126, 127, 136, 199–200, 216; people-smuggling in, 3, 200–01, 234, 238, 243, 260 Indonesia–Australia: joint operations, 238–40; relations, 24, 31, 185–86, 188–89, 216, 239; and Tampa, 122, 124, 125, 239; International Commission of Jurists, 185–86 International Covenant on Civil and Political Rights, 72, 171 International Organisation for Migration, 132, 140, 238 interpretation and translation, 6, 60, 84–85, 146 invasion fears, 3, 27–30, 73, 116, 216–17



Iran: refugees from, 44, 53, 59–60, 93–94, 98; refugees in, 30, 31 Iraqi refugees, 8, 9, 13, 53, 55, 107 islands off Australia: and migration zone, 5, 169–70. See also Christmas Island Justice for Asylum Seekers alliance, 15, 252–53, 255, 256 Kaplan, Ida, 215, 224–26 Keating, Paul, 216 Kennett, Jeff, 113 Kevin,Tony, 200–01 Kneebone, Susan, 152–53, 156 Kosovars: protest by, 179–80; repatriated, 179–81; as safe-haven refugees, 176–81, 184 Labor Party. See Australian Labor Party Lane,William, 28, 29 Levi, Primo, 226 Lightfoot, Senator Ross, 28, 195–96 Lubbers, Ruud, 141, 237, 242–43 McGorry, Dr Patrick, 91–92, 96–97, 98 MacKellar, Michael, 73, 113 Macphee, Ian, 113 Mandaeans, 38 mandatory detention. See detention of refugees by Australia Maribyrnong detention centre (Melbourne), 63, 68, 96 Marsden, John, 29–30 media reporting: deficiencies in, 10–11, 15, 32, 195–96; dependent on official sources, 12, 49. See also talkback radio Mercury (Hobart), 178 Migration Act: amendments to, 5, 72, 75, 90, 167–70; vs international obligations, 51, 72, 167–69, 172, 187–88; Part 8, 157, 158; provisions of, 72, 74–75; regulations, 187; sections cited, 51, 75, 106, 171–72, 221, 257 migration agents, 6–7, 161, 165–66, 207–08, 236–37 migration program, 19, 102, 110 migration zone’, 5, 169–70, 262

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Nauru, 125–26, 127–29, 131, 146, 174 New Zealand, 125 non-refoulement: 52–53, 174, 190–91, 253; obligations, 170–72 offshore refugee program: xv–xvi, 4–5, 18, 73, 111–12, 177; application processes, 20, 22–23, 202; humanitarian program, 4, 19, 110; impediments to, 22–24; waiting lists, 20. See also ‘Pacific solution’; ‘queue-jumping’ Olsen, John, 194–95 Ombudsman (Commonwealth), 15–16, 87, 89–90 One Nation Party, 26, 115–17, 134 onshore refugee program, xv–xvi, 4–5, 18, 24, 45–46, 48–49, 111, 206–07; ‘lawfuls’ vs ‘unlawfuls’, 5–6, 50, 70–71, 104–05, 109–10, 143 Pacific nations and Australia: relations, 125, 127–31; aid, 125, 127, 128, 129, 139–40 ‘Pacific solution’: cost of, 126–30, 140, 245; creation of, 125–26, 127; effects of, 4, 5, 140–41, 169–70, 233; refugee-determination in, 139–40, 169–70 Pakistan: immigrants from, 19–20; refugees in 20, 21, 22, 31, 148–49, 257; nationals of, 24 Palestinians, 53 Papua New Guinea: refugee deal with, 126, 130–31 people-smuggling, 3, 16–17, 107–08, 117, 122, 126, 146, 169–70, 198, 200–01, 203–04, 208, 234–35, 238, 239–40, 243, 256, 260, 262 Perth detention centre, 87 Port Hedland detention centre (WA), 35, 45, 53–54, 65, 67–68, 74, 87, 89, 171, 195 Portuguese nationality and East Timor, 214–20, 222 Protocol Relating to the Status of Refugees. See Convention Relating to the Status of Refugees

‘queue-jumping’, 18–20, 22–25, 110–12, 206–07, 259 Red Cross. See Asylum Seekers Assistance Scheme Refugee Council of Australia, 50, 163 refugee-determination in Australia: assessment of, 104–05, 108, 205; compliance interview, 6, 51–52, 150; cost of, 148, 155, 158, 236, 256; credibility test and, 145, 147–52; criteria affecting, 13, 19–20, 167–68, 205; DORS committee, 74; executive vs judicial in, 7, 70–71, 108, 157–60, 162–65, 167–68, 227; funding for, 6; judicially reviewed, see Refugee Review Tribunal; language tests in, 147–49, 153; limitations of, 145, 165–67; ministerial discretion and, 8, 74, 106, 171–72, 188, 189, 202–03, 228, 257; nationality and, 212–20, 222; outcomes of, 50–53, 108–09, 139, 140, 220–21, 222–23, 227–28, 254; political factors affecting, 104, 122–26, 139, 177, 178, 182, 187–89, 215, 217, 220; processes of, 5–8, 45, 48–49, 71, 145–47, 178–79, 190–91, 202, 204; suspended, 173, 212. See also asylum seekers in Australia; detention of refugees in Australia; ‘Pacific solution’; safehaven program; temporary protection visa refugee-determination elsewhere: 108–09, 139, 171, 203, 232, 240–41, 243–44. See also United Nations High Commissioner for Refugees refugee movement internationally: 20–21, 30–31, 176, 208–09, 213, 231, 232–33, 238, 253, 260, 264–65; cost of, 236; history of, 16–17, 72–75, 234, 240–41; new approaches to, 237, 240, 242–45; numbers involved, 16, 20, 73, 103–04, 111–12, 232, 242–44; push factors, see under asylum seekers; resettlement countries

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compared, 103–04, 178, 235, 245, 247, 249–50. See also peoplesmuggling; United Nations High Commissioner for Refugees refugee programs. See offshore refugee program; onshore refugee program; ‘Pacific solution’; safe-haven program Refugee Resettlement Advisory Council, 9, 14, 98 Refugee Review Tribunal: abuse of process in, 158–59; annual report of, 155; conduct of cases by, 150, 152; decision making at, 152, 154–56, 157, 221–22; decisions of, 59, 151, 155, 159, 214–15, 218, 223; functions of, xvi, 7, 150, 156–57; independence of, 152–56, 189; judicial oversight of, 7, 59, 151–52, 158, 159–60, 164–65, 218–20; and legal aid, 160–61, 162, 165–66; members of, 153, 155, 161, 221; nationality argument and, 213, 214–15, 218–20, 222; openness of, 152–53; privative clause and, 162 refugees in Australia: assistance for, 142–43, 192–94; contribution of, 1–2, 26, 197, 198; eligibility for services, 25, 98, 114, 143–44, 193, 194–95; families of, 17, 19, 25, 108, 197–99, 202–03, 208; individual experiences of, 17–18, 19–20, 25–26, 62–68 , 98–99, 144–47, 197–99, 207–08, 211–12; legal standing of, 143; living conditions of, 17, 62, 144, 194, 196, 197, 206–07; numbers of, 18–19, 20, 73–74, 103–04, 107, 110, 114, 243; processing of, see refugeedetermination in Australia; protests by, 25, 176, 179–80; psychological health of, 14, 26, 95–98, 198–99, 204–05, 224, 228; State resources provided for, 195; suspicion of, 2, 195–96; temporary, 193–99, 202–06, see also safehaven program; torture and trauma among, 42, 199, 223, 224–26; work rights of, 143–44, 211. See also asylum seekers;



detention of refugees in Australia Reith, Peter, 127, 129, 134, 135, 136 Roach, Neville, viii–ix, 203 Ruddock, Philip: and Amnesty International, 113; background of, 100–01; and cabinet, 114, 177, 220; character of, 100, 106, 113, 115, 118–19, 203; on courts, 108, 158, 163–64; on critics of policy, 76, 110, 246; and department, 115; depiction of refugees by, 16, 28, 32, 54, 59, 108, 114, 143, 205; and Indonesian operations, 238–39; interviewed, 11, 106–12, 196, 206–07; as minister, 106, 118; and ministerial discretion, 106; in opposition, 101, 113–14; on policy, 90, 101–02, 110–11, 194, 247; on refugee movement, 107, 109–10, 118, 139, 234; on refugee swap, 233–34; on RRT, 153–54; and safe-haven program, 177, 178, 180, 181, 187, 189–90; statements/claims by, 50, 195, 233; visits detention centres, 11, 48, 179–80 safe-haven program: accommodation for, 177–78, 182, 186; administration of, 178–79, 180, 181, 182–83, 185, 186, 187; children in, 179, 180, 183; cost of, 186; facilities for, 177; government’s handling of, 176–77, 178, 179–81, 186, 188–89; medical care under, 182–85; policy concerns of, 182–83, 184, 187, 188–89; public response to, 176, 177–78, 182; refugees’ repatriation under, 178–81, 185, 189; refugees’ unrest over, 178, 179–80; secrecy over, 185–86; visas created for, 177, 187–88, 189 Salehi, Dr Nouria, 22, 193–94 Sanctuary Network, 219, 228 SBS TV: ‘Dateline’, 200, 238; ‘Insight’, 205 Sciacca, Con, 27, 117, 258 Senate Committee inquiries, 52, 75–76, 130, 136, 149, 152, 155, 156, 159, 160–62, 163, 200–02,

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245 September 11 attacks, 3, 81 Short, Jim, 115 SIEV X, 3–4, 199–203, 244, 260 Sinclair, Ian, 113 Somali refugees, 95 Sri Lankan refugees, 92, 96, 144–45 Straw, Jack, 231 Sunday Times (Perth), 11 Sweden’s refugee system, 109, 247–50, 251, 253–54, 255–56 Sydney Morning Herald, 11 talkback radio, 38, 113, 116, 134 Tampa: repercussions of, 3, 7–8, 133–35, 141, 167, 205–06, 257–60; rescue by, 121–23 temporary protection visa: conditions of, xvi, 7–8, 202, 205–06; effects of, 25–26, 194–95, 197, 199–200, 202, 203–06, 257, 262; inquiry into, 204–05; introduction of, 193, 199 translation. See interpretation and translation UNHCR. See United Nations High Commissioner for Refugees United Nations: committees, 31, 72; conventions, 171, 172; local missions, 181, 182; rights for detained persons, 51; in East Timor, 220–22 United Nations High Commissioner for Refugees: 16, 103, 124, 140, 173, 174, 208–09, 232, 236; corruption and, 21–23; Detention of Asylum Seekers Guidelines (1985), 71–72, 90; funding for, 236–37, 245; local offices of, 21, 180–81, 202, 208, 243–44; new strategies proposed by, 237, 240, 242–43; refugee-determination by, 5, 20, 23, 139–40, 202, 208–09, 238, 240–41, 243–44 Vietnamese refugees, 30, 72–74 Villawood detention centre (Sydney), 9, 45, 59, 67, 68, 74, 83, 87, 89 visas: bridging, 12, 30, 72; family, 19–20, 102; humanitarian stay

(temporary), 173–74, 190–91; overstayers, xvi, 30; risk-assessment and, 24; student, 5, 143; tourist, 5, 143; transit, 24. See also safe-haven program; temporary protection visa Wackenhut: 76–77;Wackenhut Corrections Corporation, 77–78, 80, 81. See also ACM West Australian, 11 Westbridge migrant hostel. See Villawood White Australia policy, 4, 28 Whitlam, Gough, 74 Willmot, Eric, 29 Wirajuda, Hassan, 124 Wooldridge, Michael, 26 Woomera (town), 35–37, 40–41, 44, 47, 61, 165, 250–51 Woomera detention centre (SA), 3, 33–34, 35, 37–45, 47–51, 54–60, 84–86, 89, 93–94, 173, 192, 251–52