Part 3 transcript

Julian Burnside:

It is kind of depressing to realise that there is continuity in some things.

I want to start with a few facts and then touch on the legal and moral constraints that those facts throw up. First of all, we receive at the moment 13,750 refugees in Australia every year. Most of them come from the offshore resettlement program, some of them, just a few of them, come as boat people, and oddly enough the largest number of uninvited asylum seekers who come to Australia do come by air, on tourist visas or student visas or sometimes business visas. Curiously, although their chances of establishing that they are genuine refugees is much, much smaller than the chances of the boat people, their arrival is Australia and their seeking asylum, causes no alarm whatever. I think the numbers, I mean they vary of course, but approximately three or four times as many asylum seekers come to Australia by air on short term visas than come here as boat people. On average, over the last decade or so, approximately 20% of those arrivals, succeed in their claim for asylum, but they live in the community for years whilst they wait for their process to be completed, and they cause apparently no great concern to anyone.

By contrast, boat people who come here, traditionally in historically very small numbers, are successful in their asylum claims in something north of about 90% of cases. They are the one group of asylum seekers who are locked up under the mandatory detention system. The ones who are most likely to be fleeing persecution are the ones who we lock up. That has a couple of pretty obvious immediate consequences. One is that the psychological harm which is a natural result of locking up innocent people for an indefinite time – that harm is maximised because it is a harm inflicted on people who are already traumatised and damaged.

The response of the Australian community at least for the last fifteen years, but it seems for a lot longer than that, has been that of unbridled hostility, except for an interesting interim period. You may remember that between mid 2005 and round about early 2008, mid 2008 perhaps, Australia was conspicuously welcoming to boat people. Nice stories were written about them in the press. Nice things were said about them by politicians. The only three-year time I can think of where we have been publicly generous in our attitude to boat people, and incidentally the only time when none of them were arriving. A curious irony in that.

The mandatory detention system is our response to our hostile reaction to asylum seekers who arrive here by boat. It involves locking people up who have not committed any offence at all. It is not an offence to arrive in Australia uninvited, without papers, and ask for asylum. It is not a criminal or any sort of offence, in fact it’s a right we acknowledge in the Universal Declaration of Human Rights as belonging to every person. Mandatory detention has been tested a number of times in the High Court of Australia. In the most notorious case the decision of Al-Khateb, the court had to decide what happens when … you have a problem. Here is a person, a non-citizen, he has not a visa. He is locked in Woomera whilst he waits for a visa. He is refused a visa, can’t stand it, says, instead of appealing, he would rather be removed from Australia. The Migration Act said, until recent amendments: a person, a non-citizen in Australia who does not have a visa must remain in detention until he gets a visa or until he is removed from Australia. Well, Mr Al-Khateb had been refused a visa and couldn’t be removed from Australia. So the Howard Government, with Ruddock calling the shots, argued all the way to the High Court, that Mr Al-Khateb, innocent of any offence, not suspected of being a risk to anyone, could remain in detention for the rest of his life. And on the 6th of August, I think, 2004, the High Court by a four to three majority, said that is what the Migration Act means, and with that meaning it’s constitutionally valid.

Now, one of the political arguments in support of mandatory detention was that it is a deterrent and I think that underpins one of the key points in what are our moral obligations. Hard treatment characterised the Howard Government’s attitude to asylum seekers. Hard treatment again began to characterise the government’s response to asylum seekers once Tony Abbott became leader of the opposition. As soon as he started beating the boat people drum Rudd and then Gillard fell into step and started talking conspicuously harsh about boat people.

One of the consequences to this is profound damage to the people who we lock up. Self harm is common, suicide is disproportionately common, and you know, the legacy of it, the legal legacy of it, the cost to our community of it, is going to last for a very long time. Just as a quick illustration, one man I’m acting for in South Australia at the moment, who was noticed by the Department within weeks of his arrival as being a victim of torture in Iran, who was terrified of being held in a small room by himself, who repeatedly self harmed as he grew more and more desperate, the best they could do for him for five years was to give him Panadol. They refused to accept that he needed psychiatric care. And when he was eventually, by court order, sent to a psychiatric hospital in South Australia, he was examined physically and it was discovered he had ten metres of scarring on his body from his repeatedly throwing himself on the razor wire, cutting himself with broken glass and so on. Can you imagine that? Ten metres of scarring. And yet they thought Panadol would be just about right.

Now, what are our legal obligations? The first, the fundamental legal obligation is non-reformant, that is to say, under our obligations under the Refugees Convention, we cannot send a person back to a place where they face the risk of persecution for convention reasons. The fact that we have a non-reformant obligation means that we have an obligation to assess people and see whether or not they are refugees, who, if sent back, would breach our non-reformant obligations. But they are really the only legal obligations we have to them, although I suspect it doesn’t stop there. I was handed this poster on the way in and you’ve all got a copy of it on the desk in front of you. And the headline is “Justice for Refugees”. Well, there’s an interesting question. Do refugees deserve justice? Do we have a legal obligation to afford them justice? I would say plainly yes. At least it’s a moral obligation. They are human beings. We regard justice to other human beings as important. Justice is not what they get at the moment.

So let’s look at the moral obligations. Because there’s just a tiny possibility that politicians some time will yield to arguments based in moral considerations. The first I think is that we have to treat them decently and process them fairly. And the reason for that is that they are after all, human beings. They do deserve to be treated as if they are human beings even if that involves a suspension of disbelief in some parts of politics. But that’s not enough. It’s not enough just to treat them decently and process them fairly. It seems to me that what we have to do is to bear in mind the moral consequences of a policy of deterrence. If you remember that they have not broken the law, then you accept that we are dealing with innocent human beings. Treating innocent human beings harshly in order to deter other people from seeking our help is profoundly immoral. You do not mistreat the innocent in order to deter other people. Punishing guilty people to deter others is standard fare in the criminal law. But punishing innocent people is a very different proposition. It breaches I think basic principles of every moral code that I have any knowledge of. It always struck me as ironic that John Howard, a professed Christian, and Tony Abbott, a vigorously professed Christian, are prepared to take pride in the fact that a policy of deterrence is effective. Well, we can test it by a simple thought experiment. I will guarantee you, the people of Australia, that no more boat people will ever come here. Ever, until the end of time. I demand only one price. And that is that we take a couple of children out of detention and publicly execute them. OK? We punish a couple of innocent children but we will have had a great benefit for the rest of the community. I can’t think of anyone who would justify such an approach. Tony Abbott maybe. I’m not sure. And if killing seems a bit tough, well then what say we just take half a dozen kids from detention and torture them for a while. Publicly, so that everyone will get the message. This is not a place to come and ask for help. I wonder how many people would go along with that? And yet somehow the public has swallowed the idea that it’s morally OK to hide them by their hundreds or their thousands behind razor wire where the torture is slow and unseen and the damage much harder to fix. Somehow our moral consciences seem to be clear but it seems to me the moral obligation is to avoid any policy which involves those integers.

Let me say as I remind you again of the rally which is to be held on the 7th of November at 2pm outside the State Library seeking justice for refugees. We need to be careful and clear about what that actually means. I do not advocate that people who arrive uninvited, without papers, should simply be allowed into the community direct. On the contrary, I would say that an initial time of detention for health and security checks is perfectly justifiable. But it should be capped at one month. Maximum one month. Unless a court is persuaded in a particular case that a longer time of detention is justified for some good reason shown. Why do I make these arguments? Ultimately, if we’re talking about moral considerations, the one moral principle which I think is common to every religion and every code of morality is couched in our dialectic is the obligation to do unto others as you would have them do unto you. Now the question is this. If you have seen your family killed by the Taliban, if you have seen your neighbour’s eyes torn out before he was thrown into a pot of boiling oil, as a client of mine saw, if you’ve seen things like that and you need to escape, what would you do? Would you queue up? Would you wait patiently for the Taliban to come and get you? Or would you run for your life and do what you had to do to save yourself and your family? And if only we could imagine in Australia what we would do if we were fleeing the terrors they’re fleeing, then perhaps we would be prepared to take a very different attitude and do to them as we would have them do to us. Thank you.