Asylum Seekers, Illegal Immigrants or Smuggled People?

Julian Burnside
a speech delivered to the Politics Society of Latrobe University, 19 March 2002

Tonight’s forum is entitled ‘Asylum Seekers, Illegal Immigrants or Smuggled People?’ This implicitly asks who these people are, and how we are to understand them. Equally uncertain as the question ‘Who are they?’ is the question, ‘What is the nature of the problem presented by these people?

The problem facing Australia is overwhelmingly a moral one, and the moral nature of this predicament is underlined by the perplexity with which our country has grappled with thisit. It is a moral problem that has been driven by party politics and politicians in recent times. This moral dilemma has been implemented by the parliament, validated by the courts (despite the best endeavours of some lawyers working in the area); and more recently and most disturbingly, it has been vindicated by the electorate in the overwhelming endorsement of Howard’s policies in the November elections. Yet it remains a moral problem which we as a country are dealing with extremely badly.

I suspect that one reason we are dealing with it so badly is that the true nature of the problem has remained hidden for so long.  It has remained hidden because it suits the politicians to dress it up as a problem of national security, a problem of border control, and a problem of sovereignty; so that in the famous Howard expression: ‘We will determine who comes into our country and in what circumstances’.

This moral problem has been further disguised by the fact that the politicians have either deliberately or inadvertently elided three distinct elements of the matter: they are the questions of border control, immigration policy and the treatment of refugees. All are quite distinct, separate problems. All require quite different thinking, and all require separate solutions, and yet somehow our political masters have managed to run these problems together and use the ugliest bits from each.

Now, with increasing horror, we see in the detention centres and also in the wonderfully named Pacific Solution (which hints at the horrors it conceals), the ugly solution that we as a nation have not yet grasped in all of its complexities.

I want to deal with two matters – the Pacific Solution and where it is leading; and the system of indefinite mandatory detention and where that might take us.

The Pacific Solution was an immediate and astonishingly popular response to the Tampa case. I must say that the more I reflect on it, the more I regret that we ever allowed the Tampa case to proceed, because against every expectation and certainly against anything we ever imagined or wished, the small step forward we made in the Tampa case achieved only two things. One was to highlight a genuine moral and humanitarian problem, and the other was to scrape away the thin veneer that masks the grim fact of Australian xenophobia. I doubt that there has ever been a case that so innocently and inadvertently encouraged such a vile regime as did the Tampa case, (although perhaps the Reichstag fire prosecution comes somewhere near it).

The insidious thing about the Pacific Solution is that it preys on indigent countries who have no real choice whether to lend themselves to the wishes of an Australian government which can throw millions of dollars at them.

I heard someone not so long ago draw an analogy with prostitution. If a woman has no income and no way of supporting herself, then prostitution is an available, if undesirable, response. I think Nauru can be fairly regarded as one of the fallen women of the South Pacific. For this we don’t blame Nauru, we must blame the Australian government.

But it is worse than that. If it were merely the predatory conduct of a large nation against a smaller and less well-defended nation, one would say; ‘Well that’s just the way the world is.’ It is worse than that because it does not deal with the problem, it simply hides it, because by deflecting people around Australia’s borders and dumping them in Nauru, we make Australians somehow feel more secure. It is a totally false sense of security, and does not in any way deal with the true problem of border control.

In some vague way, most Australians feel as though the government has acted in a strong way and has dealt with the problem. That is a fraud. The fraud is made all the worse when you consider what must be going on beneath the surface, although we haven’t yet managed to expose it.

Consider the terms of the Nauruan constitution. Unlike the Australian constitution, which is a late Nineteenth Century piece of thinking, Nauru’s constitution is quite modern and includes provisions that ban detention without trial, as most civilised countries should. Australia’ constitution hasn’t yet caught up.


Nauru’s constitution bans detention without trial, with only limited exceptions. One of the exceptions, which comes nearest to the present circumstances, is detention for the purpose of deporting a person who arrived without the permission of the relevant authorities in Nauru. One might think that perhaps that justifies that these people are being held entirely against their wishes on Nauru. But it turns out that the visa application for theTampa people was a single bulk application – a very lazy bit of work – it is simply a single sheet of paper for the 482 people “as per the attached list”. It was signed on their behalf, but perhaps not with their knowledge, by an officer of the Nauruan immigration office. Thus, they cannot be said, on any view, to be people who had arrived against the wishes of the Nauruan government. Added to this of course, it would seem that the Australian government did some kind of political deal with Nauru to allow the people to come in.

These people are being held unlawfully, in a way that is unconstitutional in Nauru. The Australian government could just as easily have locked them up here without constitutional protection. Rather, it was thought it politically expedient to ship them off to Nauru at a cost to Australia that is obscene. How the government seeks to justify that is extremely difficult to know, but I suppose having taken the first step in prostituting Nauru, the rest is just a quibble.

The matter goes a step further because last week (early March) the Australian government introduced to parliament yet another set of amending measures to the Migration Act, which has to be one of the most amended acts of recent times, apart from the Income Tax Assessment Act. I’m not sure now which of them I like less.

The new measures introduce a wonderful new concept (which has the same Orwellian ring to it as the ‘Pacific Solution’), and this is the concept of a ‘transitory person’.

A transitory person is defined in the Bill as a person who arrived in Nauru on the Manoora or the Tobruk, or other people who arrived in similar circumstances as defined, and who are removed from Nauru and brought into Australia. They can be brought into Australia for any of three reasons. One is for medical reasons, the second is to give evidence against people smugglers and the third is for “any other purpose”. You get an idea of the colour of the purpose, but it can be quite misleading.

Especially misleading is it when you consider that a large detention centre is now being constructed in that ambiguous piece of territory called Christmas Island, which is at one time part of Australia and for other purposes not, depending on who you are and why you are there.

The interesting and deeply insidious aspect of these new provisions is this: a transitory person might be removed from Nauru or Manus Island (PNG), or any other country we might suborn; they may be removed by an officer of the immigration department (and for the purpose of these provisions an officer of the immigration department includes a member of the armed services), using such force as may be necessary to remove them. They are entirely excluded from the Australian legal system. Although there are provisions (“such force as may be reasonable” provisions) supposedly to protect them from the excesses of people dealing with them, in fact they have no practical way of enforcing those rights. This remains the case whether they are in transit, or in detention (either in Nauru, or in whatever part of Australia or non-Australia they are taken to).

It is difficult to imagine the situation getting worse. I’m looking forward to the possibility of a new category of “non-persons”, which I suppose will be part of the ‘Final Solution’ and eventually we will have reached that perfect symmetry that seems to be driving John Howard and his cohort.

Here I would apologise to anyone who is offended by my implicit comparison between what is happening now with asylum seekers and the Holocaust. I accept that the Holocaust had a whole range of moral and other issues, which are almost unparalleled in history.  I would still say, and with the utmost deference to the Jews, the Gypsies, the Communists and the homosexuals who perished in the Holocaust, that the path we are on at the moment in Australia has so many moral similarities with that time that it is dishonest to deny them. If it is uncomfortable to acknowledge this, it ought to be so.


The other matter I want to touch on is the system of indefinite mandatory detention of informal arrivals. Unfortunately when one speaks or hears talking on this subject, the words ‘indefinite mandatory detention’ become a simple mantra which loses any real impact.

It is a startling thing to think that, at the beginning of the Twenty First Century, we have a system, which by legislative mandate involves people being locked up, in what on any view, is a prison without any judicial order. They have no recourse to the courts to review the question of whether they should be locked up. They are being locked up for a period that no one can predict; it is indefinite. When they go inside, unlike any common criminal, they cannot count the days before they will be free again.

Furthermore, unlike the orthodox prison system, eighty per cent of asylum seekers are kept in facilities that are so remote from any centre of civilisation that, if they had the prospect of anyone coming to visit them, that prospect is lost. Broadly, this is because to visit Woomera, or Port Hedland or Curtin involves literally days away from your ordinary activities. I said that the conditions in the detention centres are worse than would be tolerated in the prison system. It is a little surprising at first because they are for the most part run by the same people who run the prisons, but the fact is that conditions in the centres are appalling.

I was interested to recently come across some observations of Professor Richard Harding who is Western Australia’s Inspector of Custodial Services, and a person familiar with the prison system. He visited Curtin in June last year, and he said this:

‘…The so called education program was largely a charade (bear in mind how many children are kept in these places, bear in mind that the DIMA contract with A.C.M. [Australian Correctional Management] requires that education be provided appropriately to all people who need it).

‘That insight,’ he said, ‘really set the tone for the whole place. The huts in which the people lived were grossly over crowded, many of the toilets were broken, some of the washing machines were also broken, and the so-called shop was abominably stocked and rather inaccessible. The system for sending mail breached all standards of privacy and confidentiality, and above all, medical and dental facilities were inadequate. In summary, the conditions that exist in the Curtin centre are almost intolerable. Such evidence as exists indicates things are little better at the other centres, yet these things are also largely invisible except when riots occur. ’

It is easy to be thought to be exaggerating when you talk about conditions in detention centres. No doubt you’ve been reading Russel Skelton’s reports recently. The problem is that it is literally true. It is no better in Nauru.

This is a letter written to us in February by one of the Afghani people from the Tampa. He is currentlyin Nauru. He mentions the water supply:

‘I mean that we do not have enough water for going to toilet, taking bath, or washing our clothes. For example in one corner of the camp there is one water store, in which most often only one water tank is delivered everyday and here are almost 500 people consuming water from the same tank.

‘An interesting story is that when Mr Phillip Ruddock came here our water stores were all full. And we tried to utilise it to our best. Most of us bath when it rains heavily, however our water is spent very soonly and then for the rest of the day and night our toilets are awfully smelling and there are thousands of flies and mosquitoes in each toilet’.

This is a person who has been writing to us now for a few months and who has been extraordinarily restrained in his comments about conditions, but whose personality is gradually deteriorating. Things are intolerable there. And those words are matched perfectly by reports that you get from Curtin, and from Port Hedland, and from Woomera, and to a lesser extent from Villawood and Maribyrnong.

It is not easy to choose the things that illustrate most economically the problems of conditions inside of the detention centres. They have to queue for soap. It is common to be subjected to the minor, but irritating torment of queuing for half an hour for soap at Woomera and to reach the head of the queue; only to be told to come back half an hour later, for no reason at all. All you want is a piece of soap but they send you away and have you come back later. The people who are in charge of these places develop very rapidly, it seems, the mentality of guard versus prisoner.

I had an interesting experience myself a few weeks ago in Maribyrnong. Kate [Durham] and I went out to Maribyrnong to visit a couple of people there, and it happened that I was due to represent one of them in court the next day.

When you go to Maribyrnong you get a piece of paper at the security entrance. You write your name, you write your address and phone number, the names for the people you want to visit and your connection to them, and then you show them a passport to prove who you are. Kate wrote the same two names as I did because we wanted to see the same people. She wrote that her connection to them was ‘friend’. I wrote that my connection was ‘Barrister’. This was in the 7-9pm social visiting spot. Kate sailed through the double security lock, but I was told that there was a problem with my form.

I said: ‘What’s the problem, Chris?’

‘You’re a Barrister, aren’t you?’

‘That is true’.

‘Yes, I saw you on TV’

‘Bad luck for you!’

And he said: ‘Lawyers’ visiting hours are between 9 and 5.’

He clearly took pleasure in saying that.

I said: ‘Oh gosh, I follow that, but surely it can’t mean that lawyers aren’t allowed to visit in the evening visiting slot?’

And he said: ‘Well that’s the rule: visiting hours for lawyers are between 9 and 5.’

‘Surely the rule can’t mean that’.

‘Well it’s the rule’.

‘Can we have a look at the rule and check whether that’s what it really means?’


‘Why not?’

‘It’s confidential’.


It was all very good humoured. He was obviously enjoying himself. Having stepped through the looking glass, I was quite amused by it all. I had another run at him, but it was to no avail.

I said to him: ‘Look, I’m a friend to one and a lawyer for the other, what am I meant to do?’

‘You’d need two forms.’

‘Perfect, can I have a second form please?’


‘Why not?’

‘You’re not allowed two forms.’


Now I’m sure there is a luxurious pleasure in jerking around a lawyer who doesn’t represent your own view of the world. But if he was prepared to do this to me, with the reasonable expectation that I might make a fuss about it (although I didn’t), what is he likely to do to people who are hopelessly dependent on the ACM guards? If detainees get on the wrong side of any of the ACM people they can expect to be treated badly. The potential for torment is appalling, and torment of course there is.

Consider the fact that in Woomera women have to queue when they need a tampon.

Consider the fact that a few weeks ago when a friend of mine was in Woomera she saw a couple of teenage Afghani girls wandering around wearing nappies. When she asked why that was, she was told that the stress had made them incontinent.  These are teenagers, reduced to wearing nappies. Perhaps that’s the best reflection of what the conditions are like: just look and see what it does to the people.

We’ve had a couple of other letters from people in detention. which I think are worth reflecting on for a moment.


This is from a letter written by someone at Maribyrnong.

He wrote; ‘I received your letter on the 11th February and I was happy very much. Please you give information about our situation to Australia because some people have not any information about detention centres. Today I had two visitors who came to my visit for the first time. One of them was journalist. One of them was girl, 25 years old. They had notany information about detention centres and could not believe. And the girl was crying after we talked to her. But I believe that we don’t must look at our situation like sentimental people, we must look very deeply to these circumstances so that what we’re eating and that we have a lot of suffering is on the second level.  But first you must see why the people are coming here, and why for a long time they are staying in detention…’


He goes on: ‘I don’t must be sensitive and I don’t must cry, because the cry make happy the enemy. But finally I will write for you the difference between detention centre and zoo: in the zoo the humans care for animals but in detention centres the animals care for humans.’[Pull quote]

And perhaps the most poignant letter I’ve seen in recent weeks came from Port Headland, written on the 14th of February:

‘I wanted to write to someone outside because I don’t have anyone outside and I need to write some letter because I forget everything this two years I am in this prison. I am very happy this time because I learn some good Australians support us. Please we need freedom like every human. I have two years and I don’t hear anything about my family in my country…’

He finishes: ‘Please don’t forget us, we’re humans.’

I think that is the answer to today’s subject. Beyond any characterisation given by politicians and lawyers, or by members of the press or the general public; beyond ‘Asylum Seekers’, ‘Refugees’, ‘Smuggled People’ or ‘Muslim Hordes’, or any other epithet people come up with, they are human beings and they deserve to be treated properly like human beings.

We diminish ourselves by the way we treat them. Once we recognise that these people are human beings, we recognise that the problem is in truth a moral problem and that we have made a profound mistake in the way we have handled it.

We must not rest until this outrage to humanity is ended.