16 October 2002
Julian Burnside QC

Australians have a traditional instinct for a fair go. It is one of the core values of our society. In the past this has been reflected in our concern for the underdog, the battler. Does government policy reflect these values any more? Has Australia abandoned these values, whilst maintaining the rhetoric of a fair go for all? Australia’s treatment of refugees in the past decade stands in stark contrast with our stated ideals; reform of workplace relations has led to increased vulnerability and marginalisation; yet all the while the government maintains the rhetoric of a fair go. The government has made unprecedented attacks on the Judiciary and has politicised the public service, yet it claims to be dedicated to justice and democracy.
Australia’s core values

In Australia, we pride ourselves for our human rights record. Here is a prominent Australian speaking in November 2000:

“I want to talk about the centrality of human rights to our foreign policy objectives, and our decision to make effectiveness the guiding principle of our actions. …

The second reason for our distinctive approach to human rights has more to do with an Australian way of doing things. Our approach is pragmatic but it is also firmly rooted in an ideological commitment to liberal democratic ideals. I believe this blend of the practical and the idealistic very much reflects the character of Australia. A separate public forum could no doubt be dedicated to discussing what core Australian values are – or if they even exist – in the year 2000. Personally, I have no qualms in saying that one of our abiding values is that of a fair go for all.

Australians care about human rights because they believe strongly in a fair go, they support the underdog and they take particular exception to abuses of power. They see justice and human dignity as the self-evident right of all people. They also prefer to cut through the rhetoric and do something useful….”

A fair go for all is probably as close as we get, in Australia, to a shared core value. In addition, a fair go is a minimum requirement for – or perhaps a natural product of – a just society. Fairness is an indispensable element of justice.

In principle, a just society is one where, at the very least, everyone gets a fair go. In practice this is difficult to achieve. It is difficult for at least 2 reasons. First, it is often the case that your gain is my loss, so in order to give me a fair go you have to sacrifice something you value. Experience suggests that many people have more enthusiasm for their own rights and interests than for those of others. So, if the rich must pay more tax to relieve the homeless, the rich might be less inclined to speak out against homelessness.

Second, those rights and interests most need protection are almost always the voiceless, the powerless, the marginal. Their interests can only be protected by those who have a voice, and who have the material or intellectual capacity needed for the task. They are almost always from that part of society whose fundamental rights are rarely threatened; people for whom society offers justice.

Although Australia is, in many ways, dedicated to the ideals of a just society, I believe we have developed some unfortunate blind spots: specifically in the areas of workplace reform and refugee policy. The blind spots have been induced largely by the government presenting matters in a way which appeals to the self-interest of those whose rights or interests are not in question.

Incidentally, the prominent Australian who uttered those fine words about a fair go was the Minister for Foreign Affairs, Alexander Downer.
The philosophy of a fair go

Most people of goodwill understand, even if only vaguely, that living in a complex society requires all members of society to adhere to a commonly agreed set of norms and ideals. These are usually so basic to our thinking that we rarely give them any attention.

Although Australia does not have a written Bill of Rights, we have a shared sense that some ideals are basic to our society: the observed elements of a constitutional democracy are not all written into the founding documents of Australia, but we tacitly accept them as basic and inalienable: the importance of the rule of law; freedom from unwarranted intrusions on our privacy; the right to express dissent; an honest police force; a loyal army; an independent judiciary; a law-abiding government. These are ideals which are not shared in every country in the world, but in Australia at least they are so fundamental that they rarely need to be articulated.

The list of a society’s shared ideals could be longer, and in Australia the list would include something like the right to a fair go. Whilst many of the images of ourself are no longer accurate – the sun-bronzed Anzac, the heritage of the bush, for example – it is still true that Australians have a sense of the fair go which transcends self-conscious mythology. It is deeply embedded in our collective view of ourselves.

I want to focus on the idea of a fair go. Although the idea is a vague one, most Australians understand it and most would agree in characterising conduct as conforming to the idea, or not, as the case may be.

The law recognises the concept by different labels in different contexts. The “reasonable man” test in the law of torts is congruent with the idea; and reasonableness is a common test in other branches of the law.

The Harvester judgment comes close to recognising, in the framework of workplace relations, the idea of a fair go.

A just society cannot tolerate too great a disparity in the fortunes of its members: whilst there must always exist the possibility of self-advancement, a great gulf between the most-favoured and the least cannot long survive without compromising the ideals of social justice.

There are powerful reasons why government policy should seek outcomes which maximize the likelihood of a fair go for all. The reasons are self-evident. But there is one reason which dominates: it is not possible to have a truly civil society unless we all strive for genuine social justice. This is not just a matter of empty rhetoric and pious ideals: as we see the gap between rich and poor widen, as we see the diverging fortunes of the well-educated and the less well-educated; as we watch the widening gulf which separates the city and the bush, we must recognise that Australia’s future has ambiguous prospects. Our progress towards a just society is not assured.
Workplace reform

The egalitarian possibilities of the first generation of the 20th century look much more distant now than they did then. Many areas of law impinge on questions of social justice. Workplace relations law is one of the most significant. The Australia most of us cherish is not the Australia we presently live in: it is certainly not the Australia we will be living in 30 years from now, unless we begin to take seriously the social policy dimensions of workplace relations.

There are several important areas of workplace relations which currently produce demonstrably unfair outcomes: outcomes which cannot be justified by any sensible social policy framework. They erode the power of employees and enhance the power of employers, but they are sold under the banner of freedom of association and freedom of choice.
The separation of labour and capital

There is an increasing trend for employers to separate capital and labour. This has significant and damaging consequences for employees, and produces results completely inconsistent with any acceptable notion of social justice.

It is done in one of two main ways. First by placing the capital assets of a business in one company, and employing labour in a separate but related company.

The second is to outsource labour requirements, by obtaining them from an independent labour hire company.

Both techniques involve serious and immediate disadvantages for employees. Longer term, they produce results which are incompatible with any acceptable norm of social justice.

The paradigm example of placing capital and labour in separate but related companies was the exercise engaged in by Patrick Stevedores a few years ago. In September 1997, the assets of the main stevedoring companies were sold into new companies and the resulting credit balances were upstreamed to the holding company. The companies which had always employed the workforce – apparently large and successful stevedoring companies – were left with two assets only: their workforce, and contracts to provide the workforce to the new owner of the assets. The labour hire contracts were, in effect, terminable at will by the company with the assets. The employees had no job security whatever, and no means of knowing the fact.

The effective result was that the employer company could be jettisoned without harming the enterprise. This made it possible to dismiss the entire workforce in a single stroke.

Many Australians were shocked when, on the morning of 8 April 1998, they awoke to images of attack dogs and men in balaclavas taking over every major port in Australia. The immediate reaction of many was: This is un-Australian. They reacted that way despite the fact that the target was a deeply unpopular union, and without knowing whether any laws had been broken in the process. Regardless of the details, the whole episode seemed un-Australian, and it seemed so because it ran counter to our unconscious ideas about how Australian Society works.

The only party bound to gain from this strategy is the company which owns the assets. The only people bound to lose are the employees. As it happened, an obliging Federal Government had agreed, in advance, to provide the Patrick Stevedores company with enough cash to pay the accrued entitlements of the employees when the workforce was sacked en masse. Thus the risks associated with the stevedoring venture were transferred to the workers and underwritten by a Government enthusiastic for waterfront reform at any price.

The same technique – without the benefit of taxpayer funding – has been tried in a number of less dramatic circumstances. The upshot in each instance is that capital is engaged for the prospect of profit without risk, and labour is engaged for risk without the prospect of profit.

The cynicism of the exercise is obvious. The harsh consequences are obvious, and the harshness is increased when it is recognised that the employees have no means of knowing that their apparently prosperous employer is nothing but a corporate shell. The only certainty when this device is used is that employees will be left unpaid when their employer goes into liquidation. Even the visible assets of the business are not available to employees, because they’ve been insulated in a separate corporate entity.
Workplace Agreements

Even without the intervention of a labour hire company, individual Workplace Agreements can work great injustice. I do not criticize the use of individually negotiated contracts between employer and employee. However most Workplace Agreements are not negotiated at all: their terms are imposed on the employee with no realistic choice. In principle, employees have a choice whether or not to accept the agreement offered, in practice, this choice is often compromised by employers who let it be known that the future for abstainers will be short. An employee on an individual agreement may not take industrial action. Individual agreements each have different termination dates. When the time comes for renewal of the individual agreements, there is no prospect of combined industrial action. The employees lose the strength of unity. Whilst it is true that some unions misuse the strength they get from numbers, no-one could rationally suggest that the individual employee has any chance of equal bargaining with a large employer. Individual Workplace Agreements are the Trojan Horse by which the legitimate benefits of unionism are being destroyed.

No doubt many traditional employers regard this as a great and wonderful thing. Short-sighted self-interest is a great deceiver. The result of this technique is a growing vulnerability of individual workers, and a growing strength in operating companies whose dependence on, and loyalty to, the people engaged in their business reduces to vanishing point.

Such isolation of mutually dependent integers of commerce cannot work in the medium to long term, as a history of the industrial revolution shows. It is disturbing that the government promotes the use of Workplace Agreements as great advance in individual freedom of choice. In most cases it is little more than a thinly disguised attempt to expel unionism from the workplace.
Refugee policy

A just society requires as a minimum that all people be acknowledged as equal members of the human family, and that each person has an equal right to just treatment.

Let us consider Australia’s treatment of refugees against the requirements of a just society. First, a couple of important facts: It is not an offence to come to Australia and seek refugee status. We have an obligation under the Refugees Convention to consider all claims to refugee status. If a person establishes their refugee status, we have a legal obligation to protect them. Shortly stated, a refugee is a person who does not wish to return to their country of origin owing to a well-founded fear of persecution on racial, religious, ethnic or political grounds.
The Detention system

Those asylum seekers who get into Australia are compulsorily detained until their claims have been assessed. This process can take years. Australia is one of very few countries which require long-term detention of asylum seekers.

The government’s justification of the mandatory detention system is that it is necessary in order to secure the presence of asylum seekers for processing and (if necessary) removal. Specifically, the government has maintained that a bail system would not work. This is a surprising claim: bail works in the criminal justice system; it is not easy to see why it would not work for refugees. Recently an English group carried out a study of a bail system for refugees in the UK. In the UK, most asylum seekers are not detained: in 1999, only 1% of asylum seekers were detained; since September 11, policies have hardened: by mid-2003 about 4% will be detained. Those who are detained in the UK are, typically, the ones regarded as a high risk of flight. A group called BID (Bail In Detention) arranged bail for 100 of these “high risk” asylum seekers, and performed a longitudinal study to monitor their compliance with bail conditions. All but 9 of them presented when required: bail worked in 91% of cases selected from the high risk group. If anything, this is better than the performance of bail in the criminal system.

It is difficult to avoid the conclusion that mandatory detention, and the conditions in detention, are directed more at deterrence than at securing attendance for processing or removal. Conditions in detention are needlessly harsh, both physically and psychologically.

After sustained criticism of the Woomera detention centre, the government is gradually scaling down its operations. In its place is the new “Baxter” facility at Port Augusta. Mr Ruddock announced it as a “family friendly” detention centre. Ignoring for a moment the appalling hypocrisy of calling any jail for innocent people “family friendly”, here is an eyewitness account of the conditions in the recently opened Baxter detention centre from an inmate there:

§ Detainees do not have access to newspapers or television (only ‘videos’)

§ They are locked in their rooms from 9:00pm to 8:00am;

§ They are under constant surveillance by cameras;

§ There is no ‘shop’ from which they can purchase any small luxuries;

§ They can buy single cigarettes at grossly inflated prices;

§ If they want to send a fax, they are charged at the rate of $4 per page;

§ Unlike the other centres, where detainees may work for the princely sum of $1 per hour (remunerated in phone cards), there is no work and no remuneration for detainees at Baxter; they are not provided with stamps to enable them to correspond with friends.

Baxter is surrounded by an electric fence; but in the comforting jargon of the Department, this is officially an “energised fence”.

The DIMIA website contains a document which sets out the standards which must be maintained at detention centres by Australian Correctional Management (ACM), a commercial operation, which is paid to run them. The Department website says:

(The operating standards) ensure that the needs of detainees are met in a culturally appropriate way, while at the same time providing safe and secure detention. They focus on areas such as dignity, social interaction, safety, security, staff training, health, accommodation, food, religion, education, and individual care needs.

Here is a portion of an affidavit of an Iraqi woman in Port Hedland. Only the names have been changed: I have anglicised the names to make it a little easier to identify with their plight:

1. The adults were handcuffed. I asked to have my handcuffs removed so I could hold Robin, my 2-year old son. The guard did so but two other officers came up. One of the officers dragged me by my hair and pushed me against the wall. They searched my body in a humiliating way after pushing Robin into the corner. He continuously screamed and cried. The guard handcuffed me again and tried to legcuff my child. Two other officers prevented him from legcuffing my son.

2. We arrived in Port Hedland late in the afternoon but were given nothing to eat or drink until the following morning at 8.00am. For around 32 hours the children had no food. We were held in a small room with no toilet or water facilities whatsoever…

Here is portion of an affidavit sworn by an Iraqi woman. Again, the names are anglicised for their security:

1. I was put in a cell with Elizabeth and Alice. … Billy, our 5-year-old son was put in a solitary confinement cell.

2. During 15 days in the Compound I begged the guards to open the door so the children could use the toilet which was located outside the cell. For the first two days this request was refused/ignored. The children had to use a plastic bag that I found in the cell as a toilet.

3. My son, Andrew, later described to me his experience in detention. He said: “I needed to go to the toilet and called the guards. After a few minutes four guards came … they pushed me back and held me against the wall. One guard held my legs; the other held my hands behind my back. A third guard used his arm to encircle my neck and hold me tightly. I thought I would choke. The fourth guard swore at me. When I answered back, the officer punched me in the face.

4. In November 2000, our family lodged a complaint against the ACM to the Federal Police. The incident was registered but to date there has been no response conveyed to us. … Andrew later tried to hang himself.

The Department insists that solitary confinement is not used in detention centres. In January 2001 six Federal MPs visited Port Hedland and enquired about isolation detention in Juliet block. Labor MP Roger Price said:

“Even when we went to Juliet ACM officials were denying everything. It is only when we went upstairs that we found people were incarcerated there.” According to a report in The Australian (12 October 2002), the MPs reported that “Juliet block would break every building code in the country. The cells were dark. Detainees were locked up 23 out of 24 hours a day. There was a ‘disgusting’ ablutions block the men were allowed to use only one at a time (so that some claimed that they were forced to defecate in their cells)”.

A letter written from Woomera:

I don’t know where to start. Should I start from life which has mainly been associated with cruelty and persecution or should I talk about living in a cage? I am a 30 year old Iranian man. I came to Australia to seek refuge. I had a very difficult trip and in few occasions I saw my own death!!! But finally I arrive in this country and I thought my hardship was over. I was wrong. It has just started.

I have been in this cage for 13 months. … Why should all these women and children … be in this cage? What have we done? Where should we seek justice? Who should we talk to and tell our story? Aren’t we human beings? … I don’t know what my crime is!!!!

Let me talk about the Camp. It is very common to witness young adults and even children to commit suicide. We are all taking depression tablets. … Animals in Australia have more rights than we have! They worth more than we do. …

And another letter from a detainee:

“….if I ever go back home, I will be in immediate danger of being killed. I also have to say that staying in this camp is worse than being dead!!! I really wish I was dead!! There is no law or rule here!! They are so many different type of people and no body respect anybody.

I am begging you … to let me know if there is any way we could get our refugee status. … If you can help us, you’ll be saving the life of 2 human beings. I am not a type of person who sponges on others. I had my own business and I’ll be doing the same if I get out of here. If my life was not threatened in Afghanistan, I would have never left. If you spend any money for us regarding our refugee activities or whatever else, please be sure that I’ll refund your money. Right now your kindness and humanitarian feeling is worth more than anything else for me.

I thank you for your kindness.

P.S. I apologize for not being able to write in English. I was too embarrass to ask someone to writ this letter for me.”

Little wonder that refugees have sewn their lips together in protest. Little wonder that others have hanged themselves, and others have burned themselves alive. How much worse must it get before Australians begin to feel uncomfortable about the things which are being done in our country, in our name, by our government?

In 2001 Amnesty International reported critically on Australia’s handling of refugees. They said:

(In Australia) more than 2,940 ”boat people”, including 500 children, were automatically detained under the Migration Act, which prohibited courts from ordering their release. Hundreds were held in tents and other improvised detention facilities in remote areas. The national Human Rights and Equal Opportunity Commission investigated allegations that guards ill-treated immigrant detainees and neglected medical care. In September the UN Working Group on Arbitrary Detention had to cancel plans to investigate the immigration detention regime, after the government failed to allow it to visit. (emphasis added)

It is well known that, after initially refusing, the government eventually granted Mary Robinson’s envoy access to Woomera. A former Chief Justice of India, Justice Bhagwati, visited Australia in May 2002. His report included the following:

“Justice Bhagwati was considerably distressed by what he saw and heard in Woomera IRPC. He met men, women and children who had been in detention for several months, some of them even for one or two years. They were prisoners without having committed any offence. Their only fault was that they had left their native home and sought to find refuge or a better life on the Australian soil. In virtual prison-like conditions in the detention centre, they lived initially in the hope that soon their incarceration will come to an end but with the passage of time, the hope gave way to despair. When Justice Bhagwati met the detainees, some of them broke down. He could see despair on their faces. He felt that he was in front of a great human tragedy. He saw young boys and girls, who instead of breathing the fresh air of freedom, were confined behind spiked iron bars with gates barred and locked preventing them from going out and playing and running in the open fields. He saw gloom on their faces instead of the joy of youth. These children were growing up in an environment, which affected their physical and mental growth and many of them were traumatized and led to harm themselves in utter despair.”

Dealing with the plight of children held in detention – by a government which holds itself out as dedicated to “family values” – Justice Bhagwati said:

“From a human rights point of view, the detention of children in the context of immigration procedures is certainly contrary to international standards. But even from a practical point of view this would be undesirable as the children would be growing up in a detention centre enclosed by spiked iron bars in surroundings hardly conducive to the healthy growth of a child. While, in most cases, the parents of these children carry the main responsibility for ensuring the well-being of the children, and as such are to some extent responsible for the plight of the children, it would nevertheless appear obvious that detention of children for immigration purposes is not in their best interest. In Woomera, Justice Bhagwati spoke to several children who had spent several months, sometimes years in detention. Most children appeared seriously traumatized, and severely affected by a culture of self-harm (e.g. slicing of wrists and suicide threats) out of a sense of desperation. With regard to education services, while children are in fact given access to education to some extent, it would appear that, at least in Woomera detention centre, the education services are at best wholly inadequate.”

In desert detention centres, everyone is called by their number. Children, when asked their name, respond with their number. In the cant of the Department:

“Identification numbers are provided to each detainee in immigration detention facilities as purely an administrative procedure, and are not used in any way to diminish a detainee’s dignity.”

Whoever wrote that bit of spin has never met a detainee: it would be difficult to find in Australia a group of people whose dignity has been more battered, whose sense of worth has been so completely destroyed.

The government claims to exercise its powers in accordance with its international obligations. That is a lie. Australia’s systematic detention of refugees directly breaches our international obligations. Its hostile response to refugees is a betrayal of our international commitments and our human obligations.

The Howard government, armed with the largest powers imaginable, has turned the full force of those powers on the weakest and most vulnerable people on earth. It does so to placate the relaxed and comfortable, the complacent, xenophobic Australian electorate. It does so in order to take a cheap electoral advantage.
Processing claims for asylum

When a person arrives in Australia and seeks asylum, they tell their story to an officer of the Department. The officer decides whether to believe the story and, if so, whether the story makes out a valid claim for refugee status. If the applicant is knocked back, they can go to the Refugee Review Tribunal. The quality of “justice” dispensed by the RRT is quite distinctive.

The RRT members do not have to be lawyers. They are appointed for a short term, typically 12 to 18 months, but can be re-appointed. If their decisions please the government, their chances of re-appointment appear to improve. The decisions of the RRT are often a matter of life and death, but applicants are not entitled to be legally represented at RRT hearings, even though they are often not skilled in English. The proceedings are generally inquisitorial, and are frequently characterized by sharp, hostile questioning apparently calculated to destroy the applicant’s claim for refugee status.

The Justice Minister, Senator Ellison, recently said (with some pride) that the decisions of the RRT were only overturned in about 6% of cases: this was apparently put forward as a demonstration of the fairness of its decisions. The real explanation for such a low success rate on appeal is that the decisions of the Tribunal are almost completely immune to correction by a Court.

Until late 2001, the Migration Act contained a provision to the effect that a decision of the RRT could not be overturned by a court merely because it contained an error of law, or because it was so unreasonable that no reasonable person could have made it. Reflect on that for a moment: the decision maker is not a lawyer; his or her re-appointment depends on the government’s good opinion; the applicant probably speaks little English and cannot be represented by a lawyer; the decision will determine whether that person is sent back to the threat of torture or death: but even if the decision is so unreasonable that no reasonable person could reach it, then there is no legal remedy.

In October 2001, the government decided the scope for judicial review of RRT decisions should be reduced. It introduced the “privative clause”: a provision which says that a decision of the RRT:

“(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.” [1]

And in June 2002 it reduced the scope for judicial review of the RRT even further: the Migration Act now in substance removes the requirement for natural justice in the RRT.

Provisions such as these have no place in a just society. The system for hearing refugee claims is unjust; the scope for successfully appealing unjust decisions is almost zero. A senior Federal Court judge said recently “I took an oath to do Justice according to Law. (In Migration matters) I can do one or the other, but not both”.

Mr Ruddock has publicly described our appeal system for refugees as “generous”. He is wrong.

Mr Ruddock and other members of the Howard government have trenchantly criticised the Federal Court and the High Court for some of the decisions made by those Courts. The criticisms reveal a very dangerous attitude to parliamentary democracy. Australian courts are, in my view, among the finest in the common law world. We are well served by judges of the highest professional and ethical standards. The Australian Constitution entrenches a separation of powers between the three arms of government. The Constitution sets limits on the things which parliament may lawfully do. The Courts have the function, among other things, of deciding whether parliament has exceeded its powers. To criticise courts for discharging their constitutional function is the mark of tinpot dictators. It is a necessary prerequisite for a just society that the powerful recognise, and respect, the limits to their own power.
The arrival of the Tampa

On 26 August 2001, a leaky boat carrying 438 asylum seekers, mostly from Afghanistan, began to sink. The Norwegian ship, the MV Tampa, found it. The Captain, Arne Rinnan, fulfilled his duty as a mariner and picked them up. He planned to take them back to Indonesia where they had embarked on their ill-fated voyage of despair. They protested. The Captain saw that many of the asylum seekers were sick, and considered it too risky to return to Indonesia. The Tampa was 246 miles from the nearest Indonesian port; it was 75 miles from Christmas Island. It headed for Christmas Island. Captain Rinnan radioed for medical help, but none was given. He entered Australian territorial waters. Four miles off Christmas Island he was ordered to stop.

The Cabinet it seems had decided to prevent the asylum seekers reaching Australian soil. This odd decision has never been explained, except with the rhetoric of “sending a clear message to people smugglers and queue jumpers that Australia is not a soft touch”.

Plainly, the Government understood that (with an election due shortly) a show of toughness against helpless refugees would be electorally popular amongst the large number of Australians who had responded positively to the far-Right racist programs of Pauline Hanson.

The Australian Prime Minister, John Howard, had previously shown his skill in assessing and harnessing right-wing populism. In 1997 he had used polls to assess community attitudes toward the militant Maritime Union of Australia. In helping Patrick’s sack an entire workforce, Howard miscalculated: support for the government and Patrick’s began to dwindle after images of attack dogs and chain-mesh fences and security forces in balaclavas hit the newspapers and the television screens.

Howard was determined that, this time, the public would not get access to such disturbing images[2]. He ordered that the port of Christmas Island, be closed to ensure that no boats could approach the Tampa. The SAS took control of the ship. The Captain was allowed only minimal contact with the outside world.

He said later:

“First we were told to bring them to Christmas Island, then they (the Australian government) changed their minds and said that the refugees were not allowed to disembark at any account. I got mad. … I have seen most of what there is to see in this profession, but what I experienced on this trip is the worst. When we asked for food and medicine for the refugees, the Australians sent commando troops onboard. This created a very high tension among the refugees. After an hour of checking the refugees, the troops agreed to give medical assistance to some of them. The soldiers obviously didn’t like their mission.”

The press were not allowed anywhere near the ship. Despite repeated requests from lawyers and others, no Australian was allowed to speak to any of the refugees. The physical circumstances meant that no images of individual refugees were available. At best, film footage showed distant images of tiny figures huddling in front of stacked containers on the deck of the ship.

By the same technique, the stories of the refugees were suppressed. By preventing the press from having any access to the refugees, the Government was able to advance its cynical objectives with dishonest rhetoric, unimpeded by facts. Although the misery of the refugees’ situation was obvious enough none of them could be seen as human beings. None of them could tell their stories. Howard’s crucial aim was achieved: the refugees were not seen publicly as individual people for whom Australian citizens could have human sympathy.

The importance of that aspect of the government’s strategy was made clear on 23 October. On that day, Australia learned that, a few days earlier, a boat had set sail from Indonesia, bound for Australia. 421 asylum seekers had crowded onto a boat suitable for 100. Indonesian security forces had herded them onto the boat at gunpoint. The boat sank in mid-ocean, and 353 were drowned. The survivors told the story, in harrowing detail. It was front-page news for days: and tragic images of individuals and their stories of grief and loss dominated the news. Suddenly, the asylum seekers really were human beings who called on our human sympathy.

The government and the opposition made noises of compassion. The government agreed to take some of the survivors. Apparently it is necessary to drown at sea to demonstrate the required level of need.

The government’s stated concern to help those most in need looked initially like a concern to help those whose distress was most visible to the public. With hindsight, it may be that the government’s willingness to take some survivors had another motive: evidence given to a Senate enquiry is creating a very clear picture that the boat, SIEV X[3], was sabotaged by Australian agents in Indonesia, and was ignored by Australian surveillance aircraft.
Home and Away

During the Tampa affair, the government attracted enormous political popularity at home. Its image overseas was not quite the same. I had the good fortune to visit the Tampa on 29 September this year. The occasion was its last visit to Australia before a major refit. In the Captain’s day-room one wall is covered with plaques, certificates, awards and citations: almost all of them were awarded to the Captain and crew for their actions in rescuing the 438 people of the doomed Palapa 1 on 26 August 2001. The entire episode cost them 10 sailing days. For a cargo ship such a delay has major consequences: delays cost money. Despite the fact that millions of dollars of cargo was held up for nearly 2 weeks, not one customer complained; not one claim for compensation was made. On the contrary, the customers congratulated the shipping line for the way the Tampa handled the matter. At the same time, the Australian authorities were muttering darkly about prosecuting the Captain of the Tampa as a people smuggler.
The Pacific Solution

During the Tampa case, the government announced the Pacific Solution. It justified its stance by reference to our sovereignty. But the Pacific Solution involves a denial of our obligations under international law. At a press conference on Sunday 2 September 2001, Mr Howard said:

” So in quite a real sense the arrangements are now in place. We have achieved an humanitarian outcome. All of the people can be properly cared for. They will on my advice be far more comfortable on the Manoora than they are on the Tampa. I repeat that the Manoora is now ready to take people on board. … This is a truly Pacific solution to a problem which involved the governments of Australia, New Zealand, Nauru and Papua New Guinea and they have all worked together and I again express on behalf of the Government and the Australian people our thanks to the governments and the people of those three countries for their willingness to cooperate. I believe that the humanitarian consideration and the best welfare of the people now on the vessel will be better met if they can be transferred as soon as possible to the Manoora where the conditions are obviously more comfortable than what they are on the Tampa.”

Some people actually believed him.

The truth of the matter is quite unlike Howard’s promise. The Tampa refugees were treated very harshly on Manoora; they have been treated harshly on Nauru; the Pacific Solution is not humanitarian at all: it is a dishonest and unlawful way of hiding Australia’s miserable treatment of frightened, damaged human beings.

Since then, the government has excised bits of Australia from the migration zone. The effect is to make it virtually impossible for an asylum seeker to get to a part of Australia where they are permitted to make a valid application for a protection visa. Professor Gilliam Triggs said at a recent conference:

“When compared with Australian laws, international law is less precise, less legalistic. It is aspirational and dependent on imprecise language and subject to regional and local interpretation. International law does not lend itself to technical niceties. Who of the delegates negotiating the Refugee Convention more than 50 years ago could have imagined that Australia would legislate to deny a right to seek asylum to those within its territorial seas and to excise from relevant legislation those external territories most likely to be the first Australian haven or port for refugees? No express provision could be drafted to take account of such contrivances.”

A just society treats fairly those who ask for help. Australia does the opposite. Not only do we treat them with unwarranted harshness, not only do we deny them basic human rights and basic legal rights, we now make it almost impossible for them to ask for help in the first place.
From Tampa to Manoora to Nauru

On the second day of the Tampa hearing, Sunday 2 September 2001, the Pacific Solution was announced in open court.

The parties negotiated a transfer of the refugees from Tampa to Manoora without prejudice to their legal rights. It seemed to offer the prospect of relief for the refugees on the deck of the Tampa. Unfortunately, conditions on Manoora did not live up to the expectations created by the Solicitor General’s announcement. Here is an account written from Nauru by one of the Tampa refugees:

“It was expected that we would get sufficient food on Manoora. …

In the morning we were all called to queue for the breakfast. We formed a single long queue to get a meal. But it was really insufficient and everyone would get, as usual, a spoonful of peas and occasionally either one apple or one orange. …

Queuing for bathroom and toilet was another problem. It was rather more difficult than that for meals. There were few toilets open for all of us and they were open not for 24 hours. We had to stand, sometimes for hours, to get to a toilet or bathroom. When one was in the toilet or bathroom, a soldier was standing and abusing behind the door. …


In the last days we were on board Manoora one unit of the toilets were closed and few toilets and bathrooms were left for us. That meant we had to stand much longer in the queues. …

I would get up at 3am to get to the toilet or bathroom before the time of breakfast.”
Detention on Nauru

The Pacific Solution debauches the Constitution of Nauru. That Constitution[4] contains in it a guarantee of personal liberty in Article 5. In substance, it provides that you will not be detained except after a proper trial: you can’t be imprisoned except by being found guilty of an offence. There are some limited exceptions to that principle. The only one presently relevant is that you can be detained without trial if you have entered the country unlawfully and you are being held either for deportation or for extradition.

The exception can’t operate in the case of the people who are intercepted on the high seas and are dumped on Nauru. Take the Tampa people for instance. I have seen their visa application form. It is a bulk application – an application for visas for the “people on the attached sheet”. 430-odd names are listed on the attached sheet. It is signed by a member of Nauru’s own Immigration Office. The Tampa refugees were allowed into Nauru on the request of Nauru’s own Immigration Office, pursuant to an agreement with our government: an agreement under which Nauru receives stupendous amounts of money.

The website of Australia’s Immigration Department for some time boasted proudly of how many people were being “detained on Nauru”. Then someone pointed out this minor embarrassment that the Constitution of Nauru forbids detention without trial. The website was quickly changed. Now Mr Ruddock says that in fact they are not detained.

This is the Cargo Cult theory of constitutional reform, which does no credit to either country. Australia has suborned a poverty stricken neighbour into doing whatever suits Australia’s policy. This in the name of national Sovereignty! That Mr Howard got an electoral advantage out of this shabby arrangement makes it even worse. I won’t deal separately with Manus Island, because exactly the same argument applies: the Constitution of Papua New Guinea has a similar guarantee against arbitrary detention.

In the speech I mentioned earlier, Mr Downer said:

“Bit by bit, leaders of governments that suppress human rights are being made to feel uncomfortable, however much they bluster and hide behind sovereignty arguments….”

Perhaps Mr Howard should listen to his Foreign Minister’s speeches.
Conditions on Nauru

Nauru is ideal for the spin doctors. It is a small, impoverished, distant island; its communications system is primitive and unreliable. People can be taken there and, effectively, be hidden from the world. Since the Pacific Solution was introduced, it has become surprisingly difficult for Australians to visit Nauru. Unless you are doing government business, you are unlikely to get a visa to go to Nauru. Australian journalists have tried to go there: they have all been refused visas. Australian lawyers have tried to go there to help asylum seekers: they have all been refused visas. In my view it is clear that this is because the Australian government does not want Nauru letting Australians go there.

It is not surprising. Conditions on Nauru are very bad. This is a letterwritten to us from Nauru in February by one of the Afghans from the Tampa.:

‘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 utilize 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’.

And this letter, written on 19 April 2002 on behalf of 300 Afghans from the Tampa:

Since we stepped on Nauru, on 19th of September last year we have gone through very difficult phases and confronted with numerous problems and despite all this we are still in a state of full uncertainty and unawareness of what is going to happen to us next. We have been and are suffering from shortage of water, lack of electricity in the first five months and other mental and psychiatric pressures originating from our sad and painful backgrounds, being away from our families and particularly the prolonged detention and processing. We are strictly confined within the wires around us and have no right to step outside camp without being escorted by a guard just for medical reasons. Here are almost 150 children at this centre and almost 50 of them are under the age of 5. They are one of our major concerns and we don’t think they can grow properly both physically and mentally. The children have no access to formal education except the language programs managed by the International Organization for Migration.

Many of the detainees have developed very intensive psychiatric diseases and there are 5 serious cases hospitalised for many days and one of them at least for the last one month. We had warned of this many months ago through our letters to UNHCR, IOM and other organization’s regional and local offices. These diseases are truly alarming and growing gradually. And some of detainees who stepped outside the fence were considered as offenders and put in solitary confinement cells. … Topside Camp is really crowded and there are 773 Afghan detainees consisting of men, women and children currently held there….

On the day the decisions were releases all of the detainees congregated at main gate of the camp to express their concerns and their three main requests. At first once again they requested legal representative for the additional interviews and at second removal of the ban on journalist and independent visitors to visit them and thirdly they for a Nauruan official to visit them. … The ban on journalists is one of our major concerns and we feel as there is something to hide.”

And another letter, written recently by a different detainee:

“Here the wether is very hot and all of the days and nights are same for us. We haven’t enough water for washing or bathing. We could stand all the difficulties and hardship in this camp yet my husband and my son are in the Melborne now. Because my son have problem with his leg may be his leg be oppration.”

And try to imagine yourself in this man’s position:

“… when you parcel arrived, I become very sad again and told myself: “look at what has become of me. Once I used to give away my cloths; now other give me their cloths. Life has spanned around for me. This made me to hate myself …

… Please don’t go to any trouble for my sake any more. I have everything that I need and if someone gives me more, I give it to others. Please don’t get offended. So don’t trouble yourself for my sake any more.”


” It is very hot in here and we do not have any other choice but to wait in this heat. There is not enough water in the camp. There is no healthy or proper food here. When we arrived here from Christmas Island, we had enough water and food was good too. Unfortunately as time passed by the food got worse and the water became less.”

And another:

“….if I ever go back home, I will be in immediate danger of being killed. I also have to say that staying in this camp is worse than being dead. I really wish I was dead. …

I am begging you … to let me know if there is any way we could get our refugee status. … If you can help us, you’ll be saving the life of 2 human beings. I am not a type of person who sponges on others. I had my own business and I’ll be doing the same if I get out of here. … If you spend any money for us regarding our refugee activities …please be sure that I’ll refund your money. Right now your kindness and humanitarian feeling is worth more than anything else for me. I thank you for your kindness.

P.S. I apologize for not being able to write in English. I was too embarrass to ask someone to writ this letter for me.”

In June this year, my wife Kate Durham and a British journalist Sarah MacDonald managed to get to Nauru. They did this by going via New Zealand and Kiribati, with Nauru as a stop on the way to Fiji. By this tortuous means they arrived in Nauru and sought entry for a 3-day stopover. The Nauruan authorities allowed them in. There was nothing untoward about this. The Australian government had, presumably, forgotten to tell the Nauruan government to block the path of anyone holding an Australian passport. Their trip did several things: it enabled Sarah to make a documentary on the Pacific Solution, which was shown on BBC 2 on 29 September.

It also enabled Kate to provide to the Age and the Sunday Herald Sun a graphic account of conditions on Nauru, together with photographs taken in the detention camps there. This provoked the Australian Department of Immigration to write a letter to the editor of the Age, The Sunday Herald Sun and the Sunday Times. It is an astonishing document, which can still be found on the Department’s website:

Unauthorised journalist entry to Nauru

The Age – 4 July 2002.
Also sent to The Sunday Herald Sun and The Sunday Times.

Dear Editor,

Your article of 30 June reporting the visit by Kate Durham and Sarah Macdonald to the IOM run processing centres on Nauru makes a number of claims that need to be corrected.

The International Organisation for Migration (IOM) administers the asylum seeker processing facility in the Republic of Nauru on the basis of requests by the Governments of Nauru and Australia.

IOM maintains high health standards for asylum seekers. The ratio of doctors to asylum seekers is 1:230 (compared with 1:800 in the general population in Australia). IOM medical staff includes 5 international doctors, 1 senior mental health psychiatrist, 1 psychologist, 4 clinical nurses, 1 public health coordinator and 3 medical interpreters.

Sickness is not widespread and in fact the level of treatment available to asylum seekers is very likely better than that available in many parts of the world. Not only is there the daily clinic, but the doctors are available after hours. The doctors have a comprehensive supply of medicines and drugs, which are dispensed as needed. The centres conduct ongoing public health programs as well as a program devoted to women’s and children’s health. Baby health clinics are also conducted as part of this program.

IOM have advised that their doctors have no knowledge of eye infections other than a few children who have been treated for conjunctivitis. There has only been one person with a skin condition involving blemishes to the face for which an Australian dermatologist was consulted and treatment is continuing.

There have been no shortages of drinking water for the asylum seekers in Nauru. There have at times been water shortages that have affected some ablution facilities for a short time.

Bedding is provided to all asylum seekers with new mattresses and sheets purchased and sourced from Australia. The asylum seekers have been given the responsibility for maintaining their own bedding, including washing sheets and making their beds. Having such responsibilities is important in managing life within the centre.

All food for the Nauru processing centres is sourced from Australia. Halal food is provided and fresh fruit and vegetables are regularly supplied to centre residents.

A wide range of amenities for residents has been provided. Playgrounds have been constructed and toys have been purchased for children. Communal televisions, VCRs and music systems are provided as is sporting equipment. Volleyball games are played between the asylum seekers and IOM or local Nauru teams. Cultural exchanges (including dance performances) have been organised and a woman’s centre has been established at the main centre. All children between 7 and 15 years attend local Nauru schools. Outings are organised from the centre for the adults.

There have also been claims by Ms Durham that she was arrested while in Nauru. We have confirmed that she was at no stage arrested or taken into custody. The only restriction placed on her was being prevented from unauthorised access to the centres.

It is a pity that reporting has not been more balanced.

Stewart Foster
Director, Public Affairs
Dept of Immigration and Multicultural and Indigenous Affairs

The most astounding aspect of it is the caption “Unauthorized journalist entry into Nauru”. In what sense was their entry unauthorized? What legitimate interest does the Australian Department of Immigration have in whether journalists visit the sovereign Republic of Nauru? Furthermore, all of the so-called facts in the Department’s letter are contradicted by what Kate and Sarah saw, and by dozens of letters we have received from asylum seekers who are presently incarcerated there.

This letter was written from Nauru in August – after the Department’s letter:

“The camp is like a very very bad prison. It is very small and hot. There is no water to take a shower, or to wash our clothes. No sweet water to drink. Most of the time we wash ourselves in the rain which is very interesting and also amazing !!. There are not enough bathrooms here.

Food is not good here either. Rice is what we have most of the times. We don’t get to eat fruit either, however occasionally we find an apple in our food.

We can’t leave the camp and are prisoners here. Life is very difficult and my only hope is to receive your letter. I thank you, my friends for your letters …”

Despite everything the government tells us, the fact is that hundreds of innocent people are imprisoned against their will in Nauru; they are held in very harsh conditions; they are isolated from the legal systems of Nauru and Australia; the Australian government is trying to hide them from journalists, and it denying them their basic Constitutional right to legal help.

The obvious reason Australians are kept out of Nauru at present is that the government does not want the truth about the Pacific Solution to be known. Like most aspects of our refugee policy, the Pacific Solution depends on secrecy and spin. The Government conceals and misrepresents the facts to prevent the shocking injustice of it being recognised.

This is being done with our taxes, in our name. Mr Howard and Mr Ruddock deserve our contempt.
Processing refugee claims on Nauru

Claims for asylum on Nauru are being processed by UNHCR and the Australian Immigration Department. Reports I have received repeatedly raise similar complaints about the process. Here is a typical one:

“They are always too much suspicious about the stories asylum seekers tell them. They believe, in general, asylum seekers tell lies and make up unreal stories. Their mistrusts and suspicions have shadowed every individual claim for protection.

I was really astonished at the questions. It still does not make any sense for me to claim protection requires to know how to plant a tree and to know how to graze sheep on the mountains. … One person was asked, How do you build an oven in Afghanistan?

Interpreters had big influences on the decisions. … A Hazara communist friend is also rejected. He is a genuine communist and have no way to live in Afghanistan. I have spent hours discussing his views and criticizing his absolute hold to Communism. He told me, “I went into the interview room – the interpreter was interpreting for me. He could not interpret “Malikiyat Khosoosi” which means “private ownership.” In English he interpreted it as “special properties.”

You may imagine that how misinterpretation of a single key word, such as private ownership in communism, can change the whole story. …”

Another common complaint is the use of Pashtun interpreters to translate for Hazara refugees. The Pashtun are the ethnic majority who have brutally oppressed the Hazara for 2 centuries. This is a letter from a young Hazara on Nauru:

” I was born in a war zone just in the second year of the revolutions. When I was a baby of 40 days age, my mother and family were running from cave to cave in high rocky mountains. No one knows my birth-day, week, month or even year. The only things which help me trace my birth time are the two wars which forced Hazaras of Jaghori to flee in mountains in the 2nd 3rd years of the war. So, at present I am either 21 or 22 years old. I have no national ID card, no birth certificate and even no outstanding family career in politics, war and bloodshed. The only document I had was my 12th class certificate of a High School in Jaghori, which I obtained in 1999 (1378). This is the case of all Afghans born, grown up during the 23 year war. My school certificate drowned in Indian Ocean along our bags in the boat. This is my life. …

I was rejected and the reason was given that due to inconsistency in my testimony and as the current information of Afghanistan … they told me that by substantial inconsistency they ment diversity and difference of my political opinion with my father. My father who was a merchant would give financial aids to Hizb-i-Wahdat simply as any Afghan would do under the rule of Mujahidin commanders. … They found my high political and intellectual opinions incredible in a remote part of Afghanistan. …

I might have been portrayed by the Pashtun interpreters, not to be an Afghan but I am prepared to challenge them and the incredibility of UNHCR in what they call “high political and intellectual opinions in distant parts of war-torn Afghanistan.” I asked John to ask me of Afghan history, culture, tradition and local customs. Pashtun interpreters may not tolerate to see a young Hazara independent of them and do the interviews without their assistances.”

Despite the guarantee of access to a legal representative in Article 5 of Nauru’s Constitution, the Detainees on Nauru have been denied access to lawyers:

“I am waiting for my result. And we could not get any lawyer. We demanded for lawyer and they said it is not your right. There is no access for lawyers. … They answer me … you are rejected because the situation in Afghanistan is changed. I know it is not true what they say. I know that the opposition is in power and powerful group kill other people for money or having enmity. No body is safe, like few days before in Ghazni the office of UNHCR is looted by a group so being a international organization they can’t secure themselves how a poor can safe himself. …

I have three brothers and one sister including my parents. I have been out of home nearly 20 months. I have no contact. I don’t know whether they are alive or dead.”
Transitory persons

Under amendments to the Migration Act, passed earlier this year with the support of the Labor party, the government has power to bring refugees from Nauru to Australia for “temporary purposes”. Under these provisions, using force if necessary, a person can be brought from Nauru to Australia and back to Nauru and for the duration the person is a “transitory person”. A transitory person is not entitled to challenge in any court any aspect of their detention or removal[5]. They remain, throughout, isolated from the Australian legal system even whilst in Australia.

In September 2002, six refugees were brought from Nauru to Australia under these provisions. An attempt to prevent their forcible removal again to Nauru failed. Here is part of their account:

“We were six persons on the 16 day trip to Australia as we were asked by the Australian government to co-operate with them. We, Ali [name and ID deleted], Hashim [name and ID deleted] and Khadim [name and ID deleted], and three more friends from Christmas Island group were called by a DIMIA officer in Nauru. He asked us to travel to Australia to participate in a trial session of alleged smugglers at a court on 16.9.2002. We explained to her that we would face with dangers caused by the smugglers network. We asked her to help us. She promised to help. She asked me: Have you been threatened yet? I replied: Not here, but I don’t know about my family.

When I was interviewed by the Federal Police almost every one at the camp knew of it. For sure, there could be somebody who have reported it to the smugglers. Therefore, I feel they would endanger my position and of my family. She said, “I understand your problems and believe you. Our government will take it into consideration.”

Anyway, on 10.9.2002 we left Nauru for Australia … We were checked seven times from Nauru Airport until Perth. If any of us went to toilet on the board a guard would escort him and stand behind the door. … I told them several times. “We have been brought by you. We are going to assist you. Why do you treat us like criminals?” They would answer, “We are doing what we are ordered to do. We don’t know why you are here.”

While we poor and desperate asylum seekers, guarded by giant man of 100 Kg weight and we had to ask them for their permission even for a toilet. We arrived in Perth at 12.00pm according to the local time. Then we were led into a room with two stair-beds which could accommodate four persons. As we entered the room it gave a very unpleasant and choking smell. One could almost vomit. … There was a person sleeping on the bed. … His untidy face indicated that he had not taken bath for several months. There was no sanitation. There were lots of … stale foods everywhere in the room.

We lived in the room which had only four beds, until the time we left. Two of us would sleep on the ground. …”

These 6 gave evidence reluctantly: they are worried that the people smuggling mafia will hunt them down for cooperating with the Australian authorities. Australia, having exposed them to this danger, now proposes to repatriate them forcibly to Afghanistan.

Recently a Colombian asylum seeker, Alvaro Moralez, was returned to Colombia after being refused asylum here. Shortly after he arrived, he was shot dead by paramilitaries, just as he had feared. The Australian government denies any responsibility. No doubt it will deny responsibility for any harm to these six Afghans. Perhaps it will blame Nauru.
Voices of despair

What are we doing to these to these people, detained in Nauru and detained in Australia? Listen to the voices from behind the razor wire. Letters from detainees are probably the best way of understanding what is going on in these places and what consequences they have.

“I am a girl full of pain. I live with my mother and sisters in Port Hedland detention centre. …

We want to be free like you. But not as poor bird in the cage. We are in very bad situation in here. I am very tired and gloomy. I am always crying because of my mother she is old. She cannot tolerate this treatment in this age any more, also I am sad about the people who are here. Poor children when they see a person outside the detention centre or even an aeroplane in the sky they cry and [grab the fence] with disappointed and broken hearts and shout, ‘We want freedom. We want freedom, freedom, freedom.” Women are crying because of their children. Also I want to say about the hopeless boys and girls, that there is no wish and hope in their hearts. We think we are not alive. It is better to die

Do you know? Many young men, boys and women want to kill theirselves.

My dear brother. Please say to Government of Australia we are human. We are not animal. We are not criminal to tolerate this treatment. We escape from war, pain until we have human right in here, so where is human right?”

And another:

“Being detained without any crime is very traumatic, shameful, self destructive and awful hardship, prisons may sound very hard but knowing an exact duration of a sentence is less stressful. But while we are in detention you do not know when you are going to be released and what will happen to you. It is a dreadful frustration. Sometimes I have a sense that no help will come, I feel like I’m in a grave with four walls. Nobody can enjoy confinement in cramped detention centres, walls topped with razor wire”

And another:

“Due to enormous support and continuous growing support of Public towards refugees, the ACM and DIMA are playing cheap tricks- for example: (i) Mishandling of letters, (ii) Banning the visitors, etc because they (ACM, DIMA) don’t want the outside people to come to know about the actual conditions of the refugees inside the concentration camps.”

This, from Villawood:

“… I want to live as a human not like an animal in Villawood detention centre. Please contact me and visit me because I have many things that I can give and show you imagine how I can live 3 years in the detention centre. I am not a criminal I did nothing to put me in a prison I am a refugee…Please help me, do something for me I’ll be crazy I want to be out. I’ll die.”

This was written in Port Hedland in February:

“I saw this government what they say to people about us. They told us this people is criminal and terrorist. Boat people is not normal people. But we are just human like other people. … My hope really is finished for make life in your country. I don’t know what happen to me in Iran, but I know death in my land is better than dying in this detention or in this hell. … I lost everything. I lost my life, my love, my family and now I think maybe if I stay here I lose my mind. … From two week ago I decided to go back to my land. Actually I don’t know what happened to me in Iran but I just know to die in my country much better than to die in detention center.”

This man left Australia voluntarily 2 weeks after that letter was written. He was arrested at the airport in Iran when he arrived. He has not been heard of since.


“I don’t know where to start. Should I start from life which has mainly been associated with cruelty and persecution or should I talk about living in a cage? I am a 30 year old Iranian man. I came to Australia to seek refuge. I had a very difficult trip and in few occasions I saw my own death!!! But finally I arrive in this country and I thought my hardship was over. I was wrong. It has just started.

I have been in this cage for 13 months. … Why should all these women and children … be in this cage? What have we done? Where should we seek justice? Who should we talk to and tell our story? Aren’t we human beings? … I don’t know what my crime is!!!!

Let me talk about the Camp. It is very common to witness young adults and even children to commit suicide. We are all taking depression tablets. … Animals in Australia have more rights than we have! They worth more than we do. …”

Perth detention centre:

“The Perth Detention Centre is a medium-security facility (but in my view it is a maximum security because of electrified razor wire and laser security beams). It is … like a four-bedroom house. Can you imagine up to 40 people locked up, some for years in such a small confined place…we are surrounded by surveillance cameras. Everybody has sleeping problems because of disturbance such as horrible nightmares. They are effects of continual hopelessness, despair, stress, fear, depression, disbelief, sadness, anxiety and bad memories hurt them because of the things that happen to them in the past.”

This was written in Maribyrnong in February:

“Jail is for dangerous people and zoo is for animals; visit by ticket is easy for visitors, but the UN delegates are banned to come and see these detention centres.

What is difference between us and Al Qaeda and Taliban in Cuban jail? It is only one thing, here are good people with kind heart and there are some people who we escaped from.”

This is what we are doing to people; people who are innocent and who come here asking for our compassion and our help. It is a humanitarian catastrophe from which the government makes political capital; a humanitarian catastrophe which most Australians are prepared to ignore.

If I am critical of the Howard government in this moral disaster, I am no less critical of the Opposition. This letter was written on 20 May 2002. It tells of an incident that happened on 24 April in Port Hedland:

“There was happened a sad incident on 24 April in this center. In the morning of that day a group of Labour Party people had a visit from our center but they didn’t talk with any one detainees. One of Afghan detainees (and he gives the number) requested to visit them but was rejected. This man 40 got to a very dangerous physical condition. He was crying and in treating but was not allowed to meet the group. Since several months ago this man had passport and visa for another country but Immigration Department did not accept to send him. This man wanted to leave camp and go away but they would not send him. He wanted to discuss this matter with that group. After the group left the center the man threw himself from a tree. When we reached the place he was unconscious and bleeding from his ears and we thought he was dead. After about 30 minutes he was taken to hospital in Perth. Now it is about one month that he has been in a coma.”

Several weeks after that letter was written, he recovered consciousness. A month later he again tried to kill himself.

The Labor party’s stance on refugees has been deeply disappointing. They were complicit in the government’s harshest measures at the 2001 election. They were complicit because they feared the electoral consequences of taking a principled stand. Even now that the fraught 2001 election is past, they have not formulated a respectable policy on refugees; they have not renounced indefinite mandatory detention; they have cooperated with the government in its implementation of the Pacific Solution; they supported the amendments to the Migration Act which reduces appeals from the RRT to vanishing point.

Who will light a candle for the current Labor party? Who will point them once again towards the light on the hill?
Towards a Just Society?

Let me end by reading this letter which might as well stand as the record of Australia’s shame. It was written in February of this year in Port Hedland:

“I want to thank you for writing a letter. It is the first letter I have. I need to write someone outside because I don’t have anyone outside I need to write some letter because I forget everything in these two years in detention. …

I am very happy this time because I see some good Australians support us. Please Catherine, we need freedom like every human. I have two years and I don’t hear anything about my family in my country. Dear Catherine, I am very happy to write for you because it is the first time I write one letter.

Please don’t forget us we are humans.”

How is it that, in a time of great prosperity, we can take a tiny fragment of damaged humanity and drive them to the point that they need to remind us – ever so gently and politely – that they, too, are humans?

A just society does not ignore the needs of the powerless, voiceless minority. A just society does not turn its back on damaged human beings who ask for help. A just society does not imprison innocent people. A just society would not tolerate the Pacific Solution. But we live in a society in which these things are done, and by a government which proclaims “family values” as one of its chief virtues. We have fallen for the comfortable falsehoods, because it is too hard to face the awful reality.

Our treatment of refugees, here and in Nauru and Manus Island, is a scandal which will haunt us for decades. The human misery we have inflicted on thousands who have arrived looking for help is incalculable. Our complete abdication of moral responsibility – leave aside legal responsibility under international conventions – is reprehensible beyond words.

The Just Society will not be ours until we rediscover our compassion and recognise that a Just Society demands justice for all.

Selected sections of the Migration Act
Privative clause
474 Decisions under Act are final

(1) A privative clause decision:

(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

(2) In this section:

privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

(3) A reference in this section to a decision includes a reference to the following:

(a) granting, making, suspending, cancelling, revoking or refusing to make an order or determination;

(b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);

(c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;

(d) imposing, or refusing to remove, a condition or restriction;

(e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement;

(f) retaining, or refusing to deliver up, an article;

(g) doing or refusing to do any other act or thing;

(h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;

(i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;

(j) a failure or refusal to make a decision.

“Transitory persons”
s.5 Definitions


transitory person means:

(a) an offshore entry person who was taken to another country under section 198A; or

(b) a person who was taken to a place outside Australia under paragraph 245F(9)(b); or

(c) a person who, while a non‑citizen and during the period from 27 August 2001 to 6 October 2001:

(i) was transferred to the ship HMAS Manoora from the ship Aceng or the ship MV Tampa; and

(ii) was then taken by HMAS Manoora to another country; and

(iii) disembarked in that other country;

but does not include a person who has been assessed to be a refugee for the purposes of the Refugees Convention as amended by the Refugees Protocol.
198B Power to bring transitory persons to Australia

(1) An officer may, for a temporary purpose, bring a transitory person to Australia from a country or place outside Australia.

(2) The power under subsection (1) includes the power to do any of the following things within or outside Australia:

(a) place the person on a vehicle or vessel;

(b) restrain the person on a vehicle or vessel;

(c) remove the person from a vehicle or vessel;

(d) use such force as is necessary and reasonable.

(3) In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.
494AB Bar on certain legal proceedings relating to transitory persons

(1) The following proceedings against the Commonwealth may not be instituted or continued in any court:

(a) proceedings relating to the exercise of powers under section 198B;

(b) proceedings relating to the status of a transitory person as an unlawful non‑citizen during any part of the ineligibility period;

(c) proceedings relating to the detention of a transitory person who is brought to Australia under section 198B, being a detention based on the status of the person as an unlawful non‑citizen;

(d) proceedings relating to the removal of a transitory person from Australia under this Act.

(2) This section has effect despite anything else in this Act or any other law.

(3) Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.
Constitution of Republic of Nauru
Protection of personal liberty

5. (1) No person shall be deprived of his personal liberty, except as authorised by law in any of the following cases:-

(a) in execution of the sentence or order of a court in respect of an offence of which he has been convicted;

(b) for the purpose of bringing him before a court in execution ofthe order of a court;

(c) upon reasonable suspicion of his having committed, or being about to commit, an offence;

(d) under the order of a court, for his education during any period ending not later than the thirty-first day of December after he attains the age of eighteen years;

(e) under the order of a court, for his welfare during any period ending not later than the date on which he attains the age of twenty years;

(f) for the purpose of preventing the spread of disease;

(g) in the case of a person who is, or is reasonably suspected to be, of unsound mind or addicted to drugs or alcohol, for the purpose of his care or treatment or the protection of the community; and

(h) for the purpose of preventing his unlawful entry into Nauru, or for the purpose of effecting his expulsion, extradition or other lawful removal from Nauru.

(2) A person who is arrested or detained shall be informed promptly of the reasons for the arrest or detention and shall be permitted to consult in the place in which he is detained a legal representative of his own choice.

(3) A person who has been arrested or detained in the circumstances referred to in paragraph (c) of clause (1) of this Article and has not been released shall be brought before a Judge or some other person holding judicial office within a period of twenty-four hours after the arrest or detention and shall not be further held in custody in connexion with that offence except by order of a Judge or some other person holding judicial office.

(4) Where a complaint is made to the Supreme Court that a person is unlawfully detained, the Supreme Court shall enquire into the complaint and, unless satisfied that the detention is lawful, shall order that person to be brought before it and shall release him.

[1] See Appendix A

[2] In April 2002, evidence was given to the Senate enquiry into the “Children Overboard” affair. The following appeared in the Melbourne Age on 18 April 2002:

” Taking photographs that could “humanise or personalise” asylum seekers was banned by former defence minister Peter Reith’s office, the Senate inquiry into children-overboard claims was told yesterday.
Defence officials said Mr Reith’s staff did not want to allow photographs to create sympathy for asylum seekers.
The director of defence communication strategies, Brian Humphreys, told the hearing that Mr Reith’s media adviser, Ross Hampton, ordered last September that military photographers not take pictures of asylum seekers. The military was given guidelines to ensure “no personalising or humanising images” were taken.
Later, defence media liaison director Tim Bloomfield described government restrictions preventing any military comment on last year’s asylum seekers operation as a form of censorship.”

[3] The designation given it by Australian authorities: Suspected Illegal Entry Vessel X

[4] See Appendix A

[5] see Appendix A