Minority Report by Australian Greens
1.1
The
Australian Greens strongly support the committee report, however, because we
believe that the principle and policy that this bill would implement is
fundamentally flawed, we can only agree with recommendation one, that the bill
not proceed.
1.2
Recommendations
2 to 10 are clearly aimed at improving accountability of the offshore
processing system and mitigating some of the cruelties being established by
this bill and we support these aims, however, the Australian Greens do not
believe a bad law in conception can be made acceptable simply by ameliorating
the worst aspects of it.
1.3
The
idea that Australia should try and shirk its responsibilities under
international law by sophistry and deception is morally
repugnant.
1.4
Mr Brian
Walters SC told the inquiry 'The message is that we are being disingenuous as
to our obligations. The message is that we do not care about our international
obligations and we are not to be trusted on our international obligations. That
is a very serious position for Australia to place itself in internationally.'
1.5
In its
current form this bill lacks virtually all safeguards and checks and
balances. The government is essentially
saying 'trust us and the Department of Immigration to do the right thing'. The scandals of Cornelia Rau and Vivian
Solon, as well as the dreadful treatment of asylum seekers in detention, both
onshore and offshore, does not give The Australian Greens confidence in either
the Department of Immigration or the government.
1.6
The
Australian Greens concur with Mr Brian Walters SC representing Liberty Victoria
and his statement to the Inquiry, 'where power is being exercised, I do not
think we should ever assume that it is always being exercised in good
faith. That is why we have the rule of
law, because experience has shown that when people have power they will abuse
it.'
1.7
The
Australian Greens believe that even if adequate safeguards and checks and
balances were inserted into this bill, it should be opposed because the
concepts and policy it is seeking to implement are abhorrent and inflict cruel
and unusual punishment on innocent people who seek our protection.
1.8
The
politicisation of the refugee determination process is at the heart of what is
wrong with this bill. In her submission
to the inquiry, Associate Professor Mary Crock stated: 'the fact that the
Refugee Convention is based on a case by case assessment of the protection
needs of persons seeking asylum underscores the non-political nature of refugee
protection'. The bill is a significant departure from this principle because it
allows the construction of an entirely new refugee processing system in
response to the criticism from another government of Australia's refugee
processing system outcomes.
1.9
Offshore
processing and official discrimination toward asylum seekers based on their
mode and place of arrival was originally implemented for political
reasons. It involved shipping asylum
seekers to a small island nation that is essentially bankrupt and dependent on
Australia for survival. Nauru was
essentially bribed by our government to participate in a scheme designed to
reap political gain for the Howard government by exploiting xenophobia,
presenting asylum seekers as a threat and repelling this threat, while
pretending to abide by the Refugee Convention.
1.10
Whether
this policy broke only the spirit or also the letter of the Refugee Convention
is still a matter for debate. What is clear is that hundreds of people suffered
terribly for many years. Children lost
childhoods. People lost their minds.
Families were split up. Some who
returned to Afghanistan lost their lives.
Most were eventually found to be refugees and, ironically, many were
eventually settled in Australia.
1.11
Two
refugees remain on Nauru after four and a half years. One arrived when he was 21 and is now
26. The other recently turned 30. Although found to be genuine refugees,
adverse ASIO security assessments keep them imprisoned on Nauru possibly
indefinitely. ASIO refuses to tell these
men or their lawyer the reasons for their adverse assessments.
1.12
When
questioned about this practice Mr Brian Walters SC said:
Security is, and has been in history, too frequently the excuse
for overriding human rights. It was the excuse for the emergency decree and the
enabling act in 1933 in Germany. It was security: it was the burning of the
Reichstag, a terrorist act. Too often security questions are raised and they
say, ‘You can’t question that.’ That was the reason Dreyfus was tried in
secret—so no-one could see that in fact a crime was being committed against him
by the security authorities. History is replete with examples. We need to be
very suspicious of claims of security, and we must have them independently
assessed. Where someone has their rights interfered with on security grounds,
they are entitled to know why and to have that independently checked. One of
the fundamental principles of the rule of law is the principle that, if
someone’s liberty is violated, they are entitled to know the reason and they
are entitled to have that independently assessed. That has been recognised in
our system of law for over 300 years. It is a serious concern. One of the
problems that we have is that all of this is happening off shore, at arms
length, a long way away from our system, and people are able to say we do not
have responsibility for what we have in fact caused.
1.13
These
men will remain on Nauru indefinitely, despite serious mental health concerns,
until another country is found that will take them.
1.14
The
government’s stated intention is to try and get third countries to accept for
resettlement those found to be refugees. However, as several submissions noted,
including A Just Australia and Dr Penelope Mathew from ANU College of Law, only
4.3% of the refugees from the original offshore processing went to countries
other than Australia and New Zealand.
1.15
The
Australian Greens are appalled at the prospect that genuine refugees will be
left in limbo on Nauru, for years and possibly indefinitely, violating the
important international requirement of finding durable protection solutions for
refugees.
1.16
The
Australian Greens are also opposed to the policy that Australia should seek to
send refugees that it has processed to third countries rather than settle them
in Australia. This policy disrupts the
important concept of ‘burden sharing’, as noted by Australian Lawyers for Human
Rights. Not only this, but The
Australian Greens consider it an abrogation of international responsibilities
that a wealthy capable country with a relatively tiny number of asylum seekers
arriving, should try to palm off its international responsibilities to protect
asylum seekers to other, often poorer countries.
Politicisation of refugee processing:
1.17
This
bill represents a further politicisation of refugee processing. It is clearly a direct response to the
pressure from the Indonesian government.
Many submissions were critical of this aspect of the bill. The bill represents an immigration policy
change to solve a foreign policy problem. It results in punishing refugees in
an attempt to placate the Indonesian government. Several witnesses questioned whether this
response would ‘heal’ the diplomatic rift between Australia and Indonesia. A Just Australia asked Senators to consider
what would happen once West Papuans are granted refugee status on Nauru?
1.18
The
Minister for Immigration has the power under subsection 5F to exempt
individuals, including classes of persons (groups), from being designated as
‘designated unauthorised arrivals’ and shipped off to Nauru. This means the government can choose to
discriminate between one set of arrivals and another.
1.19
The
Department of Immigration confirmed that under section 198A of the Act, the
Minister could exempt East Timorese asylum seekers from offshore detention
while other asylum seekers such as from West Papua would go to Nauru. Mr Bob
Correll, Deputy Secretary said, 'There is a discretionary removal provision in
the bill; it is provision 198A. So under the provisions of the bill there is
the capacity for that sort of call to be made on an individual basis.' He also
said 'in relation to the conflagration that is currently being looked at, the
government is looking at that from an overall policy position. It would be a
matter of government policy for the way it handled it. A decision could be, as
part of that policy, to handle it in the usual way. That could be a decision.
Or it could be a decision to handle it differently, given the circumstances
that applied in that country.'
1.20
The Law
Institute of Victoria expressed concern about the repercussions of this
provision in its submission:
'The LIV also notes that the proposed legislation provides the
Minister 'an additional power to declare that specified persons or classes of
persons are exempt'. The stated purpose of this power is to provide 'flexibility
to avoid the regime being extended to those not intended to be covered by the
changes'. This power also suggests that the Minister will have discretion as to
whether the new measures should be imposed on certain groups of asylum seekers.
This discretionary power indicates that the proposed legislation will be used
to penalise some asylum seekers and not others – possibly based on their
nationality and the nature of their refugee claims.
The LIV suggests that if applied in this manner, the proposed legislation
would give rise to discrimination of a kind that is entirely inappropriate to
the legal framework for Australia’s immigration and border control.'
1.21
This
outright politicisation of refugee processing contravenes Article 31 of the
Refugee Convention and is therefore opposed by The Australian Greens.
Human rights concerns:
1.22
Nauru
is not a signatory to the Refugee Convention.
Nor is it a signatory to other important conventions protecting human
rights. In the past, lawyers,
journalists and politicians have not been granted a visa to visit Nauru. Under this bill, neither the Ombudsman nor
HREOC would be guaranteed access to monitor conditions.
1.23
The
Department of Immigration could only say that visas to Nauru, including visas
for lawyers, were a matter entirely for the Nauruan government. Senator Mason summed the situation up
succinctly when he asked the government officials at the inquiry whether Nauru
“Was Australia’s Guantanamo Bay?”
1.24
The
Australian Greens are opposed to processing people in a location where there
are no obligations to abide by critical international conventions and where
independent observers, including lawyers are actively prevented from inspecting
operations. The revelations from the
initial processing on Nauru, as well as from our own detention centres in
Australia mean that independent inspection of such facilities is critical and
the parliament would be negligent if it allowed this kind of operation to occur
without independent safeguards and oversight.
Mental health concerns:
1.25
The
fact that long-term immigration detention has a seriously damaging affect on a
person’s mental health is well established.
The isolation of Nauru is likely to exacerbate this damage. The Dutch psychiatrist Dr Maarten Dormaar,
who worked in Nauru in mid-2002 reported: 'I seldom or never encounter an
asylum seeker who still sleeps soundly and is able to enjoy life. Mental health, or psychiatry for that matter,
is basically not equipped to improve their situation in any essential respect.'
1.26
The
Department of Immigration indicated that the final report on health matters in
Nauru was addressed to the Minister and therefore they were not able to release
it. This report is widely considered to
be the reason that the 25 of the final 27 detainees on Nauru were brought to
Australia.
1.27
The
Australian Greens believe that to institute a policy to send more asylum
seekers to Nauru, in the knowledge that those detained on Nauru are highly
likely to be mentally harmed, is a culpable action and contravenes the
Commonwealth’s basic duty of care and moral obligations.
Cost:
1.28
The
Department reported to the Committee that flights to Nauru (there is no regular
service at the moment) cost between $20,000 and $100,000. Each detainee would be flown to and from
Nauru at least once, possibly more times if medical evacuation is
necessary. It is well documented that
other costs associated with running a detention centre increase exponentially
on remote islands.
1.29
The
Government has not provided the parliament with a figure for the costs
associated with this proposal despite repeated requests.
1.30
A Just
Australia noted in its submission that $240 million had been spent on Nauru, or
approximately $195,000 per asylum seeker.
1.31
The
Australian Greens object to the misuse of taxpayers money on an unnecessary and
politically motivated policy. This
funding would be better spent on settlement services or dealing with issues
that create refugees in the first place.
Impact on families:
1.32
The
Australian Greens are concerned about the impact of this legislation on
families in particular the ability of family members to live together and be
reunited when geographically separated. The committee heard from Mr Kerry
Murphy from Australian Lawyers for Human Rights about the difficulties that
single men already have in trying to bring the rest of their family to
Australia and how these difficulties will be exacerbated by this legislation.
Mr Murphy—I want to add something about family reunion. I
understand the visa the department was proposing would result from the offshore
processing was the 451 secondary movement visa, which they would rename. That
visa has a period of five years residence in Australia. But you cannot actually
apply for any other visa once you are on that visa in Australia unless you
apply for a protection visa. That protection visa cannot be decided until 54
months after you have been granted the 451 visa. The 451 visa does not provide
for family reunion in terms of sponsoring family members from elsewhere. At the
moment I have a number of clients in our office—Afghan and Iraqi gentlemen—who
have been separated from their wives and children for six and seven years. They
are now trying to bring them over in the process. They have been grinding
through the temporary protection visa process. This visa is going to reinforce
the stress that is caused for those people and make it even more difficult for
them to resettle in the Australian community.
1.33
This
legislation will mean that for families where some members of the family are
already in Australia if other family members seek to be reunited with the rest
of their family and arrive in Australia by boat they will not be able to be
reunited with the rest of their family. They will be taken to a remote island
and if they are found to be refugees the government will seek to find another
country to resettle them so they may never be reunited with their other family
members.
1.34
The
other impact this legislation will have on families relates to the ability of
family units to be housed together. The government was not able to inform the
committee about how arrangements for family units to live together would be
facilitated.
Impact on children:
1.35
Associate
Professor Mary Crock supplied the committee with a very disturbing statistic
regarding unaccompanied children. According to IOM, “32 of the 55 unaccompanied
children on Nauru were returned to Afghanistan in 2002-2003. At least one of these was subsequently
killed. Of 290 such children who made it
to Australia, none were returned over this period.
1.36
This
information should cause all parliamentarians to stop and think of the
consequences of this bill on children.
Naval interceptions:
1.37
Many
submissions and witnesses expressed concern about the Australian government’s
policy of requiring the Navy to intercept vessels carrying asylum seekers at
sea, and where possible, turn these boats around.
1.38
Although
not contained within this bill, The Defence Minister, Brendan Nelson MP,
announced that the Australian Navy would increase patrols and actively
co-operate and conduct joint patrols with the Indonesian military as part of
the policy of appeasing Indonesian over the granting of refugee visas to West
Papuans.
1.39
Experts
in the field, such as Mr David Manne of the Refugee and Immigration Legal Centre, said it would be
impossible to conduct a proper assessment on the seas as to the bone fide of
the refugee claims and therefore there was a high level of danger that
Australia would return refugees to persecution.
1.40
Mr
Manne told the Inquiry:
That raises the very real prospect, in the absence of
guarantees, that we are looking at a situation where the Australian Navy, for
example, could be put in the completely impossible position, in our view, of
somehow having to determine on the face of it whether or not someone should be
sent back to a situation of persecution. There are no guarantees or no proper
measures that have been guaranteed to ensure that that would not occur. For
example, there are no proper measures to ensure an assessment to work out
whether that person needs to come to Australia to have their claims assessed.
1.41
Dr
Penelope Mathew, from the ANU College of Law stated in her submission: 'Rather
than returning refugees to places of persecution, the parties to the Refugee
Convention have agreed to provide them with protection of their fundamental
human rights. To do otherwise is to
become complicit with the persecutory regimes from which refugees have fled.'
1.42
The
Australian Greens are opposed to the interception and return of asylum seekers
by the Navy and recommends that this policy end immediately.
Papua New Guinea:
1.43
The
original basis for the policies of mandatory detention, offshore processing and
naval interceptions is the idea that asylum seekers arriving without a valid
visa are illegal or ‘queue jumping’.
Article 31 explicitly states that asylum seekers should not be penalised
for arriving illegally.
1.44
Senator
Bob Brown asked the Department how a West Papuan should seek protection in
Australia through proper channels. The
Department’s answer was to either flee into Papuan New Guinea or travel to
Jakarta and apply at our embassy – clearly an untenable option for West Papuans
facing persecution from Indonesian authorities.
1.45
Papua
New Guinea while a signatory to the Convention has made significant formal
reservations on a number of provisions. As a result the Papua New Guinea
Government does not accept convention obligations covering: wage-earning
employment (Article 17 (1)), housing (Article 21), public education (Article 22
(1)), freedom of movement (Article 26), refugees unlawfully in the country of
refuge (Article 31), expulsion (Article 32) and naturalisation (Article 34).
1.46
While
UNHCR is working with the PNG government, evidence to the committee showed that
UNHCR in fact have only five staff in PNG and that PNG has as many as 10,000
Papuan refugees.
1.47
There
is significant evidence that West Papuan refugees in PNG are not safe from
intimidation and in some cases attacks by Indonesian military and militias.
1.48
Indonesia
is not a signatory to the Refugee Convention and the return of West Papuans to
Indonesia to face persecution would be a significant breach of the prohibition
on refoulement contained in the Convention.
1.49
Since
the invasion of West Papua in 1961, the Indonesian military occupation has
resulted in large numbers of deaths, injuries and significant human rights
abuses.
1.50
A brief
period of autonomy that seemed possible following the collapse of the Suharto
dictatorship has failed and been closed off by the Indonesian military.
1.51
Some
analysis has suggested that the systematic abuse of human rights amounts to
genocide.
1.52
Regardless,
there is no doubt that the level of conflict over West Papuans expressions of
their right to self-determination is creating the conditions under which many
West Papuans have little choice but to seek refuge in neighbouring countries.
1.53
While
this legislation seeks to deflect Australia’s responsibilities to assist those
seeking refuge it will do nothing to address the underlying cause of why West
Papuans are seeking to come to Australia.
1.54
In
fact, the knee-jerk appeasement of Indonesia displayed in this legislation will
only serve to reinforce the Indonesian military’s grip on West Papua in turn
increasing the flow of refugees.
The Australian Greens recommend:
1) that
the Bill should be opposed in its entirety on the basis that offshore
processing of asylum seekers is fundamentally flawed, the policy contravenes the
letter and spirit of the Refugee Convention and amounts to cruel and unusual
punishment of innocent people, and is based on an appalling foreign policy decision
designed to appease the Indonesia government;
2) that
the government ends the policy of the Australian Navy intercepting and
returning boats of asylum seekers on the open sea because of the high danger of
refoulement (in the case of West
Papuans direct refoulement) of
refugees;
3) that
the government acknowledge that Papua New Guinea does not have the capacity to
process large numbers of asylum seekers nor offer all refugees a durable
protection solution. Therefore Australia
should not return asylum seekers arriving in Australia via Papua New Guinea
until they have undergone a full protection visa determination process on the
Australian mainland.
4) that
the Australian Government immediately bring the two remaining refugees on Nauru
to Australia and permanently close the offshore processing camps on both Nauru
and Manus Island.
Senator Bob Brown Senator
Kerry Nettle
Australian Greens
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