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Opinion piece:ten years on from theTampa – refugees deniedfundamental rightsUWS Law School Professor Michael Head reviews the controversial Malaysia Solution.Inflated claims have been made bysome lawyers about the August 31High Court ruling on the refugee‘Malaysian Solution’ – such as that thecourt has become a ‘people’s court’and a de facto court of human rights.In reality, the court’s decision wasan extremely narrow one. It leavesin place the system of ‘onshore’detention within Australia – a systemthat denies fundamental legal anddemocratic rights to asylum seekers,such as to seek political protectionwithout being penalised, and notto be detained without trial.It should be recalled that in 2001,the High Court permitted the forcedremoval of the Tampa refugees toNauru, and in 2004 the court ruledthat the government could keeprefugees detained within onshoreAustralian detention centres indefinitely,even in violation of international law,including the International Covenanton Civil and Political Rights.The latest High Court decisionwas based on an interpretationof specific sections of theMigration Act and the Immigration(Guardianship of Children) Act.In particular, section 198A(3) of theMigration Act was interpreted to reflectobligations under the internationalRefugee Convention. These obligationsare minimal: not to deport someone whois officially classified as a refugee to facepolitical persecution and not to punishpeople making protection applications.As several judges made clear,the ruling does not prohibit otherversions of so-called offshoreprocessing, as long as they satisfythese very limited requirements.The High Court decision leavesintact mandatory detention, that is, theimprisonment of all asylum seekersarriving in boats – a punitive regimethat, in effect, violates the RefugeeConvention by seeking to deterrefugees from exercising their rightto seek asylum. Australia is the onlycountry to maintain such compulsorydetention, which was first introducedby a Labor government in the 1990s.Much of the commentary surroundingthe court’s ruling was guided by theconception that detention is acceptableas long as the Australian governmentremains in control of the process. Thisstandpoint ignores the fact that thetreatment of asylum seekers in Australianfacilities is punitive and degrading, andhas caused immense personal suffering.Across Australia’s detentionnetwork, incidents of self harm, mostoften through attempted suicide ormass hunger strikes, have escalated.According to statistics obtained bythe Ombudsman from the ImmigrationDepartment, there were 1132 instancesof actual or threatened self-harm in12 months – an average of three perday. In just one week during July,there were 50 such incidents.In line with the reaction of successivegovernments to any challenge byincarcerated refugees to the denial oftheir fundamental rights, the federalgovernment has responded withrepression, including the use of teargas and rubber bullets. Desperateprotests by inmates, attempting to drawpublic attention to their plight, havebeen met with the arbitrary removalof demonstrators to high-securityprisons and threats by governmentministers to retaliate by strippingrefugees of their right to seek asylum.The experience of the past twodecades suggests that the conditionsinside the detention centres will onlyworsen as asylum seekers wait longerand longer for decisions on their visaapplications. The High Court late lastyear held that detainees on ChristmasIsland could not be denied accessto the courts. Given the numbers ofdetainees and the lengthy nature ofthe official and judicial processes,however, many are likely to remainimprisoned, waiting months, if notyears, for appeal outcomes.The government’s move to circumventthe latest ruling reveals a contempt forbasic legal norms. Its draft legislationeffectively repudiated the requirementsof the Refugee Convention, placed allpower in the personal hands of theimmigration minister to declare anycountry an ‘offshore processing country’in the ‘national interest’ and precludedany overriding vote by parliament.More fundamentally, the entirepolitical establishment, including theGreens, advocate some form of ‘borderprotection’ regime, which ultimatelymeans using military force, in oneway or another, either to physically‘turn back the boats’ or to otherwiseblock refugees. Intrinsically, it deniesthe right to flee persecution andseek asylum, which means nothingif countries shut their borders.Political and media commentatorsgenerally attribute this policy towidespread public hostility torefugees. An interesting opinionpoll conducted by Fairfax Media,however, found just 25 percentsupport for ‘offshore processing’.To the extent that anti-refugeesentiment exists among certain layersof the population, it is largely the resultof political and media campaignsaimed at fomenting xenophobic fearsabout the country being ‘under siege’or facing ‘invasion’ by hordes of aliensresponsible for driving ‘Australians’14 GradLife November 2011
‘... the court’sdecision wasan extremelynarrow one.It leaves inplace a systemthat deniesfundamentallegal anddemocraticrights toasylumseekers’Professor Michael Headout of jobs, lowering their wages andcutting their living standards. Suchrhetoric has always been used intimes of economic crisis to deflectdomestic discontent away from thereal culprits – the political and rulingelite and the profit system itself.Not only the right to asylum but amore basic democratic principle isat stake in this issue: that all peopleshould have the elementary rightto live and work with full citizenshiprights in any country of their choosing.Without that fundamental rightthey can be denuded of virtuallyany other civil and political right.GradLife November 2011 15
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grounded in the business - University of Western Sydney

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