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Authoritarianism in the Name of Freedom

Julian Burnside How Australia’s Detention Centres Breach the Most Basic Human Rights

Authority is the gravitational force which holds society together: it is a Good Thing. Authoritarianism is an oppressive exercise of central power: it is a Bad Thing. They are both part of the same spectrum. Where is the boundary between these two ideas? When does the exercise of authority become authoritarianism?

The answer is necessarily a product of subjective assessment rather than absolute measurement. Government power and individual freedom are necessarily in tension. A central feature of any constitutional democracy is that the government acquires power and the people agree to limit their freedoms by being subject to that power. The will of the majority is imposed on all through the mechanism of government power.

Every grant of power to central government reduces, to some extent, the freedom of the citizen. Individual rights are constrained in two ways:

First, by the countervailing rights of others. (Your right to swing your fist stops just short of my nose). Second, rights are constrained by government authority. My right to accumulate wealth is constrained by an obligation to pay tax. Collectively, we restrict our rights by conferring authority on government.

From this simple account, it will be seen that the authority of government operates to restrict our individual freedoms for the collective good. When government exercises these powers in ways which unduly restrict our freedom, it is seen as authoritarianism.

In a healthy democracy, the balance of central authority and individual freedoms is carefully maintained. The threat of electoral punishment keeps governments more or less sensitive to the electorate’s collective view about the appropriate limits of its authority.

Authority v. Freedom

The balance between authority and freedom is compromised in three main circumstances:

Firstly, when effective opposition is absent, or so compliant or so weak as to enable government to ignore electoral retribution. This is the position in totalitarian regimes. It was briefly the position in Victoria a few years ago. It is the position in Federal parliament as at October 2001.

Secondly, in times of war or civil emergency, when the people cede to government greater than usual powers in order to meet a collective threat more effectively.

Thirdly, when the freedoms at issue are those of the politically irrelevant — the disenfranchised or the voiceless. In relation to the third group, governments typically have, and exercise, atypical authoritarian power. The voiceless minorities are subjected to unusual authoritarian powers granted or tolerated by an electorate which is not subject to those same powers. For example, until 1967 Indigenous Australians were not entitled to vote. They had no voice in the Australian democratic process. They were treated in ways which would not have been tolerated if all citizens had been treated likewise.

Similarly, refugees have no vote and no voice. Governments are able to exercise much greater powers over them because they are silent and (for the most part) invisible.

The Australian public accepts, virtually without a murmur, the fact that asylum seekers are detained compulsorily while their claims for asylum are assessed. This policy, accepted by both major parties, would not be tolerated if it applied to white middle-class voters. It applies, in practice, to penniless non-voters from Asia and the Middle East. The government justifies it as an exercise of national authority. We accept it without questioning its moral foundation.

Is the government’s treatment of refugees to be regarded as a proper exercise of authority or as unacceptable authoritarianism?

The line between authority and authoritarianism is ultimately to be found by asking what freedoms we regard as the irreducible minimum. Any restriction of freedom beyond that point will properly be considered authoritarianism. But the analysis has another dimension. Can we allow that some groups have fewer freedoms than others? Clearly Hitler’s Germany thought so — the Jews, the Gypsies, the communists and homosexuals were stripped of the rights enjoyed by others. Before 1967, Indigenous Australians were denied rights enjoyed by others. We regard these events as aberrations: our common humanity is the baseline in which all our rights are grounded.

It is the mark of an authoritarian state to accord inferior rights and freedoms to those minorities not favoured by the government.

Australian’s Treatment Of Asylum Seekers

Against this background, consider the way we treat asylum seekers.

Compulsory detention

Quite apart from the fact that conditions in the camps fall short of any acceptable standard, there is the fact that holding refugees in detention is itself a violation of international obligations. The International Covenant on Civil and Political Rights (ICCPR) provides that:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law (Article 9 cl. 1).

Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful (Article 9 cl. 4).

The government argued vigorously, and successfully that the refugees on the Tampa, in Australian territorial waters, were not entitled to habeas corpus.

The inescapable fact is that the government has not honoured its international obligations, and it hides behind a mask of respectability while it treats refugees like non-humans.

At 23 March 2000, there were 3,622 people held in immigration detention facilities of whom 27 people were in Perth, 82 in Maribyrnong, 315 in Villawood, 805 in Port Hedland, 1,105 people in Curtin and 1,288 in Woomera. From time to time, people are held in immigration detention in other locations (DIMA website).

It is notable that a disproportionate number are held in the most remote locations. Woomera is about six hours drive from Adelaide, in the middle of the desert. To get to Curtin, you drive six hours east from Perth, through Kalgoorlie and Boulder. Port Hedland is north of Perth, about an eighteen-hour drive. These God-forsaken places, in the least hospitable parts of Australia, hold over 80 per cent of asylum seekers.

In a departmental briefing paper Mr Ruddock said:

Australia’s Migration Act 1958 requires that all non-Australians who are unlawfully in Australia must be detained and that, unless they are granted permission to remain in Australia, they must be removed from Australia as soon as practicable.

This practice is consistent with the fundamental legal principle, accepted in Australian and international law, that in terms of national sovereignty, the state determines which non-citizens are admitted or permitted to remain, and the conditions under which they may be removed.

A small truth conceals a great lie. It is true that sovereign nations can decide who may enter their territory. But Mr Ruddock conveniently overlooks other international laws and obligations concerning the treatment of refugees.

In May 2000, the Human Rights and Equal Opportunity Commission reported to the government that its detention regime was in breach of international law. The government has ignored the report.

In 2001 the Australian branch of Amnesty International reported as follows:

International law demands that detention of asylum-seekers normally be avoided, and resorted to only when necessary, and only for specified reasons:

· to verify identity

· to determine elements of a claim

· to deal with cases where documents have been destroyed

· to protect national security or public order.

International law attempts to ensure that detention in any given state is not arbitrary or unlawful and is open to judicial review. Australia, however, mandatorily and automatically detains all asylum-seekers who enter the country without proper documentation.

Amnesty International is concerned that asylum-seekers — and often refugees — should not be detained for longer than necessary under international law. In Australia, however, many remain in detention for months and sometimes years, including women and children and those suffering torture and trauma. Refugees in detention also find it difficult to exercise their right to legal representation — a right which even arrested criminals are allowed.

A very recent report of the central body of Amnesty International reported on Australia in the following terms:

Human rights advocates called for a Bill of Rights to safeguard the rights provided in international human rights treaties to which Australia is party. Their concerns were echoed by the UN Human Rights Committee (HRC), which monitors implementation of the International Covenant on Civil and Political Rights (ICCPR), and by the UN Committee on Economic, Social and Cultural Rights. They found that treaty rights have no legal status in Australia and cannot be invoked in domestic courts, leaving gaps in Australia’s human rights system and impeding the recognition and applicability of treaty provisions.

In May, the Prime Minister failed to participate in public events to recognise past human rights violations against indigenous peoples and indicated his opposition to proposals for reconciliation …

Breaching international obligations

The Minister for Immigration and Multicultural Affairs sought revisions of international refugee standards to deter irregular movements of asylum-seekers. 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.

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 such groups as the Tampa refugees is a betrayal of our commitment to the human dignity of refugees.

The government, armed with the largest powers imaginable, turned the full force of those powers on the weakest and most vulnerable people on earth. It did so to placate the relaxed and comfortable, the complacent, xenophobic Australian electorate. It did so in order to take a cheap electoral advantage. Such shabby conduct deserves our contempt.

Refugees Convention

The preamble to the Refugees Convention includes the following statements of principle and aspiration:

Considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination.

Considering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms.

The DIMA website contains a document which sets out the standards which must be maintained at detention centres by Australian Correctional Services, a commercial operation, which is paid to run them. Compare the image with the reality:

[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.

An eye-witness account of Woomera from an Adelaide solicitor revealed:

two working toilets for 700 people, both leaking, sand on the floor to ‘mop up’ the leaking effluent

four working showers, for 700 people, hot water only available after midnight

food not to be taken from the dining room for children or sick adults

no coffee/tea/food between meals, only water

no air conditioning, fly screens, or heating. (Temperatures during the day reach 45 degrees; at night it falls below freezing; there are millions of flies.)

inmates have to queue for meals, medical attention, phones (two for 1300 people) for up to two hours. Persons seeking medical attention (including painkillers for broken leg, raging fever, tonsillitis, etc.) each have to queue in the open in front of the nurse for up to an hour and a half to obtain their medication.

nails may only be cut by the nurse, who will do one person per day

women must queue each day for their ration of tampons/disposable nappies

there is no baby food or formula. One woman with a six-month-old baby who was struggling to maintain breast feeding was advised to feed the baby powdered chicken stock mixed with water (no sterile equipment of course).

food is beyond description; many will not eat it.

ICCPR

The preamble to the International Covenant on Civil and Political Rights refers to individual rights as follows:

Recognizing that these rights derive from the inherent dignity of the human person,

Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights …

Compare this portion of an affidavit of an Iraqi woman in a detention centre (the names are anglicised for security):

1. The adults were handcuffed. I asked to have my handcuffs removed so I could hold Robin, my two-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 8.00 a.m. For around thirty-two hours the children had no food. We were held in a small room with no toilet or water facilities whatsoever. I repeatedly asked to take my child to the toilet but often had to wait for up to an hour before being escorted to the toilet. A child of two cannot wait and I had to allow my son to relieve himself onto a bundle of clothes in the corner of the room. Later I washed these clothes out when I was taken to the toilet on one of the twice daily toilet breaks.

Declaration of Rights of the Child

The Declaration of the Rights of the Child says, in part:

Whereas the peoples of the United Nations have, in the Charter, reaffirmed their faith in fundamental human rights and in the dignity and worth of the human person, and have determined to promote social progress and better standards of life in larger freedom (Preamble par. 1).

The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity (Principle 2).

Here is portion of an affidavit sworn by an Iraqi woman (again, the names are anglicised for their security and, incidentally, to remind you that these events happened in Australia):

1. On a day in August 2000, on or round 5:00 am about twenty to twenty-five Centre Emergency Response Team (CERT) staff broke into our rooms and handcuffed me, my son Andrew and my husband James. They dragged Elizabeth off her bed by her shirt, and together with Alice we were driven to Juliet compound. I observed an officer filming us with a video camera. The Jackson family was taken with us and I observed each member of that family was put in a separate cell.

2. I was put in a cell with Elizabeth and Alice. Later, when we were released after fifteen days in Juliet Compound, my husband told me that Andrew had been put in a cell with him, but that later he had been in a solitary confinement cell. Billy, our five-year-old son was also put in a solitary confinement cell.

3. During that fifteen days in Juliet 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 which I found in the cell as a toilet. I starved myself for two days as a protest before the guards would allow the children to use the toilet.

4. My son, Andrew, later described to me his experience in detention. He said words to the effect of: ‘I needed to go to the toilet and called the guards. After a few minutes four guards came rushing down the corridor. They broke into my cell wearing CERT gear and armed with blocking cushions. 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.

5. 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 Future

Last year, over 8 million people arrived in Australia from overseas. Most were short-term visitors. Ninety-two thousand were migrants who were given permission to stay here permanently. About half of them came from Anglo-Saxon countries. More optimistically, about half were not from Anglo-Saxon countries. The sky did not fall.

In each of the last two years, about 4,000 boat people arrived. So they account for about 5 per cent on top of the orthodox migrant intake. Or one refugee per 5000 Australians. They risk death at sea to get here. That risk is all too real, as recent events show. It can be presumed that they were driven by fear and desperation to embark on such a venture. Those who, like the Tampa refugees, come from Afghanistan, are unquestionably fleeing one of the most brutal and repressive regimes in the world. A regime so bad that we are now engaged, together with the United States, in armed attack on Afghanistan.

We have a choice: imprison asylum seekers, in defiance of international law, or let them into the community after initial screening, whilst their claims for asylum are assessed.

There are four reasons why we should let them into our country and into our community:

First, because it is our obligation under international law. This is purely a formal reason, but international disgust at our present stance provides an added reason for adhering to our obligations.

Second, because they are human beings. We must treat them decently — for the sake of their humanity, and for the sake of our own humanity. The way we are treating them diminishes us.

Third, because of the long-term problems for our society if we continue to treat them badly. The world is a much smaller place than it used to be. The events of 11 September demonstrate, with horrible clarity, just how small the world is. Indonesia, where millions seek early refuge, is our near neighbour. The refugees fleeing from Iran, Iraq and Afghanistan are our neighbours. We are close to them all. We cannot ignore them by pretending that culture and geography create a safe distance. They do not. Nor does geography obscure our moral obligations.

If we imprison asylum seekers, they will suffer great physical and psychological harm; they will start their new lives in Australia with a legitimate sense of grievance; they will think Australia and Australians heartless. If that is the result, it is our fault. It is utterly predictable. If we imprison them, it stains our conscience and blights our future as a nation.

Finally, because it costs us so little. Suppose we allow them into the community after brief initial screening. And suppose (against all previous experience of new migrants) that not one of them found a job. And suppose we went so far as to give each of them a living allowance to enable them to live with dignity. That small exercise in compassion would cost each Australian six cents per week.

Six cents a week is a small price for a clear conscience.

Some of them would not be accepted ultimately as refugees. Of that group, some may not surrender themselves to the Department for deportation. If they manage to stay out of the Department’s way, it probably means that they are living law-abiding lives. The rest will be accepted as genuine refugees. We will have fulfilled our legal and humanitarian obligations to them, especially the children.

The alternative is to keep on doing what we are presently doing: ignoring humanitarian imperatives; ignoring international law; ignoring international scorn; and scarring a generation of genuine refugees whose claims to stay here are ultimately accepted. We should not leave out of the equation the devastating effect on these people of the way we treated them in their first few years. These people, who had the courage and wit to get themselves here have already shown, by the fact of arriving here, that they have courage and determination. They will be valuable additions to Australian society. They are a part of our future. We should not break their spirit before we admit them.

The way we treat asylum seekers in Australia is a naked example of authoritarianism. The tragedy is that those who suffer it are politically irrelevant, and those who have the power to change it either do not know or do not care.

 

Julian Burnside, QC, acted for Liberty Victoria in the Tampa case.

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