Legal aid denied to asylum seekers who arrive through unauthorised channels

Legal aid denied to asylum seekers who arrive through unauthorised channels



scheme may mean legitimate refugee claims are rejected

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Immigration minister Scott Morrison. Photograph: William West/AFP/Getty Images

The federal government has cut all taxpayer funded legal advice to
asylum seekers who have arrived in Australia through unauthorised
channels, drawing criticism from immigration law experts who say it will
jeopardise thousands of refugee protection claims.

The Coalition
pledged to make the cuts to the Immigration Advice and Application
Scheme (IAAAS), which will save $100m, before last year's federal
election and it is understood cases have not been referred to the scheme
since November.

The immigration minister, Scott Morrison, said
on Monday cutting legal access to asylum seekers lodging protection
claims in Australia did not contravene obligations under international
law.

“If people choose to violate how Australia chooses to run our
refugee and humanitarian programme, they should not presume upon the
support and assistance that is provided to those who seek to come the
right way, and they should certainly not receive additional assistance,
as they did under the previous government,” Morrison said.

But international standards written by the United Nations High Commissioner for Refugees (UNHCR) say the right to legal advice during the claims process is an “essential safeguard”.

“Asylum
seekers are often unable to articulate the elements relevant to an
asylum claim without the assistance of a qualified counsellor because
they are not familiar with the precise grounds for the recognition of
refugee status and the legal system of a foreign country,” the UNHCR
says.

Morrison said the government would offer a “small amount of
additional support” to those the department of immigration considers
vulnerable – including unaccompanied minors.

David Manne, chief
executive of the Refugee and Immigration Legal Centre, said the cuts
could endanger the lives of asylum seekers fleeing persecution.

“This
is a complex process and people need legal advice and support to
understand what’s required, and present their case in a way which can be
properly assessed by the government. Without this advice, people will
seriously struggle to understand the system or properly present their
case,” he said.

“The bottom line is – it’s about the government
getting the right decision on what are often life or death matters so
that we don’t reject people whose safety is at risk.”

Morrison
said asylum seekers would be free to access legal advice offered on a
pro bono basis and would be assisted by the department of immigration.

But
Rachel Ball, director of advocacy and campaigns at the Human Rights Law
Centre in Melbourne, told Guardian Australia the department had already
refused an offer to provide asylum seekers with a list of free legal
services.

According to correspondence with the department seen by
Guardian Australia, the department said it would be inappropriate to
provide a list in case it was seen to be “favouring or endorsing
particular persons or organisations”. Ball said this response was
“nonsense”.

“There is a limited number of services that can
provide pro bono assistance and they can’t possibly meet the demand.
This is not a case where providers are competing with each other for
lucrative business; they’re providing the services for free,” she said.

Tanya
Jackson-Vaughan, chief executive of the Refugee Advice and Casework
Service, which is one of nine groups in receipt of IAAAS funding for
boat arrivals, said the cuts would mean more asylum seekers “failed the
test” for refugee status.

“Access to justice is a fundamental
human right – there’s been a longstanding commitment from successive
governments to provide legal assistance to asylum seekers in recognition
of this right and that legal assistance assures an effective refugee
status determination process,” she said.

Labor's immigration
spokesman, Richard Marles, described the cuts as “mean-spirited” and
“ripping away assistance for people who have been through traumatic
experiences and are often vulnerable”.

“This is an unfair and harsh announcement from a government with twisted priorities,” Marles said.

Australia, a country against genocide — most of the time

Australia, a country against genocide — most of the time

Tim Robertson 28 March 2014, 5:30pm  

Indigenous AustraliaInternationalPolitics

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(Image via restlessbeings.org)

Australia has a shameful history of carrying out and
sponsoring genocide and the Abbott Government is continuing this
tradition, writes Tim Robertson.



HISTORY IS PLIABLE.



And if there’s one mark a nation must surely wish to have expunged from its record, its genocide.



John Howard attempted this and now Tony Abbott and Christopher Pyne are repeating the pattern. (For a brilliant examination of why the crimes against Australia's First People in the frontier war constitute an act of genocide I would direct you in direction of Henry Reynolds’ most recent book, The Forgotten War.)



But Australia’s crimes against its Indigenous People are not the only ‘black mark’ against her history — now distorted in textbooks extolling her proud martial record.



Australia, so the myth goes, played an important role as ‘peace keepers’ in restoring order to East Timor from 1999 to 2000.



What’s not mentioned is that Australia courted and sponsored Suharto’s
genocidal Indonesian regime. Australia trained their special forces who
murdered thousands of East Timorese and was the only western nation to recognise Suharto’s territorial conquest.



This, in turn, allowed Australian government to sign a deal
with the dictator that gave her access to oil and gas beneath the
disputed Timor Gap, allowing the two nations to split the profits 50/50.
(Bear in mind that it’s a crime under international law to exploit the
resources of disputed territory for profit.)







Foreign ministers Gareth Evan and Ali Alatas celebrate signing the Timor Gap Treaty. (Image via laohamutuk.org)



Now the Abbott Government is playing a role in the genocidal crimes against the Rohingya in Myanmar.



The Rohingya are a Muslim minority who are refused citizenship by the Buddhist government. The Myanmar Government refers to them as ‘Bengalis’ — a term that implies they are from Bangladesh, which they are not.



They are prevented from accessing healthcare service; the children
are deprived of an education; they’re forced to live in camps; and, when
violence breaks out, their homes are razed, and they’re murdered, raped
and tortured by the security forces and local villages.



And all this is done behind a shroud; the Myanmar Government does not allow foreign journalists to visit the worst affected areas and, last month, even expelled Médecins Sans Frontières.



There is little sympathy for the Rohingya within Myanmar.



I was there last month and was staggered by the level of hate and
hostility directed towards all Muslims — a message promoted by the
Government and shared by most of the Buddhist majority.



However, internationally the plight of the Rohingya is becoming better known and is being raised at high levels of government.



On 18^th November 2013, a resolution was introduced in the U.S. House of Representatives

‘... urging the Government of Burma to end the persecution of the
Rohingya people and respect internationally recognized human rights for
all ethnic and religious groups within Burma.’

Yet Australia, a supposed leader in the region, continues to remain silent.



Then again, Australia’s treatment of asylum seekers
– some of whom are Rohingyas fleeing Myanmar – must surely disqualify
her from making moral condemnations of other nations’ human rights
record?  



To call this a ‘predicament’ would be to underestimate the quagmire the Abbott Government now finds itself drowning in.



Scott Morrison’s test for whether his refugee policy is working – have the boats stopped arriving? – is also the test for working out how many vulnerable people are being subjected to terrible repression in their own country.



For the Coalition’s policy does nothing to stop repression — it just
shuts off one of the few avenues victims have of escaping it.



What’s more, it’s a viable avenue; Australia has the capacity to support the small number of genuine refugees that flee to her shores.



It doesn’t exactly make Australia complicit in crimes being committed
by these authoritarian regimes, but it certainly makes her sympathetic.
In fact, Australia has the same ‘problem’ as them — unwanted people.



The difference is that the Australian political system puts certain
constraints on its Government. Rule of law exists in a way it doesn’t in
Myanmar.



But in terms of moral equivalence, the crimes of both countries are
inseparable — which should make all Australians more than a little
uncomfortable.



Myanmar doesn’t want the Rohingya in their sovereign borders because
they don’t consider them Burmese, so they are threatening them with
violence and punitive measures. Now, replace the words ‘Myanmar’ with
‘Australia’ and ‘Burmese’ with ‘Australian’ in the previous sentence and
you have a perfect encapsulation of the Coalitions refugee policy.





The torture we subject refugees to by condemning them to indefinite
detention is becoming more and more obvious — but what’s impossible to
measure is how many people are left to suffer in faraway countries
because they’ve now got nowhere to escape.



Tim Robertson is an Australian freelance journalist based in Beijing. You can follow him on Twitter @timrobertson12.

Manus Island negligence may have financial costs

Manus Island negligence may have financial costs

By Morrison and Barns

Posted
57 minutes ago

Photo:
Sleeping quarters in the Bravo compound of the Manus Island detention centre in 2014. (AAP: Eoin Blackwell)

It's highly likely that the Australian
Government's non-delegable duty of care towards asylum seekers is being
breached daily, leaving taxpayers exposed to massive liability, write
Andrew Morrison and Greg Barns.

When things go sour
at the Manus Island and Nauru detention centres, the Commonwealth
Government likes to distance itself from liability for wrongs that may
have been committed by contractors who work at these centres. Such an
approach is inconsistent with the law around what is called
non-delegable duty of care.

The law in Australia is that the
Commonwealth Government owes a non-delegable duty to detainees in
immigration detention and the Commonwealth can be held liable "for the
negligence of others who are engaged to perform the task of care for a
third party - no matter whether the person engaged to provide the care
is a servant or an independent contractor," as the High Court stated in a
landmark 2003 decision called NSW v Lepore.

In the context of
harm that occurs to detainees in immigration detention, this means that
if the Commonwealth engages contractors such as security companies like
G4S, NGOs or medical professionals, then if any of those contractors is
negligent in carrying out its duties and detainees suffer mental or
physical harm or both, the detainees may have a cause of action against
the Commonwealth.

To provide an example: if a detainee suffers
mental and physical injuries as a consequence of being assaulted by
other detainees or staff at the centre as a result of the company
running the detention centre being negligent in how it ensured the
safety of detainees by allowing an assault to take place, then that
detainee can sue the Commonwealth Government for compensation. Or if the
health care delivered by health professionals engaged by the
Commonwealth fails to deliver adequate care to a detainee and he or she
suffers an injury, then he or she will have a cause of action against
the Commonwealth.

The fact that Manus Island and Nauru are
offshore locations does not, in our view, mean that the Commonwealth is
off the hook. Both of these centres are run by the Commonwealth
Government. The Commonwealth's contract with G4S which has run Manus
Island - although Transfield, a logistics company, will take over the
operation shortly - refers to the Department of Immigration asking G4S
to provide "operational and maintenance services" with respect to people
being transferred to a regional processing country, Papua New Guinea.
Similarly in Nauru it is the Australian Department of Immigration that
contracts out services and security to private contractors and NGOs.

The
relevance of reminding the present Federal Government and its
predecessors (now in opposition) of this is that the Australian taxpayer
is potentially exposed to massive liability if there are claims made by
detainees over the next few years. The fact that, as revealed in PNG's
inquiry into the Manus Island detention centre headed by Justice David
Canning, bread is often riddled with worms, or that, as a former
Salvation Army worker revealed this week, suicide and self-harm attempts
are made on a daily basis in Nauru, means that it is highly likely the
non-delegable duty of care the Commonwealth owes to detainees in those
centres is being breached on a regular basis.

Confronting images

As
part of an inquiry into the human rights of asylum seekers, a handful
of journalists including the ABC's Liam Fox were allowed to see inside
the Manus Island detention centre.

The Commonwealth sets and purports to maintain and
supervise written detention standards. It has its own staff present for
this purpose at both Nauru and Manus Island. It is worth noting that the
Commonwealth Government may also be directly negligent if there is a
clear breach of its own written detention standards, which those
supervising knew or should have known about.

There have in fact
been successful claims made by asylum seekers who have been subjected to
the most appalling mistreatment by Canberra and its agents over the
years. In 2005 Justice Paul Finn of the Federal Court ruled that the
Commonwealth's non-delegable duty of care owed to detainees at the
Baxter detention centre in South Australia meant it was liable for the
mental illness these men suffered as a consequence of grossly inadequate
medical care. The Australian Lawyers Alliance has obtained figures from
the Commonwealth Department of Finance that show $7 million has been
paid out in claims by Canberra since 1999 to asylum seekers who have
brought claims based on negligence and other breaches of duty by the
Commonwealth while they were in detention. 

By all reliable
accounts, such as the recent United Nations Commissioner for Refugees
report, released in November last year, the physical conditions and
quality of 'care' provided to detainees on Manus Island and Nauru is
well below international and Australian human rights standards for
individuals who are detained by governments. This makes it highly likely
that the Commonwealth's non-delegable duty of care is being breached
daily and is potentially costing this nation millions of dollars in
compensation claims.

What is also disturbing is that the present
Federal Government and its predecessors have such an insouciant attitude
towards that non-delegable duty of care. We never hear Immigration
Minister Scott Morrison talk about how seriously he and his colleagues
in the Abbott Government take their duty of care to ensure the safety of
detainees on Manus Island or Nauru. In fact, one gets the impression
that Mr Morrison couldn't give a fig about such an important legal
concept - he wants to make Manus Island and Nauru sound like hellholes
so as to deter asylum seekers from hopping on leaky boats.

Dr
Andrew Morrison SC is a member of the New South Wales Bar who has
appeared in a significant number of cases against institutions in
respect of sexual abuse of children. View his full profile here.
He is a spokesperson for Australian Lawyers Alliance. Greg Barns is a
member of the Tasmanian Bar and a spokesperson for the Australian
Lawyers Alliance. View his full profile here.

Children neglected on Christmas Island, human rights inquiry finds

Children neglected on Christmas Island, human rights inquiry finds

Date

March 25, 2014

Sarah Whyte

Immigration correspondent

View more articles from Sarah Whyte

Follow Sarah on Twitter
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Click for more photos

Wish we weren't here: Children’s postcards from Christmas Island

Drawings by children in detention on Christmas Island.

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An inquiry into the treatment of asylum seeker children on
Christmas Island detention centre has found children in a state of gross
neglect, with little to no access to education.



In the first stage of the Human Rights Commission's national
investigation into children in detention centres, the report found the
majority of the 315 children on the island had been in the detention
centre for six to eight months but had received only two weeks of
education.




Commission president Gillian Triggs, who has been to
Christmas Island numerous times, said this trip shocked her because of
the sheer number of children on the island and the unprecedented amount
of time they had been waiting for their claims to be processed.



Their physical appearance, including bloodshot eyes, skin
infections and weeping sores, was also alarming, she said. ''If we saw
these children in Australia, we would be reporting them to DOCS,'' said
Dr Triggs, who is due to hand down the findings of the national inquiry
in September.


In pictures drawn by the children, one depicts two girls
holding hands behind detention bars with the words: ''I need your help,
please help me'', while other drawings show frowning children crying,
also behind bars.



Dr Karen Zwi, a paediatrician who accompanied Dr Triggs to
the island, said there was a high level of anxiety among both the
children and adults in the centre.



''My main concern is their developmental health to play and
their basic skills of talking and running around,'' she said. ''We saw a
lot of skin infections and rashes.''



During their stay, they recorded instances of children biting themselves and others, and banging their heads.



Dr Zwi said many asylum seekers - both children and adults -
were also living in fear that they would be sent to Manus Island, which
has been quietly happening to many of their neighbours at 4am on
Fridays.



''Many of them mentioned the knock on the door and that they
would be killed on Manus,'' she said. ''We saw a lot of children who
were really depressed.''



Australia has obligations under international human rights
law to detain children only as a measure of last resort and to ensure
they are protected from harm, the report said. The inquiry continues.

Read more: http://www.smh.com.au/federal-politics/political-news/children-neglected-on-christmas-island-human-rights-inquiry-finds-20140324-35ebj.html#ixzz2wuUHe0zt

PNG "mateship" on asylum seekers no substitute for rigorous policy and decent conditions

23 March 2014, 11.40pm AEST

PNG “mateship” on asylum seekers no substitute for rigorous policy and decent conditions

Prime Minister Tony Abbott has been keen to show off the positives of his trip to PNG.
AAP/Alan Porritt

Tony Abbott was desperate to paint his just-completed trip to Papua
New Guinea in highly positive terms but as far as asylum seeker policy
is concerned, it has just thrown up more problems and questions and
exposed what a shambles the “PNG solution” is.



Where some of the people who come out of the process as genuine
refugees will then go is now one of those “known unknowns”. Whether the
processing itself is being done with sufficient competence and integrity
surely has to be a concern. And both countries appear to care less and
less (if that’s possible) about the human rights of the people on Manus –
their prime preoccupation being to limit information coming out that
might be embarrassing or damaging.



After his Friday talks with Abbott, PNG Prime Minister Peter O'Neill
made it clear his country will not resettle all those found to be
refugees. He wants other Pacific countries to accept some.



“We will take some and we’ll take as much as we can,” he said. “But
as we have stated at the initial stage when we agreed to this, we will
also want all the other countries within the region [to participate].”



This sort of qualification has periodically been thrown up in one
form or another by PNG. But the Australian government has given the
impression that PNG would take the full refugee component.



Abbott, asked on February 17 whether it was still the plan to settle
refugees in PNG as originally conceived under then PM Kevin Rudd, said:
“Well that is still very much available and Prime Minister Peter O'Neill
has reassured me repeatedly that the same deal that was on offer to the
former government remains on offer.”



Immigration Minister Scott Morrison said on February 18: “Mr Abbott
spoke with Prime Minister O'Neill today … [he] confirmed Papua New
Guinea’s ongoing commitment to offshore processing on Manus Island and
resettlement in Papua New Guinea.”



When on March 2 he announced a joint ministerial forum to oversee the
regional resettlement arrangement Morrison said it would “aid us to
keep this important arrangement on track and translate announcements
into action, when it comes to the critical issues of processing claims
and resettling refugees in PNG”.



Abbott was pressed while in PNG on when and how come things had changed - he just avoided answering.



PNG has yet to put its resettlement plan to its parliament – it is
due to do that in May. Abbott said that would mean resettlement of those
found to be refugees ought to be taking place in May and June.



Now that it is beyond doubt that PNG wants to offload some refugees,
where will they go? Is Australia negotiating with other Pacific
countries? “I’m not going to imperil discussions that we’re having,”
Abbott said.



Foreign Minister Julie Bishop did recently sound out the Cambodia
government about asylum seekers but the Australian government was less
forthcoming about these discussions than its Cambodian counterpart and
the nature of these talks was unclear.



O'Neill also declared at Friday’s joint news conference that “a good
majority” of those processed were economic refugees and would be
repatriated.



Abbott later invoked former Labor minister Bob Carr’s assessment
(while in government) to back up what he described as O'Neill’s “strong
suspicion”.



Yet there was not any precision. Is this based on numbers or is this
some generalisation on impressions? And how come this can be said while
people don’t seem to be emerging, processed, out of the system?



While it may be true that the claims of many won’t stack up, given
the maladministration surrounding Manus in general, one has to wonder
how rough and ready the assessment process is (it is being done by PNG
with Australian mentoring).



The shenanigans over the investigation of human rights at Manus by
PNG Justice David Cannings does not give confidence in the behaviour of
either government.



Cannings took journalists when he visited the detention centre late last week, obviously to the annoyance of both governments.



Next thing, his inquiry – which the judge himself had initiated - was shut down by the PNG government.



PNG Foreign Minister Rimbink Pato told Fairfax Media that the Abbott
government was consulted and strongly backed the decision, saying
Morrison and Bishop shared his concern about the inquiry and thought it
should be challenged.



This is perhaps not surprising after the recent statement that other,
more official inquiries the two countries were holding should be
“synthesised”.



But Abbott himself said he did not know about the action ahead of
time and just talked about PNG’s “vigorous and independent” legal
system.



The judge is now opening a new inquiry.



The reporting by the journalists who visited the centre indicated conditions that should be totally unacceptable.



At their joint news conference Abbott said he was gratified to have
from O'Neill his assurance that the people and government of PNG were
committed to “staying the course”.



“I really value the mateship that Peter O'Neill has shown to
Australia on this.” The following day he said: “The co-operation that we
are getting from PNG is a real act of mateship on their part and I’m
really thrilled by it.”



It’s a sort of Orwellian parallel reality: people held in dreadful
conditions, two government conspiring to traduce their rights and
suppress as much information as they can, and no one having the
slightest clue about the future of people who really did flee
persecution – while Abbott declares it’s been “a very successful visit”.

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Abbott and O'Neill agree: No human rights inquiry for Manus Island

Abbott and
PNG block HUMAN RIGHTS INVESTIGATION and agree to COVER UP the HUMAN RIGHTS VIOLATIONS

Abbott and O'Neill agree: No human rights inquiry for Manus Island

Date

March 23, 2014

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Michael Gordon

Political editor, The Age

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"It's a joint effort": Prime Minister Tony Abbott and PNG Prime Minister Peter O'Neill in Port Moresby. Photo: Alex Ellinghausen

The Abbott government was consulted and strongly backed the
decision of the Papua New Guinea government to shut down a human rights
inquiry into the Manus Island detention centre, Fairfax Media has been
told.



PNG's Minister for Foreign Affairs and Immigration, Rimbink Pato, has
also confirmed that the two governments would move to deny access of a
human rights lawyer to the centre on Monday.




"It's a joint effort. We're the best judges in terms of what's happening
on the ground, but we're in concert because this is a partnership.
We're together," he said in an exclusive interview.



He said Immigration Minister Scott Morrison and Foreign Minister Julie
Bishop shared his concern that the inquiry carried dangers and should be
challenged. "They were concerned as well that we should do something
like this. It's a joint thing."

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Prime Minister Tony Abbott appeared unaware of the joint nature of the
move, insisting to reporters on Saturday that PNG Prime Minister Peter
O'Neill had not flagged it with him when they met on Friday.



Mr Pato said the government was moving on the basis that Justice David
Cannings, a former human rights lawyer, was presiding over the inquiry
he had initiated and that the inquiry was calling experts without
complying with "proper processes under PNG law".



Mr Pato said lawyers who were not admitted to practise in PNG and
medical doctors who were not registered to practise medicine in PNG
would not be permitted to be involved in the inquiry.



Justice Cannings instituted his inquiry into human rights at the centre
after an asylum seeker was killed and scores of others injured,
allegedly after PNG nationals employed as security guards entered the
centre.



When the government secured a stay on the proceedings at least until
Wednesday, Justice Cannings instituted new proceedings allowing refugee
lawyer Jay Williams access to the centre to see 75 of the more than 1300
asylum seekers in the centre.



But Mr Pato said the PNG government, acting in concert with Australia,
would move on Monday to extend its action to include these proceedings,
and so deny Mr Williams access to the facility.



He also signalled that PNG would announce the first tranche of negative
decisions on asylum seeker claims as early as the next fortnight,
suggesting almost 20 negative decisions would be communicated to asylum
seekers.



The move to stop the inquiry came after a PNG government official shut
down questions on the centre at a joint press conference of Mr Abbott
and Mr O'Neill on Friday.



Mr Abbott insists he was not given advance warning of the move against
the inquiry during what were described as close, constructive, candid
talks on the Manus detention centre and defended PNG's "robust legal
system".



He also backed Mr O'Neill's pre-emptive assessment that most of the
asylum seekers interviewed so far were not "genuine referees" but
"economic migrants".



"There's a lot that we've seen which justifies that suspicion," he told
reporters on Saturday, citing the opinion of former Labor foreign
minister Bob Carr that "the vast majority" of those coming by boat were
not in genuine fear of persecution if they remained in their homelands.



Mr Abbott refused to be drawn on when and why the government had
accepted that not all of those at the Manus centre found to be refugees
would be resettled in PNG, or on the state of negotiations with other
possible resettlement countries in the region.

Read more: http://www.smh.com.au/federal-politics/political-news/abbott-and-oneill-agree-no-human-rights-inquiry-for-manus-island-20140322-35a6e.html#ixzz2wlFqGFrh

What is a 'classical liberal' approach to human rights?

19 March 2014, 6.36am AEST

What is a ‘classical liberal’ approach to human rights?

ced that he will take a “classical liberal” approach to human
rights. There is a fair degree of confusion about what this means.
Classical liberalism…

Author

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   Lecturer, School of Law, at Australian Catholic University
   

Disclosure Statement

Catherine Renshaw does not work for, consult to, own shares in
or receive funding from any company or organisation that would benefit
from this article, and has no relevant affiliations.

Provides funding as a Member of The Conversation.

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Federal attorney-general George Brandis wants to champion a
‘classical liberal’ approach to human rights, but what does this
actually mean?
AAP/Daniel Munoz

Tim Wilson, Australia’s Human Rights Commissioner, has announced that he will take a “classical liberal” approach to human rights. There is a fair degree of confusion about what this means.
Classical liberalism is not a coherent body of political philosophy.
However, in relation to human rights, there are three key ideas that
most classical liberals subscribe to.
The first is the idea that all people are born with rights, which
they hold simply because they are human. This is the idea that underpins
Article 1 of the Universal Declaration of Human Rights:

All human beings are born free and equal in dignity and
rights. They are endowed with reason and conscience and should act
towards one another in a spirit of brotherhood.

Not everyone shares this belief. Many people believe that rights are
simply entitlements granted by the state and held only by citizens. But
for classical liberals, rights are much more than this. They are
universal (held by everyone) and inalienable (they continue to exist
regardless of whether or not governments recognise them).

The second idea concerns what human rights actually are. Classical
liberals believe that the list of genuine human rights is quite short.
It is comprised primarily of those things that are necessary to preserve
life and individual liberty.



This list includes the right to be free from torture, slavery,
arbitrary arrest or detention. Freedom of association and freedom of
speech are also seen as legitimate human rights. But other rights,
particularly economic and social rights, are viewed as mere aspirations.



Thirdly, classical liberals believe that the role of the state in
fulfilling or protecting human rights should be very limited. States
should do only what is necessary to protect life and property.



Classical liberals believe in a minimal state – as political philosopher Robert Nozick puts it, a “night watchman” state – that does not interfere with the privacy of citizens and their freedom to live, work and be educated in any way they see fit.



Wilson has alluded to all of these ideas in public statements. Like attorney-general George Brandis, Wilson has argued
in favour of focusing the attention of the Australian Human Rights
Commission on the rights championed by classical liberals, particularly
the right to free speech.



Wilson has talked about the problems that occur when certain rights
(such as the right not to be discriminated against) collide with other
rights (such as the right to freedom of association). Like Brandis,
Wilson has criticised the Australian Human Rights Commission for its
emphasis on anti-discrimination.



But there are several reasons why a classical liberal approach to
human rights does not necessarily reflect the needs and aspirations of
contemporary Australian society.



First, the philosophical foundation for the classical liberal idea of human rights is very shaky, as argued by the likes of philosopher Joseph Raz. Historically, classical liberals view rights as bestowed by God or derived from some essential human essence.



But many Australians seem to take a more pragmatic view of human rights, as noted
by Aboriginal and Torres Strait Islander Commissioner Mick Gooda.
Rights are the important interests and values that democracies have
decided to protect. Far from making rights less important, this makes
them more so.



Community consultations
show that many Australians are also more ambitious than many classical
liberals about what these rights should consist of. Brandis has said
that freedom is the core human right without which nothing else is
possible. But food, work, education and social security are also
important. Rights are inter-related and inter-dependent. It is a mistake to think that something like a right to adequate health care is too vague to be an enforceable right.

Human Rights Commissioner Tim Wilson has criticised the government’s policy of detaining asylum seeker children.
AAP

Click to enlarge

Finally, Australians seem to aspire to more than a society where
individuals are just left alone to pursue their own interests and where
the best a government can do is prevent individuals from being
arbitrarily deprived of life or property.



For example, ensuring that certain groups of people are not
discriminated against is a central part of an equal society. As Brandis
points out, since its establishment in 1986, the Australian Human Rights
Commission has spent much of its time advancing the idea in Article 2 of the Universal Declaration of Human Rights, which reads:

Everyone is entitled to all the rights and freedoms set
forth in this Declaration, without distinction of any kind, such as
race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.

This is hard, slow work, done on a case-by-case basis and through
public education and training. It certainly lacks the glamour of the
classical liberal rhetoric around liberty and freedom, but it has been a
vital part of achieving a fairer society and a better life for millions
of Australians.



So far, Wilson has not been at his most convincing championing rights
of privacy or arguing for more free speech. Where his views have
resonated is on subjects such as children in immigration detention.
On this issue, Wilson has simply said that he doesn’t think it is
right. This is the sort of visceral response shared by most Australians.



In addition to his gut feeling that imprisoning children is wrong, as
a classical liberal, Wilson should find the government’s entire asylum
seeker policy deeply troubling. What the government is doing is
violating the rights of the few (asylum seekers) in the name of
achieving a greater good for the many (preventing deaths at sea and
protecting Australia’s sovereignty).



To a classical liberal, this sort of utilitarian approach to rights
should never be acceptable. Wilson’s intervention on this issue will be
important.

32 Comments

Human rights, Section 18C, George Brandis, Political philosophy

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Queuing Up

Queuing Up

By kayrollison on March 15, 2014 • 

Bill Shorten recently called for new policy ideas for the Labor Party. Well here’s one.


Let’s have a new policy on asylum seekers.


Professor Robert Manne has now entered the fray in the Guardian
to declare that both the Right and the Left (however defined) are wrong
about refugees, and that a compromise is needed. He believes that
‘realistically’ public opinion will never accept that refugees who
arrive by boat should be processed onshore. He also argues that allowing
onshore processing results in more boats, and as a direct consequence,
more lives lost at sea. So in order to deter refugees from taking to the
boats, offshore processing and tow-back must be retained.


Is this the new policy that Labor is looking for? I hope not.


I am grateful to Professor Manne for provoking this debate. His ideas
provide a starting point for discussion, and there are already a number
of interesting comments on his article. I agree with him that there
should be compromise. But not the one he is suggesting.


First there is the question of what is politically possible. Manne claims that:

‘The harshness of Australian opinion on the question of
asylum seekers is settled. Scores of opinion polls, best analysed by
professor Andrew Markus for the Scanlon Foundation, make this clear.’

But at least one comment suggests that Manne is misusing these results, saying that:

‘Clearly, the research shows a marginally higher
proportion of people in favour of some form of residence, and overall
roughly a 50-50 split between residence vs turning or sending back.’

Another comment questions what is ‘realistic’:

‘there are a range of factors involved in determining
what is acceptable at any particular time to a given polity. Political
leadership is one critical element. The treatment of an issue by the
media is another.’

I don’t think it’s time to give up on persuading a significant number
of people that tow-back and offshore processing are unacceptable, and
that Labor policy shouldn’t countenance it. (I’m still not convinced it
isn’t piracy.) There are some people who will never be convinced, but
then there are people who think the earth is flat. Whatever set of
policies the Labor Party takes to the next election will be derided by
the Murdoch media, and countering this should be of major concern to the
party. But it shouldn’t be a reason for shirking a humane and decent
policy.


It seems to me that such a policy, presented by a passionate and
articulate leader – yes Bill Shorten, I’m looking at you – and based on
practicability and compassion would win more support than one based on
weasel words and political expediency. Labor has to emerge as a party of
principle. After all, expediency hasn’t been working too well lately,
has it?


Manne puts his finger on the crucial problem when he points to the
connection between onshore processing, the large increase in the number
of refugees arriving by sea during 2012-13 (25,000 by his count) and
deaths at sea. This is a wicked problem, as I noted in a previous post on this issue. Is there anything besides tow-back and offshore processing that can be done to resolve it?


Many people feel that boat arrivals are ‘jumping the queue.’ But at
present there isn’t a queue to jump. So why don’t we create one? Let’s
make it easier for people to come to Australia by applying for refugee
status in the transit countries where they are currently stranded.
Knowing there is an ordered process of resettlement is important for
refugees, for governments and for people in countries of resettlement.


The first step would be to establish refugee status in countries of
transit. This should be speeded up by further financial assistance by
Australia to the UNHCR. Once this was established, refugees would join a
queue for resettlement in Australia or elsewhere. (Or accept temporary
safe haven, if there was a realistic chance of returning home.)


Refugees on the queue would live in refugee camps in the transit
country with proper facilities, paid for in part by Australia. There
would be many questions to be negotiated with the host country – health
care and the right to work being two obvious ones. But why is such
negotiation impossible?


If refugees decided to ‘jump the queue’ by buying a passage on a boat
from a people-smuggler, they would be detained on arrival in Australia.
And here’s where it gets really hard. I know that people coming by boat
are desperate, but so are the ones who can’t afford the passage. We
have to devise a system that privileges people who wait in the queue and
discourages those who jump it, by boat or by plane.


If we reject off-shore detention for those who jump the queue – and
humanity demands that we do – the only solution is on-shore detention in
Australia.  Those found to be genuine refugees could be allowed to live
in the Australian community on temporary entry visas, with the right to
apply for permanency after perhaps five years. These visas should not
restrict their right to work – a Labor party could not in conscience
adopt such a policy. But queue-jumpers on temporary visas should not be
allowed to bring out relatives.  That should be a privilege reserved for
those who take the authorised path to permanent residency.


None of this would work unless Australia agreed to take more
refugees. Let’s not forget there are hundreds of thousands of people
seeking resettlement in refugee camps around the world.


These proposals raise as many questions as they solve. But, in
Professor Mannes’ spirit of debate, here’s the compromise I intend to
offer to the ALP as a basis for further discussion.


Recognising that the problem of people seeking asylum in Australia
is continuing and probably worsening, I ask the federal Labor party to
develop an ethical, practical and electorally viable policy on this
issue which will include the following measures:

• Commitment to increasing the number of refugees accepted into
  Australia through the United Nations High Commission for Refugees, and a
  public campaign to educate Australians to welcome refugees as fellow
  citizens
• Provision of additional funding to the United Nations High
  Commission for Refugees to allow it to more speedily process refugee
  applications to Australia in the refugees’ countries of origin and
  transit.
• Proactive co-operation with our regional neighbours rather than unilateral action to prevent the flow of unauthorised refugees.
• Provision of adequate funding to transit countries to build and maintain decent refugee camps.
• Restoration of foreign aid to countries of origin to decrease the need for their citizens to become refugees.
• Cessation of off-shore processing for unauthorised refugees, the
  reintroduction of on-shore processing, and the development of a new form
  of temporary entry visa which will allow refugees to live and work in
  the Australian community, while restricting their rights in a way that
  makes it clear that they have placed themselves at the end of the
  migration queue.

Asylum seekers: Nothing to lose, desperation on Nauru

Asylum seekers: Nothing to lose, desperation on Nauru

Date

March 15, 2014

Deborah Snow

Whistleblower Mark Isaacs felt compelled to reveal detainees' mistreatment

• inShar

'Grinding resilient men into the dust'

Welfare worker and author Mark Isaacs describes the shock and despair that confronted him at Nauru's detention centre in 2013.

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Witness accounts from inside Australia's detention centres
are rare. Walled in behind government secrecy, contracts which bind
them to silence, and fear for their future livelihoods, staff and former
employees of the organisations running the centres bite their tongues,
or confide only in close colleagues, family members or friends.



The few who have spoken to the media have mostly done so anonymously, or through third parties.




Now, the first of what could be a steady trickle of
embarrassing whistleblower accounts has emerged in the form of an
explosive book, The Undesirables, by a former Salvation Army
employee, 26-year-old Sydneysider Mark Isaacs. The title is taken from a
term Isaacs says a government staffer was overheard using to describe
the asylum-seekers at the camp.

No hope: Mark Isaacs. Photo: Nick Moir

Isaacs was only 24 when, on the strength of a single phone
call and with no experience, he was hired by the Salvos and dispatched
to Nauru with less than a week's notice to ''provide support'' to asylum
seekers detained there.

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The date was October 1, 2012, just a fortnight after then
prime minister Julia Gillard had reopened the offshore camp in a
desperate revival of former prime minister John Howard's ''Pacific
solution'' - an attempt to deter asylum seekers by shipping them to the
tiny Pacific nation for indefinite detention.



Isaacs completed five rotations through the camp, each of
several weeks. The last he saw of ''Topside'', as the internment camp
on Nauru was known, was in June last year, shortly before inmates burnt
much of it to the ground.

An asylum seeker in a neck brace after a suicide attempt. Photo: Supplied

There is a rawness and an immediacy to this account because
it is so recent. Originally slated for publication next month, the book
- available from Monday - has been rushed out by publisher Hardie
Grant Books after the chaotic events at the Manus Island detention
centre last month which left one man dead, and scores injured.



Isaacs' book constitutes a warning that, no matter how much
physical facilities on Manus and Nauru might improve, it may be
impossible to avoid violent periodic eruptions inside the camps in the
future.



It is because the men have no hope, he argues, and therefore little to lose.

Two men on a hunger strike. Photo: Supplied

''Criminals were given a sentence to serve: these men were
not even given that,'' Isaacs writes. ''They feared they would die in
Nauru, that they would be forgotten, that they would become
non-people.''



Isaacs has heard all the arguments about why imprisoning men
in their hundreds on small Pacific islands and leaving them in limbo is
the only way to ''solve'' the asylum seeker problem.



But nothing convinced him the cruelty inflicted in the
process was worth it. There were moments of heartbreak for the young,
untrained Australian, facing the anguish of these men.



Reza, an internee to whom he'd been giving private English
lessons, nearly succeeded in taking his own life with a toxic cocktail
of cleaning fluids, mosquito repellent, antidepressants and sleeping
tablets.



One of the camp's most respected religious leaders, Ali,
descended into three days of psychotic madness which left him rolling in
the dirt and barking like a dog before he was removed by health
workers.



For Ali's Iranian countrymen, it was deeply shocking to see
their revered mullah, a man who until then had been a source of succour,
reduced to the state of a rabid animal. Later, Isaacs discovered that
Ali had just lost a child, having tried, and failed, to transfer funds
back home for the sick youngster's treatment.



A third moment of heartbreak came when the camp poet, Pez - whom Isaacs had befriended - tried to hang himself in the laundry.



Isaacs did his best to lighten the long days with
recreational activities for the men, but was left feeling as though he
was working in a ''death factory''.



''There was no way I could deny I was a part of it, because
there I was and it was my country and my people and we were putting
these men through such torture'' he said this week.



''It doesn't matter who you are, or what side of politics you
are on, if you had been in the position I was in, having to sit there
and have a man's friends show you the cord that he tried to hang himself
with, crying with them, the rain coming down … it was overwhelming.''



''The camp was built around destroying men,'' he writes, '' grind[ing] them into the dust.''



Isaacs was not a Salvation Army member. He'd done some
writing for Oxfam and was working for the state government when a friend
told him the Salvos were urgently seeking staff for the hastily
reopened Nauru facility. He was hired without even a face-to-face
interview.



In passages that will be deeply embarrassing for the Salvos -
and for the previous government - Isaacs paints a picture of a camp
so hastily set up that the organisations charged with pulling it
together virtually had to make it up as they went along.



The new recruits were a ''motley crew'', he says, some of
whom were untrained seniors or university students; some only got their
contracts as they arrived at the airport to make the trip north. Some
were not even sure what an asylum-seeker was.



''I wasn't given any training before I was sent over'' he
says. '' No preparation, no cultural diversity training, I didn't know
anything about Tamils, or people from Iraq and Iran, and I was one of
the comparatively well-informed. There was an 18-year-old there! How
can you expect an 18-year-old to look after traumatised, war-torn
people?''



In a written response on Friday, the Salvation Army - which
has not yet seen the book - said Isaacs was ''engaged … . in a role
that required him to fulfil unskilled duties … [and that] support worker
roles typically do not require individuals to have particular skills or
experience.''



It also said that in the ''early days'' of beginning its
work on Nauru and Manus Island, ''the Department of Immigration …
required an incredibly rapid start-up, which meant that a formal
induction was not developed prior to [the Army] getting its first people
on the ground.''



During Isaacs' time there, hundreds more men were poured into
the camp - Sri Lankans, Tamils, Iranians, Iraqis, Hazaras from
Afghanistan, Pakistanis and Palestinians. The camp ran on myriad rules
that were chopped and changed: no hair dye, swimming for inmates banned
because of health and safety concerns, no vocational training for
internees because that would break the ''no advantage'' rule (i.e. they
were not, under the policy, to receive any ''advantage'' over asylum
seekers still awaiting processing in UN centres).



Isaacs and his ''recreation'' team tried to defuse the boredom with cricket and soccer competitions.



There were rivalries between some of the staff attached to different aspects of the camp's operations.



''Each agency wanted to be the lead agency, the head honcho
of the island,'' Isaacs writes. ''The disorganisation of the Salvation
Army meant it was a long way down the pecking order, and the staff
suffered because of this.''



Isaacs was mysteriously blacklisted from the camp for a few
weeks, and was later told it was because of complaints by security staff
that he fraternised too readily with camp inmates.



Staff were repeatedly warned against speaking out about what
was going on behind the camp gates. At one stage, Isaacs was told there
was an ''intel'' file on him. ''You were not allowed to email your loved
ones about what was happening, even what the food was like,'' he said.
''They said that people were checking our emails and Facebook, it felt
like being in a horrible fascist state.''



Isaacs acknowledges the Salvation Army got more professional
over time at the task it had been rushed into, hiring more qualified
staff, and sharply reducing the turnover among contract workers. But he
says ''it was the same situation, just wrapped with a prettier bow''.



Isaacs' account is a frank portrayal of the toll on
well-meaning Australian men and women who travelled to Nauru to try to
ease the inmates' plight. Even coming back for short visits between
tours of duty was hard, because few friends really understood the burden
staff members were carrying.



Several of the men Isaacs looked after on Nauru have now been
moved to the mainland, where they live on bridging visas and minimal
benefits. Others have been moved to the Curtin detention centre.
Several await court proceedings on Nauru because of their alleged role
in last year's riots.



In February this year, the Salvation Army's $74 million
government contract to provide welfare services at Manus Island and
Nauru was not renewed. ''The Salvos were damned if they did, and damned
if they didn't,'' Isaacs says. ''Maybe they are better out of it,
because their hands were tied … maybe they could have pushed harder for
the men's rights. But then maybe they would not have been able to do
the work they were doing.''

Read more: http://www.smh.com.au/national/asylum-seekers-nothing-to-lose-desperation-on-nauru-20140314-34s04.html#ixzz2vy6cibyu