"Human Rights as a secular guide to to community relations"
Address by Dr Sev Ozdowski OAM, "Poverty & Power - What makes you rich, what makes you poor" Mornington Peninsula Shire Conference, Tuesday 21 October 2003.
Firstly I would like to acknowledge the traditional custodians of the land on which we stand and by so doing remind ourselves that Australia's cultural traditions stretch back many thousands of years.
I would also like to thank Vicki Nicholson-Brown for her traditional welcome, the Mayor, Councillor David Renouf, Rob Macindoe, General Manager, Peninsula Health and Rosy Buchanan, State Member for Hastings for your introduction.
Let me start today by briefly updating you on the current position concerning immigration detention. Many of you would be aware that I am in the final stages of completing my report into children in immigration detention. I have found as I circulate around giving different addresses to various groups that there is a high degree of interest in this topic so I have developed a short presentation that provides some insight into this complex subject matter.
Some Basic Facts about the Immigration Detention Regime:
- When was the policy introduced? In 1992 to deal with the perceived influx of Cambodians and Vietnamese. One of the primary purposes was to perform basic health, identity and security checks.
- Who is detained? All persons who either arrive without a visa or whose visa expires. If they are intercepted outside Australia's territorial waters or arrive at Christmas/Ashmore, they go to Nauru/PNG; otherwise detained in Australian detention centres.
- How many boat arrivals? In practice, most people in long term detention are asylum seekers who arrive by boat. It goes in waves, but since 1989, 13,475 have arrived by boat, so in 14 years the total number would roughly fill 15% of the MCG.
- Where are they from? Over the past few years most boat arrivals have been from Iran, Iraq, Afghanistan; reasonable numbers have also come from Palestine, Sri Lanka and China.
- How many in detention (all categories)? In 2001-2002 approximately 10,000 people in detention; 1,700 were children and 1,400 of those children were boat arrivals. As at 7 July 2003, there were just over 1,000 people in detention, 92 of whom are children.
- Are they genuine refugees? Over 90% of child boat arrivals in detention over the past three years have been found to be genuine refugees ie almost all found to have suffered persecution and released into Australian community. In the same period only about 20% of the asylum seekers who arrived with a visa (eg tourist visa) were found to be refugees; this refutes the argument that there is a correlation between being a "boat person" and a "fake refugee"; in fact boat people are much more likely to be refugees.
- Nationality of Children? Nearly 50% of the children who applied for asylum over past three years are from Iraq and 97% of those were successful. Approximately 35% are from Afghanistan and 95% were successful. Just under 10% were from Iran and 66% were successful.
- Unaccompanied children UAMs? During 1999 alone, the last year UNHCR has figures, 20,000 UAMs applied for asylum in Western nations, 46 of those travelled to Australia.
- How long in detention? Boat arrivals must stay in detention until they get a refugee visa or are sent back home. Sometimes this can take years.
- The longest a child has been in detention with a family is 5.5 years.
- In January 2003, the average length of detention for children was more than one year and three months.
- By April 2003, 50 children had been in detention for more than 2 years. All of those children were in detention with one or more parents.
- What type of visa do they get? Since 1999, those who do get a refugee visa are only eligible for a three year temporary protection visa. After three years is up they must start all over again. This compares with those who arrive (say) on a tourist visa and then apply for refugee status - they are eligible for a permanent visas. Regulations proposed by the Government to bring these applicants into line with "boat arrivals" were disallowed by Parliament in September 2003.
- What impact do the TPVs have on their recipients? There is evidence suggesting they suffer from a lack of stability, have difficulty settling and factually they cannot access some key services like the Integrated Humanitarian Settlement Strategy's (IHSS) housing, education and language support package or effectively "social security"; no rights of family reunion and embargoed from returning to Australia if they depart.
Three phases of Detention:
In general, one could say, asylum seekers can take up to 2-3 months of detention without major visible impact on them. They are relieved to be in Australia and believe that their new start in life is just around the corner.
After this their behaviour changes: "I'm a father of two teenage children. My 15 year old son sleeps only with the help of sleeping pills. Both of my children are severely depressed after 5 or 6 months in the camp. My daughter is 16". (Iranian man, detainee representative committee meeting, Curtin IRPC.)
This is one of the milder reactions that I have personally observed in the course of my many visits. Other reactions include intense trauma, self-harm and complete family disintegration.
After one year in detention the rate of decline is marked: "It's about 16 months since I arrived here. I've been under a lot of pressure. My life has been taken away from me. Within this 16 months I have become mentally and also physically ill. Every day my physical well-being is getting worse ....I've become a useless person who wishes for death every day". (Afghan man, interview, Perth IDC.)
My personal observation of the number of detainees requiring psychological and psychiatric help is staggering.
Now whatever one's personal views about immigration detention, all of us must acknowledge that it is premised on the removal of freedom. That is freedom of choice about where to live, freedom about what to eat, freedom about whom you associate with, freedom to fulfil even the most basic functions such as choice of education or health-care provider. The very stuff of day to day life, in all its gloriously normal mundaneness.
Immigration Detention and Deterrence.
Immigration Minister Ruddock in an interview with ABC Radio National on 1 August 2002 stated: "Detention arrangements have been a very important mechanism for ensuring that people are available for processing and available for removal, and thereby a very important deterrent in preventing people from getting into boats".
UNHCR Guideline 3 of the "UNHCR Detention Guidelines" states: "The detention of asylum seekers as part of a policy to deter future asylum seekers, or to dissuade those who have commenced their claims from pursuing them, is contrary to the norms of refugee law".
Even without this admonition, the concept of proportionality militates against this rationale. Public policy should not only be effective, it should also provide a proportional response to that which it aspires to achieve. Clearly at one end of the spectrum you could staunch the flow of "asylum seeking boats" by sinking them; at the other end of the scale, you could permit all people who arrive at our borders immediate and unrestrained access to the general community without any health or security checks.
Furthermore even if it can be proved that the policy has achieved its deterrence outcome of stopping the boats, it remains a flagrant breach of human rights obligations. A similar outcome could have been achieved, albeit over a longer time-frame, by way of international co-operative measures to ensure the orderly processing of asylum seekers in transit countries.
Prison versus Immigration Detention:
And in considering the above it is important to remember that immigration detention is for "administrative purposes" only and not "punishment" as we understand the concept by reference to Australia's domestic penal arrangements.
Clearly the latter is intended to include such a rationale, while equally clearly immigration detention is not. And yet perversely, some aspects of penal incarceration could almost be said to produce superior outcomes.
- in prison you have committed a crime, in immigration detention you have not;
- in prison your length of sentence is determinate, in immigration detention it is indeterminate;
- in prison there is a rigid rehabilitation regime which includes a mandated timetable of recreation, work and education, in immigration detention these elements may exist (but sometimes don't), and are often beset with problems of inconsistency, quality unevenness and arbitrariness of application.
Australasian Correctional Management, the erstwhile immigration detention centre services' provider also manages "Arthur Gorrie" correctional centre in Queensland. As this facility houses some immigration detainees (typically non-citizens who have served a penal sentence for committing a crime in Australia and are now awaiting deportation) I have had cause to visit it on a number of occasions. My observations of conditions there have informed the views expressed in the previous paragraph.
My suspicions in this regard have also been reinforced by discussions with detainees who have experienced both forms of incarceration. Unhesitatingly they tell me that given a choice, they would prefer prison to immigration detention.
In passing I should also add that I consider the commercial out-sourcing of immigration detention services' provision preferable, while the current policy settings prevail, over the suggestion that it should be once again managed "in-house" by the Government. It is demonstrably unworkable, by reference to a raft of other sectors in the Australian economy, to have the regulatory oversight function and the service delivery vehicle bundled together. While the current policy is in force, DIMIA should be responsible for regulatory oversight of immigration detention standards and Group 4/Falcke (the newly appointed service provider) for service delivery.
I will now turn to some observations about the state of human rights on the international stage, the resolution of which provides us with some important lessons on how best to manage differences within our local community.
It was author Samuel Huntington whose seminal 1993 article "The Clash of Civilisations?" articulated the hypothesis that:
" .....the fundamental conflict in the next millennium will not be primarily ideological or primarily economic. The great divisions among humankind and the dominating source of conflict will be cultural". ....
" .....the principal conflicts of global politics will occur between nations and groups of different civilisations. The clash of civilisations will be the battle lines of the future."
Eight years later in the immediate aftermath of 9/11 these words received a large amount of media time in the United States, due to their seeming relevance as a possible explanation for the causes of the terrible attacks.
In light of this, I believe it would be useful to briefly consider Huntington's conclusions as to the best way forward if the scenario he had outlined, did come to pass.
In summing up Huntington wrote this:
"Western civilisation is both Western and modern. Non-Western civilisations have attempted to become modern without becoming Western. To date only Japan has fully succeeded in this quest. Non-Western civilisation will continue to attempt to acquire the wealth, technology, skills, machines and weapons that are part of being modern.
They will also attempt to reconcile this modernity with their traditional culture and values. Their economic and military strength relative to the West will increase. ...in order to deal effectively with this the West must develop a more profound understanding of the basic religious and philosophical assumptions underlying other civilisations. It will require an effort to identify elements of commonality between Western and other civilisations."
I think you will agree with me that there are many interesting avenues for exploration in the above statement, not the least of which is the one about Japan - undoubtedly worth an entire speech on its own.
However today I want to concentrate on the last line:
"to identify elements of commonality between Western and other civilisations".
The key question we need to ask ourselves is: on what will we base these "elements of commonality"? Within that answer resides, I believe, the key to managing differences in our local community.
International Perspective and Human Rights
But before exploring that issue further I would like to briefly digress for an update on international affairs, from a human rights perspective.
The UN which arguably used to act as moderator between the opposing positions of civilisations, is going through a difficult period. It previously held an unassailable position as the powerhouse of international human rights standards which identified some, if not most of the benchmarks for "civil" behaviour.
That is common standards developed by all UN members representing the full range of cultures and civilisations. The UN drew upon many experiences and value systems but all were expressed in a secular way.
The Iraqi War debate however challenged its authority; there are reports (UNESCO) that its standing in international public opinion is at an all time low. Often it is blamed for lacking legitimacy (unlike democratic governments which have the electoral process), backward looking to post WWII status quo and being inefficient and bureaucratic.
There are calls for "restructuring" of the UN. These factors are all issuing challenges to the international human rights order, as we know/knew it.
None of these issues have lost their relevance, by the way, simply because in the last few weeks, America has belatedly discovered that "the coalition of the willing" can't go it alone in the post war reconstruction of Iraq.
Alternative Models to the UN
Nevertheless fair minded, objective observers of the UN would probably agree that there is an argument for reform of that body. Are there any alternative models, already in existence, which could do a better job?
First - Pax Americana
- US could arguably be used as a model because of its bill of rights and strong civil rights culture;
- As the Prime Minister said recently, if there has to be a superpower then it's better that it's America:
- But it has even less "elected" legitimacy than the UN because of its uni-lateral, "in the national interest" motivated actions - eg. Kyoto.
- As the Pew Research Centre in Washington found in its May, 44 nation, international public opinion survey: "the war has widened the rift between Americans and Western Europeans, further inflamed the Muslim world, softened support for the war on terrorism, and significantly weakened global public support for the pillars of the post-World War 2 era - the UN and the North Atlantic alliance".
- Hardly a model that will be adopted by acclamation!
- And that's before Arnold Schwarzenegger was elected Governor of the 6th largest economy in the world.
Secondly - there is the European Union model.
- Again has some advantages such as democratic institutions, creation of powerful economy, and strong record in the human rights field, the European Court of Human Rights in Strasbourg etc. It may be very helpful to Europeans.
- But it is also selfish - agricultural policy; and often unable to act - Bosnia/Kosovo.
- Further it is moving towards being a single European government; whereas the UN should not aspire to being a "world government;
- And it must be acknowledged, French and German hypocrisy over their Iraq War position sits very badly with their covert trade with Saddam's regime in illicit goods and services.
- So in summary I would argue that while the UN may require some reform, thus far it has proven to be the best international forum available for dialogue between civilisations. And most likely will continue to so do, although in some "reformed" format.
In particular the UN has established human rights concepts, or generally accepted universal standards, the use of which assist in the maintenance of a civil society both inwardly and outwardly. These standards might need strengthening, protection and education about their meaning, but they still provide the best template for action.
Returning then to my earlier question as to: "what are these elements of commonality between Western and other civilisations?"
I believe the answer lies with the above mentioned "UN inspired human rights values", as they relate to relationships between individuals and groups in a society.
- Rights securing life, liberty and security of a person;
- Equality before the law and right to a fair trial;
- Right not to be discriminated against in society by government/organisation/individuals because of: race, sex, religion, social status.
- Right to participate in the political process and elect the government; allowance for majority rule and protection of the minority.
- Right to freedom of thought, religion and association.
- Unfettered access to economic, social and cultural rights.
It is only by adherence to values and principals that are secularly based that the clash between civilisations can be mitigated.
Secular not religiously based
Let us not forget that in the past, value systems based on religion were very destructive. The 20th century witnessed a return to such difficulties. In saying this I'm not arguing that any one religion is to blame. Simply making a statement based on observation.
Now turning to Australia and in particular the community of the Mornington Peninsular; where does this leave us?
Some people here also held the view that clashes were inevitable between different communities within this country.
Two years ago, when I took on this job, the Pauline Hanson phenomenon was in full swing and its growth was being largely fuelled by the belief that such clashes were already happening. Consequently she and her adherents generally supported: reduction in the policy of multiculturalism, return to assimilation, even more restrictive changes to our immigration policy and harsh treatment of asylum seekers, as well as re-introduction of tariff barriers, dramatic changes to our taxation model and radical downsizing in the social security regime.
In other words a Fortress Australia approach or as they would say in South Africa: a "laager" mentality.
The current Government's reaction at the height of the Hanson firestorm was confusing at best in its initial stages. On one hand the Government's 1999 official statement fully endorsed the report of the National Multicultural Advisory Panel which was unambiguous in affirming that enhanced multicultural policies would continue, with an added emphasis on making these policies as inclusive and relevant as possible to all Australians, particularly indigenous Australians.
And on the other hand you had Tampa, the Pacific Solution and the "children overboard" affair which because of their association with people from the Middle East, challenged these multicultural sentiments whether intended or not, and certainly had a demonising effect on Australian public opinion.
All of which gave rise to the perception that the gap between government policy and Pauline Hanson, was not as broad as might be hoped.
In my view the majority of Australians prefer the model of a "modern" society. They wish to have state and church separated, an economy driven by profit motives but with a broad based safety net. They enjoy Australia being in the forefront of economic and social development.
But we also recognise that there are some Australians, who maybe in a minority at different times or over different issues.
For example for many Moslem Australians, religion is an integral part of their whole community and lifestyle. Other Australians, for example on the economic front, believe that we should limit our consumption and save resources for future generations. Some members of our community, such as retirees may have different views on the allocation of relatively scarce community support facilities.
So how do we best deal with these "mini-clashes" of civilisations on our home ground?
First, we need to have a strong set of secular standards in order to accommodate our differences. And I believe that we have such standards - these are human rights standards,
which in the popular mind are associated with the United Nations. They are the "good behaviour rules", "the grease which oils the wheels".
In other words we need to insure that community values in this country intersect with human rights values. This is the secular roadmap that we will all need to consult, no matter what our religious belief or stance on economics or community resource allocation, as we navigate our way through a community that aspires to civil discourse and behaviour.
These standards, especially those already fully incorporated into our domestic laws, such as sex, race and disability need to be the subject of mass education. Additionally we also need to strengthen the menu of standards by creating better ways to implement them, especially in the field of civil and political liberties (eg bill of rights).
To sum up we should continue to create a human rights culture based on the knowledge and understanding of the existing human rights and anti-discrimination laws. It is important to create respect for other cultures and tolerance of religious differences.
As Kofi Annan: said "...the perception of diversity as a threat is the very seed of war". Between, and within civilisations, dialogue and good conflict resolution skills are the preferred methods of dealing with such cultural tensions.
But for our dialogues to be real, not based on mantras, they need to aim for better understanding of the differences. They need to use the human rights principles as a point of departure and then move to where the differences are, to more particular examples. They need to explore and not be afraid of discovering where the real differences lie and try to understand the other point of view.
Accordingly obligations are created on both the majority exponents of any particular issue in the community at any moment in time and the minority exponents of a contrary position.
The majority must ensure non discrimination; the minority must appreciate that its values are not obligatory on all and retain a degree of flexibility where private and public life intersect. Respecting separateness and its associated values and lifestyles, brings with it an obligation to remain engaged with broader society.
Australia has most successfully achieved this to date but overseas experience tells us to be watchful; ultimately all our human transactions are enhanced by the degree to which we respect each other's human rights.Last updated 24 October 2003