Detention of Asylum Seekers:
Paper delivered by Dr Sev Ozdowski OAM, Human Rights Commissioner
"THE REFUGEE CONVENTION
- WHERE TO FROM HERE?"
UNIVERSITY OF NEW SOUTH WALES
6-9 DECEMBER 2001
Thank you for inviting me to speak today. Firstly I would like to acknowledge the traditional owners of the land on which we are now meeting, the Gadigal people.
ELECTION RESULT AND MEANING
The Election has been held - the result is to hand and it is clear that all of us have a lot of work ahead.
Many different interpretations have been placed on the election - especially the campaign itself; but one thing is crystal clear, a majority of Australians have little understanding of human rights and they certainly don't associate human rights with asylum seekers.
There were earlier "straws in the wind" of course, but at the time we were all reluctant to draw any definitive conclusions. For instance public opinion surveys seemed to be demonstrating growing "equality fatigue" such that in 1991 - 64% said we were yet to achieve equal rights and 62% that minorities were unfairly treated, but by 1999 the majority were saying [except for disability] that equal opportunity had been achieved for women and migrants.
But the Tampa, the election and the associated public opinion surveys have crystallised for all of us the reality: a majority of Australians do not associate asylum seekers with human rights.
ENTHUSIASM SHOULD REMAIN
On one level this conclusion could lead to an outbreak of depression and despair, that in the 21st century a so-called enlightened first world country such as Australia is capable of producing reactions such as these. On the other hand why the surprise? We who labour in the vineyard know how tenuous and fragile advances in human rights tend to be; that one small step forward is very often succeeded by two very large ones backwards, to paraphrase one V.I. Lenin.
(Co - incidentally, today is the anniversary of the creation of the infamous secret service the CHEKA in Soviet Russia in 1917, that notorious destroyer of human rights; so it seems appropriate to recall Vladimir Illyich Lenin if only to remind us that even the most monolithic and unchanging of structures can be rooted in extremely fragile foundations!)
So I think we should approach our task with renewed enthusiasm and determination because the election has provided us with a map which very clearly defines the road ahead, one with many turns and probably (unfortunately) a number of steep dips but inevitably, rising steadily upwards to the broad sunlit pastures of tolerance and compassion. (TO PARAPHRASE WINSTON CHURCHILL)
WAKE UP CALL
This then is the first message for today: "November 10 was a wakeup call for all Australians who care about human rights and their fellow human beings".
It was also a sharp reminder to people like us, who have taken their cue from the principles espoused in the Universal Declaration of Human Rights and subsequent standards that we should never take anything for granted; arguably it was evidence that much of the work we have been involved with over the last twenty five years, valuable as it may have been, has gone essentially unnoticed by a majority of our fellow Australians - if not unnoticed, then the message we thought they were absorbing was either not so (a benign interpretation), or at worst, was producing the opposite result to that which we intended.
This leads to the first substantive issue I want to raise today and it echoes my call for a renewed effort on communication that I've just mentioned.
DECOUPLE BORDER PROTECTION FROM HR ISSUES
I refer to the need to de-couple border protection and immigration control from human rights issues. Currently all three subjects are hopelessly intertwined in Australians' minds, with any reference to each word immediately causing a chain reaction of linkage back to border protection and sovereignty. The reality of course, is that all three issues stand alone and while they may occasionally overlap - the automatic linkage is clearly erroneous, both under HR principles and at a practical level.
Australia's right to defend its borders and maintain its sovereignty has never been questioned by HR advocates, but nor will it be at risk from the small, sad, flotilla of leaky boats with their desperately fragile cargo. There is of course a far more dangerous and pernicious threat to Australia's borders; I refer here to the international drug trade which by implication mainly arrives in Australia by sea and air in increasing amounts, posing possibly the most serious threat to the maintenance of Australia's foundations imaginable - and one can only wonder why the rhetoric of border protection and sovereignty is rarely marshalled with anything like the vigour employed against asylum seekers.
So the first message has to be decoupling of border protection from asylum seeking - and the method? One that goes by the unoriginal name of the "repetition principle". Meaning, that it is only by repeating the same message over and over again until you are saying it in your sleep, only then, is it possible that the wider community will start to actually absorb what you are saying.
Speaking to a knowledgeable audience such as this, I do not intend to spend much time on the subject of immigration, asylum seekers and human rights. We all know there needs to be a decent discussion in this country on migration levels and such a discussion only touches peripherally on that of refugees. I don't need to explain to this audience why Australia needs to be vigilant in ensuring its own compliance with international conventions and its treatment of asylum seekers. BUT these are the issues which you and I must talk about over and over again as we move around the community, because clearly these facts are not understood by most Australians and it is only by better understanding, we can achieve the necessary mind-shift on this debate.
Another important aspect of that dialogue is the need to always personalise and humanise your facts. A simple story about an actual asylum seeker, by name and history can do more to awaken your listeners' interest than any amount of information about ICCPR or CROC.
HUMAN RIGHTS DIALOGUE
On the specific score of understanding of our human rights obligations, I am attempting to broaden the community's knowledge by the "Human Rights Dialogue". Many of you here will have been involved in these consultations, where experts such as yourselves interact with the community on topical human rights issues in an effort to develop a fuller perspective. I intend to continue this initiative in the expectation of altering, at least some of the community's mind-sets.
And we are necessarily talking here of a fundamental shift in mind-set in the majority of Australians because we are operating in a democracy. By this I mean unless we can achieve sufficient recognition for our cause such that we affect the electoral process - in other words the potential to change the outcomes of elections and persuade decision-makers of the importance of upholding international principles of human rights - then we are making life very hard for ourselves.
Again, November 10 is instructive - both major parties wished desperately to win the election and opinion polling is now the single most dominant weapon in the election armoury. If the opinion polls had shown that human rights for asylum seekers was resonating more with the focus groups than border protection, I guarantee you would have seen a policy shift on the issue.
So, we must be prepared to present our case to the Australian people with such coherence and logic that we can persuade them to change their minds and therefore their votes.
Let's face it - that's what the Greens have done. The progress from the early 70's in Tasmania to now, in electoral terms is astonishing - culminating with their success in this election.
This gives rise to my E-theory: Education, Explanation and Elucidation resulting in electoral impact encourages the executive arm of government to change policy.
What other tools do we have to work with in this educative process?
OPPORTUNITIES IN 2002
Well, obviously HREOC's visits to the detention centres and the monitoring of conditions becomes an important method of ensuring that the key issues are kept before the community. I will be reporting in February next year to the new Parliament about my visit to detention centres undertaken during 2001. This coupled with the complaints process administered through HREOC, and by way of example - Christmas Island and the conditions under which asylum seekers are being administered, is currently the subject of the complaint process - provide us with plenty of opportunities to present the issues to the wider community, in a matter of fact, unflamboyant fashion.
However the big opportunity for 2002 will be the Inquiry into Children in Immigration Detention, which was announced last week. Many of the organisations represented here today assisted the Commission with the preparation of the Terms of Reference and I thank you for that. Many of you will have already received the Terms of Reference (anyone who wants them please let me know and I will arrange for copies to be sent) and will be readying yourselves for lodging a submission. As material is received and so long as it is not confidential, it will be published on the Commission's web site. This will give all of you access to useful educative material during the course of the Inquiry, which I encourage you to use.
Obviously whilst the Inquiry is in progress, impartiality on the Commission's part will limit certain commentary, but no such stricture applies to you. I expect public hearings centred on and around the detention centres to occur in June/July and these will obviously provide much valuable information.
NGOs COMMENTS ON INQUIRY
As an aside, many of you have commented since the announcement, on the proposed length of the Inquiry. It is our belief, based on other public Inquiries conducted by the Commission, that November 2002 is the minimum time necessary to complete the job. The credibility of the Report's findings must not leave itself unnecessarily open to the accusation (from the usual suspects), that it was a "down and dirty" job designed only to reinforce views already held by a small clique of HR practitioners with additional support from the "chattering classes". No - to be effective as a tool in our education campaign aimed at the broader Australian community, which remember we need to ultimately influence sufficiently for them to vote accordingly - the Report must be extremely thorough and robust. It will take the best part of a year to review submissions (due by March next year) to question DIMIA and ACM, hold public meetings and then write the Report.
However this does not stop NGOs from continuing to apply public pressure along the lines many of you have already been espousing. In many ways you are at the vanguard of the process, a group who should be applying the most rigorous principles to all that we do - and like all vanguards you are necessarily risk takers, adopting positions designed if necessary to cause discomfort as you force us all to examine our consciences.
I fully support you in this important task and welcome your ideas and recommendations. Naturally you will be making submissions to the Inquiry and I urge you to engage with this process to the fullest extent possible - the quality and rigour of your arguments could, in the final analysis, make a big difference to the outcome.
EDUCATION OF COMMUNITY IS KEY
In summing up I believe that education, in the broadest sense of the word, aimed at the general Australian community, must now become the overriding focus of the human rights movement in order for us to achieve the kind of outcomes that Australia's international human rights obligations require.
This is not to say we do not continue using all of the legal, media and lobbying strategies employed so successfully in the past, but rather there has to be a realisation that future significant changes will come from the ballot box and from influencing decision makers. In order for that to happen we all need to work to achieve the necessary mind-shift amongst the Australian people. I am confident that ultimately we will all prove equal to the task.