Waverley Council's Refugee Week

Speech by Dr Sev Ozdowski, Human Rights Commissioner at the Waverley Library Theatrette, 9 October 2002


It is my pleasure to acknowledge the presence of Cr Paul Pearce, Mayor of Waverley, Councillors and staff of the Waverley Council, Mr Howard Glenn, National Director of Australians for Just Refugee Programs, our excellent performers and last but not least volunteers who have made tonight's celebrations possible. Ladies and Gentleman, all.

Firstly, I would like to acknowledge the Dharawal people who are the traditional owners of this land and a timely reminder that we are all immigrants to this vast continent. Thank you also to Mrs Norma Simms for the welcome to the Land.


Because of my work on the National Inquiry into Children in Immigration Detention involving follow-up visits to all the immigration detention facilities, I have been able to give a lot of thought to the many issues involved and consequently develop some key principles which I think should apply.

In the interests of furthering informed discussion on this topic, I am taking advantage of all appropriate forums to develop my arguments in the hope that in time a sufficient number of Australians will re-examine their attitudes to refugees and ultimately encourage all sides of politics to substantially amend the current policy settings.

Current Policy

Australia maintains a mandatory detention policy for most asylum seekers.

This requires that all those who come to oheir country of origin. In the case of people who land on the excised territories of any of the Christmas, Cocos or Cartier Islands or Ashmore Reef, they are removed to Papua New Guinea or Nauru under the colloquially named "Pacific Solution".

In contrast, this mandatory detention policy does not apply to people who are already in Australia and who have applied for asylum. That means that they do not have to face detention while awaiting a decision on their refugee status.

Most of these people who come to our shores without authorisation see themselves as refugees and are seeking asylum in Australia, for example people from Iraq, Iran or Afghanistan.

A substantial proportion of them will subsequently satisfy Australia's refugee assessment criteria, thereby engaging our protection obligations as behoves a signatory to the 1951 Convention and 1967 Protocol relating to the Status of Refugees. In fact, for example, some 70% of unauthorised and about 53% of the "Pacific solution" arrivals are recognised as refugees. In contrast, only 15% of applications from people already in Australia are gaining such accreditation. The first point to be made about this situation is that asylum seekers who arrive in this unauthorised fashion have not committed any crime under Australian domestic law. It is rather like somebody escaping a bushfire and parking in an unauthorised parking place. In fact the Director-General of ASIO recently stated that out of 6,000 boat people vetted by ASIO in the last few years none were identified as a threat to the security of Australia.

The second point is that under our Migration Act, asylum seekers who arrive "unauthorised" must be detained pending resolution of their refugee status.

What is the Rationale for Mandatory Detention?

The key purpose is to undertake rudimentary health, identity, security and refugee status backgrounding checks. An initial period of mandatory detention, thereby enabling these checks to occur, is reasonable.

In this respect I would adopt the Swedish model which similarly imposes mandatory detention on all unauthorised arrivals, but completes first phase processing in a matter of weeks if not days. Swedish immigration authorities then permit supervised release into the general community pending final determination of refugee status. This is also acceptable, in my view.

In contrast, the current Australian law requires verification and adjudication finalisation of all aspects of an asylum seeker's application within detention. This is a process that takes months on average and in some cases years. A recent case involved a child being held for more than 5 years in detention before his claims were recognized.

Judicial Review

The next sticking point is the virtual elimination of judicial oversight by Australian judges, from this massive exercise in administrative decision-making.

Again, the Swedish model seems to have developed a more realistic appreciation of the perils of unrestrained administrative activity, by scheduling windows of compulsory judicial review into their refugee determination system.

In other words, at periodic intervals the authorities must present the applicant refugee before a judge if they wish to continue with an assessment regime that is outside the previously mandated parameters.

Again, by way of contrast, the Australian parliament, with the exception of the constitutional protections afforded the High Court, has now successfully enacted a suite of laws which ensures that just about every aspect of a refugee determination decision is immune from judicial oversight as the applicant travels along the assessment line.

The lessons from history teach us that administrative decision making on a large scale, without the normal rights of judicial appeal, is an explosive cocktail. It may also undermine our civil liberties which underpin our democracy.

This unprecedented (in Australian terms anyway) diminution of an individual's "rights" was conducted by the legislature without any reference to a statutory Bill of Rights. It is very difficult to make a judgment on what is being given up, if you have nothing by which to measure it.

Border Protection issue

Much of the current rhetoric justifying this assessment regime is coupled with the catch cry of "border protection".

Australia's sovereign right to decide who will enter and ultimately reside in this country is not disputed; but what has that issue got to do with the need for long term mandatory detention?

If the answer is deterrence of other aspiring asylum seekers pushed by unscrupulous "people smugglers", then clearly there should be doubts about:

  • whether the relatively small numbers of arrivals justify such a costly (both in economic and social terms) response,
  • the long term sustainability of the policy, and
  • its high moral and human rights cost.

Just look at the raw numbers; Australia's total immigration intake at present is about 100,000 per year. During the peak of the "boat people" crisis there were only about 4,000 unauthorised arrivals per year. That is only 4% of our overall intake.

Focusing on the long term sustainability issue, camp style detention effectively began in the early 90's and one would expect the cumulative effect of its operation to have resulted in a dramatic reduction of boat people towards the end of the decade. This did not happen.

Admittedly there is a current lull in numbers, but it would be a brave person who predicts this heralds the end of the storm, especially in light of the many complex social interactions at work here.

Certainly the Government's decision to construct a $230 million, 1,200 person permanent detention camp, in addition to the existing facilities on Christmas Island, implies that someone else shares this scepticism.

Proportionality and High Moral Cost

In any event, issues of proportionality and high moral cost arise here. Contemporary western philosophical thought has long accepted that the means of deterrence must be proportional to the moral price it exacts.

Thus it would be unacceptable to punish habitual pickpockets by cutting off their right hand, as was the case in mediaeval Christian times, because the deterrence value is outweighed by the moral repugnance of the act.

Similarly, the proclaimed efficacy of the immigration detention policy must be measured against its high moral cost.

Australia in a Multilateral World

Finally, we come to the vexing subject of adherence to United Nations inspired human rights treaties and conventions. Australia has ratified a range of treaties of high relevance to the present situation. For example, it ratified:

  • Universal Declaration of Human Rights: Art.14(1) of the Convention states that "All people have the right to seek and enjoy in other countries asylum from prosecution."
  • the Geneva Convention Relating to the Status of Refugees of 1951: Art.311(1) "Contracting parties shall not impose penalties, on account of their illegal entry or presence, on refugees who coming from a place where their life of freedom was threatened…are in their territory without authorisation."
  • International Covenant on Civil and Political Rights: Art.9 "No one shall be subject to arbitrary arrest or detention".
  • Convention on the Rights of the Child: Art.37 "Detention of a child shall be used only as a measure of last resort and for the shortest appropriate period of time". Or, Art.3 "In every situation affecting the interest of a child or a family, the interests of the child must come before all others".

However, due to

  • limited enforceability of some international instruments in the Australian domestic system, and
  • the necessarily legalistic nature of these commitments,

proponents of any particular point of view can make a strong legal argument in support of their case.

Accordingly, where the Commission might find that the Government has breached a particular human rights convention, a battalion of lawyers can produce arguments to the contrary.

The fact is Australia has much to gain from adhering to not just the "black letter law" of our international treaty commitments, but also the spirit that underpins them.

The apologists for Australia's current hard line asylum seeker stance make much of the fact that the Government's actions are "lawful" by reference to our domestic laws.

Leaving aside the fact that South Africa's abhorrent apartheid laws were domestically lawful while simultaneously offending a plethora of international human rights conventions, one would hope that for the sake of Australia's long term future a little commonsense prevails here.

Consider this - in international terms Australia is a very small player indeed and so our economic lifeblood is almost totally regulated by the extent to which our trading partners adhere to the letter and "spirit" of a whole raft of international trade agreements.

Therefore we can't afford to "cherry pick" between those treaties we want observed and those we would rather ignore.

Using this criterion, treaties implying moral obligations towards refugees become just as important for our long term future as those which help secure our economic and trading interests.


As Human Rights Commissioner, I have previously called for the total closure of Australia's remote site detention centres.

My detailed inspections of them have, over time, convinced me that they are "un-Australian". I happen to believe that operationally they also breach many human rights conventions, but as previously indicated, this can be something of a dry argument.

Australia prides itself, justifiably, on being the land of the "fair go", where a spirit of mateship enabled us to flourish in a difficult and unforgiving physical environment.

It is nonsense to pretend that the integrity of our borders is threatened by the small, sad flotilla of leaky boats with their desperately fragile cargo of asylum seekers.

We can maintain a system of visas and identity, security and health checks without stomping all over our "fair go" heritage.

The current policy of long term mandatory detention in containment camps is exacting an extremely high moral toll. Future generations of Australians will undoubtedly question whether that price was worth paying.

Therefore let us, as a community, harness all the money, ingenuity and effort expended on the current detention system into a new way. A way which will achieve the appropriate policy objectives while simultaneously drawing on the rich Australian heritage of compassion and decency. If we can achieve this, we will, almost subconsciously, be fulfilling both the letter and the "spirit" of our human rights commitments.

In order to reach this goal it will be necessary to convince a majority of our fellow Australians, who overwhelmingly support the current policy, that change is essential.

This means that "ginger groups" such as your " Waverley Refugee Welcome Zone", "Refugee Council of Australia" or "ChilOut" must be prepared to go out among your general community and argue the case for change.

Otherwise we all run the risk of simply preaching our message to the converted.

Australia is a democratic country. Any substantial alteration to the immigration detention regime can only occur via our participation in the political process!

Last updated 13 November 2002