Tony French

humans not pawns
Human Lives are not political pawns – Refugee Action protest 27 July 2013 Melbourne, by Takver, flickr cc

Is there a link between a Liberal Party in power and a lock ‘em up policy? I am beginning to think so, given recent events. Not just lock ’em up, but keep ’em locked up.

At a recent legal conference while the speaker droned on predictably about the inadequacy of legal costs recoverable in these tough times, I began speaking with my fellow captive tablemate. He practises in the area of criminal law, and told me Victoria’s prisons were bursting to overflowing with prisoners, necessitating expensive expedited development of a ‘prison precinct’ at Deer Park. In the meantime, alarmingly, prisoners were ‘warehoused’ in containers and caravans used as the local lock-up, with existing institutional lock-ups all ‘chockers’. The administration of the criminal justice system from his experience was beginning to feel anarchic.

The prison population had surged under the Napthine Liberal government, especially under its no-nonsense punitive former Attorney General. A tough-on-crime approach has propelled Victoria’s traditionally low jailing rate towards the ‘top end’ incarceration rates of the Northern Territory.

To reverse this lock-’em-up approach invites the response that the current Labor government will be going soft on crime. But just imagine, just for a moment, if the long-ago lost ‘war on drugs’ was conceded and drug abusers were humanely treated as a health issue instead of as a criminal matter, how many surplus prison beds would there be then?

The Basikbasik case & the Human Rights Commission

Being incarcerated or detained can easily morph into indefinite detention. Recall the recent Basikbasik brouhaha. A West Papuan activist, Mr Basikbasik, after being tortured and shot by the Indonesian police, escaped by paddling his canoe to Australia, where he sought and was given a Protection Visa.

Maitland Gaol IMG_8215, by OZinOH, flickr cc

While here, Mr Basikbasik notched up a string of criminal convictions, including the manslaughter of his wife for which he was sentenced to seven years jail, and his protection visa was cancelled. By 2007, he had served his sentence, but could neither be sent home – he had after all been recognised as a genuine refugee – nor could he settle in Australia, since he had no visa. He remains to this day in the Villawood Detention Centre, where, incidentally, he has spent longer than his original prison sentence.

He challenged his indefinite detention, lodging a complaint with the Human Rights Commission, arguing successfully that under Art 9 of the International Convention of Civil and Political Rights (ICCPR) he had been arbitrarily deprived of his liberty through all those years of his continuing arrest and detention. The Commission said the Australian government had failed to consider alternative options such as supervised release into the community (not surprisingly, after his years of incarceration, he has psychiatric issues) or repatriation to a third country (possibly PNG). In addition, the Commission suggested the government award him $350,000 in compensation.

Mr Abbott & Gillian Triggs

Well, did that unleash an acid attack on the Commission and its Commissioner, Gillian Triggs? It was a “bizarre” ruling, said Tony Abbott, “showing extremely questionable judgement”, even ”shaking people’s confidence in institutions like the HRC”. Scott Morrison tuned in: Gillian Triggs, “was always arguing for a fair go for those who have forfeited that right by their behaviour”.

Not to be outdone, The Australian newspaper said we should not give effect to international conventions even if they are mistakenly part of our law (the ICCPR is a schedule to the HRC legislation).

But, really, the HRC legislation is about fairness for all, not just for some the government or the public might like. It’s also called ‘principles’. Gillian Triggs was merely doing her job, as she said she “was legislatively bound to do”.

The High Court decision

Principles, however, appear to have suffered a setback, with the recent High Court of Australia case declaring the detention of 147 Tamil asylum seekers lawful under the Marine Powers Act, and moreover the government need not follow principles of procedural fairness.

The High Court, by a narrow margin of 4 justices to 3, said the government had the power to detain asylum seekers indefinitely, and that detention could be ended by returning the asylum seekers to their place of embarkation. The established principle of ‘non-refoulement’ (of not sending them back to whence they came) only applied in Australian ‘territory’; the Australian contiguous zone and the high seas did not count as ‘territory’, despite the fact the naval vessel was at all times subject to Australian law.

Despite the ‘sovereign border war’ communication curfew, the predicament of the 147 Tamils was publicly leaked, and ensured India rejected their return but ensured their travel to the Nauru detention camp, where hopefully their refugee claims could be processed. We would not have heard about them otherwise.

You might consider their detention on Nauru as ‘indefinite’, irrespective of their being found genuine refugees.

Scott Morrison tweeted that he welcomed the High Court decision, validating what he regarded as the legality of the government’s actions under Operation Sovereign Borders.

The Children in Detention Report

There was no such elation, however, over the recent release of the HRC Report on Children in Detention. First, the government tried to bury the Report – it sat on it since November last year – then loudly disowned it, and allegedly pressured Gillian Triggs to resign. To her credit, Gillian highlighted the comprehensive Report instead (which had been ten years in the making), and declined to resign.

The Report drew attention to the fact that hundreds of children were in mandatory indefinite detention, with “no pathway to protection or settlement”. The wellbeing of children on Manus and Nauru continues to be compromised, with many suffering mental illness.

Regrettably, Australia is the only country which detains children indefinitely. Both political parties are to blame for our gross breach of basic obligations under the ICCPR.

There is no satisfactory explanation for the indefinite detention of children. There is a meanness of spirit, and a failure of what now seems a fantasy of the fictionalised Australian principle of ‘a fair go’.

The government attack on the HRC is contemptuous. As we have no Bill of Rights, the role of the Commission is important in protecting the freedoms contained in Australian law from being ignored, or slowly eroded away under the guise of ‘emergencies’.

With declared ‘wars’ on drugs, bikies, crime, terror, and the boats, we need increased legislated freedoms, not decreased. It’s no longer unthinkable to contemplate a future in which you might not unreasonably expect to be detained, possibly indefinitely.

Are our detentions a postscript to Marcus Clarke’s Australian classic, For the Term of his Natural Life?

Tony French is a Melbourne lawyer and a member of the SPC Board.


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