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From Tampa to Alvarez
Recent immigration policy in
Australia
By Jenny Haines
Sydney University law school assembly hall was packed to
standing room only for this forum on September 6, 2005. The speakers
put various perspectives on comments David Marr.
David Marr as usual was in fine form. He noted that when the Tampa
event happened, despite having a law degree, he didn't know much about
the law about the arrival of refugees seeking asylum, and had to catch
up rapidly, mainly with the help of the forum chairman, Professor Ivan
Shearer. He noted that in 2001 when Pauline Hanson launched her
election campaign, she called for refugee boats to be sent back, and
John Howard being the professional politician that he is, knew that
what she was saying struck a popular chord in the community, and still
does. Even today polls are showing that 30 per cent of Australians want
refugees who arrive in boats sent back to where they came from.
So back in 2001, the Howard Government developed an extraordinary
detemination to stop the refugee boat Palapa landing. David Marr was at
the launch of the Liberal Party campaign in 2001, when Howard uttered
those famous words "we will decide who comes to this country and the
circumstances in which they come". Marr said the audience went wild
with enthusiasm for what Howard was saying. That's when he decided to
follow the events, which led to the writing of Dark Victory. Marr said the
Department of Immigration has not become what it is by accident. It has
grown into what it is because Australians want it that way, focussed on
absolute control of immigration, not on humanitarian concerns.
Australians were shocked by what happened to Cornelia Rau because she
was an Australian citizen, but they weren't shocked by what happened to
Vivienne Alvarez Solon because she was Filipina, a "mail-order bride",
( his words). He has seen the documentation that the department sighted
about Alvarez Solon, and despite the fact that it is clear in those
documents that she had family in Australia, no one did anything to
contact her family before deportation.
Marr said he thought that underlying the whole Tampa to Alvarez history
is a strange indifference in this country to habeus corpus. Since the
early 1990s there has been a gradual erosion of judicial review
of immigration cases. In the US, even conservative judges like Justice
Scalia of the Supreme Court has said: if you don't defend habeus
corpus, you have nothing. Recent cases in the High Court in Australia
have set the precedent that immigration detention for life is not
imprisionment but segregation. Such detention would be illegal if it
was punitive, but as it is not punitive it is not illegal. Marr said he
believed that we are now so debased that we can't remember the
fundamentals of democracy.
Graham Thom from Amnesty International spoke briefly about the history
of mandatory detention and the fact that under the Howard Government a
person can be taken straight from prision to detention with no judicial
review. The fact that the Immigration Department is immune from any
judicial review is of great concern to Amnesty International. He called
the department schizophrenic, as it tries to present itself as
"wonderful global citizens" despite the other actions it performs. He
said the task now is to unwind the legislation that has been passed in
recent years.
Jane McAdam, a lecturer from Sydney University law school compared
Australian courts with those overseas. The French legal system, for
example, recognises that asylum seekers in an airport hotel are in
detention. Eight out of nine judges in Britain's House of Lords said in
a recent case that it was contrary to the European Convention on Human
Rights to indefinitely detain persons suspected of being a terrorists.
In Australia there has been some creative thinking by lawyers. For
example, the Baktiyari boys' escape was brought before the courts, but
they declared the boys fugitives and applied extradition principles.
Currently before the Supreme Court of NSW is the Shayan Bedraie case,
in which his parents are claiming that negligence by the federal
government has resulted in severe mental illness in young Shayan.
Jane McAdam asked David Marr if he thought that the failing mental
health of detainees was the result of the Immigration Department
failing to train its staff or failing to care. Marr said that both Rau
and Alvarez Solon were mad, and their stories were incoherent, but the
department failed to investigate thoroughly, and Glenside Hospital in
South Australia didn't want to take too many detainees from Baxter
Detention Centre at one time. There was also a belief in the department
that detainees were bunging it on. The Immigration Department had a mad
wish to have an impenetrable system.
Azadeh Dastyari, a graduate student at Sydney University law school,
said the attitude of the current government was that asylum seekers
didn't have the rights of citizens, so they could be shipped off to
Papua New Guinea etc. She briefly outlined the history of the excision
of Australian territorial islands from the migration zone. A current
Bill before the federal parliament seeks to excise 4900 islands off the
coast. Apparently, Marr said, this was in preparation for the collapse
of Papua New Guinea into chaos, and to hold back the consequent tide of
refugees!!
Professor Shearer said the Human Rights Committee of the United Nations
had recently issued an explanatory memorandum on article 2 of the
International Convention on Civil and Political Rights, which made it
clear that it was not just a question of where the jailed person was,
but where the jailer was. Under the Refugee Convention there was no
automatic right of asylum seekers to protection, but over the years
since the convention was signed, the concept of temporary
protection had gained acceptance internationally. It was accepted
that an asylum seeker should be allowed to stay in a country
of refuge if deporting them would lead to their persecution or endanger
their life. Marr said it was unllikely that a person would spend the
huge amount of money it costs to travel with a people smuggler unless
the person was confident they were a refugee.
Mary Crock, Associate Professor of Law, Sydney University law school,
said it all came down to how we saw ourselves as citizens. Since
Federation, the "visibly different" have has a hard time being accepted
in Australia. The people who drafted the federal Constitution could not
agree on what is was to be Australian, so they empowered federaal
parliament to make laws concerning immigration and to define who was an
alien.. When persons become "absorbed" the immigration power ceased.
David Marr agreed that Australians were vague about their citizenship
and its source. Professor Shearer said much of what happenned in
Australia was to try to stop an ethnic group getting too much power.
The discussion had raised questions about the future of
multiculturalism. |