sinking debate

What has Australia come to, that we can treat asylum seekers so cruelly, while claiming to do so from compassion?

How can we tolerate crocodile tears for drownings at sea from politicians who demonise the very people who have died?

What future have we in our region when we demand our neighbours take from us the burden of responsibilities we are treaty-bound to assume ourselves?

What of our reputation when we impose harsh requirements on poor client states to do what they do not want to do – take on the politically embarrassing refugees who have come seeking our help?

What madness is it when an opposition leader is praised for his mantra of ‘turning back the boats’ when he could not do so even if this were a desirable end?

How can we take seriously those who talk of ‘the people smugglers’ business model’ as if this desperate movement of people were somehow workshopped at a Harvard MBA school?

By what folly have we permitted the term ‘border protection’ to insinuate itself into our discourse about those coming to our country seeking our protection – as if by crossing our borders to ask for our help they compromise the borders whose protection they invoke?

And how is it that those who call for compassionate treatment of asylum seekers are all but accused of murdering them at sea?

The current debate on asylum seekers has seen a new nadir in the Australian body politic. Not only are the arguments callous, they are  detached from evidence and logic, swamped by calculations of political advantage, and it seems the vast majority cannot see or does not care what this is doing to our country.

Let us go through the current position. 

Low numbers

About 6000 people currently come to Australia by boat each year seeking asylum. 

These boat numbers are (for the 90% accepted as genuine refugees) part of our humanitarian intake. In 2010-11 our humanitarian intake accepted just 8971 people from overseas, and 4828 people already here (ie 13,799 in total). The budgeted figure for 2011-12 is 14,750. The figure has now increased to 20,000, something which asylum seeker support groups and the Greens have been seeking for years.

Australia has a total annual migrant intake in excess of 110,000 per annum, so the numbers coming by boat are a very small fraction.

Compared with other nations, our intake is tiny. For example, Canada in 2010 granted asylum to 23,160 refugees, and in the same year France granted asylum to 47,790. We had 6,535 boat arrivals in 2010, but Greece had 46,015, and Italy 82,248.

Australia can easily absorb the numbers who come. The hysteria that politicians and others have been able to generate about these small numbers plays on deep-seated fears in our community. We have never properly acknowledged that we dispossessed others who were here before us, and we in our turn fear those who come by boat. We always have. It has nothing to do with objective difficulties to our nation. After all, as we proclaim in our national anthem:

For those who've come across the seas

We've boundless plains to share

Why are we tying ourselves in knots over a problem that we should be able to handle with comparative ease?

Political Imperatives

At the time of writing, Labor wants to get asylum seekers off the front pages, because the issue is doing them harm. The Coalition want to keep that issue there, because it helps them. Labor has been prepared to offer anything to the Coalition to get rid of the issue.

As a political circuit breaker, they appointed the 'Expert Panel on Asylum Seekers' which has now submitted its recommendations - based on the terms of reference it was given.
The panel recommended that the Humanitarian Program be increased to 20,000 places per annum - a positive.

However, the panel also recommended processing in PNG, Nauru, and Malaysia, as well as a ‘no advantage’ principle to ensure that no benefit is gained through circumventing 'regular migration arrangements'.

Legislation very rapidly cobbled together after the report was delivered has now passed both houses of the federal parliament, with the Greens the only party to oppose it,

That legislation goes beyond the recommendations of the expert panel. It denies asylum seekers basic human rights. In particular, the legislation explicitly states that asylum seekers are to be denied natural justice, it explicitly states that 'protections' to asylum seekers are not legally binding on the government, and it removes the role of the Minister as guardian of unaccompanied children - thus removing his (or anyone else's) accountability if he does not act in the best interests of the child.

"Queue jumpers"

By definition, a person cannot seek asylum as a refugee unless they have fled their own country. There is no queue in Iraq or Afghanistan to take them. They must get out as best they can, and then find somewhere to live. Some are able to be assessed by the United Nations High Commissioner for Refugees, but even then they are not guaranteed resettlement – many who have taken boats to Australia have already been assessed to be refugees by the UNHCR. Some have no opportunity to be assessed before they take a boat to Australia.

As the UN has pointed out, queue jumping is a myth.

By all means let us establish orderly mechanisms for refugees seeking to invoke our protection to come to Australia, but until we do, it is frankly dishonest to use the term ‘queue jumper’ because for most who come by boat there is no queue to jump.

"Border protection"

We all want our borders protected. After all, the term implies invasion by some foreign military force after which our borders may be redrawn and we lose part or all of our country. We don't want that.

But that is nothing to do with the case. People coming here by boat as asylum seekers do not threaten our borders. They invoke the protection of our borders. It is as foolish to use the border protection paradigm as it would be to speak of a mediaeval person seeking the sanctuary of the church threatening the church's jurisdiction.

Crossing the border to seek our protection does not threaten our borders at all, and it is folly to use the term. The only threat to our borders comes from politicians who have excised large parts of Australia from the so-called 'Migration Zone' where the usual rights and legal protections no longer apply. That really does threaten our borders, because it creates a large zone which is not fully accepted as part of Australian jurisdiction.

International relations

Australia was one of the first countries to sign the Refugee Convention in 1954. This followed the disgrace of the world failing to accept Jewish refugees from Nazi Europe, and was an attempt to ensure that this would not happen again.

We have obligations under that convention, obligations we have undertaken before the nations of the world. 

It is our obligation to assess whether a person claiming asylum here is a genuine refugee. We have an obligation of 'non-refoulement' - ie not forcibly returning refugees to the country from which they have fled. It is our responsibility to accommodate those who have come here seeking protection.

How can we expect our most important regional partners, Malaysia, Indonesia (curiously not mentioned in the experts' report) and Thailand, to agree to take on new and heavy responsibilities to thousands of desperate people seeking asylum when the starting point for negotiations is that we won’t? They will expect billions of dollars to be thrown in, but they will despise our attitude.

We are left with offshore processing in poverty-stricken client states like PNG and Nauru, pending the outcome of patronizing, protracted and indeterminate negotiations with Malaysia and other similar nations. That is, the Pacific Solution and all its attendant dangers and damage.

Unless Australia is willing to undertake its fair share in dealing with this problem - starting with the obligations we have publicly undertaken - we will damage our international standing. 

We need good relations in our region. We need to be a good neighbour so we can ask for help when we need it. This roughshod shirking of our responsibilities is doing our nation long term harm.

Psychiatric harm

We already know that the mandatory detention of asylum seekers - including in offshore facilities like Manus Island and Nauru - causes serious long term psychiatric harm. 

The longer detention now contemplated will cause more harm. It is unconscionable for a government to contemplate causing such harm to people, especially those who have already suffered and have come seeking our help. The dehumanizing involved in holding people in such institutions with inadequate facilities, no proper access to legal assistance, no definite end to their incarceration, is damaging to those held, but it also brutalises our nation. How can we do this to people and not expect this cancer to metastasise through our body politic?

Deterrence

One of the most insidious aspects of the current debate is expressed as concern for the safety of asylum seekers. Safety as a value cannot be criticised. Everyone's in favour of it. And there's no doubt that the losses of asylum seekers at sea are tragic.

Pardon me for saying so, but much of this concern for the safety of asylum seekers is frankly hypocritical. The coalition have made much of their reputation for being 'tough on asylum seekers', and they have boasted at the toughness (lack of compassion) in their policies. It is hard to see anything sincere about their concern for the safety of asylum seekers. If that were a genuine concern, why do they not also care about the mental harm mandatory detention policies have done to so many? 

Many politicians have demonised asylum seekers, a fact not lost on the UN, which has repeatedly criticised Australian politicians for doing so. Scott Morrison, for example, has said that they “bring disease … wads of  cash … and large displays of  jewellery”. Opposition Leader Tony Abbott, knowing the claim to be false, continues to refer to asylum seekers as 'illegals'. The media only rarely challenge him for the lie. 

When such men proclaim their grief for the people they continue to demonise it is hard to take them seriously. Beware the confected grieving of powerful men. There is often a deeper and uglier agenda beneath.

And in this case the agenda is justification of harsh measures against asylum seekers 'to deter them'. 

The conventional wisdom has been that John Howard stopped the boats, and he did so by harsh measures. But the Pacific Solution coincided with the Norwegian sponsored peace agreement in Sri Lanka - during which time there were no Tamils fleeing from that country. It coincided with the shocked quiet that initially followed the invasions respectively of Afghanistan and Iraq. Weighing up John Howard's policy in order to determine whether to come to Australia, if it happened at all, was low on the list of asylum seeker priorities.

An ugly feature of this argument has been vilification of those who oppose offshore processing as 'supporting people dying at sea'. There are many examples of this particularly vile rhetoric. The twittersphere has recorded tweets such as 'Greens support profiteering from people dying at sea' and 'I prefer to support people dying at sea so we can feel good while eating our tofu at expensive fundraisers'. It is not just asylum seekers who are being demonised now. Those who call for their humane treatment are accused of supporting their deaths. This represents a new low in our national debate and is the kind of hyperbole apt to divide a country.

People who get on boats to come to Australia do so knowing it is dangerous. They are fleeing from tyrannical regimes. If they wait for resettlement in refugee internment camps they can wait all their lives. Coming here by boat is not a lifestyle choice. And we think we can deter them? We can only do this if coming to Australia is less attractive than facing down the regime they want to flee.

They are Hazaras fleeing persecution in Afghanistan, Tamils fleeing persecution in Sri Lanka, people who have reached the point of desperation. As the panel has noted, they are genuine refugees - 90% are found to be so after they arrive.

To pursue deterrence as a policy in this area is to choose a dangerous moral position: we will cause harm to someone who has committed no crime in order to make some other unspecified person decide it's not worth it to come. Holding or hurting someone who has committed no crime in order to make someone else act in a different way is in my view immoral - it is the same moral choice as taken by the extortionist. 

Having chosen the path of deterrence, any effective deterrent must make the option of coming to Australia nastier than the option of remaining to be persecuted by a tyrannical regime. 

Is that the kind of country we want?

'Protecting people' from the risks of boat travel to Australia has as its counterpart leaving them exposed to the risks they seek to escape.

Making people wait on Manus Island or Nauru for years will not save lives, and there has been no credible case made that it could - but we know it will cause detainees long term harm. 

I do not believe that this is genuinely about saving lives at all. I do not believe that has been the guiding principle for action by government of either stripe on this issue. It's about giving refugees a hard time so the government can claim to be tough on boat people.

This demeans Australia. The world will rightly despise us for such behaviour.

No advantage

The expert panel on asylum seekers has recommended a ‘no advantage’ principle to ensure that no benefit is gained through circumventing regular migration arrangements. In practical terms, it is hard to know what this will mean.

As Julian Burnside puts it so well: 

What are the dynamics of all this?  Sending people to Nauru or PNG and resettling them at the time when they would otherwise have been resettled is obviously intended as a deterrent (or ‘disincentive’ as the report calls it).  Same for turning boats back.  The point is to make coming to Australia less attractive.  There’s a couple of problems here.  First, how do you determine when a person would otherwise have been resettled?  Do you measure the average time in an African camp?  Do you look at the average time the same person would have spent in Malaysia or Indonesia?  That will throw up a different answer. It’s going to cause problems. The average time for resettlement can range from 5 years to 40 years. Let’s take 5 years to keep the maths simple. A boat person will get a ‘5-year penalty’.  Presumably they will be held in Nauru or Manus Island during that time, before being resettled somewhere (the report does not say where they might be resettled).  If this year’s boat people number (to August) is used as the annual average arrival rate, then Nauru (or Manus Island) will have to accommodate 35,000 boat people while the principle of ‘no advantage’ plays out. That would involve the population of Nauru increasing by 540%, or the population of Manus Island increasing by 81%.  (If they came to Australia, the population would increase by 0.002%).  Has this been run through the common-sense filter?

Expense

The policy of mandatory detention of asylum seekers, and even more so the policy of offshore detention, costs our nation billions of dollars. It's as if money is no object on this issue. Which is scarcely surprising, because the policy is not driven by reason.

Compromise and being reasonable

The Greens have been criticised for not compromising on this issue. They are not realistic. They are not 'players'. They are 'out of touch'. Often, compromise is a very good thing, and the Greens have demonstrated a capacity to compromise on issues and work through them again and again. 

But compromise is not an end in itself. If the compromise leads to an amelioration of harm, or an increase in good, it is worth doing. But if there is no improved policy outcome to be gained from compromise, sometimes all that remains is the simple dignity of standing firmly for what you believe in, bearing witness that at least someone was prepared to oppose an evil.

Time will tell, but I believe the Greens will be vindicated for their stand.

Leadership

We are not seeing the kind of leadership Australia needs on this issue. We have leaders advocating cruelty to vulnerable asylum seekers for their own political advantage. Our leaders make no appeals to any great vision of what Australia should and could be. We have no inspiring declaration of independence from our founding fathers to which they can look for guidance. Our leaders do not invoke the great principles of human rights, in relation to which Australia once took a lead. When the UN Human Rights Committee criticises our asylum seeker policies and particularly mandatory detention, Australia petulantly ignores the rebukes.

Where there are no great principles invoked, all too often we are left with self-interest.

And indeed we see a debate which is self-serving, dishonest, divorced from facts and logic, and which gives licence to treat vulnerable people cruelly. When we regard it as acceptable to mistreat the vulnerable, we are doing long term harm to our nation, for we diminish what it means to be Australian.

We Australians think that the kind of divisions we see in other nations cannot happen here. But they can happen anywhere if leaders are not astute to keep our community healthy. The recent debate on asylum seekers, and the decisions to which it has given rise, carries with it the danger of fraying the fabric of our community.

Serendipity: Tamils and Terror Australis

The three Tamil men accused of terrorism by the AFP

Today three Tamil men walked free from the Supreme Court after defeating serious terror charges under the Criminal Code, and pleading guilty to the minor charge of providing funding to an organisation listed under the Charter of the United Nations Act.

It was an extraordinary case, and highlights the dangers in our terror laws. My own role in the case was as lead counsel for the defence, especially during the Criminal Code aspects of the trial.

Once my involvement was completed, I wrote the following article for Overland which was published today.

On 1 May 2007, the Australian Federal Police (AFP) used the Commonwealth Criminal Code to charge three prominent members of the Australian Tamil community with serious offences, including being members of a terrorist organisation, namely, the Liberation Tigers for Tamil Eelam (LTTE or Tamil Tigers). The charges carried penalties of twenty-five years jail.

The background was as follows. In February 2002, the LTTE and the government of Sri Lanka signed a ceasefire overseen by a Norwegian peace-keeping force. The situation remained fragile and there was considerable distrust on both sides, but the government no longer proscribed the LTTE as a terrorist organisation. On Boxing Day 2004, the Asian tsunami hit the coast of Sri Lanka, particularly devastating the Tamil-controlled coastline. Humanitarian aid was desperately needed but the Sri Lankan government refused to permit any foreign aid to go direct into Tamil Eelam. It decreed instead that all assistance needed go through the government, a procedure that would have caused tragic delays.

Major aid organisations defied the instructions and delivered aid directly to the LTTE, which they found to be far more efficient than the government. Indeed, in the Tamil-controlled parts of Sri Lanka, aid agencies dealt exclusively with the LTTE.

In the meantime, the Tamil community around the world began raising funds. Much of this was directed through the Tamil Rehabilitation Organisation, which had an office in Colombo and operated openly in Sri Lanka.

Seventeen days after the tsunami struck, the Sri Lankan High Commissioner in Canberra formally complained to the AFP that Tamils in Australia were raising money for tsunami aid that was being diverted to the LTTE for terrorist activities.

It remains surprising that any credence was given to the allegations. With aid of any kind only just reaching Sri Lanka, it is hard to see what evidence could underpin allegations of material funnelled to terrorist activity. In any case, the complaint was clearly made in furtherance of the conflict between the Sri Lankan government and the LTTE.

In Sri Lanka, the Tamil community constitutes a large majority in the northern part of the island, but a small minority in the country overall. Tamils are a distinct people: they are culturally different from the dominant Sinhalese, have a different heritage, speak a different language and most have a different religion. Prior to colonisation by the Portuguese and then the British, the Tamils had their own separate kingdom on the island.

The Sinhalese have a proud Buddhist tradition. The daughter of the great Indian emperor Asoka brought a shoot of the Bodhi Tree (under which the Buddha obtained enlightenment) from India to Sri Lanka, and 2500 years later it still stands – the oldest documented tree planted by humans in the world. A tooth of the Buddha, recovered from the ashes of his funeral pyre, is venerated in the Temple of the Tooth in Kandy. Most Tamils, by contrast, are Hindu.

During the colonial period, the Tamils were generally better educated and formed the backbone of the civil administration. This permitted resentments against them to grow.

Independence was granted in 1947, just as in India. But whereas India was partitioned, Sri Lanka was not. As a result, the Tamils became a permanent minority in the new nation. Racist laws against the Tamils were enacted almost immediately. Those whose families had been brought to Sri Lanka by the British during colonial times – often more than a century earlier – were deported to India, a country they and their families had never known.

To win government, a political party needed to court the majority Sinhalese vote, and a process of parties outbidding each other in the demonisation of the Tamils ensued. The measures adopted against the Tamils became increasingly discriminatory, to the point where they were effectively denied tertiary education altogether and even tuition in their own language. Politicians whipped up pogroms in which thousands died, often with the police looking on or participating, and systematic ‘disappearances’ of Tamils were common.

Tamils began a violent military insurgency in the 1970s. It included conventional warfare but also featured measures such as suicide bombing, generally directed against political leaders opposed to the Tamil cause. The Tamils sought a separate homeland, Tamil Eelam, in the north of the island – and for decades, in fact, they ruled such a homeland. The LTTE led the insurgency although there were other groupings, sometimes in alliance with the LTTE, sometimes separate.

The government of Sri Lanka has one of the worst human rights records in the world. Anyone interfering with its rule is at risk of extrajudicial murder. Many journalists and editors – even those of Sinhalese background – have been killed.

Clearly, Australia should not have permitted its resources to be diverted to assist in a civil war. Nonetheless, the AFP embarked on a multi-million-dollar spending odyssey in response to the Sri Lankan High Commissioner’s complaint, including multiple overseas trips by several officers. According to answers produced in parliament, the AFP spent no less than $5 271 706.91 on its investigation.

The Australian Attorney-General has the controversial power under the Criminal Code to list an organisation as terrorist. Both the current and previous incumbents have considered proscribing the LTTE but declined to do so, even after considering material that went well beyond evidence admissible in court. In fact, the LTTE are not proscribed in most countries around the world.

Members of the Tamil community, accordingly, thought they were entitled to deal with the LTTE – which was, after all, the de facto government of their homeland. Nonetheless – even though the Attorney-General had never listed the LTTE as a terrorist organisation, and even though at the time of the alleged offences the LTTE was not proscribed as terrorist even in Sri Lanka – the AFP set out to prosecute, under the Criminal Code, those men alleged to have sent aid to the LTTE.

The burden of the prosecution case was that the accused sent money to the LTTE (there were other allegations, but this was the central one). The prosecution said it did not matter if that money was for the purpose of charity – the Act makes no exception for such circumstances. Not surprisingly, when the charges were laid, major international aid organisations immediately feared that they too would be subject to criminal charges. After all, they had done exactly the same thing as the accused men. Privately, the authorities reassured these organisations that they would not be charged. That reassurance, of course, itself raises a serious issue about the rule of law: where a law is so broad that it is a matter for the subjective choice of police or prosecutors as to who will be charged, it can be (as it was in this case) applied selectively.

The prosecution set out to prove that the LTTE was a terrorist organisation under the Criminal Code. To do so, they had to prove that it was responsible for terrorist acts.

Normally, the foreign policy of Australia is a matter of some delicacy, but the terror laws handed power to make substantive decisions – in this case, the attitude of our country to a civil war in Sri Lanka – to police, something which no responsible government should countenance. Once the police were permitted to view that conflict through the lens of terrorism, it had a major impact on our foreign relations concerning an important issue.

To establish that the LTTE was a terrorist organisation, the prosecution sought to adduce primary evidence of violent acts in Sri Lanka, such as suicide bombings, and then call experts to opine that the acts were attributable to the LTTE. The process posed significant problems for our criminal justice system. The accused had no personal knowledge of these highly prejudicial violent events, and yet the evidence was to be led against them in a trial before a jury.

Furthermore, the government of Sri Lanka was at war with the LTTE. Every witness from Sri Lanka was in some way engaged in that war on behalf of the government. No witness statement was provided without the express approval and authority of the Sri Lankan government. All the evidence was vetted by the Sri Lankan Solicitor General, who conferred with and coached the Sri Lankan witnesses. He then claimed legal professional privilege for his discussions (since he was a witness himself).

None of the normal safeguards for a police investigation in Australia were available. It was clear that not all relevant evidence had been brought forward, as the accused and their representatives could not safely travel to Sri Lanka to gather evidence or examine the evidence relied upon by the prosecution and no documents or records could be subpoenaed.

The legal process required an Australian jury to assess the complex workings of the Sri Lankan political situation, and then pass judgement on it. They were required to assess evidence about controversial events in Sri Lanka when they had none of the cultural background normally necessary for such judgements.

As it happens, the LTTE has been listed as a terrorist organisation in Australia – not by the Attorney-General but by the then Foreign Minister, Mr Downer. The United Nations has never listed the LTTE as terrorist, but did call for the freezing of the assets of terrorists. So, using legislation to give effect to UN resolutions (The Charter of the United Nations Act), Downer listed the LTTE as an organisation that should have its assets frozen. It then became a little-known offence, carrying five years imprisonment, to make an asset available to the LTTE. This much less serious alternative charge was added some months after the three Tamils were initially charged under the Criminal Code.

In the end, after months of legal manoeuvring, which all but bankrupted the accused men, the DPP dropped the most serious charges under the Criminal Code. The accused men pleaded guilty to these lesser charges, with the final outcome on 31 March 2010 - when they all received sentences which allowed them to walk free from court.

Last year, as the civil war came to an end, Sri Lankan government troops indiscriminately shelled hundreds of thousands of Tamil civilians trapped in a small area. On 18 May, Tamil leaders, seeking to prevent further bloodshed, arranged with international mediators that they would carry white flags and give themselves up. When they did so, they were murdered in cold blood.

In fact, throughout the war’s closing stages, Sri Lankan forces extrajudicially executed many surrendering Tamils. Film showing naked Tamils with their hands and feet bound behind them being shot dead by Sri Lankan troops has been declared genuine by Philip Alston, UN Special Rapporteur on extrajudicial, summary or arbitrary executions.

General Fonseka, then commander of the Sri Lankan armed forces (and failed aspirant for the nation’s presidency), has said that his troops were ordered to kill any Tiger leaders attempting to surrender. The orders came, he said, from Defence Secretary Gotabaya Rajapaksa – the brother of the current Sri Lankan president. Both Rajapaksa (who has US citizenship) and Fonseka (who has a US green card) are currently under investigation in the US for war crimes and genocide. Shortly after he lost the presidential election, Fonseka was arrested by Sri Lankan government forces.

Now that the decades-old civil war is over, hundreds of thousands of Tamils remain behind barbed wire in unsanitary concentration camps. Many risk perilous voyages to other countries – including Australia.

Not surprisingly, there is tension in Australia between the expatriate Tamil community and the expatriate Sinhalese community. Both sides consider themselves wronged and misunderstood. For the Australian legal system to take sides in a dispute like this inevitably exacerbates those tensions. Recently, ASIO has delivered adverse security assessments in relation to some Tamil refugees – presumably because they had links with the LTTE, although the process lacks the transparency it should have in a democracy. ASIO’s value judgement as to which side of a foreign conflict should be regarded as ‘terrorist’ should not prevent Australia fulfilling its obligations under the UN Refugee Convention.

The Tamil community here has been regularly raided by security personnel. They have generally come to Australia to escape the danger in their homeland at the hands of security personnel, and the trauma occasioned by these raids cannot be overstated. The Tamil community is also acutely conscious of the humanitarian crisis affecting their people in their homeland, and yet they are disempowered in relation to supplying aid themselves.

In the end, the anti-terrorism laws that we have passed, and the large agencies which have been staffed to enforce them, have resulted in Australia taking sides with war criminals and adding to the misery of a terrible humanitarian crisis.

We expect more than this from our governments.

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