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Manus riots confirm Australia as lawless enemy of fairness and liberty

Date

Ben Saul

Australia's detention of asylum seekers has again spiralled out of control, with riots on Manus Island following last year's on Nauru. The violence is an inevitable response to the cruel and illegal detention of desperate refugees. Detention has long been the norm in Australia too. But this week the Abbott government quietly confirmed its very worst form - indefinite detention of recognised refugees.

This week the Abbott government failed to release more than 50 refugees indefinitely detained - from Villawood in Sydney to Maribyrnong in Melbourne - because of ASIO security assessments, as requested by the United Nations. Most of them have been locked up without charge or court order for four to five years.

Last year the United Nation's highest human rights tribunal found that Australia was illegally detaining the refugees, denying them judicial protection and the right to know the case against them, and treating them in a cruel, inhuman and degrading manner.

The UN accepted that detention was making people mentally ill, destroying families and children, and was not necessary for security. Five of the refugees have even attempted suicide, by hanging, electrocution, poisoning, or cutting, too traumatised to go on. No one deserves to live like that, without hope, life ebbing away behind the razor wire.

In total the UN found around 150 violations of international law. These laws were not imposed by foreigners, but were freely accepted by Australia as a party to an international treaty.

In ignoring the UN deadline, the Abbott government has confirmed that it is a lawless enemy of liberty and fairness, in lock step with its Labor predecessor. Last week, both major parties also supported a bill to make ASIO security assessments even harder to challenge.

We should not release the refugees just because the UN says so, or we're breaking our promise to the world, or it damages our global reputation, or it signals to other countries that it's OK to violate human rights.

We should release the refugees because disappearing people into the black hole of indefinite detention without charge or evidence offends the basic Australian values of liberty, fairness and the rule of law. It also does immeasurable human harm to those who have a right, as refugees, to our protection.

Freedom from arbitrary detention by the state is fundamental to all other rights, democracy and the rule of law. Liberty has been part of our culture since the Magna Carta 800 years ago. It is a precious value shared by all conservatives and progressives who care to control state power.

Without it, the state can lock you up forever without reasons or protection by the courts. The courts become a hollow shell, powerless to control bureaucrats and politicians, or hold the state to account. The executive becomes omnipotent and above the law. ASIO becomes judge, jury and executioner. Bad decisions become untouchable. The rule of law vanishes.

Arbitrary, illegal detention is also unnecessary to make us safe. We know this because we do not indefinitely detain Australians who are suspected of being dangerous. Instead we prosecute them in a fair trial before an independent court. Or we put them under surveillance, or impose an anti-terrorism control order. There is no reason to treat refugees differently. Only Australia, and America at Guantanamo Bay, maintain indefinite detention without charge.

Other democracies also do not deny a fair hearing. Instead, they balance security concerns against basic fairness. State secrets are still protected, but a person is never left wondering what they might have done to deserve losing their freedom.

Our paranoid, security extremism is un-Australian. It is un-Australian to forever disappear fellow human beings into immigration gulags, hopeless places which destroy people's minds. It is un-Australian to damage refugee children and families and to treat the freedom of others as nothing.

Indefinite detention is the convenient solution of timid parliaments and governments too easily spooked by the ghost of national security, too spineless to stand for liberty and fairness, and too fearful to do what is right.

Why is our freedom-loving Attorney-General silent? Senator Brandis says he opposes a "narrow and selective" view of rights and wants to "restore balance". Why then, does he passionately defend the boutique freedom of an elite media columnist, Andrew Bolt, to denigrate Aborigines, but not condemn the more destructive harms of indefinite detention and inhuman treatment?

His inspiration, the liberal philosopher John Stuart Mill, would be turning in his grave at these laws. Why can other "decision-makers in the real world", as Senator Brandis regards himself, like the conservative British government, respect rights while protecting security, but he can't? Or isn't he genuine about reclaiming liberty for the Liberal Party? Why is a conservative government so against liberty and so in favour or arbitrary, absolute state power?

Indefinite detention is not wrong because of a treaty or the UN. It is wrong because it is alien to Australian values. Australia should be a place of liberty not gulags, fairness not faceless security officers, empathy not cruelty, and courage not fear. We are better than this.

Ben Saul is Professor of International Law at the University of Sydney, and represented 51 refugees in their UN cases.

48 comments

  • Well said, I agree absolutely. Imprisoning people without trial is the kind of thing we expect to go on in North Korea, not Australia. Everyone should have the right to know the charges against them and to mount a defence, if they wish. ASIO has been known to make mistakes. There is far too much secrecy around this issue and that of asylum seekers generally because the Abbott government is too lazy and cynical to concern itself with human rights.

    Commenter
    Mary Jane
    Location
    western Sydney
    Date and time
    February 19, 2014, 2:00PM
    • I agree people should be treated humanely. I also agree that the government does not seem to care about the refugee problem in its totality for example by cutting back foreign aid. That being said, I must submit that we cannot have a free for all on our borders which developed as a result of Labor/Green policies. The 20 - 40 million refugees are a global problem to which all countries must play their part. We cannot deny a share of the responsibility. The most needy must be looked after first and they are generally not the ones arriving by boat.

      Commenter
      Good Logic
      Date and time
      February 19, 2014, 3:30PM
  • Excellent piece, Ben. There's no doubt that they shouldn't be there at all - I'm sure you're well aware that:

    The UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948 article 14) states everyone has the right to seek and to enjoy in other countries asylum from persecution. This right may not be invoked. And the 1951 Refugee Convention prohibits states from imposing penalties on those entering ‘illegally.’

    Article 31 of the Refugee Convention prohibits states from imposing penalties on refugees who, when coming directly from a territory where their life or freedom was threatened, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and can show good cause for their illegal entry or presence.
    This Article recognises that refugees have a lawful right to enter a country for the purposes of seeking asylum, regardless of how they arrive or whether they hold valid travel or identity documents.

    Article 31 also prohibits states parties from restricting the freedom of movement of refugees who arrive without authorisation, with the exception of restrictions necessary for regularising their status.

    Source: http://www.refugeecouncil.org.au/f/who-conv.php

    Commenter
    Colby
    Date and time
    February 19, 2014, 2:02PM
    • So it flows, does it not, that once in Indonesia the danger has passed, and that State then becomes their sponsor. How can it be any other way?

      Commenter
      Paul
      Location
      Morayfield
      Date and time
      February 19, 2014, 4:16PM
    • Paul

      The Indons are not signatories to either the UN convention or the Charter of Human Rights, thats how it is so, therefore the Indons are under no obligation to "sponsor" anyone !

      Whereas we (Australia) do due to our links with the above agreements

      Commenter
      Buffalo Bill
      Location
      Sydneys Northshore
      Date and time
      February 19, 2014, 5:32PM
    • And, on principle, should we as Australians really be seeking ways to wriggle out of the responsibility rather than doing the right thing?

      Commenter
      lgrsydney
      Date and time
      February 19, 2014, 7:08PM
  • This latest event should be a wakeup call to the government to offer these people a one-way ticket back whence they came. I'm sure that would empty the detention centres quickly before there are more riots and deaths.

    Commenter
    RonalSo
    Location
    Canberra
    Date and time
    February 19, 2014, 2:11PM
    • It is going to be so much schadenfreude when the Libs lose the next election because of, among other things, immigration; just like Howard. People are going to rue their cruelty and, finally, we will be able to talk about immigration and refugees sensibly.

      One can hope that happens without the loss of more life, but its doubtful.

      Commenter
      DavidR
      Location
      Sydney
      Date and time
      February 19, 2014, 2:12PM
      • And if the Liberals lose the next election what will we get? more of the same, with Labor, whose refugee policy is almost a mirror of the other mob doing their best to appear to be tougher on the issue than the former.
        The only difference between the two is that they want to appear to make things more uncomfortable for refugees and one will try to outdo the other as far as meeting out inhuman treatment on these unfortunate people, many of whose plights are the direct consequence of this country's actions in their home countries making life there now untenable.

        Commenter
        Zjonn
        Date and time
        February 19, 2014, 3:12PM
    • Ben Saul is expressing a personal view here, and like most lawyers, is selectively quoting and referencing elements of the law to suit his own agenda. He is also using highly emotive language to further push his argument. But selective quoting of the law, and hysterics, does necessarily not make for a proven case (how many cases are overturned in various higher courts because smart lawyers swayed an argument inappropriately?)
      I believe that. Australia IS meeting its obligations. It is providing a safe refuge for those having their claims assessed (safe does not have to mean living in free housing within the community, but can be within a camp, which, in the case of Manus, CI and Nauru are considerably better than the vast majority of camps maintained by the UN and where people have for decades without hope). Manus was also safe until a group of detainees opted to arm themselves and start a rampage!
      On another point, he makes much of the illegal and arbitrary nature of the detention of those who have been found to be a threat during the ASIO threat review. I do not consider this arbitrary - it is based on a threat assessment by professionals who have no reason to just make it up. I personally also accept that in many cases the basis for that finding cannot be made public. I also note that in some legal case (Julian Knight in Melb comes to mind) it has been determined that the safety of the community demands that an individual be held indefinitely after he has completed his sentence). I assume Saul would also object to that.
      Emotional rhetoric aside, Saul is just arguing for open access to anyone who can pay to come here - I do not agree,

      Commenter
      Kym
      Location
      Canberra
      Date and time
      February 19, 2014, 2:16PM

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