By Ben Saul
The focus on offshore processing has overshadowed a quieter humanitarian crisis in Australia’s immigration detention centres. More than 50 refugees have been languishing in detention for between two and three years, after being refused visas on security grounds.
All were recognized by Australia as refugees, most after fleeing from the Sri Lankan Government – which indiscriminately butchered Tamil civilians during the civil war.
ASIO later summarily declared them to be security threats, without reasons or evidence, or any fair opportunity to test the case against them. Sri Lanka’s Ambassador admitted recently that Sri Lanka has even provided intelligence to Australia on Sri Lanka’s enemies.
Their detention is indefinite because, it is unsafe to return them to Sri Lanka, and no other country will accept them because, Australia says they are threats. Australia’s solution is simply to lock them up forever, without charge or trial. The High Court will decide today whether this is lawful. It previously found in the Al-Kateb case in 2004 that indefinite detention is permitted.
The human consequences of the legal black-hole are profoundly damaging. The expert medical consensus is that protracted detention inflicts or aggravates serious mental harm, including depression, post-traumatic stress, self-harm and even suicide.
Like other lawyers, I have watched helplessly as our clients have tried to kill themselves. One man drank bleach. Another overdosed. Yet, another tried to electrocute himself. Detention without end brings a numbing, spirit-crushing existence, a life without hope or purpose.
We have expert psychiatric reports stating that the detention of children severely impedes their development. One boy in Villawood is abnormally sad and anxious, cries a lot, and has trouble eating. A young girl is withdrawn and feels grief, loss and hopelessness. Another boy wets himself during the day. One child has spent his whole life of two years in detention. Their mother is distraught.
Our government is making refugees mentally ill, and abusing children. It has ignored the pleas of the Australian Medical Association, Australian Human Rights Commission, and the Ombudsman. Even the United Nations recently demanded that Australia protect their mental and physical health.
The Attorney-General wrote to me recently that the laws are necessary for security. The government is unmoved because of the toxic politics of border protection, public disinterest and its own lack of moral courage. The security agencies have the government’s ear and have misled it into terrible policy.
Denying refugees a fair hearing and indefinitely detaining them is not necessary to protect security. Other liberal democracies do it differently yet are no less safe.
Miscarriages of justice
In Britain, Europe, Canada, and New Zealand, laws allow people to know and test the case against them, but without disclosing sensitive information. That delicate balancing of interests is a sign of living in a fair society bound by the rule of law. It also makes those places safer because testing the evidence ensures that security decisions are correct and avoids miscarriages of justice.
In those democracies, too, indefinite detention is not permitted because it is seen to violate human rights. Liberty is precious, all the more so for refugees who have fled persecution by vicious governments. Instead, a range of alternatives is used to deal with security threats, from prosecution to surveillance, reporting to police and community residency orders.
We do not indefinitely detain Australians without trial. The very idea would shock most Australians, yet we casually allow it for foreigners. Our lack of empathy is striking.
One can well understand the instinct of law-makers and security agencies to do whatever is necessary to protect Australians from harm. Ensuring the security of its people is a basic duty of government, vital to its legitimacy and the stability of our democracy.
There is a world of evil out there – from death squads, torturers, and jihadists to fascist Breiviks and those committing genocide. Human rights lawyers know this. We are curiously enough on the same page. Democracies are locked in a struggle for humanity, even if threats are often exaggerated as existential when they are not.
But our (Australian) Government should only do what is necessary for security, and no more. National security cannot be allowed to stand on the shoulders of everything else, including the right not to die in a detention centre, or the right to know why the government claims you are a threat. Otherwise our hard-won liberties dissolve into the muck of doing whatever it takes.
Decent democracies do not tolerate indefinite detention without trial, based on secret evidence, merely because it is convenient, and whatever the human costs. Even ‘terrorists’ do not forfeit their humanity. The Australian approach is excessive, paranoid and extreme, and sacrifices everything else for a mirage of absolute security.
The struggle to bring our security agencies within the rule of law and to make them accountable for the vast powers they exercise over us has far to go. The current law does not make us safer. It does irreparable harm to those it indefinitely detains. It shames our government, demeans our democracy, and trumpets the poverty of our values.
It is time for the Parliament to bring ASIO’s shadow justice further into the sunlight – and quickly, before we kill any more refugees
(Ben Saul is Professor of International Law at The University of Sydney and a Barrister representing more than 50 refugees in a UN case against Australia)