From Tampa to Alvarez

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Recent immigration policy in Australia

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.

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