|Human Rights and Australia-- is this still the land of the “fair go”?
by Irene Khan, Secretary General, Amnesty International
Canberra, 5 March 2002
Thank you for inviting me to speak to you today. This is my first visit to Australia, having taken up my assignment only six months ago and, perhaps more significantly, this is the first time that the Amnesty International Secretary General has come to Australia - to talk about human rights in Australia. But Amnesty is no stranger to Australia – our national section here is one of the oldest, having just celebrated its 40th anniversary. With over 40,000 members and supporters in Australia, it has an impressive record of human rights action in this country and abroad.
Over the next few days, I will meet AI members as well as other human rights activists, refugees and asylum seekers, indigenous groups, the media, parliamentarians and the government. I am looking forward particularly to International Women’s Day on March 8, here in Australia - home of the first state to give women the vote in 1894. But of course, not all women. Aboriginal women, as well as Aboriginal men, were denied formal equality in their civil and political rights until the second half of the twentieth century.
My main purpose during this visit is to encourage Australia to uphold human rights equally at home, as well as abroad.
Australia has a proud history of contribution to the international human rights regime, but that reputation is being tarnished in more recent times by its treatment of refugees, and by its reluctance to be scrutinised by the UN human rights bodies – bodies that it once helped to establish.
In 1948, Australia presided over the adoption of the Universal Declaration of Human Rights - the benchmark for all human rights standards. In subsequent years, Australians diplomats played an active role in drafting international human rights treaties and setting up the UN human rights machinery. More recently, the Australian government has supported human rights institution building in the Asia Pacific region. This is very important work for the long-term stability of the region as well as the protection of the people. But the Australian government cannot credibly advocate human rights elsewhere, if it fails to promote the same standards in its own country. It needs to re-examine its policies on refugees and asylum seekers, both because of its obligation to uphold human rights of these people, and also because these policies may actually undermine, rather than promote, Australia’s professed goals at home and abroad.
In a world reeling from the effects of the attacks of 11 September, the need to uphold human rights and humanitarian principles has never been greater. Human rights are not only the means of securing an individual’s rights, but are the basis for holding governments accountable to universally recognised standards of behaviour. At Amnesty International, we have all been deeply preoccupied by the way in which national security has become the predominant concern of many governments at the expense of human rights. This is of course not new – what is new is the enthusiasm with which liberal democracies as much as autocratic dictatorships have readily adopted draconian measures which erode fundamental freedoms.
In the UK, persons suspected of terrorism can be detained without charge or trial. In the USA, foreigners could be tried for terrorism by military tribunals which would not follow standards of fair trial. In some countries, terrorism is defined so broadly that it can be used to suppress legitimate political dissent. In Zimbabwe, journalists covering human rights violations against the opposition were labelled as terrorists. Most sadly, human rights violations by some countries are being brushed under the carpet - repression of Uighurs in China, abuse of human rights in Chechnya, arrest without trial of Islamic groups in Egypt. Amnesty would like the forthcoming UN Human Rights Commission to focus on Saudi Arabia – but we face an uphill battle against governments who are only to willing to ignore the performance of their allies in the “war against terrorism.
Amnesty’s challenge is to turn the debate about security and human rights on its head. Human rights are not an obstacle to building secure states or stable societies; they are actually the key to it. No country can be secure unless the people living in that country – women as well as men, girls as well as boys - feel that their human rights are equally secure from abuse by states as well as non-state actors.
Given that focus on human rights and terrorism, on Afghanistan and Guantanamo, what I am doing here? I am here because human rights are for the best of us and the worst of us, for the citizen as well as the non-citizen. Indeed, I would say that when we feel threatened (whether about our physical well-being or our social identity), that is precisely when we must make sure that the outsider among us, the foreigner does not suffer. It is all too easy to feed people’s fears that the threat comes from abroad, to create a climate of suspicion, mistrust, xenophobia, and racism. It is all too easy to confuse those fleeing terror with those who are suspected of causing terror – and, in that process, of curtailing the rights of refugees and asylum seekers. Who cares about a few foreigners being locked up if it will make us all feel safer, more secure!
Australian politicians speak of the human rights record of this country as “second to none”. This is a country, known for its hospitality to refugees, with a good track record of receiving around 12,000 refugees a year. But I am afraid, the image of Australia today is less of a carefree, sunburnt sporting nation, and more of the Tampa and its human cargo, of riots and protests at Woomera, of Australian- funded detention centres on the Pacific islands. From talk back radio to parliamentary discussion, detention of asylum seekers has dominated public fora. Indeed, it appears that the last national election was won on the back of the asylum issue.
Is it fair and lawful, humane and necessary for Australia to adopt a tough detention policy, to restrict the rights and privileges of refugees?
Many Australians that I have met feel that the mandatory detention of asylum seekers runs contrary to the notion of a “fair go”. There is nothing fair about locking up hundreds of children, women and men, without charge or review by a court, simply because they lack a visa – nothing fair especially when the vast majority of the people who are detained are later found to be genuine refugees, according to the Department of Immigration. There is nothing fair about labelling asylum seekers as “queue jumpers” when there is no queue they could have joined in the first place. There is nothing fair about playing on public fears to build a negative image of refugees – can doubly victimising them ever be fair?
Human rights activists, including Amnesty members, are concerned that the Australian policy of mandatory detention is contrary to international human rights. Freedom from arbitrary detention is enshrined in the Universal Declaration of Human Rights and codified in the International Covenant on Civil and Political Rights. The United Nations Human Rights Committee found Australia’s practice of detaining asylum seekers to be arbitrary and unlawful. Furthermore, the Convention on the Rights of the Child prohibits the detention of children, except as a last resort and for the shortest appropriate period of time. International guidelines on detention of asylum seekers, adopted by UNHCR’s Executive Committee of which Australia is a member, call for detention to be used only exceptionally, to be justified in each individual case, and to be subject to the safeguard of an independent review – Australia’s policy respects none of these criteria.
Deprivation of liberty is not just an assault on human rights. It is medically proven that prolonged detention, particularly when people are already traumatised by past persecution and do not know what the future holds for them, can lead to serious, irreparable physical and psychological damage. The Australian Human Right Commissioner, the Ombudsman, Parliamentary Committees and NGOs have repeatedly pointed to the sense of deep frustration and despair among asylum seekers in detention centres – the kind of hopelessness and helplessness which have driven people to sew their lips together, to try to kill themselves or to hurt others.
So what purpose does mandatory detention serve? It clearly does not act as a deterrent. Despite the existence of the policy of detention, the numbers of those arriving in Australia without visas rose in 2000 and 2001. Precisely because the government found that mandatory detention did not stop the asylum seekers, it decided to intercept and divert the boatloads elsewhere.
Because detention in itself has failed to reduce the number of asylum seekers, the Government has sought to deprive those detained of some rights and benefits, even after they have been recognised as refugees. People who arrive without visas, unlike other refugees in Australia, are given a temporary protection visa, which is subject to review every few years, which does not allow them to bring their family, or to travel for more than seven days at a time. They are left alone and uncertain, even though their case as a refugee may be just as valid as the others. In one tragic case, a man holding a temporary protection visa could not travel to Indonesia to attend the funeral of his wife who drowned while trying to reach Australia in a boat that capsized – because he would not have been allowed back. The deterrent value of TPV is uncertain. Its humanitarian value is open to question. Its legality might be open to challenge.
With a decade’s experience of mandatory detention, I believe the time is ripe for the government to take a serious look at alternatives to detention. Other countries, such as Sweden, have found successful community based solutions for families, women and children. The problems associated with the system of mandatory detention will not go away – on the contrary, they could worsen if more creative and constructive thinking does not emerge soon. Closing existing detention centres and opening new ones is not the way forward.
This is why the so-called Pacific Solution is unlikely to be much of a solution. Even though boat-arrivals have slowed, it is too early to tell if it will last. The Pacific solution does not appear to be sustainable in the long run. The Australian government has still not said what will happen to those who are being processed in the detention centres. Diverting boat loads of people to detention centres in Nauru and Papua New Guinea – in exchange for huge sums of money – perpetuates the very trafficking of human misery that the Australian Government claims it is seeking to prevent.
A refugee is a refugee because of the protection she needs, not because of the way in which she has entered a country. Having worked with refugees for more than twenty years, I have learned to admire their strength, courage and hope and the way they manage to survive, year after year, in bleak, miserable conditions in camps or squalid urban centres of countries like Pakistan, Iran, Jordan and Kenya. People smuggling is the inescapable consequence of the lack of effective protection and solution in the countries where refugees first arrive. There is too little resettlement to go around and return home is too dangerous. Should we hold refugees as hostage to a political situation that governments are unwilling or unable to resolve?
The real answer is for governments not to shirk refugee responsibilities but to share them. Australians know better than any one else that the Vietnamese and Cambodian refugee problems were solved because governments of the countries of origin, asylum and resettlement worked together in a positive spirit to share the responsibility of protecting refugees and find lasting solutions for them. A real solution to the Afghan refugee problem can be found also only when governments are ready to work on that basis, not rush unilaterally to returning people to a country which is still very fragile and dangerous.
I do not minimise the concern of the Australian government that human smuggling of asylum seekers undermines immigration control, and might, at least in the view of the Government, even overwhelm it. But in my experience, measures to stabilise refugee flows are only successful if they provide a meaningful alternative to refugees and protects their rights. By that simple test, it is clearly time to review Australian policies.
Australia has the sovereign right to protect its borders, but equally, it has the sovereign obligation to respect international law, including the human rights of citizens and non-citizens. It cannot pick and choose which rights it will apply, how and when. In recent years the Government has been reluctant to subject itself to international scrutiny. Two years ago, it ignored four UN reports on its human rights record, and announced a more selective engagement with UN human rights bodies. The “export” value of such statements – as much as its refugee policies - can be particularly unfortunate. How can Australia expect to continue to play a credible role in human rights diplomacy, or international relations generally, if it cannot accept the same criticism that it expects those bodies to level at other governments?
I am pleased that the Government has now agreed to allow the UN Working Group on Arbitrary Detention and a representative of the UN High Commissioner for Human Rights to visit the refugee detention centres. I would urge the Government to use international human rights standards, instruments and mechanisms as a framework for addressing these issues, and to see human rights experts and activists in Australia and abroad are its potential allies, not antagonists. Amnesty International and its members are committed to work with other human rights groups in this country and elsewhere to uphold human rights for all at all times.