- David Isaacs. Secrets and lies and bad morality: Australia’s policy on people seeking asylum
- Ravi. Poems from detention.
- John Menadue. The collapse of the Malaysian Arrangement has led to the depravity of Manus and Nauru.
- John Menadue. ‘We don’t have a revenue problem, we have a spending problem’.
- Stephen Duckett. Health in 2016: a cheat sheet on hospitals, Medicare and private health insurance.
- Frank Brennan SJ. High Court not the answer to Nauru depravity on
- Ian McPhee. Let’s talk about dying. on
- John Menadue. What has happened to the 11,990 Syrian refugees? on
- John Dwyer. ‘Health’ products and treatments that are often unproven and sometimes dangerous. on
- Ian McPhee. Let’s talk about dying. on
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The latest episode in the long, sorry saga of how badly we can treat people seeking asylum was played out in the High Court in February 2016. Long because the story started in 1992 when the Paul Keating Labor government introduced mandatory detention ‘as a temporary measure’ in reaction to a handful of people arriving in leaky boats from Cambodia. And I use the term ‘people seeking asylum’ advisedly, because the term ‘asylum seekers’ dehumanises the people and has been shown to cause Australians to switch off. The High Court found it is legal for the Government to send babies born in Australia and children and adults transferred to Australia for mental health and other problems back to Nauru. This decision was predictable because the Government passed retrospective legislation making it legal. As the human rights lawyer Daniel Webb put it so eloquently, the law is complex but the morality is simple. Bad Governments pass bad laws to allow them to do things that are morally wrong. I am a doctor not a lawyer, so I am not qualified to say at what point the High Court has a duty to make sure our Government does not exact really heinous legislation, but this is pretty bad. Excising Christmas Island from the mainland and sending people into detention centres on Nauru and Manus Island is our Guantanamo. These are ‘black sites’ where people can be severely mistreated under a veil of secrecy: out of sight and out of mind.
To argue that people are now free to come and go from the detention centre on Nauru is disingenuous. They are not safe if they leave the detention centre and they are not safe in the detention centre. Their visas to stay on Nauru are restricted to 5 years, so their future is as uncertain as ever. Nauru is their prison. Mr Dutton has stated that the hospital on Nauru is comparable to Australian hospitals. I did a clinic at the Republic of Nauru (RON) Hospital in December 2015 and it is far, far worse than any Australian hospital I ever visited. Furthermore, the staffing is as important as the facilities and the RON Hospital struggles for qualified staff. Of course, Mr Dutton will argue things have changed in the last year. Verifying the truth is impossible when the only journalist allowed in for years was a single Murdoch Press Government sympathiser and doctors who speak out risk two years in prison.
Ethics can be defined as ‘how we ought to behave’ and medical ethics as how health professionals ought to behave. I recently published a paper (available on request) in the Journal of Medical Ethics (http://jme.bmj.com/content/early/2015/12/20/medethics-2015-103066.abstract) in which I argue that prolonged immigration detention fulfils all the criteria for torture. I then argue that doctors and other health care professionals are conflicted: they have a duty to their patients to help them but they also have a duty not to condone torture. The US Central Intelligence Agency (CIA) argues to this day that water-boarding prisoners in Guantanamo and Abu Ghraib was not torture because the technique was devised by psychologists and supervised by doctors. The doctors would presumably argue that the water-boarding was going to happen anyway and they were ensuring the prisoners did not drown. Highly respected colleagues and lawyers have said to me “Nauru is not as bad as Guantanamo”. Is it not? Are we to have degrees of torture? There have been unconfirmed (probably unconfirmable) reports by a guard of water-boarding and ‘zipping’ being inflicted on people in immigration detention in Nauru (http://www.abc.net.au/news/2015-08-14/guard-tells-parliamentary-inquiry-asylum-seekers-tortured-nauru/6699162). Why would the guard lie? Mr Dutton denied it, but he would wouldn’t he.
The harms we are inflicting on adults to punish them for having the temerity to flee persecution in their homelands are immoral. We treat innocent adults worse than we do convicted criminals. But the public are more likely to sympathise with the argument that children are innocent victims. Gillian Triggs realised this, which is why her Forgotten Children enquiry is so powerful. Alison Light, in her wonderful book “Common people”, describes how the 19th century English workhouses were intended to punish men who did not want to work, but the biggest victims were women and children. I was struck by the parallels with immigration detention centres. I am proud that increasing numbers of paediatricians and paediatric nurses have decided to speak out against what is being done to children by our Government in our name. Alanna Maycock, Hasantha Gunasekera, Karen Zwi and Josh Francis have all risked imprisonment for telling the truth.
What should happen? The Government mantra, ‘We’ve stopped the boats’, means the immigration detention centres are redundant. Keeping people imprisoned can only be to deter other desperate people from seeking asylum. Europe, struggling with a far bigger immigrant problem, has not resorted to such vulgar deterrent policies, although extreme right wing European groups cite Australia as an example to follow. We should allow the derisory number of children to remain in Australia with their parents. We should close the detention centres on Nauru and Manus, which are not only immoral but hugely expensive (it costs over half a million dollars per year for each person kept on Nauru). Mr Turnbull committed his Government to a tough stance on border control. If that stance includes continuing to torture innocent people we should hang our heads in shame.
Professor David Isaacs is Senior Staff Specialist, Department of Infectious Diseases and Microbiology and Clinical Professor of Paediatric Infectious Diseases at the University of Sydney. He works at the Children’s Hospital at Westmead.
My pen and paper
I walk a deep sadness path with my loneliness. This emptiness makes me slow.
I fall to my knees and cry out loudly.
Tears knock silently at my eyes.
I can’t find anyone to share my pain with so I make friends with my pen and paper. I share with them all my pain.
They cry with me.
The paper becomes wet with their tears.
Feelings of Loneliness
I am alone
And this is what alone is:
To be nothing
To have nothing
To hurt so badly
Aching not only in your heart
But in every cell of your body.
I am ignored,
as a completely uncared for orphan.
because they’ve all gone.
I was left behind
with no one to walk with.
Oh how I want them back! With no friend to see or hear my agony I cry.
With all possibility of hope
sorrow moves in to love me.
After travelling to Australia from Sri Lanka by boat, Ravi was detained in Nauru Regional Processing Centre and Melbourne Immigration Transit Accommodation for over three years. He is now living in the community and has published a collection of his poems written from within our detention centre system.
John Menadue. The collapse of the Malaysian Arrangement has led to the depravity of Manus and Nauru.
Having done its best in Opposition to wreck the Malaysian Arrangement in 2011, the Turnbull government is now seeking the help of Malaysia over detainees in Manus and Nauru. For political cynicism, this is hard to beat.
In May 2011, the Australian and Malaysian governments announced an ‘in principle’ arrangement that up to 800 boat arrivals would be transferred from Australia to Malaysia for their asylum claims to be heard. In response Australia would be prepared to accept 4,000 refugees from Malaysia. The arrangement with Malaysia was signed on 25 July 2011. The UN High Commissioner for Refugees gave it qualified support. At that period, boat arrivals were running at four to six per month.
The Gillard government introduced legislation to give effect to the arrangement with Malaysia which was necessary as a result of a High Court decision on the transfer of people. That legislation was bitterly opposed by the Coalition and others in an evenly divided House of Representatives. The legislation failed in September 2011 when boats were running at only four in the month.
In this opposition to the Malaysian arrangement, the Coalition was actively supported by the Greens and some key NGOs. The Greens and the NGOs wanted more than was on the table and finished with nothing – or something worse – Manus and Nauru. NGOs need to be politically astute and consider government’s responsibilities on security, economy and society. Or as Gough Whitlam put it pungently in another context. ‘Only the impotent are pure’.
Failure to pass the legislation to implement the Malaysian Arrangement opened the door for people smugglers to really get to work. As a result of the failure of the Malaysian Arrangement, boat arrivals rose from about four or five a month to 48 in July 2013. Tony Abbott and Scott Morrison were not interested in stopping the boats. Their political objective was to stop Labor stopping the boats.
Having helped defeat the legislation in the parliament, Tony Abbott and Scott Morrison seized every opportunity to bash Malaysia’s human rights record and ‘canings’.
But now we find that despite this history, the Turnbull government is now discussing with Malaysia ways to resolve the Manus/Nauru mess, a situation which no-one believes is sustainable. Consistent with what I have heard in the region, Laura Tingle in the AFR on February 4, 2016, said
‘Now it emerges that we are once again talking to Malaysia – the country with whom the Labor government was doing a deal … which was supposedly so abhorrent to the Coalition and the cause of human decency. ‘
We have gone cap in hand to the Cambodian government and paid it over $50 million to resettle four refugees from Manus/Nauru. Our government has also been in discussions with the Philippines and Kyrgyzstan but without success. Now the government is talking again to Malaysia which Tony Abbott and Scott Morrison reviled in 2011.
Tony Abbott helped to keep the door open for people smugglers by successfully but unscrupulously contributing to the defeat the Malaysian Arrangement.
The Malaysian Arrangement was not ideal, but it would have significantly helped manage the flow of desperate people. It would also have been a building block for a regional framework which is necessary to manage displaced people in our region.
I will be writing further about the importance of this regional framework.
The result of the failure of the Malaysian Arrangement is the depravity of Manus and Nauru. Political cynicism has been exposed but at great cost to very vulnerable people.
We have become a pariah in our treatment of asylum seekers.Even if we are stuck with Manus and Nauru for a while yet, there is no excuse for the Australian Government allowing detainees being treated so inhumanely.
Treasurer Scott Morrison has been expounding the above philosophy of his for months. But he couldn’t be more wrong. Unfortunately the Secretary of Treasury has now followed up with nonsense that Australia should have a ceiling of 25% of GDP on government spending (I assume he is referring to Commonwealth Government spending).
Michael Pascoe (Michael Pascoe on Page 21 of February 03, 2016 issue of Sydney Morning Herald) nailed the ideological clamour and suggestion that lower levels of government spending result in improved economic performance and that Australia has a high level of government spending that should be reduced.
In the article, Pascoe says ‘What can be clearly shown is that there is no correlation between relatively low government spending and the very best possible credit rating.’ Pascoe produces the latest figures from the ‘right wing’ Heritage Foundations 2016 Economic Freedom Index, which compiles all government spending – federal, state and local. This article points out that Australian Government spending is running at 35.6% of GDP. He adds that almost all countries with AAA status from Standard and Poor’s, Moody’s and Fitch, have higher government spending as a proportion of GDP than Australia: Australia 35.6%, Canada 40.7%, Denmark 57.1%, Germany 44.3%, Hong Kong 17.6%, Luxembourg 43.6%, Netherlands 46.8%, Norway 44%, Singapore 18.2%, Sweden 53.2%, Switzerland 33.5%.
These figures make it clear that high levels of government spending do not necessarily result in poor economic performance. Pascoe concludes ‘It turns out that having markedly higher government spending isn’t so necessarily disastrous after all.’
In a submission to the Senate Select Committee into the Abbott Government’s Commission of Audit, Jennifer Doggett, Ian McAuley and I contend that the problem is not that government expenditures or that the public sector is large in Australia compared with other countries. We contend that the problem is a short-fall of revenue and that on international comparison, our tax revenues are low.
In our summary to the Committee we say …
The Commission of Audit’s brief is based on assumptions that Australia is burdened with “big government” and that taxes are an impediment to business investment and workforce participation.
There is no evidence for either assumption. The trend in Commonwealth expenditure has been downwards since the mid 1980s, falling from a peak of around 28 percent of GDP to a range of 24 to 26 percent of GDP in recent years. In comparison with similar prosperous countries Australia has one of the smallest public sectors.
The problem a body such as the Commission should address is our inadequate tax base, which is the main reason the Commonwealth has had a structural deficit for most of this century. We aren’t collecting enough revenue to fund the public services needed if the economy is to thrive.
We should not shy away from raising taxes. Evidence from international comparisons and from surveys on competitiveness suggests that reasonable levels of tax do not impede countries’ economic performance. In fact, countries which compete on the basis of low taxes do so to compensate for competitive weaknesses, such as inadequate infrastructure and poor standards of education – in other words impoverished public sectors.
Such evidence, however, seems hard to convey to those gripped by a zeal to cut spending and taxes. Even in a “small government”/low-tax country like Australia it is possible to find areas where private funding and provision of services can displace public funding and provision.
But such displacement is usually at high economic cost, simply to achieve an arbitrary fiscal objective. There is no point in reducing taxes if the private costs are greater than the saving in taxes, with no improvement (and in many cases a deterioration) in the services provided. We illustrate this in the case of health care funding. This is an area of significant public outlay and where, because of ongoing growth in demand, there are voices – often the voices of self-interest – calling for a shift from public to private insurance. Such a shift would be costly on all economic criteria – technical efficiency, allocative efficiency and equity.
The rushed and secretive processes of the Commission are not the path to good public policy. There may be areas where a change in the public/private mix is justified on economic grounds, but these are not one-way towards the private sector as implied in the Commission’s brief. Because we already have a small public sector it is likely that a proper process, with research and consultation, would find a need for a net expansion of Australia’s public sector. By shutting off that possibility those who drafted the Commission’s brief are imposing a constraint which may be contrary to the community’s wishes and sound economics.
The full submission to the Senate Select Committee can be found by going to my website. Click on ‘John Menadue Web Site’ top left of this blog page.
We start 2016 as we started 2015 – with big challenges for the health system and uncertainty as to how governments will meet them.
The health care headaches in 2016 are, in fact, the same ones we faced a decade ago, albeit different in severity and symptoms. They include population growth, ageing and the rise of chronic disease; inequality in access to care and health outcomes; technological change (the good, the bad and the expensive) and the seemingly inexorable rise in health costs.
Circling for landing are three major reviews on private health insurance, primary care, and low-value care. Their recommendations, and the government’s response to them, are very much up in the air.
Adding to the uncertainty is the broader review of federalism and its consequences for public hospital funding, along with speculation around the 2016 federal election date and what each party’s Santa sack of election promises might contain.
Private health insurance
The number of people with private health insurance continues to creep up but the market is not in good shape.
The rebate is one of the fastest growing areas of government health expenditure and complaints about the product abound. High levels of coverage are being achieved throughcarrots (the rebate) and sticks (penalties for the uninsured) rather than genuine consumer appeal.
One solution being floated is for the whole subsidy framework to be thrown out. Instead of subsidising private insurers, which pay private hospitals, the government could subsidise private hospitals directly.
Government advisers are impressed by the efficiency gains that activity-based funding (paying hospitals per procedure rather than a lump sum) brought to public hospitals and believe similar improvement can be brought to the private sector.
The mechanism to achieve this could be a Hospital Benefits Schedule which, like the Medicare Benefits Schedule, would prescribe a schedule fee for private hospital care, based on existing Commonwealth payments for public hospital services under activity-based funding. The same schedule may later be used for public hospitals, replacing grants to the states.
However, it will only be politically palatable if it is cost neutral for consumers or comes with reduced private health insurance sticks.
The devil is in the detail of a new policy such as this. Will payment be to the hospital or surgeon? Will it cover the surgeon’s fee, as in public hospitals? Will it cover diagnostics? Without this information it is impossible to forecast the impact of the shift.
This will be a challenging year for public hospitals. Major reductions in Commonwealth funding for hospital admissions – which continue to grow – will kick in from 2017, and states are likely to start the belt-tightening early.
The cuts far exceed the productivity gains that can be made, so a reduction in services is certainly possible. Efficiency may be improved somewhat by the ongoing expansion of activity-based funding to mental health and “sub-acute” care such as rehabilitation and palliative care.
The possible changes to private health insurance and a Hospital Benefits Schedule may be one way to put money from the federal government back into the system, but there is no sign that Treasurer Scott Morrison is keen to loosen the purse strings.
Hospitals will also be under pressure to lift quality. Hospitals face increasingly stringent “quality standards” with tougher monitoring covering a broader scope of issues, including access and timeliness.
Meanwhile, the increasing array of publicly available data is putting variation in hospital performance under the spotlight more and more, with commensurate calls for greater accountability.
Two independent reviews of Medicare are expected to land sometime in 2016.
The first examines primary care. It could address any number of challenges, including chronic disease management, “six-minute medicine”, co-payments, frozen rebates, and the growing corporatisation of general practice.
Management of chronic diseases such as diabetes, heart disease and cancer poses the main challenge. The rise of chronic disease is imposing big costs on a system that wasn’t designed to provide the complex, continuous and coordinated care now needed.
The government will have to consider far-reaching reform with only limited and equivocal evidence to draw on. Options on the table include a shift in the balance of payments to practices, with less emphasis on payment for attendances (fee-for-service) and more emphasis on payment for care over the episode of illness or year (capitation payments).
There may be other changes in payment structures. The government’s long-standing desire to reduce perceived incentives for six-minute medicine may see a minimum consultation time imposed on the standard (level B) fee.
If sense prevails we won’t see a resurrection of the GP co-payment policy zombie. We should, however, see an end to the freeze on medical rebates; the only question being when and with what trade-offs.
A further issue to be addressed is the shift toward practices owned by corporate chains that profit from referrals to and provision of diagnostic services, such as blood tests and X-rays. The implications of changed ownership structures for practice are not at the forefront of practice payment redesign but should be.
The second review looks at quality and cost-effectiveness of items on the Medicare schedule. The review got off to a rocky start with wild claims about 30% waste in the system, and release of its first list of items targeted for delisting in the sleepy period between Christmas and New Year.
The work on modernising the schedule will come to fruition in 2016. There will be individual and group losers in this process who undoubtedly will scream loudly with varying levels of effectiveness.
What should you expect?
It isn’t yet clear whether Health Minister Sussan Ley’s appetite for reviews portends massive reform to the sector, or simply a politically judicious preference for treading water in a portfolio still reeling from tumultuous management by her predecessor. However, the auguries are good for the former.
The scene for change has been set, at least with the medical profession. Respectable leaders are engaged and leading some of the review processes. Hopefully this will be the year the health system rises to meet the big challenges of 21st-century health care.
Director, Health Program, Grattan Institute. This article first appeared in The Conversation on February 1, 2016.
The other night I watched a DVD of Foreign Correspondent, Alfred Hitchcock’s wonderful thriller about a newspaperman on the trail of a secret spy ring. Nostalgic as I am for the glory days of print journalism, I love the moment when the paper’s editor yells from his desk: “Hold the front page!” You don’t hear that any more. Films about newspapers – those who own them and those who work for them – tend to be either very funny or very serious.
And a surprising number are cinema classics. Lewis Milestone’s The Front Page was one of the wittiest comedies of the thirties. In Citizen Kane (still considered by many the best film ever made), Orson Welles brilliantly captured the power-hungry paranoia of his ambitious media baron. And two years after Richard Nixon resigned, Hollywood gave us All the President’s Men, recounting one of the great feats of modern investigative journalism – the unmasking of the Watergate scandal by two dogged reporters from the Washington Post. The film collected four Oscars and set a benchmark for the genre.
Tom McCarthy’s Spotlight (rated M, on general release) is in the same exalted company. It’s gripping, it’s sordid, and it’s desperately sad. In 2001, four journalists from the Boston Globe were assigned by their paper’s newly-appointed editor to investigate allegations against a defrocked priest, John Geoghan, accused of molesting more than 80 boys in Massachusetts. After months of work, the Spotlight team – as they were known – uncovered a pattern of rampant sexual abuse within the Church and a systematic cover-up by senior prelates. It’s a familiar story. A closing title for Spotlight lists scores of cities around the world where similar evidence of abuse has been revealed. And here in Australia, thanks to Julia Gillard, a seemingly endless royal commission continues to enliven evening news bulletins with reports of sleaze and depravity in holy places, though in fairness it must be stressed that the horrors aren’t limited to the Catholic Church. Other religious denominations, high-profile schools, sporting bodies, the armed services – all have endured their share of ignominy. Our latest prime-time penitent was the hapless Peter Hollingworth, former governor-general and archbishop of Brisbane. making a ritual mea culpa for the TV cameras.
With a screenplay by McCarthy and Josh Singer, Spotlight is little more than a series of conversations. There’s nothing you’d call action – except, perhaps, when some character or other breaks into a run while crossing the newsroom floor. That’s as fast as things get. All is slow, plodding, painstaking – and wholly engrossing – much, as I imagine, like the investigation itself. And what a frustrating business that must have been – with every possible difficulty encountered along the way – legal constraints, reluctant witnesses, ecclesiastical obstruction, privacy laws, confidentiality agreements, the Massachusetts statute of limitations (“That was years ago – these victims were kids!”), not to mention timidity and vacillation in the upper reaches of the Globe’s editorial hierarchy. No one wanted to take on the power and prestige of the church, especially in a city where 54 percent of the population (and no doubt a majority of Globe readers) were Catholic.
In Spotlight, the Peter Hollingworth character – or dare I say, the George Pell character – is Cardinal Bernard Law (Len Cariou), head of the Boston archdiocese. There’s a telling early scene when Law is in intimate conversation with the Globe’s editor Marty Baron (Liev Schreiber), newly arrived from the Miami Herald. Baron has gone to the rectory to brief the cardinal on the Globe’s inquiries, and Law’s reaction – not surprisingly – is to urge caution in the interests of Boston’s good name and reputation. “The city flourishes,” says Law, “when its great institutions work together” – in other words, when church and press collude in keeping things quiet. Baron politely disagrees. There are higher values than civic harmony – truth and justice among them. Challenging entrenched authority and tradition is never easy, but the Globe will stick to its guns.
There’s an excellent cast at work here, even if everyone seems a bit downbeat, oddly colourless and subdued. There are no charismatic heroes in Spotlight, no dynamic crusaders, no star turns – just a bunch of hard-working, preoccupied journos doing their job – hitting phones, pouring over ancient church files and library records, searching through press cuttings and door-stopping interviewees while juggling pens and notebooks ( surely there were miniature recording devices in 2001). And everyone looks a bit scruffy. But it rings true. Years ago, when I started as a journalist on the Sydney Morning Herald, reporters were required to wear suits and ties and beards were verboten. Not on the Globe. To complicate things, everyone on the Spotlight team seems to have a Catholic background, including Robbie, the team leader (Michael Keaton), who is very much a part of Boston’s Catholic establishment. Working with him are Mike Rezendes (Mark Ruffalo), Sacha Pfeiffer (Rachel McAdams) and Matt Carroll (Byron D’Arcy James), all bothered by mixed feelings and divided loyalties.
In a telling scene, an ex-priest, door-stopped at his home, readily and calmly admits to having abused boys, but insists that “I got no pleasure from it.” It’s an odd form of self-absolution. Audiences, I suspect, will get little pleasure from Spotlight, a shocking and angry film and a unique combination of detective thriller and modern morality tale. It is hard to know which is the greater calamity – the evil of paedophile clergy or the existential tragedy now engulfing the Catholic Church, if not the whole of Christendom. Perhaps, in the end, all great institutions survive. As Cardinal Law wryly observes: “The Church deals in centuries.” But what if it doesn’t survive? Can we imagine the headline,” Pope Quits And Shuts Down Vatican”? Hold the front page!
Evan Williams has reviewed films in The Australian newspaper for 33 years. He is a Life Member of the Film Critics’ Circle of Australia for services to film criticism and the film industry.In 2015 he received the Geraldine Pascal Lifetime Achievement Award for critical writing.
In the SMH on February 5, 2016, columnist Waleed Aly says ‘The history of asylum seeker policy in Australia will be remembered as a story of how successive governments legislated their lies to justify a world of make-believe borders and imaginary compliance.’
See link to article below:
The moral depravity of Australian funded and orchestrated holding of asylum seekers, including children, on Nauru and Manus Island is to continue.
On Wednesday the High Court made clear that it is in no position to question the retrospective law passed by the Commonwealth Parliament on 30 June 2015 authorising the Australian Government to do whatever it takes to assist countries like Nauru with the detention of asylum seekers sent there by Australia as of 18 August 2012.
The court ruled by six to one that offshore detention and processing of asylum seekers was valid according to this law authorising the Australian government to enter into agreements with other governments and contracts with corporations to provide ‘garrison and welfare services’ in offshore regional processing centres such as Nauru and Manus Island.
The sole dissentient was the newest judge, Justice Gordon.
The case arose out of a claim by a Bangladeshi woman (categorised as an ‘unauthorised maritime arrival’ or ‘UMA’) who had been intercepted on 19 October 2013 on a boat headed for Australia seeking asylum. She was transferred to Christmas Island the next day. Three months later she was transferred to Nauru where she was held in detention at a refugee-processing centre for over six months.
Because of medical complications with her pregnancy which could not be treated adequately on Nauru, she was transferred temporarily back to Australia where she gave birth to her child on 16 December 2014. Not relishing the thought of taking her baby to the hellish conditions of Nauruan detention, she applied to the High Court questioning the legal validity of the offshore detention and processing regime.
The Commonwealth’s lawyers obviously thought she had an arguable case. On 30 June 2015, the Commonwealth Parliament enacted the Migration Amendment (Regional Processing Arrangements) Act 2015 (Cth), which inserted s 198AHA into the Migration Act, with retrospective effect to 18 August 2012. This law authorised the government to take any action or ‘make payments, or cause payments to be made, in relation to the arrangement or the regional processing functions’ in other countries.
Presumably the Nauruan government lawyers and political advisers also thought there might be some problems. On 2 October 2015, just days before the High Court hearing, the Government of Nauru announced its intention ‘to allow for freedom of movement of asylum seekers 24 hours per day, seven days per week’ from 5 October 2015 and to introduce legislation to that effect at the next sitting of the Nauruan Parliament. The High Court was duly informed of these developments.
It is fair to say that prior to October 2015, the Commonwealth expected Nauru to detain these people, and with that expectation being realised was prepared to remunerate Nauru very handsomely, with retrospective parliamentary endorsement.
With the air of unreality reserved to the highest courts (and perhaps some religious authorities) three of the judges observed that ‘the Commonwealth could not compel or authorise Nauru to make or enforce the laws which required that the plaintiff be detained’ and thus the Commonwealth was not legally responsible for the detention.
These three majority judges did concede some limit to Commonwealth complicity in Australian funded detention of asylum seekers by another country: ‘If the regional processing country imposes a detention regime as a condition of the acceptance of UMAs removed from Australia, the Commonwealth may only participate in that regime if, and for so long as, it serves the purpose of processing.’
Another of the majority judges, Justice Keane, said ‘the plaintiff’s submission that regional processing is punitive because it is designed to have a deterrent effect on the movement of asylum seekers must be rejected. A deterrent effect may be an intended consequence of the operation of regional processing arrangements, but the immediate purpose of s 198AHA is the facilitation of the removal of unauthorised maritime arrivals from Australia.’
I daresay none of these judicial niceties will bring much comfort to the Bangladeshi mum who might feel that her baby is being punished by being taken to Nauru where both of them could remain for up to ten years should they be found to be refugees, pending resettlement in Cambodia or any other participating third country.
If the Australian Constitution contained provisions similar to the human rights protections contained in the Nauruan Constitution, the High Court may have been able to offer some relief. But the High Court made clear that the detention of asylum seekers on Nauru was detention by the Nauruan government authorised by the Nauruan parliament, and thus it would be a matter for the Nauruan courts to determine if such executive action and legislative authorisation were constitutional.
The Nauruan Constitution, unlike the Australian Constitution, sets strict limits on the government’s and the parliament’s power to detain persons and to deprive them of their liberty. Australia just happens to fund and facilitate the arrangements authorised by the Nauruan government and parliament, whether or not those arrangements are constitutionally valid.
Justice Gageler rightly observed: ‘Their detention at the Regional Processing Centre has been under the authority of Nauruan legislation, the validity of which under the Constitution of Nauru is controversial.’
Justice Gageler, our strongest civil libertarian judge (having been the Commonwealth Solicitor-General during some of the more difficult years of Australian asylum policy), considered that ‘the plaintiff’s central claim (that the Commonwealth and the Minister acted beyond the executive power of the Commonwealth by procuring and enforcing her detention at the Regional Processing Centre between 24 March 2014 and 2 August 2014) to have been well-founded until 30 June 2015, when s 198AHA was inserted with retrospective effect’.
If returned to Nauru, presumably the plaintiff and her baby will no longer be detained, given Nauru’s newfound commitment to liberty for asylum seekers transferred from Australia. That then raises the fundamental political and moral question: why do we still want to transfer people like this (including babies) to countries like Nauru, Manus Island and Cambodia?
Just after Malcolm Turnbull became prime minister, I wrote to him and Opposition Leader Bill Shorten suggesting a bipartisan announcement at the opening of parliament this year. I suggested that each address the Parliament reconfirming their commitment to stopping the boats and turning back those who are not in direct flight from persecution in Indonesia. I urged the announcement of an agreed date for the closure of the facilities on Nauru and Manus Island.
I conceded that immediate closure of these facilities might allow unscrupulous people smugglers to ply their trade again with the message to asylum seekers in Indonesia that the appointment of a new Australian Prime Minister warranted renewed attempts at gaining access to Australia. I wrote, ‘But after an appropriate delay, you could negate that possibility and you could close these facilities without any risk of asylum seekers thinking that Australia was once again a possible boat destination.’
Neither Turnbull nor Shorten was interested, repeating the mantras about preventing people smuggling, saving lives at sea and maintaining the integrity of Australia’s borders. But all this can be done without sending this mum and her baby to Nauru. We’re now told it can be done without actually detaining anyone on Nauru.
In the past, we were solemnly assured that it was necessary to detain these people in order to send a message to other asylum seekers waiting in Indonesia. The boats have stopped. They will stay stopped. Any boats that try to get here will be turned back provided only there can be the assurance that no one on board is in direct flight from persecution in Indonesia.
The people smugglers and their prospective clients now know that people are no longer held in detention on Nauru. It is no longer the hellish or uncertain conditions (with or without detention) on Nauru that deters people from getting on boats. It is the vigilance of our intelligence and military personnel which does that. The door is locked.
All major political parties are agreed on the need to stop the boats. The heads of the Australian defence force are now confident that the boats have stopped and that any future boats will be stopped or turned back. This is a very different situation from four years ago.
When Prime Minister Gillard failed to have her Malaysia solution implemented, she set up an expert panel chaired by Air Chief Marshall Houston. In August 2012, the Houston panel told the government that ‘the conditions required for effective, lawful and safe turnbacks of irregular vessels headed for Australia with asylum seekers on board are not currently met in regard to turnbacks to Indonesia’.
So they looked for other short-term measures. Having studied Prime Minister Howard’s 2001 Pacific solution, the panel concluded that ‘in the short term, the establishment of processing facilities in Nauru as soon as practical is a necessary circuit breaker to the current surge in irregular migration to Australia’. Four years on, the Houston assessment of turnbacks would appear to be outdated and there is no longer a need for a circuit breaker. There is no surge; the boats have stopped.
Before becoming Prime Minister, Turnbull insisted that our treatment of asylum seekers on Nauru and Manus Island was ‘harsh, but not cruel’. Now that there is no purpose to be served by maintaining the facilities on Nauru and Manus Island, the treatment of those persons is cruel as well as harsh.
A prompt resolution of the matter is required unless Australia is to be left with a legacy of shame which will be sure to be disclosed at a future royal commission with plaintive cries from our past leaders and retired public servants: ‘We didn’t know the trauma caused to children and others fleeing persecution by being placed in such uncertain, isolated hell holes.’
There is no joy to be found in our High Court applying a Constitution even more bereft of human rights protections than the Nauruan Constitution. It’s time for our politicians to address the political and moral question: what purpose is actually served by sending this mum and her baby back to Nauru, given that the boats have stopped and will stay stopped regardless of where we now place this mother and child and others like them?
It’s time to walk and chew gum at the same time. It’s not an either/or proposition. There is no longer any need for a circuit breaker. The circuit is permanently cut. We can prevent people smuggling, save lives at sea, maintain the integrity of our borders and deal decently with the residual caseload of asylum seekers including this mother and her child.
Frank Brennan SJ is professor of law at Australian Catholic University and Adjunct Professor at the Australian Centre for Christianity and Culture. This article was first published in Eureka Street on 3 February 2016.
After telling us for months that Australia would not take additional Syrian refugees, Tony Abbott announced on September 9 last year that the government had ‘agreed to settle 12,000 Syrian refugees … one of the world’s largest (intakes) to date’. We were told that the first refugees would arrive by Christmas and the 12,000 by June 2016. State governments, community groups and churches then geared up to respond.
But to date, after five months, only about ten Syrian refugees have arrived.
We should contrast our performance with the generous and efficient response of the Canadians. The Canadian government website reveals that at the 31 January 2016, 15,157 Syrian refugees had landed in Canada since November 4. That number of arrivals was made up of 8,767 government-assisted refugees, 1,049 blended Visa-Office-Referred refugees and 5,341 privately sponsored refugees. By the end of January 165 Canadian communities had welcomed Syrian refugees. There had been 57 government organised flights.
In Canada, at the 31st December 2015 there were 13,881 applications in progress, with 6,381 applications finalised but the refugees had not yet travelled to Canada.
For this generous and efficient response the Canadians put us to shame. Why? I suggest there are several reasons.
The first and most important reason is the political leadership and will of the new Canadian Prime Minister Justin Trudeau. What a contrast with Abbott, Morrison, Dutton and now Turnbull.
The second is that our ‘Immigration’ Department has been changed dramatically and is no longer adequately equipped to handle a movement such as this with expedition and efficiency. Senior and experienced people with expertise in the area have left the department. The ‘settlement’ function which has been so critical for managing newcomers to Australia has been transferred out of the Department of Immigration to the Department of Social Services. Furthermore, just as our foreign policy has become securitized, so our refugee and immigration programs have been overwhelmed by border control and border protection. We even have a military style Operation Sovereign Borders. The Department is not really involved in nation-building any more. It is about border control and we saw an example of this in the Melbourne fiasco late last year. Once upon a time Australia had a well-managed ability to move people quickly who are in need of resettlement. Ministers Scott Morrison and Peter Dutton have participated in the crippling of that ability.
The third and a more specific problem is the delay in the large backlog of cases that are waiting ASIO checking. This is despite the fact that ASIO in recent years has received a substantial increase in personnel and other resources. Checking is necessary but the fear of foreigners that has been promoted by ministers has effectively thrown the weight of effort into control rather than a humanitarian response. There are always risks in the speedy movement of large numbers of desperate people but in the past we have been able to manage that efficiently – and reasonably quickly. And the lesson of terrorism in France and elsewhere in recent months is that it is mostly young people born to earlier arrivals rather than new refugees that have turned to terrorism.
Canada has shown us a better way to help Syrian people in great need. The Canadian Government web site puts it this way. ‘Resettling refugees is a proud and important part of Canada’s humanitarian tradition. It reflects our commitment to Canadians and demonstrates to the world that we have a shared responsibility to help people who are displaced and persecuted.’
In Australia we also used to have that humanitarian tradition of shared responsibility to help people who are displaced and persecuted. The Coalition and the ALP are trashing our proud tradition.
We should make amends by increasing our Syrian intake to 25 000 and really applying ourselves to the job. The Canadians have shown us the way.