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Submission to the National Inquiry into Children in Immigration Detention from
(Fr) Frank Brennan SJ AO
Letter
to Mr Philip Ruddock MP 31/01/2002
Letter to Mr Philip Ruddock MP 22/02/2002
Letter to Mr Philip Ruddock MP 21/03/2002
Letter to Mr Philip Ruddock MP 03/04/2002
Letter to Mr Philip Ruddock MP 29/04/2002
Letter to Mr Philip Ruddock MP 06/05/2002
Letter to Mr Philip Ruddock MP 09/06/2002
Mr Philip Ruddock
MP
Minister for Immigration and Multicultural and Indigenous Affairs
Parliament House
Canberra
ACT 2600
[Fax number removed]
This month I have returned from my 15 month appointment as Director of the Jesuit Refugee Service in East Timor. Yesterday I attended the Woomera detention facility at the invitation of various persons who are clients of [name removed]. At the request of those persons, I then spoke to the media to explain what I saw and what I heard in my visit to the centre. I also had the benefit of discussions with three members of your Immigration Detention Advisory Group (IDAG) - [names removed]. Today I spoke to [the chief of staff] from your office. I intend to respond to the invitation from inmates at the detention centre to return regularly. I hope to be able to attend for one week each month over the next three months. I will be in Canberra the week commencing February 12 and would appreciate the opportunity to meet with you or your advisers.
Though an opponent of the bipartisan detention policy, I have no interest in agitating for a reversal of that policy so soon after an election which has given the government a resounding mandate for the continuation of the policy which was first instituted by your predecessors Mr Gerry Hand and Senator Nick Bolkus. But I, like many church and community leaders do have an interest in ensuring that any detention policy is applied in the most humane, transparent and non-capricious manner possible.
I have been out of the country these last 15 months so I do not claim to be across all the complex discussions that have occurred about the Woomera facility. I am anxious to spell out what I have seen and heard this last 24 hours so that you and your officers might be more readily assisted in assessing the perceptions of the inmates at Woomera and the complaints which they make to members of the Australian community.
You will appreciate that I have no interest in demonising you, the Prime Minister or any of your officers. It is essential that citizens of good will co-operate with government in seeking a better outcome especially for all the children and those adults who are bona fide refugees being held in detention for periods far longer than previously intended by government, and through no fault of their own.
I think it would be useful if I set down an account of what I heard and saw, then providing some personal reflections. Having been out of the country for so long, I was better positioned to put the blunt question to inmates, including delegates: "Why do people sew their lips? Why are you on hunger strike? Did any adult sew the lips of children?"
The visit of the IDAG group was significant not because any final outcome was negotiated but because people who have been in despair thought that for the first time in many months there were officials with the mantle of government authority who were prepared to listen to them, and to acknowledge the legitimacy of their grievances about delays and perceived unfairness in the processes of their claims. Also these officials acknowledged some of the extraordinary anomalies that have occurred in the administration of the government policy in the wake of the events of 11 September.
For five months, these people have suffered further protracted detention through no fault of their own. During this time the Afghans have had no contact with family members back home during the blanket bombing of their country. Your letter of January 18 left them with the perception that they were to be abandoned in the Australian desert with no timeframe for the processing of their claims. They thought they were going to have to rot in Woomera until the situation in Afghanistan was sorted out. The majority of the Afghan inmates are Hazaras who have no expectation that the situation back home will be sorted out. They have long been persecuted as an ethnic minority and they will continue to be persecuted no matter what promises are made government to government.
Since September 11, inmates of all three nationalities have been told that it is no longer an option to go to third countries even if they have visas for countries such as Syria, because the Australian authorities cannot provide transport. DIMA officials have told them that their only option has been to return home. There are 16 persons who have had enough and want to go home. Some of them have been in detention for 2 years. But even they have had to wait another three months in detention unable to return home.
There are persons who have been waiting up to nine months for an answer after their third interview with DIMA officers. There are persons who have been granted a TPV by the RRT but they have been waiting up to five months for a police check during which time they have endured undignified, intrusive, unreviewable interrogation by security police (ASIO) who claim the authority to provide information from the applicant's "green book" to the security police back home who may well have an interest in misrepresenting the applicant as a criminal so that the applicant is returned to face persecution and even death. Applicants claim that their "green book" is available on the Internet and therefore accessible to security police back home who will punish persons for their claims of earlier persecution.
There are more than 48 women and children in the facility whose husbands and fathers are now lawfully residing in Australia and they are despairing that the children have to suffer further detention in such an isolated place when they could be with their fathers. Even when families are being released into the community, one of their number has to remain in detention.
There are many complaints about translators and the reliance on language experts who study transcript highlighting supposed inconsistencies of linguistic usage which are then relied upon to question an applicant's credibility. In the limited time available to me, I could not get across the detail of all these concerns about translators and language experts. But as I understand, the Hazaras have been particularly concerned that their translators are often their traditional ethnic enemies whose speech patterns are markedly different. That is why it was very important that IDAG promised to provide five Hazaraghi interpreters once you had resumed the processing of claims. The inmates believe that IDAG has guaranteed that proper language experts will be provided for all applications including Federal Court appeals and that all language objections from DIMA which have not been responded to will be cancelled.
Though there has been much media talk about the proposed closure of Woomera, I understand that the IDAG discussions with the delegates and hunger strikers focused more on the need for fair and prompt processing of applications. Given the delays since September 11, people who have finished their third interview are now entitled to a prompt response. To my surprise, people understand IDAG to have represented that those who completed their interviews more than six months ago will now not be rejected in their applications. They also believe that those whose applications were accepted by the RRT more than six months ago will now receive a TPV. IDAG has agreed to use their good offices with you to urge your use of the s.417 power to issue visas to the Afghans still in detention. You will understand that I am communicating to you what I have been told is the people's understanding of what IDAG has communicated to them. I have not attempted to verify any of these matters with IDAG members.
Since September 11, the Iraqis and Iranians as well as the Afghans have felt a tightening of control in the facility and an abandonment by government of their claims. "If you wanted to see a psychologist, there is no point in asking - unless you cut yourself." "If you have no money but you need to call home, there is no point in asking - unless you cut yourself". Access between compounds has been restricted. There has been a divide and rule approach by management. Even IDAG met only with the Afghans and not with the Iranians and Iraqis. People are being labelled as criminals and treated as criminals.
Your IDAG members were the first persons wearing the government mantle who were perceived to be listening and understanding after months of silence, absence, delay, and public abuse of these people as criminals during an emotive election campaign. In his public statements these last 24 hours, [one IDAG member] has acknowledged that the majority of Hazara inmates fear persecution back home no matter who is in government. They want fair, quick and transparent determinations because they are confident that any fair-minded person would accept that they are refugees.
Though I believe the blanket detention policy and the Pacific solution are morally reprehensible, that is a matter for another day given that I live in a democracy where that is not the prevailing public opinion nor the moral assessment of our lawmakers. Given that detention is an integral component of the government's present border protection policy, it is essential that the time delays, uncertainties, and psychological trauma exacerbated by the events of September 11 and the federal election now be put behind us as quickly as possible. Because of those events, every inmate in Woomera (including the bona fide refugees) will have spent an additional five months in detention - five months of despairing isolation which drove people to sew their lips so that they might be heard. They have now been heard. Surely it is time for government and the community to respond with a renewed commitment to a determination process which is "fair, just, economical, informal and quick". Now that the election is over, surely it is time for government and all major political parties to concede that asylum seekers are not criminals and that their detention should not be any more dehumanising, isolating or remote than the detention imposed upon convicted criminals.
It will not be too long before protracted detention of children in the heated isolation of Woomera will be seen to be a moral obscenity especially when some of them have fathers living in Sydney and Melbourne, happy to resume their parenting responsibility. If the media were allowed inside the one kilometre fence to show ordinary Australians the sight of women with little children behind razor wire in the middle of the desert, many (like [an IDAG member] and myself) would surmise that there must be a better way. Incidentally, all persons assured me that no adult sewed the lips of any child. Children themselves sewed their lips. Given that the adults responsible for those children, especially those government officials in loco parentis, are unlikely to be held accountable for the harm suffered by those children, there is even more reason for their release into the community where their parents or responsible community groups could assume that responsibility.
I look forward to further constructive dialogue so that this dark episode in Australia's history might be put behind us as quickly as possible, subject to the legitimate constraints of a democratically endorsed border protection policy. By post, I will also provide a copy of my recent address to the national conference of Supreme and Federal Court judges. I will provide a copy of this letter to [name removed], President of the Australian Catholic Bishops' Conference. Should any of your staff want to contact me urgently, my mobile phone number is [number removed].
Yours sincerely,
(Fr) Frank Brennan SJ AO
cc. [President, Australian Catholic Bishops' Conference]
Mr Philip Ruddock
MP
Minister for Immigration and Multicultural and Indigenous Affairs
Parliament House
Canberra
ACT 2600
[Fax number removed]
Thank you for our meeting of 13 February 2002 and the assurance from yourself and your officers that we can work co-operatively in seeking a more humane outcome for those who are held in immigration detention. I have just completed my most recent visit to the Woomera IRPC. The Afghani delegates were very pleased to receive yesterday's assurance from [your chief of staff] that the Afghanistan government representatives would visit only the handful of Afghani detainees in Port Hedland who are wanting to return home. We are ad idem that the human rights and dignity of detainees must be maintained.
As in my previous letter of 31 January 2002, I will set out the major matters of concern from my visit this past week with some suggested policy options. I have maintained contact with IDAG through [name removed] and had useful discussions with [the Woomera Department Manager] from your department.
This week, the centre was more routine than at the time of my first visit during the closing stages of the hunger strike on 30 January 2002 though there were several reports of recent attempted hangings. When leaving on Tuesday, I was approached by three boys speaking through the razor wire, demonstrating their cuts which they had inflicted to attract attention and to press their demands. I am told this mimicking of self-harm by children is now a real problem, with many adults being convinced that self-harm is still the pre-condition for being heard. I was told about one 11 year old boy who had attempted to hang himself this week "because his father lives here in Australia".
Some delegates are now wondering why the "camp" is still so closed with minimal exchanges possible between the various compounds now that everyone has completed their "third interview". In the past, detainees could move more freely between the compounds. Now they can make only one two-hour visit each week. It is gratifying that there are no unaccompanied minors remaining at Woomera. I heard favourable reports of the alternative detention regime for women and children in the Woomera housing complex. Once security and health checks are complete, I trust you will soon be able to effect the reunion of all families who have at least one member lawfully living in the Australian community. Everyone knows that families with small children are unlikely to abscond and escape detection by the authorities.
Bridging Visas for the Afghanis
There are about 150 Afghan detainees in the Woomera IRPC who have not yet received primary decisions in relation to their applications for protection visas. Each of them has now been in detention for more than six months since they applied for their visa. There are 3 or 4 persons who have been waiting more than nine months for a primary decision. Whereas your officers indicated at our recent meeting that only 29% of all detainees are yet to obtain a primary decision, 151/231 of the Afghani Woomera detainees were still awaiting a primary decision on 13 February 2002. Given the uncertainty and change in Afghanistan since 11 September 2001, it is unlikely that credible adverse decisions could be made against those who establish that they are Afghan nationals (as distinct from Pakistanis), and this would be especially so in the case of those who are Hazara.
Under s 72(1)(c), you have power to determine that such persons are eligible non-citizens who would then be eligible for a bridging visa of some description. I appreciate that it is unlikely that you would exercise this power immediately, given the government's attempts to sell the financial incentive solution to Afghan nationals who may want to abandon their applications for protection in Australia.
Given that it will be a long time before non-detention countries and UNHCR start processing Afghan claims, it would be in the public interest that bridging visas be granted once Afghanis are held in detention longer than other applicants or once there is no prospect of their applications being credibly processed within a reasonable timeframe. Afterall, sustained detention when there is a suspension of visa processing through no fault of the applicants is not in the public interest. In the absence of judicial review or warrant, such sustained detention could even be unlawful.
Afghanis whose applications have been rejected by the RRT
Those Afghanis who have been rejected by the RRT, some of whom have been in detention now for two years, are not eligible for a bridging visa. It may be possible for you to consider substituting the RRT decision with a decision more favourable to the applicants, granting a protection visa or some other class of visa. I appreciate that in exercising your discretion under s.417, you are bound by other provisions of the Act including s.36 which stipulates that "a criterion" for the grant of a protection visa is your view that the applicant is entitled to invoke Australia's protection obligations under the convention. It may be arguable that this is not the only criterion for a protection visa. Of course, you are also at liberty to grant any other class of visa without the need for the applicant to submit the prescribed forms. You have used s.417 in rare circumstances for humanitarian reasons when an applicant is in need of protection or humanitarian assistance even though he or she is not strictly found to be a refugee.
Another option would be the grant of a special category visa created by regulation under section 32. If the situation in Afghanistan remains intractably unstable, there may be a need for a special category visa for those awaiting determination of their refugee claims or for those deserving special humanitarian assistance once their refugee protection claims have been rejected. It is unlikely that you will be able forcibly to return any detainees to Afghanistan in the foreseeable future. Having been party to the bombing of their country, we do have some humanitarian obligations to those who are here and fear returning at this time.
There may be a need to reopen some cases in light of the changed circumstances in Afghanistan (pursuant to s.48B). I have heard some detainees say that their claim to persecution by the Taliban was the most pressing claim some months ago but that they now have a well founded fear of persecution by the new government linked to warlords.
Palestinians and Iraqis whose applications have been rejected by the RRT
There are some detainees who having exhausted all appeals from a primary decision and are still in detention because the government is unable to return them home in safety or to remove them to a third country. The four Palestinians in this situation wrote to you yesterday. Such persons should no longer be held in immigration detention. Their ongoing protracted detention is unrelated to the processing of claims or to the preparation for removal or deportation from Australia. Except for a constitutional challenge to their detention, they have no recourse to the courts. And they can be released from detention only if you grant them a visa of some description. Once again you could consider substituting the decision of the RRT (under s.417) or issue a special category visa. The only other option would be more humane detention in a less isolated place unless and until they can return home in safety.
There would still be the problem of the nine Iranians who have now been in detention for more than two years at Woomera. They have no intention of returning home and are trapped by the inaccessibility of any third country since the events of September 11. We all now face the problem since September 11 that there are some detainees who are forced to remain in detention because they are unable to go to any third country.
Since returning to Australia, I have noted your comments to the Australian Anglican Synod on 27 July 2001:
Detention is not punitive nor meant as a deterrent. But it is essential that unauthorised arrivals are not allowed to enter the community until we are able to establish their identity and that they do not constitute a security and health risk.
Detention ensures that they are available for processing any claims to remain in Australia and that importantly they are available for quick removal should they have no right to remain.
The situation for people who overstay their visa is fundamentally different. We know who they are and have already assessed that they do not constitute a danger to the Australian community.
..
Nobody is forced to remain in detention. Detainees can choose to leave detention by leaving Australia. They can go wherever they wish to any country where they have, or can obtain, the right to enter, and we will do our best to facilitate that."
I have also noted your recent comment in Medical Journal of Australia (21 January 2002, Vol 176, No 2, p.85): "Detention is not arbitrary. It is humane and is not designed to be punitive."
I presume your comments about deterrence and the non-punitive intent of the detention are related to the constitutional doubts about the validity of legislation authorising administrative detention of persons without access to the courts (now confirmed by the privative clause) when their detention is neither relevant nor incidental to the processing of their claims and when the detention is neither relevant nor incidental to their removal or deportation in the foreseeable future. But I note your remarks to the Parliament on 19 February 2002 (Hansard p291):
Late last year, ...we were able to pass certain laws which strengthened our territorial integrity. This strategy has been successful in deterring potential illegal immigrants from making their way to Australia.
In light of the present government's detention policy, you could well argue that you were acting in the public interest by creating a special class of visa permitting release of those persons whose ongoing detention would undermine the constitutionality of the mandatory detention regime and seriously call into question the claims that detention is neither punitive nor meant to be a deterrent.
You will have noted the Afghani delegates' statement to the Prime Minister on 19 February 2002:
Might we take this opportunity to assure you that no adult person in this Centre sewed the lips of any child. We hope you will have the opportunity to set right the record on this matter which has offended our dignity very greatly.
I will maintain contact with your office and with IDAG. I will return to Woomera on 25 March 2002. Thanks again for your continued openness to dialogue on these difficult issues.
Yours sincerely,
(Fr) Frank Brennan SJ AO
cc. [President], Australian Catholic Bishops Conference
Mr Philip Ruddock
MP
Minister for Immigration and Multicultural and Indigenous Affairs
Parliament House
Canberra
ACT 2600
[Fax number removed]
On 11 March 2002, I provided your office with a draft of the paper I am using during our present national speaking tour on "Australia's refugee policy - facts, needs, limits". On 15 March 2002 I advised that I was also making public comment about the Pacific solution in the following terms:
The Pacific solution will need to be abandoned quickly, not so much because it is morally reprehensible and diplomatically gross but because it is economically unsustainable once the Australian taxpayer appreciates the cost and because it prostitutes the constitutional integrity of small Pacific island countries. The constitutions of PNG and Nauru both contain bills of rights which set clear limits on the use of detention and on the requirement for free access to legal assistance. Being constitutional guarantees, these restrictions cannot legally be negated with a cheque book approach. These restrictions cannot be removed by national parliamentary legislation nor by executive government policy nor by bilateral government negotiations. For as long as we pursue the Pacific solution, our government in our name is engaged in illegal people trading.
Yesterday, your Chief of Staff, [name removed] kindly offered the following clarification:
Asylum seekers on Nauru and Manus are NOT detained. IOM do not run and manage detention centres. There is a fence around the compound but it is single strand in most cases and ringlock in others.
You may wish to consider this detention - however it most clearly is not, either technically or practically. Hence neither we, nor the Nauruan and PNG governments are in breach of constitutional law. However I do understand that our particular frame of reference will determine our perception of these issues.
At the very least, I hope you will understand the ease with which citizens like myself could be mistaken for thinking that asylum seekers on Nauru and Manus ARE detained. Afterall DIMIA's own Fact Sheet No 76 Offshore Processing Arrangements states: that "at 31 December 2001, 1118 unauthorised arrivals were detained at Nauru" and that "Currently 216 people are detained at Manus Island."
You will recall that Ms Julia Gillard, the Shadow Minister for Immigration, accompanied you on a visit to the Pacific facilities in February. Writing on page 1 of the Sunday Age, 10 February 2002, she described the "detention facility" and "detention centre" in each place. She received no correction from you or your office. She confirmed to me last night that the asylum seekers are kept in detention. The major national newspapers have continued to publish maps and statistics of the persons held in detention in Australia and in the Pacific facilities. No correction has ever been issued.
I have not had the opportunity to visit these facilities in the Pacific. But I note that Bishop Ambrose Kiapseni, Bishop of Kavieng, issued a statement on 13 March 2002 regarding the asylum seekers at Lombrum Base, Manus Province. He asks:
Why are we keeping people innocent of any wrongdoing in PNG behind barbed wire? Is it because our neighbour and benefactor has asked us to do this thing? Shouldn't our own laws in our own country take precedence over requests from our neighbours?
Are the men, women and children we are imprisoning to be seen, now, as a commodity, to be sold back to Australia for the value of the improvements at Manus? Is this good?
Despite the correction offered from your office, I will continue to describe the situation at Nauru and Manus as one of "detention" which is contrary to the constitutions of both countries. I suggest it is time to seek formal legal advice from the Australian Government Solicitor and the Attorney General on a number of legal and constitutional matters:
Are asylum seekers in Nauru and PNG being detained?
Is their detention contrary to section 5 of the Nauru and section 42 of the PNG constitution respectively?
If not, are those lawfully in detention being accorded their procedural constitutional rights most exhaustively stated in s.42(2) of the PNG Constitution:
A person who is arrested or detained-
shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and
shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and
shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained, and shall be informed immediately on his arrest or detention of his rights under this subsection.
You will appreciate that there are also other constitutional questions to be addressed here in Australia regarding ongoing detention of those who cannot be returned home or to a third country and of those whose claims to refugee status cannot be processed in a reasonable time. In view of the High Court's stipulations in Chu Kheng Lim And Others v The Minister For Immigration, Local Government And Ethnic Affairs And Another, could I also suggest that formal legal advice be obtained on the following questions:
For what length of time might government lawfully hold a person in migration detention without judicial review or warrant once all appeals have been exhausted and when it is not possible for government to deport the person or remove the person to a third country?
For what length of time might government lawfully hold a person in migration detention without judicial review or warrant when there is no realistic prospect of processing a claim for a visa because of the uncertainty and change in the situation of the applicant's country of nationality?
The first question is germane especially for the Iraqis and Palestinians still held in detention despite the exhaustion of their appeals. You will appreciate that, especially since September 11, it is not possible in their case to make the claim as you did to the Australian Anglican Synod on 27 July 2001:
Detention is not punitive nor meant as a deterrent. But it is essential that unauthorised arrivals are not allowed to enter the community until we are able to establish their identity and that they do not constitute a security and health risk.
Detention ensures that they are available for processing any claims to remain in Australia and that importantly they are available for quick removal should they have no right to remain.
The situation for people who overstay their visa is fundamentally different. We know who they are and have already assessed that they do not constitute a danger to the Australian community.
..
Nobody is forced to remain in detention. Detainees can choose to leave detention by leaving Australia. They can go wherever they wish to any country where they have, or can obtain, the right to enter, and we will do our best to facilitate that.
The second question is germane to the applicants from Afghanistan as well as some applicants from Iraq. I appreciate there has been an increased output of determinations since late January. As of 19 March 2002, I understand there are still 85 Afghans at Woomera who have been waiting more than six months for a primary decision and 85 Iraqis awaiting a primary decision after seven months. It is very troubling to learn that part the delay in the processing of their claims has been caused by the introduction of "quality assurance" checks in your department.
I will return to Woomera next week and will write again at that time. I hope there will be the opportunity for us to meet again in April. Meanwhile I am grateful to your office for the assurance that the "many other inaccuracies in (my) speech" will be dealt with "more formally in a letter in due course". Today and tomorrow I will continue to express public dissatisfaction with the government claim that asylum seekers subject to the Pacific solution are not being detained.
Yours sincerely,
Frank Brennan SJ
Mr Philip Ruddock
MP
Minister for Immigration and Multicultural and Indigenous Affairs
Parliament House
Canberra
ACT 2600
[Fax number removed]
Since I last wrote on 21 March 2002, I have completed my national speaking tour and my third visit to Woomera. I had the opportunity to spend over a week at Woomera though access to the centre was denied on the Saturday, Sunday and Monday. I was conducting a church service for Good Friday in the Oscar compound when the "break-out, break-in" occurred. I then spent the next couple of hours in company with Christians and Sabean Mendeans from other compounds who were unable to return to their accommodations.
I had the opportunity to speak with the three-member Opposition parliamentary delegation of Ms Julia Gillard, Senator Rosemary Crowley and Mr Leo McLeay who visited the Woomera IRPC last Thursday. Also I met with [a senior officer] from your department and [a representative] of ACM. I have had ongoing discussions with [name removed], your Woomera manager and [name removed], the Centre Manager from ACM.
My protracted presence in the centre last Friday night brought a number of issues into sharp relief for me. No doubt, there will be many reviews and complaints about the actions of all the various actors on either side of the fence that night. I am prepared to assume and to state publicly that all authorities including ACM, DIMIA, APS and the South Australian police were acting as best they could and in good faith. Throughout the week I was impressed by the professionalism and commitment of the senior ACM and DIMIA management. No matter what the professionalism and commitment of senior management, I think the regime at Woomera is fraught with ongoing problems which are insuperable and which are wreaking havoc with the lives not only of detainees but also of those charged with the supervision of their detention and processing.
I spent two hours with men, women and children who had come from church and who were unable to return to their accommodation and unable to find sanctuary in an alternative compound because they were threatened by another detainee disturbed by their religious practices. That detainee was finally apprehended by half a dozen ACM officers in full riot gear backed by a water cannon truck which had been moved into position. Meanwhile two other detainees were on the roof threatening self-harm exacerbating a situation of mass hysteria. Children in my midst were highly traumatised. One child remonstrated with his mother saying he should attack an ACM officer because that is the only way that you get a visa! Yesterday I learnt that these church goers had suffered the same fate as other detainees having their clothing and property strewn about by ACM officers presumably searching for contraband, while they were then held in the compound mess overnight with no possibility of sleep. I understand one five-year-old child was abandoned in one compound that night as the mother and other siblings had escaped. Yesterday, I met a mother with her seven-year-old son. She was adamant that she would not attempt escape on the Friday evening but she wanted to exercise her rights and show the protesters and the media that there were women and young children being held behind razor wire. The young boy carries bruises on his left knee and right ankle from the baton blow he received last Friday. Children whose parents had no interest in escaping were hit by tear gas and witnessed scenes of extraordinary violence.
In such a situation, ACM is expected to apply all force necessary to detain those intent on escape while respecting the rights and dignity of those, including children, who are patiently awaiting migration decisions from your officers in Canberra. This is an impossible task. Let me highlight some of the structural problems which are insuperable no matter what the training and cultural sensitivity of ACM staff. These problems are further exacerbated by your remarks about the South Australian police.
At times such as last Friday night, the Woomera IRPC is like a Commonwealth privatised prison. In the past the Commonwealth has not been in the business of running prisons. The detainees, including the children, are entitled to a range of services which in Australia are usually provided only by State governments and not by the Commonwealth. You will recall the Commonwealth standoff with Sir Joh Bjelke Petersen in 1978 over the management of the Aboriginal reserves in Cape York. In the end, Prime Minister Fraser was stymied because the Commonwealth was unable to deliver the basic community services such as police, health, education, local government and child protection. An institution such as the Woomera IRPC cannot be conducted with due regard for the rights and dignity of detainees unless there is coordinated service delivery by Commonwealth and State officials. Having imputed political motivations to the South Australian police and their superiors when APS was caught flatfooted, you have jeopardised the prospect of non-partisan co-operation in the delivery of welfare and security services to detainees in a remote part of South Australia.
The detention regime at Woomera is no longer, if it ever was, designed primarily to facilitate the processing of migration claims and the removal or deportation of persons from Australia. Last Friday night, it had all the hallmarks of a prison. The treatment of all detainees since then with the withdrawal of privileges and the punitive and indiscriminate soiling of clothes and other possessions highlight the problem. In an ordinary prison, you can institute a regime of rewards and punishments. At Woomera, you cannot. People's eligibility for a visa and the length of their detention is completely unrelated to their good or bad behaviour in detention. The bad behaviour of a minority of detainees is sure to test the patience and judgement of ACM officers especially at times of great tension and sleep deprivation.
You are now running a detention centre with a remnant caseload of detainees who understandably are getting more restless. Last year, there were up to 1,500 detainees. Now it is almost down to 300. As you have rightly pointed out, all but one of those who escaped and who have not returned to detention were persons who had already been rejected as refugees. Because of the post-September-11 situation, you have an increasing caseload of rejected applicants who remain in indeterminate detention because you cannot move them to any other country and you cannot send them home. Of course, these persons will get restless and take any opportunity to escape. And of course they will become more of a disciplinary problem in your detention centre. They have nothing to lose and nothing to gain. And as I have written previously, there are good grounds for thinking that their detention without judicial warrant or supervision is unconstitutional. It is worth noting that the unreturned escapees are in no way representative of the large remaining Afghan and Iraqi caseload almost half of whom are yet to receive a primary decision after more than seven months detention.
I had several meetings this past week with the three Palestinians who have now written to you again. In the last month, they have become more restless because each of them has family, including children, in the Gaza Strip. Your officials can offer them no advice or assistance except for the assurance that they will be released from detention when they can be taken to another country. Meanwhile, in detention in Woomera they are completely isolated and unable to help their families. Over some days, I assisted them in the preparation of their letter to you where they have written:
[A]re we to presume (given the present situation in Palestine and the predicament of stateless Palestinians elsewhere seeking a place to live) that we are to stay in Australian detention without a court order or review for the term of our natural lives? Can you give us any indication when we might be allowed to go free? Even criminals have the right to know. Please help us. We are desperate to leave Woomera. Each of us has family members living in the Gaza Strip where the situation is presently very dangerous. We want to be released quickly so we can help our families, especially our children who are living in war conditions at this time. While your government keeps us locked up and tells us there is no solution for us, our children are at risk. Let us go free so we can perform our duties as parents.
During this past week, I have come to appreciate more the enormous strain under which ACM staff and your own officers are working at Woomera. Your policy has now resulted in tear gas and baton being applied, even if it be unwittingly, to children as young as five years. The "state" being their protector and their warder, this is now properly classified as institutional child abuse. Your policy is also resulting in oppressive work conditions for staff. The legal federal framework for maintaining law and order and for delivering basic services in the centre is as flimsy as the security fences that were breached on Friday. As the detention population at Woomera declines, the mix of disaffected "rejectees" and patient applicants awaiting a decision will get worse. Your recent comments regarding the South Australian police will not improve federal-state relations with the delivery of services especially when your policy is resulting in proven child abuse. The discrimination suffered by the 50 or more Sabean Mendeans will increase unchecked. My three hours in the detention centre on the evening of Good Friday convinced me that it was time to put the message to you very plainly despite its public unpopularity and despite your government's immunity to moral outrage: "Minister, this is no place for kids." When children end up in the sterile zone against the razor wire with tear gas and batons around them in Australia, it is time for all parties including the Commonwealth government to stop blaming others and to effect policy changes so that it can never happen again.
With the post copy of this letter, I will enclose a copy of the April issue of Eureka Street which carries the published version of my speech from the national speaking tour. I noted your remarks on ABC Radio on 22 March 2002 when you dropped the March 20 defence that asylum seekers are not detained on Manus Island or on Nauru and when you expressed reservations about my giving gratuitous advice to Pacific countries about the interpretation of their Constitutions. You will appreciate that I have no interest in offering advice to other countries unless that advice be sought. As an Australian citizen and lawyer, I am anxious that my government abide by the constitutional provisions of other governments when a breach would work an interference with the rights, liberties or dignity of persons invoking the protection obligations of my government. Once again might I express my gratitude to your office for the assurance that the "many other inaccuracies in (my) speech" will be dealt with "more formally in a letter in due course". I hope we will have the opportunity to meet again during my forthcoming month in Canberra commencing on April 8.
Yours sincerely,
(Fr) Frank Brennan SJ AO
cc. [President], Australian Catholic Bishops Conference
Mr Philip Ruddock
MP
Minister for Immigration and Multicultural and Indigenous Affairs
Parliament House
Canberra
ACT 2600
[Fax number removed]
Thank you for your letter of 11 April 2002 and for the assurance that "the Government has been well advised in developing its policies" in relation to the Pacific solution. Having viewed the ABC Foreign Correspondent program on 17 April 2002, I continue to express the view that the asylum seekers on Manus Island are being deprived of their liberty contrary to the PNG Constitution and without the provision of legal services or information about same in accordance with the PNG Constitution.
I look forward to our scheduled meeting on 5 June when we might have the opportunity to canvass the many matters raised in my correspondence since we last met on 13 February 2002. Meanwhile there may be a more urgent need to clarify some misunderstandings which have occurred since Mr Stewart Foster, your Director of Public Affairs has made public statements first on your department web site (between April 18 and April 24) and then in the Canberra Times on April 25. I had cause to respond publicly on the ABC Lateline program on April 26 and in the Canberra Times today.
On 18 April 2002, the Canberra Times carried a report of a presentation I had made in Brisbane at Parliament House for the launch of the Uniting Church's social justice centre. The paper accurately reported my observations from my visit to Woomera over the Easter period: "I saw children who had been hit by tear gas. I met a seven-year-old boy with bruises to the left knee and right ankle from a baton blow." These remarks were consistent with what I wrote to you on 3 April 2002. You will recall that I had also reported to you: "I understand one five-year-old child was abandoned in one compound that night as the mother and other siblings had escaped." I also gave details of the trauma suffered by children unable to return to their accommodations after the Good Friday church service.
As has been customary since we met on 13 February 2002, I had emailed copies of my letter to your Chief of Staff, [name removed], the Assistant Secretary for Unauthorised Arrivals and Detention Services Branch, [name removed] and the Assistant Secretary for Onshore Protection, [name removed], all of whom had attended our meeting on 13 February. Also I had emailed a copy to [name removed], your departmental manager at Woomera. Having heard nothing from you nor from any of them, you can imagine my surprise when I discovered the following letter from [the Department's Director of Public Affairs] on your government's website on 22 April 2002:
Contrary to Father Frank Brennan's claims in the media (PM just like Sir Joh, says advocate, 18 April, p2) this Department has no record of injuries to a 7-year-old sustained during the disturbance at the Woomera detention facility on Good Friday.
In fact, the only reported injuries to detainees were to adults - all with minor injuries. The most serious injuries were to 17 ACM officers who sustained injuries ranging from bruising from thrown missiles to lacerations inflicted from a detainee armed with a razor blade.
If Father Brennan has information or evidence of mistreatment of detainees he should report it to the appropriate authorities for investigation.
Detention is not punitive. It is administrative in nature and is a result of arriving in Australia without authorisation, that is, illegally. It has nothing to do with subsequent claims for asylum.
Furthermore, contrary to Father Brennan's assertion, primary decision-makers are extremely well equipped to discharge their decision-making responsibilities. They receive extensive and specifically targeted training on Iraq and Afghanistan.
This targeted training, which has been ongoing since early 2000, includes intensive workshops and seminars presented by leading international experts including representatives from UNHCR.
This letter had been posted on the same day that the Canberra Times carried a report of what I had reported to you about injuries to children at Woomera two weeks before. I spoke to [the Department's Director of Public Affairs] by phone on 22 April 2002 and stated my presumption that he knew nothing of my letter to you of 3 April 2002. I was gratified that was the case. Afterall, how could anyone in good faith publish such a letter knowing that I had written to you what I had seen and heard, having received no feedback or query from any departmental officer or member of your staff? But I was mystified that the Public Affairs Department would have promptly published such a letter without having checked the matter with the Minister's office, the Onshore Protection Branch, the Unauthorised Arrivals and Detention Services Branch or the Woomera branch office. I then sent [the Department's Director of Public Affairs] an email:
Further to our conversation at 12.15pm today, I trust you will be able to correct your letter of 18 April 2002 on your web site with the same speed that you were able to publish your letter in the first place (2.41pm on the day of publication of report about my remarks in the Canberra Times). My letter of 3 April to Mr Ruddock is attached for ease of reference. If there is no correction, the reader will be left to assume that a letter to your minister immediately upon return from witnessing such events does not constitute the provision of "information or evidence of mistreatment" "to the appropriate authorities for investigation". If the minister is not the appropriate authority, I would appreciate notification from you as to who would be the appropriate authority for the purposes of my avoiding further adverse comment on your government web site.
I sent another email on 23 April 2002:
Further to my email yesterday, I note that your erroneous letter is still displayed on your web page. Given that the letter is now unlikely to be published in the Canberra Times, could I suggest that you simply remove the letter from your web site. If that is not an attractive option for you, could I suggest that you display my letter to the Minister of 3 April 2002 alongside your letter. If you do not pursue either option by 2.41pm on Thursday 25 April, I would propose taking up the matter with your minister unless you could advise some other appropriate authority with whom I should pursue the matter.
I would have thought a one week airing of erroneous remarks about a citizen without prompt correction (especially when you have conceded that you had not read my letter of 3 April 2002 when you had posted your own letter on the web urging me first to provide information or evidence to the appropriate authorities) would have been sufficient time and cost to the citizen for you to achieve whatever political purpose you have sought by such publication.
If your letter remains published on the web without correction, I presume you are wantonly publishing remarks adverse to my reputation when you know that I have acted at the first opportunity to provide the appropriate authority with information and evidence about the mistreatment of children in your detention centre. And I will treat the matter as such when I communicate with your minister. What saddens me about your behaviour is that you will appreciate from my ministerial correspondence these last three months that I have expressed ongoing appreciation of DIMIA officers with whom I have been privileged to work very professionally. It would be a pity if your "Public Affairs" department were to create static in such a sensitive area.
Then I phoned [the Department's Director of Public Affairs] again at 3.40pm on 23 April. He was in a meeting and unavailable to come to the phone. I left a message with another DIMIA officer that I had sent two emails and if there were any difficulty in receipt of same, [the Department's Director of Public Affairs] should contact me. The offending letter was then removed from the website. On the afternoon of 24 April 2002, I sent this email:
I am gratified to note that your website was updated at 1.34pm today and that you have withdrawn from publication the letter which was erroneously critical of me. You will appreciate that my concern has been not purely academic nor self-interested. As I understand the situation, your minister is the guardian of the children who were hit by tear gas and baton on Good Friday. It would be very misleading for the public if any public servant accountable to the minister were to state publicly and knowingly that children were not injured on that occasion. Also it is essential that all information and evidence of such child abuse be brought to the attention of your minister and the relevant state authorities at the earliest convenience. It would be very regrettable if the public were left with the perception that citizens such as myself did not satisfy ourselves that reports were made to the relevant government authorities at federal and state levels. I am so satisfied.
In future, despite the tight time constraint in which you may wish to respond in the media, please do not hesitate to contact me if you think my remarks are erroneous or my processes unbecoming, and be assured that I am not in the habit of making such public statements without first bringing such concerns to the attention of your minister. Given our different overseas commitments, Mr Ruddock and I are not to meet again until June 5 but I will rehearse the history of this matter in my next correspondence with him.
On 24 April 2002, I received an email from [the Department's Director of Public Affairs]:
I will be out of the office from 24/04/2002 until 29/04/2002. Please direct all messages to [name removed] on 2184.
I replied by email on 24 April:
Thank you [name removed]. I trust I will not have any reason to trouble [name removed].
[The Department's Director of Public Affairs] original letter was then published without amendment in the Canberra Times on 25 April 2002. Today I published this response:
[name removed], Director, Public Affairs, Department of Immigration and Multicultural and Indigenous Affairs, (Injuries minor, CT, April 25) says that his "Department has no record of injuries to a 7-year-old sustained during the disturbance at the Woomera detention facility on Good Friday." He then claims there were no reported injuries to children at Woomera on Good Friday. He advises that if I have "information or evidence of mistreatment of detainees", I "should report it to the appropriate authorities for investigation".
As [name removed] well knows I was inside the Woomera detention centre on Good Friday. I then returned and met several detainees, ACM staff and DIMIA staff on the following Tuesday. Next day, April 3, as [name removed] well knows, I then wrote a four page letter to his Minister Mr Ruddock reporting what I had seen and heard. I wrote, "I met a mother with her seven-year-old son. The young boy carries bruises on his left knee and right ankle from the baton blow he received last Friday. Children whose parents had no interest in escaping were hit by tear gas and witnessed scenes of extraordinary violence."
And the department says it has no record of injuries to children even though department officials and ACM management at Woomera know what happened and so does the Minister. Meanwhile the department in Canberra does have records which it happily publishes of injuries to 17 ACM officers. Who should I tell? To date there has been no point in telling Mr Ruddock or [name removed].
Today I have received the following email from your chief of staff:
[The Department's Director of Public Affairs] is correct in asserting that there were no reported injuries of detainee children at Woomera - you assert differently. This does not necessarily mean that there weren't any, just that they weren't reported. Nor were any detected during the usual post-incident medical checks.
However without details of the names of the people involved it is impossible for us to check with them about the nature of their injuries. You may wish to continue to assert that people have been injured, however unless you are prepared to give names and dates and any other relevant details, we are unable to verify your assertions, and will continue to assert that none were reported.
We look forward to your continued cooperation.
Given that the ACM manager was one of the people who told me about children being hit by tear gas "because the wind happened to be blowing the wrong way", and given that at least two of those children were later pointed out to me, and given that your departmental manager was one of the people who told me about the five-year-old child being abandoned in the compound, and given that I actually saw the bruises to the seven-year-old boy from the baton blow and heard his mother's report of the incident, and given that I was with the Sabean Mendean children unable to return to their accommodations after the Good Friday service, my claims in the media including the report in the Canberra Times of 18 April 2002 were not only accurate and credible but irrefutable by your public affairs director in Canberra. Given the political handling of these issues, please credit me with not having the naivety to claim that your department had records of any injuries or abuse to children. In so far as [the Department's Director of Public Affairs] has said anything right about this issue, he has not said anything "contrary to Father Frank Brennan's claims". As for formal reports of these incidents, I have checked again with the lawyers who assure me that a formal report of the tear gas and baton incidents was made to the South Australian Child Protection Authority. I am assured that the injuries to the seven-year-old boy were entered on his medical record on 3 April 2002. If I am provided with any further information which I am liberty to disclose to you or the public, I will happily do so. Should you want to record more formally in Canberra the injury and abuse to children, I suggest you have some of your Canberra officers speak with the departmental and ACM managers at Woomera who know about the tear gas and abandonment incidents and who I have found to be credible, professional and concerned for the well being of these children.
Though pleased that [the Department's Director of Public Affairs] has withdrawn his very misleading letter from the departmental website, I suggest that we all learn from this experience and institute a protocol for dealings between me and your public affairs department to avoid further misunderstandings. I too look forward to continued co-operation. Given your absence overseas, I will contact [your chief of staff] and seek a meeting with her, [the Department's Director of Public Affairs] and other relevant Canberra departmental officers in the near future.
Yours sincerely,
(Fr) Frank Brennan SJ AO
cc. [President], Australian Catholic Bishops Conference
Mr Philip Ruddock
MP
Minister for Immigration and Multicultural and Indigenous Affairs
Parliament House
Canberra
ACT 2600
[Fax number removed]
Your office has asked that I set out the matters for discussion at our next meeting on 5 June 2002. Since we last met on 13 February 2002, I have sent you letters dated 22 February 2002, 21 March 2002, 3 April 2002, and 29 April 2002. I have made two further visits to Woomera and I have completed a national lecture tour. After we meet on 5 June, I will deliver a public lecture that evening at the ANU. In July I will write a detailed assessment of comparative immigration detention regimes.
1. The Pacific Solution
In your letter of 11 April 2002, you advised me that the facilities on Manus Island and Nauru "are not detention centres". And yet the recently enacted Migration Legislation Amendment (Transitional Movement) Act 2002 speaks of "the detention of the person in a country in respect of which a declaration is in force (s. 198D(3)(c)). And the bills digest for the Migration Legislation Amendment (Transitional Movement) Bill 2002 speaks of the removal of persons "to a place such as a 'Pacific Solution' detention facility on Nauru or Papua New Guinea".
Even Senator George Brandis and Mr John Hodges in the Senate Select Committee on a certain Maritime Incident have referred to the "detention centres" in those places and the "detainees" kept therein. In his evidence on 1 May 2002, Mr Hodges said, "Nauru is by far the worst of the detention centres."
Given the grave constitutional doubts about the legality of migration detention in those places, I would appreciate further elucidation about the legal advice received which assures you and the government of the legality of this aspect of the Pacific solution.
2. The Utility of the TPV as a Deterrent
Many of those Iraqi women and children found to be refugees in Nauru have husbands and fathers who are already lawfully resident in Australia with a temporary protection visa. Though the restrictions on the TPV might deter some people from taking the perilous boat trip to Australia, others aware that family reunion is not permitted and knowing that each onshore determination means one less place in the offshore program will be attracted to coming illegally. TPV holders who are refused the right to travel and return to Australia have restricted work opportunities and less capacity to assess the security situation elsewhere. These disincentives combined with the denial of the fundamental right to be reunited with family have adverse effects disproportionate to the desired deterrent effect. TPV holders should have the same capacity and services available to them to allow them to be integrated into the Australian community and to participate in Australian life while they are here.
3. The Protection of Children in Detention
Following up my extensive correspondence relating to events at Woomera on Good Friday, I have been concerned by:
- The incapacity of ACM to provide a suitable atmosphere for children in a detention situation where an increasing percentage of the detainees are in indeterminate post-rejection detention awaiting removal from Australia.
- The incapacity of ACM or any other contractor to run the prison-like aspects of a detention centre at crisis times when there is no system of rewards and punishments applicable as in a prison.
- The difficulty of effective federal-state co-operation providing for the best interests of children in detention when State governments understandably do not share the same ideological commitment to the long term detention of children.
- The incapacity of your department at one and the same time to espouse the government policy, defend ACM practices at times of crisis, and protect and adequately investigate complaints about the mistreatment of children.
4. The Legality of Detention for those rejected
I am particularly concerned about those Palestinians and Iraqis who have been rejected and who have made written application to be removed from Australia, but who must wait in indeterminate detention through no fault of their own. Their indeterminate and unreviewable detention is not for a migration purpose. Given the post- September-11 situation, there is a need for regular independent review of the detention of these persons and for independent supervision of the departmental efforts to remove such persons in security. You will recall that in Lim's Case, the High Court upheld immigration detention in part because the detainee could exercise the option at any time to leave Australia. This fact has also been part of your rationale for unreviewable detention. Post-September-11, this is no longer the case. Also at the time of Lim, there was a strict time limit on detention. I would like to discuss the prospect of periodic judicial review of post-rejection detention, permitting the release of persons on bail provided they have fulfilled health, security and identity checks and provided the court is satisfied that any person bailed is likely to be available for a return to detention immediately prior to removal from Australia.
5. The Legality of Detention for those awaiting character checks
I have been disturbed to learn that some persons found to be refugees are being held in detention for an additional six months or more awaiting a character check. This is the case even when the detainee has done all in his power to co-operate with inquiries and after ASIO has made extensive inquiries. There should be a time limit on such ongoing detention such that a person is deemed to have passed the character check if authorities are unable to uncover adverse information on a person by that time.
6. The unreliability of Primary Decisions on Afghans and Iraqis
I have noted the assurance of the Director of Public Affairs on 18 April 2002 that "primary decision-makers are extremely well equipped to discharge their decision-making responsibilities. They receive extensive and specifically targeted training on Iraq and Afghanistan". I had expressed strong concern about the RRT appeal rates in my address to the Uniting Church Social Justice Centre, Brisbane the previous day. In my longer published paper I said:
Let me give a few statistics which show just how shonky our determination process is for those being held in detention, the overwhelming majority of whom are proved to be refugees (even conceding that the Afghan approval rate has gone down from 95% to 77% and the Iraqi rate from 90% to 79%). Since 1993 (to 30 June 2001), the RRT set aside 11.4% of all primary decisions appealed. But it set aside 69% of all Afghan decisions appealed and 81.9% of all Iraqi decisions appealed. So far this financial year, the RRT has set aside 87% of all Iraqi decisions appealed (109 of 126 cases) and 69% of all Afghan cases appealed (176 of 257 cases). Meanwhile it has set aside only 7% of decisions appealed by members of other ethnic groups. If you were an Afghan or Iraqi fronting up for a primary decision, how would you feel? During the last financial year, the RRT set aside 11% of all primary decisions which were appealed but in the same time it set aside 37% of all primary decisions appealed by persons in detention while they waited on average another two months in detention, following the many months they spent awaiting a primary decision.
I have not heard any credible explanation for the disparity in these results.
7. Alternatives to Universal Detention and TPVs.
I hope we will have time to discuss alternative arrangements to render the present detention policy more humane and effective. I would commend the criteria for detention set out in the recently released UK Home Office's White Paper Secure Borders, Safe Haven (paras 4.76 and 4.77):
Although the main focus of detention will be on removals, there will continue to be a need to detain some people at other stages of the process. Our 1998 White Paper set out the criteria by which Immigration Act powers of detention were exercised and confirmed that the starting point in all cases was a presumption in favour of granting temporary admission or release. The criteria were modified in March 2000 to include detention at Oakington Reception Centre if it appeared that a claimant's asylum application could be decided quickly. The modified criteria and the general presumption remain in place. There has, however, been one change in terms of the detention criteria as they relate to families.
Families can in some instances give rise to the same problems of non-compliance and thus the need to detain as can be encountered with single adults. Naturally there are particular concerns about detaining families and it is not a step to be taken lightly. Although true of all decisions to detain, it is especially important in the case of families that detention should be used only when necessary and should not be for an excessive period. It was previously the case that families would, other than as part of the fast-track process at Oakington Reception Centre, normally be detained only in order to effect removal. Such detention would be planned to take place as close to removal as possible so as to ensure that families were not normally detained for more than a few days. Whilst this covered most circumstances where detention of a family might be necessary, it did not allow for those occasions when it is justifiable to detain families at other times or for longer than just a few days. Accordingly, families may, where necessary, now be detained at other times and for longer periods than just immediately prior to removal. This could be whilst their identities and basis of claim are established, or because there is a reasonable belief that they would abscond. Where families are detained they are held in dedicated family accommodation based on family rooms in Removal Centres. No family is detained simply because suitable accommodation is available.
8. Up to Date Statistics and Correction of Previous Errors
Your office has previously offered to correct the errors in my address published in the April issue of Eureka Street. It is some time since your departmental fact sheets on detention have been updated. I would appreciate receipt of corrections and up to date figures of those in detention, those detainees awaiting a primary decision, those detainees awaiting removal having exhausted all appeals, the number of children in detention, the number of unaccompanied minors in detention, the average and maximum times spent in detention as at June 5, and the number of those awaiting visas having been found to be bona fide refugees.
9. The Role of the Department and your office
My dealings with [name removed], Director of Public Affairs, DIMIA has highlighted the problem for any citizen wanting to co-operate with your office in ensuring greater transparency, greater efficiency and less capriciousness in the operation of your detention centres. I have written to [name removed], Secretary of DIMIA, asking that the "Public Affairs Department not publish criticism of me without first checking with the Minister's office lest (the) department once again engage in publication without knowledge of the facts, including the facts of any communication between me and the Minister when he is the appropriate authority to whom information should be conveyed". I would appreciate a protocol for my access to your office and to the Department.
I look forward to our discussion and hope we can set up further co-operative arrangements between me, your office and your department so that together we can render the implementation of the immigration detention policy more reputable and bearable for all who are affected by it.
Yours sincerely,
(Fr) Frank Brennan SJ AO
cc. [President], Australian Catholic Bishops Conference
Mr Philip Ruddock
MP
Minister for Immigration and Multicultural and Indigenous Affairs
Parliament House
Canberra
ACT 2600
Thank you for the benefit of our wide-ranging discussion on 3 June 2002. I appreciate your availability and willingness to receive full departmental briefings on the matters of concern which I raise with you. Enclosed is a copy of the address I gave to the public lecture series at ANU on 5 June 2002.
While mandatory, open-ended and judicially unreviewable detention remains your law and policy, there are still some significant issues which occasion me concern. I noted your comments to the Parliament in Question Time on 3 June 2002 after our meeting when you said:
Up until now, an important aspect of being able to maintain the integrity of our borders has been to ensure that if people arrive in Australia without authority, they are detained until such time as we are able to deal with a number of matters, particularly their health, character and any potential security risk that may be associated with their presence, to ensure that people are available for processing and to ensure that, if they have no lawful basis to remain in Australia, they are available for removal.
In the light of the Lim decision, I am still worried that such detention is unlawful in two situations: (a) when there is excessive delay in the issue of a visa simply because the character check has failed to disclose adverse information about a successful applicant; and (b) when an unsuccessful applicant cannot be returned home or to any other country even if he or she has requested removal from Australia. The High Court may rule such detention constitutional, but then again in accordance with Lim, the Court could take the view that detention without time limit, without guaranteed release on request, and without release within a reasonable time in light of September 11 developments would be punitive, a deterrent or a purported exercise of the Commonwealth's judicial power thereby requiring regular judicial supervision and review of such open ended detention. I note your comments about the Palestinians in your letter of 3 June 2002. But the Palestinians in Woomera have already received written notification that they may not return to the Gaza Strip through Egypt. They have also received oral advice from the department that no other route is open at this time. Absent security concerns which I have not heard, it is high time they were released from detention pending the real possibility of their return home.
Once again, I recommend the need for regular judicial supervision of ongoing detention for those who have been rejected as refugees and who cannot be moved. Given the small caseload, I cannot see why regular bail conditions would not mitigate the risk of people's disappearance and absorption into the community. With 60,000 overstayers in the community at large, this small caseload with strict reporting requirements would cause little trouble. Why should they remain in detention while others who have gained an entry visa under false pretences are permitted to remain at large in the community with no reporting conditions?
I continue to be troubled by your rationale that detention is in part to "ensure that people are available for processing". And yet your RRT rejection rate for primary decision makers dealing with Afghans and Iraqis (the main groups in detention) discloses that detention in remote locations does nothing to improve or expedite the due processing of refugee claims. Between 1 July 2001 and 30 April 2002, the Refugee Review Tribunal (RRT) set aside 68% of all Afghan decisions appealed and 87% of all Iraqi decisions appealed. So far this financial year, the RRT has set aside 112 of the 129 Iraqi decisions appealed and 182 of the 268 Afghan cases appealed. Meanwhile it has set aside only 8% of decisions appealed by members of other ethnic groups (332 of 3926 cases). Since our meeting last week, I have made further inquiries which confirmed my suspicion that Afghans and Iraqis in detention who have been rejected by the primary decision maker inevitably appeal. So it is not an instance of a smaller sample of more appealable cases. The only other explanation you have offered for these intolerable discrepancies is that Afghan and Iraqi cases are more dependent on issues of credibility and linguistic analysis which give rise to more room for legitimate differences of opinion by decision makers. Detention in a more accessible venue or release into the community would definitely assist primary decision makers to perform their task more credibly.
I continue to argue that Australia should be at least as decent as European countries in dealing with asylum seekers who come without visas or documentation. I note your comment to the Parliament on 3 June 2002:
I notice that there are some who argue that we ought to adopt the failed policies that have been used in Europe. The United Kingdom had 88,000 asylum seekers last year-twice what they had five years ago. They have lost track of more than 270,000 failed asylum seekers. France received 47,000 claims last year-up from something of the order of 21,000 five years ago. More than 90 per cent of people who are rejected asylum seekers in France cannot be located when people look for them to send them home. Mandatory detention has been a very important part of the program that was introduced by governments to deal with these issues.
The task in Australia remains very manageable. I will continue to agitate publicly for a return to decency on the basis that we have so few asylum seekers arriving by boat compared with other countries and that we have such a small caseload that we could readily track them in the community if they were detained only for health, security and identity checks and then again only within one month before their removal or deportation. Additional detention should be permitted only by judicial order and with judicial review and supervision.
Despite your recent adverse comments about the Australian judiciary, I note that you have not refuted my concerns about the legality of the Pacific solution preferring simply to observe that no court proceedings have been instituted in Nauru and that the action in PNG was struck out for non-appearance by counsel on 6 May 2002. I concede that the PNG government may well have issued conditional visas to the detainees on Manus Island but any visa with a condition amounting to detention would still be unconstitutional.
I continue to be worried that your desire to avoid "Convention plus" outcomes for asylum seekers applying for protection will result in breaches of the international human rights of successful applicants. For example, how can it be argued that the TPV holder in Australia is able to exercise the right to found a family when he or she is denied the right to be reunited with family while enjoying the benefit of justified protection? How can it be argued that our law now protects the family of the TPV holder as "the natural and fundamental group unit of society"? (Article 23, International Covenant on Civil and Political Rights).
I appreciate your personal apology for the behaviour of your departmental Director of Public Affairs in twice publishing such a misleading letter about my activity following the injury to the seven year old boy who was injured by baton and tear gas during the Easter protest at Woomera. I look forward to a satisfactory outcome of [the Secretary of DIMIA's] departmental inquiry of this matter so that we may all identify more readily the structural and personnel problems which result in such errors occurring. You will appreciate that my prime concern is the well being of the children and others who suffer abuse in detention without adequate investigation.
I will return to Australia again on July 3 and expect to visit Woomera again during the following week. I will arrange another appointment with you in August.
Yours sincerely,
(Fr) Frank Brennan SJ AO
cc. [President], Australian Catholic Bishops Conference
Last Updated 23 June 2003.
