High Court decision a win for human rights

At the ASRC as a human rights lawyer I have witnessed first hand thousands of times over, the human cost of countries whose government believe that they are above the law and should not be subject to the oversight of their own courts. I have sat face to face with men and women who have experienced the most unimaginable horrors at the hands of their own police and military from being electrocuted, gang raped, having all their toe nails pulled out one at a time to being set on fire or hung out of a ten story building window by their legs with the threat to drop them unless they ‘co – operate’. They wear the scars of this everywhere, cigarette butt burns on the back, lacerations on the arms where they were cut with razors to the permanent slumps of a body that can no longer stand tall due to a lifetime of beatings.

These countries who abuse the human rights of their people all share the same common ground, a disregard for human rights, procedural fairness and the rule of law. They foster oppressive and unjust environments where arbitrary arrest and indefinite detention are commonplace. The countries who practice such oppression roll off my tongue: China, Afghanistan, Iran, Zimbabwe, Ethiopia and Iraq to name but a few, I never thought Australia would belong to this list but it does.

We deny people seeking asylum by boat access to the courts, to the rule of law and procedural fairness and are one of only two countries in the world who process asylum seekers on offshore detention centres (Italy being the other one).

We are a country that mandatorily detains all undocumented asylum seekers regardless of the genuineness of their refugee claims or how vulnerable they are. As of the 15th of October we have 752 children in detention, half of these children are unaccompanied minors. That is children from 6 years and up who are without parents or orphans. I receive weekly reports of children cutting themselves to relieve the pain of being in detention. I have a catalogue of memories that will stay with me forever of children who have tried to hang and poison themselves to escape the horror of detention, one of a little 10 year old girl swaying from the ceiling with a bed sheet around her neck will never leave me.

The decision to detain undocumented arrivals seeking asylum is an arbitrary one and a recent invention that started in 1992 when we introduced a policy of mandatory detention. Until then Australia had peacefully settled 452,000 refugees from 1948 to 1992, many of whom haed arrived by boat fleeing the horrors of Pol Pot and co. Australia in 1948 was 4th in the world in the number of refugees taken and took 6% of the worlds refugees. We are now 47th in the world and take just 0.22% of the worlds refugees and yet have a hundred fold the hysteria and fearmongering.

In Australia, we don’t detain people who arrive by plane and seek asylum, even though on average those arriving by boat are four times more likely to be found to be refugees. We also detain people for indefinite periods of time in these detention centres. We currently have hundreds of men who have been living in tents for months on end on Christmas Island in conditions you would expect to find in Somalia not in a detention centre run by Australia.

The Australian government set up Christmas Island detention centre as a deliberate way to try and deny asylum seekers their most basic human rights. ‘Out of sight, out of mind’ was their mantra, forget the fact its illegal and costs tax payers 7 times as much to detain them on this island then house them in the Australia community. The Gillard government tried to create a legal fiction that went something like this ‘because you are not in Australia you have no right to access judicial review through our Australian courts’, this was something straight out of a Kafka novel. Such reasoning was absurd given that they were in our detention centres, funded by our tax payer dollars, run by our Department of Immigration and our countries legal and moral responsibility. This fiction continued for the thousands who were brought from Christmas Island to Australia, Even when our soil they still had no access to our courts.

This legal fiction has been written by successive governments the Howard Government pioneered it with Manus Island and Nauru and the Gillard government has tried to continue it with Christmas Island. By trying to exclude asylum seekers from having the right to judicial review the government has been able to engineer a totally new legal process, with no genuine checks and balances that is driven by political agenda to show they can be ‘tough on refugees’ rather than the rule of law and procedural fairness.

It is only countries that seek to hide the truth that deny people access to their courts. If our government is so sure of their lack of bonafides then the courts will find in their favour, the truth is they know they have been overseeing a morally and legally bankrupt system and don’t want independent oversight.

Asylum seekers are not asking for special treatment just a fair go. When we deny people the right to have their refugee claims independently reviewed to ensure they had a fair process we become part of the continuum of persecution that asylum seekers fled in the first place. Australia is better than this, we are a country built on a fair go who prides itself on it’s democratic fabric.

The High Court was asked to make a decision in the last week on this point and ruled that two Sri Lankan asylum seekers were denied “procedural fairness” under the Migration Act by not being allowed to have their decisions on Christmas Island reviewed by Australian courts. The bench found that the government had made an “error of law” in not applying the Migration Act and the decisions of Australian courts to the pair. This decision will now allow offshore arrivals to challenge their decision in Australian courts.
The High Court has righted a profound wrong and has stood up for what is just and fair. As the Gillard Government now scrambles to try in vain to find a loophole and the Liberal Party tries to score mileage from this (even though they were the original architects of this inhumane and illegal system to being with) lets hope they too come to understand that no one is above the law and that great countries such as ours have faith in our courts to make sure everyone’s human rights get the fair go they deserve.