End the shame and legislate a detention time limit

The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. (Article 31, (1))

What is it about Article 31 in the Refugee Convention that successive Australian governments find so hard to accept?

After all we signed the convention and every time we load a man, woman or child into the van on the jetty at Christmas Island and then transport and lock them up for an indefinite period in detention, we break that promise.

The 31 recommendations made by the Joint Select Committee into Detention will change nothing for the thousands of people suffering in detention without legislated time limits on their incarceration. Never has the force of law been more urgent. Doctors, psychologists and psychiatrists have all named three months as the outside limit of time when people crack, when the “detention sickness” infects the mind and depression and hopelessness set in. Those of us who visit regularly know this only too well.

The time for policy promises and tinkering at the edges of hell are over. Seven people have died in our detention centres in 18 months, thousands are now deeply depressed and considering suicide as the only way out of their pain and misery. The inquiry recommendations as they stand will do nothing to stop this harm without a legislated time limit on detention. They have squibbed on demanding legislation. Did they not hear the evidence? Only the Greens have had the guts to call for what is needed – a legislated time limit to detention.

This is the only way that the current arbitrary indefinite detention system can be brought under control. Surely the evidence of 88 per cent of people suffering clinical depression should be enough to stop a Government inflicting harm. Twenty years of detention has not stopped the boats but it has destroyed human lives.

All this suffering is routinely managed in a culture of neglect and denial. Every morning staff meet in detention centres around Australia and decide who is suicidal and needing to be watched. Guards are then stationed at arm’s length next to the most desperate to physically stop them killing themselves. Added to this abuse is the increasing use of isolation units to contain, restrain and punish. Are we immune to the chilling nature of this systematic legalised abuse?

Detention is back in the same crisis which precipitated the Liberal dissidents, led by Petro Georgiou, to introduce legislation, and cross the floor if necessary to get it passed. Petro Georgiou’s bill would have effectively ended indefinite detention by limiting detention to 90 days. This bill also would have ended the detention of families and children by law.

Following the scandals of a blonde, blue-eyed, ex-Qantas air hostess found in a desperately ill state in an isolation unit of the Baxter detention centre and the illegal deportation of a sick and injured Australian citizen to the Philippines, the momentum for change arrived. Hopes were dashed when Howard blocked the bill by by introducing his own reforms. Clever politics but no legislation to underpin policy promises.

• Requiring that determination of protection visa applications for detained asylum seekers occur within 90 days.
• Introducing the principle that children should only be detained as a last resort – As of March 2012 there were 1,023 children in all forms of detention and 544 were held in community detention. The best this Government has aimed for since October 2010 is a “majority”. This is half the total plus a few.
• Requiring reports by the Department of Immigration to the Commonwealth Ombudsman on persons being held in detention for more than two years – This sounded good and was the only promise put into legislation. The reality is that Ombudsman’s reports are recommendatory and have no power to be enforced. Since February 2011 to March 2012, 807 people have been detained for more than 18 months. Only 65 reports of people who are long-term detained have been tabled as required by the legislation. The Ombudsman office has been without an Ombudsman since the previous Ombudsman resigned under pressure in October 2011 and this office does not have the resources to comply with the legislation.

The next window of opportunity for change arrived with a new government in 2007. The new minister enunciated Seven New Values in Detention in 2008 while few boats had arrived. This turned into window dressing as once again there was no legislation underpinning the promises.  They were to exist as policy directives, to be administratively implemented.  All have been breached:

1. Mandatory detention is an essential component of strong border control.
2. To support the integrity of Australia’s immigration program, three groups will be subject to mandatory detention:
   a) all unauthorised arrivals, for management of health, identity and security risks to the community
   b) unlawful non-citizens who present unacceptable risks to the community and
   c) unlawful non-citizens who have repeatedly refused to comply with their visa conditions.
3. Children, including juvenile foreign fishers and, where possible, their families, will not be detained in an immigration detention centre (IDC).
4. Detention that is indefinite or otherwise arbitrary is not acceptable and the length and conditions of detention, including the appropriateness of both the accommodation and the services provided, would be subject to regular review.
5. Detention in immigration detention centres is only to be used as a last resort and for the shortest practicable time.
6. People in detention will be treated fairly and reasonably within the law.
7. Conditions of detention will ensure the inherent dignity of the human person.

Meanwhile in detention people struggle daily to find a reason to keep going. They have to contend with their memories of flight, persecution and loss in an atmosphere of a prison where every day is the same and there is no end date to their incarceration. Let us look at real people in this system, the people most Australians do not see or think about.

Sam* received a positive refugee and security decision in August 2011, but remained in detention for a further eight months because he was charged with breaking a computer. In February 2012 he was flown from Melbourne to Perth to Christmas Island with guards to face court. When he got there, charges were dropped. There was no evidence and the guard/witness said that he had made a mistake in identifying the man. He was then flown back to Melbourne where he waited a further seven weeks for release. This man who had suffered torture in his own country, spent eight months after his refugee visa was granted, in detention losing his mind for no reason.  His case is emblematic of others who are awaiting charges.

Sabi*, a teenage boy was released to Community Detention where for the first time in his life he was going to school. Five months later he was subject to a “revocation order”. He was put back in locked adult detention. It turns out that he was late home one night when he missed his train. He rang the house staff and told them that he was on his way. They accepted his explanation and no penalty was exacted however this was listed as “breaching curfew” in Canberra. The second offence was causing “damage to property”. Two boys in the house were playing and accidentally fell against a wall causing a small crack. They were fined $20 each and the matter was settled by house staff. This was recorded and used in Canberra to take the boy back into detention where he became so distressed that he attempted to hang himself. He had no prior history of self-harm.  Eight other teenagers were similarly treated.

What is happening now is out of control and shameful. There is no place for arbitrary and indefinite detention in this modern democracy. Asylum seekers are being brutalised and having their spirits broken to appease the worst instincts in the nation. In 20 years, detention has never stopped the boats. It has cost this country billions of dollars. It is also costing Australia its soul.

*To protect their identity real names have not been used.

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