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Indefinite Detention Across The Ditch – Oz's Gitmo

Indefinite Detention Across The Ditch – Oz's Gitmos

By Bruce Clark

On the 17th of June this year John Howard announced a softening of his government’s policies concerning the detention of asylum seekers and others in Australia’s Immigration Detention Centres . Before we all rush to congratulate the Australian Government for its sudden enlightenment, it might be worth considering the history which led to these changes.

Australia does not need a Guantanamo Bay to detain such people indefinitely, as its High Court had given its government carte blanche to do this using its Immigration Detention Centres. In the case of Mr Ahmed Al-Kateb, the highest court in the land decided, in its wisdom, that a legal tradition that valued the liberty of the person and imposed checks on executive power, would not grant constitutional protection to asylum seekers. Knowingly ignoring their country’s human rights obligations under various instruments of international law, the learned judges determined that their Migration Act which allowed for the detention of illegal immigrants, permitted such detention indefinitely. It may be worth noting that this extraordinary decision conflicts with similar decisions in the House of Lords in the United Kingdom and in the Supreme Court of its trans-Tasman neighbour, New Zealand, whose legal systems, are of course, very similar.

Unlike the unfortunates in Guantanamo Bay, Australia’s immigration detainees are suspected of no criminal action.. Many had fled violence or oppression in their countries of origin, no doubt expecting to be treated with compassion and humanity in a western democracy famous for its wonderful life-style and valiant sportsmen and women.

Mr Al-Kateb’s case is illustrative of the Kafakaesque situation in which asylum seekers can find themselves. Born in Kuwait, and having lived there most of his life, he is a Palestinian. He came to Australia seeking refugee status which was denied. After exhausting all legal avenues, he asked to be allowed to leave Australia, a reasonable enough request one would think. Unfortunately, neither Kuwait, nor Israel would accept him and he was therefore kept in immigration detention. Mr Al-Kateb was incarcerated for about four years, having commited no crime. He was eventually let out on a temporary visa at the Minister’s discretion, but eventually, his action in the High Court led to the ruling that his detention was perfectly legal, theoretically at least, for the rest of his days.

Disconcerting perhaps, but not as disconcerting as the reasoning of the learned judges; that Mr Al-Kateb’s incarceration was not punishment, as punishment was not the purpose for which he was originally detained.Therefore his detention was legal.

Sadly, there are many other cases like Mr Al-Kateb’s. Peter Qasim from Kashmir in India was detained, without trial for six years, apparently because he was not sufficiently cooperative with officials. But perhaps the most the most damning indictment of the Australian government and its policies is that children were also kept in detention .One child spent five years, five months and twenty days in detention. There are countless horrendous stories but, one that Amnesty International reports, is of a young thirteen year old boy ,whose parents were both depressed and whose father attempted suicide , and who himself became suicidal. He attempted to hang himself twice and harmed himself on at least eight occasions. The bitter irony is that he and his family were eventually granted refugee status and released into the community. This only occurred three years after his mental deterioration had begun.

Even as I write this, it seems unbelievable that, a great majority of asylum seekers are eventually given refugee status.. The Australian Human Rights and Equal Opportunity Commission found hat , of 2,184 children detained between 1999 and 2003, 92% were ultimately granted refugee status but, as in the case of the young boy mentioned above, many must bear the terrible scars of this introduction to their new homeland long after.

One psychiatrist, who worked in Baxter described the people he saw as “ the most damaged people I’ve seen in my whole psychiatric career”. The government was advised by the Human Rights and Equal Opportunities Commission that its treatment of children was in breach of international human rights law and, in fact was itself a prime cause of mental illness. This and other compelling evidence was long available to the government, but apparently fell on deaf ears.

Just as the High Court determined that Mr Al-Kateb’s indefinite detention was legal, so it decided that the detention of children was also legal. In another decision, it also held that it is a crime to escape from immigration detention, no matter how inhuman the conditions. This was inspite of credible evidence given to the effect that the conditions were indeed unbearable.It is one thing for a government in a Westminster-style system to arrogate extreme powers to itself, but surely another when the defender of our liberties and rights, the courts, turn a blind eye to this.

I said at the beginning that we should not be too swift in hailing the Australian government’s new and more enlightened policies. It is true that Mr AL-Kateb,.Mr Qasim and the majority of the children have been released from the camps, but those camps exist still, as do the High Court decisions I have referred to which condone their operation.

.Mr Howard and his cohorts experienced no sudden epiphany. The politics merely changed It suffered a series of major embarrassments ; the mistaken detention of Australian reisdent Cornelia Rau, who later talked about the terrible conditions of the detention centre she was held in; the illegal deportation of Vivian Solon-, found in a charity hospice in the Phillipines ;the release of a child, -Virginia Leong, born in detention, who, psychiatrist Dr Michael Dudley revealed, was banging her head against the wall; the threat of a back bench rebellion.

Mr Howard admitted his government had made mistakes, but he gave no explanation as to why this realization was so slow in coming, allowing such a high human cost.

Yes, the majority of the children are no longer subject to the harsh excesses of John Howard and his government’s heartless policies. But what of those detainees who have been released on temporary visas, but may at any time have their visas revoked. What will become of those people forever damaged by their new country’s treatment of them and, indeed, what do they make of their new homeland?


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