Fortress Australia

by Julian Burnside QC

Volume 1, number 8, Winter 2004

Eight hundred citizens turned up at Brisbane City Hall on 3 August for a public meeting sponsored by JustPeace Qld. 'Australia at the Crossroads-Time for a Change' was endorsed by dozens of community organizations and social justice groups. Julian Burnside QC addressed the meeting on the subject of the betrayal of Australian values with regard to refugees.

I want to talk about refugees in the larger framework of what is happening to values in this country.
The reality is that you can assess any government by the way it treats its most disadvantaged, its weakest, its most vulnerable. The way we have treated refugees in the last few years means that we have got a very long way to go, and no weak group can feel safe.
The government has got away with this in part because of their dishonesty about the matter. Government rhetoric is that 'illegals', 'queue-jumpers', people who would throw their children overboard, come here uninvited; that they take a

Julian Burnside QC

place which should be taken by other people; that they are people who, mostly, should be sent back. And of course if we don't take steps we will be 'swamped'.
Every element of the government rhetoric is false.
First of all, they are not illegal. They are not illegal in any meaningful sense. It is not an offence to come to Australia without papers, it is not an offence to come here informally and ask for asylum. It is a right given to every human being under Article 14 of the Universal Declaration of Human Rights, which Australia actively promoted in 1948.
Are we being swamped?
In the last two decades the number of people coming here by boat, informally, seeking asylum, averaged a thousand people a year.
Every year the number of authorised arrivals in the country - people coming for holidays or business or whatever - is 4.7 million. We have got the most watertight borders in the world, apart from Antarctica. The largest number of boat people arriving here in any twelve month period over the last two decades was 4,100. We think we are going to be swamped? It's absurd!
History and geography both demonstrate that we are not going to be swamped. This means that what we have been doing to asylum seekers with such enthusiasm in the last few years is so much pointless cruelty.
What do we do with them? Well, of course, we lock them up.
The Migration Act says that the person who arrives here without papers must be detained and must be kept in detention until they either get a visa or they are removed from the country.
The realities of detention are difficult to summarise, but the real face of detention at the moment I think is Baxter. Baxter was heralded by (then Immigration Minister) Phillip Ruddock in the middle of 2002 as the "family-friendly detention centre".
I was at a public meeting in the Barrossa Valley in April 2002, on a platform together with an assistant secretary of the Departtment of Immigration. I had learnt a few things about Baxter. I'd seen a ground plan of Baxter, which is a gigantic facility in the South Australian desert, surrounded by what the ground plan calls a 'courtesy fence'. I took on myself to ask this woman, why is it that an electric fence is described as a 'courtesy fence'?
She contradicted me immediately, publicly. She said "It is not an electric fence" - I thought I had been misinformed. She said "It's an energised fence"!
A nine thousand volt, energised courtesy fence surrounds the "family friendly" detention centre of Baxter!
To get to Baxter you have to drive four or five hours north-west of Adelaide to Port Augusta, another ten or fifteen kilometers out of there, and you arrive at Baxter.
If you stand at the gates of Baxter and face East you're looking at a Fred Williams landscape-the original outback Australian landscape that we all carry in memory or imagination.
If you turn and face West, as far as you can see from left to right is a 20 foot high, glittering, silvery wire fence. This is the energised courtesy fence, and by the way it is energised on the outside so that protesters are the ones who get electrocuted first. There is twenty metres of no-man's land, just red dirt, and then another perimeter fence, twenty foot high, topped with razor wire.
There is a sort of cage or chute that joins the outside perimeter fence to the inner fence.
Inside the inner fence is a series of compounds made out of corrugated iron, but you notice that they don't have any windows in them, because the people who are held in the compounds are not allowed to see the Australian desert that surrounds them. And more importantly, Australians who are concerned about what's going on can't see the people locked inside.
It takes quite a rigmarole to get into the facility.
The shock comes in waves that increase at each step. First of all it takes you about an hour to be processed-you need a hundred points of identification; you have to identify the person you want to see; leave your personal possessions in a locker.
Then you go across to the electric fence and an electronic gate opens; you step into the chute and the gate closes behind you. You may be there for up to 20 minutes before another electronic gate opens in front of you, at the other end of the cage. Then airport-style security, and then eventually you will be escorted across to the visitors' centre.
Here you get the real shock, because here we have innocent human beings who have been detained for months, or years, and in one case-one man in Baxter-has been detained for five years and ten months. During which time, by the way, he has run up a bill for his own detention of approximately $580,000. We make them liable for the cost of their own detention.
These people are mostly from Iran, some from Afghanistan, some from Iraq.
There is a very strange sensation because, although they offer you hospitality-a plastic cup of water or even a cup of tea if they've got it, and they talk to you and ask if you can help with their case, and so on - there's something missing.
( Julian Burnside quoted journalist Rebecca West's word portrait describing Rudolf Hess at the Nuremburg trials) "He looked as though his mind had no surface. It looked as if it had been blasted away except for the depths where nightmares dwell."

That's what you see when you meet people in Baxter. There is an absence behind their eyes that makes you realise that in all but their organic survival we have destroyed them.
It is a terrible thing to do, because they have done nothing but come and ask for our help.
Ninety per cent of the people who have come to Australia in the last ten years asking for help have turned out to be genuine refugees. Yet we lock them up and effectively destroy them.
The cruelty seems to be a matter of official government policy.
In October 2001 a number of people escaped from Woomera during the disturbances there. They were charged with escaping from Immigration Detention.
We ran the defence that conditions in detention were so cruel and inhumane that it could not be legal, constitutionally valid Immigration Detention. Therefore what they escaped from was some different condition, not Immigration Detention.
The matter went to the High Court.
In November last year, in the High Court, the Australian Government solemnly argued that, no matter how inhumane the conditions in detention, it was nevertheless valid and lawful and the courts could not do anything about it.
At the same time they dealt with a parallel case of a stateless Palestinian who had come to Australia seeking asylum but had been refused a visa. So he signed a form saying please remove me from the country. He couldn't bear it in Woomera any longer. Nothing happened.
He was a stateless Palestinian. There is nowhere on earth he is allowed to be, and there was no country on earth willing to take him.
The question was, what could be done with a person in this unforeseen circumstance?
The obvious thing to do-the decent, the fair thing to do-would be to amend the act to get rid of an obvious anomaly.
What your government did was to argue in the High Court of Australia in November last year that in those circumstances they can keep that innocent man in detention for the rest of his life.
[Note: since this speech was delivered, the High Court delivered judgement in these cases. On 6 August the Court held that inhumane conditions in detention do not render the detention unlawful, and that the stateless Palestinian may be held in detention for the rest of his life.]
There is a man who had come from Iran almost three years ago with his daughter. He was locked up in Curtin first, and then in Baxter.
He and his daughter, seven years old last July, were in their room in the "family friendly" detention Centre in Baxter on 14 July when three ACM guards came into their room, and they ordered him to strip.
Why? Because he, although innocent of any offence, was thought to have a cigarette lighter. Now, if you have followed what happened in Abu Ghraib prison, you know exactly how shameful it is for a Muslim man to be naked in front of other people. But apart from that, his daughter is in the room. So he refused to strip. They beat him up, handcuffed him and took him to the management unit.
Let me tell you about the management unit in Baxter.
It has a number of solitary confinement cells, each three metres square. They have bare concrete walls. The only furniture is a mattress on the floor.
The occupant of the cell has got nothing to read, nothing to write with, no television, no radio, no distractions of any sort, no company-and no privacy because he is video-monitored twenty-four hours a day.
There is narrow doorway, without a door, in the opposite wall. It leads into a tiny, unventilated bathroom, but the camera is positioned so that it can see into the bathroom.
The room is lit twenty-four hours a day.
The video monitor also records, so you can watch the tapes, if you are able to get your hands on one, and what you see is like a caged animal.
He sleeps for a while, then he sits, grooms his beard obsessively, gets up and draws his knees up and rocks back and forward for a couple of hours.
He paces around the room for a while, then he lies down and has another sleep. Then he rocks back and forwards, then he paces around the room, then he goes into the bathroom, comes back, rocks, paces around the room… and so it goes, twenty-three and a half hours a day.

His only respite was a visit from his daughter. On 23 July she did not come. He was told that the manager of the centre had taken her to Port Augusta shopping. They assured him that she would come and visit the following day, but she didn't. In the end Greg Wallace, the manager of Baxter came and explained to him that his daughter was now back in Teheran. The Department of Immigration had removed her from Australia without giving her father a chance to say good bye.
The Government does not contradict these facts. They just say the courts don't have any role to play in the way people are treated in detention.
In this case the judge disagreed and ordered the man to be released from solitary confinement and moved to a different detention centre. And the government, with your tax money, appealed against that order to argue that they could throw him back into solitary whenever they wanted to, and that there was nothing the courts could do about it. The appeal court disagreed.
The importance of this lies in the fact that these outrages are not the result of an overzealous guard misbehaving-the government actively argued that it was entitled to treat people this way.
During budget week the Government released the Human Rights Commission Report on the effects on children of Immigration Detention.
They tried to bury it-and they might have succeeded, but for the few journalists who pursued it.
The report said, after two-and-a-half years of careful examination of the facts, that the treatment of children in Australia's detention centres amounts to cruel, inhumane and degrading treatment, and taken collectively constitutes systemic child abuse.
I thought Amanda Vanstone would be smart enough to say "that was Woomera, it's past now, it's closed, big mistake, sorry about that…" I thought she would say, "This wasn't me, it was Mr Ruddock. It was on his watch." What did she say?- "It's necessary! Or else we will be sending a green light to people smugglers."
So the values we have now embraced in Australia are that child abuse is necessary in order to deter other people from trying to come here.
The Government is a bit touchy about children in detention, as well they might be. At the moment they are forcing people with children into the residential housing projects-then they tell you there are fewer children in detention.
Let me quote you some observations from people who are in the residential housing projects at Port August.
"I hate the way the guards treats us. We have to ask for everything. The worst thing about it is you have to wait for someone else to decide for your life."
These people are in the community, they are in houses-but they are locked in houses. Surrounded by guards.
"Even when we go out shopping, we go out in groups with two or three officers. We are just allowed to buy fruit and vegetables, no icecream or cookies-We get awoken by guards coming into the house every night. They come back at 5am or 6am while it is still dark.-There are head counts twice a day.-I hate the guards checking me, they are there all the time. In the night I hear their big, fat footsteps stomping through the house.-They do not knock, they just come through the house to the bedrooms."
This is the new liberal policy of keeping people out of detention. The reality is that it is just a different form of detention.
I guess the best marker of how we have treated these people is what they say in moments of candour.

In February 2002 a man wrote a letter to an Australian from Port Hedland. He'd been in there two years and according to his letter, the letter he had received from her was the first contact he'd had with any Australian apart from the guards.
He expressed the hope that she would write again, but he ended up with the comment, "Please don't forget us. We are humans".
Just think about that-that we are holding people in circumstances that make them beg us to remember that they are humans too.
It matters not only that human beings have been treated so harshly that they seek to harm themselves with a self-harm rate ten times the rate in the community.
It matters because it has betrayed democracy.
Because when your leaders lie to you about what they are doing, democracy has not got a chance.

Julian Burnside is a barrister practising in Melbourne and other parts of Australia.
He acted for the Ok Tedi natives against BHP, and for the Maritime Union of Australia in the 1998 waterfront dispute against Patrick Stevedores.
He was the Senior Counsel assisting the Australian Broadcasting Authority in the 'Cash for Comment' enquiry, and for Liberty Victoria in the 'Tampa' litigation.
In February he was elected a 'National Living Treasure'.

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Vol1no8 Winter2004 Contents