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Australia's moral failure

Julian Burnside

The so-called refugee problem facing Australia is not a problem of national security; it is not a political or legal problem: it is overwhelmingly a moral problem.

It is a moral problem that has been driven by party politics and politicians in recent times. The law which creates the problem has been implemented by the parliament and validated by the courts (despite the best endeavours of some lawyers working in the area). More recently, and most disturbingly, it has been vindicated by the electorate in the overwhelming endorsement of Howard's policies in the November elections. Yet it remains a moral problem which we as a country are dealing with extremely badly.

I suspect that one reason we are dealing with it so badly is that the true nature of the problem has remained hidden for so long. It has remained hidden because it suits the politicians to dress it up as a problem of national security, a problem of border control, and a problem of sovereignty; so that in the famous Howard expression: "We will determine who comes into our country and in what circumstances".

The moral dimension of the problem has been disguised by the fact that the politicians have either deliberately or inadvertently elided three distinct elements of the matter: they are the questions of border control, immigration policy and the treatment of refugees. All are quite distinct, separate problems. All require quite different thinking, and all require separate solutions, and yet somehow our political masters have managed to run these problems together and use the ugliest bits from each.

I want to deal with three matters: the Pacific Solution and where it is leading; the system of indefinite mandatory detention and where that might take us; and the alternatives we have available to us.

The Pacific Solution The Pacific Solution was an immediate and astonishingly popular response to the Tampa case. I doubt that there has ever been a case that so innocently and inadvertently provoked such a savage legislative backlash. The Howard government won the approval of an unthinking electorate with its response to Tampa, but it forever sacrificed any claim to moral decency. History will condemn it.

The most insidious aspect of the Pacific Solution is that it preys on impoverished countries, who have no real choice about whether to lend themselves to the wishes of an Australian government willing to throw millions of dollars at them.

I heard someone not so long ago draw an analogy with prostitution. If a woman has no income and no way of supporting herself, then prostitution is an available, if undesirable, response. I think Nauru can be fairly regarded as one of the fallen women of the South Pacific. For this we don't blame Nauru, we must blame the Australian government.

Nauru's constitution bans detention without trial, with only limited exceptions. One of the exceptions, which comes nearest to the present circumstances, is detention for the purpose of deporting a person who arrived without the permission of the relevant authorities in Nauru. One might think that perhaps that justifies the fact that these people are being held entirely against their wishes on Nauru. But it turns out that the visa application for the Tampa people was a single bulk application - a very lazy bit of work - it is simply a single sheet of paper for the 482 people "as per the attached list". It was signed on their behalf, but perhaps not with their knowledge, by an officer of the Nauruan immigration office. Thus, they cannot be said, on any view, to be people who had arrived against the wishes of the Nauruan government. Added to this of course, it would seem that the Australian government did some kind of political deal with Nauru to allow the people to come in.

These people are being held unlawfully, in a way that is unconstitutional in Nauru. The Australian government could just as easily have locked them up here without constitutional protection. Rather, it was thought politically expedient to ship them off to Nauru at a cost to Australia that is obscene. How the government seeks to justify that is extremely difficult to know, but I suppose having taken the first step in prostituting Nauru, the rest is just a quibble.

This is a staggering enterprise, on any view: about 1500 people have been hijacked at sea and transported against their will to a pile of bird-droppings in the Central Pacific. There they are strictly confined within two camps, in abominable conditions, in breach of Nauru's Constitution. For its complicity in this bit of hostage-taking, Nauru has been promised tens of millions of dollars. To perpetuate this system of state-sponsored piracy and kidnap, the government has committed Australian taxpayers to a staggering $1.2 billion over the next few years.

Moreover, the Pacific Solution is a fraud on the Australian people. It does not deal with the problem, it simply hides it: because by deflecting people around Australia's borders and dumping them on Nauru, we make Australians somehow feel more secure. It is a totally false sense of security, and does not in any way deal with the true problem of border control. In some vague way, most Australians feel as though the government has acted in a strong way and has dealt with the problem. That is a fraud.

Nauru is already protesting that the plan for which it subverted its Constitution was meant to last only a few months. It has been going now for almost nine months, and there is no end in sight. Meanwhile Mr Ruddock has been running around the world trying to persuade various countries to take the Nauru hostages off our hands. There are so few of them that it is hard to see why we do not take them ourselves. We may be forced to in any event: the rest of the civilized world has recognized the Pacific Solution for the scandal that it is.

Indefinite mandatory detention The next matter I want to touch on is the system of indefinite mandatory detention of informal arrivals. Unfortunately, the words "indefinite mandatory detention" have become a simple mantra which have no real impact.

It is a startling thing to think that, at the beginning of the 21st Century, we have a system which, by legislative mandate, involves people being locked up without any judicial order in what, on any view, is a prison. They have no recourse to the courts to review the question of whether they should be locked up. They are being locked up for a period that no one can predict: it is indefinite. When they go inside, unlike any common criminal, they cannot count the days before they will be free again.

Furthermore, unlike the orthodox prison system, 80 per cent of asylum seekers are kept in facilities that are so remote from any centre of civilisation that, if they had the prospect of anyone coming to visit them, that prospect is lost. Broadly, this is because to visit Woomera, or Port Hedland, or Curtin, involves literally days away from your ordinary activities. I said that the conditions in the detention centres are worse than would be tolerated in the prison system. It is a little surprising at first because they are for the most part run by the same people who run the prisons, but the fact is that conditions in the centres are appalling.

I was interested recently to come across some observations of Professor Richard Harding who is Western Australia's Inspector of Custodial Services, and a person familiar with the prison system. He visited Curtin in June last year, and he said this: ... The so called education program was largely a charade (bear in mind how many children are kept in these places, bear in mind that the DIMA contract with A.C.M. [Australian Correctional Management] requires that education be provided appropriately to all people who need it). That insight really set the tone for the whole place. The huts in which the people lived were grossly over crowded, many of the toilets were broken, some of the washing machines were also broken, and the so-called shop was abominably stocked and rather inaccessible. The system for sending mail breached all standards of privacy and confidentiality, and above all, medical and dental facilities were inadequate. In summary, the conditions that exist in the Curtin centre are almost intolerable. Such evidence as exists indicates things are little better at the other centres, yet these things are also largely invisible except when riots occur.

It is easy to be thought to be exaggerating when you talk about conditions in detention centres. This is a letter written to us in February by one of the Afghani people from the Tampa. He is currently in Nauru. He mentions the water supply: I mean that we do not have enough water for going to toilet, taking bath, or washing our clothes. For example in one corner of the camp there is one water store, in which most often only one water tank is delivered everyday and here are almost 500 people consuming water from the same tank.

An interesting story is that when Mr Phillip Ruddock came here our water stores were all full. And we tried to utilise it to our best. Most of us bath when it rains heavily, however our water is spent very soonly and then for the rest of the day and night our toilets are awfully smelling and there are thousands of flies and mosquitoes in each toilet.

This is a person who has been writing to us now for a few months and who has been extraordinarily restrained in his comments about conditions, but whose personality is gradually deteriorating. Things are intolerable there. And those words are matched perfectly by reports that you get from Curtin, and from Port Hedland, and from Woomera, and to a lesser extent from Villawood and Maribyrnong.

It is not easy to choose the things that illustrate most economically the problems of conditions inside of the detention centres. They have to queue for soap. It is common to be subjected to the minor, but irritating torment of queuing for half an hour for soap at Woomera and to reach the head of the queue; only to be told to come back half an hour later, for no reason at all. All you want is a piece of soap but they send you away and have you come back later. The people who are in charge of these places develop very rapidly, it seems, the mentality of guard versus prisoner.

I had an interesting experience myself a few weeks ago in Maribyrnong. Kate [Durham] and I went out to Maribyrnong to visit a couple of people there, and it happened that I was due to represent one of them in court the next day.

When you go to Maribyrnong you get a piece of paper at the security entrance. You write your name, you write your address and phone number, the names for the people you want to visit and your connection to them, and then you show them a passport to prove who you are. Kate wrote the same two names as I did because we wanted to see the same people. She wrote that her connection to them was 'friend'. I wrote that my connection was 'Barrister'. This was in the 7-9pm social visiting spot. Kate sailed through the double security lock, but I was told that there was a problem with my form.

I said: "What's the problem, Chris?"

"You're a Barrister, aren't you?"

"That is true."

"Lawyers' visiting hours are between 9 and 5."

He clearly took pleasure in saying that.

I said: "Oh, but surely it can't mean that lawyers aren't allowed to visit in the evening visiting slot?"

And he said: "Well that's the rule: visiting hours for lawyers are between 9 and 5."

"Surely the rule can't mean that".

"Well it's the rule".

"Can we have a look at the rule and check whether that's what it really means?"


"Why not?"

"It's confidential."

It was all very good humoured. He was obviously enjoying himself. Having stepped through the looking glass, I was quite amused by it all. I had another run at him, but it was to no avail. I said to him: "Look, I'm a friend to one and a lawyer for the other, what am I meant to do?"

"You'd need two forms."

"Perfect, can I have a second form please?'


"Why not?"

"You're not allowed two forms."

Now I'm sure there is a luxurious pleasure in jerking around a lawyer who doesn't represent your own view of the world. But if he was prepared to do this to me, with the reasonable expectation that I might make a fuss about it (although I didn't), what is he likely to do to people who are hopelessly dependent on the ACM guards? If detainees get on the wrong side of any of the ACM people they can expect to be treated badly. The potential for torment is appalling, and torment of course there is.

In the desert camps, when a woman has her period, she must fill in a form requesting sanitary pads. She must then queue to see the nurse and hand in the form. She will be given a packet of 10. If she needs more, whe will have to fill in another form and explain why she needs more.

A few weeks ago when a friend of mine was in Woomera. She saw a couple of teenage Afghani girls wandering around wearing nappies. When she asked why that was, she was told that the stress had made them incontinent. These are teenagers, reduced to wearing nappies. Perhaps that is the best reflection of what the conditions are like: just look and see what it does to the people.

Letters from behind the lines

Kate and I have organised a campaign of writing letters to detainees. We have received hundreds of replies. They give a powerful and terrible picture of what we are doing to people. This is from a letter written by someone at Maribyrnong. He wrote: I received your letter on the 11th February and I was happy very much. Please you give information about our situation to Australia because some people have not any information about detention centres. Today I had two visitors who came to my visit for the first time. One of them was journalist. One of them was girl, 25 years old. They had not any information about detention centres and could not believe. And the girl was crying after we talked to her. But I believe that we don't must look at our situation like sentimental people, we must look very deeply to these circumstances so that what we're eating and that we have a lot of suffering is on the second level. But first you must see why the people are coming here, and why for a long time they are staying in detention ... I don't must be sensitive and I don't must cry, because the cry make happy the enemy. But finally I will write for you the difference between detention centre and zoo: in the zoo the humans care for animals but in detention centres the animals care for humans.

Also from Maribyrnong: Being detained without any crime is very traumatic, shameful, self destructive and awful hardship, prisons may sound very hard but knowing an exact duration of a sentence is less stressful. But while we are in detention you do not know when you are going to be released and what will happen to you. It is a dreadful frustration. Sometimes I have a sense that no help will come, I feel like I'm in a grave with four walls. Nobody can enjoy confinement in cramped detention centres, walls topped with razor wire.

Villawood: ... I want to live as a human not like an animal in Villawood detention centre. Please contact me and visit me because I have many things that I can give and show you imagine how I can live 3 years in the detention centre. I am not a criminal I did nothing to put me in a prison I am a refugee ... Please help me, do something for me I'll be crazy I want to be out. I'll die.

Port Hedland: My hope really is finished for make life in your country. I don't know what happen to me in Iran, but I know death in my land is better than dying in this detention or in this hell. I lost everything. I lost my life, my love, my family and now I think maybe if I stay here I lose my mind.

Woomera: I really appreciate your paying attention to Woomera detention and especially to me. You had just watched, read about what happened, but the fact is bigger than that. The ACM officers had changed to monsters, they couldn't see anything except how to hit the people. They entered the compound with the blue uniform so that you couldn't see any part of their bodies. They were like an army. They used the sticks and hurt the people without any mercy or thinking about women or childrens.

After that they used the teargas against the families and they were avoided to film when they used that gas. Then at 2 0'clock in the morning they came to the buildings and pushed all the people to go to the mess for head account without paying attention to the pregnant women or the childrens when the weather was too cold. They hit and hurt anyone refused to move. hen they had chosen 40 men and they had put handcuffs on their hands and ordered them to sit on the ground till morning like criminals. They did not allow us to smoke or go to toilets or even pray. I wondered at that moment if this is where we had chosen and asking for protection. What the difference between this and our countries, and why we escaped from there.

The alternative Contrary to the government's alarmist rhetoric, there are very few refugees in Australia at present. They are people who have been accepted into the country after months or years of detention. By comparison with other countries, the total number of refugees we have accepted is pathetically small. Asia has 8 million; Africa has 5.5 million; Europe has 5.6 million; North America has 1 million. Australian and New Zealand together have only 76,000. We have about 2,500 in detention presently seeking to be accepted as refugees. They have committed no crime, unless it be a crime to flee persecution in a pitiable attempt to give their children and themselves a chance of a life worth living. They are not "illegals": they are human beings. There are about 4000 informal arrivals each year. It is a tiny number. These people do not pose a risk to our national sovereignty.

They are being held in gaol. It is hypocrisy to call it detention. Their human rights are ignored, their conditions are kept secret. When ultimately they are released from detention each refugee is indebted to the Commonwealth for the cost of their accommodation, at the rate of about $120 per day. Thus, a person who suffers the misery of Woomera for 24 months is asked to pay more than $100,000 for the privilege. So, even at the end of the torment, we add insult to injury.

We have a choice: imprison asylum seekers, in defiance of international law, or let them into the community after initial screening, whilst their claims for asylum are assessed. There should be a maximum of 3 weeks initial detention, to be extended only if a judge rules that the circumstnaces justify continued detention. Community release after initial health and security checks could be secured by bail conditions. Bail works very well in the criminal justice system. There is no evidence that it would not work for innocent people seeking asylum. Since more than 80 per cent of asylum seekers turn out to have good claims to our help, it is barbarous to lock them up for years while we consider whether they are entitled to our protection.

We must not rest On the 14th of February this year a man wrote from Port Hedland: I wanted to write to someone outside because I don't have anyone outside and I need to write some letter because I forget everything this two years I am in this prison. I am very happy this time because I learn some good Australians support us. Please we need freedom like every human. I have two years and I don't hear anything about my family in my country ... He finished: "Please don't forget us, we're humans."

Howard and Ruddock have abused these people, calling them 'illegals' and 'queue-jumpers'; they falsely accused them of being the sort of people who would throw their children overboard. Asylum seekers are human beings and they deserve to be treated properly like human beings. We diminish ourselves by the way we treat them. Once we recognise that these people are human beings, we will see that the problem is in truth a moral problem and that we have made a profound mistake in the way we have handled it. We must not rest until this outrage to humanity is ended.


Julian Burnside QC, who acted for Liberty Victoria in the Tampa case, delivered this speech to the dinner for the launch of Just And Fair Asylum in NSW Parliament House, Sydney, on 12 June 2002.


Suggested citation

Burnside, Julian, 'Refugees', Evatt Journal, Vol. 2, No. 5, July 2002.<>


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