Tuesday, April 23, 2013

The politics of ASIO refugees

In a poll conducted by The Age last week, 62% of respondents supported ASIO “banning refugees based on a secret assessment that cannot be challenged.” 

Therein lies the difficulty for lawyers, refugee advocates, and the politicians who believe that ASIO’s powers exceed the rule of law and the right to a fair trial. 

Senator George Brandis signalled on 774 radio that an Abbott led government would not continue a review of ASIO assessments by a former judge with no mandate to overturn decisions: “We have confidence in the way the ASIO assessment is conducted,” he said.
The Prime Minister has said much the same and has continued to ignore a decision of last year's ALP national conference to examine how adverse security assessments of asylum seekers could be reviewed in a way that protected ASIO's sources but ensured procedural fairness for asylum seekers. 

The Greens have a different view, but, at this stage, no political mandate for the implementation of merits reviews, appeal rights or the right to be informed of the charges against genuine refugees deemed to be security risks. 

Politically, the future is bleak for the 55 genuine refugees in indefinite detention in Australia – which is what prompted 27 of them to begin a futile 10 day hunger strike.  Their desperation became acute and, in the first few days, they really were prepared to die rather than live forever behind bars.

The support they received for their request for community detention with strict controls from the Human Rights Commissioner, the Commonwealth Ombudsman, Paris Aristotle, their lawyers, community activists, friends and the UNHCR, convinced them that death was final and even more hopeless, and that it was worth persisting for justice.

But how can justice be achieved when there is only minor political will for change? 
Political leadership is hard to find on refugees.  In the current context, the ALP is distinguishing itself from Abbott on the basis of jobs, NDIS and Gonski – not human rights.  They are frightened by the words ‘boarder protection’ and ‘national security’.  The Greens are butting up to stone-walls on all issues of human rights: including equal marriage, indigenous health, single parents and refugees.  Human rights are just not on the agenda for 2013.

Prior to 2010, opinion polls consistently recorded 69-80% support for a bill of rights or Human Rights Act.  The consolidation of Anti-Discrimination laws undertaken by the Labor government has been a far cry from a bill of rights. 

The Gillard government’s Human Rights and Anti-Discrimination bill was widely criticised for “offering the religious open slather” (David Marr).   The Australian Lawyers for Human Rights noted that: 'Although the new laws are a good start, there is still much that can be done … that would bring Australia closer to meeting its human rights obligations under international law. In particular… protection from discrimination for survivors of domestic violence, the homeless, intersex people and people with irrelevant criminal records.”

Amnesty International has already published scathing remarks as early as 2011 commenting that Labor had presided over a worsening of discrimination against indigenous communities, asylum seekers and refugees.  The Human Rights Council of Australia has previously called for a strengthened institution.

The Prime Minister’s reluctance to raise human rights issues in China is also a give away that this issue is not rating in the polls for Labor.

With broader human rights concerns not rating with the government or the general public, specific concerns about ASIO are unlikely to be given any weight at the ballot-box. Yet, we have a strong line-up of eminent minds urging us to prioritise the human rights of people in detention; a growing collection of parliamentary reports and inquiries damning our current practices of indefinite detention and increasing concerns expressed by international observers.

At the ALP Conference in Victoria on 20 April, the Prime Minister’s speech omitted any reference to refugees or human rights: the phrase “care for all” was repeated, but only in the context of NDIS, education and jobs.  The plan seems to be to win the election, and to “bring Melbourne home to Labor” without mentioning human rights – especially not of 55 indefinitely detained refugees.

This is a desolate scene for human rights advocates and sufferers of abuses of human rights in Australia.

The only way for this to change is for more than 38% of voters to care about our human rights record.  This is the challenge for politicians who do care, lawyers who understand what’s at stake and activists and citizens who want respect and dignity for all.

The first step is for all of us to understand that locking people away for the entirety of their lives because one (arguably unaccountable) organisation says so, is not just.  Every human has the right to a fair trial.  Our court system exists to prevent a police state and arbitrary arrest and detention – even by ASIO.


The second step is to tell politicians that this matters to our way of life in Australia.  The politics of human rights and ASIO refugees is up to us.

Thursday, April 18, 2013

Refugee debate won’t be solved by oppositional politics

Ten days ago, I was staring at a dying man.  His lips were black; his head flopped; his eyes were empty.  He had not drunk water for three days and was in critical need of medical attention and fluids.
Coaxing him back to life and away from the edge of the cliff was not something for which I had been trained.  But instinct told me that I had to find a safe space for him to relent.  Telling him he was stupid, harming only himself or that I had better ideas – were not tactics that would work.
There was a conflict: he wanted to die to make a point; I wanted him to live – because death is final and hopeless.
He was a refugee who had been locked away for more than three years because of an adverse security assessment.
I had to rely on instinctive nous about conflict resolution: empathy, points of agreement, small steps, meeting needs, finding comfortable and non-threatening space to back away from fixed positions.
I focused on these: understanding his desperation; agreeing on small things – there are some good people in the world; it is ok to allow a drink – that is not giving up, dying is giving up; let’s just have one small drink and see how that goes.
Eventually, he drank a sip of water – and then an entire glass.
A softly, softly approach is rarely adopted in politics where oppositional battles are the very stuff of our democracy.  But for sensitive topics, where emotions run high and positions are fixed, conference, empathy, and small comfortable steps are the only way through.
This applies to the refugee debate in Australia.
The current Australian approach to refugees is an embarrassment on the international scene.  The countries that take in the most refugees and displaced people include Syria, Iran and Pakistan.  There are over 40 million displaced people in the world – over half of them currently have refugee status.    We declare our quota filled and claim we take in a large number of refugees per capita.  Our media fixates on a boat that takes an unusual route and we have 55 people indefinitely detained.
We are conflicted between generosity and control; security and individual rights; fear and acceptance; patriotism and global responsibility. 
Abbott’s and Gillard’s politics are entrenched on the side of control, security and fear.  These are clearly fixed positions.  Yelling, opposing, protesting and hunger striking will not move them.  The context of the federal election and Gillard’s tendency to mimic Abbott on issues of national security make it even less likely that berating will work.
So we need to find another way.  Tony Windsor had it right when in June 2012, he and others called for a cross-party collective to talk through the issue and reach consensus.  Unfortunately, his valiant efforts were abruptly cut short by the shot-gun Malaysia solution debate that ended two months later with the Houston Report  - a report that disappointed all refugee advocates.
We are left with the Greens on one side, occasionally joined by Wilkie, Windsor and Oakeshott and the other 140 plus MPs on the other side of the ledger.
As a member of the Greens, I am sometimes frustrated when the Greens butt heads with the Government on policy, rather than taking a more gentle approach.  I would not extend this to accepting the Malaysia solution – a plan that was too weighted on the side of boarder protection over human rights obligations. However, I think there is a futility in berating the dying government and expecting them to reach for the glass of water.
There is room for empathy: we all know the debate is difficult, the public perceptions skewed and that there are competing priorities.  There is room to identify the competing needs: human rights obligations versus fear, security and economic concerns.  And there must be an emphasis on creating the political and public space for leaders to move away from fixed positions. 
The Multi Party Committee on Climate Change was an example of politics at its best: conference, negotiation and respectful policy development.  We urgently need a similar approach to refugees: a collaborative approach to refugee policy where small steps are taken and conflicting needs are met.  Obviously, this has Buckley’s chance of occurring ahead of a federal election.  But like refugees in camps across the world, I live in hope.
Meanwhile, hunger strikes and oppositional approaches have little prospect of improving the circumstances of the 55 refugees in indefinite detention.  But this impasse is intolerable for a democracy with a commitment to fair trial and rule of law.
I implore one of the leaders, or key independents, to call for a multi-party approach to resolving the ASIO Refugee situation.  The Stone review process is insufficient – there are no timelines and Stone has no decision-making powers.
The man I coaxed back to life is now well, eating, smiling and hopeful.  However, while politics is robust, hope is fragile.  We need to talk our way out of conflict.