Detention without trial


The imprisonment of Cornelia Rau raises questions that go beyond our treatment of the mentally ill. It goes beyond the lack of a national missing persons data-base. It even goes beyond the conditions within immigration detention centres, which are a result of what is wrong with the system, not a cause of it.

The Rau case shows that something is rotten within the state of Australia. Despite what ministers Vanstone, Downer and the Prime Minister himself have said, what happened to Cornelia Rau was not a ‘regrettable accident’, or an ‘unfortunate chain of events’. What happened to her is a direct result of Government policy.

If the principle of habeas corpus were still unequivocally upheld in this country such an abuse could never have occurred. Going back as far as Magna Carta, English common law enshrined the right of a person to be brought before a judge to investigate the lawfulness of his or her detention. This ancient right has been carelessly tossed aside by recent Australian governments, starting with the Keating Government in 1993. The policy has been implemented ferociously and heartlessly by the Howard Government.

Most Australians apparently had no qualms about locking up asylum seekers without trial. But the imprisonment of one of our own has brought the policy of indefinite, mandatory detention into new focus. Let’s look at those words: Indefinite “ it could last for the rest of a person’s life. Mandatory “ there is no one way of avoiding it. This is the system in which Rau was trapped. Had she not been noticed by the refugees in Baxter, and had her case not been taken up by refugee advocates, she could have been in Baxter for years.

She could have been incarcerated like Peter Qasim, the young stateless man from Kashmir who is in his seventh year of detention. Or like the asylum seekers whom the High Court found last year were not protected by habeas corpus, and so can be kept locked up indefinitely.

When mandatory detention was introduced it was the beginning of the slippery slope. It started with the abuse of the fundamental human rights of asylum seekers and has led to the imprisonment of a lost and disoriented Australian woman. If this policy is not changed, where will it end? If a young woman with an Australian accent can be locked up for supposedly violating the Migration Act what other abuses are possible?

The path we have been on these past few years began with the cynical political stoking of our latent paranoia about borders. The ‘them-and-us’ fear and hatred that was used during the 2001 Federal election to secure the Howard Government victory has become entrenched in the culture of the Department of Immigration. Now anyone who doesn’t have the right piece of paper is treated like an enemy.

I’ve recently been reading Anna Funder’s Stasiland about life in East Germany before the Wall came down, about the pervasiveness of the state system of harassment, detention and terror. Here is a quote from a broadcast by the chief propagandist for the East German regime:

People should listen to us when we say, again and again: we determine the order at our border! And we ensure that it is maintained, for good reasons. Whoever wants to traverse the GDR border needs permission. Otherwise: stay away from our border! He who puts himself in danger will die. I know, ladies and gentlemen, it sounds hard. And will perhaps even be interpreted by some of as ‘inhumane’…But what is ‘humane’ and what is ‘inhumane’?

It is eerily reminiscent of John Howard’s ‘we will determine who comes to this country’ mantra.

Small abuses lead to larger ones, small lies to big ones. The state is a powerful instrument and ordinary people need to be protected from its potential abuses. That is one of the roles of our legal system: to protect our rights. When special laws are made that limit the rights of some people it is the thin edge of the wedge. Mandatory detention is a chilling example. First one group feels the heel of authority (asylum seekers), then another (the mentally ill), then another, then another…then another.

This is the dangerous road the Howard Government has taken. Sir William Deane said, while a member of the High Court:

It cannot be too strongly stressed that these basic matters [the right to challenge one’s unlawful detention]are not the stuff of empty rhetoric. They are the very fabric of the freedom under the law which is the prima facie right of every citizen and alien in this land. They represent a bulwark against tyranny.

The Cornelia Rau case highlights the evil that is indefinite, mandatory detention. It’s time this cancer was removed from our system.

Baxter watch describes conditions at Baxter Detention Centre.

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