Unfair Go


The Howard Government has announced that ‘boat people’ will in future have their asylum claims processed offshore. Quite apart from the astonishing expense of this approach, it is bad policy and made for bad reasons.

In a community increasingly driven by economic rather than moral considerations, it is surprising that no one seems concerned at the cost of the new policy. On average, Villawood costs about $120 per person per day, Baxter costs about $380 per person per day, Christmas Island about $650, and Nauru about $1500.

But absurd cost has never been a deterrent for Howard when it comes to the treatment of asylum seekers. To paraphrase a TV commercial: locking them up on Nauru expensive; winning an election priceless.

Of course, the wickedness of this new policy goes way beyond cost. Announcing the policy, Senator Amanda Vanstone repeatedly referred to the fact that asylum seekers could not expect to come here and use Australia as a platform for criticising the regime from which they fled.

So part of the explanation for the new policy is that asylum seekers will be silenced by sending them to the remote misery of Nauru, a country which is peculiarly selective in those to whom it will grant visas. Will asylum seekers be permitted to use Nauru as a platform for criticising the regime from which they seek protection? Will the press be allowed onto Nauru to hear and report those protests? Will lawyers who oppose the Government be allowed access to them? Not likely.

Freedom of speech, the rule of law and protection from persecution are basic democratic rights, yet we will now deny these in order to appease Jakarta.

The new policy is disturbing in another way: According to Senator Vanstone, boat people processed offshore will be denied rights of appeal. In substance, they will be denied the protection of the Australian legal system and will be removed from Australia to be processed by Australian officials in another country. This is effectively the same as Guantánamo Bay: a legal black hole where people can be held out of sight and without effective access to help.

By sending asylum seekers to Nauru, they will be denied the comfort and protection of community support and legal help. It was community support that eventually drew attention to the plight of Cornelia Rau. If she had been detained on Nauru, the illegality of her detention would not have been discovered.

And again, we will be exposed to the unedifying spectacle of children being held prisoner in circumstances of abject misery. Perhaps that is why Howard needs to hide them in Nauru.

Putting humanitarian considerations to one side, this new policy means that refugee claims will now be processed in secret out of sight and without the applicant having the benefit of legal help or the possibility of judicial review of adverse decisions. Unless the Department of Immigration has suddenly developed the knack of error-free operation, this will inevitably increase the unfairness of the process. Anyone with the misfortune to be scooped up and sent to Nauru in error will now have even less hope than the hundreds of mistaken cases already uncovered.

But the Howard Government has developed a taste for unfairness, which has been masked by Howard’s deceptive rhetoric about ‘Australian values’ and a ‘fair go.’ In a speech in Adelaide in 2004, Howard reaffirmed his faith in Australia as ‘a fair and decent society.’ What bullshit.

Unfair: Howard has overhauled the Workplace Relations Act. One aspect of the new law expressly permits employees to be dismissed unfairly. Another aspect makes it a jailable offence to ask a co-worker how much they are paid.

Unfair: Another provision forces employers to punish employees if they engage in any unauthorised industrial action. Recently, a group of workers had four hours’ pay docked because they took one hour off to raise money for the widow of a mate who had been killed at work.

Unfair: In John Howard’s Australia, it is possible for a person to be jailed for 14 days without trial and without being told the evidence against them. It is now possible for a person to be placed under house arrest for up to a year without trial, without being told the evidence against them. It is possible for an Australian citizen’s passport to be cancelled, without them being told why. And it is possible for a person’s visa to be cancelled without the visa-holder being told why. These measures are ostensibly designed to protect us from terrorism, but Howard’s new laws now permit, even guarantee, unfair trials.

Unfair: When the so-called anti-terrorist legislation was introduced, the Howard Government explained that basic rights would be protected, because people would be able to go to court to challenge the decisions. They failed to explain that the review process could be rendered futile by the Attorney-General. This is because the Attorney-General can, by conclusive certificate, prevent the applicant from hearing the evidence and the submissions relied on by the Government. In addition, the applicant’s lawyers will be prevented from hearing the evidence and the submissions relied on by the Government. This means that decisions which have a profound effect on a person’s life will be, in effect, be unchallengable.

It is virtually impossible to show that a decision was wrong if you are not allowed to know the facts and the reasoning on which it was based. Secret hearings based on secret evidence are anathema in any democracy, but they are a fact of life in Australia today.

Unfair: In any proceedings that touch on security, the Attorney-General can, by conclusive certificate, prevent a person from calling relevant evidence to advance their case or to contradict the Government’s case. This is made possible by the National Security Information (Criminal and Civil Trials) Act. It can be done when the Attorney-General considers that the evidence might jeopardise our national security.

Protecting our national security is obviously an important objective, but how is ‘national security’ defined in the legislation? In its defined meaning, ‘national security’ includes such things as our interest in ‘avoiding disruption to national and international efforts relating to law enforcement, criminal intelligence, criminal investigation, foreign intelligence and security intelligence.’ This appears to mean that evidence which might reveal operational details of the CIA or Mossad or the Egyptian security forces would be within the defined meaning of our national security interests.

‘National security’ is also defined as including Australia’s international relations. ‘International relations’ is defined to mean political, military and economic relations with foreign governments and international organisations. So, by definition ‘national security’ extends beyond anything most people would associate with the expression.

If any evidence to be called in a court may affect ‘national security’ (as defined above) the Attorney-General may seek to have that evidence kept out, despite its relevance. In practice these measures are a guarantee of unfair trials.

The West is concerned by the apparent threat to democracy posed by terrorism. The best response to that threat is to uphold the traditions of democracy. It is the tragedy of our age that, in order to protect democracy, John Howard’s Government has sacrificed its most basic elements.

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