Abyan’s Plight Is Not A Travesty Of Justice, It’s A Deliberate Denial Of It


Australia’s system of immigration detention has reached a new level of cruelty, and we shouldn’t be surprised, writes Mathew Kenneally.

Abyan, a Somali woman held in Australia’s asylum seeker detention centre on Nauru, recently sought access to Australia’s health system. She claimed to have been raped and wanted to consider terminating the resulting pregnancy.

Following public pressure in support of Abyan’s right to access abortion, she was flown to Australia. Within a week of arriving, Abyan was returned to Nauru.

Bill Shorten calls it a “travesty of justice”. The veracity of Abyan’s allegation and demand are contested. Nauru denies any evidence of the rape. Peter Dutton claims she never really wanted the termination. Dutton says refugee advocates claiming she simply wanted counseling prior to a termination “should be ashamed of their lies”.

Both Shorten and Dutton are wrong. This episode is not a morality tale. It’s not a matter of “who is lying”. It’s the natural consequence of offshore processing.

Australia’s exchange of cash for prison space with Nauru is, like any trade agreement, built on comparative advantage. Nauru’s comparative advantage is an absence of the rule of law. Asylum seekers can be held in detention indefinitely.

Asylum seekers have no rights to see Australian lawyers or speak to the Australian media. Proposed laws even restrict their rights to sue for use of force by Australian contractors and officials.

Been the victim of an attack by a local? The Nauru police will investigate the case. Yes, it’s a population of 10,000, and yes the detention centre is one of the largest local industries, but you’ll have to trust them, Australia has no jurisdiction.

Want an abortion? Access to abortion in Nauru is restricted to circumstances where necessary to save or preserve the mother’s health. The law may not protect you, but it can control you.

This is the world in which the Australian Government dropped Abyan, a 23-year-old refugee. In this context, determining if Abyan or her advocates are telling the truth is not necessary to maintain the rage.

It is a scandal that Abyan does not have access to an impartial police force, cannot leave an environment in which she claims to have suffered a rape, and cannot confidentially access family planning services or counselling.

To access comprehensive reproductive health care, travel to Australia is necessary. Unfortunately, Australia has the rule of law, so visits must be quick and supervised.

Peter Dutton knows this. He told Ray Hadley, in one of their weekly counselling sessions:

“…[the]racket that’s been going on here is that people, at the margins, come to Australia from Nauru, the Government’s then injuncted and we can’t send them back to Nauru …”

The result is repugnant: a woman seeking a termination has to justify her decisions to a Government official. Not the first time the State has come between a woman and her right to choose, but an extreme example.

Abyan was removed because officials concluded she did not want a termination, a claim she has denied in writing. Will the official assertion be tested? No, that would require a fact-finding process. It would require allowing Abyan to see a lawyer; it would involve holding the Minister accountable. It would require law. It would defeat the point of Nauru.

Abyan cannot have her right to choose, she cannot be given time to choose, lest she receive an ill-gotten respite from the hell that is Nauru.

We cannot meaningfully judge who is telling the truth between the Minister who refuses to discuss “operational matters”, and a 23-year-old who, having restricted access to media or lawyers, must communicate through a brief handwritten note. Without transparency and law, truth is beyond our grasp.

Even presuming Peter Dutton is correct about the facts, the situation is still shocking that a woman’s life in Nauru is so horrendous she would pretend to seek a termination just to receive some respite.

This is not a travesty of justice as Bill Shorten claims; it is the deliberate absence of justice. The human rights advocates need not be ashamed. The Government should be, for administering a detention system that places women at risk of sexual violence and than denies them the right to make choices about their own bodies.

The Coalition brushes away criticism of offshore processing by noting that it has bi-partisan and widespread community support. They rely on a utilitarian case: the policy has stopped the deaths at sea. If we are cruel to these folks, nobody else will risk their lives. That this policy saves lives overall is still disputed. However, if we are being utilitarians we must count the pain detention causes. Neither the ALP nor LNP want to do the math.

That is why Peter Dutton blames the refugee advocates and Bill Shorten blames Peter Dutton. Neither wants to admit that Abyan’s traumatic experience at the hands of the Australian government was, at least to some extent, unavoidable.

This is not a moral travesty. It’s part of the plan. It’s the pain, to the utilitarian pleasure of stopping the boats.

Maybe offshore processing is the least bad policy option, but to reach that conclusion we must be willing to stare at Abyan’s situation and say “it’s worth it”.

CLARIFICATION: This article originally suggested that Abyan had been raped inside the detention centre on Nauru. It has been removed, as it is not clear where the alleged rape occurred.

Mathew Kenneally is a stand up comedian who moonlights as a lawyer. He's a regular new Matilda columnist and is the co-author with Toby Halligan of the satirical blog Diary Leaks. He is also the co-founder of the topical comedy room Political Asylum.