Kids As Collateral: How Scott Morrison Used Children In Detention As Hostages

When major media outlets like Fairfax or the Murdoch press report on stories involving politicians, they usually don’t do anything so vulgar as to try to determine the truth of what they’re reporting. They just report one side and the other, and who knows where the truth lies?

I don’t consider myself a journalist, but I don’t consider that kind of reporting journalism in any meaningful sense. So I thought I would try to briefly review the legislation that Scott Morrison successfully pushed through the Senate late last week.

As my interest is in the claims about Morrison using kids as hostages – a claim that I think is basically correct – I will not try to review here all the vulgarity of the new legislation. Suffice to say, it’s Scott Morrison’s bill, and everyone working in the field regards the laws as particularly heinous.

When a bill is released, an explanatory memo is released with it. As it is partially propaganda for the bill, explaining its value, these usually have mixed value.

Consider what the explanatory memo, however, forthrightly admits: that powers under the Maritime Powers Act “cannot be invalidated because a court considers there has been a failure to consider, properly consider, or comply with Australia‘s international obligations”. Or that we can take a “vessel or person” anywhere, even if we don’t have an agreement with that country.

Changes to the Migration Act create, among other things: 

• clarify the availability of the removal powers independent of assessments of Australia‘s non-refoulement obligations;
• remove most references to the Refugees Convention from the Migration Act and replace them with a new statutory framework which articulates Australia‘s interpretation of its protection obligations under the Refugees Convention;

What does non-refoulement mean? This is the concept that if a refugee flees a dangerous place, where, for example, they might be shot for their political opinions, you don’t send them back to that dangerous place. Morrison wanted to make this power available “independent” of assessments of that obligation. Which is a pretty artful way of saying that he wants to send refugees back to places where they can be tortured and murdered. Lawyers have a tremendous talent for jargon and euphemism to obscure those kinds of realities.

Readers can figure out for themselves what kind of “protections” Morrison intends to give refugees after scrubbing the Migration Act of any language that could be interpreted in a way that is consistent with international law. Suffice to say, international law is quite decent and humane, and naturally was inconsistent with Morrison’s policy goals. His fear was that the courts might strike down his legislation by reading into the Migration Act Australia’s human rights obligations, as the High Court very occasionally has done in recent years.

There is also a new “fast track assessment” process for people who sought asylum by boat after August 13, 2012, and “other cohorts specified by legislative instrument” – which means that Morrison would presumably be able to apply it to all future asylum seekers. It also removes access to the Refugee Review Tribunal (RRT).

The reasoning is pretty straightforward. Asylum seekers typically have limited familiarity with English. Many have been through traumas which can add difficulties in recounting their personal stories to an unsympathetic and suspicious audience. They go through a process of making a claim for asylum for which they haven’t been prepared, and may not understand.

Thus, some asylum seekers who are refugees do not pass their initial screening process with the Department of Immigration and Border Control (yes, that’s the new name). After getting some legal advice and help, and appealing to the RRT – which is more independent of the government – their claims are then accepted, overturning the previous decision of the DIBP. The government prefers a rushed process, which takes advantage of the vulnerability of asylum seekers – and that’s presumably also why they cut a scheme of legal aid to asylum seekers.

One should also remember the Legacy Caseload bill. The Gillard government – which also showed extreme cruelty to asylum seekers – decided to adopt a “no advantage” policy, and stopped processing the claims of asylum seekers. There are estimates of about 30,000 asylum seekers who need processing – creating a wonderful pretext for the Coalition government to scrap any vestiges of fairness in evaluating claims for asylum.

Nevertheless, the Coalition faced a Senate that was not entirely congenial, and it had to pass the bill somehow. Much of the media reported that Greens Senator Sarah Hanson-Young accused Scott Morrison of using kids as hostages. Yet others made the same claim too.

Senator Kim Carr from the ALP declared:

The government will say that if we do not support these measures then we will not be able to remove children from detention. Frankly, this is a proposition which says that this chamber should respond to a government that is now holding children up as hostages. If the minister were interested in removing children from various offshore facilities, he could do so tonight. He does not need this legislation to achieve that outcome. To suggest that we should respond to quite unfair measures in the hope that we can get children out of detention strikes me as the most crass form of blackmail. Holding children to ransom in that way is something that any government should regard as reprehensible.

Senator Sue Lines from the ALP:

It is with great sadness that I follow Senator Carr, particularly with respect to some of the final words he spoke into the Hansard today—that is, that the government is holding children to ransom in order to get agreement on the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. I agree wholeheartedly with Senator Carr's comments.

Senator Carr is completely right when he says that the government could act on children in detention right now, and it could. Many government senators and members have had a group called Love Makes a Way come and sit in their offices and talk to them. This is a religious group that has said over and over again that what the Abbott government is doing to children in detention is wrong. Those children could be taken out of detention today, yesterday, a month ago—but, no, we see not an ounce of compassion from the Abbott government. Equally, people could be processed. What we have seen over and over again from this government is the complete demonisation of refugees and asylum seekers in our country. We see nothing but demonisation of those who seek our protection in this country.

Greens Senator Scott Ludlum made the point too:

The bill effectively will redefine the definition of refugee to be whatever the minister of the day says it is. And although Mr Morrison appears to be using hundreds of children who should never have been detained in the first place as a bargaining chip—and, again, we see the kind of compassion that I think has driven this debate for many years. … The crossbenchers have been told that Minister Morrison will trade off children behind razor wire—who should never have been put there in the first place—as though they were poker chips in a political negotiation. What kind of sociopath engages in a political debate or a political negotiation using the lives of children who have fled from Hazara lands in Afghanistan or from Sri Lanka? It is very, very hard to fathom how it could possibly have come to this. Those children could be released tomorrow, irrespective of the outcome of this debate tonight.

The point is not hard to follow. Scott Morrison told the crossbenchers that unless they voted to pass his legislation, children would stay in detention.

Let us consider a few facts about our detention centres. Graeme McGregor, Amnesty’s refugee campaign coordinator, wrote of Manus Island that, “The conditions in one dormitory were so bad that Amnesty International considers the accommodation of asylum seekers there a violation of the prohibition on torture and other ill-treatment.”

In August this year, the aptly named Save the Children were reported warning that “child asylum seekers on Nauru are frequently bullied or threatened with rape and murder”. Just a week ago, a new open letter was released calling for the closure of Nauru, noting among other things that seven kids had tried to kill themselves.

As the Senators noted, Scott Morrison could have freed these children any time he wanted. He chose not to. He then chose to use the children as leverage to extract political concessions.

That is, he told other politicians that unless they voted the way he wanted them too, children would suffer. That sounds a lot like a ransom. It also sounds a lot like terrorism – the threat or use of force against civilians to achieve political goals.

Senator Hanson-Young went a bit further in her claims. According to her account of Senator Ricky Muir’s Senate speech:

He was told the only way to get these children out of detention was to pass this bill and this package. I have been saying for a number of weeks that the minister was using children in detention as hostages—it was a figure of speech until tonight. Tonight we saw children on Christmas Island being handed the phone number of Senator Muir, and they were asked to call that number and beg that senator to let them out. If that is not treating children as hostages, what is it?

As it happens, a spokesperson for Muir denied that he spoken to any kids on Christmas Island.

Senator Muir actually said:

In its initial form, I could not vote for this bill. What the government is proposing is not ideal. There are parts of the bill that I am not comfortable with. However, to do nothing is not an option either. I fear that doing nothing will not help these people. The government has said that, if this bill does not pass, the 30,000 people currently awaiting processing will continue to be left in limbo. The government has said that, if this bill does not pass, the 1,550 people who arrived between 19 July 2013 and the election would be sent to Nauru. The minister has said that, if this bill does not pass, he would be unable to use statutory processes to assess refugee claims and would need to go through an administrative process. He has publicly stated, 'What it means for those 30,000 people is they will just wait longer and longer and longer.'

Whilst I have not had the opportunity to visit detention centres to hear their stories personally, I cannot ignore a joint letter written by refugees on Christmas Island. In that letter, they state that, if a TPV was the only option this government was going to offer, to accept it, because the mental anguish and pain cannot go on. It was a plea, a loud cry for help.

Tonight I have also spoken with people who have worked closely with detainees on Christmas Island. They told me that this bill is not completely fair, but that the detainees are tired. They told me that the detainees have had enough and that they want out. They are desperate. She told me that they have watched the news and they know it is down to one vote, and that vote is mine.

While I was speaking to these people and they were informing me, they started to break down and cry as they were speaking about children who have been in detention since they were born who are two years old. They speak about the word 'out'. To them 'out' means going to church on occasion, and that is it. When they hear the word 'out', they cannot begin to associate it with freedom.

They told the people in detention that they rang the office of the man whose decision it was to decide whether they would be out of detention before Christmas. That man wasn't the minister for immigration; it was me. It should not be like this but it is. The crossbench should not have been put in this position, but it has.

This sounds like a man who was successfully bullied into supporting a bill he knows is unjust. He seems to have genuinely believed that unless he passed the bill, people would not be freed, and the children would suffer. The role of those who worked with detainees contacting Muir cries out for investigation.

Nevertheless, it seems that Senator Hanson-Young simply misunderstood or misheard Senator Muir’s speech.

Which is not exactly an exoneration of Scott Morrison. I doubt Clive Palmer was particularly concerned about the asylum seekers he sold out in passing this bill. Senator Xenophon spoke about his “proposals” for the legislation, many of which either weren’t adopted, or were watered down to the point they became meaningless.

He still voted for the legislation: either he is naïve or cynical, and he has otherwise not shown many signs of naiveté. Senator Muir, on the other hand, appears to have genuinely believed Morrison’s threat: that he had to pass the legislation or the children would stay in detention.

Or to put it another way: Scott Morrison successfully used children as bargaining chips. Just as the Greens and ALP said, to general indifference. That is the country we’ve become. Threatening to harm children isn’t even a scandal.

Whilst the new bill is scary, and will mean terrible things for many innocent people, the green light to Morrison’s behaviour is also scary. Because if even that can get a green light – gratuitous threats of harm to children – what other lines are there left for Scott Morrison to cross?