“Boat People” Symposium

Saturday 15 October 1995
Murdoch University

Keynote Address

Sir Ronald Wilson
President, Human Rights & Equal Opportunity Commission
Formerly Chancellor, Murdoch University

Ladies and gentlemen, I am delighted to be here today. I believe there are few things more worthwhile than stimulating debate on this important topic. I have often been proud of my association with Murdoch University and even as an ex-Chancellor I am still very proud of it on an occasion like this.

I am here really just to speak for a few minutes and formally open the Seminar. But I am an advocate at heart and I want to behave like one this morning. So I am going to outline a proposition and offer some arguments in support of it.

My proposition is that Australia presently exhibits a very low tolerance to Boat People, a tolerance that comes nowhere near what might be regarded as a rational sustainable and humane limit.

But first let me develop the sad paradox that underlies that proposition. On the one hand, Australia, for its size and importance, takes a high profile in the international community in the cause of human rights. In recent years, I have attended both the World Conference on Human Rights and a meeting of the UN Commission on Human Rights and I have observed the full role played by Australia in stimulating a concern for human rights. It deserves credit for its involvement over the years in the formulation of some very important conventions. Likewise, in its bilateral relationships, it exhibits a considerable concern for human rights standards in other countries.

Again, the present Government has been very supportive of my Commission - the Human Rights and Equal Opportunity Commission and acknowledges its independence. Of course, the Government is not obliged to take any notice of us but at least I can go to the Attorney at any time with a proposal for change. The Government may be unable to accede to it but it accepts that the Commission is nevertheless free to make the matter, whatever it is, an issue in public debate. It is interesting to note that the Commission, through its independent role, has become a model national institution for human rights for many countries around the world. The former Human Rights Commissioner, Brian Burdekin, has been instrumental in assisting the formation of an independent national human rights institution in several countries, including Russia, Latvia, India, Thailand and Indonesia.

All this is a plus for the Government. How sad a paradox it is, then, that it appears in recent times to have developed a paranoia that, without stringent controls and frequent amendments to the Migration Act as every new threat emerges, Australia will be flooded with more and more Boat People.

Let us reflect on the Boat People for a moment, because it is not only the Government to whom my submission applies. It is very sad that the term "Boat People" has taken on a pejorative meaning. When a boatload of desperate human beings arrives on our shores, there is likely to be a media frenzy about what it presages. Whether we are going to have a series of boats arriving. Whether it will be the fact that, as one prominent member of our National Parliament said in advocating the passage of legislation relating to China's one-child policy, "hundreds and thousands of people from China and other Asian countries will shortly be making plans to get to Australia". The same member suggested it may be necessary to consider turning the boats around at sea before they came without our territorial waters. This was put forward as possibly the only way to close the flood gates and protect Australia in the long term.

What a lot of rubbish, ladies and gentlemen. We have had less than 4,000 Boat People arrive on our shores in the past twenty years. Our very place in the world as an isolated continent provides a very effective barrier, so that only the most courageous, the most desperate people are prepared to tackle thousands of kilometres of open sea in often unseaworthy boats. Yet, if you reflect on the public attitude and the attitude of many of our leaders, you would think that Boat People are people who have embarked on a fishing trip, or are merely tourists having undertaken a sea voyage for the good of their health or for whatever. All this instead of crediting these asylum seekers with a desperate desire to come to a country in which they have, for whatever reason, imposed a trust that they will be received.

Of course, their credentials as asylum seekers asking for refugee status must be tested, but at least when they arrive must they be described as "illegals", treated as criminals and locked up? Perhaps for several years. We do not do that even to alleged criminals without due process, including lawful procedures of arrest and the laying of a charge. It is very sad that the general effect of media publicity towards Boat People is such as to generate a general suspicion and hostility towards them. They are not criminals and do not deserve to be locked up - men, women and children. We need to ask, is it really necessary to treat them like this?

I believe Canada is one country that does not make a practice of locking up their asylum seekers. I am told they have a 95% success rate keeping in touch with those who are released into the community. That leaves a very small percentage of those who abuse the trust that is imposed in them by allowing them a freedom pending a decision n their credentials. But here in Australia not only do we lock them up, we choose the most inhospitable and inaccessible places in which to detain them. Why? Is it so as to keep them from their own communities who have arrived in Australia before them? Is it to ensure that legal advice will be less readily available?

There is a section in the Migration Act - I think it is s.256 - that requires the Department to provide access to legal advice on request by the asylum seeker. My Commission has had a problem with the Department in recent times because it refuses to notify Boat People of their right to legal advice. How ridiculous and contemptible is it when the Government acknowledges a requirement in their statute to provide legal advice on request but then refuses to tell them they are entitled to have a lawyer if they want one! This is despite Australia's acceptance of obligations under the International Covenant on Civil and Political Rights which provides, in Article 10, that "all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person". How many of these Boat People would you expect, with no knowledge of our country's culture and ways, and no prior knowledge of our legal system to know of their rights? Perhaps if they had studied the Migration Act, it might be one thing to say "Well, of course, they will ask for legal advice if they want it". But fancy expecting them to know that they are entitled only if they ask for it.

But I have digressed. I was going to advance some propositions in support of my submission. Let me enumerate the factors that have been of concern to my Commission in recent years.

The first one is the one I have mentioned, considering it necessary to detain asylum seekers in quite stringent conditions in inaccessible places.

A second factor is closely aligned with the first, namely, the appalling situation in which asylum seekers who landed on Christmas Island earlier this year were treated. Kept for many weeks in a hot tin shed in what was described in the media as appalling conditions and with a Minister of the Crown explaining the reason for keeping them there as being because it was more economical. It is true that eventually they were moved to the Curtin detention centre near Derby, but the way in which the Government was content to leave them for several weeks in those conditions on Christmas Island says nothing for Australia's credibility as a nation who had accepted the obligation of treating persons in detention with humanity. After all, Australia compares more favourably with many other countries of the world in its resources for receiving asylum seekers.

I understand that Germany in recent years has received something like a million refugees. It hasn't turned them away. The detail is this. As at December 1993, Germany had recognised 183,000 people as refugees, had allowed entry to 130,000 family members and had allowed a further 755,000 de facto refugees to remain. The world picture for 24 million refugees is bleak indeed, with 3.5 million Afghan refugees in Iran and Pakistan and another 2 million Rwandan refugees in Zaire and Tanzania. Coming near home, it was announced in The Australian newspaper earlier this year that 50,000 Boat People presently crowded in camps in Asia were being ordered to vacate those camps by the end of this year.

Ladies and gentlemen, these numbers are mind-boggling. Many countries with land borders with nations undergoing enormous turmoil and unrest do not have any choice whether or not to take refugees. They just flood across the border, and there they are. My submission is that Australia, surely one of the most fortunate countries in the world, cannot simply stand by and take no exceptional steps to meet what is a human tragedy of enormous proportions.

The next point I want to make in support of my submission that Australia exhibits a very low tolerance towards Boat People is the attitude taken by the Australian Government towards those asylum seekers who have fled to this country from southern China and who settled there about twenty years ago as refugees from Vietnam. I believe they are referred to these days as Sino-Vietnamese. Now there are internationally-recognised procedures in place to discourage refugees accepted by one country to seek asylum in another country. Consistently with these procedures, the Australian Government made an agreement with China under which China was recognised by Australia as a safe third country, thereby allowing any Sino-Vietnamese asylum seekers arriving in Australia to be unceremoniously deported back to southern China. They were to be denied any access to judicial procedures in this country to test the legality of their detention here. These arrangements, with the support of the Opposition in the Federal Parliament were put in place by an amendment to the Migration Act No. 2 of 1995. Under its authority, several hundred Sino-Vietnamese have been returned to Southern China in past months.

Ladies and gentlemen, it is my submission that, even though this treatment of Sino-Vietnamese asylum seekers may be consistent with international law, our unfeeling response to the pleas for asylum of these people is nothing to be proud of. It does not allow for any examination of the circumstances to which any of these people have been exposed in southern China. They could have been exposed to dreadful persecution in China, after fleeing from Vietnam for all that Australians know or care. Whatever international law may provide in specific cases, there is nothing to prevent a host country from making a humanitarian response to a plea for asylum.

A further point for concern is the effect of the legislation on the rule of law. The rule of law is one of our most cherished institutions. At the heart of the rule of law is the principle of habeas corpus, a process whereby any person who is under detention may test the legality of that detention in the Courts.

Another example of an affront to the rule of law reflecting intolerance to Boat People is provided by Migration Amendment Act No. 4 of 1994, an Act which referred to Indo-Chinese asylum seekers. If their status had been declared under what was called a "Comprehensive Plan of Action" in another country, they could be summarily deported without any opportunity to access legal advice or take any steps to test the validity of the processes to which they were subjected.

Another sad story is the history of the Australian Government's attempts this year to prevent the Refugee Review Tribunals and Courts in this country from taking into account the effect in particular cases of China's "one child policy". Now there is nothing inherently wrong with China formulating a one-child policy in order to put the brakes on the growth of its population. The problem is that in some parts of China - not everywhere - the policy is being pursued with such enthusiasm as to result in serious breaches of fundamental human rights. Cases have been reported of women who are seven months pregnant being removed from their homes, taken to hospital and aborted. Abortion at seven months is analogous to murder because the foetus is clearly viable at that stage of the pregnancy. There are also reports of compulsory sterilisation in some places. Late December, a judge of the Federal Court upheld a claim for refugee status by a couple from China who came from a part of China where these responses to the one-child policy were taking place and who testified to a fear of persecution because they were expecting a second child. Notwithstanding that the Government initiated an appeal to the Full Court of the Federal Court, it nevertheless introduced legislation into the Parliament the effect of which would have been to require Review Tribunals and Courts to disregard China's one-child policy in their deliberations. The Bill was withdrawn for re-drafting and subsequently Bill No. 4 was introduced. I believe it is presently held in abeyance pending the outcome of the appeal.

And then there is Mr Teoh. Admittedly, he is not a Boat Person and is not an asylum seeker. But the turmoil this year over attempts by the Government to deport Mr Teoh serve to illustrate in another connection the harsher aspects of the Government's administration of the Migration Act. Briefly, Mr Teoh came to Australia from Malaysia in 1989, married his brother's widow and assumed responsibility for her three children. Thereafter, they had four children of their own, making seven children in all. Unfortunately, Mrs Teoh suffered from a heroin addiction and Mr Teoh was caught bringing heroin into Australia for his wife and subsequently convicted and imprisoned. It was then that a deportation order was made. The delegate who made the deportation order was informed that if he was deported the future for the wife and seven children (all of whom were Australian citizens) would be bleak indeed and that Mr Teoh had been an admirable father. The High Court set aside the deportation order and sent the matter back to the Minister because the delegate had failed to bear in mind in making the deportation order that the best interests of the children were to be a primary consideration. That is because Australia had ratified the Convention on the Rights of the Child. The Court said that in ratifying such a Convention, the Australian Government was making a positive statement not only to the international community, but to the Australian community, that its own Government administrators will bear in mind the obligations imposed under the Convention when they are making discretionary decisions about people such as Mr Teoh. It went on to say that what was required in Mr Teoh's case, if the decision-maker chose not to acknowledge the basic principle touching the best interests of the children then it should tell Mr Teoh to that effect, so that he could present argument as to why they should take it into account.

That all sounds like a very modest proposal, but it caused the Government enormous anxiety, so much so that within a day or two of the High Court decision, an executive statement was issued saying in effect that any citizen affected by a government discretionary decision should not expect the decision-maker to have regard to any obligations assumed by the Government under an international human rights instrument. It means that Australia is making a positive statement to the international community of its acceptance of obligations arising under any instrument but immediately cancelling that statement in its application to anyone to whom it might apply in Australia.

Now my Commission and others have argued strongly against such a hypocritical stance. So far, our pleas have not been heard. Indeed, the executive statement made in May 1995 has now been followed by draft legislation which is presently in the Parliament. Apparently, the Opposition is minded to endorse the Bill. The Commission has argued for a compromise, namely, that the Bill should exempt from its operation just a few key human rights instruments - those which have been annexed to the Human Rights and Equal Opportunity Commission Act and a couple of others. The effect of annexation to our Commission Act is to enable us to receive and investigate complaints from members of the public who believe that they have suffered by reason of a failure of Commonwealth officers to adhere to that Convention. The instruments that have been annexed include the Convention on Civil and Political Rights and the Convention on the Rights of the Child.

We are saying "For heaven's sake, how can you invite people to come and complain to us when you are also saying to them, through the Parliament, that they must not expect government officers to observe those conventions".

I have gone over time. It is always a risk when I am asked to speak on a subject that I feel strongly about. But please permit me to say a word about the 18 East Timorese asylum seekers who arrived in Darwin recently by boat. There was an extraordinary article in the paper yesterday from a lecturer in a law school who argued the case that the Government was behaving very honourably and with a complete regard for the spirit of the Refugee Convention. My question is a simple one. Whatever the legalities, what humanity is evidenced by a government, when 18 refugees - and I use the word advisedly, because the marks of persecution were clearly visible on the bodies of this handful - are met with the kindly advice: "Sorry, but we cannot take you in here. You should go to the other side of the world and claim Portuguese nationality and protection from the same colonial power under which you suffered for many years prior to 1975. It is no good you coming to us, even if you are suffering genuine fear of persecution in the land from which you fled."

But I have said enough, I hope, to convince you that the Australian people and its leaders have some distance to go before The Year of Tolerance can be said to have found expression in their attitude to Boat People. I have much pleasure in declaring this Symposium open. I hope you have a most interesting and profitable day.

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