High Court correct but law allows inexcusable neglect of asylum seekers

The indeterminate limbo of life in detention for seeking safety is unjustified, writes Gordon Preece.

February 4 2016On Wednesday 3 February Australia’s High Court rejected a challenge brought by a Bangladeshi woman, Durga, against her and her child being returned to detention on Nauru. Durga was on a boat intercepted by Australian officers in October 2013 and was detained on Nauru before medical transfer to Australia in August 2014 where she later gave birth. The majority found the Australian government’s detention of Durga on Nauru was legally correct and that their deal with Nauru was constitutional. The law seems clear, but law and morality are not the same.

Prime Minister Turnbull welcomed the 6-1 decision. He said his government would maintain robust deterrence policies “to keep our borders secure, to prevent the people-smuggling racquet, to break their business model and keep lives safe”, “the people smugglers will not prevail over our sovereignty”.

Mr Dutton maintained “the principle … that people needing serious medical treatment would be brought to Australia as required”, but returned to Nauru when well.

By contrast, human rights groups, lawyers, a UN agency and the Greens questioned impoverished Nauru’s capacity to safely process refugee claims and provide appropriate care for children.

In analysing the commentary I note Mr Turnbull isolates one aspect of justice, deterrence, from legal guilt. These people are legal asylum seekers, and when fairly processed and tested over 90 per cent are declared refugees. Deterrance also only refers to a serious threat. Mr Turnbull confuses people-smugglers with mothers and babies, as sin by association. Do they really threaten our sovereignty? And is rhetoric of national sovereignty an abrogation of God’s sovereignty over subjects bearing his image.

Further, even if these mothers and children are somehow “guilty”, the punishment must fit the crime. The indeterminate limbo of life in detention for seeking their families’ safety is unjustified, like the disproportionate sentences dished out to deter our convict ancestors stealing food to feed starving families.

The consequentialist, means-to-an-end language of deterrence is coupled by the PM with the language of breaking people-smuggler’s business models. These women and children are hostages not only to a disproportionate deterrence model, but to a calculating business deal. This is a bipartisan barbarism that both main parties are guilty of.

Further, let’s test Minister Dutton’s principle that “people needing serious medical treatment would be brought to Australia as required”, without resettlement. It is the basic principle of medicine to “do no harm”. Harm can be physical or mental. The government’s own agencies have admitted that the Nauru administrators cannot determine sufficiently regarding such harm. The camps have been described by psychiatrists like former Australian of the Year Patrick McGorry, as “factories for mental illness”.

Among the 267 people possibly earmarked for return are over 80 children. Today new evidence emerged that paediatricians diagnosed many children as “among the most traumatised we have ever seen in our 50 years of combined professional experience”.

Paediatrician Dr Karen Zwi risks jail by saying: “These kids … have been through a mincing machine – they’ve had one traumatic event after another…They are broken into little bits and it’s really hard to put the pieces back together again.” These children are terrified at the mention of returning to Nauru, yet we are preparing to re-harm them, with a strong probability of serious and permanent mental damage.

Human Rights Commissioner, Gillian Triggs highlights the growing gulf between our national sovereignty obsession and our international human rights responsibilities:

Sadly, there’s a widening gulf between the constitutional powers of the Australian government and the country’s international legal responsibilities. Our national laws in effect allow us to wash our hands of the welfare of refugee children once they leave Australia’s shores. Our laws impose no standards on Nauru to meet educational and medical needs of refugees. Indeed, the government’s chilling defence to claims that it’s in breach of its duty of care is it that it has no control over the treatment of refugees transferred to Nauru. Now it … rests with the international community to use its influence to ensure the safety of refugee children under … international law.

Retiring Labor MP Melissa Parke – a former U.N. human rights lawyer –attacks Liberal and Labor’s offshore detention policies. Parke notes how sending asylum seekers to overseas detention centres only became possible by a doubly bad, rushed retrospective law change.

Section 198AHA of the Migration Act became law in June 2015 to beef up the government’s actions, supported by Labor, on Nauru and PNG, giving it control of offshore processing. That resulted in Wednesday’s High Court win. The applicant rightly argued that the commonwealth’s minister acted beyond his power in detaining her, if not for the retrospective 2015 amendments, Parke noted.

She sums up: “Australia’s actions are certainly a serious violation of our international legal obligations and are utterly repugnant in a moral sense”.

What can be done?

Save the Children’s Lee Gordon, who directed their Nauru programs, rightly said the government should quickly process the 267 asylum claims. If found to have valid protection claims, they should be offered protection in Australia. If it sets a precedent so be it, it’s the principle that counts.

Ten churches around Australia, including several Anglican ones, have offered sanctuary to the asylum seekers. Essendon Uniting Church has offered. But as yet there are no other Melbourne offers. Who will be the first? Many in the churches, like the Love Makes A Way campaigners, feel that parallel with just war theory, all other means besides civil disobedience have been exhausted. It is the last resort. Others may disagree, but we all should seriously consider how we can offer shelter and care to refugees and asylum seekers in the name of RefuJesus (Matt 2:13-15, Mt 25:31-46), who knows what they’re going through.

Dr Gordon Preece is Chair and Executive Officer of Melbourne Anglican Social Responsibilities Committee and director of www.ethos.org.au