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We all lose when governments trash the law


In recent months more than 400 Sri Lankans have been summarily repatriated. After arriving by boat, they were screened out by Immigration officials. This action has received little attention, as public attention has been focused on the brutalities of Nauru and on the five year sentence to bare survival that awaits other recently arrived asylum seekers. But it is deeply disturbing nonetheless.

It is also arguably unjust and illegal — 'arguably' not because the evidence for the claim is lacking or weak, but because the screening-out is so totally lacking in transparency. There is no way of knowing whether in fact those repatriated did not wish to claim asylum, or whether they would have been found to be fleeing persecution. We rely on the arbitrary and unreviewable judgment of officials. 

Doubts about this process are intensified because, together with the new Pacific Solution, the deprivation of work rights and prolonged delay in processing claims, it forms part of a desperate and ad hoc attempt by the Government to be seen to be serious about stopping the boats. 

The introduction of summary repatriation was accompanied by extensive publicity by Sri Lankan and Australian ministers and officials. They declared that the growing number of Sri Lankans arriving by boat were not asylum seekers but were deluded by people smugglers into seeking a better life in Australia. Both Governments agreed that Tamils could return with impunity to Sri Lanka. This publicity implied that repatriation would not be unjust. 

In the last week, however, evidence that summary repatriation is neither just nor legal has mounted. Bishop Rayappu Joseph of Mannar in northern Sri Lanka has added weight to widespread reports from within Sri Lanka by warning that asylum seekers returned to Sri Lanka face harassment, restriction on their freedom and other penalties. He has begged Australia not to return asylum seekers.

These continuing reports of serious human rights abuses in Sri Lanka raise serious questions about the cooperation between Australia and the Sri Lankan Government on asylum seekers. This is the Government against which asylum seekers claim persecution.

Evidence about the persecution of returned asylum seekers calls into question the justice of summary repatriation. At the same time the actions of the Australian Government itself have thrown doubt on its legality.

Lawyers for 56 Sri Lankans screened out and facing repatriation brought a High Court case against their treatment. But before the case could be heard, the Government agreed to process the people affected as it would other asylum seekers. The case was therefore discontinued. 

It is reasonable to presume that the Government feared that the Court would find its actions illegal. But it has not renounced the practice of screening out and repatriating asylum seekers.

This move confirms the extent to which bad and makeshift asylum seeker policy has corrupted respect for the rule of law. Bad policies encourage the demand for unconfined power. For a government to treat people brutally is bad enough; to do so in ways that are not transparently legal is worse; to abort a legal process to avoid having illegality discovered is sneaky; subsequently to keep open the possibility of acting in the same way is contemptuous of law.

The attachment to summary repatriation is the current high-point of a history of hostility to the law in asylum seeker policy. The placement of the first remote detention centre at Port Hedland was driven largely by the desire to restrict asylum seekers' access to lawyers.

The excision of Australian territory from the immigration zone and the Pacific Solution were more sophisticated attempts to prevent asylum seekers from appealing to Australian courts. This exclusion was eventually found by the courts to be illegal but not until it, like the remote detention centres, damaged lastingly the minds and spirits of so many asylum seekers.

The rule of law in society is a delicate spider web of relationships that protects the weak from the tyranny of the great. It is handed on in trust to all of us, and especially to governments, to respect and strengthen. We are all the weaker when it is torn.

That is why the Government's lack of care for legality and justice in its treatment of the deported asylum seekers is so concerning. It hacks down the hedge that protects us all.

Andrew HamiltonAndrew Hamilton is consulting editor of Eureka Street.

Topic tags: Andrew Hamilton, asylum seekers, rule of law



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Existing comments

Fr Andrew is right to condemn what's going on in Australia's treatment of asylum seekers. The 400 or so refugees denied asylum in Australia seems to be a token gesture for political measure rather than a strategy for management of delivering a just solution to the plight of so many. The measure is a 'prank call' that will certainly bring sadness and maybe even death just like the other prank call currently in the news.

Fr Mick Mac Andrew | 11 December 2012  

Much sad irony, 20 years after the Keating Redfern speech, we have found new objects of oppression. Did we listen to Keating then ? His words have special relevance today. "Didn't Australia provide opportunity and care for the dispossessed Irish? The poor of Britain? The refugees from war and famine and persecution in the countries of Europe and Asia? Isn't it reasonable to say that if we can build a prosperous and remarkably harmonious multicultural society in Australia, surely we can find just solutions to the problems which beset the first Australians - the people to whom the most injustice has been done." We are slow learners.

Jim Bowler | 11 December 2012  

These acts are done in our name and someone else's child suffers and silence shames us. I wonder how many really see us all as children of God. What happens if we do see each and everyone of us as children of the same God?

john dallimore | 11 December 2012  

Governments trashing the law? Yes, but why? Because, apart from the fact that we have a poor selection of people in our parliaments, we also have a mindless media pack and owners as well as a population that wants the governments to behave as they do, which is why the governments behave as they do. Handwringing will make no difference, go and talk to your neighbours and work colleagues.

janice wallace | 11 December 2012  

Thank you Andrew for explaining what is going on without our consent. I feel ashamed that I voted for this government.It has shown it is only after the 'Liberal" votes,as it repeats Howard's policies.Julia will find she is soon out of office. Being a signatory to United Nations Convention obviously means nothing and Julia's attempts of deferring responsibility to Indonesia, Papua and Timor and using Manus Island is shocking, very hypocritical..Lucky country yes, luck and trickery.The Greens have been consistently strong advocates for asylum seekers and for this alone they have my next vote.

Catherine | 11 December 2012  

Thank you Andrew for this excellent article. I would urge readers to contact our Prime Minister with their opinions on the Government's cruel, inhumane refugee policy that negatively affects all boat people, including Sri Lankan refugees. As a wise person once said, 'All it takes for the triumph of good over evil is that good people do nothing'. Please contact Tony Abbot too, as the Opposition have led the 'race to the bottom' with their heartless off-shore processing, causing some refugees to languish in limbo for years. What a pity Julia Gillard listened to Tony Abbot's exhortation, 'All you have to do is pick up the phone to the President of Nauru'. I believe it costs the taxpayer in the vicinity of $350 000 annually for each refugee we place on Nauru. What a costly way to ensure already troubled human beings end up with mental health problems, which they will all have if they even survive 12 months in such a place! What a huge extra cost for our health system when these 'broken' people finally come here! Above all, what a cost to our nation's integrity and reputation! Please contact those responsible, including Julia Gillard and Tony Abbot.

George Allen | 11 December 2012  

Catherine, we are all faced with the same problem here. Voting for Rudd-Gillard wrested us from Howard's odious behaviour-policies, so no shame in voting ALP there. But Voting ALP then brings its own problems, mainly Rudd-Gillard and all the rightwing DLP hacks who support them both. Voting Green at the federal level still requires a preference to go, where? ALP or LNP? Of course, in Qld, where the ALP undermined the preference aspect of the system years ago, it is now pretty well first past the post, and look what happens when the ALP fouls its nest, goes to an election and suffers the 'just vote 1' campaigns, they end up with a bunch of Johites making up for lost time. The votes both faces of evil seek are not in fact 'Liberal' votes, or Labor votes for that matter, but the votes of a handful of uncommitted voters who look to their own interests above those of a wider set of problems. The best outcome for the next election will be another Green-ALP uneasy coalition. It's that, or a landslide LNP one in the lower house, but remember what happened when Howard was given the Senate? Disaster! Never again.

janice wallace | 11 December 2012  

"The rule of law in society is a delicate spider web of relationships that protects the weak from the tyranny of the great. It is handed on in trust to all of us, and especially to governments, to respect and strengthen. We are all the weaker when it is torn". Yes, yes, yes. Whether it's about well-founded accusations of sexual predation, the treatment of asylum seekers, or the response to a hoax phone call - we must follow the rule, and the rules, of law. A thousand years in the making, they can be overset by our emotions and our ignorance in a single generation.

Joan Seymour | 11 December 2012  

Thanks, Andrew, for the the basis of a letter I shall write to the Minister.

What a shame that the Labor Party allows the Coalition to dictate policy because of electoral fears.

Joe Castley | 11 December 2012  

Dear Janice, you have described the awful'mess' ! I despair and think this supposed to be democratic? But You have reminded me that we have many interests,ideologies, and political relationships created and destroyed ..because power is something belonging to everyone in a democracy. >With our vote>and maybe,we simply are not making enough noise.. we need to be explicit about JUSTICE .. the catholic hierarchy has held us down with absolute power and undemocractic unchristian structures..I feel at least with democracy there are systems of review and we can reject bad laws if we actively campaign.

Catherine | 11 December 2012  

All very true, Fr. H., and thank you. But if this regime is so cavalier about the rights of asylum seekers, why should we assume it's scrupulously looking after the rights of the unborn?

HH | 11 December 2012  

and Janice, I agree:The 2 party choices we have do not offer any outstanding vision now ,just 2 leaders grabbing at shorter straws.Very disappointing.Personal integrity and dignified behaviour is sorely lacking, and voters are sick of the same,old,same..blame game. We have to give a clear strong message.We must not be silent.

Catherine | 11 December 2012  

It is not helped by some of our media interviewing asylum seekers while they are still at home so our government and the Sri Lankan war criminals can identify them to be sent packing. Now Carr, Morrison and Bishop are all going to Sri Lanka to be feted by the criminals they know very well are still torturing people. Gillard has always been an ignoramus when it comes to refugees and human rights and Bowen is out of his depth.

Marilyn | 12 December 2012  

Tamils from Sri Lanka, Hazaras from Pakistan or Afghanistan, Rohingyas from Burma should all be assumed to be fleeing persecution unless there is very good evidence to the contrary. I could add others to that list, West Papuans, Uighurs, Kurds, ……

Gavan Breen | 12 December 2012  

HH, please stop this nonsense bring abortion into every unrelated justice issue. It's disingenuous. Australian mothers have the power to protect the unborn. The power is in their hands. But as Australians there is little we can do to protect the rights of refugees because there is no alternative to the two major parties being in power.

AURELIUS | 12 December 2012  

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