High Court offshore detention ruling highlights why Australia needs a Bill of Rights

In 2004 there was a family living in Adelaide: the Bakhtiyaris. They were asylum seekers who had been through the mill of trauma: mother and five children in detention indefinitely; father initially in the community but put back in detention; a sixth child born under guard. People may remember them as two of the boys escaped the Woomera detention centre during a fracas sparked by Australian protesters, made their way to Melbourne and sought asylum at the British High Commission. Eventually an order by the Family Court saw the Bakhtiyari’s placed in the community under the care of a Church organisation, enabling the children to attend school and have some semblance of a normal life. However the dark cloud of detention and deportation remained over their heads.

The conditions in which asylum seekers were detained in Australia’s various detention centres (Baxter, Woomera, Villawood) were atrocious – under resourced; run by firms with only hospitality and security training; lack of medical care; unhygenic; inappropriate food for infants. The process was a minefield of uncertainty and arbitrariness. Health professionals began documenting severe examples of mental illness in those in detention – self harm, hunger strikes, sewing lips together, suicide attempts, bed wetting. When images of children behind bars hit the mainstream media, it sparked a public outcry that challenged the Howard government’s detention policies.

The Bakhtiyari family’s application to stay in Australia was rejected. A crucial component of this was the determination by the Australian government that they were from Pakistan despite their claim and substantial supporting evidence that they were from Afghanistan. There were accusations that the government was lying just to deny the family assistance. The family’s appeal to the Federal Court for a re-examination was rejected. They also challenged the legislation that meant their sixth child was not entitled to citizenship, but the High Court ruled that the Australian government was within its powers to determine who was entitled to citizenship and to deny it in those circumstances in a narrow, very literal and conservative interpretation of the Constitution.

So the Bakhtiyaris faced imminent deportation and were terrified by that prospect – by the thought of their children being yanked from school and immigration officers dragging them away to a plane in the middle of the night. Having lived in the community they had a lot of support from friends, neighbours, medical professionals and the school, all of whom were outraged by the prospect that this family might be ripped from their home and sent back to a country where they faced persecution. Shortly after the conclusion of the legal challenges, fears were realised and the Bakhtiyari’s were deported.

Sound familiar?

In the present day, asylum seekers are sent by the Australian government to offshore detention centres on Nauru and Manus Island where they live in squalid conditions with limited access to basic essentials, medical care and support personnel. The detention centres are run by private contractors with hospitality and security training. Women and children are at risk of rape and abuse; men of being killed. The process is even more uncertain, arbitrary, lengthy and confusing. Health professionals report ever increasing and violent incidents of self-harm and suicide attempts, in children younger and younger. Health professionals, lawyers and social workers are refused access.

Individuals who have been seriously harmed (often by the very people charged with looking after them), are suffering conditions such as kidney failure and heart problems, have a high risk pregnancy, are in near-catatonic states due to abuse or rape, are habitually refused transport to the mainland for treatment. Versions of events from the asylum seekers and the government are so far apart as to seem two completely different situations.

A recent challenge to the offshore detention model failed. The High Court ruled that the government did have the power under the Constitution to send people for offshore processing and that it was domestically legitimate, based on the insertion of a retrospective clause into the relevant legislation after the court challenge had begun. This was, once again, a very conservative interpretation of the Constitution. The judgement condemns hundreds of people, many of whom are unwell and terrified by the prospect of return to Nauru, many of whom have been abused, many of whom are children, to a return to indefinite detention at the hands of their abusers, not to mention sealing the hopelessness and helplessness of those languishing there already.

In 2004 we were appalled by what was happening. There was a sense that our policies were as atrocious as could be imagined. Today, the current scenario is so bad that some of the “preferable” solutions proposed are similar to the system that was fought in 2004. There was a recent suggestion by some advocates for asylum seekers that the problem wasn’t detention per se, but that it was offshore and away from scrutiny and support. That’s how desperate the situation has become.

Rather than achieve positive change, a decade plus of activism in favour of asylum seekers has simply seen the government dig in its heals. The pictures of children behind bars and stories from asylum seekers were unpalatable and disruptive to their agenda so they moved the operation offshore and now deny access to journalists (and basically anyone who doesn’t endorse their policies) and threaten jail for any health or social worker who dares speak out. The narrative of people suffering is undesirable so they’ve dehumanised asylum seekers and turned the issue into one of securing Australia’s borders and protecting vulnerable people from being taken advantage of by people smugglers. And is it really beyond the realms of possibility that the government would lie about what is happening? They were, after all, prepared to lie about asylum seekers throwing their children overboard to paint them negatively. Every time a battle is fought the government yanks the rope further so the asylum seekers and those fighting for them lose a bit more ground. That battle is lost and the new one is about something more awful, more problematic, more troubling.

The reason this is happening is because the Australian government holds all the cards. While there are international tribunals that could potentially hold them accountable, all that exists domestically as protection is the Australian Constitution. And as brilliant an instrument as it is, our Constitution deals primarily with structural matters, powers, resources and practicalities in a highly technical manner. It does not have provide the scope to consider issues on a moral level. We are dependent on our High Court being willing – choosing – to incorporate morality, community standards and values in their interpretation; to support implied rights; to be a bit political; to look at the bigger picture. This is not a sensible safety net. The High Court is equally likely and equally entitled (some would say they are required) to take a strict, conservative interpretation of the Constitution, which is precisely what we have seen over the past decade.

The protection mechanism that Australia is missing is a Bill of Rights (or Human Rights Act). This enshrines rights reflecting our standards, values and ethics in our system. It provides the scope for all legislation and activities of the government to be considered on a moral level and to be struck down if they are inconsistent. There is certainly still scope for interpretation, but it is an interpretation on the right level – asking the question: “Is this consistent with our identity?” It is powerful protection. Consider the United States Bill of Rights, which provides the “right to bear arms”. That Amendment has prevented proper gun control despite all the problems that guns create. This is not to offer an opinion on the issue; rather it is to highlights the veracity of the instrument both legally and culturally.

Imagine for a moment that we had a Bill of Rights that incorporated the Convention on the Rights of the Child. The argument in the High Court would have been whether placing children in detention contravened those rights and (probably) whether those rights extended to children who are not citizens of Australia. The High Court would have been required to humanise the issue; they couldn’t simply focus on the theory of legislative power. Surely whichever side of the fence a person sits on when it comes to asylum seekers it is better that the question of children in detention is settled on its merits.

A Bill of Rights does not just benefit asylum seekers. Quite the opposite: a Bill of Rights can protect rights to freedom of speech and freedom of association. It can protect our right to form part of a union, to strike, to an education. It can protect all the rights we assume we have in Australia, but which we don’t, and which can be removed from us at any point in time (and in some cases have already been curtailed).

It will also help properly establish Australia’s cultural identity. One of the challenges to addressing Australia’s multicultural tensions is that we simply don’t have clear Australian values. We don’t know if, as a nation, we support a person’s right to freedom of religious expression over the protection of secularity or the other way around. We know we cannot discriminate against someone based on their race, ethnicity or gender, yet we don’t appreciate what it means to actually stand for that. Indigneous Australians are still unacknowledged, disenfranchised and treated like rubbish in their country. We have very little basis on which to determine what immigrants and refugees we accept because we have no clear value system of our own with which to compare theirs; we ended up with a Prime Minister who decided to use his own personal value system for judgement. These are all issues around which battle lines are drawn and debates occur on a daily basis all around the country. A Bill of Rights would help settle them.

Major political parties do not want a Bill of Rights precisely because it places limitations on their power. They are never going to advocate for it and they have consistently sought to shut down any discussion about one that arises.

It is time the public demanded a proper discussion on all the issues facing Australia with a view to the development of a Bill of Rights.

Start with this one. Do you believe that every person has the right to an existence free from torture and cruel, inhuman or degrading treatment? Or do you believe that some people don’t matter? Because that is the real narrative of the asylum seeker situation.

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High Court offshore detention ruling highlights why Australia needs a Bill of Rights

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