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Project SafeCom News and Updates 24 November 2005
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Project SafeCom
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Nov 23, 2005 20:42 PST
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Project SafeCom News and Updates 24 November 2005
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¤ - In this Edition - ¤
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1. Sudanese immigrants die in blaze
2. Deported Melbourne man pleads to return
3. Immigration to blame for man's deportation: family
4. Any talk of DIMIA "culture change" is hypocritical
5. Detainees face fire charges
6. Open Letter to the Prime Minister
7. Howard's 'SEDITION!'
8. A Guide to Terror Control
9. Time for an Amnesty
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-|| This is the Project SafeCom Newsletter - also published
-|| as the RAC-VIC Newsletter (Racvicnews) since July 2004 by agreement
-|| with RAC Victoria, which endorsed that their news service be
-|| managed by Project SafeCom. More information about us below.
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1. Sudanese immigrants die in blaze
==========================
news.com.au
From: AAP
November 23, 2005
A MOTHER and daughter believed to be from Sudan have been killed in a
suspicious fire which engulfed their home in Toowoomba, west of Brisbane.
Police said firefighters arrived at 12.10am (AEST) today to find the unit
well alight at the corner of Muller and Kratzman Streets, in the Toowoomba
suburb of Kearney Springs.
Firefighters discovered the bodies of a 15-year-girl and her mother dead
inside.
The woman's 21-year-old son was found unconscious on the footpath and taken
to hospital in a serious condition.
Police said it may be days before the dead can be formally identified
through DNA testing and dental records.
They said the cause of the fire was being treated as suspicious.
"Until we have completed forensic and scientific investigations we are not
in a position to comment on what took place," Toowoomba District Officer
Superintendent Tony Wright said.
Scientific and forensic experts were today sifting through the rubble of
the duplex building, which suffered severe smoke and water damage.
The son was taken in a serious condition to Toowoomba Hospital before being
transferred to Brisbane's Princess Alexandra Hospital for surgery.
Supt Wright said it appeared he had been assaulted.
The fire victims were believed to have settled in Australia after
emigrating from the African nation several years ago.
http://www.news.com.au/story/0,10117,17342660-29277,00.html
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2. Deported Melbourne man pleads to return
===============================
ABC ONLINE NEWS
Wednesday, November 23, 2005. 10:44pm (AEDT)
A Melbourne man deported to Serbia after living in Australia for 36 years
is pleading with the Australian Government to let him return home.
Thirty-six-year-old Robert Jovicic had his permanent residency revoked last
year on character grounds, after a string of offences linked to his drug
addiction.
He is not recognised by his new country, does not speak the language and is
destitute.
He has told the ABC TV's Lateline program that his situation is desperate.
"I've lost everything. I've lost my princess, my wife, my home, my health.
Look, my hair is falling out," he said.
"If I don't lay out front of the embassy and get back home, I will die here
on medical grounds alone.
"I have been sent to this country, which I have never been before, I had
nowhere else to go. The money had run out. I have got no documents."
The Department of Immigration says because of Mr Jovicic's substantial
criminal record, the former minister used his discretion to cancel his visa
under a particular section of the Immigration Act.
The department says Mr Jovocic assisted in his own deportation and could
still apply for citizenship in Serbia.
http://www.abc.net.au/news/newsitems/200511/s1515471.htm
======================================
3. Immigration to blame for man's deportation: family
======================================
ABC ONLINE NEWS
Thursday, November 24, 2005. 1:12pm (AEDT)
The family of a man who has become effectively stateless since his
deportation from Australia says the Immigration Department's failure to
check his documentation has contributed to his plight.
The permanent residency of 38-year-old Robert Jovicic was revoked two years
ago after a string of drug-related burglary offences.
He was deported to Serbia last year but it has refused to recognise him as
a citizen, leaving him with no right to work or welfare.
Mr Jovicic was born in France to Serbian parents and had lived in Australia
since he was two.
His family is appealing for his return.
His sister Susanna says his father only registered him as a Serbian to get
him out of immigration detention.
"He signed the papers for him so in fact that made them fraudulent and
DIMIA [the Department of Immigration and Multicultural and Indigenous
Affairs] didn't stop to process all that information and really find out,"
Ms Jovicic said.
"He virtually had to find his papers - he wasn't mentally stable at the
time, I mean, he would have signed a trip to the moon."
The Immigration Department says the Serbian Government authorised the
application and later realised it was wrong.
Ms Jovicic says Robert is now struggling in Serbia with no identity and
poor health.
http://www.abc.net.au/news/newsitems/200511/s1515908.htm
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4. Any talk of DIMIA "culture change" is hypocritical
=====================================
Project SafeCom Inc.
Media Release
Tuesday November 24 2005 7:45am WST
For immediate Release
No Embargoes
"Any talk of 'culture change' within Australia's Department of Immigration
following the Vivian Solon and Cornelia Rau debacles and the more than 200
listed cases of unlawful deportation and imprisonment in immigration
detention amounts to hypocricy with the ABC's revelations of a deportation
of yet another "Aussie'," WA Rights group Project SafeCom said this morning.
"The story of the deportation of the man, Mr Robert Jovicic, who now
appears in a seriously mental crisis in Serbia, is yet another one in the
continuing dramas of human misery, administrative bungling and fanatic
implementation of the Migration Act."
"Like a nightmarish horror movie from a sci-fi series, the dramas in DIMIA
do not stop. This month we saw that the Department manipulates its own
regulations once again, first by spreading misinformation in the media -
alleging that a family who arrived from Indonesia by boat, did not seek
asylum under the UN Convention provisions - then by hiding the same family
at massive tax-payer expense under 24-hour guard in the Parap Village
Apartments in Darwin.
All this happened while we have hundreds of beds free in on-shore detention
facilities - but as if it is not enough, DIMIA then tops its Orwellian and
draconian methodology off by carting this family back outside the Migration
Zone, placing them out of the reach of independent legal advisors in the
Christmas Island Detention Centre. This act alone breaches its own
Migration Act regulations."
"DIMIA-initiated plans for deportations should immediately start to fall
under the jurisdiction of Australian courts, and immigration detention
intent should also be first approved and then scrutinised by the court
system", the group's co-ordinator Jack H Smit said.
"The DIMIA was "relieved" of the services of the former Secretary Bill
Farmer after the Cornelia Rau revelations, but its current Secretary,
Andrew Metcalfe, who suggested in a Senate Inquiry in 2000 that coming to
Australia, unannounced, with the intent to seek asylum, 'may well
constitute a criminal act', is evidence that there will be no dramatic
changes brought to bear in the rotten mentality in DIMIA.
"With such a Secretary, there may be hundreds of new t-shirts, new mugs and
Departmental stationery and pens, and staff training at massive tax-payer
expense, but there will be no fundamental change."
For more information: Jack H Smit, Project SafeCom Inc. phone 0417 090 130
=====================
5. Detainees face fire charges
=====================
The Mercury
17nov05
THREE detainees had been charged over sparking a series of fires at the
Baxter immigration detention centre that caused more than $2 million
damage, Immigration Minister Amanda Vanstone said today.
The men, from the US, South Africa and Fiji, would remain under close
observation at the facility while they awaited their court appearance.
Two were in detention because their visas were cancelled on character
grounds. The third man had overstayed his visa, Senator Vanstone said.
One detainee at the Baxter detention centre was taken to hospital and five
others were treated for smoke inhalation on Saturday as a result of four fires.
The flames gutted 34 bedrooms and forced the evacuation of 58 detainees at
the South Australian facility.
An Australian Federal Police investigation into the cause of fires continues.
"My department is assisting police with their inquiries," Senator Vanstone
said.
"If the men are found guilty, their convictions will be taken into account
with regard to any visa applications, in accordance with the character
provisions under the Migration Act."
There have been no further incidents reported at Baxter since Saturday's fires.
http://www.themercury.news.com.au/common/story_page/0,5936,17276765%255E421,00.html
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6. Open Letter to the Prime Minister
==========================
New Matilda
By: John and Barbara Gunn
Wednesday 23 November 2005
Dear Prime Minister John Howard
I write to you as the father of five sons and a daughter — all now mature,
intelligent and hardworking Australian citizens — and as grandfather of 11
more Australians. I also mention that I served in the Royal Australian Navy
as a destroyer navigator and as a Fleet Air Arm pilot, from 1939 to 1950.
These, sir, are my credentials as an Australian who, until recently, was
proud of his country, proud of the men and women who led it, proud of its
fight against our powerful enemies in World War II to preserve our national
values of decency and fairness.
It has been my privilege to write about generations of past Australians (an
official history of Qantas and an official history of our railways in New
South Wales) whose achievements helped make Australia the internationally
admired country that your Government is in the process of destroying.
I write also on behalf of my wife. Her father, Colin Bingham, was a great
Australian and war correspondent in World War II, and later editor of the
Sydney Morning Herald. My mother, Nancy Gunn (serving in the WAAF), was the
only woman in World War II allowed in the Central War Room of General
Douglas MacArthur.
Do you get the picture, sir? We served our country, loved it, hoped for its
future. You sir, in just a few years, have changed all this. You govern by
provoking fear and uncertainty, by manipulation, by downright deceit.
Let me state succinctly how my wife and I view our remaining years in an
Australia polluted and threatened by your actions. (I am now 80; my wife is
73.)
Whatever laws you may pass to serve your power-preserving ends we will,
both of us, be outspoken in public and in private, in our efforts to bring
your actions as a Government into disrepute. We shall be outspoken in our
deep opposition to Australia’s involvement in Iraq and the ongoing violence
this has provoked. We will emphasise the deceitful intent of your
industrial relations legislation, the obscenity of your actions in the
children overboard matter and your abandonment of David Hicks, Australian
citizen. We shall mock and lament your cowardly and submissive attitude to
President George Bush and his devious advisers.
If these are acts of sedition, then so be it. To be imprisoned for such
‘sedition’ would be an honour.
You diminish us all by your cold immorality.
We are comforted by the fact that we are not alone in our views.
http://www.newmatilda.com/home/articledetailmagazine.asp?ArticleID=1155
=================
7. Howard's 'SEDITION!'
=================
New Matilda
By: Guy Rundle
Wednesday 23 November 2005
(Enter Prime Minister John Howard)
Good evening everyone. It’s a pleasure to be here. I don’t usually come to
protest meetings but I thought it would be a shame to miss the last one.
I’d like to congratulate the organisers for having the courage to invite me
here tonight, and over the next few days, I’ll be popping round to people’s
homes to thank them personally. (Pause) No, I won’t need the addresses.
I know there are many people here tonight who will be very angry with me,
but that’s all right. Forthright disagreement with the government has been
part of our past, is a part of our present and will be a part of our
fondest memories in years to come.
There’s been so much hysteria about the proposed new Liquidation of
Unpersons Act, that people aren’t paying enough attention to the new
Industrial Relations laws, and so I better begin by outlining …
(mobile phone rings)
Hello. Oh really? Ah, well that sounds pretty compelling.
(closes mobile phone)
Look, I have just had word of a new terror threat.
Now this is a threat that’s been assessed as credible by the division of
ASIO charged with keeping an eye on extreme Islam and also the Henry George
League, and so it will be necessary to add a word or two to a couple of
sentences, and a zero or two to a couple of numbers.
If this sort of redrafting goes on, well we’ll be at Kinko’s all night, but
I think it’s vital to remember that we are involved in a war here.
This is a real war, not a metaphor, as some of you people seem to think.
It’s like the War against Fascism, not the War against Problem Stains, if
that needs to be spelt out.
It’s a War against Terror, a war in which we have already been attacked
twice – once in 2002, and again three years later in 2005 – and so it is
vital that we turn the whole country upside down to head off this
relentless rain of triennial attacks.
While most Australians seem to understand this, many people here clearly don’t.
I understand this, Peter Beattie understands this, Steve Bracks understands
this, Maurice Yae …, Maurice Iuam …, er, the New South Wales Premier
understands this. Even Kim understands this, which is why he has demanded
that a tracking-device be anally inserted into everyone with a tan, so that
the SAS troops stationed in Seven-Elevens can keep an eye on them. That was
his latest idea when I left home to come here, although he may have come up
with a couple more since then.
We’ve had to act to prevent the victory of a number of dangerous and
possibly deranged men — such as, for example, Kim. I don’t know about you
but he scares the shit out of me.
Incidentally, this indicates very effectively the difference between our
two parties. Whereas Labor will shamelessly use the politics of fear to
create a climate of utter hysteria, the Coalition uses it to create an
intense and focussed hatred of a racial minority, thus minimising
disruption to the vast majority, and that is something that only really
comes from long experience.
I hope that’s dealt with the terror laws. Turning now to Industrial …
(mobile phone rings)
Ohhhhh. ‘Scuse me. Hello. You’re the what? The Surveillance Unit with
oversight of what? The Fabian Society! So why are you up this late?
Uh huh.
Thank you.
(closes mobile phone)
Well ladies and gentlemen, I don’t mean to frighten you but I have been
briefed about intelligence relating to al-Qaeda’s development of a
semtex-based, tuna-and-pilchards mash which would make a walking bomb out
of 90 per cent of household cats, and, following the next Federal Budget,
65 per cent of old-age pension recipients.
It has to be understood that the public is demanding these laws.
We don’t make up scare stories about teenage girls hiding mouth explosives
under their hijabs and driving Toyota Hiluxes into the side of Westfield
Shoppingtown – people come to us demanding action once they read newspaper
reports of those private briefings ASIO gives me.
We do not overturn 800-year-old legal safeguards lightly, but only after
the most exhaustive consultation with the very best focus groups. Let me
tell you the market research bill is even bigger than the Industrial
Relations bill.
Our first concern is with anything that has even a remote chance of having
a major impact on Australian society.
So the arts will be unaffected.
We want to live as a society that is free and vigorous, but which is never
far away from its fridge magnet.
We should not let the terrorists win by scaring us away from
record-breaking house auctions, or indeed any act of consumption. To do
that would be to let the terrorists win. And if we let the terrorists win,
then the terrorists have … won.
We believe in choice.
Do you choose to be a White Protestant with a million dollar mortgage you
and your White Protestant spouse will spend the rest of your lives paying
off? Or, would you like to go to Guantánamo Bay, via Baxter? The choice is
yours. Don’t say we didn’t offer it.
Last year, we went to the Australian people with a campaign based on trust.
Next time, I’m going to pretend to be a six foot Black woman just to see if
I can sell that too.
We have been an independent nation for one century, Federated on the
principles of peace, mutual respect and the fair-go.
And in this, our second century … we’re going to try something else.
This is an edited version of a speech delivered by Max Gillies (as Prime
Minister John Howard) at ‘SEDITION!’ at the Sydney Theatre, on 13 November
2005.
http://www.newmatilda.com/home/articledetailmagazine.asp?ArticleID=1154
====================
8. A Guide to Terror Control
====================
New Matilda
By: Kirk McKenzie
Wednesday 23 November 2005
Despite the short time frame for the inquiry by the Senate’s Legal and
Constitutional Legislation Committee into the Anti-Terrorism Bill (No 2)
2005, more than 260 written submissions were received. The Committee
crammed discussion of the submissions into 3 1/2 days of public hearings
and is compiling its report, to be presented next week.
Only a handful of the written submissions support the Bill’s proposed
Control Orders and Preventative Detention, and none of the detailed
submissions do.
Only one witness at the hearings, Deputy Commissioner John Lawler of the
Australian Federal Police gave reasons for the need for these Control and
Detention Orders. This is how he expressed himself:
[Control Orders are needed] because ASIO’s questioning and detention powers
can only be exercised in limited circumstances … because gathering
intelligence is not the correct response, because the person cannot be
prosecuted because an offence is not available, because the evidence is not
admissible or … cannot be used without revealing and/or compromising
sources and techniques.
OK, so ASIO’s powers are allegedly deficient — why are additional police
powers necessary?
Intelligence is not the right response? So, when is it ever the right
response — the police role is to get the evidence.
No offence available? No examples of gaps in the law were given but new
offences could easily be created.
Not the right evidence? Try harder.
Lawler went on:
[Preventative Detention] would enhance [the AFP’s] ability to prevent and
investigate terrorist attacks and to respond effectively to attacks in a
way that is consistent with the police in other jurisdictions.
So, if you lock up people against whom you have insufficient evidence, this
will help police prevent terrorism. I suppose it might — but it has not
done so in England, the ‘other jurisdiction’ referred to. And what about
the dangers — no person is safe from suspicion, say, as a result of a
malicious complaint.
The solution? More resources for the police forces to enable them to get
the evidence they need to charge people.
The Committee’s hearings involved some lively debates, in particular
between the Liberal Senator George Brandis and some of the key opponents of
his view.
Senator Brandis supports the Control Order/ Detention provisions while John
North, the President of the Law Council of Australia (the lawyer’s peak
body) emphatically does not. Brandis put it to North that Control Orders
are similar to Apprehended Violence Orders obtained during domestic
disputes. North conceded they are similar in form but contended that AVOs
never amount to imprisonment or anything like it.
Brandis claimed that Control and Detention Orders fill a gap in the law but
only cited one example — he said that if a terror suspect was overheard
telling someone that he proposed to commit a suicide attack the following
day, the suspect could not be arrested on a charge because he hasn’t yet
done anything.
How can that be right? Surely the police could effect an arrest hours
before the attack, catching the would-be terrorist in possession of
explosives. John North’s response was that he could be arrested immediately
for the offence of planning the attack. (See sections 101.4 & 101.6 of the
Criminal Code 1995)
Mr North was an impressive witness — not least when he quoted Guy Mansfield
QC, the Chair of the UK Bar Council, who has criticised the Bill:
…even defendants charged with the most appalling and despicable crimes
remain entitled to basic rights … A nation’s level of civilisation is to be
judged not by the way it treats the majority of its citizens but what it
does to its minorities, its criminals, its troublemakers and its misfits.
George Brandis is getting it right on one issue though. He carefully
cross-examined several witnesses who made submissions on the Sedition
changes and made it clear he doesn’t think Sedition laws are necessary at
all. It looks like Phillip Ruddock may have to can those changes, pending
his already announced review of sedition.
Briefly on other contributions, Cameron Murphy from the NSW Council for
Civil Liberties pointed out that the Bill contains provisions which
effectively abolish the need for police to obtain a search warrant to enter
and search premises in relation to all serious federal offences. This is a
very radical alteration of the current law, the need for which has not been
explained at all. This change has slipped past some of us trying to pay
attention, but perhaps we can be forgiven when you consider the haste with
which the Bill is being rammed through the Parliament.
Finally, Geoff McDonald from the Attorney-General’s Department seemed
curiously coy when explaining the constitutional basis for Preventative
Detention. The impression you get is that the Government knows that the
Control and Detention Orders are constitutionally suspect and seems
unconcerned.
Who cares if the High Court strikes down these provisions when, as I
suspect, they are really just about distracting attention from the
WorkChoices legislation — just a cynical smokescreen, reckless as to their
impact on, and encouragement of, extremists among our disaffected
minorities. It should be remembered though that the complementary
legislation to be passed by the States will likely be constitutionally valid.
State Legislation
Turning to that complementary State legislation, the Terrorism (Police
Powers) Amendment (Preventative Detention) Bill 2005 has been introduced
into the NSW Parliament.
This State Bill provides for Preventative Detention for up to 14 days. The
provisions allow a person to be detained if it would ‘substantially assist’
the prevention of a terrorist act expected within 14 days, or to preserve
evidence of, or relating to, a recent terrorist act. It applies to people
against whom there is insufficient evidence to justify a charge.
Initially, the Supreme Court may make an Interim Order for a maximum of 48
hours if it has reasonable grounds to suspect that the subject will engage
in a terrorist act or [merely] possesses a thing connected with the
preparation for, or the engagement of a person in, a terrorist act, or has
done or will do an act in preparation for, or planning, a terrorist act.
The Interim Order can (and likely will) be made without the subject’s
knowledge. It is made in a closed court where the rules of evidence do not
apply. Hearsay evidence will be allowed. The subject is taken into custody
and the hearing at which a final 14 day Order may be made must take place
within 48 hours after detention, otherwise the Interim Order lapses.
The procedure for this final hearing is also seriously deficient:
• The notice of hearing is required to be given less than 48 hours
beforehand. Detained persons or their lawyers may call evidence and make
submissions at the hearing but preparing for it at short notice would be
very difficult;
• Detained persons are not entitled to see the documents upon which the
Interim Order was obtained, merely a copy of the Order and a summary
prepared by the police, not the court, of the grounds on which it was
based. The summary is further limited by allowing the exclusion of
‘material likely to prejudice national security’;
• Detained persons’ communications with their lawyers are monitored, an
unprecedented and totally unacceptable provision;
• The court need only be satisfied on the balance of probabilities rather
than the criminal standard of beyond reasonable doubt;
• There is no provision for legal aid, whereas legal aid for other serious
criminal offences is mandatory for those unable to afford representation;
• The hearing will be in a closed court and publication of information
about it may be suppressed;
• Again, the rules of evidence do not apply and hearsay evidence is
therefore allowable;
• There is no requirement for any of the police evidence to be provided to
the detained person prior to the hearing;
• The police make the application, not the independent Director of Public
Prosecutions who usually prosecutes serious criminal offences.
If the Interim Order is confirmed, the detained person does have a right to
apply to the court to revoke or vary the Order at any time thereafter, but
only if there is new evidence available. A similar hearing would take place
as above, with the same deficiencies.
Detention without charge has never been allowed in Australia except in
cases of serious mental or infectious illness, internment during wartime,
or in relation to non-citizens (that is, illegal immigrants). Apart from
these exceptional cases and ASIO’s very limited power to detain for
questioning which has been strongly criticised, citizens can only be
detained for the purpose of bringing them before a court on a charge.
As with the Federal Bill, there is no explanation in the State Bill or the
accompanying Explanatory Memorandum or in the Minister’s Second Reading
Speech of the need for this detention or the severe restrictions on the
detainee’s opportunities to respond to it.
One wonders what is supposed to be achieved. Questioning of the detained
person is prohibited by the Bill, so it will not assist an investigation.
Incidentally, Attorney-General Bob Debus did not introduce the Bill or
deliver the Second Reading speech. This was left to one of the State’s most
junior Ministers Milton Orkopolous — perhaps indicating the level of
support Mr Debus has for the legislation which he is reported last week to
have described as ‘a shithouse Bill.’
Nevertheless, the Bill seems set to pass serenely through State Parliament
with the support of the major parties.
A Kangaroo Court
It will then be law. Any new powers conferred on the Supreme Court are
allocated to one of the Court’s Divisions to which Judges are appointed
according to their experience of particular legal areas. It seems
appropriate that a new Division should be created for the proposed Act. I
suggest it be called the Kangaroo Court because that is how the Supreme
Court will operate when exercising its jurisdiction under this Act.
I am a member of the ALP’s right wing faction. Many of my factional
colleagues will scorn this criticism. They will say that I should shut up
and concentrate on fighting the much more important industrial relations
changes being forced through Federal Parliament.
As a trade union (USU) member for more than 20 years, I agree with them
that the IR Bill is extremely important. However, these Anti-Terror Bills,
while perhaps not as critically important, are still of major significance.
Parts of them are an attack on fundamental common law rights — the right to
personal liberty and the presumption of innocence.
State and Federal MPs may care to reflect on all this before they vote on
these proposals. They may also care to read the written submission made to
the Senate Committee by a Dr Andrew Christy. Christy quoted Benjamin Franklin:
Any society that would give up a little liberty to gain a little security
will deserve neither and lose both.
About the author
Kirk McKenzie is a partner in a Sydney law firm. He is President of the
Labor Party's North Sydney branch and is Chair of the Finance and Economic
Policy Committee of the NSW Branch of the ALP.
http://www.newmatilda.com/home/articledetailmagazine.asp?ArticleID=1152&CategoryID=94
=================
9. Time for an Amnesty
=================
New Matilda
By: Anne Coombs
Wednesday 23 November 2005
In 2002, a young Russian mother still breastfeeding her baby was separated
from the child and locked up in the Villawood detention centre. The
shocking image of a woman being taken from her infant and put under threat
of imminent deportation was the first indication for many people of the
reach of Australia’s harsh migration laws. They could be applied not just
against boat people from the Middle East or Asians working here illegally
but against a European woman who had a child with an Australian man.
Three years later, and after the Cornelia Rau and Vivian Alvarez Solon
cases, we are much wiser about the workings and culture of the Department
of Immigration.
The cases caught up in Australia’s increasingly vigilant compliance and
deportation system are, typically, not from the Middle East but from our
own region — Malaysia, Fiji, China, Tonga, Bangladesh, India, Korea. Some
are asylum seekers, believing that if they return to their countries of
origin they will face persecution. Most are ‘visa overstayers’: people who
have been in Australia a long time, have built lives here, have had
children here, but with whom the Immigration Department has finally caught up.
Visa overstayers are usually not asylum seekers and the distinction needs
to be kept clearly in mind. The asylum system is a matter of life or death
for refugees. It is too important to be weakened by thousand of visa
overstayers claiming to be refugees.
But what overstayers and asylum seekers have in common — along with the
thousands of refugees granted temporary protection visas — is separation
from family. The Australian Government’s refusal to treat immediate members
of a refugee family as one unit has been one of the most outrageous
injustices in a system that is full of cruel and arbitrary acts. Mothers
and children are kept locked up while fathers are given visas, and vice
versa; teenage boys are detained while their younger siblings are released.
There are often very good reasons why visa overstayers should be allowed to
remain. One is the interests of the children involved. This was the
position taken by Justice Mary Gaudron in the High Court when she said that
the best interests of the children needed to be considered when deciding
whether a non-citizen parent should be deported: children who were
Australian citizens should not be separated from a non-citizen parent. This
is not an attitude that has been embraced by the Government.
Before 1986, any child born here was considered Australian (apart from the
children of foreign diplomats). But since then, a child is only Australian
if at least one parent is a citizen or a permanent resident. A paper
published by the Parliamentary Research Library in 2003 said: ‘It appears
to be beyond the powers of Parliament and the Commonwealth to treat locally
born children as “aliens” without an alteration to the Constitution.’ Yet
that is precisely what has occurred in recent times, when Australian-born
children have been imprisoned in detention centres.
Six-year-old Janie Whang and her older brother, Ian, were removed from
Stanmore Public School in Sydney in March by immigration officers and taken
to Villawood detention centre. Their mother had been picked up at Sydney
Airport while trying to re-enter the country. The children had been staying
with an aunt while their mother was overseas. The mother and children came
close to being deported, then spent two months in detention before being
released.
After her release, Janie Whang was one of 16 children whose case was taken
to the Federal Court in August. They sought the right to citizenship
because they were born in Australia. Their appeal was rejected. A similar
case went to the High Court last year and also failed.
Having been born here they cannot be aliens, but nor are they citizens.
They are in effect ‘naturally born subjects’. Under an amendment made to
the Citizenship Act in 1986, such children automatically become citizens on
their 10th birthdays. But that may be too late for some — they may have
already been deported.
Sereana Naikelekele has lived here for more than 16 years, borne five
children here, yet faces deportation to Fiji. She may be separated from
three of her five children. She was in detention with two of the children
but released earlier this year, on a bridging visa, which means she can’t
work.
The 1986 amendment is the reason Naikelekele’s five children fall into
three different categories: her two eldest children are Australian because
they have passed their 10th birthdays; the middle two are non-citizens —
born here but under 10; and the youngest is Australian because the father
is Australian.
The status of Australian-born children is important for another reason. If
a person is neither an alien nor an immigrant then the detention provisions
of the Migration Act do not apply. In other words, Australian-born children
like Janie Whang and Naikelekele’s middle two children cannot be locked up
without a court order. This situation has been repeatedly ignored by the
Department.
The lack of judicial review of the Department’s activities is one of the
issues that have been highlighted by the Rau and Alvarez Solon cases.
Departmental officers, scathingly criticised in the Palmer Report, have
taken an open-slather approach to detaining and deporting people,
apparently ignorant of the law under which they operate.
The Department of Immigration’s powers to enter, search and detain exceed
those of the police or ASIO. The Department can lock people up without
having to consult a magistrate or appeal for a court order. Where a
Department official reasonably suspects that a person is an unlawful
non-citizen, they are obliged, under the Migration Act, to detain that
person and to remove them from the country as soon as possible.
Up until the 1990s, no one could be deported unless they went before a
court. And it was up to the Commonwealth to prove that the deportation was
legitimate. No such scrutiny happens now. Since 2001, no deportation orders
have been issued. The terminology ‘deportation’ is not even used by the
Department because that implies a judicial order. What the government does
these days is ‘removal’.
In recent years, the number of forced removals has leapt to more than
10,000 a year. This is a far higher rate of removal, relative to
population, than comparable Western countries. So what are those other
countries doing? Some are beginning to follow Australia’s lead — cracking
down hard on ‘illegals’, tightening asylum provisions. But not all are
going down the hardline path.
Earlier this year, Spain announced a three-month amnesty, allowing illegal
workers to come out of the woodwork and become legal members of Spanish
society. About 700,000 workers accepted the amnesty, adding up to about one
million people when family members were included. (No, the Spanish
Government didn’t deport their families.) Spain has not collapsed as a
result of its amnesty. The Spanish Government considers it a great success,
despite opposition fears that it might encourage further unlawful arrivals.
During the 1990s, the United States granted amnesty to many hundreds of
thousands of people. Another amnesty has been proposed by President Bush —
the business community likes the idea of ‘regularising’ illegal labour.
An amnesty is also a way of acknowledging the complex reality of modern
migration. People don’t always stay where they were born. And that is not
necessarily a bad thing. An amnesty recognises that people are in the
country, that they are working, studying, raising families. That they have
lives. It is a way of allowing them to be visible, to stop hiding, to pay
taxes and vote.
Perhaps it is time to consider such an amnesty here. The Department of
Immigration estimates that there are more than 50,000 visa overstayers.
Each year about 10,000 are deported. But more than 30 per cent of
overstayers have been here more than 10 years. These figures do not include
the tens of thousands of people who are working here even though their
temporary resident visas prohibit it.
At the very least we could, when considering the cases of visa overstayers,
take more account of their ties in Australia: to families, communities,
professions, or simply take into account the fact they have lived here for
a long time. We could consider their calibre as citizens: have they
contributed to the economy, the community, to their families’ upkeep? Not
all these things are easy to judge, but some are. Have they been
law-abiding? Have they bought houses? Have they shown in manifold ways that
they wish to make lives here?
Until this year, young people who had spent a substantial part of their
lives in Australia could apply for a ‘close-ties visa’ when they turned 18,
and thus stay here permanently, eventually becoming citizens. But that form
of visa was summarily abolished in July.
We used to be told, during the golden days of multiculturalism, that there
were many types of Australians. Well, it’s time we recognised that there
are many ways to become Australian; that trying to live a life is a
complicated, messy, sometimes desperate business for a lot of people, and
it’s not always possible to do things the right way.
A more flexible attitude to a few thousand families won’t hurt the rest of
us at all. And it will make an enormous difference to them. It might mean
that Sereana Naikelekele can stay in the country where she has lived for
nearly 17 years with all five of her children.
Is that so very much to ask?
A longer version of this essay is published in Griffith REVIEW 10: Family
Politics (ABC Books).
About the author
Anne Coombs is an author, and was one of the founders of Rural Australians
for Refugees.
http://www.newmatilda.com/home/articledetailmagazine.asp?ArticleID=1145
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