Alternative Law Journal
For children in immigration detention the year 2004 began with considerable promise. Australians could no longer feign ignorance about the unnecessary suffering wrought by our immigration policy. The suffering of child detainees and the profoundly 'damaging mental health impact of detention had become the subject of intense media interest. The Bakhtiyari children and Shayan Bedraie, who was reduced by his experiences to a near catatonic state, were household names. A national inquiry into children in immigration detention conducted by the Human Rights and Equal Opportunity Commission (HREOC) had generated a large number of submissions from the public and was nearing completion.
On 2 April 2004, on the eve of the tabling of the HREOC report In Parliament, the Castan Centre for Human Rights Law at Monash University hosted a workshop entitled Children in Immigration Detention: the Policy, the Practice and the Prognosis. In addition to concern about the suffering of children in detention, some optimism was expressed that the practice of detaining young asylum seekers might be ended by the processes of the law. The previous year had seen significant gains made through litigatioh. The Full Federal Court had found that the mandatory detention provisions of the Migration Act 1958 (Cth) did not prevent a court from ordering release where there was no real likelihood that an unsuccessful asylum seeker could be removed from Australia in the reasonably foreseeable future. Five children of the Bakhtiyari family were living in the community after being released following orders made by the Full Family Court on 25 August 2003. On 3 February 2004, the High Court heard a challenge made on behalf of four children of the Sakhi family to the constitutional valid.ity of the detention provisions insofar as they require detention of children. On 13 May 2004, the report of the HREOC inquiry was tabled in Parliament. The 894-page report documented the harm caused by detaining children and concluded that the practice of immigration detention was inconsistent with international standards to. which Australia had signed up.
But while public awareness was at an all-time high, and advocacy on behalf of children was on the increase, the last six months have seen the High Court adopt a formalistic approach in its reading of the Migration Act. The clear wording of the legislation has in effect rendered Australia's international obligations irrelevant. In each of five successive judgments a severe blow was dealt to the hope that the courts would lead the way towards a more humane system for dealing with asylum .seekers. On 29 April 2004, the Court overturned the Full Family Court's decision that it had jurisdiction to order the release of children from immigration detention. In two decisions delivered on 6 August 2004, the Court found that unsuccessful asylum seekers could be detained indefinitely even though they are unable to be removed from Australia in the reasonably foreseeable future. A third decision handed down on 6 August 2004 rejected the contention that the conditions and effect of detention may be sufficiently harsh to render the detention unlawful, despite widespread reporting of the appalling conditions and trauma being suffered by many detainees. Two days before the federal election, on 7 October 2004, the Court rejected the application made on behalf of the Saklii children.
The 2001 election saw' a coalition campaign based on fear of asylum seekers, portrayed as the 'sorts of people' who would willingly throw their children into the sea. Despite the Australian community's vastly increased knowledge about the reality of immigration detention, these same children were ignored in the 2004 election. Arguments that John Howard lied -about the 'children overboard' scandal, about weapons of mass destruct1on in Iraq -also seemed to have no impact on voters.
With an electoral campaign on both sides of politics based on self-interest and the protection of security, it would appear that an overwhelming concern about interest rates squeezed out concern for the suffering of the most vulnerable members of our society.
Yet despite the preoccupation with self-interest and the economy, there remains room for hope. On 7 October, the same day the High Court rejected the Sakhi application, concerned citizens Ben and Margaret Lechtenberg invested in a full-page advertisement in The Age and Sydney Morning Herald newspapers. The advertisement pointed out that over 80 children remain in detention and sought to persuade voters that 'Australia can do better than this'. The increased Green vote, the voices of refugee advocates, and the large number of individuals who have visited children and adults in immigration detention, or expressed concern by making submissions to the HREOC inquiry and writing letters to the press give hope that the Australian community's commitment to social justice has not entirely evaporated.
This issue of the Alternative Law Journal focuses on detention in Australia and elsewhere, and integrity in government. In this peaceful and prosperous country, the concerned and committed must continue to show that justice matters, and find new ways to promote the rights of people unjustly detained.
TANIA PENOVIC teaches law at Monash University.
BRONWYN NAYLOR teaches law at Monash University.
ADIVA SIFRIS teaches law at Monash University.