Children in Immigration Detention – What Are Our Responsibilities As Australians?

The Northern Institute Charles Darwin University, Darwin, NT 15 August 2012

Presentation by

Associate Professor Natasha Cica

Director, Inglis Clark Centre for Civil Society Division of the Provost University of

1 It’s really wonderful to be back in Darwin, one of the most genuinely multicultural cities in , and to have the opportunity to speak here tonight.

First, I acknowledge the traditional keepers of this land and pay my respects to their ancestors.

Second, I want to note (and I hope and trust that it really is now a footnote) that until very recently, where I was raised in Tasmania and where I now live, this acknowledgement and paying of respect was an unusual thing for anyone to do. By unusual, I mean pretty much no-one actually did it.

Scroll back twenty or thirty years further, and you’d say the same thing about almost any event anywhere in our nation. I am not saying anything original when I suggest this points to a problematic relationship between people and place, country and custom, identity and respect – not just in Tasmania but in wider Australia – which today, fortunately, more people will actually name as problematic. I will return to this question later in my presentation.

Third, I thank The Northern Institute at Charles Darwin University for hosting this event, and the Northern Territory Council for Human Rights Education for supporting it. I specially thank Eddie Cubillo, the Anti-Discrimination Commissioner for the Northern Territory, who invited me to travel from Australia’s deep south to its far north to speak to you about what he considers to be a core justice question in contemporary Australia – the way we treat children who seek asylum in our nation, on our land, in our place. I share his deep concern on that issue, which is why I came.

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Before I flew up to Darwin early this morning, I had a plan in my head about tonight’s talk.

I’d been working on that plan for a long time, since I first spoke to Eddie about it some time ago.

I’d planned to give you a neat, tight package of data and analysis adding up to a duly dispassionate argument (probably overly legalistic, because my first training was as a lawyer). That argument would point to the logical imperative of policy change in relation to Australia’s mandatory detention policy as it applies to asylum seekers, including children.

Before I stepped on the plane, however, that plan was blown out of the water – no pun intended.

Why do I say that?

First, on Monday the Gillard government-commissioned Report of the Expert Panel on Asylum Seekers was released. Chaired by retired Air Chief Marshal Angus Houston AC AFC, the panel also included Mr Paris Aristotle AM, the Director of the Victorian Foundation for Survivors of Torture; and Professor Michael L'Estrange AO, the Director of the National Security College at the Australian National University. All are men highly and widely respected in their fields of expertise.

Their report purports to offer a solution to a public policy impasse that has

3 dogged Australia for well over a decade. Their recommendations are predicated on the restoration of offshore processing in Nauru and Papua New Guinea of people seeking asylum in Australia, when they seek to arrive by boat, a ‘solution’ that was first controversially implemented by the Howard government. The Houston Report also recommends a substantial overall increase in Australia’s humanitarian intake, and improved regional collaboration and engagement on this question.

Since its release two days ago, the Houston recommendations have been deliberately and pointedly branded in our media as ‘hard-headed, but not hard- hearted’ and ‘realistic but not idealistic.’ Another man respected in his field of expertise, Jesuit priest and lawyer Frank Brennan, yesterday posted this summary on facebook of his response to their report yesterday morning: ‘My reflections on the report of the expert panel - three most honourable men who demonstrate that ultimately you have to give preference to deterrence or decency, and if it is to be deterrence administered offshore, there is a need for adequate scrutiny and safeguards.’1

Tonight, I will reserve my own judgemental comment on the Houston Report, except to say – before the partisan politicking and cherry-picking of the corpus of that report begins in earnest – that I consider that it misses the larger point I’ve

1 Brennan’s fuller and clearer argument is set out in ‘Australia Takes the Low Road on Asylum Seekers’, published in Eureka Street on 16 August 2012 at http://www.eurekastreet.com.au/article.aspx?aeid=32778. For a more recent legal analysis specifically critiquing the Houston Report’s failure to address the fate of child asylum seekers, and including reference to the question of responsibilities relating to guardianship of asylum seeker children, see Kerry Murphy, ‘Expert panel leaves asylum seeker children in the dark’, published in The Conversation on 20 August 2012 at http://theconversation.edu.au/expert-panel-leaves-asylum-seeker-children-in-the-dark- 8879.

4 been invited to address tonight.

The larger point as I see it is that the measure of our level of decency as a nation, as a people in this place, is the question of how we treat the most vulnerable who seek our protection or who dwell amongst us. Asylum seekers seeking to arrive by boat are among this number, most especially children. For me their vulnerability and our accompanying duty of care towards them adds up to what Australians informally should be calling a no-brainer. I wonder how we have lost our sense of this, collectively.

The Houston Report runs to some 160 pages. In those pages, there are just 15 references to ‘child’ and 4 to ‘children.’ There are 53 references to ‘risk’, 46 to ‘incentive’, 93 to ‘claim’, 36 to ‘cost’ and 7 to ‘profit’. There are no references to ‘morality’ and none to ‘values’. The report includes this peculiar and somewhat defensive statement, however – ‘the perfect should not be allowed to become the enemy of the good.’ I won’t labour the point, but it’s this – decent and well- intentioned as its authors may be as individuals, this report is the product (and sits at the latest pointy-end) of what I consider to be a degraded national conversation about our response to asylum-seekers who arrive by boat. More of that later.

I mentioned the form and format of my planned address had been blown out of the water.

The second reason for that is I’ve just spent a couple of months outside Australia, in Europe, most recently in Serbia. I went there to begin research for my next book, a visit made possible by the support of a Sidney Myer Creative Fellowship.

5 I also went for the first European launch of my first book, Pedder Dreaming: Olegas Truchanas and a Lost Tasmanian Wilderness, published last year by Queensland University Press.2

Pedder Dreaming retells the story of Olegas Truchanas, a Lithuanian born in 1923 who emigrated to Tasmania after World War II, after fighting with the Lithuanian resistance and spending time in displaced persons’ camps in Allied-occupied . From the 1950s Olegas photographed Tasmania’s remote south-west wilderness, frequently travelling solo and risking his life in order to do so. He also met and married a Tasmanian, Melva, and together they built a house and had three children. Through his photography, Olegas established a close connection with a circle of Tasmanian photographers and watercolour painters, with whom he worked to save from inundation by a hydro-electric scheme. This was Australia’s first globally noticed environmental battle, and later produced the world’s first greens party. The campaign failed and the lake was lost. Soon after, in early 1972 and before he was fifty years old Olegas drowned on a photographic expedition to one of Tasmania’s wildest rivers.

The book features artwork by Olegas Truchanas and his friends, including previously unpublished images. The book moves back and forth between the past and the present, encouraging deeper reflection on the values underpinning the art and activism of Olegas and his circle. The story reflects Olegas’s remarkable journey from European refugee to Tasmanian legend. Underpinning this indomitable progression stands a complex reimagining of home, by Olegas and his Tasmanian friends, and also of Tasmania. So Pedder Dreaming is about much more than the person who was Olegas Truchanas, and indeed the place

2 See further www.pedderdreaming.com .

6 that was Lake Pedder. That story is a written and visual portal for exploring larger questions about culture and identity, our relationship with country and the values by which we live.

Pedder Dreaming is also about the relationship between Australia and distant places, as brokered by people ‘on the ground’ and specifically by many refugees, people who like Olegas Truchanas who came here with no money, no home, no material security, and often no formal education.3 Over the years I have spent a great deal of time with people who fall into that category, so their stories are beyond familiar to me. My father came to Australia in 1960 from the former Yugoslavia – not as a political refugee, but certainly as an economic one. One of my Australian mother’s closest friends was a Hungarian who left during the 1956 uprising. The parents of my own school friends in Tasmania included Austrian Jews, Germans, Italians, Poles and many others who’d been pushed from their European homes by mid-twentieth century wars. And later that century, many people from the former Yugoslavia fled from the 1990s conflicts to build new lives in Australia, no small number of whom – in one way or another, including children – arrived at my parents’ home in .

More recently, this newer wave of immigrants has been finding their way into my classroom. Among the best students in a leadership course I designed and delivered recently at the University of Tasmania was a Bosnian now in her early twenties, who came to Tasmania from Sarajevo as a small child. Her identity as an Australian and as a Serb (and as a former Yugoslav, up to the point when that world literally exploded) and her accompanying sense of home is certainly

3 A fuller version of this part of tonight’s argument will appear in the next issue of Tasmanian literary magazine Island (September 2012 publication).

7 complicated. Stealing Canadian philosopher John Ralston Saul’s notion of ‘positive’ nationalism,4 rather than grounding an identity in insecurity, a certain pride in ignorance and a sense of being wounded or perpetually badly done by, this young woman has developed a sophisticated sense of finding multiple ways of being at home with the widest variety of people and situations – and a talent for nosing out and shoring up values driven by notions of common good and the welfare of her fellow humans. As well as reminding me that it was her Muslim neighbours who saved her life during the siege of Sarajevo by feeding her pork, she delivered the most sophisticated analysis of post-Pauline Hanson race politics in Australia that I’ve read anywhere since that Pandora’s Box spat open in 1996.

I am repeatedly astounded by how relatively marginal the perspectives of older and newer arrivals like this student, like the friends of my parents, and like the parents of my childhood friends remain in public policy conversations in contemporary Australia. I am equally dismayed by how readily those perspectives are dismissed by so many so-called mainstream Australians – including so-called leaders, even many who brandish their social justice credentials like a big white wand.

This is both cause and symptom of the state of most so-called mainstream Australian conversations today about multiculturalism, immigration and that buzzword of the past decade, ‘border control’ which, as I’ve already indicated, are part of a broad package that degrades our more specific response to the question of asylum seekers seeking to arrive by boat. In the past I’ve worked for a number of Federal parliamentarians and the wider Federal Parliament advising

4 See Saul’s book The Collapse of Globalism and the Reinvention of the World (2005).

8 on exactly these questions, including through the Tampa and 9/11 national security (or national/ist identity?) crises in 2001. That included a visit to Woomera immigration detention centre in mid-2001, as part of a parliamentary delegation, some months before the Tampa sailed onto our horizon. That day for me was one of great sorrow and considerable shame as an Australian, especially because so many children were held there, and additionally because no person in Australia (adult or child) should be detained in such conditions. Changing the frame of this debating game has long been a matter of my professional as well as personal concern. Most unfortunately and despite the evident best intentions of its authors, as it stands the Houston Report is no frame-or-game-changer, on this front.

In its 2012 iteration, the popular SBS television series Go Back To Where You Came From showcases personalities like Australian rock legend Angry Anderson, former Howard government minister Peter Reith and former radio shock jock Michael Smith. Incredibly, to me, the series lacks the upfront talent balance of obviously immigrant Australians like my student, the friends of my parents or the parents of my childhood friends. Let alone anyone actually brown, as Melbourne-based Muslim Australian comics Aamer Rahman and Nazeem Hussain might say, in some live or online iteration of their timely creation Fear of A Brown Planet. Never mind anyone ‘Third World–looking’ as Lebanese-Australian Ghassan Hage of the University of Melbourne put it in his book White Nation: Fantasies of White Supremacy in a Multicultural Society (Routledge, 2000). Nor even visibly ‘Gen W’ (that W points to women and wogs), a term deployed by Greek-Australian commentator George Megalogenis in his first book Faultlines: Race, Work and the Politics of Changing Australia (Scribe, 2003).

9 Inspired by all this, I recently flew back to Belgrade. I wasn’t born there, I was born in the sleepier hollow of Devonport, Tasmania, but this cosmopolitan European city is part of my own complicated sense of home. I first went to Belgrade in 1978 when I was eleven years old and this city was the capital of Yugoslavia, a federation that no longer exists. My father was born and raised by his Serb father and Croat mother in nearby Vojvodina, my aunt lived nearby too, my uncle still does, and much more family besides. Since then I’ve been back a handful of times. Especially since 1991, which was the year I’d planned to relocate here and live for at least a while, and the year that war so tragically revisited the Balkans, there have been enormous practical obstacles to being more fully in and of this place. These have eclipsed mere geographical distance, vast as it remains.

As mentioned, I took Pedder Dreaming to Belgrade, in a summer heat wave that made Darwin look a tad chilly. It’s a book that’s already generated some great gatherings, including its national Australian launch by the Governor-General of Australia, Quentin Bryce, whose own unusually positive style of nationalism led her to speak with confident elegance of celebrating ‘profound love of country.’5 Her words were delivered in the National Portrait Gallery in Canberra, a public institution I approached to host the launch because it is such an important repository of – and resource for – our evolving understanding of Australia’s past, its present, its future. Happily for me, the Australian diplomat doing the Belgrade book honours in June closed some challenging circles of culture and national identity quite perfectly. He first recognized the importance of the work of Olegas

5 See Address by Her Excellency Ms Quentin Bryce AC CVO, Governor-General of the Commonwealth of Australia, on the occasion of the launch of Pedder Dreaming at The National Portrait Gallery of Australia, 17 September 2011, http://www.gg.gov.au/speech.php/view/id/979/title/launch-of-pedder-dreaming .

10 Truchanas to Australians in terms of the protection of our natural environment. And then stated this: ‘It is interesting that someone of Balkan origin writes about someone of Baltic origin. It shows that Australia is a multicultural country.’6 Indeed, we are. And it really can be that simple.

That story is no digression from tonight’s topic. It’s at the heart of it. Things can and should be that simple, and our response to the plight of asylum seeker children can and should be part of it.

Here are some on-point questions and answers that might help more of us with that.

Question 1: What are the 'rights' and 'wrongs' of Australia's approach to the detention of the children of parents, seeking asylum in Australia?

My answer: We should deliberately revive the language of 'right' and 'wrong' to remind more of us that there is a moral dimension to this debate. That fact is often overlooked, especially by politicians across the major parties who claim to speak for so-called mainstream Australians. On this question, they do not speak for me and they do not speak for many decent Australians. I was heartened to read a fast-response piece to the Houston Report by Bernard Keane in crikey.com yesterday. Pulling on that thread of the Houston Report’s statement that ‘the perfect should not be allowed to become the enemy of the good’, Keane asked ‘what about the morality?’, challenged the utilitarian

6 See ‘Sanjaranje na jezeru,’ Danas, 27 June 2012, http://www.danas.rs/danasrs/srbija/beograd/sanjarenje_na_jezeru.39.html?news_id=2 43150

11 or ‘ends justifies the means’ mindset informing the report, and pointed to the active harm that offshore detention will do to asylum seekers.7

Question 2: How difficult is it for Australia's government – of either persuasion – to resolve the issues they confront in this area of public policy?

My answer: It's as difficult as they choose to make it. For some time both major parties have hidden behind opinion polls on questions about our policies and practice in relation to asylum seekers who seek to arrive by boat. I would say these are really a version of 'push polls' that pre-suggest or provoke a particular kind of answer. That hasn't made the situation less difficult for anyone, including asylum seekers and including asylum seekers who are children.

In conversation with a range of public policy experts and so-called 'ordinary' people – inside Australia and outside our nation – I am often struck by how simple, and simply humane, are the alternatives they suggest to Australia’s mandatory detention regime for asylum seekers, which was introduced initially by the Keating government. As mentioned, I've just spent few months working in Europe. Many people I encountered professionally and personally there were shocked by Australia's approach to asylum seekers who seek to arrive by boat, including children, most especially as it evolved under the Howard government but including as it continues under the Gillard government.

A number of these conversations were with people who have navigated a range

7 Bernard Keane, ‘The moral calculus of exemplary detention,’ 14 August 2012, http://www.crikey.com.au/2012/08/14/the-moral-calculus-of-exemplary-detention/. Keane’s opening line is also worth quoting: ‘Here we are at the outermost extreme of “least worst” policymaking, at least in the form a civilised state can practice it.’

12 of real-life consequences of the mass displacements of the Balkan wars of the 1990s, including people whose own families were ‘ethnically cleansed’. People you might think would be unfazed by anything Australia might do to anyone. One of my meetings was in the office of Serbia’s first ever Commission for the Protection of Equality, whose Commissioner and senior staff visited Australia on a study tour earlier this year to exchange experiences and strategic perspective with academics, anti-discrimination bureaucrats, human rights advocates and members of the wider Australian community in Sydney, Canberra and Hobart.8 We’d do well in Australia today to be better guided by the foundational words inscribed on the wall in Cyrillic in the Commission’s offices in Belgrade – All human beings are born free and equal with dignity and rights.

Question 3: Why is this a topic that 'many Australians prefer to avoid'?

My answer: We prefer to avoid it because it is one of the big blind spots in our identity as a nation. Every nation has blind spots and it is the responsibility of the people of each nation to address them. This blind spot very forcefully challenges Australians’ imagination of ourselves as easy-going, generous and committed to fairness. I recommend that you read Canberra-based political journalist Laura Tingle’s current Quarterly Essay, ‘Great Expectations: Government Entitlement and an Angry Nation.’ Early on in this essay, she raises the idea that we are, in fact and instead, actually a quite ‘angry’ nation. This echoes John Ralston Saul’s concept of ‘negative’ nationalism.

Question 4: What do you think of those people and organisations who

8 The study tour was supported by the University of Sydney, the Australian National University and the University of Tasmania.

13 are standing up for the rights of children in detention?

My answer: People and organisations standing up for the rights of children in detention deserve more airtime and more support. They should be allowed (perhaps even entitled) to have more input into the way this debate is framed in our parliaments, in our media and in sites of policy inquiry and reform. I can’t say there’s clear evidence that this occurred in a meaningful way in relation to the Houston Report, based on its content, and notwithstanding the extensive list of individuals and organisations broadly in this category who are listed as having made formal submissions to this inquiry.

Question 5: What do you think can be done to improve the situation? At a federal policy level? And amongst the public?

My answer: We need a critical mass of politicians – leaders inside the parliamentary tent, and inside both major parties – who will stand up and say mandatory detention and our broader approach to asylum seekers is wrong, and should no longer be part of Australian law and policy. We do already have leaders outside the parliamentary tent who are saying this – members of the public, lawyers, academics, individuals and organisations in civil society. Again, many are listed at the back end of the Houston document.

Question 6: What is the best solution for the children caught up in this situation?

My answer: No child should be in immigration detention. It's a simple and decent solution.

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Quoting correspondence with my colleague Professor Klaus Neumann of the Swinburne Institute for Social Research at Swinburne University of Technology, with whom I have had an ongoing and valuable dialogue on these questions for at least the past decade:

Since December 2010, the focus of the public debate about the human costs of Australia's response to asylum seekers has shifted decisively. Children in detention aren't such a big deal anymore. The discussion focuses almost entirely on the lives lost at sea. Under-age asylum seekers are still detained upon arrival.

The difference between detention centres and the so-called APODs is rather semantic. APODs are alternative places of detention, rather than alternatives to detention. Thus the placement of minors in APODs doesn't mean that Australia mandatory detention policy does not apply to them. Places of detention could of course be located on a scale, with Woomera [around the time you visited] at one end, and a place like the Inverbrackie APOD on the other. Ten years ago, most of these places were at the Woomera end of the scale, whereas now even the most problematic detention centre would be located closer to the other end of the scale, which means that there is perhaps not such a huge difference between alternative and non-alternative places of detention. And in any case, it's still detention. I suggest you visit the facilities in Darwin to see for yourself.

In practical terms, that’s quite difficult to do when you live in Tasmania. Needless to say, it’s going to be even more difficult to do if and when children are again detained offshore in Nauru, PNG and potentially Malaysia.

Overall, if we want to cut and paste a ready-made solution to this ‘problem’, we could do worse than adopting the recommendations of Dr David Cortlett’s recent

15 report for the International Detention Coalition, Captured Childhood, launched earlier this year in Geneva: http://idcoalition.org/wp- content/uploads/2012/03/Captured-Childhood-FINAL-June-2012.pdf

Putting it simply:

THE IDC BELIEVES THAT REFUGEE, ASYLUM SEEKER AND IRREGULAR MIGRANT CHILDREN SHOULD NEVER BE DETAINED … KEY RECOMMENDATIONS FOR ALL STATES INCLUDE:

As it is never in the best interests of a child to be detained for immigration purposes States should ensure that a minimum level of protection and support for children is in place in the community.

States should articulate in their legislation and policies that:

• Children who are refugees, asylum seekers or irregular migrants are, first and foremost, children. • The best interests of the child must be the primary consideration in any action taken in relation to the child. • The liberty of the child is a fundamental human right.

States should develop legislation, policies and practices to ensure that refugee, asylum seeker and irregular migrant children are free to reside in the community during the resolution of their immigration status.

The Captured Childhood report proposes a Child-Sensitive Community

16 Assessment and Placement (CCAP) model, a 5-step process to avoid the detention of refugee, asylum seeker and irregular migrant children.

- Step 1 –

Is a presumption against the detention of children. It applies prior to the arrival at a State’s territory of any children who are refugees, asylum seekers or irregular migrants.

- Step 2 -

Takes place within hours of a child being discovered at the border of, or within, a State’s territory. Step 2 includes screening the individual to determine their age, the assignment of a guardian to unaccompanied or separated children, the allocation of a case manager to all children, an intake assessment and the placement of the child or family into a community setting.

- Step 3 -

Is the substantive component of the child-sensitive community assessment and placement model. It involves ‘case management,’ including an exploration of the migration options available to children and families, a best interest determination, and an assessment of the protection needs of children and/or their families.

- Step 4 -

Involves ensuring that the rights of children and their best interests are safeguarded. It includes legal review of various decisions taken regarding children and their families – including decisions about where they are accommodated and about their legal status. It also includes an opportunity on the part of States to review the conditions accompanying the child or family’s placement in the community following a final immigration status decision.

- Step 5 -

Is the realization of sustainable migration solutions.

17 In my own conclusion – I don’t fully understand why Australia and Australians struggle so hard to develop a more generous and workable response to the challenges posed by asylum-seekers, including and especially children, who arrive by boat.

Perhaps I don’t want to understand fully, because I don’t like what some of the answers may tell me about contemporary Australia and Australians.

I can only hope that – as with our historical attitude to acknowledging and respecting the traditional owners of the land we stand on when we speak, in our universities, in our parliaments or indeed many of our own homes – in coming years more of us will have taken responsibility to shift these contemporary attitudes. Dramatically, and for the better.

Thank you.

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