Out of Sight, Not Out of Mind, in Australia.
The HRAS Interview with Daniel Webb of Australia’s Human Rights Law Centre.
Daniel Webb leads much of the work on refugee rights undertaken by Australia’s Human Rights Law Centre. He has furthered human rights causes in Australia and around the world, and, in 2010, he was awarded the Law Institute of Victoria’s President’s Award for his outstanding work for human rights and social justice.
Daniel took time out from his latest high court action to speak to HRAS about Australia’s track record with refugee rights.
HRAS: What are the goals of the Human Rights Law Centre?
The Human Rights Law Centre works to protect and promote human rights both within Australia and through the Australian government’s actions abroad. We focus on some key priority areas, one of which is protecting the fundamental rights of refugees and asylum seekers.
The way Australia treats people seeking protection is one of the biggest human rights issues in the country at the moment. The goal of our refugee and asylum seeker work is to ensure that the men, women and children who come to Australia and seek safety are treated consistently with the basic human rights standards Australia has signed up to.
At a time when there are more people fleeing persecution and conflict than there has been at any time since the end of the Second World War, our aim is to see that Australia does its bit and is a constructive contributor. Australia should step up and be part of the solution, not close its doors and be part of the problem.
HRAS: How does Australia’s record on refugees compare with other nations?
Terribly. Although Australia did grant protection to about 14,000 people last year, that only ranks us around 70th in the world on a GDP per capita basis. Australia does have a good history of taking people through United Nations resettlement processes but only a tiny fraction of the world’s refugees receive protection through that system, and the current government has slashed 6,250 places from our annual intake.
Ultimately the most relevant measure of how we perform is the total number of people we provide safety to. By that measure Australia is doing much less than it can and much less than it should.
HRAS: What is Australia doing to prevent people from reaching its shores?
The current government has said that its asylum seeker policies have a single-minded focus on deterrence. What that looks like in practice is that hundreds of very vulnerable people are being intercepted at sea and returned, often to danger, and anyone who makes it here is treated in a way designed to scare off others thinking of coming. Whoever you are and whatever horrors you have fled, if the vessel that brings you here is a boat then you are subject to mandatory and indefinite detention on Manus Island in Papua New Guinea or on Nauru.
At the same time as mistreating those who arrive and intercepting and returning those seeking to come, Australia has also drastically cut its UN intake. So our policies are uncaring and unhelpful in every way.
HRAS: What are you doing to change the situation?
Our focus is on what the Australian government gets up to on the high seas and offshore in Nauru and Papua New Guinea. These are the sites of least transparency – the darkest corners – and increasingly they are the sites of greatest injustice.
Last year we were involved in a high court case that challenged the government’s secretive month-long high seas detention of 157 people, including pregnant women and children as young as one year old. These people were detained incommunicado at sea beneath the deck of an Australian customs ship. For the most part they had no idea where they were and no idea where the government planned to take them.
It took our high court case for the government to even confirm that these people were in its custody. As one of the women held on the boat told me, “if it wasn’t for this case no one would have even known we existed.” The high court case challenged their treatment and, while the decision ultimately went against our clients, the case succeeded in establishing important limits on the commonwealth’s maritime powers.
HRAS: What happened to the people?
During the course of the legal case it emerged that the government took them all the way back to just outside India without actually having any sort of agreement in place for the Indian government to receive them. When India refused, a plan was hatched to drop the group at sea in orange lifeboats and tell them to make their own way back to India. Fortunately, the weather was bad and didn’t permit that plan to be carried through, so eventually they were brought back to Australia and then sent to Nauru.
HRAS: How were the government’s powers changed as a result of the court case?
The case was initially filed to try and stop the people being returned to danger without due process – without any fair and individualised assessment of their refugee claims. When they were brought to Australia and then sent to Nauru, the case then became about the lawfulness of their detention at sea.
The questions we asked in the high court were whether the government’s powers at sea are limited by international human rights law and by principles of natural justice and due process. During the case the government amended the law to provide that its maritime powers can’t be challenged in court on these bases. They were shocking amendments – ultimately a government confident its actions are fair and humane doesn’t amend the law to say fairness and human rights are irrelevant.
Despite these hasty amendments a majority of the judges still identified that the commonwealth’s maritime powers are subject to a very important limitation, namely that the government can’t return people to a place that they don’t reasonably believe to be safe. Unfortunately there was nothing on the facts before the court to suggest that these 157 people were about to be sent to an unsafe place, so by a narrow majority of 4:3 the court’s decision went against us on the facts. But on the law, the court did set out this important limit on maritime powers.
The ruling means that there are serious questions about whether the government is acting unlawfully when it intercepts and returns people to places like Sri Lanka and Vietnam. However, the incredible secrecy around turn-backs is a significant barrier to these questions being asked in court.
HRAS: What high court case are you are currently involved in?
We are running a case currently before the high court that challenges the power of the Australian government to fund and facilitate the indefinite detention of innocent people in the territories of other nations, namely Papua New Guinea and Nauru. Mandatory and indefinite offshore detention is a clear case of commonwealth conduct which violates the basic rights of people seeking safety in our country, and we are challenging the Australian government’s role in this offshore detention regime.
HRAS: What are you hoping to achieve for detainees?
The case is being run on behalf of about 150 detained people, including children and families, who have been held offshore before returning to Australia for medical treatment or to give birth. They desperately want to avoid being sent back to a detention centre that has already taken a toll on them and clearly caused them a great deal of harm. So first and foremost, this case aims to prevent them from being returned to offshore detention.
The case also questions the role of the commonwealth in causing, funding and facilitating offshore detention. Asking these questions is vital for the people we represent. It is also vital within our democratic system that all governments, irrespective of their policy agenda, are held accountable to limits on their power.
HRAS: What do you realistically hope to achieve in the long term?
Australia has signed many important human rights treaties – treaties like the Refugee Convention and the convention against torture and other inhumane treatment – because as a nation we’ve made the clear and strong moral judgement that we agree to the minimum standards that those treaties protect. We’ve made the decision that it’s never ok to return people to torture. We’ve made the decision that it’s never justifiable to subject people to arbitrary detention, and we’ve made the decision that it’s simply inexcusable to ever return the persecuted back into the hands of their persecutors.
It is these minimum standards which are reflected in the human rights treaties we’ve signed. We made these commitments for a reason yet we now systematically violate them. So our goal at the Human Rights Law Centre is to see Australia stick to its word and abide by the minimum moral and legal standards that we have voluntarily signed up to.
HRAS: What has to change for you to achieve that?
Rather than seeing the current refugee situation as a domestic border security threat we must understand it for what it really is: a global humanitarian challenge.
The thousands of people we see risking their lives on boats around the world don’t require countries like Australia to be harsher – they need countries like Australia to work constructively with the UN and its neighbours to develop safe, viable pathways for them to access protection.
I have emphasised litigation, but the other two limbs to our work on this issue are advocacy at the United Nations and public advocacy. I think they are both equally important.
HRAS: What are you doing at the United Nations?
Our United Nations advocacy seeks to ensure that Australia is accountable for breaking the human rights promises it has voluntarily made. As other countries grapple with this global humanitarian crisis, I think they’ll feel increasingly aggrieved that instead of respecting international law and sharing responsibility for refugee protection Australia is breaching international law in order to shift that responsibility elsewhere.
So, our advocacy is a way of ensuring accountability on the world stage and generating pressure on that world stage for Australia to change its approach. We should be part of the solution, not part of the problem.
HRAS: How are you working to change the hearts and minds of Australians?
Australia will be decent to people seeking safety when enough Australian people want it that way. So it’s absolutely vital that in pursuing litigation and United Nations advocacy we also advocate publicly for Australia to be better than it has been.
I am confident that if enough Australians were exposed to what I have been – if they could see the truly shocking detention conditions on Manus Island or speak to a terrified pregnant woman detained in secret somewhere at sea – they would feel very differently about our government’s approach.
So our public advocacy focuses on shining a light on these injustices and how they are harming people who are simply seeking safety for their families. We also emphasise that there is a better way to save lives at idea than punishing survivors, namely working with the UN and other countries in our region to develop safe and orderly pathways to protection.
HRAS: Thank-you Daniel. We wish you well in your endeavours.
the hras interview 