27 refugees, currently housed in the Broadmeadows detention centre, are continuing their hunger strike: http://www.theage.com.au/victoria/asylum-seekers-mark-new-year-with-hunger-strike-20130414-2htdb.html#
Each is striking to protest their current status under Australian law, summarised as follows at http://www.julianburnside.com:
“ASIO has power to perform security assessments. If they assess a person adversely, the consequences depend on who the person is. If they are an Australian citizen, their passport will be cancelled. If they occupy any sort of sensitive government position, they are likely to lose it.
If they are a refugee, they will be refused a visa. If that happens, the Migration Act says that they must remain in detention until they get a visa or they are removed from Australia. There is the crunch for people already assessed as refugees: they are lawfully entitled to protection in Australia, but they are not given a visa. They cannot be sent back to the country they have fled, because the central obligation under the Refugees Convention is not to “refoule” a person: that is, not to send them back to a place of persecution.
In practice, that means that a refugee who is adversely assessed faces a life in prison-like environment without having committed any offence, and without even being told the reason for the adverse assessment.
The Gillard government has introduced a system of independent review of adverse assessments. The review is an empty gesture, because neither the refugee nor anyone acting for them is allowed to know the reason for the adverse assessment.
It is a chilling thought that in Australia in 2013 a person who is legally entitled to remain in the country can be jailed forever, without being allowed to know why, and with no means of legal challenge. This is truly the stuff of a Kafka nightmare.
Of course, we need ASIO. Of course ASIO needs to be able to perform most of its functions under a cloak of secrecy. But ASIO’s role is to protect Australia’s security interests. With that in mind, it is worth looking at the considerations which ASIO is able to take into account when determining to adversely assess a person. It is not easy to work out what considerations ASIO takes into account, because the regulations setting them out are secret: we are not allowed to know them. So here is a legal novelty: a person may be imprisoned for life but is not allowed to know the legal test which is relevant, nor are they allowed to know the facts to which that test has been applied.
Supporters of this scheme will say “But we need to protect ourselves, even if it means we depart from usual legal standards”. Maybe so. But let’s look at what protecting our security actually means. Here we get a glimmer of insight from the ASIO Act. “Security” means protecting Australia from espionage etc, politically motivated violence etc, but also the protection of Australia’s territorial and border integrity from serious threats; and carrying out Australia’s responsibilities to any foreign country in relation to those things.
So a person may seek protection here on account of the fact that they attacked the foreign regime from which they fled, and we accept them as a refugee. But then we say that we must protect that regime from the refugee and ASIO assesses them adversely. It’s grotesque.
And if you happen to have a parent or a cousin who is involved in people smuggling (or at least, is thought to be) then that makes you a threat to our “border integrity”, and you can be adversely assessed.
Let’s make no mistake about this: people are being jailed without charge and without trial, and face the prospect of a much longer time in jail than if they had actually broken the law and been convicted. Right now, in Melbourne, there are 27 people who are in the 11th day of a hunger strike. They are protesting against the fact that they have been held for years in detention, despite the fact that Australia has officially recognised that they are refugees entitled to our protection. Some protection: we are driving them to slow suicide. They describe themselves as the “living dead”.
Now the Immigration Department has ruled that Senator Sarah Hansen-Young is forbidden to visit the hunger strikers in detention. Perhaps it is too embarrassing for the Department that a member of Federal Parliament should actually see the human reality of what this country is doing to people who are legally entitled to be here, and who are legally entitled to our protection.
Naturally, many people reading this essay will resist it because they disagree with my basic philosophy. That’s fine. But who in this country is willing to stand up and argue in favour of a system which can jail a person for life without charge, without trial? Who will stand up and justify a system which can jail a person without trial for longer than the person would get if they had actually committed an offence?
Who feels safer knowing that both major political parties are both willing to support such a system?
And if you think such a system is OK, imagine how it will be when you lose your job and your passport without being told why, and without any way of finding out.”