BORDER SECURITY (Australian)
June 06, 2006
For a while it looked as though the Government's tough policy on asylum-seekers had stopped boats arriving on our shores but early this year a group of West Papuans, fleeing what they claimed were human rights abuses by Indonesia, arrived by boat in Australia's north. The decision to grant them temporary protection visas set off a huge diplomatic row with Indonesia and left the Howard Government with a dilemma.
JENNY BROCKIE: What's more important - our relationship with Indonesia or recognising human rights? Tonight, Insight will talk about that and the Government's proposed solution. But first let's hear from one of the West Papuans.
HERMAN’S STORY:REPORTER: Irene Ulman
HERMAN WAINGGAI, WEST PAPUAN REFUGEE: Me and my friends, we come together to Australia. We didn't want to flee from our homeland but because our situation and condition under persecution from military, we asking to protection.
Herman Wainggai and another 42 West Papuans landed on Cape York in January this year. With one exception, the group was granted protection visas two months later. Wainggai wants Australians to know that he believes there are serious human rights abuses in West Papua suffered by those who want independence from Indonesia.
HERMAN WAINGGAI: I still remember the time I...slip on the...blood, fresh blood because before they arresting me, my friends already hit by Indonesian military, already killed by Indonesia military in same...same...same room.
Wainggai and his fellow West Papuans have brought their cause and their culture to the streets of Australia. But protests like these won't go unnoticed by Indonesia. Jakarta fears that the West Papuans could spread their message from the safe haven offered by Australia and wants our Government to keep them out. Herman Wainggai is asking the Parliament to resist that pressure.
HERMAN WAINGGAI: In the future, other West Papuan people need protection. I hope you help them like you done to me with my friends.
JENNY BROCKIE: Well, David, you settled in Australia in '98, I think, and you've just been back to West Papua five months ago. How would you describe it now?
DAVID HALUK, WEST PAPUAN ACTIVIST: Well... I just come back from West Papua, say, five months ago. Since I gone back to West Papua the situation over there is... ..it's, like, it's unbelievable.
JENNY BROCKIE: In what way is it unbelievable?
DAVID HALUK: It's like... It's getting worse. Like very massive military build-up in West Papua. You can see it 24/7, military with a gun down the street and then build-up lots and lots of military base on every corner. And everyone, people, like, everyone walk they've got to have like checkpoint by the police and everything and then there's a lot of intimidation for West Papuan people as well.
JENNY BROCKIE: George Dimara, you're an activist and you came here via PNG six years ago, you're on a bridging visa and you're in close contact with groups in West Papua. What are they telling you at the moment?
GEORGE DIMARA, WEST PAPUAN ACTIVIST: The military built up and then also the intelligence - Kopassus - came with increase of number and continued to operate in secret...separate places around West Papua and then continued to arrest the people secretly in the night-time and then kill them without proper investigation or consideration - the case has never been considered by law. But the Kopassus continue to intimidating... I mean, kill the people.
JENNY BROCKIE: And are you claiming this is people who are supporting independence who are being persecuted?
GEORGE DIMARA: Of course. Since 1969 that Indonesian took everything, mineral resources and everything, to built up Java island and never built up West Papua.
JENNY BROCKIE: George Brandis, how would you describe the human rights situation in West Papua at the moment?
GEORGE BRANDIS, LIBERAL PARTY SENATOR: I don't have any particular knowledge of the human rights situation, as these gentlemen claim to do. But, Jenny, I think most people in Australia acknowledge that President Yudhoyono is the most liberal ruler that Indonesia has had and is likely to have. So that it is very much not only in the Australian interest but also in the Indonesian interest that President Yudhoyono's Government be supported and that's a view that is shared by all sides of politics in Australia, as is the proposition that West Papua is properly a part of Indonesia.
JENNY BROCKIE: OK, but in the granting of those temporary protection visas was the Government acknowledging a case on the part of these West Papuans?
GEORGE BRANDIS: Well, I don't think we're in a position tonight to look at the facts of each particular case because we simply don't know them. But in granting a temporary protection visa the decision-maker was evidently persuaded on the facts of a particular case to a certain standard of proof. That is far from saying that the claims about human rights abuses that have been made in the broad by the speakers over here this evening is accepted by the Australian Government because it's not.
JENNY BROCKIE: Does the Australian Government accept there are any human right abuses in West Papua?
GEORGE BRANDIS: I think the fact that on each of his visits to Indonesia and his discussions with the Indonesian leadership Mr Howard - and indeed Mr Downer, on occasions, too - has raised the issue of human rights is an acknowledgment that there are human rights issues in Indonesia, as there are in many countries. It's not...to say that is not to concede or acknowledge the broad claims that have been made this evening.
JENNY BROCKIE: Dino Kusnadi, you're a spokesman for the Indonesian Embassy. Are Indonesian troops persecuting West Papuans?
DINO KUSNADI, INDONESIAN EMBASSY SPOKESMAN: At this moment there is a very strong will by the President to uphold human rights there. Of course, in the past, we can't deny that there are human rights abuses but you can't just put in one basket a whole bunch of human rights abuses. There are sometimes criminals. And of course if there are violations, they are being dealt with by the government. There are several cases - for instance, that one police officer fired into a market. This police officer is now currently in court, amidst being taken care of or has been... How do you say...
JENNY BROCKIE: So why are so many West Papuans wanting to leave then?
DINO KUSNADI: Look at it this way, these are all individual cases but just last month we had a regional election for the governor. Out of 2 million population there, the majority of the population there participated in the elections. You can tell that these people, most of these people, participated for their rights to choose their governor. Well, these facts say that so these facts speaks alone.
JENNY BROCKIE: It still doesn't answer why people are leaving though. Should Australia have just sent those asylum-seekers back to West Papua earlier this year, is that what you would have liked to have seen?
DINO KUSNADI: That's a general question but in the specific case, what we see the asylum-seekers, as Herman Wainggai claims to be, we only see them as economic migrants rather than political asylum-seekers.
JULIAN BURNSIDE, REFUGEE LAWYER: Let it be supposed that some of them were economic migrants. Why would Indonesia care? I don't think Australia does readily give protection visas.
JENNY BROCKIE: Dino, why did Indonesia care, what was the problem?
DINO KUSNADI: Simple. Perhaps you have to be an Indonesian to feel that way. There is an image problem with Indonesia that we are trying to address, that we are doing it right, this government is doing it right, but when you are doing it right and then someone says that you're doing it wrong and that's not true, how do you feel about that?
JENNY BROCKIE: But what if those people do have a case? What if they are still being persecuted in West Papua. We don't know the details of their case yet but what if they are?
DINO KUSNADI: Since the past, what two months now, our position saying that they're not being persecuted, that they will be safe if they return and they are only economic migrants, that hasn't been rebutted in the past two months. We haven't seen any facts. Of course if these facts are presented to us, we will investigate it and then, of course, those people who have done the human rights violations they will be taken into court.
JENNY BROCKIE: We'll get back to some of this in a moment. But George Brandis, the Government has introduced new legislation now to have all future boat loads of West Papuans, or any other asylum-seekers, processed offshore. Was that in part designed to appease the Indonesians in this very delicate situation, as you saw it?
GEORGE BRANDIS: I think it's important to say that this is legislation that applies generally to boat arrivals, not specifically to West Papuans.
JENNY BROCKIE: But the timing was around the West Papuan incident, wasn't it?
GEORGE BRANDIS: It was around that time, that's true. But the purpose of the legislation is to correct an anomaly and the anomaly is this - when the offshore islands of Australia were removed from the migration zone last year, then that created an arbitrary set of circumstances in which unauthorised boat arrivals that landed on an offshore island were processed offshore - in Nauru, in particular - whereas boat arrivals that made landfall on the mainland were not. So I think it's important in dealing with these situations that there should be equivalent treatment to all people.
JENNY BROCKIE: But why didn't you think that before this happened? Why didn't the Government take that position earlier?
GEORGE BRANDIS: Well, I think that the particular case where there was a landfall on the mainland dramatised the anomaly so that now what the purpose of the legislation and the effect of it will be that all unauthorised boat arrivals will be subject to equivalent treatment, that is the so-called offshore solution.
JENNY BROCKIE: Dino, was Indonesia happy with that decision by the Government that these people are likely now to go offshore, they're not likely to be dealt with here?
DINO KUSNADI: First of all, it is the position of the Government of Indonesia not to interfere within the domestic process of a certain law in Australia.
JENNY BROCKIE: But having a response isn't interfering, it's just having a response.
DINO KUSNADI: Of course it's still being debated now. Even within that debate we'd rather not be involved into that.
JENNY BROCKIE: But you don't look unhappy about it?
DINO KUSNADI: Well, I always look happy.
JENNY BROCKIE: Fair enough. Julian Burnside, it does look as though the Government has found a way of keeping Indonesia happy and dealing with any future West Papuans.
JULIAN BURNSIDE: It does look like that. It looks very much like appeasement. And I accept that the Government is faced with a delicate problem because it's a good idea to get on well with your near neighbours. On the other hand I thought Indonesia's reaction was a very strange one if they are right in saying that they're not mistreating people. If, as Dino says, these are just individual cases, well, they've been processed in Australia, there seems to be no harm done.
JENNY BROCKIE: But the Indonesian reaction is, surely, that by giving temporary protection visas Australia is acknowledging to some degree there is a problem there and they don't want that acknowledged?
JULIAN BURNSIDE: Well, on Dino's argument we're just acknowledging that those isolated cases needed protection. I think our reaction has been extraordinary and really very upsetting.
JENNY BROCKIE: Why upsetting?
JULIAN BURNSIDE: Upsetting because it involves a short-term response, an immediate response out of pragmatism, which involves sacrificing principles. Now, George says this is just to get rid of an anomaly. What nonsense that is. If you want to get rid of an anomaly, then every person who arrives here on a tourist visa and then claims asylum should also be taken off to Nauru. There's no suggestion that's going to happen.
JENNY BROCKIE: So people arriving by plane aren't going to be taken too?
JULIAN BURNSIDE: Exactly. Why pick on people who, because of desperation, happen to arrive here by boat? I wouldn't have thought that the mode of transport should determine your future fate.
JENNY BROCKIE: Quick response, George.
GEORGE BRANDIS: I think it's foolish to throw around words like 'appeasement' with all the historical resonance that carries when we are talking about a friendly nation, one of Australia's closest relationships and - as I was at pains to point out earlier - an emergent democracy whose emergence as a democracy, as a liberal democracy, Australia has every interest in encouraging and in which the Indonesian people are succeeding.
JENNY BROCKIE: Erika Feller in Geneva, you're a senior UN official for the protection of refugees. How do you see this situation from where you sit?
ERIKA FELLER, UNHCR: Well, I don't want to comment particularly on the situation but I can say that UNHCR is particularly unhappy about the response and that is legislation which, in effect, shifts Australia's responsibilities or deflects them elsewhere and certainly circumvents the operation of the 1951 Convention - to which Australia's a party - circumvents its proper operation in Australia.
JENNY BROCKIE: But can you understand the dilemma for a government that's keen to maintain good relations with a sensitive neighbour on the one hand and deal with arrivals on the other?
ERIKA FELLER: We can certainly understand that dilemma - it's not a dilemma that Australia faces alone. But there are ways and ways of dealing with those dilemmas. And we have already said to the Government that we'd be very happy to work with the Government to find a way which addresses these sorts of concerns but at the same time does it in a way which doesn't do damage to the international protection regime which has been set up now since 1951 and is fundamental if refugee protection is going to be achieved.
JENNY BROCKIE: Now, how does this proposal, this legislation - which hasn't been passed by the way but is before the Parliament now - how does that threaten those things you talk about? What is your main objection to the idea of people being processed offshore?
ERIKA FELLER: The legislation to be passed, as we understand it - and I say as we understand it because we haven't actually seen the arrangement which Australia has with, I understand, Nauru, which would allow this legislation to be implemented on Nauru - but our understanding of it is that it will enable Australia to take even those people who arrive directly from their countries of origin, by boat, offshore to another country which is not a party to the 1951 Convention to have their claims processed there without any guarantee that there's going to be solutions immediately available for themWHERE there are fewer guarantees than there would otherwise be available in Australia, such as access to the courts or access to proper legal assistance for the affected persons. And our concern is that it will leave quite a number of people sitting in limbo in detention-like situations, waiting for elusive solutions.
JENNY BROCKIE: George Brandis, your response to that. What is going to happen to people if they don't have legal assistance and access to review tribunals and courts and so on?
GEORGE BRANDIS: What that contribution missed was that the assessment will be made in Nauru by Australian authorities according to the Australian law. The place of assessment will be offshore but the principles to be applied and those applying the principles will be Australian. And the other point that...
JULIAN BURNSIDE: Are you sure of that?
GEORGE BRANDIS: Yes, I am.
JULIAN BURNSIDE: Are you sure there will be Australian law?
GEORGE BRANDIS: Yes.
JULIAN BURNSIDE: Australian law, the Migration Act?
GEORGE BRANDIS: The other point that been missed in this debate is how extensive.... how generous Australia has been in welcoming humanitarian migrants and refugees. Last year Australia accepted 13,500 humanitarian entrants of whom about 5,500 were on refugee visas, the previous year 10,500. Last year we accepted more refugees into Australia than in any year since immediately after the Second World War, and that point is being lost in this debate.
JULIAN BURNSIDE: Are you saying the Migration Act will apply?
GEORGE BRANDIS: As I understand it, yes.
JULIAN BURNSIDE: That means they will have access to the Refugee Review Tribunal and the courts but they'll have to do it remotely from Nauru. Are you serious?
GEORGE BRANDIS: That's my understanding of the legislation.
JULIAN BURNSIDE: I think you're wrong. The legislation doesn't say that.
JENNY BROCKIE: Mary Crock, you're a lawyer. What does the legislation say?
ASSOCIATE PROFESSOR MARY CROCK, REFUGEE LAW EXPERT: Well, the legislation's very simple. It simply says that if you come by boat without authorisation, without a visa, you are unable to make an application in Australia. That's all the legislation says. So the best of my knowledge if you're processed on Nauru, then the procedures that we had after the 'Tampa' would apply. And on Nauru, people had no access to lawyers, they certainly had no access to independent review authorities.
GEORGE BRANDIS: The Australian authorities and the UNHCR are the authorities that process applicants on Nauru.
JULIAN BURNSIDE: But they weren't applying Australian law.
MARY CROCK: They are not applying Australian law. You cannot say that they're being processed under the Migration Act...
GEORGE BRANDIS: But what they're applying is the Convention.
MARY CROCK: Well, that's different from Australian law.
GEORGE BRANDIS: They're applying the principles of a Convention which is embodied in Australian law.
JENNY BROCKIE: Erika, can I get a response from you to this and to the point that George Brandis made about Australia being generous in its acceptance of people seeking asylum and of genuine refugees.
ERIKA FELLER: Well, Australia's certainly been generous over many, many years, it has a big resettlement program and it takes some 6,000 people that UNHCR refers to it every year out of a total of around about a 13,000 humanitarian intake. It is a generous country in terms of resettlement. But we're not talking about resettlement at this point. We're talking about people who are coming directly onshore, and one thing that UNHCR has always been very concerned about is having resettlement seen to somehow balance out responsibilities to direct arrivals. One is not the substitute for the other.
JENNY BROCKIE: The last time we had asylum-seekers on Nauru their claims were assessed by both Australia and the UNHCR, as I understand it. If you're invited to process people on Nauru or anywhere else offshore under this new system, if this new system does in fact go ahead, will you help Australia out?
ERIKA FELLER: What we've said about the current proposal is that we would be, I have to say, pretty reluctant about assuming any processing responsibilities. We don't normally do that for states like Australia with a very highly sophisticated and developed national asylum system. It's the sort of thing we do in countries where there is no asylum system, there's no domestic law and no traditions and Australia's certainly not one of those.
GEORGE BRANDIS: That's true. But if Australian authorities process asylum-seekers on Nauru by applying, in accordance with Australian legal principles, the Refugee Convention, then you wouldn't complain about that, would you?
ERIKA FELLER: Well, if the processing is done with full due process respected and if there's full access to what is automatically available to persons who arrive by plane, or any other means, on shore, then it would considerably... it would be a much better situation. What it wouldn't resolve, however, would be some of the other factors of this proposal. And again - as I said, I'm speaking a little bit in the abstract because we don't know exactly how it might work out - but if it leaves people in detention-like situations without any access to solutions for a longish period of time - and let's be honest, that's what happened in relation to the last case load of people who went to Nauru - then our concern would be also about the conditions, not only the process, but the conditions it puts people in and the prospects it leaves them with.
JENNY BROCKIE: Alexandre Casella, you're in Geneva as well, and you were a senior official with the UNHCR and you're now a migration consultant. What's your response to what you've heard so far? How do you view this situation in Australia at the moment?
ALEXANDRE CASELLA, MIGRATION POLICY CONSULTANT: Well, I think it's extremely important to stick with the bottom line. And what is the bottom line? The bottom line is that no refugee should be sent back to a country where he's persecuted. That's the basis. The second bottom line is that every credible asylum-seeker - and I insist very much on the word 'credible', and most of the people who come by boat are actually not credible because not only are they very wealthy people but, more importantly, they transited through countries where they could have asked for asylum and did not - most credible asylum-seekers should be given a hearing. And last but not least, you must preserve the integrity of the Australian migration system. NowWHERE you process them, in-shore or offshore, is completely irrelevant to the issue as long as the refugee is protected.
JENNY BROCKIE: Erika, I know you have to go in a minute. A quick response from you to that?
ERIKA FELLER: With all respect to Sasha, it does make a difference where a case is processed if where a case is processed leaves people, as I said, sitting in limbo without due process protections, without access to solutions, in detention for long periods of time. It is not correct to say, I think, that the large majority of people who come by boat, just by virtue of the fact that they come by boat, are improper asylum-seekers or not genuine asylum-seekers. If you look at the statistics of those whose cases were determined on Nauru before, you find a very large percentage of them were determined to have good cases and in fact were resettled including, albeit in small numbers, back to Australia. So there is no correlation between the method of arrival and the validity of the claim. This new legislation, depending on how it is implemented, has the possibility of actually running against that Article 31 of the Convention which says that there should be no penalisation for illegal entry.
JENNY BROCKIE: I'd like to get a response from you, Alexandre Casella.
ALEXANDRE CASELLA: Well, I've always disagreed with Erika while I was at UNHCR, also we worked for the same organisation and obviously we represent two very distinct points of view. In the real world there is a difference between somebody who pays $10,000 to be transported by ship and somebody who pays $500 to buy a cheap ticket. You're not dealing with the same social group.
JENNY BROCKIE: George.
GEORGE BRANDIS: The correction I'd like to make to the lady from the UNHCR is to emphasise the point that there must be no discrimination as to the mode of arrival so long as the asylum-seeker presents themselves to have their case assessed, the genuineness of their claim to be a refugee assessed. The experience in Australia in relation to unauthorised boat arrivals - not merely the West Papuan case but cases of people smugglers from Indonesia - was that was not happening.
JENNY BROCKIE: Erika, I do know you have to go. I'll just get a quick response from you before you leave. And, in advance, thank you very much for joining us tonight. But would you like to just respond to that?
ERIKA FELLER: Well, I can't talk about the broad experience in Australia but it's my understanding that when people arrive and they put their foot on shore and they are asylum-seekers, they then seek to have their claim determined. I don't say that everybody who comes by boat is a refugee. I say probably the small percentage of them are. But it's fundamentally important to find that small percentage and to identify who they are and what their needs are and have their needs met. And our concern - leaving aside all the legal issues and whatever - our concern is that Australia does not set a bad precedent in a region where things are evolving fast and where precedents are few and far between and need to be there to be emulated.
JENNY BROCKIE: Aladdin, you wanted to say something.
ALADDIN SISALEM, MANUS ISLAND DETAINEE: OK, we are the suffering ones. It's not Australia, not America, not the UHR. We are the one who missing a real mechanism the world to avoid us risking our life in the ocean, in the jungle and come and sit in the TV and listen to all this just to have a chance at life.
JENNY BROCKIE: Now, you spent 18 months in...
ALADDIN SISALEM: I spent 15 years, ma'am
JENNY BROCKIE:..in detention on Manus Island, though, didn't you?
ALADDIN SISALEM: Yeah, on Manus Island.
JENNY BROCKIE: And you're here on a temporary protection visa, is that right?
ALADDIN SISALEM: That's right.
JENNY BROCKIE: What was it like for you on Manus Island?
ALADDIN SISALEM: What it's like for me? You have time to explain?
JENNY BROCKIE: Try and give us a short answer, if you can.
ALADDIN SISALEM: Yes, it's bad, it's bad, it's not nice.
JENNY BROCKIE: Why was it bad?
ALADDIN SISALEM: It's jail.
JENNY BROCKIE: It's jail.
ALADDIN SISALEM: The staff there was put in to do their best to make you change your mind about seeking asylum in Australia.
JENNY BROCKIE: Julian Burnside, if this new law is passed, boat arrivals will be processed offshore. You have two clients on Nauru, I think, at the moment. What's it like for you representing people on Nauru?
JULIAN BURNSIDE: It's extremely difficult. And of course they are - like everyone in the Pacific Solution - they are denied the protection of Australian law unless they can find some narrow edge. I mean, I'm really distressed to find that Senator Brandis does not even know the implications of the law that he'll have to vote on. What is going to happen, and what has happened with the Pacific Solution, is that people will be taken outside the protection of the Australian legal system. They'll be processed in a legal black hole because Nauru doesn't have a refugee law.
GEORGE BRANDIS: They'll be processed by Australian authorities applying Australian legal principles and Australian interpretations of the Refugee Convention.
JULIAN BURNSIDE: The problem is that doesn't really go far enough, George, because Australian legal principles include the right to judicial review and the control of the actions of the executive and that is the one thing that will be strikingly absent from this.
MAN: It also keeps Australian lawyers out of the pockets of the community.
JULIAN BURNSIDE: You know, we do all this for nothing. So you can put that back where you got it.
MAN: They're illegal and they shouldn't have any rights.
JENNY BROCKIE: One at a time.
PAMELA CURR, REFUGEE ADVOCATE: Could we just move from the theory, and look at the facts on the ground? 1,501 people were taken to Nauru and Manus Island. 486 of those people were eventually got to New Zealand out of the goodness and kindness of the New Zealand hearts. There were another 400 who were forced, forced to go back to Afghanistan in the midst of the war. Why have we punished the victims of the regimes that we've sent the military to overthrow?
JENNY BROCKIE: OK, but Pamela, are you trying to suggest that all asylum-seekers are legitimate refugees?
PAMELA CURR: I didn't say that. But I'm saying look at the facts on the ground of the people who were processed. Most of them came to Australia, were recognised as asylum-seekers. There were a very few - 40, 50 - who went off to Scandinavian countries, one or two to Canada. Look at the history on the ground. What are these people's stories? I've heard their stories. Once upon a time we used to consider somebody who was tortured as a prima facie reason for being a refugee...
JENNY BROCKIE: OK, but we still have to have a system of some kind for processing people, don't we?
PAMELA CURR: And we have a system onshore but we don't have a system on Nauru. Look at them, they made a mistake.
GEORGE BRANDIS: We do have a system on Nauru.
SHEIK CONAY, HUMANITARIAN VISA HOLDER: I just want to ask George, what's wrong with the way things were being done before the detention... were built in this country? What's wrong with that system?
GEORGE BRANDIS: I think the point is people can't self-assess as refugees. The country to which they seek asylum has a right and an obligation to ensure that they are assessed, that the tests in the Refugee Convention are applied to them, and that they are given a fair opportunity to bring themselves within the tests and the Refugee Convention, and that principle is applied on Nauru by Australian authorities.
SHEIK CONAY: No, you haven't answered the question. What is wrong with the previous system? Why do you have to change it?
GEORGE BRANDIS: Everyone who has been determined to be a refugee has been given the opportunity for resettlement. Australia is not obliged to accept for resettlement within Australia everybody who's assessed to be a refugee but we are obliged to and we do facilitate that determination and assist in resettlement.
JENNY BROCKIE: Don D'Cruz, you've worked as a researcher for the Institute of Public Affairs. What is your response to what you've heard?
DON D’CRUZ, MEDIA COMMENTATOR: Just then, instead of asking Senator Brandis about mandatory detention he should ask the Labor Party. They're the ones who... they put it in place.
SHEIK CONAY: This is not about a political party. This is about being a human, being a human being and looking after your fellow human being in trouble.
GEORGE BRANDIS: As Australia does more than almost any country in the world, sir.
JENNY BROCKIE: Can we let Don finish?
DON D’CRUZ: The point is I think that we have a system right now that enjoys a great deal of popular support. And I know there are a lot of people in this room who have a different opinion but I think it's a mistake if we ignore the fact that the current regime does enjoy a great deal of support in the community.
JENNY BROCKIE: Is there popular support? People here who haven't got a particular interest in this issue, as in a vested interest in the issue, what do you think? Do you support the Government's policy? Man up the back, yes?
MAN: Yes, I do support them because anybody that comes over here has to... ..they've got access to our legal system and they can do...they can virtually do whatever they like. And you know, they're jumping the queue. But if they went to a quarantine area like Nauru, then they can be processed over there. If they're found to be genuine refugees, sure they can come over here. It doesn't matter where they've come from but they've got to go to a quarantine centre like Nauru first before they can come over here.
JENNY BROCKIE: OK, the gentleman over there. Yes, young man.
YOUNG MAN: I just want to say, OK, Australia is such a large country, why do we need to send them to Nauru? Why can't we just do it here instead of wasting taxpayers' money to send them to Nauru? Why can't we just process them here? What's wrong with staying here and doing it?
JENNY BROCKIE: George?
GEORGE BRANDIS: The original rationale of the Pacific Solution was that unauthorised boat arrivals run by people smugglers from the southern shores of Indonesia were not presenting to be assessed as refugees. They were being smuggled into Australia and in many cases disappearing into the population and that was a matter of totally legitimate concern for any country which is entitled, may I remind you, to secure its border.
JENNY BROCKIE: OK, Mary, you want to say something.
MARY CROCK: Immigration has been associated with detention for a long time, that's very true. I think what distresses me most about this debate - and look, there's no doubt this is a policy that has popular support because it's very easy to foment fear within the community and say, "They could be terrorists!" That's what people were saying within minutes of the 'Tampa' arriving. What we're not understanding...
JENNY BROCKIE: But that's not what the Government is saying now.
MARY CROCK: What people are doing is that they're using the word 'refugee' in wildly different ways. What they're not understanding is that when we signed on to the Refugee Convention it's a very particular obligation we took on and that is to agree not to send back people who come on to our territory. The Refugee Convention is about saying, "If you come to Australian territory you will not send back a refugee." Now, our processes here do not make refugees, you either are a refugee or you're not. So you can either...
GEORGE BRANDIS: But Australia has a right to determine whether or not a claimant to that status is a refugee.
MARY CROCK: No, they have an obligation to determine.
GEORGE BRANDIS: A right and an obligation.
MARY CROCK: A right and an obligation. And also we have a right to be respected for the decisions that we make in respect of that. Could I just finish?
MAN: If someone comes along and invades your house, you've got a right to protect him? You've got to keep him..
MARY CROCK: That's right.
MAN: What a load of garbage.
MAN 2: They're human beings. They're not coming here as invaders.
MARY CROCK: Could I just finish?
JENNY BROCKIE: It's not quite the same as having your house invaded, I don't think.
MAN: I'm not meaning that.
MAN 3: ..to say that invasion or say that just if you're invaded to just concur in this country, if you're not soldiers of another country.
JENNY BROCKIE: Mahmood, I'd like to get back to the way this law is changing or the way... The law that's currently before the Parliament, I'd like to get on to that. Mahmood, you were on... you ended up on Nauru. A lot of people are going to end up on Nauru as a result of this law, if it does get passed. You ended up on Nauru after your family left Afghanistan. What was it like? What's it like on Nauru?
MAHMOOD BAQIRI, NAURU DETAINEE: Well, you making me cry but I haven't got any tears left because I shed too much tears in detention.
MAN: That's not the question.
JENNY BROCKIE: It is the question. No, I'm sorry, it's the question I'm asking him because you don't want to hear the answer, I want to hear the answer and I'm sure a lot of other people watching this want to hear the answer. Tell us what it's like on Nauru.
MAHMOOD BAQIRI: For the first time in my life I had this feeling that someone was stealing something from me and that was my childhood.
JENNY BROCKIE: Why do you say that? What do you mean? How?
MAHMOOD BAQIRI: In terms of experiencing the grown-up world at an early age, it was too much for me to handle. It made me a grown-up person. Where's my childhood?
JENNY BROCKIE: George Brandis, do you think it is harsh being on Nauru for a child?
GEORGE BRANDIS: Of course I'm sure it is. And of course every person, whether they be assessed to be a refugee or whether their application for refugee status fails, every person would be able, with deep sincerity like this gentleman here, to tell a terrible, heart-rending story. But the point I make to you is this, it's not Australia's fault but what Australia can do and does do is show more generosity than almost any other country in the world in accepting proportionately more such people.
JENNY BROCKIE: But that's not what we're talking about now. We're talking about what the Government is doing in terms of wanting to send people to Nauru. And I'm just asking you about what the situation is likely to be for women and children who go to Nauru under this new law? What will happen to them?
GEORGE BRANDIS: I've not seen the conditions in Nauru but I don't have any difficulty in accepting what the gentleman says, that they are hard conditions. My point is that merely because of that it doesn't follow that Australia has not the right and the obligation - both - to apply Australian legal standards to determine who comes to Australia as a refugee and who doesn't.
JENNY BROCKIE: OK, I'd like to move on to another aspect of the policy because there is another controversial aspect of the Government's immigration policy and that's bridging visas, which covers some asylum-seekers while their status is being decided. Now, the most controversial of these is known as Bridging Visa E, which is currently under review. Drew Ambrose has been looking at what life is like for people on this particular visa.
THE BVE BLUES STORY:
REPORTER: Drew Ambrose
This is a tale about suburban battlers of a different kind. Mali has been living on a Bridging Visa E, or BV-E, for 12 months. Mali claims she can't return home to Sri Lanka because her husband has been targeted by the Tamil Tigers. Like many asylum-seekers who apply for protection status, on her visa Mali is not allowed to work and has no access to Medicare or any other Government support.
MALI, BV-E HOLDER: How can people survive without any income or without any government assistance? Yeah, it is very hard. Me and my younger son sleep on this bed.
Mali and her two sons live in this garage thanks to the generosity of a local church. Over 8,000 other asylum-seekers live under similar tough conditions. They can remain in this situation for up to five years while their case is being considered.
REPORTER: So how much of the stuff all around us, that I can see, how much of it do you own yourself?
MALI: I own only these clothes inside the crates and those three bags over there. That is it.
Every month the family receives $300 from a charity. She trawls the markets, hunting for cheap food.
REPORTER: And how much do you spend a week for you and your two boys on groceries?
MALI: $30.
One of Mali's sons is intellectually disabled and a large proportion of her budget is spent on his medical bills and there's no refund from Medicare. This man is also on a bridging visa and if that wasn't tough enough, he's dying from a cancerous brain tumour. It took five months for advocates to find him free radiotherapy.
JOANNE KIRK, ASYLUM SEEKER RESOURCE CENTRE: This man's story is not an exceptional case. We see up to 20 asylum-seekers a day that have no Medicare and have health problems. These problems can range from the fact that they've just found out they're pregnant and not sure where they're going to have their baby to not being able to afford their diabetic medication.
The only services for Mali and other asylum-seekers on Bridging Visa E are provided by non-government organisations. Each one alone, though, is not enough.
DAVID SPITTELER,ASYLUM SEEKER CENTRE: They have to network other areas, other group support. Now, whether in doing that... I guess, they get enough in the end but it would be hard work.
In a week, Mali visits up to five centres. At this one in Dandenong, Mali is picking up a phone card, a train ticket and two bags of food. The centre is staffed mainly by volunteers who see up to 100 asylum-seekers in a day.
VOLUNTEER: They're really beggars in our country and that's terrible. They haven't got anything.
Groups who help those on bridging visas rely on community support for their resources. Bridge to Asylum is the main supporter of people on bridging visas in Sydney. At the moment they only have enough money to last three more months.
FRANCIS MILNE, BRIDGE TO ASYLUM: If we offer less money, then you can't exist on $30 a week to feed your family, that's just ridiculous. So you're forcing people to break their bonds again.
Some Bridging Visa E holders are required to pay a security bond to stop them going into hiding. Two religious organisations paid a bond to get Jamaal out of Maribyrnong Detention Centre.
JAMAL, BV-E HOLDER: I paid $30,000 to the Minister, which, as you can feel, if you don't have single money in your pocket how do you organise $30,000?
At first it was $10,000 but Jamaal claims the Department of Immigration pushed the bond higher. With bonds and fees charged for detention as high as $80,000, many bridging visa holders work illegally.
REPORTER: Your dressed in very nice clothing. Are you working at the moment?
JAMAL: No.
REPORTER: Why are you dressed so nicely?
JAMAL: Why I dress so nicely? Today is my birthday.
REPORTER: Fantastic. I mean...
JAMAL: people give me... people present me.
REPORTER: And that is your present?
JAMAL: Yeah, that's my present.
Mali taught English to refugees before she was put on a bridging visa. Now she can't even volunteer. She's exhausted almost all her avenues to get permanent protection and could be deported this month.
MALI: Why the government not allow me to do something and contribute to this country and help my family and help the country. So yeah, that’s a very shameful thing.
JENNY BROCKIE: George Brandis, I think most people understand the need for there to be restrictions for people and different types of visas, but do you think it's acceptable for somebody with a brain tumour, whatever their legal status might be and whatever... ..however good their case may or may not be, to have to rely on goodwill for something like radiotherapy while they're here?
GEORGE BRANDIS: I'm not going to speak about facts of particular cases when I don't know all of facts but what I can tell you is that the bridging visa system and in particular the Bridging Visa E, is - as you said in the intro to that piece - currently under review by the Government.
JENNY BROCKIE: Is it under review because the Government is worried about it? It feels that it maybe isn't the right way to be going with that particular visa to be denying people medical treatment, denying them the right to work and so on?
GEORGE BRANDIS: It's under review.
JENNY BROCKIE: What might we see with it being under review?
GEORGE BRANDIS: I don't know because I'm not one of the people involved in the review.
JENNY BROCKIE: Let me ask you then, as an MP, what do you think of it?
GEORGE BRANDIS: Well, I really aren't in a position to talk about the facts of individual cases because I don't know the facts of individual cases.
JENNY BROCKIE: I'm not asking you talk about the fact of individual cases, I'm just asking what you think of Bridging Visa E. A lot of your backbench colleagues are quite happy to talk about what they think about Government policy from time to time. I just wonder what you think about this particular bridging visa? Do you think it's a good thing, a bad thing?
GEORGE BRANDIS: I think... I'll go this far. I think there is sufficient anecdotal evidence in relation to the operation of the bridging visa that it is a good thing that it is under review, and I'm sure that review will produce a more satisfactory set of arrangements.
JENNY BROCKIE: So would it be fair to say you'd like to see a change to that particular visa?
GEORGE BRANDIS: I'm interested in seeing what the outcome of the review is.
JENNY BROCKIE: Alright. Very diplomatic answer.
PAMELA CURR: Could I just respond? From the Asylum Seeker Resource Centre - which is the largest agency of its kind in Australia - can I just say that we have put in a submission to the bridging visa review and we are not getting very good news. We're hearing that it's likely that it will stay. That means that it's likely that over 2,000 people, while their process is being determined, will be condemned to this life of begging.
JENNY BROCKIE: It remains to be seen. It does remain to be seen what's going to happen, Pamela. But can I put to you, Pamela Curr, why should someone who's about to be deported, for example, be entitled to work or have government-funded health care?
PAMELA CURR: How are they going to buy their ticket to go home? How are they going to leave the country? This is a self-defeating policy because if people have no right to work - and we have many people who haven't been allowed to work for five and six years - if the Government then determines that they can go home, how do they go home?
JENNY BROCKIE: Erroll, you're on a bridging visa, aren't you, Bridging Visa E because you failed to lodge your asylum claim on time, that's the reason? And now your case is being heard in the courts. Isn't it reasonable to restrict your entitlements if you didn't follow the rules?
ERROLL SCHWALLIE, BRIDGING VISA HOLDER: No. What happened is when I came in '97 I didn't know anything about this 45-day lapse and I was not given work rights.
JENNY BROCKIE: OK, Julian, what should be done about people who either don't have a clear-cut case or haven't followed the rules or aren't adhering to the system as it exists? Are you suggesting they should all be let out into Australia with full rights - right to work, right to Medicare, right to all those things?
JULIAN BURNSIDE: Well, first of all, I think we should try to remember that they are human beings and they should be allowed to live like human beings. Forcing 8,000 people to live without the right to work, without the dignity of work and without being able to buy a meal is, I think, obviously, self-evidently cruel. And how any government that prides itself as having Christian members could justify it really defies belief. But I think it is reasonable - after initial health and security checking in detention if people come without papers - detain them for a month if you must, check them for health and security because that's reasonable, and then release them unless a court thinks, in a particular case, they should be detained for longer. But when you release them, recognise that most human beings need to eat and you should allow them to work so that they can eat. And I think it's the supreme irony that we hold 8,000 people hostage this way in the community whilst the Prime Minister is hunting around the world for 20,000 guest workers. How absurd is that?
JENNY BROCKIE: George Brandis, at one stage it did look as though the Government was softening its approach to asylum-seekers, a while ago. If this boat load of West Papuans had never arrived... Let's go back to where we started this conversation. If this boat load of West Papuans had never arrived and Indonesia had not been so angry, would you be toughening up your offshore policy the way you are now?
GEORGE BRANDIS: As I said at the start of the program, I think you're assuming that there's a causal relationship between two things that doesn't necessarily exist. What the arrival of the West Papuan boat people showed was that there was an anomaly in the policy which drew a distinction between arrival on offshore islands and arrival on the mainland and it's that to which the legislation is directed.
JENNY BROCKIE: If they are found to be refugees, genuine refugees, would you be happy to see them settle in Australia?
GEORGE BRANDIS: If they're assessed to be genuine refugees by the application of Australian law, and Australian interpretation of the Refugee Convention, I would.
JENNY BROCKIE: And if there were future boat loads of West Papuans who sought refugee status and gained it under that system, would you be happy to settle them as well?
GEORGE BRANDIS: I think there's a distinction to be made between... ..to be drawn between the mode in which the assessment is made, and the outcome of the assessment. What the legislation before the Parliament is directed to is the first, not the second of those two things. I have no difficulty with the offshore solution and it's accepted by all sides of politics in this country. In the event the people are assessed to be genuine refugees by Australian authorities, applying Australian legal principles to the Refugee Convention, I have no difficulty with them being settled in Australia as elsewhere.
JENNY BROCKIE: And if Indonesia was unhappy about that, if the numbers became such that Indonesia was unhappy about Australia settling West Papuans who were refugees, would that affect Australia's response in terms of where those people were settled? Would we be inclined to seek to have them settled elsewhere, like Canada, for example?
GEORGE BRANDIS: I think at the end of the day it's for Australia to apply Australian law according to Australian legal principles.
JULIAN BURNSIDE: Australian legal principles include the right to review the decisions of members of the executive government. Taking them to Nauru is being done specifically to deny them that right.
JENNY BROCKIE: Dino, how would the Indonesian Government feel if these West Papuans are found to be genuine refugees. How would you feel?
DINO KUSNADI: We don't see them as genuine refugees.
JENNY BROCKIE: You don't see them as genuine refugees?
DINO KUSNADI: No, we don't.
JENNY BROCKIE: So, if Australia found them to be genuine refugees and they settled here, how would you feel about that? Would that make Indonesia angry?
DINO KUSNADI: That's another hypothetical question. The thing is with that individual issue we don't see them as genuine refugees, they don't fit into the definition of refugees in the 1951 Convention.
JENNY BROCKIE: So I guess what I'm getting at is if we found them to be genuine refugees, would that create another diplomatic incident with Indonesia?
DINO KUSNADI: Well, as you've seen the case right now, that's it.
JENNY BROCKIE: There could potentially be a lot more difficulty in the relationship between Australia and Indonesia in relation to West Papua?
DINO KUSNADI: It is a very shaky relationship, it goes up and down, up and down, of course. But, again, my Ambassador has been saying that it's not avoiding the issues but it's also how we manage these issues. If there are allegations, let us discuss about these allegations, whether they are true or not, because at the end allegations come up but we want the final solution and to take care it's a matter that's within the law.
JENNY BROCKIE: And George Brandis, just a final word from you. Parts of the Liberal backbench aren't happy with this new legislation. Are we likely to see any significant changes to it, do you think?
GEORGE BRANDIS: Well, there are discussions anticipated between certain of my colleagues and the Prime Minister in relation to details of the legislation, but the Prime Minister's made it perfectly clear that the basic principle of the legislation - which as somebody said before is quite a simple principle, that is boat arrivals on the mainland as well as coastal offshore islands will be treated equivalently and subject to the offshore solution - that won't change.
JENNY BROCKIE: We are going to have to leave it there. I'd like to thank everybody very much, tonight, for joining us. Alexandre Casella, thank you very much in Geneva. I can see you packing up there. Thank you very much for your time, we do appreciate it. And thank you to Erika Feller, too, who had to leave us a lot earlier in the evening, but thank you to her for her contribution as well.
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