The following letter to Josh Frydenberg MP concerning Australia’s refugee policy constitutes a report of a meeting that took place on December 11, 2014.
The Hon Josh Frydenberg MP
Parliamentary Secretary to the Prime Minister
Thank you very much for making the time available to meet with Rabbi Jonathan Keren-Black, Bonnie Gelman, Richard Harcourt and Robin Rothfield to discuss our concerns with the Government’s refugee policies.
2. Last July Robin had the pleasure of delivering to your Parliament House office a copy of the book he had just edited entitled “The Drownings’ Argument.” This book was a response to those politicians on both sides of the House who argue that offshore processing is necessary in order to deter asylum seekers from getting on boats. We wonder if you have had an opportunity to read this book and if you have any comments. We have another copy of the book which we should be pleased to give you if this is needed.
3. The Prime Minister and Minister for Immigration keep repeating that they have stopped the boats but the message of the book is that stopping the boats does not solve the problem for the asylum seekers, it merely relocates the problem.
4. Minister Morrison has got his bill amending the Migration Act through Parliament which includes the reintroduction of temporary protection visas. However, whereas it has been argued that TPVs will discourage asylum seekers from coming here by boat, the opposite is the case. This is because TPV holders are not permitted to sponsor family members so to be together the family members have no choice but to risk their lives on a boat. An example of this was with the SIEV X in 2001 when 353 men, women and children drowned while trying to join their loved ones in Australia.
5. Josh, we note from your maiden speech to Parliament that your great-grandparents, and many relatives on both sides of your family, perished in the Holocaust and that your great-aunt Mary Frydenberg spent two years in Auschwitz.
You would no doubt be aware of the SS St Louis which sailed from Hamburg, Germany in 1939 with mostly Jewish refugees on board. The ship headed for Cuba and the United States but most of the refugees were denied landing rights and the ship eventually had to return to Europe where most of the desperate passengers went to the camps.
6. Now imagine for a moment that the St Louis had headed for Australia. Imagine further that Scott Morrison had been Immigration Minister at the time. We know that at the 1938 Evian Conference Australia’s Minister for Trade, Thomas White, informed the Conference that in relation to accepting Jews from Europe, ‘Australia did not have a racial problem and was not desirous of importing one.’ So can there be any doubt that a Minister Scott Morrison of 1939 would have refused entry to the Jewish refugees on board the St Louis?
And if you accept that such a decision in 1939 would have been a wrong decision, then a decision in 2014 to refuse entry to asylum seekers before processing their claims for refugee status is also a wrong decision. If we don’t take the trouble to process their claims then how do we know what dangerous situations they may have escaped from (and may be sent back to)?
Those who do manage to arrive in Australia by boat
7. Arrivals by boat will also no longer have access to the Refugee Review Tribunal. They will have an appeal mechanism which is not a hearing but only a paper review. Josh, I put it to you that this is an alarming and worrying development. Do you agree? If so, what action will you take on the matter?
8. In 2013 Jewish Aid Australia (now known as Stand Up) produced a short video www.whatwouldyoudo.org.au/ in which viewers are asked what they would do in circumstances faced by people in countries where there is armed conflict or persecution.
I strongly urge you to watch this video and then respond as to what you would do.
Then please ask Tony Abbott and Scott Morrison to watch the video and respond as to what they would do in the circumstances portrayed.
9. The Senate had the unenviable choice of voting to allow 108 children to be removed from the Christmas Island Detention Centre while remaining silent on the 200 children left to rot on Nauru, where the safety of refugees has been threatened. As an example, three refugee high school girls were confronted by around 15 teenage Nauruan boys around 11.00am on 5 December at their class room at Nauruan College and punches were thrown. The situation for the Senators has been likened to Sophie’s choice, the video of which follows: https://www.youtube.com/watch?v=RaPBzhEsCL0
The 1951 Refugee convention
10. The 1951 Refugee Convention was introduced largely as a result of the experiences of Jewish refugees being prevented from gaining safe haven during the war. In the latest legislation passed through Parliament last week reference to the Refugee Convention has been removed. With the experience of your family in mind, is this a situation you can tolerate?
The Parliamentary Human Rights Committee
11. The Parliamentary Human Rights Committee, chaired by Liberal Senator Dean Smith, stated that the proposed government changes to the Migration Act were incompatible with Australia’s human rights obligations (SMH 2 Nov 2014.)
Their report was scathing of nearly all of the government’s proposed changes to the act, saying they would put Australia at odds with international human rights law.
It was particularly critical of a proposal to cut the time in which asylum seekers’ refugee claims would be assessed, warning it could lead to genuine refugees being sent home to face persecution or torture.
Josh, how do you react to this committee’s report? What action will you take to ensure that Australia complies with its human rights obligations, above all that it will comply with its obligation not to deport people who face the risk of persecution (non-refoulement?)
The Migration and Maritime Powers Amendment Legislation (Resolving the Asylum Legacy Caseload) Bill 2014 and the Migration Amendment (Protection and Other Measures) Bill 2014
12. Refugee law is built upon the fundamental principle of non-refoulement: that it is forbidden to return a person to a country where they may be persecuted or tortured.
The new bills, now Australian law, gives the Minister sweeping powers to intercept people at sea and take them anywhere, even to a country with which Australia has no agreement and which may not accept them, regardless of whether Australia has non-refoulement obligations in respect of the persons intercepted.
In other words the Minister is now entitled to return an asylum seeker to a country where they have been, or know they may be, tortured or persecuted.
Josh, why are there provisions such as these included in the legislation? What are the circumstances in which they may be invoked? And how can the current government guarantee that such provisions are not open to abuse by this and future governments?
The toxicity of debate
13. When Malcolm Fraser was Prime Minister we had a bipartisan approach to refugee policy. Why can’t we have a healthy bipartisan policy now instead of the current toxic debate?
And why can the government take steps to negotiate and implement a regional approach that recognises the asylum seeker issue as primarily about the protection of people and not about border control?
Tactics used to get Ricky Muir to vote for the bill
14. We have read of allegations that Scott Morrison arranged for children in Christmas Island detention to ring Senator Ricky Muir and beg him to support the Bill and set them free. Would you be able to investigate this allegation and either confirm or deny its validity? According to Refugee Council of Australia’s Phil Glendenning the choice Senators such as Ricky Muir faced was essentially “Sophie’s Choice” in action. (ABC News 7.12.14)
Convention on the Rights of the Child
15. Australia is a signatory to the UN Convention on the Rights of the Child but is failing to honour its obligations under the Convention. I append below text from an email sent to me by Save the Children on 27 June 2014. I am happy to forward you the original email if you so desire:
Save the Children’s position remains constant – we continue to maintain a strong objection to the mandatory and prolonged detention of all asylum seekers, especially children. Our experience, both on Nauru and previously on Manus Island, shows that sending people to offshore immigration detention centres threatens their physical, mental and emotional well-being. However, I note that children are no longer held at the offshore immigration detention centre on Manus Island.
In relation to your specific question regarding the United Nations Convention of the Rights of the Child, I refer to the findings of the Australian Human Rights Commission (AHRC) in 2004, which found that Australia’s mandatory detention system breached a number of human rights, including that:
- Children should only be detained as a measure of last resort and for the shortest appropriate period of time (article 37(b) of the Convention on the Rights of the Child);
- Children should not be arbitrarily detained (article 37(b) of the Convention on the Rights of the Child; article 9(1) of the International Covenant on Civil and Political Rights);
- Children are entitled to prompt and effective review of the legality of detention (article 37(d) of the Convention on the Rights of the Child; article 9(4) of the International Covenant on Civil and Political Rights);
- Unaccompanied children are entitled to special protection (article 20(1) of the Convention on the Rights of the Child);
- The best interests of the child must be a primary consideration in all actions concerning children (article 3(1) of the Convention on the Rights of the Child).
As a child rights organisation, it is our view that children should only ever be detained as a measure of last resort and for the shortest appropriate period of time. Prolonged and mandatory immigration detention explicitly undermines this right. We therefore concur with the previous findings of the AHRC and submit that the current mandatory and protracted nature of Australia’s immigration detention system remains in breach of the human rights of children, young people and adults.
While SCA strives to provide children and young people with good quality education, recreation and child protection services on Nauru, this does not equate to facilitating access to or enjoyment of rights. This is because human rights are indivisible and interdependent. When one human right is undermined or denied, it can adversely affect the advancement of other rights. For example, prolonged immigration detention has been associated with developmental regression and poor physical and mental health, which can in turn affect a child’s ability to fully engage in education and enjoy the highest attainable standard of health. Accordingly, despite our best efforts, it is our view that children cannot have their rights fully realised, or protection guaranteed, while they are in immigration detention.
16. Josh, do you accept the contention that Australia is failing to abide by the Convention on the Rights of the Child? If not, how do you explain your position in light of the above? If yes, what representations will you make with the Minister for Immigration and/or the Prime Minister to address this situation?
17. We frequently hear the Minister for Immigration talk about “illegals” coming to our shores. But as so many top lawyers, including Julian Burnside QC, have pointed out, people coming here by boat to seek asylum are not breaking any law. When Scott Morrison continues to use this terminology we find it very distressing because we feel that this misuse of language can encourage racist feelings in the community. And that is something which we as Jews are very worried about.
18. At Limmud Oz last June Rabbi Genende of the Caulfield Hebrew Congregation delivered a speech on refugee policy which we strongly commend for your attention, and which is attached (Rabbi Genende Limmud Oz). Above all we draw to your attention the following paragraph:
Thus there are other issues, for example the principle of mipnei darchei shalom (for the paths of peace) which is about promoting peace for the honour and dignity of human beings. The honour and dignity of human beings is about making sure that we are not oppressing them, and also that we are saving lives. That’s what needs to be factored into any policy when it comes to asylum seekers and certainly we have a lot to answer for in terms of sending people to places like PNG and Manus if we cannot provide them with protection, if we cannot provide them with asylum, if we do not recognise their vulnerability.
Five questions about the new legislation
19. A good friend of ours from the Hobsons Bay Refugee Network has asked the following five questions and we should be grateful if you could answer them:
- Will the SHEV really be a pathway to permanent residency and citizenship?
- If so, after what period of time will permanent residency be granted to a SHEV holder?
- What percentage of/how many SHEV holders will be eligible for permanent residency?
- Under what conditions?
- Will those granted permanent residency be able to bring their families here?
Rabbi Jonathan Keren-Black
11 December 2014