Australia’s Guantanamo: the ever-widening consequences of stripping away the right to asylum

Christmas Island, which lies in the Indian Ocean closer to Java than to the Australian mainland, is a non-self-governing Australian territory. It has a population of about 2,000 permanent residents (not including those at the detention centre), mostly descendants of the Chinese and Malaysian indentured labourers brought to the island to work the phosphate mines from the 1890s onwards. Phosphate mining is still the main industry on the island.

Yet despite the fact that this is Australian territory, people who find themselves in the immigrant detention centre built there by the Australian government in 2006 are beyond the protection of Australian law. They are in limbo, both legally and in the original sense of the word – at the border of hell. Legally, they are denied the rights granted under the UN Convention on Refugees and Australian law, in particular the right of habeas corpus, a basic protection against unlawful detention. Once detained in this prison, a person can be held there without trial, without any recourse to the courts in Australia, without access to lawyers – all without even having been charged with any crime. And they can be held in this way indefinitely.

Iranian, Afghan, and Sri Lankan asylum-seekers arrive on Christmas Island. Photo: The Australian

Iranian, Afghan, and Sri Lankan asylum-seekers arrive on Christmas Island. Photo: The Australian

This state of legal limbo was brought into being by the Liberal government of John Howard with the passing of the Migration Amendment (Excision from Migration Zone) Act in 2001. The Act effectively removed the right of asylum seekers arriving on Christmas Island (as well as Cocos, Ashmore and Cartier Islands) to have their request for asylum considered in Australia. It made it legal for Australia to detain such asylum seekers on the Island or to transfer them to similar facilities on Manus Island in the remote north of Papua New Guinea, or the tiny Pacific island of Nauru. Papua New Guinea and Nauru are both sovereign states.

The Australian government was following the lead of the US government of George W Bush, who sought to have the detainees at Guantanamo Bay deemed outside the jurisdiction of habeas corpus in the US. But where Bush’s attempt was overturned in the US Supreme Court, the Australian law succeeded in creating this ‘zone of no protection under the law.’

Having thus breached the right of habeas corpus in one part of the national territory, the logic to widen the breach was inexorable. In 2013 the Labor Party government excised the entire Australian mainland from its own Migration Zone, effectively abolishing the right to seek asylum in Australia altogether. Thenceforth, those whose refugee status was accepted as genuine would be re-settled in Papua New Guinea or Nauru under a “Regional Resettlement Arrangement” signed with those governments in exchange for an A$400 million aid package.

For his part, the Papua New Guinea Prime Minister declared in January this year that the big majority of those in detention at Manus were economic migrants, not genuine refugees, and would soon be repatriated. (Only a tiny fraction had even had their asylum applications processed when the Prime Minister made this declaration.) Since then, 40 have been accepted as refugees, but remain in detention on Manus at a “transit centre.” Jails and police cells have also been designated as ‘relocation centres’ under PNG law, making it legal to hold refugees there for long periods without charges or access to courts and lawyers.

There is a reason facilities like this tend to be built on remote islands. It removes the problem from public scrutiny. Manus Island and Christmas Island detention centres are off-limits to news media. Workers and volunteers at the detention centres are required to sign confidentiality agreements and threatened frequently with dire consequences if they speak out. (The testimony of these volunteers who defied the gag to speak before a government inquiry was one of the few eyewitness accounts we have seen of how these places operate.)

David Isaacs, paediatrician who has spoken against the gagging law

David Isaacs, paediatrician who has spoken against the gagging law

And as if that were not enough, in June the Border Force Act made it a crime punishable by two years prison for doctors, teachers, and security staff to speak out publicly about what they witness in these centres. David Isaacs, a paediatrician who served in the Nauru facility, said “So now it says that if I see a child that’s in danger or that’s seriously ill because of the conditions there and their mental health is really bad, even if I come back to Australia and talk about it in to the media, even put it on Facebook, I could face two years in prison. That’s appalling.”

Senator Nova Peris, who was refused permission to visit Christmas Island. Photo: Melanie Dove ABC News

Senator Nova Peris, who was refused permission to visit Christmas Island. Photo: Melanie Dove ABC News

Even Australian Senator Nova Peris, whose electorate includes Christmas Island, was recently refused permission to visit the centre. In an email informing her of the rejection, the Australian Border Forces explained that “visits to detainees were allowed for the purpose of providing social and familial contact… Visits by individuals for research, educational and other purposes are not consistent with this principle,” the email stated. “Given the scope of your request, we regret that we are unable to facilitate this visit.” As Peris points out, she is the Parliamentary representative democratically elected by the people of Australia to oversee such facilities.

Out of public view, conditions in all these centres are hellish. Isaacs reported that on Nauru there was a lack of sanitary pads for women, no water in the tents and a 100-metre walk to the nearest toilet facilities. Families with young children are often housed with single men, twenty bunks to a room. Access to medical care is inadequate; acute respiratory and gastro infections are exacerbated by the overcrowding. Eyeglasses, hearing aids and even medications, are often taken from inmates on arrival. Inmates are subjected to long hours of lockdown every day. Beatings and sexual abuse are common. Gay men are particularly targeted. They are, above all, places of suicidal depression. During a hunger strike on Manus Island in January ten inmates sewed their lips shut in protest, while others swallowed razor blades or toxic chemicals.

And still the inexorable logic of the situation continues to extend the denial of rights to ever broader layers of the working class.

The latest group to find themselves incarcerated beyond legal protection on Christmas Island is people born in New Zealand. A law change last December which mandated the deportation of non-citizens who have been sentenced to twelve months in prison has seen hundreds of people detained in immigration detention centres and transferred to Christmas Island awaiting deportation to New Zealand. Many of these people had completed their sentences and been released from prison long ago, and were rounded up in dawn raids on their homes. Some have already been held longer in the immigration detention centres than the time they spent in prison. Some have lived in Australia since they were young children, are being separated from their own Australian-born children, and have no family or other ties to New Zealand.

One in ten inmates in Australian immigration detention centres is now New Zealand-born, the second-largest nationality after Iranians. Australian Lawyers Alliance national president Greg Barns told Radio New Zealand “it was bizarre that Christmas Island was being used to detain New Zealand immigrants.

“It was previously used for asylum seekers who were seeking to come to Australia, and that was why it was established. There’s no rhyme or reason as to why you’d use the most remote immigration facility in Australia.”

Of course, the ‘rhyme or reason’ is precisely because Christmas Island is the most remote facility, making access to legal redress, or even to assistance from family members in Australia, as difficult as possible.

In order to fully grasp the meaning of this situation, it is necessary to know something about the common history of the Australia and New Zealand, and why the New Zealand Prime Minister often prattles fatuously about the ‘special relationship’ between the two countries.

Capitalist Australia and New Zealand share common origins as colonial-settler states of Britain. More or less independently, British settler colonies were established at various locations around the coast of continental Australia from the 1780s onwards, and in New Zealand from the 1840s. When the six Australian colonies federated to form the Commonwealth of Australia in 1901, it was widely expected that New Zealand would form the seventh state of the Commonwealth; however the New Zealand capitalists pulled out of the negotiations and formed an independent state. The kinship between the bourgeoisie of both countries was entirely colonial and racist in nature – the indigenous peoples of both lands, as well as immigrants from China, were excluded from this ‘special relationship.’

There was also, however, throughout the nineteenth century and into the twentieth, a single labour market throughout Australasia, (and even, to a much lesser extent, with the West Coast of North America.) Workers travelled freely between the three regions, and ideas and working class organisation developed along these same lines, as well as between the colonies and Britain.

Workers made good use of this freedom of travel to strengthen their union. The labour movement in New Zealand in the early twentieth century was largely built by militants who had cut their teeth in the Australian labour movement, and had then travelled to New Zealand to escape blacklisting by bosses and various forms of persecution by the state. Every major labour battle in Australasia depended heavily on solidarity and support from the other side of the Tasman Sea.

This common labour market came to an end with the First World War. Both governments took advantage of the war to introduce passports, censorship, internment of ‘enemy aliens’ and other means of restricting the free flow of human beings and their ideas. The labour movement in the two countries developed along national lines from that point on.

Nonetheless, migration between the two countries of Australasia remained relatively unrestricted. Up until 1981 it was possible for a citizen or permanent resident of either country to travel to the other, to live, work, or study for as long as they wished, without any need for a passport or visa. New Zealanders in Australia could claim access to social security benefits such as unemployment benefits on an equal basis to Australian citizens from the day of their arrival.

Since this was something like a de facto ‘dual citizenship’ operating, there was little reason for any of these migrants, in either direction, to go through the process of changing their citizenship status even after moving permanently. Few did.

This changed drastically in the 1980s. From 1981 Australia required passports, but not visas, for arrivals from New Zealand. New Zealand reciprocated. At the end of the 1980s, New Zealand’s economy entered a prolonged period of recession, with falling real wages and massive cuts to the social wage, while Australia’s economy, buoyed by the rapid growth of Chinese economy and the consequent demand for Australian minerals, entered a long period of boom. Migration became a one-way affair, as New Zealand workers streamed to Australia in pursuit of higher wages and relief from unemployment at home.

Australia began imposing minimum stays before benefits could be claimed by New Zealanders: a six-month minimum stay was imposed in 1986, then a two year minimum in 2000. New Zealand imposed similar measures on Australians. In 2001 the right of new arrivals from New Zealand to claim benefits in Australia was abolished altogether unless they obtained a permanent residency visa that may be issued only after a two-year waiting period. (They were still being able to live in Australia indefinitely.) Only a very tiny number of New Zealanders have been granted the required permanent residency visa or citizenship in the years since then; applications are expensive and most are declined.

This history is what has led to the situation where there are many thousands of permanent residents of Australia born in New Zealand, who have legally lived in Australia almost their whole lives, but who have never been able to gain citizenship rights. Some of them are now ending up on Christmas Island, denied even the most basic protections under Australian law. The historic closeness and ease of travel has turned into its opposite, and become a nightmare in the present. Protests from the New Zealand Prime Minister have fallen on deaf ears.

Only the working class has the capacity to defend our democratic rights. And unless the labour movement can defend the rights of immigrants, the rights of all workers are threatened.

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