The purpose of this report is to provide an overview – or ‘snapshot’ – of the key human rights issues that arise from Australia’s approach to asylum seekers and refugees who arrive by boat.
The report focuses on mandatory immigration detention and third country processing. It concludes with observations on some of the policy changes proposed by the newly elected Australian Government.
The report is not intended to address all the issues facing asylum seekers and refugees in Australia.
Asylum seeker and refugee policy remains one of the most contentious issues in contemporary Australia. In recent times we have seen a number of policy changes in this area. The speed at which they occur can make it challenging to stay on top of the facts. It is my hope that this report will provide parliamentarians, key commentators and the community with a clear understanding of the human rights issues that arise from the situation facing asylum seekers and refugees who arrive in Australia by boat.
This report reveals a significant gap between Australia’s human rights obligations under international law and the current treatment of asylum seekers and refugees.
Australia maintains one of the most restrictive immigration detention systems in the world. It is mandatory, not time limited, and people are not able to challenge the need for their detention in a court of law. The Commission has for many years called for an end to this system because it leads to breaches of human rights obligations under treaties to which Australia is a party.
While doing so, the Commission has also acknowledged that immigration detention may be legitimate for a strictly limited period of time. However, the need to detain a person should be assessed on a case-by-case basis taking into consideration their individual circumstances.
The United Nations Human Rights Committee’s most recent finding against Australia related to the indefinite detention of refugees with adverse security assessments. The Committee not only found that these refugees’ indefinite detention was arbitrary, it also found that it was ‘inflicting serious psychological harm upon them’, which amounted to cruel, inhuman or degrading treatment.
As at 5 September 2013, there were 6,579 people in closed immigration detention facilities in Australia, including 1,428 children. As at 6 August 2013 there were 52 refugees being held in indefinite detention as a result of receiving an adverse security assessment. The detrimental mental health impact of prolonged and indefinite detention is well-documented. In 2012–13 there were 846 reported incidents of self-harm across Australia’s immigration detention network.
While numbers in closed detention remain high, Australia has taken significant steps towards implementing a system of community placement on the mainland for asylum seekers and refugees. This has been achieved through the use of community detention and bridging visas, building on measures introduced by successive Australian governments. This is a welcome development, aspects of which align with the Commission’s recommendations and international human rights standards.
The Commission continues, however, to hold significant concerns that the denial of work rights to asylum seekers on bridging visas (reported on 2 September 2013 to be over 21,000) may force individuals and families into poverty and lead to breaches of multiple human rights.
Of particular concern is the introduction of an ‘enhanced screening process’ for all unauthorised maritime arrivals from Sri Lanka. The Commission considers that this process does not constitute a fair asylum procedure and risks excluding those with legitimate claims for protection.
In 2012 the Australian government reinstated third country processing. This was prompted by the rising number of asylum seekers undertaking dangerous sea journeys to seek protection in Australia and by the tragic loss of lives at sea. The Commission acknowledges that preventing further deaths at sea is a complex challenge with no simple solutions.
As at 5 September 2013 there were 1,254 asylum seekers detained on Nauru and Manus Island in Papua New Guinea.
In June 2013 the Parliamentary Joint Committee on Human Rights, having examined the laws and legislative instruments underpinning the regional processing regime, concluded that there was a significant risk that the regime was incompatible with a range of human rights. The Commission concurs with this assessment.
Australia has resettled around 800,000 refugees since World War II, building one of the world’s most successful multicultural societies. Today, Australia continues to have a generous resettlement programme and, along with the United States and Canada, has ranked consistently among the world’s top three resettlement countries.
While we have seen a significant increase in asylum seekers seeking protection in Australia in recent times, Australia’s share of asylum applications remains a very small fraction of the global total (about 2.2%). I urge the Australian Government to ensure that all asylum seekers and refugees are treated humanely regardless of their mode of arrival, and to continue to uphold our proud history of providing protection to some of the world’s most persecuted and vulnerable people.
Over the last two decades we have seen the unprecedented politicisation of immigration. Many Australians remember the wave of immigration after World War II when our rapidly developing industrialised economy addressed its labour shortage. Yet, like many Western countries, since the end of the Cold War we have worked to prevent refugees from seeking asylum by making our borders impenetrable.
Today, we distinguish between migrants, who arrive via our Migration Program (currently up to 190,000 places per year), and refugees, admitted through our Humanitarian Program, (providing 13,750 places in 2016-2017). Migrants make a conscious choice to seek a better life elsewhere. Refugees are forced to leave their country because of persecution.
Photography has mapped a distinctively Australian version of this global story. Once migrants were represented as complex, vulnerable, diverse people, as in David Moore’s iconic 1966 photograph, Migrants arriving in Sydney. This image allows us to empathise with the fear, anxiety and hope felt by newcomers, poised between old and new, tradition and change.
By contrast, today the Australian government seeks to suppress photographs of asylum seekers, seemingly from fear that such images will prompt empathy with them and undermine border security policy. As asylum seekers have come to be widely viewed as a security threat, refugee policy has been militarised, displacing attention from the situation of those attempting to reach Australia to their supposed menace to our way of life.
The power of photos
Researchers have long debated the impact and ethics of photographs of those very far away or different from ourselves – how do such representations allow us to empathise with their subjects’ plight? Do our responses to such photos prompt political or social change? Or, after a moment of compassion or shame, do these feelings simply subside, letting us return to business as usual and thereby reinforcing the status quo?
Clearly, Australian government and military officials believe, very deeply, in the power of such imagery to undermine – or conversely, support – their agenda.
Two episodes in our recent history reveal the power of photography to shape attitudes and influence public debate. The first is 2001, the year of the Tampa incident, Children Overboard, and the Pacific Solution. The second is the increased border protection measures introduced by the Abbott government from 2013, still in place today.
During the late 1990s, increasing numbers of people attempted to travel to Australia by boat to seek asylum, including Afghanis, many being members of the persecuted Hazara minority. In August 2001, the Norwegian vessel MV Tampa rescued 438 mostly Afghan refugees from their sinking boat, around four hours from the Australian territory of Christmas Island.
The Australian government blocked the Tampa from landing on Christmas Island. Indonesia, which had not ratified the 1951 Convention on Refugees, refused to receive them. When the Tampa entered Australian waters without permission, the Australian military intervened. After much delay, the refugees were taken to Nauru.
Australian citizens’ understanding of these remote events was necessarily highly mediated. A review carried out by researchers from the University of Queensland examined the visual representation of asylum seekers on the front pages of two prominent Australian newspapers at this time – The Australian and the Sydney Morning Herald.
Their analysis showed the predominance of pictures of boats, mostly from a distance, as well as those depicting asylum seekers as large groups (42%). In contrast, there was a striking lack of images showing individual asylum seekers with clearly recognisable facial features (only 2%).
The researchers concluded that the effect of this pattern was to dehumanise refugees and frame the refugee “problem” as a potential threat that demanded mechanisms of security and border control.
Perhaps the most widely circulated image from this crisis was an aerial view of the Tampa showing the rescued refugees sitting on the deck in rows, in a space defined by shipping containers. Powerful as it was, this image did not show a single human being’s face.
Following the Tampa incident, a new border protection initiative titled Operation Relex implemented a restrictive public affairs plan that tightly regulated the collection and circulation of information and images.
The Director-General of Defence Communication Strategies, Brian Humphreys, later testified to the Senate Select Committee on a Certain Maritime Incident that Defence Minister Peter Reith had explicitly instructed personnel, “Don’t humanize the refugees”.
The inquiry concluded that this restrictive public affairs plan intended to retain “absolute control” of the facts,
to ensure that no imagery that could conceivably garner sympathy or cause misgiving about the aggressive new border protection regime would find its way into the public domain.
Visual theorists express concerns about the ethical use of images of suffering. They argue that such images exploit their subjects by violating their privacy or showing them as abject and less-than-human. In addition, there are well-grounded fears that identifying individuals may render them vulnerable to persecution in their home countries.
However, the complete suppression of images by the state also acts to erase the social experience of suffering. In this way, the absent image may be as powerful, and terrifying in its effects, as images of suffering.
John Howard’s government did, however, make active use of photographs to advance its agenda at this time. In October 2001, in the immediate lead-up to a federal election, a boat designated Suspected Illegal Entry Vessel 4, carrying 223 asylum seekers, was intercepted by HMAS Adelaide north of Christmas Island, and then sank.
Immigration Minister Philip Ruddock claimed that passengers had thrown children overboard as a means of forcing the Australian navy to rescue them. Defence Minister Peter Reith and the prime minster repeated this claim, and on 10 October released photographs that supposedly proved it.
However, journalist Virginia Trioli challenged their status as proof during a radio interview with Reith, pointing out
Mr Reith, there’s nothing in this photo that indicates these people either jumped or were thrown?
Well, quite frankly, if you don’t accept that, you don’t accept anything I say … they are clear as day. A mother and her presumably son, aged seven or eight clearly in the water and clearly being assisted by a female member of the Royal Australian Navy … Now, we have a number of people, obviously RAN people who were there who reported the children were thrown into the water.
However a later Senate inquiry found, on the basis of evidence provided by senior Navy personnel, that the photographs offered as evidence of children thrown overboard on 7 October were actually pictures taken the following day, 8 October, while SIEV 4 was sinking.
The inquiry concluded that the Howard government had deliberately told lies about these events and suppressed the truth for political purposes.
A different picture
In mid-2003, meanwhile, an anonymous source published photographs of the rescued asylum seekers taken by Navy personnel aboard HMAS Adelaide in October 2001.
These photographs show how these rescued people responded aboard the navy vessel. Note the good health and happiness of the children. Imagine the effects on the Australian public in October 2001 of seeing these happy, relieved families: would our political history have been different?
The Howard government’s response to the “children overboard” affair was “The Pacific Solution” – establishing Nauru and Manus Island as offshore processing centres. According to a report compiled by parliamentary library staff using a variety of official sources, the policy was effective in halting boat arrivals in 2001.
With the election of the Rudd government in 2007, after six years of operation, Manus was closed. However a sharp rise in arrivals of asylum seekers by boat up to 2012 led to the re-opening of offshore processing centres under then-Prime Minister Julia Gillard.
In October 2011, meanwhile, the Department of Immigration and Citizenship announced a new media policy designed to control media access to asylum seekers. A key part of this policy was to regulate the use of images and, in particular, to prevent journalists from showing the faces of asylum seekers, justified as protecting the individual’s identity. This policy remains in place.
After the election of the Abbott government in 2013, Operation Sovereign Borders was mounted, a key component being the Regional Deterrence Framework, at a cost of A$420 million. This is still in place.
Part of this campaign entailed the production of a video and poster, captioned “No Way. You will not make Australia home.” This stated,
Any vessel seeking to illegally enter Australia will be intercepted and safely removed beyond Australian waters.
In response to these official campaigns, those seeking to arouse empathy with asylum seekers and counter aspects of the Australian government’s policies have also turned to photography.
In 2014 Hazara refugee Barat Ali Batoor’s photo on board an asylum seeker boat between Indonesia and Australia won Photo of the Year in the Nikon-Walkley Award for Excellence in Photojournalism.
Batoor was lucky to survive the two-day voyage. The boat he and 92 other asylum seekers took from Indonesia ran aground on rocks before reaching Australia. His camera was ruined, but his images survived. He was officially recognised as a refugee and resettled in Australia in 2013. In response to his photo, the Walkey judges said:
For all the years of debate about asylum seekers, this is the first time we’ve seen what one of those boats look like. No-one else has been there. The processes Barat Ali Batoor went through to get on that boat, and facing the possibility it could sink – which it did – that took phenomenal courage and commitment to telling a story. Batoor broadened the debate and helped us visualise what happens before the boats arrive at Christmas Island.
Since 2014, we have seen ever-increasing tightening of control of information about detention centres. In July 2015, reporting of abuse within the Manus Island centre was made illegal, prompting a campaign of civil disobedience by staff.
Events such as the tragic death in February 2014 of Reza Berati, a 23-year-old Iranian national, have aroused great concern. Medical staff have repeatedly testified to the trauma for inmates of these places, especially children. The Australian government has continued to invest heavily in media programs to discourage refugees.
Commissioned by the Immigration Department, the telemovie Journey cost $5.6m and was filmed in three countries, screening in 2015 in Pakistan, Afghanistan, Iran and Iraq. It aimed to inform audiences in “source countries” about the
futility of investing in people smugglers, the perils of the trip, and the hard line policies that await them if they do reach Australian waters.
In September 2015, however, photographs of a three-year-old Syrian boy, Aylan Kurdi, whose body had washed up on a beach in Turkey went viral on social media.
Aylan had drowned with his brother Galip, who was five, and his mother Rehan as they tried to reach the Greek island of Kos in a small, overloaded rubber dinghy.
European newspapers debated whether or not to show the image, because historically, publishing images of dead children has been taboo for Western media. But the next morning most European newspapers ran the photo on the front page. British prime minister David Cameron’s initial response was to reiterate his policy that “we can’t take any more people fleeing from war”.
But within hours of seeing Aylan on all the front pages he admitted that he was deeply moved, and within days he announced that Britain would accept 20,000 more refugees.
In Australia, our papers carried the photo the following day. Initially the tragedy was represented as a European problem, with headlines such as “The images that stopped Europe”. Tony Abbott expressed sorrow but blamed the choice of refugees to flee by boat:
Well, I’d say if you want to stop the deaths, if you want to stop the drownings, you’ve got to stop the boats …
For a week, refugees were the subject of almost every radio and TV debate. Pressure from voters and Coalition backbenchers caused the prime minister to pledge $44 million in emergency aid to refugees still detained in camps, and on September 9, Abbott announced Australia would resettle an additional 12,000 refugees from the Syria/Iraq conflict.
There is a clear link here between the empathy aroused by such affective images – of which Aylan’s was perhaps only the most shocking – and its concrete political consequences.
Shutting our eyes
The Australian government currently has obligations under various international treaties to ensure that the human rights of asylum seekers and refugees in Australian territory are respected and protected.
As a party to the UN Refugee Convention, Australia has agreed to ensure that asylum seekers who meet the definition of a refugee are not sent back to a country where their life or freedom would be threatened. This is known as the principle of non-refoulement.
Australia also has obligations not to send people to third countries where they would face a real risk of violation of their human rights under these instruments. On April 26 this year, Papua New Guinea’s supreme court ruled the detention of asylum seekers on Manus Island illegal. Offshore detention was among three areas of concern raised by the UN’s recent universal periodic review of Australia’s human rights record. Our refugee policy remains a troubling and unresolved question for the nation.
This recent history reveals the intense politicisation of media representations of these events. Official responses with their focus on border protection have framed immigration and asylum seeking as a military threat, constituting asylum seekers as invaders and enemies of the state.
Increasingly, we have seen our government move from attempting to control images of events such as shipwreck or rescue or conditions in detention centres, to simply prohibiting them.
The more troubling aspects of these policies – such as effects upon asylum seekers and particularly children and families under indefinite detention – remain invisible.
We forget that the occupants of offshore processing centres are not enemy soldiers but refugees – they are already victims of conflict in their home countries. Many of them are children, and we have specific responsibilities towards them under the UN Convention on the Rights of the Child.
The examples I have reviewed here demonstrate the Australian government’s profound fear of the power of photographs to provide a counter-narrative to its own policies, and specifically, to create empathy between Australian public audiences and asylum seekers.
They show that in certain contexts, displaying and circulating images, or conversely, restricting them, may have a significant impact on viewers’ attitudes and subsequently on events.
Harsh national border defence policies are maintained at the expense of refugee well-being. Many atrocities have been committed in the shadow of such secrecy: only this week Four Corners revealed terrible conditions prevailing within onshore juvenile detention centres as well, prompting immediate public outrage, and leading Human Rights Commissioner Gillian Triggs to call for a wide-ranging inquiry into Australia’s detention culture.
I suspect that most Australians would feel just as sad, angry, or ashamed if they witnessed conditions within offshore detention centres: yet so far most Australians have not been prepared to insist on seeing into these places, nor to demand that we soften our policy of mandatory offshore detention.
As ethical – and privileged – Australian citizens, there is a moral imperative for us to engage with and respond to what these pictures show us.