A Chapter in the Political Management of Protest

An overview of the Commonwealth Ombudsman's Reports of March 2001, "Investigation into Immigration Detention Centres" and "Immigration Detainees in Correctional Facilities"

Angela Mitropoulos

Both Reports contain some valuable information regarding the internment of undocumented migrants. Aside from adding a little more detail, there is little here however that is not familiar to those who have some knowledge of the policy and practice of 'mandatory non-reviewable' detention. The Human Rights and Equal Opportunity Commission's Report on the treatment of asylum seekers is, whilst not without certain limitations, a far better investigation into the internment camps. Unlike the Commonwealth Ombudsman's Reports, which notes with 'pleasure' plans to build a further two internment camps in Brisbane and Darwin. (p.19), HREOC's Report makes quite clear that such a policy is little more than arbitrary imprisonment. Moreover, that there are numerous other reports on conditions in the internment camps and on the policy of the internment camps should prompt us to ask the question of why such a report was commissioned in the first place, and what relation this has to the specific recommendations and perspective proposed therein.

Overview

The Ombudsman's Reports seek primarily to assert three things, all of which express a particular political view:

· an insistence on treating certain matters (such as racism toward detainees) as an "unintended consequence" rather than a direct result of, and inseparable from, the policy of automatic imprisonment of those who arrive by boat and without the necessary papers;

· an insistence, particularly in the Report entitled "Immigration Detainees in Correctional Facilities", on drawing a formal distinction between penal incarceration and imprisonment in the detention centres in such a way as to deny the deliberate reasons for the use of such a distinction;

· an insistence on the implication and slander that the rights and welfare of women and children are "at risk" more from adult male detainees rather than from the policy of so-called 'mandatory and non-reviewable detention' itself.

"Unintended consequences"

From the very beginning, the perspective of the Report is clear: "Successive Governments have endorsed Australia's policy and practice of mandatory detention for unlawful non-citizens until a visa is granted or they are removed or deported from Australia. This report does not question this policy. Rather, it focuses on whether, in terms of section 15(1) of the Ombudsman Act, the administration of the policy has been unreasonable or whether its implementation has resulted in unintended consequences." (p.2)

It is not, according to the Ombudsman, governments who are responsible for, and the authors of, this policy, but 'Australia', as if it were indeed possible for an entity such as 'Australia' to sit down and draft policy. Such rhetorical evasions from someone presumably familiar with legal process is either a result of a fear of offending his employers, or a determined pitch in the midst of an election cycle, where disclosure of the responsibility of 'successive government' (in other words, the Liberal-National Coalition and the ALP) for something which is increasingly regarded as unpalatable and scandalous needs to be routinely avoided.

As the Ombudsman knows perfectly well, the policy of 'mandatory and non-reviewable detention' was introduced by the ALP Government in 1994, and successive amendments by Liberal-National and Labor governments have for the most part served to tighten this policy and protect it from legal challenge. This is an empirical fact, but the Report prefers the kind of political spin which seeks to protect its readers from this fact.

Moreover, as the rest of the two Reports are eager to establish, the problem with the policy of automatic imprisonment is not the policy itself, but its management by ACM-Wackenhut Corporation. This is the entire narrative gist of the Reports. Instead of commencing the 'Background' section in 1994, with the introduction of the policy, the very first sentence reads: "In February 1998, the Department of Immigration and Multicultural Affairs (DIMA) contracted the delivery of detention services to a private organisation, Australasian Correctional Services Pty Ltd (ACS)." (p.9)

Whilst ACM-Wackenhut are hardly innocent, and whilst they serve as an illustration that indignations over 'people-smugglers' are but a handy distraction from the fact that no one (least of all the incarceration giant Wackenhut who make billions from such a business) would be making money from undocumented migrants if they were not criminalised by the current border regime, there is no grounds to suggest that the problems encountered by detainees would be significantly lessened by the transfer of the camps to state management, or indeed greater state oversight. What has been obvious for some time is that sections of the ALP and some trade union officials are keen to deliver the running of the internment camps to the state, since this would likely provide better working conditions for guards and staff.

Overall, the evidence proffered by the Report of the poor and often horrible treatment of detainees functions as, and is subordinated to, an argument against 'current management' rather than policy. In other words, it is not that the policy is-in both substance and intent-racist, but that guards are, and rather inexplicably so. This, the Report concludes, can and should be dealt with by making staff undertake "cultural awareness training on a regular basis".

Unless such "cultural awareness training" includes sessions on the purposeful racism of according rights and conceding another's humanity only on the basis of the caprice of birth, mode of arrival and bureaucratic whim (visas), and therefore on the essential racism of the policy of internment of sans papier boat arrivals, it becomes less a serious attempt to deal with the racism of the camps than to manage criticism of it. In fact, managing public criticism in order to maintain the existence of the camps is an overt aim of the Report. For instance, regular inspections of the camps by the Ombudsman are proposed in order to "assist in improving public confidence in the detention program" (p.8).

In short, the deliberate intent of the Ombudsman's Reports is to present what happens in the internment camps as anomalous to their being internment camps.

Finally, one of the more bizarre aspect of these Reports is an insistence on presenting the deliberate and consciously-understood effects of this policy as "unintended consequences". When the ALP's Minister for Immigration, Gerry Hand, sat down with his advisors to draft this policy, it inconceivable that he did not understand that he was enacting a series of amendments that would deny those who arrived by boat and without papers any rights since this was the entire function of those 1994 amendments. Whatever can be said of Gerry Hand, and subsequent Immigration Ministers (as well as their respective Cabinets and parties), it is remarkable to imply that they did not know what exactly what it is they were doing. There is such a thing as responsibility.

Imprisonment or Detention - what's in a word?

Whilst it might be generally thought that detention is not as harsh as imprisonment, the facts of the matter are that the formal legal use of detention provision enables authorities to deny those who are detained any formal rights that those who are formally imprisoned might have recourse to.

The use of 'detention' provisions allows for the incarceration of people without charge, without trial, incarceration for an indefinite period, the denial of legal representation, the reversal of the presumption of innocence, prohibitions on communication and outright incommunicado confinement, a bar on access to the courts for review of the merit or length of incarceration, and so on.

All of these things are a part of the experience of undocumented migrants who have arrived by boat ever since a series of amendments to the Migration Act since 1994 legalised the practice of such. Prior to 1994, the use of detention was ad hoc, with no coherent legal foundation, and threatened by challenges in the courts. The 1994 legislation sought to remove the ability of the courts to review or decide on the length of the internment of undocumented migrants by handing over such decisions to the whimsy of the Minister and Department of Immigration (DIMA) bureaucrats.

The Ombudsman's Reports do note that those held in the 'migration detention centres' do not have even the limited rights accorded to those held in regular prisons. What it does not do, however, is acknowledge that this is a deliberate consequence of shifting migration law into the province of administrative law as a means bar access to the courts and to disallow those who are interned in the camps access to legal rights. The Attorney-General, Daryl Williams, already acknowledged as much openly, when he declared some two years ago that detainees do not have any right to be told of their rights to apply for asylum upon their capture. Such a move was backed up by a slate of administrative regulations, including the isolation of recent detainees from longer-term detainees in order that, according to the Parliamentary Joint Standing Committee on Migration, they not be 'coached' on the need to state clearly, with the use of certain key words, that they wished to apply for asylum -- failure to use certain key words would entail being 'screened out' thereby triggering automatic deportation.

Therefore, whilst the distinction between 'detention' and 'imprisonment' is indeed tenable insofar as it is recognised that detention was and is in fact a means to exclude detainees from recourse to the limited rights that regular prisoners have, the implication in the Ombudsman's Reports that this is not the case does little more than play upon the common misconception that allows many to think of detention as a kind of 'soft' imprisonment.

For instance, the Ombudsman proposes that DIMA "eliminate the use of penal institutions as places for immigration detention". Outside legal circles, this would generally be understood as implying that "immigration detention" is not imprisonment. It is abundantly clear-insofar as supporters of the policy of 'mandatory detention' consistently refuse to use the words 'incarceration', 'internment' or 'imprisonment' -- that successive governments (as well as the Ombudsman) understand that it is politically necessary to call this policy 'detention' in order not to undermine it.

The preoccupation with "women and children" - sexism and racism by any other name

The Ombudsman's Report was released to coincide with the Minister's announcement of a "pilot programme" which would move women and children from the Woomera internment camp to the nearby, remote rural township of Woomera. The tenor of the introductory passages of the Ombudsman's Report is overwhelmingly that of presenting the issue of women and children in detention as a major and distinct issue-one that somewhat conveniently is already being 'solved' just as the Report is released.

Whilst the release of anyone from the internment camps is welcome-and would perhaps be an occasion for celebration if all those who were released were not then subject to a 3-year visa with limited rights, or better: if the camps were simply shut down-the preoccupation with "women and children" is in fact an argument for the continued imprisonment of adult men who arrive by boat and without papers.

Indeed, such a proposal is founded on a series of slanders against adult male detainees which serves to justify their continued internment -- a slander that is undeniably linked to racist depictions of 'non-white' men as threatening, less than human and necessarily requiring incarceration. When, for instance, the Ombudsman's Report states that provision should have been made "to better cater for the needs of women and children and others at risk" what is clearly implied is that such "risks" come from adult men-not from Government policy, nor from their internment. When women do appear in the Report, that is to say, when detainees are gendered, it is generally in order to present them as victims or potential victims of male detainees.

There is a definite history to proposals to move women and children into low-security camps or into a system akin to probation. In June 2000, hundreds of detainees staged a number of escapes and protests in order to demand freedom-for perhaps the first time in the history of the camps, many were not resorting to self-harm, hunger strikes and suicide attempts as a means to protest their internment.

The immediate effect was to undermine the validity of the camps. As detainees attempted further protests in late 2000, the subsequent use of water cannon, tear gas and capsicum spray against them did everything but halt the further erosion of support for the internment camps.

Therefore, to the extent that the paradigm of 'invasions by boat people' has come under significant pressure since then, and no longer suffices to secure the continuation of a policy increasingly regarded as scandalous, it has become necessary to adopt another paradigm. This new paradigm is a little more than a modern version of lynching, updated by recourse to a missionary and welfarist rhetoric. Such a mix serves to deflect attention from the fact that it is an argument for the arbitrary imprisonment of otherly-complexioned men, presumably absolved of its overt recourse to racist stereotype by presenting itself as the gentlemanly or Christian defender of "women and children".

In other words, it is a very particular combination of racism and sexism that views otherly-complexioned men as predisposed to perversion and violence (when not depicted outright as other than human or 'animals'), and otherly-complexioned women and children as passive and in need of the supposedly enlightened protection from men of the same cultures and backgrounds (and often simply regarded as exotic). (It should suffice to mention that we are still living with the consequences of the removal of Aboriginal and Islander children from their families in order to be able to comprehend the ways in which something that may well be presented as 'for the good of the child' and for their own protection is instead founded on racist slander.)

Proposals to 'release' women and children are not a challenge to racism and xenophobia. Rather, they are a direct appeal to such sentiments and a continuation of them in an a form other than the increasingly discredited one of 'invasions'. If there are grounds to release women and children from the camps, then there are also grounds to release men from the camps also. If there are those who can accept the former but cannot accept the latter, this is undoubtedly because of a resort to sexism (and ageism) which views women and children as passive and therefore not bearers of the same level of threat that only a xenophobia is capable of discerning in the first place.

Everyone should be released, without exception, irrespective of age and sex.

March 4, 2001