"Lepers, Witches and Infidels:

Or Shall We Just Call Them Refugees?"


Karen Eliot, Adelaide, 28 July 2003

In the space of just under 4 hours the crispy blue Adelaide winter
morning turned to fat grey rain and wind. In the climate-controlled Room
R on Level 5 of the Family Court in the city centre the passage of time
and weather didn't directly touch the crowd of sixty activistas, human
rights observers, Indigenous elder, lawyers, media, translators,
parents, ACM drones, Federal Police and ghosts. Just as the five Afghani
children whose immediate fates and long-term futures were at stake
didn't touch us by their actual presence. The un-famous five existed,
like the weather, outside of this impersonal room, in the liminal space
of immigration detention, 'between the floor and the sky', somewhere
no-one wants to be.

Their material appearance could have provoked a very different
atmosphere in the courtroom today, any direct expression of anger,
frustration and anguish interrupting the rarefied theatre of justice
with its high church signs of gowns, obsequious bows, and learned
friends. The children's absence mirrored the way the Department of
Immigration, & Multicultural & Indigenous Affairs (DIMIA) consistently
referred to them, as "unlawful non-citizens" who, since the failure of
their appeal to the High Court in February this year "have no rights of
protection" under Australian law. Or perhaps that should be, "awful
non-citizens" who "have no rites" under Australian lore. The same wilful
lore and law which insisted a couple of hundred years ago that this land
was "terra nullius" when blind Johnny could really see that every place
was peopled by numerous families and social groups. How long will it
take for us as a mature nation to heal the wounds of invasion and to
create a safe haven for everyone who is owned by this country by birth
or boat or need to escape persecution?

The children's father was present in court today, flanked by three
tagged ACM guards in civvies (sad sling-back shoes and woolly jumpers
were the go) and another tall company man standing in front of the
courtroom door, presumably if Mr X tried to do a runner. Mrs X,
seven-months pregnant, had been rushed to hospital in Port Augusta last
night, and was not able to attend. Today was the hearing of two interim
applications requesting the immediate release of the children as grave
concerns for their well-being have been expressed by a number of mental
health professionals. The first application was lodged by the children's
father recommending that his children be allowed to reside in a suburban
home provided by Centrecare Catholic Family Services, and that regular
contact with their parents be allowed. The second application was by the
children, "an order pursuant to Section 67ZC that, pending the final
determination of the legality of their detention, the Applicant Children
be released from immigration detention."

The presiding judge, Justice Steven Strickland, set the date for the
Final Hearing of the children's case, and in particular the unlawfulness
of detention, for a five day trial beginning on September 15.

There was a lengthy preamble centering on an affadavit by Mr James
Williams for DIMIA. The applicant opposed the wording of it on the
grounds that he is an Afghani national. DIMIA announced that they
intended to produce documents to argue that the detention of children is
not illegal and that therefore the judge doesn't have the power to
release children. More blah about inadmissable material and then the
judge got snippy, saying that he wasn't going to spend the morning going
through procedural matters that should have been sorted out well
beforehand. The applicants for the children objected that they had only
received DIMIAS's objections at this very moment and that they thought
this was "intentional" on the part of DIMIA. (DIMIA were objecting to
the "purport" of the pyschologist's report. DIMIA announced its
intention to produce its own pyschiatric evaluation of the children.)

The applicants requested that before the Final Hearing the judge visit
Baxter where the father and his two sons now live (and possibly the
Woomera Housing Project where Mrs X and her 3 daughters have been living
since June 2003). They asked this since they claimed that the
photographs of the detention centre, devoid of guards and refugees, do
not give an accurate representation of the real circumstances in which
the children are living.

The judge clarified that there is a general power in the Family Court
under the welfare provision to release children on an interim basis from
immigration detention. (sections 23 and 34 of the Federal Court Act --
providing for power to make orders of the broadest variety -- reference
made to the Full Court decision on the release of Al Masri as his
detention was deemed to be indefinite [because he could not obtain
travel documents from countries neighbouring Gaza] and therefore
unconstitutional). Basically the unlawfulness of the detention of the
five children from Family X provides the trigger for the Family Court to
act. Today's hearing is the first fruit of the Full Court of the Family
Court's ruling in June 2003 that the Family Court has jurisdiction to
determine the futures of refugee children in detention.

The applicants then went to the heart of the matter, saying that "on one
side we have the best interests of the children and on the other the
interests of the Minister". Mrs X is not interested in co-operating with
DIMIA to leave Australia (because of a fear of what would happen on her
return). And the Full Court has determined that beacause of the
children's minority status they don't have autonomous decision-making power.

They continued by pointing out that Mr William's affadavit for DIMIA
admits that the security situation in Quetta, a town in Pakistan near
the border with Afghanistan, presents an impediment to a security
officer (presumably an Australian officer who would be accompanying the
family should they be forcibly removed from Australia). So the situation
of detention rolls on indefinitely, and it is unclear how long Quetta
has been unsafe, and if it will ever be deemed safe in our lifetimes.
DIMIA could force the issue if they find another willing nation to
accept the family but there is no evidence that they are getting to
closer to finding this land of milk and honey, and therefore the
detention appears to be indefinite.

Speaking on behalf of the family David Haines, QC asked "What
constitutes the best interests of the children?" Although the
Immigration Minister has asserted that the children are in a stable
situation and should not be separated from their parents, the fact is
that the two brothers are in Baxter and since June the three sisters
have been in Woomera in house detention with their mother (and 24/7 ACM
guard). So already there has been separation from family and destruction
of the family status. The affadavit of Ms Fitzgerald [pyschologist]
lodged on 21 July 2003 insists that there is an immediate need for the
children to be released and undergo psychological treatment for the
conditions they suffer. Ms Fitzgerald shows the same concerns now for
the children as she did one year ago when she prepared her first report
on their pyschological condition. Her primary recommendation is that the
children be released from detention to live with their parents in the
Australian community with the help of a supportive network. If this
option isn't viable then she recommends beginning a process of
restoration of the children's pyschological health and well-being
commencing immediately with their release from detention.

The judge asked for more information on what kind of therapy the
children would receive, and what would be the implications of DIMIA's
High Court Appeal (to overturn the recent ruling that the Family Court
can order the release of children in detention).

The lawyers for the applicants stated that under the Migration Act
detention is broadly defined and that the Minister has the power to
authorise any person to act as a detention officer, and that a wide
range of places can be defined as detention places. For example, a
migration officer or a community worker could be placed in charge of
children in their own places of residence. The Family Court now has the
power to give orders pertaining to the accommodation, health and
education of asylum seeker children who are deemed to be at
"unacceptable risk" of "significant and/or permanent damage."

DIMIA might have taken up less court time today in comparison with the
applicants' legal team, but they had learnt their lines well even if
they were delivered with a bit of a mumble by Charles Gunst QC, and the
quality of their script was ... well, was it *meant* to be a
Shakespearean comedy, or did one of the Temp Terrorist crew replace
DIMIA's submission with a script from the new series of the dammed ABC's
"The Office"?

On one hand DIMIA professed concern for the children, declaring that the
judge was unfairly being asked to "forcibly remove" five children from
their parents and place them with two "non-professional carers". At
least we were spared a deluge of crocodile tears. (The applicants later
objected to DIMIA's use of the word "forcibly", as they explained that
the parents and the children had agreed to the option of living in the
community as the lesser of two evils, remaining indefinitely in
detention being a far greater trauma than parental separation).

Lest we be confused by DIMIA's quiet concern for preserving the sanctity
of the bond between child and parent (let's leave that to J Howard and
his joint custody crusade) they quickly reassured us that they are the
same old grey men and almost-men by returning to the barren linguistic
territory of their underlying "punish the lying Pakkie bastards" theme.

Protection visas refused because the family is from Pakistan not
Afghanistan. Mum and children have lost all rights. Dad's visa
cancelled. Family Court has the power to release the children if
detention is found to be unlawful but not otherwise. The detention of
children will be unlawful if there is not a reasonable likelihood of
removal from Australia. Indefinite detention is not the same as "not
short" detention. The women and children are from Pakistan. Obtaining
the necessary travel documents for deportation can take a long or a
short time. These are unlawful non-citizens who have no right to remain
in Australia. The Minister is under a statutory obligation to remove
them. They have no further right to remain and they will be removed.
These children as a matter of law must be removed from Australia.
v
Important to bear in mind that immigration detention isn't a punishment
(cynical laughter from crowd).

Its purpose is to separate unlawful non-citizens from the Australian
community (pungent silence from crowd).

Immigration detention is voluntary in the sense that it can be brought
to an end by a refugee agreeing to leave the country. Mrs X's unborn
child will only be an Australian citizen if the parent is a citizen or
permanent resident.

The performance continued ...

The interests of children are important but not paramount (unusual
display of departmental honesty here).

Baxter is a purpose-designed centre, with much-improved accommodation
(more cynical laughter and snorts). Medical facilities are available.
None of the children (detained now for two and a half years) has a need
for on-going pyschological monitoring. They haven't seen a pyschiatrist
because they haven't needed one (this in response to the applicants'
submission that one of the boys attempted to hang himself one year ago
in a suicide pact with another child). Baxter is a very good centre. The
children are healthy and well-cared for. They have a balanced diet. It
would be a very cruel pyschological trick to release the children as it
would give a false hope that they could stay in Australia.

Well, that's just about it. The judge expressed concern that the
applicants needed to provide more information on the proposed housing
and schooling arrangements for the children should he order their
release into a community setting. Because he had so much new material to
read and consider he adjourned the handing down of his landmark decision
until Wedesday 30 July at 10am.

Stay tuned, same bat channel."