Will the High Court save these asylum seekers?

Asylum seekers held in Malaysia.



UPDATE: The High Court has extended its injunction on the deportation of asylum seekers for at least another fortnight. Justice Hayne wanted the full bench to hear the claims, fighting whether the Government has the right to refuse asylum seekers the ability to have their claims for protection heard in Australia.

As the High Court prepares to hear further evidence in a motion brought by human rights lawyer David Manne to stop the deportation of the first group of asylum seekers to Malaysia at 2.15pm, refugee advocate and human rights barrister Julian Burnside has this to say about our nation’s empathy problem:

It is one of the most resonant phrases in our national mythology.  “Lest we forget”.  We say it, or think it, on 11th November each year and on Anzac day.

But forgetting lies at the heart of this country.  We have constructed a myth about ourselves which cannot survive unless we forget a number of painful truths.  We draw a veil of comforting amnesia over anything which contradicts our self-image.

Since John Howard saw the votes to be had by appropriating some of Pauline Hanson’s more repellent policy ideas, boat people have been tagged “illegals”.  Howard won the 2001 election on it; Abbott persists in it.  Gillard and Bowen go along with it like sheep because they have still not absorbed their own rhetoric.

We forget that boat people who come here to ask for protection are not illegal in any sense – they are exercising the right which every person has in international law to seek asylum in any country they can reach.

We forget that the first white settlers in this country were true illegals: sent here by English courts for a range of criminal offences, and the soldiers sent to guard them, and the administrators who, following London’s instructions, stole the country from its original inhabitants who, if possession is nine points of the law, had the backing of 30,000 years of law to justify calling the white invaders “illegals”.

And we forget, too, the line in the second verse of our national anthem: words that might fairly be understood as reflecting the simple truth recognised by the white settlers: for those who came across the sea there are truly boundless plains to share.  For refugees locked away on Christmas Island this must throw light on the frontier which delusion shares with hypocrisy.

And how many of us pause to remember how different it was for 85,000 Vietnamese boat people 30 years ago? They were resettled here swiftly and without fuss, thanks to the simple human decency which Malcolm Fraser and Ian Macphee showed, and which Abbott and Gillard so conspicuously lack.  We forget how hideously we scarred Vietnam; how we showered them with Agent Orange and trashed their villages and disfigured their people.  Just as we forget the effects of our collaboration in Iraq.  But if we knew back then why people flee the land of their birth, we seem to have forgotten it now.


When today’s refugees wash up on our shores, Abbott and Gillard, Bowen and Morrison all speak with concern about the boat people who die in their attempt to get to safety, but their concern is utterly false.  Instead of attacking the refugees directly, which is their real purpose, they attack the people smugglers instead.  Because, aren’t people smugglers the worst people imaginable?   They forget that Oskar Schindler was a people smuggler, and so was Dietrich Bonhoeffer.  And so was Gustav Schroeder, captain of the ill-fated MS St Louis which left Hamburg in May 1939 with a cargo of 900 Jews looking for help.  He tried every trick in the book to land them somewhere safe, but was pushed away.  He ended up putting them ashore again in Europe, and more than half of them perished in concentration camps.  Abbott and Gillard forget that Captain Schroeder was a people smuggler.

They forget too that, without the help of people smugglers, refugees are left to face persecution or death at the hands of whatever tyranny threatens them.  Let Gillard or Abbott say publicly that, in the same circumstances, they would not use a people smuggler if they had to.

Many recent boat people are Hazaras from Afghanistan. They are targetted ruthlessly by the Taliban, who are bent on ethnic cleansing.  The Hazara population of Afghanistan has halved over the past decade, as Hazaras escape or are killed.  The Taliban want to get rid of all of them. Gillard and Bowen have overlooked, it seems, that we are locked in mortal combat with the Taliban; they have forgotten that our enemy’s enemy is likely our friend.

The Malaysian Solution provoked another bout of amnesia. Both major parties have forgotten the spectacular cost to taxpayers of trafficking people to other countries, whether it is Malaysia or Nauru. Not to mention the pointless cruelty of it all.

Julian Burnside says we’ve forgotten how we used to treat asylum seekers.

The Malaysian Solution swung into action in early August, when about 50 Afghan asylum seekers arrived at Christmas Island.  There were 15 unaccompanied children among them.  Chris Bowen would not rule out sending the children to Malaysia.  He apparently forgot that he is, by law, their guardian. To his credit, he looks very uncomfortable doing the dirty work, as well he might if he reflects on the speech he gave in parliament on 10 August 2006. It included this: “(boat people) are entitled to have their claims considered in Australia, and if they are granted refugee status, they are entitled to a refugee protection visa from Australia.”

Joe Hockey and Scott Morrison swung into action by criticizing the parents of the children for sending them off in the first place.  They don’t seem to understand that most Hazaras can only scrape together enough money to save just one member of the family.  The parents they criticize so readily have made the awful choice of risking their own lives to give their child a chance of freedom.  But it seems that, these days, nothing is too grubby for the Liberal party.

So here we are: Australia in 2011.  For convenience we have forgotten our origins, our good fortune, our blindness and our selfishness.  In place of memory we have constructed a national myth of a generous, welcoming country, a land of new arrivals where everyone gets a fair go; a myth in which vanity fills the emptiness where the truth was forgotten.

Or perhaps it’s not a myth after all.  Perhaps our national image is true, but our politicians have forgotten what it is.  If we value who we are, we should remind them.  Because our true character as a nation is being reshaped each day by what our politicians do in our name.  Tell Canberra we are better than that, lest we forget.

Does Julian Burnside make a strong case for our amnesia? What do you think about the difference between asylum seeker policies from decades ago, compared to now?

This piece was first published on Julian Burnside’s own website and we republish here with permission.

Julian Burnside is an Australian barrister and human rights lawyer. He has represented many high profile cases, most recently that of Australian WikiLeaks founder Julian Assange in London court. He is an advocate for asylum seekers.

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