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our new terra australis incognita .....

our new terra australis incognita .....

from Crikey ….

No photos, please: Nauru 'unlike anything ever seen in Australia'

AMBER JAMIESON

AMNESTY INTERNATIONAL, ASYLUM SEEKERS, NAURU

Nauru might be a enormous topic politically, but in reality the entire camp on the remote island is just 100 metres by 150 metres.

That's where 387 asylum seekers - all men - currently spend nearly 24 hours a day. Most of the area is taken up by rows of green army tents packed with stretcher beds. The smaller tents fit five or six beds, while the larger tents have 16 or 17 beds crammed in. There's barely any room to walk between the stretchers inside the tents and detainees have zero privacy.

Asylum seekers hang up their towels and clothes to dry by their beds, but with temperatures sitting around 40 degrees - if not 50 inside the tents - and humidity at 80%, it's rare that items ever dry completely. Recently each tent received two fans, which helps. Wet bedding and clothes has caused several of the asylum seekers to develop rashes, for which medical services are regularly dolling out antiseptic cream.

Alex Pagliaro, refugee campaign co-ordinator for Amnesty International Australia, just spent several days visiting the detention centre in Nauru with her colleague Graham Thom, and has described these conditions to Crikey. The pair were the first independent assessors to be allowed access to the camp and have released a review on the conditions in Nauru this morning.

There is little shade and no trees in the centre, apart from an area known as the "recreation area", a concrete slab with a shade cloth on top. Heat in the compound is exacerbated by the fact that the only surface is grey gravel, which makes any meaningful recreation - like playing sport - difficult.

Along one section of the camp, where Nauru's tropical jungle meets the asylum seekers, trees and vines hang over providing shade. Only 20 to 30 people can huddle under there, but it's significantly cooler than the rest of the camp and a popular spot.

Detainees keep in touch with the outside world via Facebook. One of the asylum seekers has set up a Facebook page to chronicle how the detainees are going and he has been given extra internet time in order to maintain that page on behalf of the rest of the men. Six different languages are spoken in the camp.

Occasional excursions are organised, but there's not much to do in Nauru. Outings usually consist of bussing the men to a beach or shady spot and leaving them there with guards for an hour or two. There are no movie theatres, shopping centres or parks to visit.

"Conditions in the camp are unlike anything I've ever seen in Australian detention centres," Pagliaro told Crikey. "They are far, far harsher. It is such a shame that we weren't allowed to take photos because they would have been stark."

Amnesty says the Department of Immigration had given permission for photographs to be taken and the head of security in Nauru had approved photographs, before DIAC revoked the use of cameras just before Pagliaro and Thom were to enter the camp. A spokesperson for DIAC told Crikey: "No one was given permission to take photos inside an immigration detention facility. Claims they had received prior permission from DIAC were completely false."

Amnesty denies this and says permission had been discussed and agreed upon when Pagliaro and Thom arrived on Nauru, before the pair were informed on Wednesday morning that permission had been withdrawn.

But although the housing conditions are worse than Australian centres and there's been suicide attempts (including a man who attempted to hang himself from a tent pole this week). "I didn't get that sense of just overwhelming hopelessness that you do get in Christmas and Curtin island, when people have been locked up for years and are like walking zombies," said Pagliaro.

She also notes this is partly because detainees have only been there for two months and that people were getting more desperate, describing it as a "pressure cooker situation".

 

pacta sunt servanda ….

Australia's refugee policy is now in a total mess. Rather than being guided by principles or even a measured pragmatism, it reflects the knee-jerk response of politicians who are desperate to win votes from the least informed parts of the electorate.

The most dramatic manifestation of this incoherence came in a press conference held on November 21 by Immigration Minister Chris Bowen. He announced that, contrary to the government's original plans, some asylum seekers who reached Australia after August 13 this year would have to be released into the community on what are known as bridging visas.

''Now, of course,'' he said, ''just as people who are on Nauru and Manus Island do not receive work rights, people on bridging visas in Australia also will not have the right to work. So, some people who arrived in Australia after August 13 will be processed in Australia and processed in the community, but will remain on bridging visas, even after they are regarded, through the process, as refugees.''

He seems not to realise that what he is proposing is illegal.

In 1954, the Menzies government acceded to the 1951 Convention Relating to the Status of Refugees. Article 17(1) provides that contracting states ''shall accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country in the same circumstances, as regards the right to engage in wage-earning employment''.

The language may sound convoluted, but the meaning is clear. Refugees permitted to stay for extended periods on bridging visas are ''lawfully staying'' as a matter of international law and common sense. The most favourable treatment granted to nationals of a foreign country lawfully staying in Australia is the unrestricted right to work that is granted to permanent residents and to citizens of New Zealand. As a matter of international law, then, Australia is obliged to grant the same rights to those ''regarded, through the process, as refugees''.

Because of our commitment to a ''fair go'', Australia is also a party to other human rights treaties that recognise the right to work and that outlaw discrimination. Under article 6 of the International Covenant on Economic, Social and Cultural Rights, Australia must not discriminate in access to the labour market without a fair and objective basis. It is permissible to prevent tourists from working. It is illegal to deny recognised refugees, people who must not be returned home, the opportunity to work.

The seriousness of this illegality should not be underestimated. It strikes at the heart of refugee protection. Indeed, in 2011, the High Court of Hong Kong in the case of MA v. Director of Immigration ruled that in extreme cases, denial of the right to work to refugees could even breach the most fundamental obligation of all under refugee law, namely the obligation not to force refugees to return to territories where their lives or freedoms would be threatened.

This is particularly a problem where children are concerned. What if the welfare benefits promised by the minister - a pittance by any stretch of the imagination - are simply not sufficient to get refugees and their families through the five years or so envisaged by the minister as amounting to ''no advantage''? What will Australia say in its report to the United Nations Committee on the Rights of the Child about the impact on the children of breadwinners denied the right to work? ''No advantage'' will be no answer to a committee charged with safeguarding the ''best interests'' of the child.

The ''no advantage'' concept is simply a reworked version of the discredited notion of a smoothly flowing queue, and is designed to punish refugees for arriving without a visa. However, there is nothing unlawful about seeking asylum. Provided refugees have good reasons for entering without a visa - such as lack of protection in other countries - the law requires that they be protected by Australia, not punished.

Thus, it is the minister who is the ''illegal'' here, not the refugees. Of course, ministers from time to time may feel that acting illegally is a small price to pay if votes can be won. This is a very dangerous line of thinking, for both principled and practical reasons.

First, international law is underpinned by the simple but powerful principle of ''pacta sunt servanda'', namely that every treaty in force is binding on the parties to it and must be performed by them in good faith. In the exercise of its sovereign capacity, Australia, when it acceded to the Refugee Convention, made a solemn set of commitments to other states. If it were to dishonour those commitments, it could hardly expect to be taken seriously if it then complained when other states chose to dishonour their commitments under a whole range of treaties and conventions from which Australians stand to benefit.

Second, the Gillard government has promoted the idea that a region-wide framework for refugee protection is essential to slow the flow of boats to Australia, and has committed to active regional diplomacy to pursue this objective. A central element of such diplomacy is to encourage states in the region to treat refugees with dignity and respect their rights under international law. But if Australia blatantly violates its own legal responsibilities to refugees, it loses any credibility as an advocate for better treatment of refugees by others. The minister's panicked response to the failure of his deterrent strategies actually to deter risks making nonsense of the government's wider diplomatic objectives.

One final point. Mr Bowen has no legal qualifications, but he will doubtless claim that he has acted on the basis of legal advice. It is therefore worth recalling that the last time he claimed to be on solid legal ground - over the government's Malaysia solution - he was humiliatingly disabused of the notion by the High Court of Australia. What he proposes is not just illegal, it is plainly illegal. And here, there is far more at stake than casual observers may think.

The foundations of the Australian political system are constitutionalism and the rule of law. If these are compromised, we all suffer. Governments that act illegally in dealing with refugees are not just a threat to refugees. In a society that should be based on the rule of law, they are a threat to us all.

Professor William Maley is director of the Asia-Pacific College of Diplomacy at the Australian National University.

Professor Penelope Mathew is Freilich Foundation Professor at the Australian National University and author of Reworking the Relationship between Asylum and Employment (2012).

Bowen's Asylum Line Is Illegal

the threshhold of another trembling world .....

from politicoz …I am standing on the threshold of another trembling world. May God have mercy on my soul.’ With that diary entry in 1981, IRA prisoner Bobby Sands launched his famous hunger strike in a British prison. But the words might equally have come from Omid Sorousheh, the Iranian asylum seeker, near death in Nauru after 45 days without food.”