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Marianne Dickie, Director of the Migration Law Program, ANU College of Law

By Marianne Dickie

In 2002 I sat through all of the Senate Committee hearings into the infamous ''children overboard'' incident of October 6, 2001. The evidence presented to the Senate select committee into a certain maritime incident was riveting, the final report a gripping expose of the then-government's deliberate manipulation of the facts.

The children overboard incident began just before a federal election; when an Australian naval vessel, HMAS Adelaide, intercepted an unseaworthy wooden boat carrying 223 asylum seekers 100 nautical miles north of Christmas Island.


It was clear that militarising Australia's approach to asylum seekers had removed any humanity from the government's response to asylum seekers.

When Commander Banks gave evidence before the Inquiry, he was unequivocal that his orders were to deter people rather than rescue them, which would have been ''mission failure''. It was clear from his testimony that he was dismayed his crew had been used as political tools, and he was proud of them and their courage in rescuing people, after government policy had required allowing the boat to sink.

Further evidence revealed instructions from the Minister for Defence that no photos that humanised refugees were to be released to the press. What ultimately transpired was that photos of navy personnel rescuing people were transformed into photos of children thrown overboard.

Last week Michael Pezzullo, Australia's Secretary for the Department of Immigration and Border Protection, issued a press release to ''separate fact from fiction'' and defend his staff from the ''unsavoury allegations of advocates'', including the terminology to describe detention centres, and linking the department's treatment of refugees to the Nazi regime.

As the child of a parent who lived under that regime, warnings about the deliberate use of language to dehumanise refugees and asylum seekers is not misplaced. It is only when a person becomes the ''other'' and their humanity is removed that such atrocities can be carried out.

There have been numerous studies into targeted use of language by the Australian government to dehumanise asylum seekers, including ''criminalising'' them by using terms such as ''Illegal maritime arrival'' instead of the legal terms ''irregular maritime arrival'', or ''unauthorised maritime arrival''.

Mr Pezullo claims the rhetoric of human rights advocates is harmful to his staff. And it must be hurtful to people who are hardworking and dedicated public servants. But what of a secretary who has such a strong commitment to policy that he refuses to acknowledge the harm those policies cause?

His message conflates policies, law and facts. Children in detention in Australia are muddled with children in detention offshore. For example, Mr Pezullo is correct that the Australian Migration Act contains provisions for detaining children as a last resort. It is true that the government and department have substantially cleared the 2013 backlog of children stuck in Australian detention centres.

However the Commonwealth has made it clear to the High Court that it is not responsible for the detention of people on Nauru. The High Court agreed in Case M68 that the Commonwealth's power to detain asylum-seekers for the purposes of removal from Australia ceased when detainees were handed into the custody of the Nauru government. There after they were detained under the laws of Nauru. However the court also determined that the Commonwealth was authorised, through retrospective legislation, to participate in the detention of people on Nauru. It did not condone that participation because that is not the role of the court.

Nauru's policies on detention are not Australian law; the claim that ''the law of the land'' applies to detention of children in regional processing centres is not factual. Regional processing countries operate under their own law and can detain children in the manner they want to, not as a ''last resort''.

The secretary cannot have it both ways. Under Australian law, the Commonwealth, through the department, may work to ensure that children are detained as a last resort. However, when the department actively participates in maintaining offshore centres where children are detained under harmful conditions, it opens itself up for criticism.

Offshore processing has been politically successful; the government successfully linked it to the humanitarian goal of preventing innocent people drowning. This message has been dented by the findings of the Moss review into allegations of child abuse, raised by Save the Children staff; the fight by churches and advocates to allow refugees in Australia for medical treatment to stay; and the rejected offer of New Zealand to settle asylum seekers.

In fact ''under the law of the land'' when the minister and Parliament designate a regional processing country, they don't have to pay regard to the international obligations or domestic law of that country. They can, in strict accordance with Australian law, send children into harm's way.

The poor conditions facing asylum-seekers on Nauru and Manus are well documented and supported by inquiries by government and non-government organisations, parliamentary committees and ombudsman reports, and statements by the UNHCR, torture committees and special rapporteurs, along with the testimony of professionals who have worked in centres.

The High Court decision in M68 was a legal win for the government, but it has been a complicated decision to sell, not least due to the issue of abuse of children in the Australian government's offshore detention regime. The problem facing the department is not that advocates are saying outrageous things; it is that refugees are no longer faceless.

Marianne Dickie is the director of the Migration Law Program at the ANU College of Law. This article appeared in The Age and Policy

Marianne Dickie SFHEA

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