Fear and Hypocrisy in Australia: Immigration Detention and Free Speech

It was not long ago that the Abbott government vowed to champion free speech, pledging to amend Section 18C of the Racial Discrimination Act, a section of the act that made almost completely useless speech illegal. This commitment was re-affirmed a number of times, including again in early 2015 after the Charlie Hebdo massacre. It seems however the government’s commitment to free speech is largely selective, actively working to keep the marginalised and powerless out of the debate, happy to gag and attack those who dissent.

The recently introduced Border Force Act has raised the ire of a number of individuals and professional bodies, gaining significant media attention with a possible two year prison sentence for speaking about the conditions in immigration detention. Much has been said about how this will impact on the ability of health professionals to report abuse and advocate for patients, however less has been said about how this will only further silence those who are genuinely voiceless.

Silencing the Silenced

The stories we hear from within detention centres are often told through third parties, with many former employees feeling compelled to speak on behalf of those who could not. For all the noise surrounding immigration detention policies, how many of those voices are refugees or asylum seekers?
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Hannah Arendt explored this powerlessness in The Origins of Totalitarianism, she argued that even though human rights are proclaimed to be universal, asylum seekers and stateless persons were left with nothing to protect their rights, effectively in limbo, no longer a member of a community where their rights could be enforced. This precarious situation has often been referred to as “the right to have rights”.

“… but it turned out that the moment human beings lacked their own government and had to fall back upon their minimum rights, no authority was left to protect them and no institution was willing to guarantee them.”

She emphasised how this stripped away the right to make oneself heard and opinions matter.

“The fundamental deprivation of human rights is manifested first and above all in the deprivation of a place in the world which makes opinions significant and actions effective… They are deprived, not of the right to freedom, but of the right to action; not of the right to think whatever they please, but of the right to have an opinion”

Managing and processing the powerless

Immigration detention in Australia compounds this powerlessness by further limiting asylum seekers ability to control their own lives and speak candidly about their circumstances. Andre Dao reminds us that this powerlessness can manifest in asylum seekers gambling on their bodies, a symbolic way to regain some control, to be heard. As Dao puts it “you are no longer a human being with free will. Instead, you’re a problem to be managed, an object to be processed.” Few better statements sum this up than these words recalled by an ex-detainee on a hunger strike who was being spoken to by a department employee.

“You understand that your life is in our hands. Your death is also in our hands because we won’t let you die.”

Although a number of asylum seekers have spoken out over the years, their voices rarely make it to the mainstream. Furthermore there remains the expectation of silence both during and after detention, it is not until permanent residency has been gained and families reunited that many feel safe to speak about their experiences.

Silenced subjects and misinformation

Maintaining this silence is key to maintaining our current approach to asylum seekers. The system has been built around rhetoric and misinformation, from children overboard to the present day. Most people can bark back three word slogans, but fewer could tell you what percentage of the world’s asylum seekers arrive on our shores or begin to explain the trauma and torture many have faced before finding safety.

The voices we most need in our debates around asylum seeker policy in Australia are absent, not only that, they are actively excluded. So as well as threatening professionals with gaol time, the Border Force Act only further ensures that that we never get to hear these stories, it ensures that we don’t know who we are locking up or for what reason.

It’s not obvious how the Border Force Act serves to “stop the boats” or “smash the people smugglers business model”, taking into account the boats stopped a long time ago. In attempting to justify this legislation however, the rhetoric has boiled down to a very familiar means justifying the ends rationale, something we should all be careful of and something where it seems appropriate to leave the last words with Hannah Arendt.

“The crimes against human rights, which have become a speciality of totalitarian regimes, can always be justified by the pretext that right is equivalent to being good or useful for the whole in distinction to its parts.”

Ryan Essex

PhD Candidate, The University of Sydney.

Policing parenting: is the Family Court going to punish you for having a drink?

Sascha Callaghan, University of Sydney

News outlets have pounced on a Family Court “order” for parents of a six-year-old boy to not smoke around the child and to limit their alcohol consumption while caring for him. Readers commented that the case represents an unacceptable “intervention by the courts into the personal space of the individual”, and that it was an attempt at “social engineering”.

The idea of a court intervening in family life to prevent what might seem like fairly ordinary activities, such as occasional tobacco smoking or having a glass of wine or two, might seem like evidence of an overreaching “nanny state”. And perhaps it would be if that’s actually what happened – but it didn’t.

It is true, though, that the “right to parent” according to one’s own values and proclivities isn’t actually unfettered. The state can and will intervene in family life in various circumstances.

A definite jurisdiction

State Supreme Courts have powers to make orders under their protective jurisdiction to allow important medical treatment to go ahead if parents won’t consent, for instance. The NSW Supreme Court did exactly that in a 2013 case where a Jehovah’s Witness parent refused a life-saving blood transfusion on behalf of their child.

State agencies can also intercede in family life under child protection laws when a child is at risk of significant harm. This kind of coercive intervention is reserved for serious cases where the child’s basic needs are not being met. And it generally requires much more than a parent who smokes or drinks too much from time to time to trigger intervention.

But child protection laws have also been invoked when parents of a severely overweight boy didn’t go to hospital for treatment, or appropriately manage his diet (the ten-year-old boy later died from heart failure associated with obesity). And when a father, who believed HIV was an invention of pharmaceutical companies, refused to give his child the antiretroviral medication prescribed by doctors.

Not everyone will agree on the limits drawn around decisions parents are allowed to make. But most will agree that the public interest in protecting children means limits must be placed somewhere. And “risk of significant harm” doesn’t seem like a bad starting point.

In addition to child protection laws, the Family Court will intervene in the parenting of children when asked to do so by parents who cannot agree on the relevant decisions themselves. In settling these disputes, the guiding principle is that the court will act to protect the “best interests of children”.

But how do courts interpret this rather wide concept, and where do the limits of personal parental prerogatives lie when a court tries to strike a balance between the strongly held views of parents who bitterly disagree?

The particular case

In the case that has provoked so much comment, the Family Court decided that despite the fact the child’s mother was his primary carer and was “utterly dedicated to the child’s needs”, it would be in his best interests to live with his father.

The Family Court will make parenting decisions when asked to do so by parents who can’t agree on the decisions themselves.
from shutterstock.com

The orders were influenced by the mother’s preference for the advice of her naturopath over an accredited medical practitioner, which the court found was to the detriment of the child; her “conscientious objection to vaccination”; and her “clear and unwavering belief that the child obtains nothing from an ongoing relationship with his father”.

The father, on the other hand, appeared to the court to have a better view of the child’s medical needs and was “the parent more likely to support [the child] in his relationship with his mother”.

Among the 45 orders the court made were two proposed by the mother – that both parents be “restrained from smoking in the presence of the child” and that they will refrain from consuming alcohol “to excess”, or at least to the point of being unable to drive, while the child is in their care. The father agreed to these, in a suite of orders in which his interests mostly prevailed.

These are known as “consent orders” – and they’re quite different to coercive interventions under child protection laws. In fact, health-related agreements are becoming a common feature of consent orders in a culture that increasingly values health and wellness, and in which many parents are likely to want assurances from the other that their child will be in a “healthy” environment when not in their care.

These kinds of concessions are negotiated in families every day of the week – “take Harry to the physio”, or “please can we not have pizza again because last time Sam got sick”. In this sense, consent orders reflect familiar family compromises and the parents’ own values – rather than an out-of-control nanny state imposing orders on passive parents.

It’s just that these fairly unremarkable agreements have been written down and stamped by the court because goodwill has evaporated and parents no longer trust each other to honour everyday deals.

The long arm of the law?

Indeed, the most interesting aspect of this case is perhaps not the agreement by both parents not to smoke in front of their child or get so drunk that they can’t drive, but that in determining a child’s best interests, the overriding priority for the court was securing “the benefit to the child of having a meaningful relationship with both of the child’s parents”.

To many people the idea that a father who had never been in a stable relationship with the mother and had little previous involvement with him should be entitled to a relationship with the child to the extent that his mother’s role as primary carer was lost, would seem ludicrous. But the Family Law Act takes the position that a relationship with both parents will, in the absence of risk of harm to the child, be considered paramount.

With regard to smoking and drinking, there was agreement between the parents with the imprimatur of the court – rather than an order being “imposed”. The most serious issue that remained in dispute was the child’s right to a relationship with both his parents – and this was where the court really did impose the values of the Family Law Act.

Otherwise, unilateral state intervention is reserved for much more serious cases where significant harm is in the offing. So, you can still have a smoko while your child is at home without fear of being touched by the long arm of the law.

The Conversation

Sascha Callaghan is Lecturer in Health Law & Bioethics at University of Sydney.

This article was originally published on The Conversation.
Read the original article.

Politics, Power and Children in Detention

Politics are all around us, playing out in national, local and even domestic governance. Politics have to do with the polis, the people who make up groups of any kind. In that sense, politics are unavoidable. Our relationships with others always contain a political element. Party politics are a subset of politics in its broad sense. Party politics are partisan, ideologically informed patterns of thought and action that suggest how politics should translate into governance in a way that is consistent with a set of underlying values. They condense around different beliefs in power relationships between governors and governed, in the rights and statuses of the different groups that make up the polis, in the control and dissemination of information, and in the responsibilities of government and individuals towards one another.

Accommodation in the Nauru offshore processing facility.

Accommodation in the Nauru offshore processing facility.

Party politics is made up of what Gallie termed ‘essentially contested concepts’. No one, for example, disputes the existence of the multitudes of people fleeing poverty, instability, persecution and fear. Nor do they dispute the reality of the moral and practical problems they pose for the countries to which they try to flee. But the agreements end at about this point. Some interpret this mass movement as a challenge to their sense of humanity and to their obligations to observe human rights. Others, while acknowledging the human problems of displacement, feel that local territorial rights and laws take precedence, and that the welfare of the host countries is paramount. Turning unregistered and unscreened refugees (“illegals”) away is, in that ideology, a better and safer and fairer alternative to dealing with them by taking them in.

Australia has been foremost among western countries in ‘turning back the boats’ and in making off-shore detention inevitable for those who do manage the journey, pointing to the success of that policy in preventing drownings and restricting the numbers of refugees who reach Australian territorial waters. By contrast, Italy has done its best to rescue enormous numbers of people fleeing North Africa, and to find some kind of accommodation for them. Neither side can be said to have found ‘the’ answer to a massive humanitarian crisis. Italy’s resources have been overstretched. The Australian mode of management appears to contravene United Nations conventions on refugees.

Party-Politics & the Report into Children in Detention

Into the middle of this dilemma, which is partly political in the broad sense and strongly party political in a narrower sense, came the Report into Children in Detention, chaired by the Australian Human Rights Commissioner, Gillian Triggs. The Report found more than 200 children to be in off-shore or Australian detention under conditions that harm their development and infringe the UN statements on human rights. The Commission’s findings seem to be supported by doctors who have visited the detention centres, and by various leaks from people who have worked in Nauru and Christmas Island. The Australian Government’s response has been to deny the accuracy of the report, to attack Triggs’s integrity, to accuse her of partisan reporting, and to call for her resignation.

The report calls for the early release of children from detention, and for proper acknowledgement of their rights, particularly their rights to grow into reasonable adulthood, equipped with education and some sense of identity and stability. It makes many comments about the suffering of adults, but its focus is on children and the overwhelming impact that violence, insecurity, uncertainty, heat, lack of space and lack of hygiene will have on their lives.

The report does not deal so much with the original party-political decision to turn back the boats. It does take issue with both political parties’ decisions to enforce mandatory detention, and it does so predominantly in the context of the impact of that policy on children.

Triggs & the Ruin of Party-Politics

It makes disturbing reading. Presumably that is why it has provoked such extreme responses from both sides of party politics.

On the right, party politicians and right-wing newspapers have belittled Triggs and accused her of bias against them, of dishonesty and inaccuracy. They question the timing of the inquiry, which began soon after the election of the LNP in 2013. They have recommended imprisonment for anyone who leaks relevant information to the media, such as those who supplied some of the information that Triggs relied upon.

On the left (and in the centre), politicians, commentators and media have called for the report to be taken seriously, for secrecy to be lifted and for legislation to protect refugee children. For these people, the timing of the report is irrelevant because its contents demand some major response. At the same time, those who oppose the present government’s theories and practices have used the report as a lever to destabilise the government’s refugee policies more generally, pointing out that what happens to the children is a consequence of what happens to “illegal” refugees at large.

All these conflicts of interpretation and accusations of dishonesty signal the presence of an essentially contested concept. The big concerns for us are:

  1. That politics in the broad sense have been confused with a much narrower party politics;
  2. That the present government’s refusal to allow access to the detention facilities effectively disables any public debate;
  3. That the punishments threatened against anyone who reveals ‘classified’ information about the centres are Draconian;
  4. That the government’s vigorous attacks on the report and its author suggest that they had a pre-formed notion of what the report should say.

Essentially contested concepts make up a significant part of our ‘political’ lives – they always have and they always will. What is important is the way in which these contests are handled. A totalitarian government will settle them one way; a liberal democracy will try to find another.

Ignoring the Real Issue

What is at stake in this confrontation is not Gillian Triggs’s credibility, but the public perception of its preferred mode of government. Apparently, more than 50% of the population approve the present government’s approach to refugees or believe that it should be more extreme. We can only hope that they understand that Triggs, in her appointed role as Human Rights Commissioner, was writing about children in detention, and that government decisions to discredit her well-supported findings by political force majeur raise serious concerns about the reality of our much vaunted participatory democracy.

Emeritus Professor Miles Little, University of Sydney

Miles was the Founding Director of the Centre for Values, Ethics and the Law in Medicine (1996-2003). He was also the Foundation Professor of Surgery at Westmead Hospital in 1978 and a Co-Founder of the World Association of Hepatic, Pancreatic and Biliary Surgeons (1987). Since 1996, Miles is an Emeritus Professor of Surgery at the Sydney Medical School. At the VELiM, he continues to teach and is directing the Cancer Survivorship Project. Miles interests include Medical Sociology and Biomedical Ethics. He is also a published poet.

Refusing medical treatment in pregnancy: what does the law say?

The  recent report of a pregnant woman who refused life-saving cancer treatment whilst heavily pregnant has  reignited debate within the community about how we should resolve conflicts between mothers rights and those of her unborn child. The woman had refused  blood products that were required to give her  lifesaving chemotherapy because of her Jehovah’s Witness faith, and she and her fetus died in hospital when she was 28 weeks pregnant.

From a legal point of view this case engages two well-established principles: the first is that an adult who has mental capacity, may refuse medical treatment for any reason whatsoever, even if the consequences are that she will die. The courts are clear that all medical treatment is optional, and when it comes to decisions about our own life and health,  our wishes will be respected.  The second is that a fetus is not a legal person with rights of its own, until it is born.  This  is not to say that the law does not protect fetuses at all.  Abortion is still a criminal offence in New South Wales and it is grievous bodily harm to destroy the fetus of a pregnant woman whether or not the woman herself is injured –  punishable by up to 20 years in jail.  Children can also sue people who have caused them injury in the womb after they are born.  However it does mean that whilst a fetus is still in the belly of its mother, the mother’s right to make decisions about her own body will prevail.

In the wake of the tragedy of the preventable death of a young woman and her unborn child, some have suggested that we would be better off as a community if the law required  pregnant women to be forced to have medical treatment in some circumstances. Some might think that women  should be required to make particular life choices more generally, wherever fetal health is involved.  But all of these suggestions are bound for unintended consequences – and they all deserve careful thought.

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