Human rights commissioner CHRIS SIDOTI explains the significance of the International Day in Support of Victims of Torture and its implications for Australia.

International days seem to come and go with great, at times monotonous, regularity. We can forget the significance of the events or issues they highlight. Without exception they do highlight significant events and issues, matters that require attention, both commemoration and action.

Commemoration and action are the two necessary responses to international days. We should stop to recall those who have experienced the human rights violation, both those who have not survived and those who have. We know the importance of acknowledgment in healing the traumas of the past. But commemorating leaves our task only half done. We must also seize the opportunities presented by these days to effect change that ensures that the evil we recall is never repeated.

These two responses should mark our observance of the International Day in Support of Victims of Torture.

Every person has a right to be free from torture and other forms of cruel, inhuman or degrading treatment or punishment. This right is one of the most fundamental human rights – so fundamental that it can never be restricted or suspended. It has been recognised at least since the adoption of the foundational human rights instrument, the Universal Declaration of Human Rights, in 1948. It is incorporated in the International Covenant on Civil and Political Rights (article 7). It is so important that it is the subject of an entire human rights treaty, the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.

Human rights law also recognises the right of those who suffer gross human rights violations, including torture, to treatment and other measures to alleviate the effects of the violation. The responsibility the international community has then is not only to prevent torture, but also to assist those who survive torture.

These human rights provisions have direct relevance to Australia. Compared with many countries we do not have a widespread practice of torture in Australia. Over the decades Royal Commissions and other inquiries have exposed many examples of gross mistreatment of criminal suspects and prisoners but thankfully these practices are largely things of the past. However, we should not and cannot say that torture is not an issue for us, that it is only other countries’ problem. On the contrary, it’s our problem too. This is illustrated by the plight of asylum seekers detained for indeterminate periods in Australia.

Australia has long been a desirable destination for those suffering oppression in their countries of origin. Since 1945 Australia has been an outstanding world leader in its generosity towards refugees and humanitarian migrants. Our off-shore protection program is second to none. At the same time, Australian laws and practices attempt to deter people from seeking Australia’s protection other than through the orderly refugee assessment process by arriving on our shores or at our airports without the appropriate lawful documentation. These unauthorised arrivals are either ‘turned around’ at the airport or held in detention until any claim to remain in Australia is finally determined. Australia's Migration Act 1958 requires that all non-Australians who are unlawfully in Australia must be detained and that, unless they are granted permission to remain in Australia, they must be removed from Australia as soon as practicable.

At present there are around 3000 unauthorised arrivals in detention in Australia. The largest groups are from Iraq and Afghanistan, countries whose governments are responsible for such extreme human rights violations that they are subjected to diplomatic and other sanctions. More than 90% of asylum seekers from these countries are recognised under Australian and international law as genuine refugees and so are permitted to remain in this country. Yet Australian law requires that the Afghani and Iraqi asylum seekers, like all other on-shore asylum seekers, must be detained until their status is finally determined.

They are detained in one of six detention centres operated by the Department of Immigration and Multicultural Affairs. Three of the centres are located in capital cities but until September last year the great majority of boat arrivals were held in the Port Hedland centre on the west coast about 1,500 kilometres north of Perth. In the second half of last year, after relatively large numbers of new arrivals filled the existing centres to capacity and even above it, two new centres were brought on line to cater exclusively for the new boat arrivals. These are even more remote. The larger is at Woomera, a decommissioned army base in the South Australian outback, which has a current population of about 1400. The other is 20 kilometres south of Derby in the far north-west on the site of an airforce base, Curtin.

Unauthorised arrivals do not come to Australia like other immigrants. They have not had a relatively relaxed period of preparation for their departure from their home countries and a relatively easy flight to Australia. They are not greeted at the airport by family and friends who may have come before them or business sponsors or, if they have no local contacts, by immigration services and others to smooth their transition to a new home.

On the contrary these people leave their homes in haste, escaping persecution. They usually live for long periods in exile in transit camps or in appalling accommodation while seeking a way to reach a country that will give them protection. They can be required to find relatively large sums of money to pay for their passage to Australia and then, if they come by sea, they have to survive a long dangerous voyage in boats that are often unsafe and through seas that are often infested with pirates. They arrive in Australia highly traumatised by their experiences in the countries from which they fled and through which they fled and the dangers of their journeys.

What welcome do they receive from us? Immediately they are subjected to indeterminate detention. That means that neither they nor any one else, not even the department, knows how long the detention will be. It could be weeks, it is usually months, but it could be years.

One family came to Australia by boat from East Asia in November 1994 – a man and a woman and their four year old son. Two years later a second son was born. They spent five and a half years behind barbed wire in a detention centre on the edge of the desert before they were accepted as refugees by order of the High Court. They were freed last month after five and a half years behind the barbed wire fences of the Port Hedland camp. Nothing can justify detaining these children for all those years.

Coupled with the uncertainty of the result and the intense fear of the fate that is believed to await many should they be returned home, the indeterminacy of the detention is a key cause of stress, distress and, in some cases, very severe psychological damage to detainees.

One of two teenage Cambodian brothers who spent more than five years in detention at Port Hedland told the Commission:

Then there are the conditions in detention. The larger centres are located in hostile environments, with intense heat in summer and, at Woomera, bitterly cold nights in winter. They are cramped and have few facilities, especially few facilities for children. Although the external fences are not like those of maximum security prisons, at least not yet, the general supervision of the detainees is one of strict security with no opportunity for excursions for those at Derby and Woomera unless one counts transfers to the local police cell for isolation or disciplinary reason or to the local hospital. The Commission has applauded the introduction in 1998 of excursions – principally for shopping trips – for detainees at Port Hedland although with 700 or so residents now and only a small number catered for on each trip, the excursions are few and far between for each individual at present. There are also some work opportunities such as cleaning, kitchen hand and yard hand. There are, however, not enough jobs to go around. English classes are available and, for those still optimistic about their chances of staying in Australia, very popular. But boredom is a very significant problem.

Boat arrivals are initially held in ‘separation detention’ which is effective isolation both from the Australian community and from other groups in the detention centre. Separation detention has some incommunicado features such as no access to telephones, no written correspondence and no access to information about the outside world through newspapers, radio or television. They cannot even tell their families that they are alive and safe and have survived the journey here. This initial period of isolation quarantines new arrivals for reasons both of health and of the integrity of their stories. They are not told that they are entitled to make a refugee claim and they are not told they are entitled to the services of a lawyer although both these are rights they have under Australian law.

In normal circumstances this period of isolation is relatively brief. However, the relatively large numbers arriving over the last year and the very slow rate of processing their claims have meant that isolation conditions have continued for more than 6 months in many hundreds of cases. This is not to say that detainees are denied care and treatment during separation. But there is no intensive trauma counselling and possibility for independent oversight of the treatment during this period. Independent oversight is very difficult in any event, but at least at centres like Villawood in Sydney, welfare and religious groups visit the centre and detainees are advised of their right to complain to the Ombudsman. There are no such visitors and no such information available to people in separation detention.

While centres most of the time have nursing staff with mental health qualifications and some have employed psychologists and/or counsellors, most do not employ staff with expertise in torture and trauma. At Port Hedland in May 1999 there were five nurses and a counsellor. None of the five nurses had a mental health qualification. All centres except Villawood, which has a full-time GP on staff, rely on local doctors to run clinics for residents. At Woomera the Commission was told that there are qualified nurses on site 24 hours a day but a doctor has to come from a neighbouring town 80km away to operate a clinic for a couple of hours on two or three days each week. These doctors are on call at all times, of course.

There are torture and trauma experts in the Australian community and there are funded services with the specific brief of treating torture victims. They are almost entirely inaccessible to immigration detainees, however. STARTTS for very good reason does not treat detainees in the detention environment because it is not suitable for treatment. The policy of the centre managers, however, is not to make escorts available to transport residents to STARTTS’ premises. In Perth the service for torture and trauma survivors – ASETTS – comes into the centre but, like other services, it is funded to provide services exclusively to people lawfully in Australia. ASETTS is called on infrequently.

The centres housing most boat people - Port Hedland, Woomera and Curtin – are so remote that not only is there no specialist torture and trauma service within each region but few if any psychiatrists to call on.

The Commission has repeatedly advised the government that its policy of mandatory detention violates voluntarily accepted international obligations. It is disproportionate and inhumane. When it is prolonged it is a gross abuse of human rights.

The Australian Human Rights Commission, together with refugee advocates and human rights non-government organisations in Australia, has recommended a detailed alternative scheme to the Australian Government. It would involve staged releases into the community akin to releasing a suspect on bail.

One situation currently in dispute illustrates how the present system is working – how we are adding to the trauma and then avoiding responsibility for the consequences. An asylum seeker was detained for a number of years before he was recognised as a refugee and granted a protection visa. After his release from detention he committed a serious crime. The court, in convicting and sentencing him, heard expert evidence of the traumatic effects of the prolonged detention on him and the influence of that trauma on the crime. He has served his sentence, as he should have, but now the Australian Government has decided to deport him back to the country where he was persecuted – because of the crime he committed as a result of the traumatising effects of the detention the Government imposed on him.

The International Day in Support of Victims of Torture should remind us of what remains undone in responding to past and present practices of torture in the world. It should remind us of what remains undone in Australia. We can and must share the suffering of those in the many countries where torture is still a daily fact of life. Compassion and our common humanity demand that of us. We can go further and participate in one or more of the many inspiring organisations, like Amnesty International, that work to end torture. But we cannot focus our concern simply on what is happening outside Australia.

Here in this country, right now, much needs to be done to ensure that we meet our responsibilities towards victims of torture. We cannot close our eyes and minds to the suffering of detained asylum seekers, to the fears of those who face deportation by Australian authorities to countries where their lives are at risk, to those whom we have welcomed as refugees but who require access to under-funded, over-worked services like STARTTS. We cannot ignore the human rights violations of other countries but we must also ensure that our own performance is up to the mark. At present it isn’t.

This article was adapted from a speech by Chris Sidoti at the International Day in Support of Victims of Torture on June 26, 2000 at Parliament House, Sydney.