Paris Peace Accords 23 Oct. 1991

Tuesday, August 19, 2014

ABC video: Cambodia not suitable for any refugees

Cambodia not suitable for any refugees

Former Chief Justice of the Family Court and Chairman of Children's Rights International, Alastair Nicholson discusses the plan to send up to 1000 asylum seekers to Cambodia.
Source: Lateline | Duration: 13min 48sec



STEVE CANNANE, PRESENTER: Australia and Cambodia are reportedly edging closer to a deal for the South-East Asian nation to take asylum seekers from Nauru. While much of the negotiations have been in secret, it's believed that up to 1,000 people could be moved to Cambodia under the plan.

Cambodia is a signatory to the UN Refugee Convention, but our guest tonight says that is meaningless and that refugees would get more protection under a non-signatory state like Malaysia. Alastair Nicholson is the chairman of Children's Rights International and a former Chief Justice of the Family Court. He's been a frequent visitor to Cambodia over recent years and he joined me a short time ago in the studio.

Alastair Nicholson, thanks very much for joining us.

ALASTAIR NICHOLSON, CHAIRMAN, CHILDREN'S RIGHTS INTERNATIONAL: It's a pleasure, Steve.

STEVE CANNANE: Reports tonight suggest a deal is getting close to transfer around 1,000 asylum seekers on Nauru to Cambodia. You've been a frequent visitor to Cambodia in recent years. Why are you opposed to this plan?

ALASTAIR NICHOLSON: Because I think it's really quite offensive to even consider moving people to Cambodia. Cambodia is a very poor country. It's a country I like very much, I should state, but it's a country that has enormous problems. And I think the concept of Australia sending people who are in need of refuge to a country like that is almost indescribably bad as policy.

STEVE CANNANE: Are you concerned about unaccompanied minors potentially being sent to Cambodia?
ALASTAIR NICHOLSON: Oh, particularly so, but I wouldn't regard it as suitable for any refugees. But unaccompanied minors are particularly troublesome, because it is a country where there's a lot of exploitation of children. There's a huge amount of exploitation of girls in the sex industry. There's a tremendous amount of - there's a significant amount of child abduction and children removed for various purposes and moved internationally. It's a country where the law is not very effective in protecting people and particularly children. And it seems to me that it's outrageous to suggest that children should be sent there, particularly unaccompanied children.

STEVE CANNANE: But we don't know yet, do we, because the minister has not announced the deal whether unaccompanied minors may be sent there?

ALASTAIR NICHOLSON: Well we're never told anything about what the minister's doing; that's part of the problem, really. And once it's done, there's very little that can be done about it.

STEVE CANNANE: Do you think there should be some consultation with groups like the group that you're a chair of, of Children's Rights International, about whether children will be sent to Cambodia or not?

ALASTAIR NICHOLSON: Well I think there should be consultation with the Australian people about that. And if groups like ourselves are involved, that's fine. But it seems to me that the secrecy about the way this is conducted is quite frightening and in fact it's dangerous. It's dangerous to democracy, in my view. Because we're faced with a government that's behaving as if the people don't matter, it does what it thinks is right or what suits it at the time, whether it's right or not and it doesn't leave itself open to any challenge. I mean, there's been countless cases where the Government has acted to move people out of the country and that effectively removes their legal rights.

STEVE CANNANE: Cambodia is a signatory to the UN Refugee Convention. What makes you think that asylum seekers sent there won't be given protection under that convention?

ALASTAIR NICHOLSON: I don't believe that asylum seekers or anyone else gets very much protection from the law in Cambodia. I think it's at a stage of its transition - after all, let's face it: it went through one of the most horrific genocides only as late as the 1970s. Most of the experienced people at that time were killed. It's had to pull itself up by its bootstraps, it's got economic problems, it's one of the poorest countries you would find in South-East Asia. You only have to visit it to see the degree of poverty and the level of it. It's just the worst sort of place that for the point of view of sending asylum seekers, and particularly asylum seekers who don't have any cultural or other ties to the country. And it has a deep culture of its own.
STEVE CANNANE: Well the Coalition opposed Labor's Malaysia people swap deal in opposition because they were not signatories to the UN Convention.

ALASTAIR NICHOLSON: Yes.

STEVE CANNANE: Scott Morrison at the time said he was not satisfied the human rights of asylum seekers would be adequately protected. Do you think the human rights of asylum seekers would be better protected under Cambodia than Malaysia?

ALASTAIR NICHOLSON: No, in fact I think much better in Malaysia. Because it's got a much more established legal system and a much better system generally for dealing with these matters and a much more stable government.

STEVE CANNANE: But Malaysia's not a signatory to the UN Convention.

ALASTAIR NICHOLSON: No. Well that is interesting in its way because it shows that being a signatory to a convention is really a formality; it's what you do afterwards that's important. And in fact, there can be plenty of countries who aren't signatories who'll look after asylum seekers better than those who are - or some who are.

STEVE CANNANE: So given that interpretation from you, what do you make of the Coalition being unwilling to accept Malaysia in opposition, but willing, it seems, to accept Cambodia in government?

ALASTAIR NICHOLSON: I think it's entirely cynical and quite improper.

STEVE CANNANE: Both the Government and the Opposition are committed to policies that punish asylum seekers who arrive in Australia by boat And it's part of a deterrent to stop boats arriving and to stop deaths at sea. What is the alternative here, because when Labor relaxed its policy back in 2008, after that point, close to 900 asylum seekers perished at sea?

ALASTAIR NICHOLSON: I think there's got to be steps taken to avoid people perishing at sea. But you don't, I think - in terms of propriety and morality, you don't adopt the policy of persecuting those who have taken that course and particularly persecuting families and children And treating them cruelly and extremely cruelly as a means of deterrent. That's not a proper - that's not proper behaviour for a civilised nation. This country is supposed to be a civilised country that follows the United Nations Convention on the Rights of the Child, which it's breaching constantly in the course of this process.

STEVE CANNANE: But even - sorry to interrupt there, but even Paris Aristotle, long-term refugee advocate, a man who's worked with refugees for 20 years, advised the previous Labor government that there must be harsh deterrents in place to stop people drowning at sea.

ALASTAIR NICHOLSON: Well he was one of a group who did, yes, and I respect Paris Aristotle, but of course, that came as part of a very different package to the one that's used now. It came with the - a commitment to a very substantial increase in our refugee intake of - in these circumstances, which would've heavily cut into the amount of refugees, had it been put in place at that time, so it would've removed a lot of the reason for setting forth in these boats. So I think that that was entirely hypocritical of the Government, to take - the present government, to take the approach it did in opposition, and I think what it's doing now is much worse, because it's not putting into place the safeguards that the - Paris Aristotle's committee and others involved suggested. In fact it's made things much worse in terms of refugee intake than it was then. So it's almost inviting people to take desperate measures, when in fact the proper course would've been - and I was not a fan of the Malaysian Solution, because I don't like the deterrent part of that either. It seemed to me that the way to go was to negotiate with both Malaysia and Indonesia and set up methods of processing potential refugees in both countries with their agreement, and also to try and set up regional - a regional arrangement where other countries that were capable of accepting refugees could join. But we haven't done any of those things. We're just behaving, I think, as a rogue nation. And in fact, I think our international reputation has been seriously damaged by what's gone on and what is going on.

STEVE CANNANE: How will refugees or asylum seekers transferred to Cambodia, once this deal is signed, assuming it gets signed, how might they be treated by the local Cambodians?

ALASTAIR NICHOLSON: Well I would think they'd be treated with considerable suspicion. Cambodians are very nice people, they're a very - in many ways a very warm people, but I don't think they like things being foisted on them, either by their government or from elsewhere. And they would see this as an attempt by Australia to get rid of a problem that's Australia's problem and pass it over to them. And it seems to me that also, the fact that these people are so different and the fact that Khmer people are not used to them, will make their position much more worrying. I mean, there's been reports in the Cambodian press, I think as late as today or yesterday, about the difficulties of people who are refugees in Cambodia or have been refugees in the past, to the point where there's hardly any left, and they have managed, one way or another, to get to other places. But of course, this is a country that has a very high disease rate. Going back to children again, it's a country that - its schools are very average in terms of their performance. It's a country that needs an enormous amount of help. It shouldn't be asked to take other people who need an enormous amount of help. What we should be doing - and I think we're treating is as a client state rather than as a fellow South-East Asian country in behaving as we are.

STEVE CANNANE: As the former Chief Justice of the Family Court, you're more than familiar with the obligations under law of those who are considered guardians over children.

ALASTAIR NICHOLSON: Yes.

STEVE CANNANE: Can you tell us what the Australian law says about the best interest determination when it comes to guardianship?

ALASTAIR NICHOLSON: Well the best interest determination is simple: that any decision should be taken in the best interests of the child concerned. And a guardian really stands as if they were the parent of the child. And this legislation that the minister is - that gives the minister this duty actually dates back to the Second World War when refugee children were arriving without proper guardian protection. And it was introduced for a very sensible and humanitarian reason. But what's happened is it's now being disused because it's not possible, it seems to me, for a minister who's got those duties to at the same time even contemplate sending children to places like Nauru and he can't even be giving any thought to their best interests in doing so.

STEVE CANNANE: So we should just clarify that, that Scott Morrison, as Minister for Immigration, is the guardian of all unaccompanied minors in Immigration detention. Do you believe that he is meeting that best interest determination?

ALASTAIR NICHOLSON: Well once they come to Australia, he becomes the guardian. If he can get rid of them out of Australia, he ceases to have that obligation. And that is the paradox of his position. Because if they've come to Australia, he becomes guardian and then he manages to get out of all his obligations by kicking them out of Australia. Now, no guardian properly - behaving properly could do that. And that's why it's quite wrong for this legislation to remain as it is. It's quite wrong for the children not to have an independent statutory guardian who could, if necessary, challenge the decisions of the minister in the courts. But here we've got the minister not likely to challenge his own decisions and therefore we have - it's a farce. It doesn't do him any credit, it doesn't do the Australian Government any credit.

STEVE CANNANE: So you have the minister who is the guardian who is responsible for the best interests of children, but also the minister whose policy puts them into Immigration detention centre. Is that a conflict of interest, and if so, why has that not been subject to legal challenge?

ALASTAIR NICHOLSON: Well it's a clear conflict of interest. The legislation has been carefully drafted to make any legal challenge more and more difficult. But of course, the real problem is once the minister gets rid of the child out of the country, then there's no basis to challenge his role as guardian because he's acted as a minister. There's a sort of a peculiar and I think disgraceful argument which suggests that because he's got a duty as Minister for Immigration, that overrides his duty as guardian for children. No other country behaves in this way towards children and no other country would accept it, in my view.

STEVE CANNANE: But there are children in Immigration detention at Christmas Island, which is part of Australia ...

ALASTAIR NICHOLSON: Yes.

STEVE CANNANE: ... and that was certainly subject to the Human Rights Commission inquiry recently, which showed that some of those children were not getting adequate education, health care and were prone to psychological damage. Why is that not grounds for a challenge?

ALASTAIR NICHOLSON: I think it is grounds for a challenge. But there again, it's a difficult challenge to mount. The children are not and their parents are not available. Lawyers are not made available to them. It's very awkward for lawyers to get instructions. Lawyers are not exactly welcome at Christmas Island. Indeed, no-one else is very much. I doubt if the - if Professor Triggs was all that welcome by the authorities, but she's done a great job in terms of her inquiries and I think it's shown up a disgraceful situation. I think one of the things - the very interesting things that's been said this week was by Janet Holmes a Court, who said in a public speech that this policy is inevitably going to lead to a long and expensive Royal commission in the future where these policies and the people who are responsible for it will be hauled before the commission, huge amounts will be paid in damages and the Prime Minister will be making a grovelling apology for the disgraceful behaviour of this government. It seems to me that that's a very valid point, and coming from someone like her, a very powerful person to - and a person with a great reputation in this area, I'm entirely with her on that. I think that this is something that this government's going to regret.

STEVE CANNANE: Alastair Nicholson, we've run out of time. Thanks very much for joining us.

ALASTAIR NICHOLSON: It's a pleasure.


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