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
Topics:
refugees,
government-and-politics,
australia
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.
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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