Tim Blair


New Criterion



Friday, May 14, 2004

There's the same heat of political emotion around the issue of detaining children of illegal entrants as there was over the separation of Aboriginal and part-Aboriginal children from their mothers.

There is the same neglect of the consequences of basing a policy purely on sentiment (or 'compassion' if you're that way inclined).

In the case of Ronald Wilson's Bringing them home report the result was to provide endorsement to claims of maltreatment that turned out, after competent examination, to have no foundation at all. I refer, of course, to the failed attempts by Cubillo and Gunner in the High Court to claim public compensation for their childhood experiences.

So it is worth looking at the procedures adopted by the Human Rights and Equal Opportunity Commission in their Enquiry (or 'Inquiry') into the treatment of detainee children, and asking ourselves how safe the Commission's conclusions are.

the Inquiry issued confidentiality directions to preserve the anonymity of all refugees and asylum seekers giving evidence, producing information or documents, and making submissions to the Inquiry. The Inquiry also granted anonymity to any other person who requested that their contribution be confidential, in order to encourage people to give evidence

While the confidentiality orders were necessary and desirable in themselves, they have, nevertheless, had an impact on the extent to which the Inquiry is able to transparently reveal the factual foundations underpinning some of its conclusions.

Who, apart from refugees might have been covered by the cloak of anonymity?

For example, the New South Wales Council of Social Services gave evidence that Migrant Resource Centres had expressed a reluctance to speak publicly about issues affecting temporary visa holders out of fear that if they did so they might lose their funding from the Department.

Strange, that. Would the Department have been surprised to find the 'Resource Centres' expressing to the enquiry views they have already expressed many times in public?

As a result, the Inquiry heard 50 persons in 24 confidential sessions, including former detainees, former detention centre staff and non-government organisations.

So the enquiry hears stories from every refugee and activist group who wants to be heard. It then hears the views of the Department and the Centre operators. The Department and operators, we must assume, are not permitted to know the people from whom complaints have come, unless the Commission wishes.

A significant challenge for the Inquiry during its detention centre visits was to appropriately balance the information provided by the Department or ACM against that provided by detainees and other observers. There was often considerable discrepancy in the various versions of events presented to the Inquiry. The Inquiry carefully assessed all of the evidence before attempting to resolve such discrepancies.

How can they have identified 'discrepancies' between versions of stories when one of the parties involved did not know the identities of those providing the initial version?

The voice of the children themselves,former detainees, those who volunteered to speak, or were 'volunteered' by parents and activists, were heard through 'focus groups'. These
were generally organised with the assistance of State-based torture and trauma agencies. In most focus groups, either a representative from the relevant agency or a psychologist was present to offer support to the children.

And if that didn't ensure the proceedings were adequately led,
A generic list of questions was used as a guide for all the focus groups that were conducted. The topics covered included education, recreation, health care, safety, guardianship for unaccompanied children and the general experience during their time in detention.
The actual questions used are not reported.

The Enquiry itself acknowledges that the quality of much of the evidence it was hearing, and using, was so poor that it could not be published:
the substance of many of the allegations could not be disclosed to the Department or ACM with sufficient detail to allow them to properly respond to that evidence, as to do so would have identified the person providing that information. In those circumstances, the Inquiry was not able to ensure that procedural fairness was afforded to the Department and ACM in relation to some allegations and it was therefore inappropriate to reproduce them.

The evidence of the Department and the operators, however, had no such privilege. The Enquiry decided what would go on the record, and their evidence was probed with the assistance of barristers rather than barrackers (2.1.6b).

Despite this procedural shambles, all of the evidence produced was used and formed the basis on which the Commission could be "satisfied" with the truth of its conclusions.

While the Inquiry is not bound by the rules of evidence, it has been conscious of the need to carefully scrutinise the evidence before it.(19) The Inquiry has only made findings where it is reasonably satisfied, on the balance of probabilities, of the facts relating to the subject of those findings. It is well established that factors such as the seriousness of allegations raised, the inherent unlikelihood of a particular event and the seriousness of consequences which flow from a finding must be taken into account in reaching a state of 'reasonable satisfaction'. The Inquiry has considered those factors and has been mindful of the source, quality and probative value of the evidence before it when making its findings.

HREOC seems to think that simply by acknowledging its evidence is shonky it should win our trust for the way it has used it:

Some of the events described by children contained limited detail or were based on hearsay or general impressions, rather than direct observations. The stories and experiences shared by children were not given under oath and were not subjected to cross-examination. The focus group setting also raised the possibility that the evidence of the children may have been the result of peer distortion.

This did not mean, however, that such evidence was of no assistance to the Inquiry. The words of children remain important in giving children's impressions of the detention experience. Furthermore, consistency between the evidence given by children in different fora, and corroboration from other sources, enhanced the reliability and probative value of that evidence. The Inquiry has taken all these factors into account in determining the weight given to this evidence when reaching its findings.

Is this all starting to sound like that other favourite exercise in manipulation through group-think, the 'deliberative poll'. Too right it is.

Can we expect HREOC, on such a shaky foundation, to come to useful conclusions on the important issues raised by detention of illegal arrivals and their children?

Questions like;

Can you abandon detention without producing the kind of failed immigration systems that are now general to most of the prosperous and liberal countries?

Can you detain adults and release children without offending more seriously against the 'human rights' of both parties?

How can you run detention centres as 'humanely'as a bunch of human rights activists would want without making them attractive destinations in themselves?

Instead HREOC does three things.

It runs its chaotic evidence past the measure of the Convention on the Rights of the Child, and finds the detention system wanting. On the same basis your household and mine would also be judged unsuitable for the accommodation of children.

It recommends, in effect, that all entrant families with children by let out, and

It recommends that the UN principles be embodied in legislation, so that judges may join HREOC Commissioners in demonstrating how morally superior they are to the executive arm of government.

I think we could only expect what we got. A testament to the moral vanity of the human rights ideologues at HREOC, and a further proof of the error of treating such people as if they are fit to be part of providing good government.

In ten years time, when the wages of other countries' bad policies have been paid in full, will we find HREOC reflecting with the same transparency, and remorselessness, on their proceedings as Sir Ronald Wilson:
The inquiry heard "stories" rather than testimony, listened to "storytellers" rather than witnesses. Should the inquiry have heard from the heads of the children's institutions accused of abuse? Perhaps, but there wasn't enough money to "headhunt" them. Should the inquiry have compared the number of forced removals to voluntary removals? No, there wasn't enough time and, anyway, voluntary removals were not written into the terms of reference. What about cross-examining the storytellers? They were in such distress – "You couldn't". "I think the criticisms are totally flawed," Wilson says without bitterness. "I maintain that the methodology was as thorough as the time and the resources permitted and I don't think it's fair to criticise the report given those constraints."

You bet. HREOC leads its report with this quote:
We would like to urge you to educate the public to pass on the report to newspapers and the other electronic media so that the public can learn what is going on in the immigration detention camp, and I know that public opinion is shifting when they become aware of what is happening.

HREOC has already produced a logo - it is really an icon - for its report, showing a child in a prison in the shape of Australia. To re-inforce its political role it has produced "Education Resources for use in Australian schools".

And it's all done with your money.