Cambodians in not-Australia
by Bernard Cohen
(first published in Westerly, December 1993, as "Aliens")
Although Federal Court judge Justice Wilcox has told me I have the power to intervene in the cases of 48 Cambodians, I have announced I don't propose to consider whether or not to use that discretion.
I have used these words firmly and consistently because to use other words could trigger off a lengthy legal challenge for yet another review of these cases.
Senator Nick Bolkus, Minister for Immigration and Ethnic Affairs (1)
There are foreign people in Australia thinking foreign thoughts. Some are locked up in Villawood, at the detention centre. Some are confined at Port Hedland.(2) Some are restrained in Perth. In those places, you see, they are not really in Australia.(3) They are in the empty, ungoverned space of their bodies, I guess, confined within not-Australia. Some people in Villawood have seen much of not-Australia -- sites in Broome, Darwin, Melbourne as well as Sydney -- flying from no place to no place in Utopian airliners.(4)
People are employed by the Government of Australia to decide that many of these people cannot stay in Australia, not even in the little not-really Australia at Villawood.(5) The foreign people have to go back to foreign lands. They are not appropriate people to transcend their alienness.
Some aliens complained to an Australian court that the people employed by the government had acted unlawfully, or that they had made a mistake: the government employees had made the wrong decision and had made their decision wrongly. The judge said the government employees were allowed to decide as they had. The aliens were permitted to be decided about in the manner the departmental officers employed. Nonetheless, said the judge, Senator Bolkus could choose to allow the aliens to remain. He had the power of choice. He was a man with discretion. The minister could reconsider the decision. He could make a whole new decision.
But Senator Bolkus said he did not propose to consider whether to exercise his discretion -- he wouldn't even think about making another decision -- because any decision might be reviewed, possibly even the decision not to make one. The courts might consider whether such a consideration of the minister's discretion was the right consideration, whether it was properly thought. The minister didn't want to be considered responsible for making a decision. Is it a decision, not to consider? Probably not, the minister has it on legal advice. It's hard for the minister, too, agonising not to make a decision.(6) Sending the aliens away without troubling the courts again. The aliens who arrive by boat and leave by aeroplane. The minister feels so sorry for the aliens and yet is unable to help them.(7) Meanwhile, they must not be released into the community, lest they inadvertently accrue rights.
Some aliens have been in not-Australia for three and a half years. Some aliens produced a baby in Port Hedland Reception and Processing Centre. Twenty-nine babies have been born in not-Australia. Almost enough to set up a country.(8) Recently a court said the maximum period the minister may detain applicants is 273 days. Coincidentally, this is also the human gestation period.
The minister is concerned that it is unfair to help some aliens and not others. He is concerned that some aliens try to jump queues; perhaps they don't even realise there is an orderly queue. Still, some aliens may qualify not to be aliens. When this happens the minister is obliged to help them. The minister's department has strict criteria. The system is open to scrutiny. The Villawood Detention Centre is secured behind two four-metre fences topped with barbed wire.(9)
The Joint Standing Committee
The scene: a room on level 9 of New South Wales Parliament House, Macquarie St Sydney 2000. It is 23 September 1993. Two nuns, Sisters Evens and Roberts, members of the Mercy Refugee Service Committee are being questioned by two senators and an MHR.(10) The nuns are wearing habits. Senator Chamarette has asked one to describe conditions in Villawood. She expresses her concern at the extended periods of detention and at the relatively recent appearance of a high barbed fence around the compound. Ruddock MHR, who looks like a kind of thin Andrew Peacock and is (if possible) even smarmier in manner, labours through an explanation of how border-crossing, despite appearances, is a crime as theft is a crime. Senator McKiernan asks if the sisters are able to guarantee that no detainees would abscond if the high wire fence were removed. When a sister says that she couldn't, the senator sits back as if he's proved something.(11)
Outside, protestors have set up a tableau. A young thin white man is caged between wire mesh and Parliament's steel-barred fence. The protestors have been refused admission to the room where the committee is hearing, I'm not sure on whose authority or exercise of assumed authority. Senator Chamarette goes out to bring the protestors into the hearing room. Perhaps she imagines this action as another border-crossing, another transgression to provoke Ruddock's scorn.
A History of Boating
The beginnings of Australian post-Invasion history are the names of boat captains: Hartog, Dampier, Tasman, La Perouse, Cook, Phillip. My father's ancestors didn't arrive on the First Fleet with Phillip, but one (Michael Cashmore) did show up on a boat in the early 1820s and set himself up as a merchant somewhere near the Melbourne Town Hall.
In 1938, my maternal grandparents landed in Fremantle Harbour, again by boat, and as unwanted in their homeland as any convict ever had been, though they were respectable, educated, middle-class people.(12)
In 1964 I arrived in this country from the US at nine months old, pretty much by boat (13) -- I got gastro and had to fly into Melbourne from New Zealand.
Anyway, there are boat half-memories in here (indicates head) somewhere.
In liberal moments, I sometimes imagine Australia as a tree, a single lump of organic existence. This tree has roots sticking into the ground in all directions, sucking water and salts up through the tree's system of xylem. In this image of Australia as a unity, the flow of earthly nutrients into the body of the tree from these different roots represents the flow of stories, of histories, which make up the organic whole. When I get to this point in my liberal fantasy, I wonder why the stories we are told trace the flow predominantly through one root, along one xylemic path. The history of Australia includes thousands of years of Cambodian history, then a boat, and then the same weather patterns everyone in this city experiences.
On 28 November 1989, twenty-six boat people arrived in Broome on a boat called Pender Bay. Since then, boat people have travelled to Australia to seek asylum on boats called Beagle, Collie, Dalmatian, Echo, Foxtrot, George, Harry, Isabella, Jeremiah, Kelpie, Labrador, Mastiff and Norwich. Isn't that convenient? Alphabetical, just like in the legal textbooks. I write "boats called Beagle", but it was the Department of Immigration which did the naming.(14) Passengers on the 'Beagle' told me they had no name for their vessel, simply referring to it as 'the boat'.(15) I do not know the names of the boat captains, though someone pointed out the captain of 'the boat', a man in a nautical cap entertaining a group of imprisoned children.
Yugoslavia, August 1982
It's 28 August 1982. I am 18 years old. I catch a train from Venice to Athens. The scheduled length of the trip is 39 hours -- one of the world's great train journeys, no doubt. I find my seat in a six-person compartment, sharing with five strangers. Someone comes to the cabin and asks if we will carry some pairs of jeans in our rucksacks. Wary of smugglers, I refuse. The journey starts. Night falls.
On the Italian&endash;Yugoslav border the train stops, and customs officials with long sticks march down the train. An official stops in our compartment and taps each roof panel. Outside the train, there is a stack of jeans beside each carriage. An armed immigration official leans into the compartment and says, 'Passports.'
We hand them over. He stamps the other passports one by one. He looks at mine and puts it in his pocket.
'Go to the police station,' he says.
'I'm not getting off the train,' I say. 'I'm going straight through to Athens.'
'Go to the police station.'
'Okay,' I say. 'Just give me back my passport.'
'Go to the police station,' he says. The passport stays in his pocket.
I climb off the train. The border compound is floodlit. The piles of jeans are now about two metres high. There is a crowd of foreigners outside the police station. I find some English speakers, but they don't know what is going on either. I am frightened. A Ghanaian is crying. One of the English speakers tells me he has been racially abused. Every now and then someone opens the door of the police station a crack and barks a name. In my memory, the scene resembles a scene from a war movie -- the train, the floodlights, the stacks of textiles, us standing there surrounded by armed guards. It didn't feel very cinematic at the time.
'Cohen,' the voice says, eventually.
A hand reaches around the barely opened door and hands me back my passport. I now have permission to remain in Yugoslavia (on this train?) for one month.
I met up with a friend in Athens who had travelled by ferry down the Yugoslav coast.
'You should have taken the boat,' he said.
How to be Asian
What am I more than
A single gull
Between sky and earth?
Tu Fu, 9th Century
I'm standing on a beach between Taree and Newcastle. There are hundreds of transparent, crescent-shaped jellyfish. A seabird drops twenty metres into the water, folding its wings to its body at the last moment. It surfaces seconds later, shaking its feathers, swallowing something. I try to imagine how a white person might feel, standing here, how the sun feels on white skin. Different, I suppose.
I am walking south along the hard wet sand. All of a sudden, here are hundreds of tiny perfect conical shells, the pattern on each subtly distinct, but each shell barren, abandoned. Why I might ask, would creatures go to so much trouble? For what purpose (É natural? É aesthetic? É) only to disappear and die?
Dozens of footprints ruin the sand, One set is almost identical to the mark made by my shoes. Almost. I wonder whether in this situation a white person would expect something to happen.
Someone is fishing. A couple walks a trajectory which may bring them close to me. Some waves break. A tern flies by. There are two islands on the horizon, one much larger than the other. The sun happens, a wind blows lightly past my cheeks. It is difficult to remember that the journey which has brought me here leads not to this place but through it. I take a photograph as evidence, though the lens's wide angle admits more detail then I can really see.
By this time my old childhood friends would be making lives for themselves. I wish I had memory for detail. The shadows across the dunes at the back of the beach make tight and regular patterns. (I'm facing momentarily away from the ocean.)
What must it feel like to have large bones, I wonder, to have memories of cities of white people, of famous white people making speeches on the television, of white people leaving footprints across morning beaches?
The tide moves out (the pan which holds the ocean tilting so slightly away, as a flat-earther must argue). The sand is left hard. This is how to ascertain which way the tide moves: hard sand at the water line, tide moves out; soft sand, it moves in. This is how to tell where the moon is.
1. Speaking at a meeting of Commonwealth, State and Territory ministers for immigration and ethnic affairs in Brisbane, 25 June 1993.
2. In an historic setting, the former single men's housing for BHP employees.
3. Sections 54B, 88 and 89 of the Migration Act create this legal fiction by deeming certain categories of arrivals not to have arrived.
On 5 August 1993, 183 boat people were held in Port Hedland, 98 in Sydney and five in Perth.
4. On 30 August 1991, many Cambodian asylum seekers at the Enterprise Migrant Hostel in Melbourne were woken at 6:00 am and told to be ready in an hour. They were not told their destination. They were taken to the airport and told they were being moved to Sydney. Many believed they were to be deported straight to Cambodia. On another occasion (in December 1992), departmental officers took three Cambodians 'shopping' and then straight to the airport (these three had agreed to be repatriated). One requested permission to telephone his brother, who remained in detention. When this was refused, he slashed his wrist. He was then permitted a thirty-second telephone call.
5. Actually, the Minister's departmental delegates are supposed to assess whether people qualify for refugee status, not decide that they don't (which would breach Australia's international commitments under the UN Refugee Convention and Protocol). There is evidence not only that there is a presumption against refugee status and a heavy burden of proof on applicants, but that there is an unofficial quota of around five per cent acceptance. (See Fox 1993.)
6. A further question here is: What is the role of the executive? In this case the answer would be: to avoid the provisions of the Administrative Decisions (Judicial Review) Act.
7. The rumour is that the minister was rolled in the cabinet room. Well, he could have resigned.
8. Five not-Australian-born babies have left or been deported, eight have entry permits (or their parents do) and sixteen remain imprisoned. About sixty children born outside Australian land are also detained. Detaining children and babies for more than 'the shortest appropriate period of time' (a suggested measure in Australia has been 28 days) breaches Article 37 of the UN Convention on the Rights of the Child.
9. One welfare organisation declined to allow me to visit Villawood with them because a newspaper journalist accompanying another volunteer worker had written a critical article about conditions in Villawood, and the volunteer worker had then been excluded for some time.
10. The Joint Standing Committee on Immigration, a Commonwealth Parliamentary committee, was taking evidence in Sydney on this day.
I later spoke to the representative of another religious agency who had also appeared before the committee. He described the committee as 'the Spanish Inquisition'. I have no idea why the majority of the Committee chose such an adversarial approach to information gathering.
11. In the US, a pilot 'parole' system for asylum seekers found that 'attendance at judicial hearings was nearly 100 per cent' but that many 'absconded or accepted resettlement in Canada rather than surrender for removal'. In the end 'pressure on detention resources seems to have forced the issue' and detention as a policy was phased out. (Bhaba 1992).
12. My mother's parents are Galician/Polish Jews. My grandmother obtained British visas by writing directly to the King. She apologised for writing in German, but she hadn't yet learnt English and felt that German was the most likely to be understood of her then five languages.
13. The Arcadia. My parents used to point it out every time it docked at Circular Quay.
14. A solicitor told me that naming it for a dog was another deliberate and niggling insult.
15. 'The boat' was eight metres long, four metres wide and took 21 days to carry its 118 passengers to Australia, taking on rice and oil in Singapore and Indonesia. Having no fresh water, they cooked the rice in seawater. My informant told me it tasted terrible.
Australian Council of Churches, "Report to the Australian Council of Churches on the Present Situation of Asylum Seekers Detained at Port Hedland Reception and Processing Centre", March 1992
Bhabha, Jacqueline, "Deterring refugees: The use and abuse of detention in US asylum policy", Immigration & Nationality Law & Practice Vol 6 No 4, 1992
Department of Immigration and Ethnic Affairs, "Fact Sheets" (collation of media releases), 5 August 1993
Department of Immigration and Ethnic Affairs, "Boat People and the Refugee Issue" (Report of speech by Senator Nick Bolkus), "Current Issues" series of media releases, 8 July 1993 (Note: You can obtain DIEA papers from Media and Public Information Section, DIEA, PO Box 25 Belconnen ACT 2616; fax (02) 6264 2479; tel (02) 6264 2183.)
Fox, Gerry, "Asylum Seekers and Human Rights", Impact vol 23, no 3, April 1993
Fox, Gerry, "Detention of Asylum Seekers -- Arbitrary Inhumane Treatment?", unpublished paper
Hounslow, Betty, Immigration Law and Policy -- Learning from the experience of Canada, the United States and Britain, Report to the Law Foundation of New South Wales, Sydney, March 1988
Human Rights and Equal Opportunity Commission, "Report on the Detention of Asylum Seekers at Darwin and Port Hedland Detention Centres", HREOC, Sydney, 1992
Ozdowski, Sev A, The Law, Immigration and Human Rights, Multicultural Australia Papers 44, Clearing House on Migration Issues, Melbourne, 1985
Tsamenyi, M, The Vietnamese Boat People and International Law, Centre for the Study of Australian-Asian Relations (Griffith University), Nathan Qld, 1981