We welcome contributions to our newsletter from our readers.
Articles must be between 500 and 1000 words. Please send your article to <newsletter@affma.org.au>
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Free services for eligible refugees, asylum seekers and humanitarian entrants to New South Wales, Australia
We welcome contributions to our newsletter from our readers.
Articles must be between 500 and 1000 words. Please send your article to <newsletter@affma.org.au>
The deadline for submission of articles is the 15th of the month.
Street Address: Association of Fee Free Migration Agents, Sydney, Inc.(AFFMA)
Level 1, 324a King Street, Newtown Railway Station, Newtown, NSW 2042
Postal Address: PO Box 610, Newtown NSW 2042
Phone: (02) 9519 4400
Fax: (02) 9519 4837
Website: http://www.
Email: info@affma.org.au
If you would like to make a donation, please email us at Fundraising@affma.org.au
All donations over $2 are tax deductible.
Fundraising Manager Wanted: AFFMA is seeking a volunteer to be in charge of all the fundraising aspects of the organisation. This would involve being in charge of AFFMA’s social media presence, as well as formulating new ideas for marketing AFFMA and raising additional funds. As we receive no government funding, this position is essential to the success of our organisation.
Newsletter Team Leader Wanted: This role involves liaising with our team of online newsletter contributors, editing all submitted contributions and thinking of themes and ideas for each edition of the newsletter. This work can be done entirely from home.
Raffle Ticket Sellers Wanted: As we receive no government funding, it is imperative that our raffle is a success. As such, we kindly ask all members of the public to volunteer as raffle ticket sellers. Tickets will be sold in booklets of 50 and 100. All ticket sellers will receive a 10% commission on their total amount of sales. Positions are open to those over the age of 15.
Board Members Wanted: We currently have seven board members. We need more committed and dedicated volunteers who would be willing to be involved in all aspects of the organisation. These positions are open to pro bono or commercial agents and members of the public who share AFFMA’s vision. For more details, please email BoardPresident@affma.org.au
If you are interested in the first three positions, please email info@affma.org.au
Do you have a vacancy you wish to advertise? AFFMA’s Members can advertise vacancies free of charge. Deadline for our next issue is 15 June 2015.
Though he has only been in office for a few months, Indonesia’s President Joko Widodo has already unveiled a policy that has been subject to considerable controversy and debate.
This is Widodo’s “Stop the Drugs” policy.
You may notice that this sounds awfully similar to the Australian government’s “Stop the Boats” policy, and in some ways they are similar.
While the two policies attempt to tackle two different issues, they are being pursued with roughly the same amount of irrational intensity. The refusal to grant clemency to convicted drug smugglers Andrew Chan and Myuran Sukumaran is a glaring example of such irrationality.
There is no denying that Indonesia faces serious issues with regards to drug trafficking. Indeed, one government estimate reveals that 50 Indonesian citizens die per day from drug related causes.
Accordingly, this ensures that there are approximately 18,000 deaths in Indonesia each year as a result of drug addiction. But in adopting an “ends justify the means” type of approach, President Widodo and his administration are becoming increasingly callous in addressing the issues posed by drug trafficking.
Capital punishment has long been reserved for the most heinous criminals, and in Indonesia drug traffickers are characteristically viewed as mass murderers given the rampant drug abuse they enable.
However, in this case it has been largely accepted that Chan and Sukumaran have been rehabilitated. This is an argument often raised by their lawyer, Julian McMahon, who emphasises that the pair are helping a lot of other prisoners get their lives in order.
Indeed, throughout the course of their incarceration the two have established a drug rehabilitation program, which is obviously useful in that it prevents former convicts falling back into drug abuse and committing more drug related crimes once they are released.
Additionally, they have been teaching art and computer classes, helping their fellow convicts further prepare for life outside of prison.
Despite this, the Indonesian government adheres to its policy that all convicted drug traffickers will face the death penalty.
There is no universally applicable principle of sentencing. Indeed, NSW courts recognised in R v Geddes (1936) that in matters of sentencing, ‘the only golden rule is that there is no golden rule’. As such, the application of the sentence must always be based on the facts of the case.
In considering these facts, it is often emphasised that judges must take account of the level of rehabilitation displayed by the offender. If it can be proven that an individual has been rehabilitated to the extent that he or she no longer poses a threat to the community, they should be released.
Though this approach places substantial emphasis on the rights of the offender, at its heart is the protection of the community overall. Accordingly, if the punishment imposed serves no societal purpose, the punishment is unjust.
It is highly likely that the Indonesian government believes that the deaths of Chan and Sukumaran will achieve such a purpose.
Aside from providing retribution to the multitude of victims of drug abuse, the government must also believe that the execution will deter people from smuggling drugs in and out of Indonesia in the future, thereby diminishing their drug problem.
However in the 21st century we are continuing to abandon the theoretical justifications for deterrence theory (as propounded by Jeremy Bentham, Cesare Becarria and the like) in light of empirical evidence which indicates the ineffectiveness of achieving deterrence through harsh sanctions.
For instance, Singapore introduced the death penalty in 1999, and yet between 1999 and 2005 the total level of drug abuse actually rose. Indeed, countries such as China and Iran still face rampant problems with drug trafficking despite the use of death penalties.
Scholars such as Raymond Paternoster have also emphasised that the evidence in favour of capital punishment and other harsh sanctions is “more than a little flimsy”.
Moreover, Widodo’s war on drugs can be managed more effectively, and in a way that does not require the institution of capital punishment. For instance, it has been suggested that a better strategy would be to target high-level members of drug syndicates.
This is largely problematic given the influence of these individuals in the Indonesian government, military, and police force. Such corruption is not a well-kept secret, given that anti-narcotic agents arrested five police in possession of large quantities of drugs in early 2015.
As such, the best way for Indonesia to win its war on drugs is to look implement sweeping reforms to improve the effectiveness of its internal state mechanisms.
In addition, increased educational measures to warn children and young adults of the dangers of drug use would also have a positive effect in reducing Indonesia’s drug problem.
However given the comparatively difficult nature of such reforms, it is likely that Widodo and his administration will abide by their execution policy. Moreover, the administration is now placed in a situation where reneging on its commitment to using capital punishment to punish drug smugglers will appear to be an act of submission in the face of Western pressure.
In a sick and twisted way, the longevity of Widodo’s government now demands the death of Chan and Sukumaran.
The overarching point of this article is to emphasise that the imposition of a particular sentence must be based on the facts of the case. Whilst Chan and Sukumaran’s original crime was certainly harmful to Indonesian society, their prospects for reform render the use of the death penalty completely inappropriate in these circumstances.
Furthermore, as a means to deter future drug traffickers, the imposition of a mandatory death penalty will likely fails. The execution of the two will therefore be both inhumane and ineffective. Unfortunately it may be too late for Chan and Sukumaran, but we can only hope that this complete and utter debacle has the effect of uniting the international community in its condemnation of capital punishment.
Emmanuel Kanellis
This month’s newsletter addresses the issue of ‘Children in Detention’. Recently, the Australian Human Rights Commission released a report, The Forgotten Children. This was a national inquiry into the treatment of children in mandatory detention, and whether such treatment accorded with Australia’s human rights obligations.
The facts, as published in the report, paint a picture of severe neglect, human rights abuses and general lack of concern for child welfare. These findings form the basis of this month’s issue.
The Australian Human Rights Commission (AHRC) reported in November 2014 that there are over 800 children kept in mandatory immigration detention centres.
The AHRC has emphasised that these detention centres are a dangerous and unsafe environment for children to live.
Such a statement is neither an exaggeration nor politically biased: it is a fact. There is undeniable evidence to suggest that detention centres have severe effects on the physical, psychological and emotional wellbeing of children.
The AHRC stated in the report ‘The Forgotten Children’ (the AHRC Report) that the children detained on Nauru Island are currently experiencing an insufficient education, with a lack of books, tables and chairs and paper and pens.
Children are not provided with the appropriate clothing and are wearing long sleeve shirts in temperatures reaching 45 to 50 degrees.
Most significantly, there has also been evidence from staff working in Nauru detention centre of incidents of harassment, bullying and abuse.
For instance, in November 2013, a 16 year old boy was allegedly sexually assaulted by a cleaner, in view of security staff. Such an occurrence is not an isolated incident. Indeed, data from the Department of Home Affairs reveals that there have been numerous incidents of assault, sexual assault and self-harm among children.
These are fundamentally traumatic events that can be severely detrimental to a child’s development, ensuring that children remain affected long into their adult life.
The AHRC questioned children about the impacts of detention on their lives after they had been released into the Australian community.
Rahim from Afghanistan arrived on Christmas Island and was detained for a year when he was 17. He said that immigration detention had ruined him physically and mentally. “I had dreams”, he told the AHRC. “I had wishes, I had desires for my future. [But] I was seeing only the darkness around me… As a refugee I want to say we are not the criminals.”
Mental health experts report that detention has “undeniable immediate and long-term mental health impacts on asylum-seeking children and families”.
Professor Louise Newman reported that she is currently treating adults who she met as children in detention in the period 2000 to 2005. “I treat several people who I first met during the first round of detention as children, who have ongoing post traumatic symptoms and preoccupations…classical symptoms of having nightmares memories and recollections of things that happened to them that still remain troubling. Some have quite marked depression.”
It is clear that the consequences of detention can be long term, impacting on former detainees’ lives and relationships.
Detention can both exacerbate existing physical and mental health problems in children and create new problems. The longer that children are detained, the more likely they are to suffer the effects of detention. On Nauru Island there is currently no time limit on how long children can be detained for.
The AHRC has set out recommendations to the Australian Government advising that all children and their families be released into community detention or the community on bridging visas with a right to work. Additionally it is recommended that no child be sent offshore for processing unless it is clear that their human rights will be respected.
The AHRC have urged the Government to never again use the lives of children to achieve political or strategic advantage.
Lauren Lamarque
It is well accepted within international law that children, given their inherent vulnerability and lack of self-reliance, require special protection.
Of the various international instruments which are concerned with protecting child welfare, none is more fundamental than the United Nations Convention on the Rights of the Child (CROC).
The CROC entrenches a number of rights relating to the treatment, education and basic needs of children, which all signatories are obliged to uphold.
Whilst Australia is a signatory to this convention, its commitment to subjecting child asylum seekers to mandatory detention casts serious doubt to its ability to meet its international obligations. This is because mandatory detention essentially puts the lives of those children on hold.
It should be emphasised that as a signatory to the CROC, Australia is obliged to uphold the rights of all children within its jurisdiction. As such, Australia maintains an obligation to preserve the rights of children in detention.
The Australian Human Rights Commission has emphasised how subjecting children to mandatory detention is clearly in violation of the CROC. In particular, it breaches Article 16(1), which provides that no child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.
Additionally, the current state of the detention centres also breaches Article 34, which provides that parties to the convention must undertake to protect children from all forms of sexual exploitation and sexual abuse.
The inherent tragedy of these circumstances when one recognises that out of the total number of children being held in detention, 153 are babies, 204 are pre-schoolers (aged 2 to 4 years old), and 336 primary school aged children. In addition, 128 children have been born in detention.
However the problem goes far beyond the conditions found within migration detention centres. Instead, this can be regarded as an issue relating to the nature of Australia’s migration law framework.
When one considers the centrepiece of Australia’s migration legislation, the Migration Act 1958 (Cth) (Migration Act), along with its legislation surrounding child refugees, Immigration (Guardianship Children) Act 1946 (Cth) (IGOC), one notices that one necessarily contradicts the other.
The central problem is the conflict between the Immigration Minister’s under s 6 the IGOC Act and the Minister’s duties under the complicated matrix of the Migration Act.
Whilst under the former, the Minister retains a “responsibility as guardian” in relation to unaccompanied/separated minors, he is also required to act as their “prosecutor, judge and gaoler” under the latter.
This conflict creates significant ambiguity in relation to the rights of child asylum seekers.
Scholars have noted that the central emphasis of the Migration Act is the protection of Australia’s borders, rather than the preservation of refugee rights.
For instance, recent amendments to the Migration Act ensure that asylum seekers that arrive without adequate documentation in Australia’s states and territories have been ‘excised from the migration zone and are prohibited from applying for protection visas in Australia.
According to Mark Evenhuis, the disproportionate emphasis placed on border protection (as opposed to child or refugee rights) ‘underpins an expansive concept of persecution’ in Australian migration law.
In conclusion, it is evident that Australia’s current legislative framework surrounding asylum seekers does not accord with international law.
In failing to do so, children seeking asylum are placed in a position where they are subject to mistreatment and abuse. Ideally, Australian migration law should reflect the notion that all people have a right to seek asylum and abolish the practice of mandatory detention.
However at the very least, there must be a change to ensure that Australia’s deterrent measures towards refugees and asylum seekers do not ‘override the needs of the embodied child.’
As such, amendments could be made to ensure that child refugees are provided with adequate care and protection as they attempt to seek refuge in Australia. Such change is justified on humanitarian and ethical grounds, as well as on the basis of international law.
Ariza Arif