A History of the World Since 9/11

by Dominic Streatfeild

  Ruddock understood there was no way asylum seekers were simply going to stop coming over of their own accord. But if they couldn’t be stopped at the point of departure, changes had to be made at the point of arrival. The key problem here was the law. The moment asylum seekers set foot on Australian soil, they had a number of rights. These rights interfered with the Government’s business of shipping them back where they came from. Part of the problem was the interference of the judiciary.

  ‘The courts here in Australia have progressively over time worked their way into the system of determining refugees,’ Ruddock told me in 2008. The effect, he said, was corrosive: if an asylum seeker was deemed not to be a genuine refugee, he could be deported. But if he got himself a lawyer, he could appeal and appeal and appeal – effectively turning Australia’s asylum-seeker policy into a lottery. The process took so long and cost so much money that at the end of the day it was more economical simply to let them in. This, clearly, was an unacceptable state of affairs.

  Theoretically, however, there was a simple solution: if the asylum seekers didn’t actually land on Australian territory, they would be unable to access the courts. Stopping the boat people from touching Australian soil now became the cornerstone of Ruddock’s ‘Pacific Solution’.

  The idea was the result of a fortuitous encounter. ‘It was about this time,’ recalled Ruddock, ‘that a lawyer2 very close to me said, you know, “Why do you have to allow people who simply get to Christmas Island – or any of these offshore places – access to the legal system?”’

  It was an intriguing question. On the face of it, the answer was obvious. Australia’s outlying islands were part of her Migration Zone, which meant they were covered by Australian law. But who said the islands had to be part of the Migration Zone? What if they were simply removed from it?

  Bureaucratically the idea was brilliant. If Australia’s outlying islands were excised from her Migration Zone, asylum seekers landing there could be deemed not to have triggered international obligations to allow them judicial access. They would be unable to reach the courts to start the appeals process that cost so much time and money. In September 2001, Ashmore Reef, the Cartier and Cocos Islands, and Christmas Island – the most common destinations for boat people departing from Indonesia – were duly excised from Australia’s Migration Zone. Over the next four years, the Government would seek to excise more than 3,000 of its outlying islands.

  But this, in turn, triggered another problem: what to do with the asylum seekers next? They might not be in the Migration Zone on Christmas Island, but the moment they were transported to the mainland for processing, they certainly would be, and surely it was not possible to excise the Australian mainland from its own Migration Zone.

  Another solution presented itself. Perhaps someone else could take them? In September and October 2001, East Timor, Fiji, Kiribati, Palau and Tuvalu were asked if they would like to do so. All declined. Two nations, however, agreed.

  On 10 September 2001, the governments of Australia and Nauru signed a Statement of Principles in which Nauru agreed to host a detention centre for up to 800 asylum seekers for an initial six-month period. The bankrupt nation was awarded AU$20 million for development activities – a deal the head of the AusAID Nauru programme would later describe as an ‘unmitigated bribe’. Three months later, the agreement was updated. For an extra AU$10 million Nauru agreed to take another 400 asylum seekers (this was later increased again to 1,500). For the world’s smallest republic, this was a lot of people. Its population now comprised more than 10 per cent Australian asylum seekers.

  A month after the Nauru deal was struck, Australia and Papua New Guinea signed a Memorandum of Understanding to establish another processing camp on Manus Island. As was the case with Nauru, Australia agreed to cover the costs of the detention and processing activities. And, as with Nauru, there was a sweetener for the helpful government: Australian aid packages were fast-tracked, including the upgrading of schools, police housing and a local airport. The Manus detention centre was opened on 21 October 2001. The Alsaai, Saadi and Kahtany families were the first arrivals.

  The Iraqis were now in a precarious position. The determination process (establishing whether they were bona-fide refugees) was conducted by Australians. But because it was taking place in a ‘declared country’ outside Australia, the operation remained outside Australian law. If they were mistreated, the asylum seekers could not access or appeal to Australian courts. The governments of Papua New Guinea and Nauru, meanwhile, could wash their hands of what was taking place on their territory, because the areas were being administered by the Australian government. The Iraqis were shipwrecked in a legal no-man’s-land.

  International observers were appalled. Amnesty International repeatedly warned that the ‘Pacific Solution’ contravened international law. Human Rights Watch (HRW) agreed. ‘Australia,’ the organization concluded, ‘has taken its own policy of mandatory detention – a practice specifically found to be a human-rights violation by the United Nations Human Rights Committee – and exported it to less-developed neighbours.’ This was ‘an attempt by Australia to avoid its obligation under international law’. Oxfam also agreed, dubbing the programme a ‘Pacific Nightmare’. Even the UNHCR, the normally diplomatic United Nations refugee agency, expressed ‘strong concerns’. According to the organization, Australia’s policy of mandatory, indefinite detention of refugees was ‘not consistent with the provisions of the Refugee Convention’. Shipping them offshore was even worse.

  Reactions to 9/11 were similar all over the world. Despite the fact that 2001 marked the fiftieth anniversary of the Refugee Convention, immediately after 11 September the nations responsible for its establishment went out of their way to sidestep its obligations. Typical were the governments of Greece (where all Afghan refugees were barred), Spain (whose foreign minister announced that ‘the strengthening of the fight against illegal immigration is also a strengthening of the anti-terrorist fight’) and the United Kingdom and United States, where laws were passed allowing for the pre-emptive and indefinite detention of foreign suspects.

  Outraged individuals beating up foreigners was perhaps a predictable reaction to an atrocity as grievous as 9/11, but frequently these misguided vigilantes were taking their lead from their own governments, which, according to HRW, ‘shamelessly manipulated xenophobic fears in order to muster short-term political support’.

  HRW was especially critical of Australia. The country’s behaviour, it noted, was ‘excessively harsh and restrictive’, its ensuing legislation ‘unprecedented’. Not missed was the fact that the Pacific Solution had been conceived within sight of a general election.

  ‘Surely,’ asked Ruud Lubbers, United Nations High Commissioner for Refugees, ‘there are other ways to win elections?’

  There was a precedent. In the early 1990s, the United States had faced an influx of asylum seekers from Haiti. Like the Australians a decade later, the Americans realized that, if Haitians landed in Florida, they could demand asylum and then gain access to the domestic courts: a situation that was likely to cost a great deal of money. What to do with them? The United States began a search for somewhere close, somewhere suitable and, most of all, somewhereforeign, where asylum seekers would have no access to American state or federal courts. Somewhere the Constitution didn’t apply.

  The simplest answer was Cuba. The United States set up a refugee processing zone outside both Cuban law (it was operated by America) and American law (it was in Cuba). Haitians held there had no recourse to any civilian court in either country. But this wasn’t an oversight. It was the whole point. The camp became a kind of state of exception: a place where no domestic law held sway.

  The site for the camp was a military base on the eastern tip of the island: Guantanamo Bay.

  Australians may not have been aware of the precedent, but they were aware that, at last, something was being done about the ‘illegals’. The result was a sharp upsurge in Liberal popularity. B
y mid-August, the Government was receiving a 40 per cent approval rating. Two weeks later, this was up to 45 per cent. In September, it leapt again to 50 per cent, with the Prime Minister’s personal rating at 61 per cent: his highest in five years. The effect on the Government was immediate.

  ‘The atmosphere changed,’ a senior Liberal adviser told me over lunch in Melbourne in 2008. ‘There was a very clear surge of energy around the Prime Minister’s advisers and around Reith’s office and around Ruddock’s office.’

  Did the Government realize the value of the asylum-seeker issue in the run-up to the federal election? I asked. Did they know they had hit electoral pay dirt?

  The adviser erupted into laughter so violent he nearly choked on his food. ‘Shit, yeah!’

  9/11 also played into the Coalition’s hands. On the morning of 11 September, it became clear that the 2001 federal election was to be a ‘khaki’ (wartime) election. Such was the trauma of the moment, it seems, voters decided to opt for stability over change. In effect, the Prime Minister was handed a huge advantage: his approval rating was likely to leap at this point, no matter what.

  This fact was recognized by Labor leader Kim Beazley. ‘Well,’ he told his chief of staff when news of 9/11 broke in Australia, ‘there goes the election.’

  Beazley had planned to win the campaign on domestic policies. This proved impossible. Every time he or his colleagues made a speech, media reports were superseded by news of the War on Terror. On 7 October, Beazley announced a financial initiative to assist new parents; that same day, the invasion of Afghanistan began. On 9 October, Labor’s banking policy clashed with the commitment of Australian troops to the war.

  On 14 October, Beazley and Howard debated live on television. Beazley won the debate and there was a spike in his polls, until it was revealed the next day that anthrax spores had been posted to civilians in the United States and the focus turned back to terrorism.

  ‘We can’t take a trick,’ bemoaned one Labor insider. Another commented that, no matter what the Party did, ‘we’re competing for page nine’.

  What was especially noteworthy about the 2001 Australian federal election, however, was not the asylum-seekers issue, or even the tragic interruption of 9/11. It was the way the two issues were yoked together. Traditionally, Australia had always conflated its immigration and asylum policies, arguing – incongruously to some – that the right to turn away potential immigrants gave it the right to turn away refugees, too. Now the Government sought to conflate two further issues: asylum seekers and self-defence. Protecting Australia’s borders became an extension of the War on Terror. The tactic was a potent vote winner.

  ‘Howard always does things cleverly’ recalled Beazley later. ‘The way he expressed this, even though he had advice from the Security Intelligence Organization to the contrary, was: “I could not guarantee that none of these refugees are terrorists.” In dog-whistle terms, that was pretty well perfection: you’ve got a plausible denial and, at the same time, total political effect.’

  Then, as if by magic, on 5 October, the very day that John Howard called the federal election, an asylum-seeker boat showed up. This time its passengers were so inhuman they threw their own children in the sea. For the Liberals, the story was a gift.

  The Children Overboard story vanished from the Press almost as abruptly as it had arrived. For a week there was little else, then nothing. There were good reasons for this. The military was not talking and the refugees were isolated and out of the way. Outside the Liberal Party, which also went strangely silent, journalists now had no sources.

  Kim Beazley wasn’t about to argue: from his point of view, the less written about Howard’s asylum-seeker policies, the better. If Children Overboard was no longer taking up the front pages, he might get a look in. Sure enough, with the issue out of the way, Labor polls began to rise, and by the Tuesday before the election Beazley had clawed his way back into the race. But then the Liberals had a final, massive, stroke of luck.

  On Wednesday, 7 November, the Sydney Morning Herald published a letter from Duncan Wallace, a naval psychiatrist, warning that the ‘despicable’ policy of returning asylum seekers at sea was damaging the service’s morale.

  ‘Nearly everyone I spoke to that was involved in these operations,’ he wrote, ‘knew that what they were doing was wrong.’

  That same day the Australian newspaper openly questioned the vera-city of the Children Overboard story. The paper had sent a reporter to Christmas Island, where she had interviewed locals who had spoken to the Adelaide’s crew. ‘Whatever you hear,’ one sailor had warned a resident, ‘the asylum seekers did not throw their children overboard.’

  With the election just three days away, here were two of the nation’s leading newspapers effectively accusing the Government of lying.

  ‘All hell’s broken loose,’ Defence Minister Peter Reith told his senior adviser Mike Scrafton that afternoon. This was an understatement. A month earlier, the Minister had declared it an ‘absolute fact’ that children were thrown overboard, assuring the Press that the Adelaide’s electro-optical tracking system film proved it. Now, when he rang the Navy, he learned that the film didn’t show this at all.

  Reith had been told a number of times that the Children Overboard story was unsubstantiated, but he had never made that fact public, instead sticking to his original brief on the basis that he had never beenformally advised otherwise: until that brief was rescinded in writing, he could legitimately claim that the original advice held. But it was a thin story. Surely there must be something else? What was actually on the film?

  ‘The Prime Minister wants somebody to go to the Navy headquarters to look at the tape,’ he told Scrafton. ‘Somebody they can trust.’

  John Howard was due to address the National Press Club in Canberra the next morning, where he was likely to be grilled on whether his administration had lied for political gain. What was he supposed to say?

  That evening S crafton reported to Navy headquarters where he viewed the tape, which had been rewound to a spot where an Iraqi asylum seeker held a young girl in the air. Apparently, this had been the event witnessed by Banks during his fateful phone call of 7 October. After watching the film twice, Scrafton rang Reith.

  ‘In my view,’ he told the Minister, ‘this doesn’t show that children were thrown overboard or even were threatened to be thrown overboard.’

  It was bad news for the Government, but Scrafton, an experienced bureaucrat, offered Reith a lifeline. ‘I think the best you can say in the political context is that it’s inconclusive.’

  * * *

  The next morning John Howard faced the massed ranks of the Australian press. For someone who apparently now knew – or at least strongly suspected – that no children had been thrown overboard, he gave a bravura argument that the opposite was the case. Like Reith, Howard stuck to the ‘I wasn’t officially informed’ line. Throughout the exchange, he waved a secret report from Australia’s Office of National Assessments (ONA). This was the document, he said, which he considered his formal briefing, and which stated categorically that children had been thrown overboard. Virtually all questions about the incident, the photographs and the film were referred back to it.

  ‘In my mind there is no uncertainty, because I don’t disbelieve advice I was given by Defence,’ said the Prime Minister. ‘It’s perfectly reasonable and legitimate of me to say what I have said.’ It remained ‘an absolute fact’, he asserted, that children had been thrown overboard.

  The Prime Minister later repeated the mantra during various radio interviews. Asked whether anyone from the Navy or Defence had rung either him, Reith or Ruddock to advise that the story was wrong, he stated they had not.

  ‘Nobody rang my office to that effect and I’m not aware that they rang the offices of the other two ministers,’ he said. At no stage was I told that that advice was wrong.’ Again, he cited the classified report from the ONA. ‘I have not received any advice from Defence to this moment whi
ch countermands or contradicts that . . . I have not been given different advice. If I were given different advice, I’d make it public’

  The denials came thick and fast. ‘My understanding is that there has been absolutely no alteration to the initial advice that was given,’ he told ABC Radio’s Catherine McGrath. And I checked that as recently as last night.’

  On this last point, at least, the Prime Minister was telling the truth. He had checked his facts as recently as last night. The rest of the statements, however, were less credible. The person with whom he had checked his information was Mike Scrafton, whom he had reached on his mobile phone at a restaurant in Sydney. Over the course of two or three separate calls, Scrafton had specifically informed Howard that the film didn’t show children overboard, that the photographs were of the wrong incident on the wrong day, that nobody in the military believed children had been thrown overboard, and that the ONA report that had initially concluded children had been thrown was not based on hard evidence from the Adelaide at all. In fact, he told Howard, its sources were media reports citing press statements by Defence Minister Peter Reith.3

  Scrafton’s recollections of these calls – later shared with a Senate inquiry into the incident – leads to the uncomfortable conclusion that the Prime Minister had been lying through his teeth.

  Kim Beazley’s adviser was jubilant when he broke the news to his boss. ‘This is fantastic!’ he announced. ‘Howard’s a liar!’ The Labor leader immediately disagreed. Although the film and the photographs didn’t actually show any children being thrown overboard, that didn’t necessarily mean children had not been thrown overboard. If Beazley wanted to prove the Prime Minister was lying, he would have to demonstrate this was the case. With just two days to go before the election, it was a formidable, perhaps impossible, task. It was also one that he had no particular urge to undertake.