KASAMA Vol. 19 No. 4 / October-November-December 2005 / Solidarity Philippines Australia Network

Justice still in detention

By George Newhouse

Vivian Alvarez Solon and George NewhouseIt’s easy to take life for granted in Australia but the summer break gives us time to pause and take stock of the past year.

Last Christmas Vivian Alvarez Solon was enjoying the charity of Mother Theresa’s nuns in the Philippines but in Australia her family wondered whether she was dead or alive. And Cornelia Rau was probably celebrating her Christmas in “Red One”, the solitary confinement wing of Baxter detention centre.

At the time, I was a commercial lawyer, oblivious to the realities of our immigration system and the suffering of detainees. My work on these two cases has opened my eyes to the suffering that is euphemistically described as mandatory detention, where at least some of the treatment meted out to inmates would be closer to that in a Soviet gulag.

What sort of system would force a demented woman to spend 94 days out of a total of 120 at Baxter in a solitary confinement punishment compound where she would be denied medical treatment and degraded?

I had no idea that our Department of Immigration could deport a sick and broken Australian woman to a place where she would never be found and then try to cover it up. I had no idea that our High Court had all but stripped away the legal rights of non-citizens in our country. All I knew was that the suffering of asylum seekers was being manipulated for political gain and I wanted no part of it.

The various reports on the Rau and Solon cases have led to a change in the Howard Government’s approach to immigration. The Liberal backbencher Petro Georgiou was able to drive through many constructive reforms, but the core systemic problems remain.

Following the Georgiou reforms, many long-term detainees have been released but are forced to fend for themselves without Medicare, employment and social security benefits. They rely on charity.

The entrenched prejudice of Immigration officers, the department’s culture and lack of accountability continue. Few Australians realise that the Migration Act strips away the legal protection afforded to even the most hardened criminals. The migration agents’ scheme, adverse costs penalties, restricted access to legal advice and limitations on rights of appeal all ensure that detainees are denied the last vestiges of due process.

After the Palmer report there was much fanfare about reform, but these changes were largely for media consumption. We saw the Minister for Immigration on TV, cutting down the razor wire fence at Villawood. What we didn’t see was that it was immediately replaced with an electrified fence.

The linguistic focus of the reforms might give the impression that detainees are now to be treated as “clients” and not as “scum”, but this Government has perfected a method of directing its bureaucrats by “dog whistle”. Immigration staff know exactly what is expected of them without the need for placing the new corporate brand “people are our business” on coffee mugs, water bottles, banners, screen savers and pass holders.

In the last sitting of Parliament enthusiastic departmental officials drove the Migration Litigation Reform Act 2005 through the Senate late at night, under cover of the industrial relations and terrorism debates. By placing further restrictions on the right of access to lawyers and limiting the time for appeals, the inept or unscrupulous decision making of Immigration officers will never see the light of day and will be exempt from judicial review.

Sadly the further restrictions on detainees’ rights in this legislation make a mockery of the Government’s spin about a departmental shake-up. Meaningful reform is as far away as ever.

If the Government wants to fix the problems in the Department of Immigration, it should change the Migration Act to reintroduce judicial oversight of department officers. This would ensure they could not act as judge, jury and executioner of these poor souls. It needs to ensure detainees can access legally aided or pro bono lawyers, and take action against the callous officers who destroyed Solon and Rau’s lives in order to send a clear message to all public servants that Australians will not tolerate the treatment of human beings like animals.


George Newhouse is a Sydney-based lawyer who is a member of the legal teams acting for Vivian Solon and Cornelia Rau.

This article first appeared on December 23, 2005 in the Sydney Morning Herald. It is re-printed here with the permission of the author.

Further reading:

Comprehensive list of links to Kasama articles about Vivian’s case, submissions from CPCA-Brisbane and Justice Alliance for Vivian to the Senate Inquiry into the administration and operation of the 1958 Migration Act and links to other documents including the Palmer Inquiry Report and the Senate DFAT Committee Interim Report “The removal, search for and discovery of Ms Vivian Solon”.