Could A Picture Be Their Passport?
By Bernard LaganSeptember 27, 2012
For almost a year, The Global Mail has been chasing an FOI request for the Department of Immigration to explain its claimed humanitarian reasons for wanting to ban media photos and footage identifying asylum seekers. Now, the truth is out: they’re worried such photos might assist claims for refugee status.
Documents obtained under Freedom of Information laws by The Global Mail show that senior staff within the Department of Immigration believe there is no strong case for any photos of people arriving on boats or in immigration detention centres to be shown to Australians.
The documents also disclose that senior officers have lobbied the Attorney General's Department for new laws that would ban media organisations from publishing photographs or other material that might lead to the identification of some asylum seekers.
One senior departmental officer — appointed to advise the Minister for Immigration, Chris Bowen — urged in an email to the department's chiefs: "There should be an enforceable prohibition on identifying asylum seekers in the same way as there is a prohibition on identifying minor victims of crime or victims of sexual assault."
The documents, part of an email chain between senior departmental officers conducted last year, give an insight into the extreme sensitivity within the department's Canberra headquarters and the Minister's office about media film footage of people arriving within Australian territory by boat and of those already in detention. And the main concern of the government, it appears from the internal documents, is less for the welfare of the asylum seekers. Rather, it is that asylum seekers might use the fact they have been publicly identified to bolster their efforts to remain in Australia.
The government and the Department of Immigration have been under intense pressure on the issue of unauthorised boat arrivals to Australia which have surged since the Labor government came to office. The numbers arriving by boat over the past four years have reached 17,000. In the previous four years — when the Howard government was in office and operating policies to send asylum seekers offshore and to turn back boats — only 357 boat people arrived.
The department passed the documents to The Global Mail this week — nearly 10 months after they were requested under Freedom of Information Laws. Our request was lodged with the department in December 2011.
The department has since claimed the delays were because it did not have enough staff to process The Global Mail's request. The department maintained its staff shortages were so severe that the request made under Freedom of Information Laws could not be finalised within the time frames laid down by the laws. Therefore the department invoked its powers to deem the request refused.
After The Global Mail complained about this to the Office of the Australian Information Commissioner — responsible for ensuring that federal government agencies comply with FOI laws — the Office decided to use its "own motion" powers of investigation for the first time. The Information Commissioner's report was handed down on September 26, and we broke the news here.
Our request to the Department of Immigration in December last year sought details of the department's internal deliberations that led to it to make a controversial submission late last year to the Australian Communications and Media Authority to stop television networks airing footage of asylum seekers arriving by boat, and also of those within detention centres. The department claimed it had wanted to protect the privacy "of these vulnerable clients" and that their identification was "gratuitous". The department argued that public identification of asylum seekers might put their family and friends in their home country in danger.
Nowhere did the department’s submission, urging that media outlets be stopped from filming boat arrivals and people in detention, mention fears about sur place refugee claims, whereby an asylum seeker may claim refugee status in Australia if he or she can show that events since their departure from their home country now make it dangerous for them to return. It made only an oblique suggestion that identification of asylum seekers might affect the department's assessment of their claims for refugee status.
No, the department's submission emphasised concerns about the welfare of asylum seekers. "Our clients are often filmed while travelling to a medical institution or receiving medical treatment, or other extremely personal and sensitive situations," said the department's submission.
The Global Mail made the FOI request in an attempt to resolve allegations made by Channel Seven's head of news and public affairs, Peter Meakin, that the department was instead engaged in self-serving censorship and by others that the department's submission would result in the human face of the asylum-seeker issue no longer being portrayed.
What emerges from the internal documents now handed over by the department is its great concern that the identification of individual asylum seekers may allow them to use their public identification to bolster a sur place case to be allowed to remain in Australia. They would be able to argue they fear retribution as a result of being identified as an asylum seeker, after having left their home country.
In the documents released to The Global Mail, the Immigration Department's Chief Lawyer, Jenny Hardy, wrote in an email in June last year to senior colleagues including the department's secretary, Andrew Metcalfe, that she was worried about such claims.
She wrote: "I have been concerned for some time at the publication of the identification of irregular maritime arrivals, arriving at Christmas Island. It appears to be only a matter of time before a sur place claim will arise from a photograph/video footage of people arriving at Christmas Island, in circumstances where they are clearly seeking protection."
Ms Hardy then appears to suggest that what is needed is a legal ban on the media identifying asylum seekers. She writes: "To ensure protection from sur place claims, amendments to the Migration Act would be needed to prohibit the publication of any details of detainees which could lead to the identification of that detainee."
In the same email Ms Hardy said she thought there was a prospect of the department gaining the agreement of the media not to identify asylum seekers. She argued that there are "no strong public interest reasons for photos or identification of detainees to be circulated within Australia where the detainees have either just arrived or been in detention since they arrived in Australia and where security assessments are being undertaken and therefore there is no public interest in publishing details of the identification of detainees".
The Immigration Department's national communications manager, Sandi Logan, wrote in an email late last year (also included the documents released by the department) that a story in June last year in the Sydney Daily Telegraph newspaper that purported to identify a Villawood immigration centre detainee suffering from leprosy led to the department urging strict controls on media identification of asylum seekers.
Logan also wrote that that the incident had led to the department's controversial new deed of media access to its detention centres. In October last year the department began requiring that journalists entering detention centres first sign strict undertakings.
These include allowing department staff to vet any footage or pictures they obtain on their visits. The policy is very much concerned with ensuring that asylum seekers cannot be identified. It bans interviews with asylum seekers and requires media outlets to destroy any content they obtain in breach of the media access policy. Journalists who enter detention centres must be escorted by a Department of Immigration officer and stay close to the officer.
At the conclusion of the visit, journalists and cameramen must present all the material they have gathered to a department officer, who has the power to decide what can be published and what can't.
In March, the Australian Press Council wrote to the department seeking to have the media access policy for detention centres relaxed. The Council argued that there should be an exception to the ban on interviews with detainees in cases where the detainees have given permission.
On September 25, a spokesman for the department told The Global Mail: "The key concerns of the department are two-fold: the identification in the media of clients seeking Australia's protection could jeopardise the clients' families, friends and associates in the country from which they are seeking protection. Second, the identification of a client seeking protection could give rise to a sur place claim."
Read more from Bernard Lagan on the government's battle to control the information flow: from Nauru's legal system, inadequately prepared for an imminent influx of asylum seekers; to the selection process for High Court judges, itself shrouded in secrecy; and the law's struggles to balance the sensitivity of courts with the omnipresence of social media.