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Seeking a more ethical way to stop the boats and deaths at sea

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Frank Brennan |  14 September 2012

These are difficult times for any of us seeking a dispassionate, ethical debate about asylum policy in Australia. The expert panel of Angus Houston, Michael L'Estrange and Paris Aristotle are three distinguished, competent and experienced people who have wrestled with how we might ethically stop the boats. I see that the speakers at your conference have included politicians and activists from both sides of the political aisle. So now its time to hear from a meddling priest! Here in Australia, the asylum debate must be conducted against the backdrop of:

  • a generous immigration policy which strikes the right balance between business, family reunion, and humanitarian assistance;
  • a robust approach to border protection for a developed pluralist democratic state in a developing neighbourhood;
  • avoiding loss of life at sea;
  • and a firm commitment to providing protection for refugees in an equitable way — fairness for the unauthorised boat arrival, the authorised but less than fully disclosed plane arrival, and the person waiting for years in a camp or transit country.

We can't just look to the asylum seeker who presents at our border. We also have obligations to asylum seekers who cannot access unvisaed or visaed transport to Australia.

Behind all the legal technicalities and political argument about boat people, there is still room in the wake of the report by the Expert Panel for deeper ethical reflection and a more principled solution. But first to clear away some of the debris of the last month. The Australian Parliament led by a government in panic mode has now legislated to do three things: lock the courts as far as possible out of reviewing government decisions about offshore processing, set the course for re-instituting the Pacific solution in Nauru and Manus Island, and put on hold any prospect of a Malaysia agreement until after the next election, and that probably means never.

A word on these three matters before addressing future ethical considerations.

The courts

In 2001, Philip Ruddock keen to win Opposition support for the offshore processing of asylum seekers on Nauru agreed with Kim Beazley to specify minimum human rights conditions to be considered by the Minister before declaring any country to be an appropriate offshore processing country. Few members of parliament or lawyers thought the High Court would ever buy into reviewing whether or not these conditions had been fulfilled, mainly because they thought the Court would not want to open a door of judicial review which might require consideration of the human rights record of foreign countries. It is one thing for a court to observe that a foreign country is not a signatory to an international human rights instrument. That is a simple question of law. It is another matter for a court to be hearing evidence about the human rights record of a foreign country, whether or not it is a signatory to any or all of the relevant human rights instruments. Last August, the High Court caused some surprise when deciding 6 to 1 that the court would open that door of judicial review. The court found Malaysia wanting, and the arrangement negotiated between Malaysia and the Gillard government defective. Both sides of politics were keen to shut this door again as firmly as possible. A bill was introduced to Parliament to do just that a year ago. It got nowhere because the Opposition wanted to insist that Parliament provide that any future offshore processing country be a signatory to the Refugees Convention. The Government would not agree to this because it wanted to keep open the Malaysia option, Malaysia not being a signatory to the Convention. Parliament has now closed the door as far as it can. The Constitution may still leave a glimmer of light between the door and wall.

The Government has accepted the Expert Panel's recommendation that 'decisions in relation to how (asylum seekers) in Nauru would be processed would be determined by Australian officials in accordance with international obligations'. On 14 August, Philip Ruddock told Parliament:

What they are saying is that this Government's proposal is for mandatory detention in Nauru and Manus Island indefinitely until a place can be found after others in the queue have been accommodated. If this measure is going to work this government has to make it very, very clear that, for all of their statements that they would walk away from mandatory detention, they are now implementing indefinite mandatory detention offshore.

If people understand that, it may have the impact that the government seeks. But you cannot be unambiguous about the language you use. The message has to be clear not only to the people smugglers but also to their client base.

If people were to be detained indefinitely as Mr Ruddock advocates, the Australian officials would need to institute a 'go slow' in processing refugee claims. Though Parliament has done all it can to exclude the High Court, the Constitution (s.75(v)) which is beyond the reach of politicians (even when they are in panic mode) does provide the High Court with jurisdiction to order Australian officials to perform their legal functions. And if the deliberate 'go slow' by the bureaucrats were aimed at detention stretching into years rather than months, the High Court could well be asked to determine whether the initial detention of people arriving by boat is indeed punitive (as of course it is intended and trumpeted to be). Under our Constitution, punitive long term detention is the sole preserve of the Courts. It's called the rule of law and the separation of powers. If the Australian officials on their years long 'go slow' are not exercising any functions under Commonwealth law, there could well be questions about the legitimacy of the expenditure by the Commonwealth in the absence of specific statutory allocations for long, slow punitive detention. The High Court opened this door in the recent school chaplains' case.

Any deliberately punitive regime would run into further problems once a person is proved to be a refugee. Now that Nauru is a proud signatory of the Refugees Convention, it is bound to provide proven refugees in their territory with a full suite of rights including 'the most favourable treatment accorded to nationals of a foreign country in the same circumstances, as regards the right to engage in wage-earning employment'; 'the same treatment as is accorded to Nauruan nationals with respect to elementary education'; 'the same treatment with respect to public relief and assistance as is accorded to Nauruan nationals'; social security; and 'travel documents for the purpose of travel outside Nauru, unless compelling reasons of national security or public order otherwise require'.

People with this suite of rights would not be the best deterrent example to hold up to those contemplating a risky boat journey to Australia. We have not heard the last from the Australian courts on the long term holding of people under the Pacific Solution Mark II.

The Pacific Solution revisited

In 2001, when the Howard Government instituted offshore processing on Nauru, it was premised on the bluff that anyone being sent there would never be resettled in Australia. Responding to the bluff, some asylum seekers opted to return home. Those who called the government's bluff and stayed generally ended up in Australia or New Zealand. When elected, the Rudd government enacted long held ALP policy for which it had a strong mandate at the election and abolished the Pacific Solution. When the boats started coming again, the Government's best advisers cautioned that the bluff would not work a second time. Convinced by their advisers that Nauru would not work again as a deterrent, the Gillard government had investigated the Malaysia solution. You will remember that last October, Andrew Metcalfe, long time secretary of the Immigration Department, told the Parliament:

Our view is not simply that the Nauru option would not work but that the combination of circumstances that existed at the end of 2001 could not be repeated with success. That is a view that we held for some time—and it is of course not just a view of my department; it is the collective view of agencies involved in providing advice in this area.

Minister Bowen's declaration of Nauru as a regional processing country tabled this week in Parliament states: 'I think that designating Nauru to be a regional processing country may act as a circuit breaker in relation to the recent surge in the number of irregular and dangerous maritime voyages to Australia.' If Bowen is right this month, Metcalfe was wrong last year.

The Houston Expert Panel recommended that Nauru be tried again but with an added disincentive for asylum seekers. They should be told that they would get 'no advantage' by getting on a boat rather than waiting in Indonesia. They would have to wait the same time for resettlement from Nauru as they would had they stayed in Indonesia. The UNHCR advice tabled in Parliament this week states:

The time it takes for resettlement referrals by UNHCR in South-East Asia or elsewhere may not be a suitable comparator for the period that a Convention State whose protection obligations are engaged should use. Moreover it will be difficult to identify such a period with any accuracy... [T]he 'no advantage' test appears to be based on the longer term aspiration that there are, in fact, effective 'regional processing arrangements' in place. ... However ... such regional arrangements are very much at their early conceptualization.

The 'no advantage' test is too complex to be workable, and far too uncertain to work as an effective deterrent. In any event, Paris Aristotle, a member of the Expert Panel told ABC Radio on Tuesday: 'I'm assuming that we'll continue to see boats coming for a while. I'm not sure you'll ever stop boats completely. I just think the way in which things function around the world now is that I don't think that's necessarily a realistic option.'

The Malaysia Solution

The Coalition and the Greens are implacably opposed to any Malaysia proposal. Under the new law passed by the Australian Parliament, no country will be eligible to host offshore processing unless there is agreement from both Houses of Parliament. Both Houses of Parliament have now backed the Nauru option. Before the next election, there is no way that the Senate will agree to Malaysia. The Greens won't have a bar of any offshore processing arrangement. The Opposition describes the Malaysia deal as 'abominable'. The Houston panel thought there was merit in the Malaysia proposal. But like the High Court, they thought it fell short on human rights protections and recommended further negotiation of basic human rights review mechanisms with the Malaysian government. There is no way that Australian officials will credibly be able to reopen negotiations with Malaysia before the next federal election. The Malaysian officials will know that such discussions could never satisfy the Australian Senate as presently constituted, and that any discussions will simply be face-saving exercises by the Gillard government. The Malaysians would find such discussions demeaning and a waste of time.

Between now and the next election, we can be fairly sure that anyone sent to Nauru will not have been resettled. They will still be awaiting processing and/or resettlement on a timeline which follows the 'no advantage' rule. There will be no further development of the Malaysia proposal. And the vain hope of a regional agreement to solve a regional problem, and not just the Australian problem, will still be on the long finger. We need another proposal which could pass ethical muster as well as being workable, given the Parliament's newfound bipartisan hostility to onshore processing.

Future ethical considerations

Within the international order, the security, well-being and human rights of persons is primarily the responsibility of the nation state. The community of nations respects the sovereignty of nation states. It is to be expected that some persons will face persecution at the hands of their own governments because the government is either wielding the discriminatory fist or holding its hands behind its back while others engage in the persecution. Thus the international community has a responsibility to look to the security, well-being and human rights of those who are so persecuted.

Those fleeing persecution should be treated in a dignified manner, being offered basic necessary protection. They should be humanely housed, have their claims dealt with under a transparent, fair process, and be offered a durable solution in a timely fashion. Those fleeing persecution should not view their plight as the basis for seeking their preferred migration outcome. Once offered an appropriate level of protection, they should await local integration into their host community or resettlement in a third country.

Ideally, each nation state should process onshore the asylum seekers arriving in its territory. Alternatively, nations might seek a regional solution to regional asylum problems, even setting up regional processing centres. Wealthy countries may want to consider outsourcing the accommodation and processing of asylum seekers to impoverished client states or to other nations seeking a bilateral advantage. Offshore processing, like onshore processing, should include humane accommodation, transparent processing and prompt resettlement.

All countries, even those which are not net migration countries, have a responsibility to offer protection to those persons fleeing in direct flight from persecution. All countries are entitled to maintain the integrity and security of their borders. Being an island nation continent, Australia is more able than most to entertain the notion of hermetically sealed borders. Nations sharing land borders do not waste precious resources trying to exclude all unvisaed entrants. Australia is less able to seal its borders hermetically because we want to retain possessions in the Indian Ocean which are much closer to Indonesia than to the Australian mainland. With possessions like Ashmore Reef, it is almost as if we share a land border with Indonesia.

Countries like Australia which are net migration countries should provide some humanitarian places in the migration program, as well as places for business and family reunion. Given the vast number of people facing persecution and human rights abuses in the world, net migration countries are entitled to set an annual quota of migrant places, including a quota on those requiring humanitarian assistance. The Houston panel has suggested a more generous humanitarian quota than Australia's average in recent years. The Gillard government's response and commitment to provide 20,000 humanitarian places a year is welcome.

Australia has a humanitarian interest in reducing the appeal of desperate asylum seekers making dangerous voyages in leaky boats from Indonesia. It is false to suggest that there is a queue or series of queues weaving like songlines across the globe — the right way to come being to join a queue and the wrong way to come being to jump the queue. In some parts of the world there are queues. In other parts of the world (like Pakistan) there are not; there is only mayhem — as for the Hazaras fleeing from Afghanistan to Pakistan. This week Professor Bill Maley produced his latest authoritative assessment of the situation of Hazaras in Afghanistan, noting: 'To assume that Hazaras can expect protection from the agencies of the Afghan state is unrealistic. The generally poor quality of the Afghan National Police, often combined with ingrained antagonism towards Hazaras, means that there is little prospect that the police will be willing or able to protect vulnerable Hazaras even in Kabul.'

Once asylum seekers have reached a place where an appropriate level of protection and processing is provided, they should wait there, and governments are entitled to design measures which encourage such waiting. The Houston panel suggested the need to enhance the prospects of people waiting, while at the same time ensuring that those who take to the boats not enjoy any advantage.

The ethical problem with the Pacific Solution Mark II is that it is impossible to calculate the usual waiting time for resettlement of asylum seekers in Indonesia. It is not as if everyone is placed in the one queue with the same treatment. Needier cases are often dealt with first. If people are to be held on Nauru longer than is required for their processing and resettlement, either the Australian government officials will have to institute a 'go slow' on processing or the Nauruan government officials will have to breach numerous provisions of the Refugees Convention once persons are proved to be refugees awaiting resettlement. A proven refugee, as distinct from an asylum seeker awaiting processing, is properly entitled to be treated no less favourably than other visiting foreigners and in some instances to be treated as well as the citizens. For example, there is no principled reason why a proven refugee should be denied the right to travel to other countries while awaiting resettlement. The Pacific Solution Mark II needs to work on the bluff that asylum seekers sent to Nauru will be denied resettlement and other refugee entitlements for as long as it would take to resettle them had they waited in Indonesia.

So we need to find an ethically more appropriate way to stop the boats. A regional solution to the regional problem will take many, many years, and Australia with its unduly sensitive, relatively small problem will not be the key player to determine that progress. We probably need to work in close co-operation both with Malaysia and with Indonesia. There is no point in ruling out such co-operation simply because neither country is a signatory to the Refugees Convention. Here is my suggestion for a short term ethical, workable Australian initiative.

Over the next 14 months in the lead up to the federal election, Australian officials should redouble their efforts to seek a bilateral arrangement with Indonesia, with the co-operation of both UNHCR which will be responsible for processing and IOM which will share responsibility with the Indonesian government for offering humane accommodation during processing and while awaiting resettlement. Under a memorandum of understanding (MOU) tabled in both parliaments, Indonesia would agree not to refoule any person whose asylum claim was awaiting determination nor any person proven to be a refugee. Whereas UNHCR has 217,618 persons of concern on its books in Malaysia, it has only 4,239 in Indonesia. Other than the Sri Lankans, all asylum seekers who head to Australia by boat come through Indonesia. We need to set up a workable, transparent, honourable queue in Indonesia. Persons in the queue would receive appropriately deferential treatment from UNHCR deciding that the neediest cases would be dealt with preferentially. What we need is Indonesian agreement to an arrangement whereby Australia funds the accommodation and processing arrangements in Indonesia, with Australia setting an agreed quota of resettlement places from Indonesia. The quota needs the agreement of both governments — being sufficiently generous to assist clear the Indonesia caseload, and being sufficiently tight not to set up a honeypot effect luring more asylum seekers to the Indonesian queue awaiting passage to Australia.

The human rights safeguards would need to match the requirements set by the Houston panel when reviewing the presently defective Malaysia proposal including 'the operational aspects need to be specified in greater detail' and that 'provisions for unaccompanied minors and for other highly vulnerable asylum seekers need to be more explicitly detailed and agreed'. The MOU would need to be accompanied by 'a written agreement between (Indonesia) and UNHCR' and 'a more effective monitoring mechanism' of human rights protection, including participation by Australian 'senior officials and eminent persons from civil society'.

Any person leaving Indonesia by boat for Australia could then be intercepted either before or after reaching the Australian mainland. They could be held briefly in detention while a prompt assessment was made whether they genuinely feared persecution in Indonesia. Almost none of them will. They could then be safely flown back to Indonesia and literally placed at the end of the queue. Should they attempt a boat journey again, they could be flown back having previously been informed that they would never be offered a resettlement place in Australia. This would be a more ethical way of stopping the boats than indeterminate warehousing of people on Nauru and Manus Island. The increase of the humanitarian intake proposed by the Houston panel could then allow us to take more refugees from further up the transport chain.

In the lead up to the election, Tony Abbott and Scott Morrison are sure to continue insisting that the Gillard Government's Pacific Solution Mark II will not work. In all probability this will undermine the efficacy of the Gillard Solution in stopping the boats. Imagine if Kim Beazley had spent 2001 trumpeting that Nauru would never work and that people would end up in Australia anyway. Even without the political static, there is real doubt whether the Gillard bluff 'Don't get on a boat because you might end up in Nauru for an indeterminate time under the 'no advantage test' and you might not ever get to Australia' can do what the Howard bluff could not deliver second time around. Philip Ruddock has already put us on notice with his observation to parliament this week:

Let me say very clearly that I think the task is bigger and harder than the task the Howard government faced. The prospect of the Nauru arrangement alone working is, in my judgement, quite remote. All the measures that we in government used need to be brought to bear, and quickly, on these matters to bring them under control.

We can expect that there will be a cohort of people housed or detained on Nauru and Manus Island until the next election. For how long, we know not, given Minister Bowen's explanation:

So the blanket sort of average rule is not particularly helpful here because the benchmarking would apply on a case-by-case basis looking at individual circumstances. And that is something that we'll continue to work on with our posts and various stakeholders around the region to establish those benchmarks.

But the very important underlying principle is one of fairness as much as anything else, is that people who arrive by boat should not be advantaged in terms of their resettlement options in Australia as opposed to those who would be resettled to Australia from elsewhere in the region.

The Houston panel has made it clear that towing back the boats is not a safe option at this time. The panel declined to recommend the re-institution of temporary protection visas (TPVs) presumably because they are convinced by the evidence that TPVs being issued to men simply results in women and children family members feeling compelled to get on the next boat, given that there is no other way to be a reunited family.

While hoping that the Pacific Solution Mark II with the unworkable, unethical 'no advantage' rule will in fact stop the boats in the short term despite the Abbott static, we need to build greater trust and co-operation with the Indonesians so that those asylum seekers, other than Sri Lankans, minded to get on a boat to Australia can be processed in Indonesia. If that works, we might then look to a one-off co-operative solution for the Sri Lankans much closer to home — and I don't mean sending them back to Sri Lanka without any assessment of their protection needs.

UNHCR's advice on Nauru which has been tabled in the Australian Parliament notes:

[I]t is not clear from the information available to us that transfer of responsibilities for asylum-seekers to Nauru is fully appropriate. Whilst UNHCR welcomes steps taken by the Government of Nauru to accede to the 1951 Refugee Convention last year, at present, there is no domestic legal framework, nor is there any experience or expertise to undertake the tasks of processing and protecting refugees on the scale and complexity of the arrangements under consideration in Nauru. Barring receipt of information to the contrary, it is difficult to see how Nauru might meet the conditions set out in UNHCR's paper on maritime interception and the processing of international protection claims.

Even if the revised Pacific Solution does stop the boats, it can only be a stop-gap measure unless and until Nauru is equipped to discharge its obligations under the Refugees Convention. This is a long term work in progress, and it will need much more dispassionate consideration once the next federal election is behind us. I trust that members of the Migration Institute of Australia will be in a position to make a considered, informed contribution. The search for a workable and ethical offshore solution to Australia's asylum caseload continues. It would be a pity if the work of the expert panel were not built on, being simply treated as the circuit-breaker for putting this intractable issue off the political agenda. After the next election, whoever is Prime Minister will need sound advice about how to stop the boats more surely and more ethically. 


Frank BrennanFr Frank Brennan SJ is professor of law at the Public Policy Institute, Australian Catholic University and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University. The above text is from his address to the Migration Institute of Australia
, Menzies Hotel, Sydney, 14 September 2012.


 



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If only we had two leaders who just stopped their incessant whining, we helped to write the refugee convention and should abide by it. But Frank, we only have an obligation under the law to those who arrive on our frontier, we have no obligation beyond foreign aid to anyone else. There are 34 articles we promised to abide by under the convention, we can't be bothered so we use brute force. The tamils we sent today were told they were coming here to the mainland and as they have sailed directly here what is our legal right to do any of it. The pretence that we alone in the world can trade and traffic humans to suit ourselves is back to the slave trading mentality of the Brits in the 17th century but without the work and trade benefits. A yound man interviewed on the Breakfast program this am said if he was on Nauru at least he could be supported by Australia instead of himself. So what is the point. And there is no law that says refugees have to wait anywhere at all, never has been and never will be.

Marilyn 14 September 2012

And they are not experts, they simply ignored the experts to deliver Gillard her political fix.

Marilyn 14 September 2012

Marilyn says: “we only have an obligation under the law to those who arrive on our frontier, we have no obligation beyond foreign aid to anyone else.” I have two concerns about this – one legal, and one moral. First a word on the legal obligations. As I noted in my book Tampering with Asylum, when the Universal Declaration of Human Rights was being drafted after World War II, Australia was one of the countries that was very testy about recognising any general ‘right of asylum’ for refugees. Australia conceded that a person had the right to live in their country; they had a right to leave their country; they had a right not to be returned to their country if they were in another country and if they feared persecution on return to their own country. But, Australia believed, people did not have the right to enter another country without invitation, having exercised the right to leave their own country, even if they feared persecution. In 1948 the drafters of the universal declaration proposed that a person have the right to be ‘granted asylum’. Australia was one of the strong opponents, being prepared to acknowledge only the individual’s right ‘to seek and enjoy asylum’, because such a right would not include the right to enter another country and it would not create a duty for a country to permit entry by the asylum seeker. During the preparations for the 1948 discussions, Tasman Heyes, Secretary of the Department of Immigration wrote: “If it is intended to mean that any person or body of persons who may suffer persecution in a particular country shall have the right to enter another country irrespective of their suitability as settlers in the second country this would not be acceptable to Australia as it would be tantamount to the abandonment of the right which every sovereign state possesses to determine the composition of its own population, and who shall be admitted to its territories.” Australia was on the winning side and was able to live with Article 14 of the Declaration of Human Rights — that ‘Everyone has the right to seek and to enjoy in other countries asylum from persecution.’ You could ask for asylum. You were not guaranteed a favourable answer, but if you received an invitation to enter, you then had the right to enjoy your asylum. The matter returned to the United Nations’ agenda with the drafting of the International Covenant on Civil and Political Rights. The Australian government’s 1955 Brief in preparation for the General Assembly pointed out that the Department of Immigration thought ‘any limitation of the right to exclude undesirable immigrants or visitors unacceptable’. In 1960 the Russians proposed a general right of asylum. Australia maintained its resistance. No right of asylum was included in the covenant. Under the 1951 Refugees Convention, legal obligations arise only once a refugee has entered, not when they are seeking entry. Under the Refugees Convention, we do not have a legal obligation to receive asylum seekers presenting at our borders. However, once they have entered our jurisdiction, whether lawfully or unlawfully according to Australian domestic law, we do have an obligation not to refoule them to the place of persecution. If they entered unlawfully in direct flight from persecution, we are obliged not to impose penalties. And if they are lawfully in our territory we cannot expel them save on grounds of national security or public order. Second a word on moral obligations. I don’t think it useful to focus only on limited legal obligations under international law. When formulating an ethical, coherent and workable policy, we should consider all our moral obligations. But yes, we should not invoke vague moral obligations to all persons in need so as to undermine our commitment to specific legal obligations to those refugees who have entered Australia. But we need to be careful in specifying what are those legal obligations. They are not as comprehensive as some people think.

Frank Brennan SJ 17 September 2012

My point was that we don't get to trade people all over the world in an attempt to avoid legal obligations.

Marilyn 18 September 2012

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