The origins and incoherence of Australia's asylum seeker policy

7 Comments

 

 

During Refugee Week 2017, I would like to offer a historical perspective on how we got to where we are in the hope that we might be able to convince one or both of our major political parties to reset their policy, which is needlessly destroying lives, including the lives of children who are proven refugees still living in the no man's land of Nauru.

Frank Dalton holding a Vietnamese refugee child, Xye Than Hueon the deck of the Tu Do in Darwin, November, 1977. National Library of AustraliaI am resigned to the boats from Indonesia being stopped and staying stopped. But I think it is high time to stop the cruel treatment of the proven refugees on Nauru and Manus Island, and to provide a permanent solution for the asylum seekers waiting inordinately in the Australian community. Their treatment is separable from the stopping of future boats setting out from Indonesia. The Commonwealth's $90 million settlement of the claim brought by asylum seekers on Manus Island should be a wake-up call to us all.

We are a nation of only 24 million people. We are an island nation continent. Over half our population was born overseas or had a parent born overseas. Australia is a successful multicultural nation founded on the dispossession of the Aboriginal people. At the end of the Vietnam War, Australia took in more Vietnamese refugees per capita than did the USA and Canada.

At first, when Vietnamese refugees started arriving by boat in Darwin Harbour, Australia's political leaders were terrified. The Australian political leaders on both sides agreed Australia should be generous in accepting those refugees, in part because Australians had fought alongside them in a protracted war. But they were insistent that a regional solution be found and that refugees be held in camps throughout South East Asia while Australian officials chose which refugees to accept for resettlement in Australia.  

Australia has long prided itself on having a large but tightly regulated migration program, admitting people under three streams: family reunion, business and humanitarian. Refugees are included in the humanitarian program which also includes places for other groups such as women at risk. Australians have been most supportive of high levels of migration when government is perceived to be in control of the program. Though only 2000 Vietnamese arrived in Australia by boat, Australia received an additional 56,000 Vietnamese refugees between 1976 and 1981 who were chosen by Australian officials and usually from the camps in South East Asia.

In 1982, the Vietnamese government agreed to an Orderly Departure Program and Vietnamese refugees came in numbers up to 15,000 pa even when the whole migration program was limited to 70,000 places a year. The Australian public was quite accepting of this refugee flow. By 1989, a Comprehensive Plan of Action was finalised for the Vietnamese and further resettlements were not assured. By this time Australia had received 177,000 Vietnamese refugees but only 2000 of them had come directly by boat.

No sooner had the tap for Vietnamese arrivals been turned off than a few boatloads of Cambodians started to arrived in Darwin Harbour. This was particularly problematic for the Labor government led by Bob Hawke. Hawke's Foreign Minister Gareth Evans was instrumental in the Cambodian peace process. The government could ill afford to start recognising Cambodians as refugees. The government was afraid that the Cambodians with ready access to lawyers in Australia would be able to commence protracted litigation disputing the rejection of their refugee claims. So the government decided that in future all asylum seekers who arrived by boat without visas would be held in detention until their claims were determined.

 

"These asylum seekers were not from the region, and they were transiting numerous countries en route to Australia. Australian policy makers decided to take a more legalistic approach, claiming to comply with the letter of the Convention, if not its spirit."

 

Australia, being a signatory to the 1951 Refugees Convention and the 1967 protocol, remained committed to the obligations set out in the Convention, especially the obligation not to expel or return a refugee to any frontier where their life or freedom would be threatened, and the obligation not to impose penalties for illegal entry or presence on those refugees coming directly from a place where their life or freedom was threatened and who presented themselves without delay to the authorities on arrival. In the past, Australian officials were prepared to treat all asylum seekers as if they were still in direct flight from persecution, in part because Australia's immediate neighbours like Indonesia and Malaysia were not signatories to the Convention and because the asylum seekers were coming from countries within the region like Cambodia.

But from 1989, more asylum seekers were arriving from China. And by 2001, they were coming from countries like Iraq and Afghanistan. These asylum seekers were not from the region, and they were transiting numerous countries en route to Australia. Australian policy makers decided to take a more legalistic approach, claiming to comply with the letter of the Convention (if not its spirit), while detaining asylum seekers and offering successful refugee applicants a temporary protection visa rather than a permanent protection visa. The view taken was that these people by the time they boarded a boat in Indonesia were no longer in direct flight from persecution but rather were seeking a more benign migration outcome and a superior form of security and processing for their refugee claim.

Given that Australia had a well regulated migration program, the policy makers convinced government to change the rules such that every asylum seeker who made it onshore and who was recognised as a refugee would be seen to be taking the place of a hapless asylum seeker or deserving humanitarian case offshore who had no access to a people smuggler and who was waiting their turn with UNHCR and the Australian government, which exercised the option as to which of the tens of millions of displaced persons on the globe would be chosen for resettlement in Australia.

In August 2001, when the MV Tampa picked up 433 hapless souls on the high seas, the Australian government refused the ship captain permission to land on Australian territory and despatched the military to remove the asylum seekers from the container ship and take them immediately to Nauru in the Pacific for processing. The Australian government repeated the mantra often used by their predecessors: 'We will decide who comes to this country.' The Howard government was adamant that the Australian public would remain sympathetic to a generous migration program including a steady stream of humanitarian cases provided the government could be seen to be in control of the borders and in control of the program. Government considered a variety of measures aimed at deterring people smugglers in Indonesia and at stopping boats from leaving Indonesia.

 

"The Australian model could never work in Europe where those crossing the Mediterranean tend to come from Libya. It cannot work anywhere unless the receiving state has on hand at least one mendicant state which is a signatory to the Refugees Convention, happy to warehouse refugees for ready cash. "

 

Some Australians thought these measures too punitive and that Australia was needlessly exploiting its advantage that it did not have any land borders. When the Howard government was defeated at the 2007 election, the newly elected Labor government led by Prime Minister Kevin Rudd decided to unwind some of the punitive measures in place. This was done with insufficient co-operation with the Indonesians, with the result that the boats started coming again and in numbers never before witnessed in Australia. 50,000 asylum seekers arrived by boat and 1200 perished as sea.

By the time of the 2013 election, our major political parties were equally committed to stopping the boats by whatever means it took. Some boats had come direct from Sri Lanka. But most boats carried asylum seekers from Iraq, Afghanistan and Iran who were transiting various countries, most recently Indonesia. There was no credible suggestion that these asylum seekers were suffering persecution in Indonesia. They were seen as individuals engaged in secondary movement seeking a more benign migration outcome. Thus they were treated punitively.

Even though an expert panel reported to government in 2012 that boats could not be turned back to Indonesia safely and legally, the newly elected government of Prime Minister Tony Abbott started turning boats back in 2013 refusing to disclose information about 'operational matters'. The residual caseload of proven refugees on Nauru and Manus Island are awaiting resettlement. To date, both the Turnbull government and the Shorten opposition refuse to contemplate resettling them in Australia.

Australia's 'merit-based immigration system' is posited on deterring asylum seekers who are not fleeing directly from persecution in neighbouring Indonesia both from ever reaching Australia and from ever being able to settle permanently in Australia. Politicians are confident that public sympathy for an increased humanitarian caseload is enhanced when government can choose who comes to Australia, having had the opportunity first to screen asylum seekers before the grant of any visa.

The Australian model could never work in Europe where those crossing the Mediterranean tend to come from Libya, a failed state which could provide no assurance whatever that returned asylum seekers would not be refouled. It cannot work anywhere unless the receiving state has on hand at least one mendicant state which is a signatory to the Refugees Convention, happy to warehouse refugees for ready cash. The Australian model is frightfully expensive, and has occasioned great suffering on the residual caseload of refugees waiting on Pacific islands for resettlement and on the 30,000 asylum seekers waiting in the Australian community without access to adequate work and welfare rights.

But it has stopped the boats much to the relief of populist politicians anxious to outdo each other in looking tough on border protection in these uncertain times of increasing terrorist threats. The boats can remain stopped without our continuing cruel and inhumane practices on Nauru and Manus Island and without our leaving lives permanently on hold here on the Australian mainland.

 


Frank Brennan

Frank Brennan is CEO of Catholic Social Services Australia and Adjunct Professor of Law at Australian Catholic University. He is the author of Tampering with Asylum.

Main image: Frank Dalton holding a Vietnamese refugee child, Xye Than Hueon the deck of the Tu Do in Darwin, November, 1977. National Library of Australia

Topic tags: Frank Brennan, asylum seekers, refugee week


 

submit a comment

Existing comments

I am attending the 2017 Crawford Australian Leadership Forum. Michael Pezzullo (secretary of the Dept of Immigration and Border Protection) says there have been 30 turnbacks to Indonesia since December 2013 and that each of them has been safe, legal and transparent. It's just that transparency is delayed until operations are concluded. He could not comment on whether the ongoing financial and human cost of holding proven refugees on Nauru and Manus Island was any longer warranted. Gareth Evans rightly pointed out that the boats have stopped and thus there is no possible justification for maintaining the inhumane arrangements on Nauru and Manus Island.
Frank Brennan SJ | 19 June 2017


Still with the utilitarian - there is no law that says refugees have to stay in the first country, there is no law that says they cannot transit many if there is no protection. You being reconciled to our criminal behaviour though is beyond repugnant. We have asylum seekers from Peru, some parts of Europe, China, Lebanon, Iran and many dozens of other places but the people fly here so we never whinge about them flying over many other nations. The UN conventions we ratified forbid all the abuses you think are OK, refugees in Indonesia are still being tortured and are still in danger because pathetic old white men think brown people on boats are a menace.
Marilyn | 19 June 2017


Erika Feller (former Assistant High Commissioner UNHCR) and Michael Pezzullo (Secretary, Dept of Immigration and Border Protection) spoke at this year’s ANU Crawford Australian Leadership Forum on borders and the movement of people. The convenor of the forum is ANU Chancellor Gareth Evans. Erika Feller said, 'Perhaps the refugee issue has been warehoused in Australia'. 'Australia has had a wonderful record for resettlement of refugees but overshadowed by what's perceived to be an ungenerous response to refugees arriving at the border'. Gareth Evans agreed that Australia has a serious reputational problem with both sides of politics having engaged in a race to the bottom. Michael Pezzullo said that the protection of the borders is the foundation for public confidence in our migration program. Erika Feller countered that facts are the foundation for public confidence. She was surprised that refugees had been mentioned only once in the opening plenary sessions at the forum. There was a useful discussion on boat turnbacks to Indonesia and the connection, if any, between stopping boats and the ongoing inhumane treatment of proven refugees on Nauru and Manus Island. Michael Pezzullo was adamant that the only turnbacks to Indonesia are those reported to Parliament after the fact. At the Senate Estimates hearing on 22 May 2017, Air Vice Marshall Osborne, Commander of Operation Sovereign Borders Joint Agency Task Force,  said, ‘Our ability to detect, intercept and turn back people smuggling boats is stronger than ever. We have a committed and highly capable civil maritime surveillance and border security response fleet with access to the combined resources of the Australian Border Force and the Australian Defence Force. Since Operation Sovereign Borders commenced in 2013, we have intercepted and returned 30 people-smuggling boats and more than 765 people who attempted to reach Australia illegally. ’  Recommendation 19 of Angus Houston’s 2012 expert panel report stated: ‘The Panel notes that the conditions necessary for effective, lawful and safe turnback of irregular vessels carrying asylum seekers to Australia are not currently met, but that this situation could change in the future, in particular if appropriate regional and bilateral arrangements are in place.’ We are still no wiser as to what has changed. What would Angus Houston and Michael L’Estrange say about the present practice of turnbacks? Mr Pezzullo restated that there have been (only) 30 turnbacks to Indonesia since December 2013 and claimed that each of them has been safe, legal and transparent. In the past, he has told Parliament, ‘No persons who are taken back, turned back or provided with assisted return services in a Safety of Life at Sea engaged Australia's international protection obligations.’ At the forum, he claimed the turnbacks were transparent, but with a time delay – being reported to parliament, but only after operations are complete. It's just that transparency is delayed until operations are concluded. He could not comment on whether the ongoing financial and human cost of holding proven refugees on Nauru and Manus Island was any longer warranted. Gareth Evans rightly pointed out that the boats have stopped and thus there is no possible justification for maintaining the inhumane arrangements on Nauru and Manus Island. In the past, Mr Pezzullo has told Parliament: ‘If you do not have regional processing, you lose a vital element of your deterrence’. Given Air Vice Marshall Osborne’s unchallenged claim that ‘Our ability to detect, intercept and turn back people smuggling boats is stronger than ever’, one wonders why the need for ongoing inhumane practices on Nauru and Manus Island which now entail admitted legal liability in Australian courts. Some financial and human costs are too great, especially when the boats will remain stopped anyway.
Frank Brennan SJ | 20 June 2017


Good to have your comments Frank. I stopped being a proud Australian when Manus and Nauru were opened. I wonder if the citizenship requirements presently a subject of parliamentary debate, also include upholding the values of a country that allows such inhumanity? Another small matter-Peter Dutton's overreach for power wrt the AAT. It is truly frightening to think of so much power in the hands of one small potential dictator. Would that we had Gareth Evans back in parliament. As for the issue of transparency, well, we have many examples of totalitarian states in other countries that may have served as models for our current crowd of pollies. How did our country come to this?
Helen | 21 June 2017


Thank you for this brief history of a long torment. You've marshalled the facts on both sides of the debate, given due consideration to the rationale of a succession of governments as well as to the rationale of those of us who do indeed wish to be a better, fairer, kinder Australia. It's so important to keep the records of why decisions were made. In our polarized community we seem to care only who made the decisions, not why. And I can't find a single 'why' for continuing to torture innocent people.
Joan Seymour | 21 June 2017


Thank you, Frank, for making not just a humanitarian case for shutting down the Nauru & Manus Island detention centres but an economic and lawyerly case too. The depth with which your analysis goes into and addresses the slippery slide our history of asylum intake and prohibition is also a timely reminder to those who read ES of the bastardry that we can sink to in finding scapegoats for our racism.
Michael Furtado | 21 June 2017


Thank you Father Frank for another insightful article about the plight of refugees imprisoned on Manus and Nauru. The UNHCR has affirmed their refugee status and it breaks my heart that I can do nothing to help them. The Australian Government keeps them imprisoned in appalling conditions. Many have died and been injured and it should be to all Australians' everlasting shame that their imprisonment seems likely to continue indefinitely. Australia is a large, relatively wealthy country but the Government says that we can't fit in another 2000 people. Local and regional governments have offered to resettle refugees in their communities to no avail. The Australian Government blithely followed the United States into the various wars that created these refugees. We should at least accept some responsibility for that. I find this situation all the more distressing because many in the Government and the Opposition claim to be Christians and Catholics. Indeed, several men on both sides of the aisle were educated by the Jesuits. I often wonder how the Jesuits feel about their behaviour. I think that, in quiet moments, the Jesuits might be very unhappy about the way we treat refugees. Our behaviour is neither Christian nor Catholic.
Louise M Oliver | 22 June 2017


Similar Articles

RIP David Passi, last surviving Mabo plaintiff

  • Frank Brennan
  • 26 June 2017

Anglican priest, traditional landowner and land rights campaigner David Passi has died. He was the last surviving plaintiff in the historic Mabo decision. A year after the Mabo decision I travelled to the Torres Strait and met James Rice and Passi, the two successful litigants in the case. Returning by boat to the mainland from the island of Mer in the Murray Islands, the waters of the Torres Strait were exceedingly calm.

READ MORE

Health gap widens as wage growth falls

  • Amy Coopes
  • 26 June 2017

Universal health care is an ostensibly bipartisan prerogative, but what it actually means and how it's achieved is a somewhat moveable feast. Spending, we are told, is unsustainable as the population ages and we move toward ever-more personalised and technologically-advanced treatment paradigms. The objective of this rhetoric is to rationalise the privatisation of our health system by stealth. The latest wages figures are something of an inconvenient truth in this 'unsustainable spending' fiction.

READ MORE