The old explosive asylum story reignites

 

Yesterday’s “boat people” explosion near Ashmore Reef west of Darwin, in which 3 people were apparently killed outright and many more seriously injured, has eerie if obvious parallels with the “children overboard” saga of 2001 which helped John Howard to his third successive election victory.

The background to those events was that, like now, there had been an upsurge in “boat people” arrivals off northern Australia, though to a level 10 times greater than at present.  The Australian Navy was ordered to implement a blockade of north Australian waters, and began towing arriving asylum seeker vessels back out to sea and dumping them back just off Indonesia (from whence they’d come).

The people smugglers’ response in that instance was to begin pulling out the bungs and deliberately scuttling their vessels as soon as an Australian naval vessel came close enough to make rescue certain.  It was certainly an effective way to thwart the Australian “towaway zone” tactic and perfectly safe (note the life jackets being worn by all the asylum seekers in the water in the accompanying photo).

Of course that didn’t worry John Howard.  He suggested Australia didn’t want as immigrants the sort of people who would risk their children’s lives by throwing them in the water, playing on the ignorance of people who either didn’t realise or didn’t care that the risk involved was small, especially compared with all available alternatives for these people.  Don’t forget that 90% of the “children overboard” and “Tampa” asylum seekers were eventually determined to be refugees. That is, they had a genuine and well-founded fear of persecution or even death because of their race, religion, political beliefs or ethnic/social origin if returned to their homeland.  Their only prospect other than taking their chances with the Australian protection visa assessment system was to allow themselves to be towed back to Indonesia and spend years (possibly forever) in a state of miserable, deprived idleness and squalor in a poorly serviced refugee camp.  If you were a parent with young children in such a situation, which option would you choose?

Howard, of course, wasn’t going to let the people smugglers and their desperate human cargo win this battle of tactics though, especially not in an election year when national security suddenly marched to centre stage in the wake of September 11.  We will decide who comes here and under what circumstances, Howard famously intoned and the “Pacific Solution” gambit was born in the wake of the “Tampa” standoff. If the asylum seekers were going to keep sinking their own boats to stop themselves being towed back to Indonesia, then they would be detained and transported to a tiny, birdshit-encrusted island in the Pacific for years on end while their applications for refugee status were processed at snail’s pace.

Returning to the present, there is a crucial difference between the situation the “children overboard” and “Tampa” asylum seekers faced and that of yesterday’s group whose boat apparently caught fire and exploded.  The current group didn’t face being towed back out to sea, and they almost certainly didn’t face prolonged immigration detention while their protection visa applications were processed.  Although the relevant fact sheets on the DIMAC website show the policies to be “under review”, the Rudd government last year announced changes involving a significant relaxation in the rigour and length of the mandatory detention regime for illegal arrivals:

Under the changes unveiled by Immigration Minister Chris Evans yesterday, detention would be used only if department officials could show a person posed a security risk.

If not, they would be released into the community until their visa status was resolved.

Detainees’ cases would be reviewed every three months to ensure detention was still justified and children would not be held in detention centres.

“This isn’t about a mass opening of the gates; this is about a more humanetreatment of asylum-seekers,” Senator Evans said.

In those circumstances, WA Premier Colin Barnett’s claims that the asylum seekers deliberately doused their vessel and the surrounding waters with petrol doesn’t seem to make sense.  There must be more to it than we’re being told, unless these particular asylum seekers simply hadn’t heard that the old Howard government “towaway zone” or “lock ’em up offshore and throw away the key” policies were no longer operative.  There’s a lot more to be told about this story.

In the meantime, and by coincidence, I was discussing the broader issue of viable policy in this this area only a couple of days ago on a CDU student discussion board.  A student had commented:

Lateline last night had a really interesting segment on the Howards Pacific solution policy…and whether the opposition, were they in power, would return to this policy in light of their criticisms of the present governments supposed lack of boarder control. Check it out on www.abc.net.au/news/stories/2009/04/15/2542933.htm

From what I can gather the Pacific Solution was in direct response to the Tampa affair which saw asylum seekers transferred to islands in the Pacific while they waited for their refugee status to be clarified. Ken I read you article from the 16 May 2002 and Im wondering whether the Pacific Solution would really be the best solution/option in response to the boat that arrived on Christmas Island and the supposed increase of refugees. I’m not too sure whether there really has been a large increase of refugees?

I responded:

Yes I certainly cautiously supported the “Pacific Solution” in 202 when it seemed that the “floodgates” fears might have had some substance. However it soon became apparent that the real reason why we got a large-ish upswing in illegal boat arrivals in 2000-2002 was because the Indonesians were encouraging/facilitating it (refuelling them, giving them food etc) as punishment for Australia supporting East Timorese independence in 1999. Once the relationship with the Indonesians was repaired, they cracked down on the people smugglers again and the problem receded.

There has been a minor upsurge again in the last few months, but it’s still only at quite low levels (200-300 people per year) as opposed to the 3,000 or so in 2001-2002. The Rudd government response has been to re-initiate talks with Indonesia aimed at focusing again and reducing the problem.

Keep in mind it isn’t really a major problem in any real sense. Australia has more than 60,000 illegal arrivals in the country at any given time. They’re overwhelmingly people who have overstayed on tourist or student visas and become illegal in that way. It’s somewhat peculiar (and possibly racist in origin) to be concerned about miniscule numbers of “boat people” most of whom are genuine refugees, while not giving a toss about these vastly larger numbers of UK, US, European etc illegal overstaying tourists and students. After all, the 9/11 terrorists all entered the US on tourist or student visas. A terrorist would have to be a complete fool to draw attention to himself by arriving in an insecure conspicuously high profile manner on board a leaky fishing boat run by a dodgy people smuggler.

One aspect that is seldom noted in these debates is that the overwhelming majority of the Tampa and “children overboard” asylum seekers were eventually found to be genuine refugees. In those circumstances Australia had no real choice but to eventually give them protection visas: that’s what both Australian law and the Refugee Convention require. The Howard government did eventually give them visas, except for a handful they were able to persuade New Zealand to accept.

Keeping genuine refugees in inhumane conditions of confinement in remote locations for years on end in order to deter others from attempting the trip, while knowing that you will eventually have to release them and give them Australian visas, is not a policy that a civilised nation should pursue if there are viable better alternatives. And there are:

  • Better intelligence and policing liaison with Indonesia and other nearby countries through which the “boat people” must pass to get here;
  • For those who do arrive, detain them for as long as it takes to screen them thoroughly for disease, criminality, terrorist links etc;
  • Then allow them free in the community while their refugee protection visa applications are being processed, but on conditions that ensure they can be located and deported if found not to be refugees. Regular reporting conditions, requirements to immediately report any change of residence, and even electronic tracking bracelets would all be viable measures.

Scare campaigns about the alleged dangers of floods of ‘boat people’ are merely ‘dog whistles’ to the prejudiced former Pauline Hanson’s One Nation voters whom the Coalition needs to keep onside. They should be treated with the contempt they deserve.

Incidentally, Mike Steketee had an article in The Australian yesterday to similar effect.

About Ken Parish

Ken Parish is a legal academic at Charles Darwin University, with research areas in public law (constitutional and administrative law) and teaching & learning theory and practice. He has been a legal academic for almost 12 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in he early 1990s.
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14 Responses to The old explosive asylum story reignites

  1. Pappinbarra Fox says:

    I was in PNG when the Pacific Solution arose (I was the Provincial Legal Officer). From a legal perspective it was the most outrageous and pernicious action I know of. Basically JWH had the PNG PM Marouta traduce the PNG constitution for a measly $20m. The PNG Constitution prohibits incerceration unless a person has been convicted of a crime under a written law by a duly constituted law, or they are awaiting trial on a serious crime. In effect it was government corruption (by the Australian Government) on a grand scale and totally lacking in any ethical considerations.

  2. An excellent piece Ken.

  3. Patrick says:

    What Rex said, and a great title to boot.

    However, whilst I agree with the content and argument of your post, I am puzzled by one device therein, namely the contrast you draw between boat people and ‘western’/’rich’ illegals. Isn’t there a distinction in that the latter are, I would think, rather unlikely to seek permanent residency or even hang around extremely long, and even less likely to attempt to claim social security, whilst the former are here for exactly that (at least the permanent residency part)?

    Also, haven’t most tourist and student visa holders already jumped through a number of hoops including police checks, TB screening, etc?

    Am I completely wrong about tourist and student visa over-stayers or am I missing something else?

  4. It depends on what country people are coming from as to whether they need to provide police checks, health screening etc. Most tourists do not, and not all students. If every tourist had to provide police and health records, no one would come here.

    People are generally supposed to declare if they have relevant police or health, but they usually don’t need to provide proof that they don’t. There are various Interpol watch lists and alter systems which are supposed to pick up such things and my understanding is that they usually work well.

    Permanent residency applications are understandably somewhat more stringent than tourists, students, working holiday, etc.

    But I think Ken’s main point is right – if there is anywhere we should be concerned about in regards to alleged threats to the integrity of our migration laws or our borders, is in people who overstay, not people who announce themselves on arrival.

    Frankly, I think the whole term ‘border protection’ is a misnomer when it comes to asylum seekers, as is the whole ‘security’ mantra. Asylum seekers in boats do not threaten our borders at all, and nor do they pose any sort of security issue. These people do not enter the country undetected – they want to be found, because they want to lodge asylum requests, and they are always given health and security checks before being allowed into the general community. They are given more direct individual scrutiny than any other type of arrival.

  5. Jacques Chester says:

    I think it was the “queue jumper” description that really stuck at the time. Fear comes and goes, but being pissed off by someone pushing in front of you starts in kindergarten and lasts until the grave.

  6. Ken Parish says:

    On Patrick’s question, and to give an idea of the comparative scale of the problem (to the extent that one exists). Mike Steketee’s article (linked in the primary post) states:

    The latest report from the UN High Commissioner for Refugees says asylum applications in Australia increased by 19 per cent last year, from 3980 to 4750. How many came by boat? Actually, 179 or fewer than 4 per cent.

    DIMAC fact sheet 60 shows that there were 1,900 onshore protection visas and 5,026 special humanitarian visas granted last year (quite a few of which would have been granted in respect of people arriving onshore with valid visas in other countrues)

    In other words, the “boat people” arrivals are a tiny proportion of the total onshore refugee and humanitarian via applicants and grantees, the overwhelming majority of whom arrive on valid tourist and student visas and then make refugee and similar applications once they get here. Unlike the boat people, however, these “legal” arrivals never face mandatory detention and remain within the Australian community while their applications (for identical visas to the “boat people”) and appeals are processed. Why do the “boat people” arouse such fear and loathing but those who can afford a plane ticket and present as respectable enough to be issued a visa (almost by definition on false premises) are not?

    The other category, to which I referred in the primary post, are the illegal overstayers, of whom there are more than 60,000 in Australia at any given moment. As Patrick points out, they mostly don’t intend staying permanently, so perhaps that explains why they don’t incur the apoplectic enmity of the “shock jocks” and their moronic listeners. But even the legal arrival protection and humanitarian visa applicants (who clearly DO intend to stay permanently) dwarf the numbers of illegal boat people arrivals. Why the stark contrast in public attitudes? No answer I can think of is a flattering one to those holding such attitudes.

  7. thewetmale says:

    Possum Comitatus has a great assessment of some of the numbers. It is aimed at a Andrew Bolt, but even if you don’t care for Bolt’s lunacy the graphs are worth checking out.

  8. A great many of the jews who escaped the Nazis were helped by:

    People smugglers are engaged in the world’s most evil trade and they should all rot in jail, because they represent the absolute scum of the earth.

  9. Patrick says:

    That point about ‘boat people’ vs ‘regular’ refugees seems fair and consistent with my understanding. Personally my preference has always been to deal with it by increasing on-shore processing in situ (and yes, total numbers) but I am in a minority there, and a miniscule one at that if I go to Canberra.

    I would prefer we accept them on a HECS-style system and simply charge them the (vastly reduced) cost of processing, minimum English lessons and a brief course on Australian law and culture. We could even outsource 99% of that. If numbers did balloon (or even if they didn’t), we could introduce an up-front fee of say $25,000 reducible on a points scale broadly reflecting the current humanitarian visa application assessment metrics.

    It is worth adding that notwithstanding public attitude, DIMIA (or whatever they are called now) do not show one iota of leniency for the tourist and student visa holders. I have seen people literally accosted at work and informed that, being as they were in breach of their tourist visa conditions, they must leave the country for a foreign port within 24 hrs.

    ~ ~ ~
    I agree completely, FXH, that Ruddy is a wanker. A more charitable interpretation would be that he has lost his thesaurus and confounded ‘trafficking’ with ‘smuggling’, but I prefer mine.

  10. Patrick says:

    Hey Jacques, can we have an edit function?? I just read far enough in the linked article to note that although you have quoted accurately, Rudd is responding to a question that specifically (albeit erroneously) referred to trafficking. So maybe he gets a little leeway for that, although I don’t think either he or the interviewer ever meant ‘trafficking’ in the sense of coercing or duping people into servititude.

  11. Niall says:

    I’m amazed at the rampant xenophobia still evident in Australian society aimed purely at Muslims. A view of census stats shows Islam to be a minor religion overall with more than 50% of Muslims in this country having been born here. Australia has become a much darker nation, thanks to conservatism, from my perspective.

  12. With regards to existing law Ken makes a very valid argument, however.

    Perhaps I missed the argument on the blogs some years back, but why does Australia maintain allegiance to the UN Refugee Convention that says we MUST accept all applications from so called genuine refugees? Of the six billion plus people in the world would not there at least be 100 million who genuinely suffer some type of serious oppression? Does this mean that if they fill out the appropriate forms in duplicate, we are then obliged to accept them all into our country?

  13. Patrick says:

    Niall, what about xenophobia towards asians? And is there anything joining the first and second clause in your second sentence, other than word association?

    Finally, does your third (and thankfully last) sentence refer to how a conservative government allowed lots more dark people in than previously?

    Edward, it is international humanitarian law. Think ‘motherhood statement’.

  14. Ken Parish says:

    “Does this mean that if they fill out the appropriate forms in duplicate, we are then obliged to accept them all into our country?”

    Edward, I’m sure you know the answer to that rhetorical question as well as I do. Member states’ obligations under the Refugee Convention are essentially confined to “non refouler” to their homeland of refugees who arrive within their borders.

    Hence the Howard government’s excission of thousands of northern islands and reefs from Australia’s migration zone in 2001 (which has not been reversed by the Rudd government); then the tactic of naval blockade, interception and “towaway zone” as the flow of people smuggler vessels continued, and finally the substitution of the Pacific Solution when the people smugglers’ tactic of scuttling their own vessels rendered the “towaway zone” tactic unworkable. All these tactics were designed to avoid Australia’s international legal obligations under the Refugee Convention ever becoming engaged in the first place.

    The Refugee Convention does not impose obligations on member states to accept refugee or humanitarian migrants from offshore. Australia has a very large and generous offshore humanitarian migration programme, which is one of the more persuasive bases for maintaining reasonably tough border protection policies.

    Incidentally, irregular “boat people” asylum seekers are not “queue jumpers” because there’s no queue in the places they come from, indeed they’re the very sorts of people at whom the Refugee Convention was originally aimed.

    However, Australia (and all other countries) has a finite limit on our capacity to absorb without major social disruption large numbers of unskilled, traumatised refugees with radically divergent social, political and religious values from the dominant Australian culture. Thus, Australian governments of both political persuasions have always aggregated the numbers of irregular onshore refugee and humanitarian applicants with the offshore programme in determining the total numbers of visas in these categories that Australia will issue in any given year. The more irregular onshore arrivals who are found entitled to protection visas, the less people we accept under the offshore programme. In that limited sense there’s a queue, but it’s created solely by the (entirely reasonable from the perspective of Australian national interest) counting practices of the Australian government.

    This practice (and the reasons behind it) is not unique to Australia. Indeed the relatively few other countries with substantial offshore humanitarian migration programmes address the problem similarly. However, this raises an ongoing dilemma in international refugee law and practice. Should the claims to refugee resettlement of those who apply offshore and patiently wait for their applications to be processed receive priority over those of people who pre-emptively journey here, either with the assistance of “people smugglers” or by air with a tourist or student visa obtained under false pretenses? And should we encourage large scale permanent resettlement at all? There’s no simple, obvious or universally correct method of distinguishing between the moral worth or genuineness of need and desperation of applicants from these various groups, and no simple answer to the second question either.

    Although accepting refugees into our community is clearly generously motivated and in the individual interests of the families and individuals to whom we grant visas, there’s a credible argument that permanently resettling large numbers of refugees in western countries may be seriously damaging to the social fabric and prospects for eventual economic and political progress of the strife-torn countries from which these refugees have fled.

    Without in any sense denigrating the gravity of the persecution from which they fled, the applicants from both the onshore and offshore stream consist largely of the best, brightest and wealthiest citizens of their home countries. It’s a tragic inversion of former New Zealand PM David Lange’s immortal gibe that migration of Kiwis to Australia raises the IQ of both countries. These are the very people that their home countries will need in order to build or rebuild a viable, prosperous, modern society when/if the civil war and religious or other feuding there is ever overcome to an extent that the refugees can safely return home.

    For that reason (as well as Australia’s interest in keeping arrival numbers at levels we can absorb without unacceptable levels of social strife and disruption), you can mount a plausible argument that we should maintain a fairly tough border protection regime which seeks to deter irregular arrivals while also treating them humanely and fairly.

    We should also maintain a generous aid programme to allow poor third countries adjacent to the strife-torn nations from which large refugee outflows are being generated to accommodate refugees within their borders in humane, viable conditions until it’s safe for them to return home. At the moment that mostly means India, Iran and some Arab Middle Eastern countries, in that the largest refugee outflows are currently being generated from Afghanistan, Pakistan, Sri Lanka and Iraq. Incidentally, the Refugee Convention itself (or at least its associated protocols and practices) accepts that the fact a refugee has already found “durable asylum” in a “safe third country” is a valid reason for the receiving (wealthy western) country to refuse to grant a protection visa. That is a common reason for Australia to refuse protection visas, although in some cases the “safety” and “durability” of the asylum provided by the (third world) third country adjacent to the refugee’s homeland may be open to serious question.

    The contrary argument to pursuit of a general policy based exclusively on supporting third world “safe third countries” to maintain refugees within their borders is that many of the conflicts and problems that generate refugee flows are very longstanding and seemingly intractable. It’s certainly difficult to see the problems of Afghanistan, Pakistan or Sri Lanka being resolved any time soon. Refugees from those countries could conceivably end up living out their entire lives in refugee camps next door to their home countries. In the real world, whatever policies we choose to adopt some will inevitably resort to desperate expedients to find a viable permanent home for their families. For that reason, there remains a commonsense humanitarian imperative to accept for permanent resettlement as many refugees from such countries as we can absorb without major social disruption.

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