Club Troppo

Gillard government – Not a time for political point-scoring but the sinking is all that mongrel Abbott’s fault for refusing to vote for our Malaysia Solution amendments.

Coalition -  Scott Morrison says “the tragedy confirmed the Coalition’s worst fears” but restrains himself from expressly blaming Labor until tomorrow, when he’ll assert for the umpteenth that it would never have happened but for Labor’s abandonment of Saint John Howard’s  Nauru and temporary protection visa policy.  Morrison will embrace the safe bet that a supine media will fail to point out that consistent strong DIAC advice is that the Nauru Solution simply won’t work nor notice that the tiny island nation has had three different prime ministers in the last three weeks, the first of whom resigned after corruption allegations which are unsurprising to anyone who remembers that Nauru survived for some years after the guano ran out by turning itself into a tax haven and laundering billions plundered by the Russian Mafia.

Convulsive conspiracy theorist Tony Kevin  instantly and despite a complete lack of evidence claims conspiracy and “cover-up” by ASIO and Kopassus to sink the boat deliberately to frighten and deter asylum seekers (viz re-run of his SIEV X conspiracy theories for which there was also no evidence).  David Marr can be expected to launch into a prissily sanctimonious version of the same refrain in the next couple of days.

Ian Rintoul of the Refugee Action Coalition and Sarah Hanson-Young of the Greens claim it’s both major parties’ fault for “demonising” people smugglers and failing to realise that the best policy would be to make it easier for them to use safe vessels.  If only those heartless government bastards didn’t confiscate the smugglers’ boats and burn them, they’d be able to charter really big and seaworthy vessels (like old cruise liners for instance) and make even bigger profits transporting the yearning masses to Australia in thousands at a time.

Peter van Onselen makes the most sense on Twitter:

“Bottom line is the arguments of the simplistic left & right on this issue don’t provide answers & moralizing about deaths at sea won’t help.”

I still argue that some version of the Malaysia Solution with adequate assured human rights safeguards + an expanded Australian humanitarian migration target of 20,000 per year (now official Labor policy) would be the least bad ex tempore solution, but the chances of Malaysia agreeing to adequate safeguards (because it fears making itself a magnet for asylum seekers in the guise of waiting room for Oz migration) or Abbott voting to enable such an approach (despite urgings from even the Murdoch press) are remote.  Merry Christmas?

I simply can’t understand the strategic or even tactical thinking (if any) behind the Gillard government’s decision to pursue a legislative revival of the Malaysia Solution.  Neither the Coalition nor the Greens were ever going to support it, nor were many voters going to spend enough time actually thinking about the issue to realise that Tony Abbott’s position is not only cynically destructive but logically absurd and unworkable.  Of course the same is true of his climate change “policy” but no-one seems worried about that either.

What Gillard should have done was reluctantly accept from the outset that the High Court’s decision had effectively doomed the Malaysia Solution at least in the immediate future.  Given that this is what all the experts were saying anyway, persuading people on that proposition shouldn’t have been a big ask.  Then she and Bowen could have (and still should) set about constructing a workable policy framework around onshore processing, perhaps also taking advantage of Abbott’s willingness to wave through a revival of Nauru/Manus Island offshore processing merely to be able to say “nah nah nah , told you so”.  Anyway, here’s my rough stab at a post-Malaysia Solution asylum seeker policy:

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A comment by Chris Lloyd on my post about last week’s High Court decision brings into sharp relief why it will be a high risk strategy for the Gillard government to adopt a policy of wholly onshore processing of boat-arriving  (and by definition visaless) asylum seekers.  That especially applies if applicants are accommodated in the community after health, identity and security clearances rather than in mandatory universal detention, even though that’s the way most countries in the world treat asylum seekers and the way the Refugee Convention specifies.  Chris comments:

I honestly believe that if we did what Ken suggests we will have 20,000 arrivals in 2012 and 200,000 in 2013. There is simply no limit to the number of refugees – loosely defined – who will come here if PR is guaranteed. Who the hell would wait in a camp?

Of course, no-one can absolutely guarantee that Chris’s scenario won’t occur.  All that can be said is that it’s highly unlikely in the long run (although in the short term people smugglers might offer drastically discounted passage in a bid to break the government’s nerve).  Britain has a much more difficult job in defending its borders against asylum seekers than Australia.  You can swim the Channel at a pinch, trains and boat and planes connect it to Europe every few minutes, and it’s geographically close to the primary asylum seeker-generating countries of Africa and the Middle East.  Moreover, Britain has long allowed asylum seekers (visaless or otherwise and irrespective of mode of arrival) to remain free in the community while their applications are processed, once they have passed initial health, identity and security clearances .  And yet Britain’s total number of asylum seeker applicants has fallen from 33,960 in 2004 to 24,250 in 2009 (I don’t have last year’s figures):

The annual asylum figures for 2009 show that overall applications fell 6% to 24,250 with 27% of decisions resulting in official permission to stay, 17% given full refugee status. During 2009 a total of 64,750 failed asylum seekers were deported or left Britain voluntarily – 5% fewer than the previous year.

A total of 28,000 people were held in UK Border Agency detention centres last year, including 1,065 children.

Britain has toughened up its asylum seeker policies in recent years but still basically adheres to the Refugee Convention expectation that asylum seekers will not be imprisoned during assessment except for a good, specific reason.  Thus it is reasonable to project that UK numbers represent an upper bound to likely Australian asylum seeker numbers if we adopt similar policies to most other western countries (i.e. community-based processing).  Indeed it is unlikely that our numbers will approach these levels on an ongoing basis. WE are a remote island continent far away from the places that generate most refugees.  In the context of an overall Australian migration program involving 200,000-300,000 migrants per year (including 457 work visas), this is a drop in the ocean.  Moreover, it is evident from the British figures that the success rate drops as total numbers of asylum seekers increase. Britain’s success rate is just 27% and has been at about that level for many years, whereas Australia’s has generally been above 70%.  There is nothing in the Refugee Convention,  broader human rights principles or commonsense (or last week’s High Court decision) that prevents any country including Australia from assessing refugee applications rigorously, especially for those who arrive without ID and cannot independently establish their identity.

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On any view yesterday’s High Court decision holding the Malaysia Solution to be unlawful is a smashing blow to the Gillard government and an equally smashing win for asylum seekers and the people smugglers who capitalise on their desperation.  In the slightly longer term it also poses a thorny policy question for the now inevitable Abbott Coalition government.  The decision may well render any renewal of the Howard government’s Pacific Solution effectively pointless.

By a 6:1 majority (Heydon J dissenting) the Court held that the Minister lacked legal power to send the 42 asylum seekers (and by extension any future asylum seekers) to Malaysia for refugee assessment and processing. It was a decision based on administrative law and statutory interpretation grounds rather than constitutional law issues.  Four Justices (Gummow, Hayne, Crennan and Bell JJ) adopted asylum seeker senior counsel Debbie Mortimer’s most audacious position, namely that:

1. the question of whether Malaysia was a “safe third country” for the purpose of the Migration Act 1958 was a “jurisdictional fact” i.e. a factual situation which must exist prior to any power in the Minister to send asylum seekers there for assessment;
2. this jurisdictional fact could not exist unless the country concerned was legally bound under its own domestic laws and/or international law to provide protection in a Refugee Convention sense, to provide proper assessment of refugee claims, and to protect basic human rights standards for all returned asylum seekers; and
3. the existence of the  jurisdictional fact of safety also requires that the actual practices and procedures of the country in question are effective in securing that safety.

Factual preconditions 1 and 2 to Ministerial power at least did not exist in Malaysia, and indeed the Minister did not even claim that they did (nor could he given that the Arrangement with Malaysia expressly stated that it was not legally binding on Malaysia).

French CJ and Kiefel J denied that the factors above could be regarded as jurisdictional facts, but held that nevertheless their absence meant that the Minister had made a “jurisdictional error of law”  in concluding that Malaysia was a safe third country.  He had misconceived the legal question he was required to address, namely whether Malaysia could be regarded in law as a safe third country.  At least as the issues and reasoning were applied in this case, it made no real difference whether the Minister’s error was classified as one  of fundamental fact or of law.

The Court also held for the asylum seekers on the guardianship issue relating to unaccompanied minors, but that was almost irrelevant given the major premise.

The big long term question is whether the Court’s decision renders any plausibly deterrent form of offshore processing effectively impossible in future.  Gummow, Hayne, Crennan and Bell JJ adverted expressly to the Howard government’s Pacific Solution:

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I’ve long been puzzled why Michelle Grattan is seen as an eminence grise of the Parliamentary Press Gallery. Unlike her corpulent male counterpart Laurie Oakes, who still occasionally produces major scoops and penetrating political analyses, I can’t remember the last time Grattan produced anything other than bland, predictable group-think. Her latest piece on yesterday’s High Court interlocutory injunction restraining implementation of the Gillard government’s Malaysia Solution until a full hearing in a couple of weeks is a case in point.

Grattan begins with a perfectly reasonable observation:

The High Court has agreed the case against it should be heard – but it has not pronounced on the issues.

But she then instantly segues without even a semblance of analysis into regurgitating the current Press Gallery spin on anything the Gillard government does:

It’s a shambles. When, with the Commonwealth Solicitor-General floundering over his paperwork yesterday, Justice Hayne said that it was ”unsatisfactory that this matter proceed in this half-baked manner”, he could have been summing up the Gillard asylum seeker policy.

What does Grattan mean by this? That Hayne J was somehow passing judgment on the Gillard government’s competence? In fact his remark is the sort of theatrical “grumpy judge” schtick that judges inflict on counsel on a daily basis in our courts, as any experienced journalist well knows.

That the mere fact that refugee advocates have launched a High Court challenge of itself somehow proves that the government’s Malaysia Solution is a “shambles”? In fact, just about every policy initiative relating to asylum seekers over the last 20 years, under the Hawke, Keating, Howard, Rudd and now Gillard governments has been challenged through the courts. You wouldn’t expect anything else. These are desperate people with little to lose and everything to gain from a successful challenge, and with refugee advocates ever willing to provide free representation. Some challenges succeed but most lose. This latest challenge will probably fail, although it isn’t completely hopeless (as I discuss below).

Is Grattan instead suggesting that the government should be taking some other policy approach? If so, what might it be? Abandoning mandatory detention of asylum seekers and adopting an open door policy, as most refugee advocates seem to assert? That might make sense in an abstract policy sense, but in the real world it would be a recipe for certain political suicide. Reverting to the Howard government’s Pacific Solution, as Tony Abbott mindlessly repeats as the sure-fire solution to “stop the boats”? In fact, as I’ve pointed out previously, the Pacific Solution has had its day. The people smugglers and their clientele now know very well that Australia ultimately had (and will have in the future if the policy is reinstated) no practical choice but to grant protection visas to most of the genuine asylum seekers sent to Nauru.

Moreover, the judicial review grounds now being advanced against Gillard’s Malaysia Solution will, if successful, almost certainly invalidate any attempt at revival of the Nauru Pacific Solution as well. This is a point that doesn’t seem so far to have dawned on any of our Press Gallery luminaries (although a commenter to Grattan’s article pointed it out). Exactly like Howard’s Pacific Solution, the legislative basis for the Malaysia Solution lies in the “safe third country” provisions found in s 198A of the Migration Act 1958 (Cth).
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As ABC 7:30 highlighted last night, it appears that the Gillard government is about to formally sign the deal with Malaysia that will see boat-arriving asylum seekers returned to the back of the queue in that country without processing.  Assuming that UNHCR accepts it (apparently the price of acceptance of the deal by Labor’s Left faction) it will represent a huge step towards resolving one of the major causes of Labor’s plummeting popularity.  It’s also a sound policy response, as I’ve argued previously.  I explore additional arguments in this post.

In fact the so-called Malaysia Solution has already been extremely successful in “stopping the boats”, even before it actually comes into effect.  Asylum seekers are arriving by boat at less than half the rate of last year, and a major reason for that must surely be the Gillard government’s pre-emptive announcement of the Malaysia Solution in late April.

However, as 7:30 observed:

But the deal takes effect from when it’s signed, so that means the 407 asylum seekers who’ve arrived here since May, when it was first flagged, are in legal limbo.

That makes it all the more important to conclude a deal with PNG for a permanent offshore detention facility there.  We haven’t heard much about progress on that front recently, probably because of Sir Michael Somare’s illness and retirement from public life.  Now Kevin07 is crook with heart trouble too.   Maybe Julia should just bite the bullet, swallow her pride and do a deal with Nauru now they’ve signed the Refugee Convention.

On a related front, detained asylum seekers continue to demonstrate both on Christmas Island and in Darwin.  An earlier story about the Darwin situation raises an issue I’ve been meaning to discuss for some time:

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Peter Roebuck, the Fairfax cricket writer, has joined Mike Atherton in suggesting a boycott of Sri Lanka. For England that means next year; for Australia, next month. It’s good to see that someone outside the cloisters of human rights activism is prepared to make a stand against the arrogant, unaccountable gloating and spin of Mahinda Rajapaksa’s government.

The UK Channel 4 documentary ‘Sri Lanka’s Killing Fields’ shown on Four Corners last week was truly sickening. The Sri Lankan army, in the course of its rout of the LTTE in May 2009, appears to have recklessly if not deliberately bombarded civilians in ‘no-fire zones’ with artillery; and to have carried out summary executions of captured Tamils, including women, some of whom appear to have been raped.

As explained in the program, Sri Lanka is not a member of the International Criminal Court, so its leaders and generals could only be indicted if the case was referred to the ICC by the Security Council. Since this is not likely to happen, the only option is concerted international pressure, at two levels: on the Sri Lankan government to permit an independent investigation; and on the members of the UN Human Rights Council to revisit the issue, having voted a week after the fighting finished to congratulate Sri Lanka on its prosecution of the civil war. (Continued)

It’s hard to deny that the Gillard government’s emerging new asylum seeker policy represents a thinly disguised reversion to Howard’s Pacific Solution, although both Gillard and Stephen Smith are giving denial a good shot.  The thing is that I suspect most “punters” will neither know nor care as long as it looks tough and stops the boats (as I’m pretty sure it will after a lag as those already in the people smuggler pipeline arrive).  With the noteworthy addition of the Malaysia element, Gillard’s solution looks (and is) sufficiently different from Howard’s recipe as to avoid an appearance of craven political capitulation.

The Malaysia element adds a critical dimension to the visaless asylum seeker issue that Howard’s policy conspicuously lacked.  As I’ve observed previously, Howard ultimately had no choice but to grant visas to asylum seekers on Nauru who were assessed as genuine refugees, because other countries simply weren’t prepared to take them (apart from a one-off initial deal with New Zealand).  Howard’s “we will decide who comes here …” statement was a hollow, meaningless threat.  Indeed so desperate was Howard to disguise this fatal flaw in his policy towards the end of his term of office that he entered negotiations with the US to swap Australian refugees on Nauru for American ones interned at Guantanamo Bay.  Had that deal been finalised it would have borne a close similarity with the deal Gillard has now done in principle with Malaysia, a point Tony Abbott has so far managed to avoid mentioning.  However Gillard’s gambit is manifestly superior at least from a border security viewpoint.  Giving US residency visas instead of Australian ones to asylum seekers found to be refugees would hardly have sent a powerful deterrent message to those contemplating signing up with the people smugglers whereas sending them to the back of the “queue” in Malaysia most certainly does.  If Tony Abbott were to experience one of his increasingly infrequent moments of disarming honesty, he would admit that Gillard’s Malaysia gambit is a policy masterstroke which a Coalition government would have adopted like a shot and proudly claimed credit for had it been currently in office.

The Malaysia element is predictably being assailed from both Right and Left.  Abbott is trying to gain mileage and negate any kudos for Gillard by painting the deal as a negotiating loss for Australia because we are to take 5 UNHCR-approved refugees from Malaysia for every unprocessed boat person we return to them.  However the reality is that Australia will almost certainly gain a huge border security win by stopping the boats, which is what Abbott has until now professed was his aim, while taking in return just 1000 extra approved refugees from offshore each year in a total migration program of around 170,000 is just a drop in the ocean and hardly a concession at all, especially if it eventually allows Christmas Island and other onshore detention centres to be closed.

The Malaysia element is also being criticised as a desperate and expedient “one-off” solution.  But that was equally true of the Pacific Solution when first propounded.  By definition all such policies are expedient reactions to immediate border security crises.  Moreover, one would suspect that it will prove possible in due course to negotiate an extension of the deal with Malaysia, as long as it doesn’t result in significant adverse domestic political blowback for its government or serve as an attractant for an increased flow of hopeful asylum seekers into Malaysia.  No doubt those concerns account for the initial limited scope of the deal.  It may even prove feasible to negotiate similar deals with countries like India and Indonesia.

Criticism from the Left has focused on the fact that Malaysia is not a signatory to the Refugee Convention and has a poor record of treatment of the 90,000 or so asylum seekers within its borders (note the contrast with the tiny numbers Australians are whinging about having to cope with).  However UNHCR is cautiously welcoming of the deal and apparently regards the undertakings of “non-refouler” and humane treatment  that Australia has extracted from Malaysia as appropriate.  The Refugee Convention does not forbid return of asylum seekers to non-signatory nations, it forbids “refouler” of refugees to their homeland or another place where they may face persecution.  What will be required here is a credible regime of oversight of Malaysia’s treatment of returnees by UNHCR and Australian authorities.  As long as that occurs, objecting to returning people from whence they transited in Malaysia in favour of taking a greater number of assessed genuine refugees from there just doesn’t make much sense except perhaps to woolly-minded Greens voters.  However much the asylum seeker lobby may shrilly assert to the contrary, there IS a queue in Malaysia and Indonesia, albeit a very long and uncertain one.  Asylum seekers can be assessed for refugee status by UNHCR and are able to apply offshore for an Australian humanitarian visa.  Why should we not choose to assist both ourselves and our poorer regional neighbours by taking more of those who choose to remain in that long, uncertain queue and less of those who take the law into their own hands to gain visa priority by subjecting their families to an extraordinarily dangerous boat voyage, and in the process place serious (if disproportionate) pressures of community resentment on Australia’s extraordinarily successful non-discriminatory migration program?

PS Incidentally, the Gillard government’s emerging policy, if successful, might even provide a plausible basis for a sustainable reshaped international burden-sharing approach to refugee policy advocated by leading refugee law experts like James Hathaway and others.  In return for being relieved of the obligation to accept ad hoc visaless boat people who arrive on their shores, countries with a significant migration program like Australia would agree to accept a greater number of refugees objectively assessed to be in need of permanent protection outside their homeland, while a much wider range of wealthy nations would shoulder the financial burden of assisting poorer countries of “first asylum” to accommodate those needing only temporary protection until conditions in their homelands improved.

We’ve been celebrating the 60th anniversary of various events towards the end of the Second World War in the last few months, like V(E) day and the liberation of Auschwitz-Burkenau.

We can also celebrate the 65th anniversary of the landmarks of the first years of the war. I’ve been thinking of June 4th 1940, not just because I’m a fan of Churchill and this was one of the days he gave us one of his great speeches. I can’t resist quoting the last, best known paragraph of the speech.

We shall go on to the end, we shall fight in France, we shall fight on the seas and oceans, we shall fight with growing confidence and growing strength in the air, we shall defend our Island, whatever the cost may be, we shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender, and even if, which I do not for a moment believe, this Island or a large part of it were subjugated and starving, then our Empire beyond the seas, armed and guarded by the British Fleet, would carry on the struggle, until, in God’s good time, the New World, with all its power and might, steps forth to the rescue and the liberation of the old.

But there’s another paragraph that is of greater significance for me.

We have found it necessary to take measures of increasing stringency, not only against enemy aliens and suspicious characters of other nationalities, but also against British subjects who may become a danger or a nuisance should the war be transported to the United Kingdom. I know there are a great many people affected by the orders which we have made who are the passionate enemies of Nazi Germany. I am very sorry for them, but we cannot, at the present time and under the present stress, draw all the distinctions which we should like to do. If parachute landings were attempted and fierce fighting attendant upon them followed, these unfortunate people would be far better out of the way, for their own sakes as well as for ours.

My father was one of the people thus interned, and thence shipped to Australia. This is no doubt one reason why I feel as upset as I do about what is going on within our borders today. As a result of these feelings some time ago my friend Lynne Gallagher asked me if I’d like to sponsor a soccer team of teenage Afghan refugees touring NSW and South East Queensland.

They were from the persecurted minority in Afghanistan – the Hazaras. I jumped at the opportunity. When I met them I was struck by how similar they were to how my father would have been. In my ignorance I didn’t think that the one thing those coming from Afghanistan would be after would be a good education. But that’s what they were all passionate about. They wanted to be doctors, and architects and engineeers.

What a sad and small minded business it has been tormenting these people on Temporary Protection Visas when there are no more coming here by boat and they could offer us so much (quite apart from any desire we might have to do what we can to protect them and lend them a hand after the traumas they’ve been through.)

In any event, over the fold is a speech I gave a couple of years ago at a dinner to raise funds for them in Sydney. I thought Troppodillians might find it of interest.

* Illustration Desolation, Internment Camp, Hay, by Ludwig Hirschfeld Mack, Hay, 1940-1.

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