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

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, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 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 the early 1990s.
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Pappinbarra Fox
Pappinbarra Fox
14 years ago

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.

Rex Ringschott
14 years ago

An excellent piece Ken.

14 years ago

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?

Andrew Bartlett
14 years ago

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.

14 years ago

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.

Francis Xavier Holden
14 years ago

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.

14 years ago

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.

14 years ago

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.

14 years ago

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.

Edward Carson
14 years ago

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?

14 years ago

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’.