Bring back the Pacific Solution?

The decision to grant protection visas to all 42 Afghan asylum seekers from the SIEV36, the boat that exploded off Ashmore Reef on 16 April killing 5 people, may prove to be one of the biggest political and policy mistakes the Rudd government has made.  Presumably they were all assessed as genuine refugees, but  approving their applications sends precisely the wrong message to the people smugglers and their customers, at a time when almost 2000 illegal asylum seekers have been intercepted in the last 12 months trying to reach Australia with another six vessels apparently on the way.

Holding a well-founded fear of persecution for a Refugee Convention reason is only one factor in the decision whether to grant a protection visa.  The other key aspects are passing health and character tests.  The NT police have apparently been unable to ascertain exactly which asylum seekers set off the deliberate explosion on board SIEV36, but it’s reasonable to surmise that some of those granted visas were involved while others must have known who did it but have declined to co-operate with police.  In other words, some may be murderers while others are at least accessories to homicide, it’s just that we don’t know which.

Section 501 of the Migration Act 1958 (Cth) would certainly have permitted Immigration Minister Chris Evans to refuse protection visas in such a situation.  Evans should have done so, drawing a “line in the sand” in the same way John Howard did with his famous/notorious statement “We will decide who comes to this country and the circumstances in which they come” back in 2001.  Howard’s posture may in significant part have been electorally driven, but his remark also signalled to people smugglers and their customers a determination to stem a flow of illegal boat people just as large and worrying as the current situation, and along with resolute policy action it worked.

Section 501(1) reads:

The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

The character test itself is set out in subsection 6. Given that the NT Police were unable to work out who set off the explosion (but are satisfied that it was deliberate and that the perpetrator was one or more of the asylum seekers), it’s difficult to see how Evans could have been “satisfied” that any of these asylum seekers passed the character test.  Conversely, having now granted the visas it will be very difficult for the Minister to cancel them. Visa cancellation is governed by subsection 2 and requires not only the Minister’s lack of satisfaction concerning the character test but also a reasonable suspicion that the visaholder does not satisfy it.  It is difficult to see how the Minister could have a reasonable suspicion about any particular person in the circumstances.

It is becoming increasingly clear that dramatic and decisive action is needed to stem the increasing flow of illegal boat arrivals.  Howard employed both rhetorical signals and decisive policy action in a similar situation, implementing temporary protection visas and the Pacific Solution to completely deny illegal asylum seekers access to Australian courts.  Along with reinvigorating fractured co-operation with Indonesia, Howard and Ruddock succeeded in controlling a situation similar in magnitude and threat to the one Rudd and Evans currently face.

We should keep this in perspective.  Two thousand illegal arrivals per year is quite manageable in itself, in the context of an overall migration programme of more than 200,000 per year (including 457 temporary work visas) and a planned offshore refugee and humanitarian programme of 10,000 per year.   That is especially so given that the Rudd government, like Howard, reduces the planned offshore programme in inverse lockstep with the number of successful protection visas granted to illegal boat people arrivals.  However, former Howard government Immigration Minister Philip Ruddock plausibly asserts:

“When we were faced with an enormous people smuggling problem, 2000 a year was the figure we were reaching, and it’s where we are again,” he said.

“All the advice to me as minister from police, intelligence agencies as well as the immigration department was that there was a pipeline (of 10,000 people) behind that number – in Indonesia, in Malaysia, in Pakistan, right through the Middle East to as far as Syria and Jordan.”

Australia would have much greater difficulty in dealing with illegal arrivals in numbers as large as 10,000 per year, and there is every reason to believe that this is the scale of situation we again face.  Not only would the logistics and costs be huge, completely overwhelming the capacity of the current Christmas Island detention facility to cope and probably necessitating mainland processing, but we would again face the spectre of Australian courts being swamped with appeals designed to delay and thwart the assessment process.

More importantly, unplanned arrivals in such large numbers,  overwhelmingly from Middle Eastern and South Asian countries and mostly of the Islamic faith, would place major stresses on Australia’s social fabric.  Successful absorption of large numbers of new arrivals with radically different cultural, social and religious backgrounds and expectations from our dominant culture is likely to prove extremely difficult. Public support for the overall migration programme and multiculturalism in general will certainly come under severe strain.

An equally drastic situation in the late 1980s and early 1990s led to expedient tough policy action on the part of the Hawke and Keating governments, but not before the social groundwork for the emergence of Middle Eastern crime gangs in south-west Sydney and elsewhere had been laid, along with the conditions which allowed Pauline Hanson’s One Nation to develop and fourish.  Lax administration of the family reunion programme under right wing Ministers like Mick Young and Clyde Holding in the 1980s contributed to the growth of  large and rapidly growing ethnic Lebanese and Vietnamese enclaves in south-western and western Sydney.  Then a sudden influx of boat arrivals from around 1989, consisting predominantly of Sino-Vietnamese and then Cambodian asylum seekers, prompted Hawke to appoint left faction head kicker Gerry Hand to the Immigration portfolio.  Hand quickly adopted a punitive policy of mandatory detention of all boat people asylum seekers combined with drastically restricting their access to the Australian court system.  This remains the core of Australia’s practical response to the challenge of boat people arrivals.  All Howard and Ruddock did later was to reinforce it.

Hand’s initiatives, further developed by his successor Nick Bolkus, appeared to stem the flow of boat people through most of the 1990s.  Numbers returned to a relative trickle of a few hundred per year, until 1999 when they suddenly shot up again into the thousands after Australia’s humanitarian intervention in East Timor.  That prompted Howard’s “we will decide …” statement as well as the implementation of the Pacific Solution and temporary protection visas.

I gave qualified public support to the Howard government’s actions at that time (here and here), to the disgust of some of my refugee lawyer mates.  My reasons were similar to the ones set out above.  However cynical one might be about Howard and Ruddock’s motivations, it’s undeniable that their approach worked.  The people smugglers were stopped in their tracks.

Later, I gradually convinced myself that the main reason why there had been such a dramatic upsurge in boat people arrivals between 1999 and 2001 was that Indonesia had engineered it to punish Australia for supporting the East Timorese, and that therefore the more inhumane aspects of the Howard/Ruddock policies could safely be relaxed now that we were friends with a newly democratic Indonesia under Yudhoyono.  Hence I strongly supported Howard’s late initiative (spurred by courageous “wet” liberals like Petro Georgiou) to release women and children from mandatory immigration detention and allow them to live in the community.  I also supported Rudd’s widening of that relaxation to provide a 90 day cap on detention of all asylum seekers (other than those failing the character or health tests), and the substitution of permanent protection visas for the temporary ones Howard had imposed.

However, the current dramatic upsurge in boat arrivals gives the lie to my complacent assumption.  However much Rudd may argue that the flow is caused solely by “push” factors in Australia’s general region (like the deteriorating security situation in Afghanistan and the defeat of the Tamil Tigers in Sri Lanka), it’s difficult to avoid the conclusion that we’ve also started sending the wrong signals to the people smugglers and their customers.  Neither the AFP nor the Rudd government have denied claims by Coalition Senator George Brandis that a recent AFP report stated:

“Reporting indicates that people-smugglers will market recent changes to Australia’s immigration policy to entice potential illegal immigrants. This may cause a rise in the number of attempted arrivals.”

Indonesia is doing all that it can to stem the flow, but with partial success at best.  It is unlikely that action by Indonesia alone, even with Australian help, will be enough to slow the continuing increase.  Rudd will need to take decisive action, just as the Hawke government did in 1990 and Howard/Ruddock in 2001.  Exactly what policies will be needed remains to be seen, but mere tough rhetoric and crossing our fingers that Indonesia will somehow manage the situation are unlikely to suffice.  Rudd is fooling himself if he imagines that immigration and refugee questions aren’t every bit as powerful, divisive and potentially vote-changing issues as in the recent past.  The only factors Rudd presently has going for him on this front are Turnbull’s sadly diminished status as Opposition Leader and the fact that, as a “wet” Liberal himself , Turnbull is probably having trouble mustering the intestinal fortitude to adopt the requisite ruthless stance and trade in his Amnesty International credentials as Ruddock did without a qualm.

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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Chris Lloyd
14 years ago

The humanitarian quota of 13000 per year is a zero sum game. If you let in Ahmed this year then someone else has to wait until next year or later. It is in this sense that boat arrivals who “lose” their passports are jumpers of an admittedly disorderly queue. To put it more plainly, 2000 boat arrivals will probably gain entry this year. This means that 2000 poor bastards in African camps will not get in. They are denied any chance of entry thanks to Julian Burnside and his supporters. This puts a different complexion on their moral posturing don’t you think?

14 years ago

From the UNHCR site:

“At the beginning of 2009, there were some 838,000 asylum-seekers of concern to the UN refugee agency. They are found around the globe. UNHCR advocates for governments to adopt fair and efficient procedures to determine if an individual asylum-seeker is a refugee, recognizing how difficult it is in many cases to document persecution.”

and thus far in 2009, Australia has taken to Xmas island……what? 1,500? 1,600? In statistical terms, that’s 0.19%. Hardly anything to be concerned about from the perspective of being over-run by radical islamist elements, or whatever the rationale du jour for the radical right happens to be at the moment.

I would agree with Jacques, that a change of ideology in this country has emboldened some into believing the doors have been flung wide open. I don’t believe that’s the case, however Labor has complicated the ongoing situation for itself politically, by abandoning the Howardian ethos, but rightly so in my view. Indefinite detention, abandonment of basic human rights and all of the cock-ups of the previous regime’s lack of proper oversight in the pursuit of the rabid redneck vote are not the Labor way, and ought never be considered to be the Australian way of addressing the ever increasing global refugee problem.

The problem itself is greater than one single nation’s immigration policy can handle, and requires a concerted approach by the global community in both restraining the trade in covert people smuggling and looking into the matter of asylum for persons fleeing oppression and bigotry much deeper than labelling them ‘illegal immigrants’, making a show of processing them as refugees, and then turning some away while allowing some to stay. Address the ‘push’ AND ‘pull’ factors. There’s little point in playing politics with one or the other.

Chris Lloyd
14 years ago

Niall, I don’t disagree with much of your substance but I think you betray yourself with the tone. For instance: the rabid redneck vote.. Around 80% of Australians favour a tough approach to boat arrivals and supported JH on this issue.

Niall says: In statistical terms, thats 0.19%. Hardly anything to be concerned about from the perspective of being over-run by radical islamist elements, or whatever the rationale du jour for the radical right happens to be at the moment. That would be the same radical 80% of the population I just mentioned. 1500-2000 is quite enough to be concerned about when the total refugee intake is around 6500, not from the point of view of beign swamped but from the point of view of running a fair system that does not reward and encourage cheats and criminals.

Theres little point in playing politics with one or the other. Whenever someone points out the dubious credentials of boat arrivals they are accused of playing politics. Those who argue for open doors are called compassionate. Who exactly is playing politics?

Australians are sympathetic to refugees but most of us just don’t think these people are. I would advocate doubling the refugee quota but placing the onus of proof on the applicant in assessment- which would require withdrawing from the convention.
14 years ago

Chris, my betrayal by tone, as you claim it to be, is entirely deliberate and purposeful. I have no tolerance for dog-whistle politics or those it attracts.

derrida derider
derrida derider
14 years ago

sheesh, Ken, it took only one or two people to set that boat on fire. Even if you are not prepared to cut those one or two people some slack on grounds of desperation and/or incompetence (don’t forget the arsonist is quite likely to be among the dead anyway), are you saying their actions mean the rest of those on the boat aren’t of good character? That smacks of an Israeli-like view on collective punishment.

Having a well founded fear of persecution is not sufficient to get refugee status, but it is certainly necessary. Do you really want to send those families straight back to a Sri Lankan concentration camp or worse?

Even if you want to be purely selfish about it, there is a much greater likelihood that the boat people will become successful citizens than other migrants simply because they have unambiguously demonstrated their desperation to do so. That has, for example, been the experience of Indochinese migration. As a US senator once said of Haitian boat people, “we need people who were so keen to get here that they built a boat out of milk cartons and sailed on it” (as once happened, BTW).

14 years ago

I have no tolerance for dog-whistle politics or those it attracts.

Such a paradox is Niall. No tolerance for Rednecks, but also no tolerance for “slitty-eyed, slimy little Landcruiser-driving vietnamese pricks” who scratch his Camry.

14 years ago

I’ve just come across this thread. But is dd recommending we make it mandatory for all of our 180,000 or so immigrants to arrive by leaky, unseaworthy boats to prove their worth as immigrants?