An asylum seeker solution?

With Rudd Labor’s sudden slump in opinion polls this morning, I can’t help saying “I told you so” (in my recent post about asylum seeker policy):

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 arent every bit as powerful, divisive and potentially vote-changing issues as in the recent past.

Of course the Newspoll might just be a “rogue”, or the asylum seeker issue might not be the predominant cause of the sudden reverse for Labor.  However Rudd’s seemingly ineffectual handling of the Mexican standoff with Sri Lankan Tamils on board the Australian customs vessel Oceanic Viking (and the asylum seeker issue more broadly) is the only obvious evident change in the Australian political landscape over the last few weeks, so it’s a reasonable guess that it’s a key factor.

No doubt many left-leaning pundits will either ignore this uncomfortable fact of public opinion, or dismiss it as the untutored response of the prejudiced Bogan masses, exhibiting the same ignorant lynch mob mentality so charmingly portrayed on last night’s Four Corners in relation to serial paedophile Deniis Ferguson.  However, on this occasion popular response and sound policy may just coincide.

Perhaps the Left needs to start grappling seriously with the proposition that John Howard’s infamous “we will decide who comes to this country and the circumstances in which they come” line was on the money in a policy as well as populist sense.  Australia is clearly facing an imminent and ongoing asylum seeker “pipeline” of at least 10,000 irregular boat arrival asylum seekers per year.  Moreover, with refugee numbers worldwide estimated at 24 million, we may eventually face the prospect of even larger numbers if the current flow isn’t stemmed.

However, even 10,000 boat arrivals per year would effectively completely displace Australia’s existing offshore humanitarian migration programme.  It has stood at around 13,500 per year for quite a  few years now, and successive governments of both political persuasions have followed the practice of reducing the offshore humanitarian programme in lockstep with any increases in irregular onshore arrivals granted protection visas.  It’s in this very real sense that the boat arrivals are “queue jumpers”.  Many civil liberties exponents scoff at the phrase “queue jumper”,  arguing that no queue exists.  It’s certainly true that it’s a very slow and disorderly queue, with asylum seekers genuinely fleeing their home country in haste and then waiting for years in a an insecure and often unpleasant refugee camp in a third world country hoping that the UN will eventually arrive and assess them as real refugees, and that some western country might then grant them a visa.

That’s why the people smugglers’ services are so tempting to cashed-up asylum seekers.  If they can get themselves within Australian waters (or even onto an Australian vessel in Indonesian waters, so it now seems) then they get taken to Christmas Island, assessed and processed within 100 days, and have a guaranteed protection visa giving them permanent Australian residence if they pass the test of refugee status.  By contrast, not only does it take years to get assessed in the average third world refugee camp, but “successful” assessment as a refugee provides no assurance at all that you will actually receive a visa from any country.  For example, it’s said that at least some of the 78 Tamils on board the Oceanic Viking had been assessed as genuine refugees but had nevertheless still been waiting for years for a visa offer from Australia or some other country.

Given those huge incentives driving people to embark on the dangerous voyage to Australian waters almost whatever the risk or financial cost,  you can hardly blame them for taking pre-emptive action, including by sinking their own boats to prevent Australian authorities towing them back to Indonesia.   And yet not only are the risks very large, as yesterday’s events again showed but, queue or no queue, “boat people” are probably less needy on average than those waiting patiently in the third world refugee camps.  People who can afford $5,000 – 20,000 per head reputedly charged by the people smugglers are almost by definition not the neediest of refugees, although many muster the price of passage by subscription from large extended families whom they are later expected to support with their Australian wages.

Not only do irregular arrivals displace more needy offshore humanitarian applicants, and expose people to high risk boat journeys,  they also potentially undermine public confidence in Australia’s migration programme generally, and make it more difficult for migration authorities to maintain an orderly and balanced flow of humanitarian migrants who won’t form large ethnic enclaves impervious to absorption into the broader Australian community.  Current resettlement policies involve maintaining a balance between Africa,  Middle East/South Asia and EastAsia/Pacific, and spreading them around various regional centres including Darwin rather than large cities like Sydney and Melbourne where they might be less welcome.  This policy has worked quite well, in that a relatively high humanitarian intake has been maintained throughout the Howard era and subsequently, without reigniting Hansonite social divisions.  However, it manifestly won’t be sustainable if the current wave of boat people continues and increases.  Here are the figures from the most recent Departmental fact sheet:

Humanitarian Program figures

Humanitarian Program grants by category 200304 to 200809
Category 200304 200405 200506 200607 200708 200809
Refugee 4134 5511 6022 6003 6004 6499
Special Humanitarian 8927 6755 6836 5275 5026 4625
Onshore Protection 788 895 1272 1701 1900 2378
Temporary Humanitarian Concern 2 17 14 38 84 5
Total 13 851 13 178 14 144 13 017 13 014 13 507
Offshore resettlement regional balance from 200304 to
200809

Region 200304 200405 200506 200607 200708 200809
Middle East & SW Asia 24.29% 26.24% 33.98% 27.95% 35.25% 33.46%
Africa 70.78% 70.16% 55.65% 50.91% 30.48% 33.24%
Asia and the Pacific 1.87% 3.43% 9.88% 20.70% 33.67% 33.09%
Europe and the Americas 3.06% 0.17% 0.49% 0.44% 0.60% 0.21%

If the current wave of boatpeople continues, we will now see a balance overwhelmingly skewed towards the Middle East and South Asia and with very few from Africa, East Asia and the Pacific, with Tamil and Afghan enclaves forming and creating social frictions and tensions which will tend to undermine public support for migration in general.

A tentative solution

As I noted above, at the moment reaching Australian waters gives an asylum seeker an assured permanent protection visa if found to be a refugee after processing on Christmas Island.  That’s a huge incentive compared with the orderly option of staying in the “queue” in an offshore refugee camp, where no such guarantee exists and you’ll certainly wait for years if not forever for a chance at a new life somewhere safe and prosperous.

This effective visa guarantee underpinning the “boat people” phenomenon flows from the terms of the Refugee Convention 1951.  While it doesn’t require signatories to grant a permanent resident visa (hence the Howard government’s gambit of temporary 3 year protection visas to reduce the incentive to board the boats), the Convention requires  signatories not to “refoule” refugees while the risk of persecution in their home country remains real.  Australia certainly conforms to that obligation.

The combination of the non refouler obligation and Article 26 is the major reason why reaching Australian waters provides asylum seekers with an effective guarantee of an Australian residency visa.  Article 26 provides:

Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances.

In light of the boat people phenomenon and their displacing of more needy offshore applicants,  Australia should (whether formally or informally)  decline to continue fully honouring Article 26.  Asylum seekers brought to Christmas Island and found to be genuine refugees should not be automatically granted a visa entitling them to move freely within Australia.  Instead they should be given a Christmas/Cocos Islands visa entitling them only to live on one or other of those Australian offshore islands until a place can be found for them in the ordinary offshore humanitarian migration programme.  They would not be “refouled” to their homeland nor would they be kept in detention, but they would have no more (and no less) entitlement to a permanent humanitarian/protection visa than any applicant in any offshore refugee camp in Asia, Africa or the Middle East.  Places in Australia’s humanitarian programme, already one of the world’s most generous, would continue to be allocated  by an assessment of comparative need.  Thus the only benefit asylum seekers would gain from paying tens of thousands of dollars to a people smuggler would be the experience of living in rather more comfort on Christmas or Cocos Islands than would likely be the case had they remained in a third world refugee camp.

In those circumstances, one would expect the flow of boat people to dry up rapidly, just as it did when the Howard government implemented the Pacific Solution.  It was similarly posited on conveying a message that reaching Australian waters carried no assurance of getting an Australian visa.  However, paying large amounts of money to the Nauru and PNG governments to keep these people in detention offshore proved unsustainable.  Australia was eventually forced to grant visas to those found to be refugees, because no other country would take them.  We will find the same will ultimately occur with Rudd’s putative Indonesian Solution.  Australia’s possession of numerous reasonably pleasant but thinly populated offshore islands provides us with a viable ongoing solution to the increasing worldwide phenomenon of irregular migration.  We can discharge the most important of our international obligations under the Refugee Convention, and devote our national humanitarian resources to those most in need, while avoiding perpetuating huge incentives for desperate cashed-up people to jump the asylum seeker queue with the assistance of unscrupulous people smugglers.

Finally, to emphasise that this is a humanitarian national response and not a selfish one, Australia should increase its offshore humanitarian programme substantially, say from 13,500 per year to 16,000 or even 18,000.  Only the most thick-headed mung bean lefty could then portray the Rudd government as heartless.  We would be helping many more of the world’s most desperately needy refugees,  and maintaining any remaining determined queue jumpers in humane relative freedom while declining to indulge their attempts to achieve pre-emptive migration priority.

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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wcushing
wcushing
12 years ago

‘Australias possession of numerous reasonably pleasant but thinly populated offshore islands …’ Norfolk Is, Lord Howe … Tasmania …? Surely not?

Might make better sense if you proposed Macquarie Is, Heard Is, etc — where there is also plenty of environment protection work that needs doing.

doctorpat
doctorpat
12 years ago

A few tangential points:

1. If all immigrants should pay a fee because they now get access to our infrastructure, does this mean that all emigrants should get a refund?

2. Does the size of the payment (or refund) depend on the age and hence expected future lifetime of the person? Somebody who has another 5 years to live is obviously going to use a lot less of our value than a newborn baby with an estimated 112 years to go (based on current rate of life expentancy increases)

3. Will this mean a series of payments to or from the person as they move between different countries with different infrastructure/capita levels? Could you move to a third world country and get enough money to retire providing you were prepared to put up with the lower infrastructure levels?

4. What is infrastructure? Sure it is roads and bridges and stuff. But what about something like a democratic liberal politico-social structure? This is valuable (immigrants desire it). It was costly to set up and maintain (world war 2 for one example of some major maintenance expense). What about some really valuable stuff like… the torres strait? Or to give a more applied example the English Channel. Clearly the English Channel is a very, very valuable thing for England to have (WWII again, WWI, Napoleonic wars, etc, etc,). In 1938, a Jewish refugee from Germany would well want to pay a lot more to settle in England than France, largely because of the English Channel.

I’m not using a reducio ad absurdum argument here (or even spelling it correctly). I think that this is an area that is actually worth thinking about to flesh out the implications and see if it should be pursued.

5. On HECS, everyone with a HECS debt hates it, but I’ve yet to meet anyone who could suggest anything better. Not that they can’t agree on anything better, they couldn’t even come up with any ideas.

Patrick
Patrick(@patrick)
12 years ago

There must be a possibility, at least, that there is a price at which we could accommodate even a million or more arrivals.

It is also at least possible that this price is actually a lot less than we expect, or a lot more achievable. Surely some of the billions spent every year on foreign aid might just be better spent building desal plants in Australia?

Speaking of which, this was a curious proposition:

Thats why Rudds rhetoric about a big Australia is just cynical, intellectually bankrupt nonsense given his professed concern about global warming.

Why not vice versa? I suspect it actually is vice-versa.

Tysen
Tysen
12 years ago

I think of it slightly differently. It is not that those with the resources to get here are always less at need; it’s that we can’t do any ‘prioritisation’ with onshore applicants by virtue of the ’51 convention. So even some refugees with cash might still face greater risk of death or serious harm (and thus be at greatest need of relocation) than many poorer ones. It is kind of like an emergency department in a hospital in which there is no form of triage – the first sick person seen to may be the most at need of immediate attention but it is only a random chance, they may also be the least at need.

Patrick
Patrick(@patrick)
12 years ago

I didn’t mean for you to pay it. I meant that it would be paid by immigrants (or charitable donors, or, possibly, profit-seeking donors).

I agree that 15 million more Australians over just 40 years’ time seems a bit too much of a shock to the system (to every system), particularly given present nimbyish attitudes to development. If that was anything other than complete crap, I would expect to see some massive nuclear power plants being announced about now, for example.

If that was serious, I can imagine how it could be done. On one hand the question would then arise as to whether New Waziristan, QLD, would really be an Australian city. On the other hand this is a problem America seems to manage with some degree of success.

doctorpat
doctorpat
12 years ago

(NB: Doctorpat is not Patrick)

America also has a number of problems that can be blamed directly on the formation of closed ethnic groups. (Can also be blamed on something else, this is not an exact science.)

Avoidance of these problems seems to require mixing of immigrant populations, together with keeping the % of “Australians” (ie. those of mainstream Oz culture) high enough to be to dominant culture that others adapt to, rather than the other way around.

So doubling the population in a short time isn’t so bright. Unless Kev ups the baby bonus to $100k.

The other approach is a major war so that all the youngsters (women too these days) are inducted into the army for 4 years (major cultural brainwashing) plus the rest feel a need to minimise their non-australianism. This works but isn’t worth doing just for the cohesiveness it brings. Besides, what if the Kiwis beat us?

Global warming has a 33% chance of making Australia wetter, (33% no change and 33% drier), let’s face it, we have no idea. So it may just help.

Chris Lloyd
Chris Lloyd(@chris-lloyd)
12 years ago

Ken, The comments seemed to have been completely side-tracked from the point of your post. Do you not think it would be better to formally withdraw from the convention rather than just ignoring article 26? Picking and choosing which parts of a treaty you honour undermines our credibility, surely. Formal withdrawal is more honest and also requires us to come up with our own clear principles for handling boat arrivals.

AFAIK, no public commentator or politician of any complexion has ever suggested withdrawing from the convention – not even Barnaby. I do not see why it is not even thrown out there as an option. People would no doubt bring up the genuine jewish refugees who were refouled in the war. But you do not need an entire convention to say you will not refoul.

Chris Lloyd
Chris Lloyd(@chris-lloyd)
12 years ago

Ken. Thanks for the Millbank paper. It seems that I am correct then there have been no calls from any political “players” for withdrawal from the convention. I always thought that Howard rather loved the convention because he could run the “we decide line,,,” when advocates woudl quote the convention. But nobody ever asked him the obvious question. “If you really want to decide, just write your own bloody rules explicitly and let us judge how fair they are.”

I take your point that Australia is already not honouring various articles of the convention. I know that various advocates claim that we violate the convention from time to time and was not sure how to treat these claims. If you say we are probably violating then I accept that we are. I would still rather we were able to have our own clear policy and principles rather than build it around a convention whose articles we flout. Perhaps I should have been a lawyer ;)