Labor’s asylum seekers stance – die on your feet!

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.

If we assume reasonably that 20,000 boat arrivals per year represents an extreme upper bound on probable arrival numbers (given that it’s much more difficult and expensive for asylum seekers to get to Australia than Britain), and that only around 30% will succeed in their applications, we’re talking about issuing no more than 7,000 protection visas per year to boat-arriving asylum seekers on a “worst case” basis.  That would in no sense place pressure on Australia’s overall migration program or even prevent an ongoing generous offshore humanitarian program.  Moreover, it would save the great bulk of the one billion dollars per year we’re currently spending on this tiny number of people. The entire “boat people” question is a non-problem in policy terms that has been elevated to a crisis in the collective mind of the general public by cynically opportunistic Conservative politicians and Labor counterparts too gutless to cry “bullshit”.

I have previously argued with qualifications in favour of the “Malaysia Solution”, but only if real protection including observation of basic human rights standards could be assured.  It would be preferable in policy terms if Australia could find a principled way of persuading asylum seekers to wait in Malaysia or Indonesia rather than paying a relative fortune to people smugglers to make a dangerous boat journey to give themselves priority over everyone else. However, the High Court has examined the situation and effectively concluded that the absence of legal protections together with the Minister’s fundamental approach (we’re crossing our fingers that the Malaysians mean what they’re (not) promising) meant that no such assurances existed.

It might be possible for the Gillard government to “do a deal” with Tony Abbott to amend the Migration Act to remove the legal requirement for any meaningful Ministerial satisfaction as to third country protection, but only by overtly legislatively abrogating significant parts of Australia’s Convention obligations as well as any meaningful concept of guardianship of infants.  Why would Gillard do those things when manifestly the major practical result will be to concede absolute Coalition mastery of the issue, including implicitly accepting Abbott’s shrill accusations of incompetence?  It’s time Labor absorbed the message that it’s almost certainly electorally doomed, and adopted a principled approach of sound policy rather than futile continuation of attempting to be tougher on boat people than Howard or Abbott.  If Gillard and her colleagues can explain why a principled approach makes better sense on every level than punitive Howardism, they might even snatch an improbable victory from the jaws of defeat.  At least they’d experience the satisfaction of Emiliano Zapata: “It’s better to die upon your feet than to live upon your knees!”  I wonder what Julia would look like with a moustache (photoshopped image solicited)?

PS Mungo McCallum argues similarly.  However it was too much to hope for a sudden outbreak of courage and commonsense.  Hence the increasing number of articles touting the possibility of the return of Kev in the wake of my trailblazing speculation last week (he modestly claims).

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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Darryl Rosin
Darryl Rosin
10 years ago

They’d be…..?

d

Darryl Rosin
Darryl Rosin
10 years ago

Oh apologies, my website reading skills are not up to scratch tonight, I thought there was something following “punitive Howardism” that isn’t there. Feel free to delete whatever I’ve written.

d

Patrick
Patrick
10 years ago

I agree. I think this labor government suffers from appallingly weak knees, though, so I don’t expect them to actually do it.

My one quibble with the British analogy is that there are a lot of really nice (compared to anywhere else around) places to live inbetween Britain and ‘the primary asylum seeker-generating countries of Africa and the Middle East’ (although many of those are doing a great job of making themselves much less nice to live for asylum seekers, mainly by not having diddly-squat job prospects for anyone).

There are not that many great places to live inbetween Burma or Thailand or Laos or Vietnam (all of whom continue I believe to generate asylum seekers). Indeed there are arguably not many even inbetween here and Afghanistan/Pakistan given that the refugees of those places may not like India much.

conrad
conrad
10 years ago

“Even so, I still think 20,000 per year represents a realistic upper bound.”

I guess the real bound is public hysteria about it. In the longer term, it also represents a social problem since almost all of them are going to need public housing (presumably in competition with locals given the shortage of it), about half will end up looking like long-term unemployed if I’m remembering previous outcomes properly, and even those that do get jobs will almost always get poor paying ones, and presumably they will be even poorer than the typical poor after trying to support their unemployed friends/relatives. So unless you start subtracting as we do now from the overall intake this would cause quite some social problems over a decade or two. In addition, if we do subtract from the total intake, it means that more than half of the refugees will have got in this way, and I don’t think that is likely to go down too well with the public either, especially given the source countries (presumably excluding Sri Lanka, where I imagine problems will decline anyway).

derrida derider
derrida derider
10 years ago

Yep, I agree 20k a year is just possible, but nothing like 200k. Getting here by boat will always be bloody expensive and bloody dangerous (doing money deals with the gangsters – often uniformed ones – arranging things, BTW, is probably as much a danger as the boats themselves).

Now personally I have no problem at all with taking that number of people who have proved their desperation to find a good home and rebuild their lives -they’re actually self-selecting to be the type of people you want. But I also know that’s not the way a lot of Australians will see it, especially after the shock jocks and Murdoch press have their way.

john walker
john walker
10 years ago

Patric I think you might be right about viewing UK figure in isolation.

The dropping numbers in Britain could possibly reflect big drops in demand for labor in UK and the tightening of welfare allocation tests. Friends tell me that thousands of the eastern Europeans that were doing the ‘shite work’ in Britain have left ; Back on the home farm (as apposed to income-less in a flat) is a better place to sit out a depression. What are the figures for ,say, France like?

derrida derider
derrida derider
10 years ago

… Australia is the first juicy western target with generous social security and plenty of jobs

– Ken@5

It’s the plenty of jobs, not the social security, drawing them. That and – surprise, surprise – freedom from persecution and imprisonment in a camp. They don’t even get most social security after arriving for 2 years for a start (10 years for a pension), and it’s not at all generous for jobseekers anyway. Anyway all experience is that refugees everywhere are desperate to build themselves a settled life and willing to work very hard indeed to do it (they tend to be an exploitative employer’s dream).

Please don’t feed this “they only want our welfare payments” meme – its not true, and it is a favourite of some very nasty racists.

Patrick
Patrick
10 years ago

I suspect that ‘boat people’ refugees constitute, generally, the ideal work-force for a market that practically doesn’t exist in Australia: informal domestic help. Perhaps that (and our peculiar policies as to where we seem to stick them) explains why a large proportion end up in long-term unemployment.

john walker
john walker
10 years ago

Patrick what figures are you using?

Used to work with long term unemployed. Among refuge/migrants, the
main initial reason for unemployment and low skilled work was nearly always poor English skills (or sometimes qualification recognition issues) . Expect that most Afghans would have a poor standard of education generally ,the place has been in a state of war for decades.

Some have settled fairly well in the harsher parts of Australia that most beach lovers will not go to, no matter what is on offer.

As to Longer term and generational, I think it tends to map to cultural values about the importance/unimportance things like education , lawfulness and also degree of interrogation into wider society.

conrad
conrad
10 years ago

John W,

Look here, and thank Andrew Norton who had an article looking at it on his old blog, which is where I remember it from. To me one of the interesting things about this is what cost they are to Austraila — if they end up being really expensive, I would prefer the money spent on foreign aid rather than incresing the refugee program (assuming that foreign aid benefits many people more cheaply), although it always seems to be an easy thing for governments to cut back, despite our relatively stingy contribution. Every so often I have these strange alternative reality thoughts about how much better some places would be if instead of spending trillions fighting in them, the money was spent more constructively.

Richard Tsukamasa Green
Richard Tsukamasa Green(@richard-green)
10 years ago

Now personally I have no problem at all with taking that number of people who have proved their desperation to find a good home and rebuild their lives -they’re actually self-selecting to be the type of people you want.

Reminds me of this post DD. It’s certainly not an ideal selection mechanism, but I like it a great deal more than other methods tried like “paid money to a shonky vocational school” or “was still free enough to go through an airport”.

john walker
john walker
10 years ago

Con thanks for the link.

Don’t get us started on Foreign aid , It has to be one of the biggest rorts ever

Chris Lloyd
Chris Lloyd
10 years ago

Thanks for this Ken. I probably should bite the bullet and post on this rather than just comment. Anyway, on this occasion I will just make it a long comment.

You largely argue that “It is reasonable to project that UK numbers represent an upper bound to likely Australian asylum seeker numbers.” This is not clear to me at all.

You point out that Britain only accepted 27% of 24,000 applications in 2009 and they actually deported 64,000 in the same year. This is a pretty harsh deterrent. And there is little “pull factor” for refugees who are already in Europe to continue to Britain. Less the 10% do so. In our case, there is a very good reason for refugees in SE Asia to continue to Australia, especially when that is probably their original aim.

I think it makes more sense to look at Europe as a whole and the numbers are very large – around 300,000 per year I think. It was even higher in the recent past. Keep in mind also that refugees are not given citizenship in many countries such as Italy or Germany. They get TPVs.

So, I look at the over 200,000 “people of concern” currently waiting in Malaysia and ask myself, what would I do in their place if I could come to Australia and get painless PR after a few years? What would I do if I were one of 4 million “people of concern” in Pakistan and heard about this option? If I could, I would fly to Malaysia or Jakarta and follow the same route. Remember that Indonesia and Malaysia are among the very few countries that automatically issue entry visas to Afghan and Iraqi nationals.

Ken argues that we could assess applications more “rigorously” but the process seems tilted in favour of the applicant. According to my direct source at Christmas Island, the onus of proof is on the assessors to prove claims are false. And many of the rejections are overturned on appeal. Ken might be able to explain to what extent this is a consequence of policy rather than law.

Everything I understand about human nature tells me that if we are more “humane” then a very large wave would be the response. It is only our harsh detention, the uncertainty of the ultimate assessment, and the prospect of TPVs that provide the deterrent (over and above the obvious risk and cost of a boat journey of course). On the other hand, under the “humane” policy there would be the prospect of supportive community detention, an almost guaranteed positive assessment given our rules, and PR after a few years.

I actually agree with Conrad that “the real bound is public hysteria” though I wouldn’t call it hysteria. This bound is way lower than 200,000 and the political response would he harsh and swift long before any nightmare scenario. Let’s avoid this by not holding out false hope.

wizofaus
wizofaus
10 years ago

…and everything I understand about human nature says that the prospect of long periods of mandatory detention (on- or off-shore) is not going to make much difference for the majority of those people desperate enough to take the risk of the boat journey in the first place. Especially considering that the alternative is to remain stuck in situations with surely far worse conditions than our own detention centres.

Further, even if the knowledge of the nature of our mandatory detention was putting off fully half of all potential asylum seekers, I still wouldn’t consider that the ends justifies the means at all. Why not simply make our assessment criteria tougher?

billie
billie
10 years ago

On Life Matters on Monday Sept 5th the union rep for the CPSU staff on Christmas Island said that some of the people who protested in March 2011 had been granted asylum 20 months previously and they were still locked up on Christmas Island. She also said that there were 20 staff on night shift to supervise 3000 inmates.

Clearly when some one has been processed, it is cheaper to release the into the community than continue to pay $1600 per day to incarcerate them.

wizofaus
wizofaus
10 years ago

If the only asylum seekers remaining in detention (with, say, a 12 month maximum) were adults with no ID I would think that a reasonable enough situation.

Yobbo
Yobbo
10 years ago

If the only asylum seekers remaining in detention (with, say, a 12 month maximum) were adults with no ID I would think that a reasonable enough situation.

So all of them then Wiz?

How can you talk about a topic of which you have so little understanding.

All the boat arrivals have no ID. That’s the whole point of coming by boat. It would be cheaper to fly here otherwise.

Peter Patton
Peter Patton
10 years ago

I agree. I think this labor government suffers from appallingly weak knees, though, so I don’t expect them to actually do it.

It will be interesting to follow the future of Labor’s “Emily’s List” experient. But first, the popcorn!

lulu
lulu
10 years ago

Australia will always have refugees- My parents were boat people of the post WW2 kind – legal, but unwanted in their home country. We need to develop a better and less political way of dealing with the situation. Why not use Tasmania as a natural non-dentention centre, island bound, free community environment. It would force Tasmanians to embrace a greater cultural diversity then currently exisits here. It would probably enable Tasmania to move out of dependancy of welfare and forestry, due to an increased requirement in services, education, infrastructure etc that Tassy largely lacks. Its a cheap place to live, and 20K people a year, would improve our borderline declining/ unchanging population. Lets call it the Tassy solution.

Patrick
Patrick
10 years ago

Talk about the perfect greens wedge!

wizofaus
wizofaus
10 years ago

Yobbo – “It would be cheaper to fly here otherwise.” – exactly. In other words, part of the problem is that governments aren’t doing enough to give genuine refugees more opportunities to arrive here by plane.

However having read a little more, I agree, 12 months detention just because a refugee has no ID is not really justified. A significant percentage of those seeking refugee have no ID precisely because they’re trying to flee persecution.

wizofaus
wizofaus
10 years ago

(Actually, from what figures I can find, something like a 5th of boat arrivals do have some form of identification. Further, a significant percentage had possessed such identification at some point before the final leg of their journey. So if the message that arriving without ID and a plausible explanation of how you made it from your country of origin to Indonesia without ID would land you in mandatory detention could reach the relevant countries, it could potentially have some limited effect in reducing the activities of people smugglers.)

Yobbo
Yobbo
10 years ago

However having read a little more, I agree, 12 months detention just because a refugee has no ID is not really justified. A significant percentage of those seeking refugee have no ID precisely because they’re trying to flee persecution.

They have no ID because it makes it harder to disprove their claim for asylum. You really are horribly ill-informed about the whole thing.

Yobbo
Yobbo
10 years ago

That’s why refugees come by boat rather than by plane. You need ID to get on a plane, and even if you destroy it mid-flight, the airline’s computers have a record of it.

On the other hand you do not need ID to get on a boat service run by people smugglers. And if you do have ID, your best bet is to destroy it since it eradicates any chance the Australian government have of disproving your story.

wizofaus
wizofaus
10 years ago

Yobbo, I can only assume you find it strangely satisfying to view the world in such black and white terms. Personally I would find it oddly delusional.

Peter Patton
Peter Patton
10 years ago

Ken

“Punitive Howard”? You’re a Public Law academic type, known for writing refreshingly informed stuff about these issues. You’ve even been a Labor pollie. So, why hide fro the fact that his whole regimes was started by your own comrades. Keating took advantage on Howard’s clumsy attempt to pre-empt Fitzgerald’s advice to ditch multiculti and decrease Asian immigration. When the ALP decided to keep Fitzgerald on ice, by not mentioning it, Howard was suckered, isolated as if Australia’s lone anti-Asian/multiculti voice.

Keating and Gerry Hand very quitely reacted to the Fitzgerald Report by buidling the desert campa to lock up Asians way back in the times when Alexnder Downer was still pre-op, merely wearing fishnets. Perhaps, you were part of their Anti-Asian gestapo responsible for creating that most Orwellian “unlawful citizen”; a beast peculiarly excised from our legal system? And don’t forget this was also the day when ALP immigration policy was part of the Ethnic Branch Staacking Portfolio, which preferred donkey boys fro the Bekka Valley to software designers and accountants from India and China. At least Howard ended the punitice regime against skilled people who actually wanted to come here!

And now, instead of Keating, Hand, and Richo, Labor is, and has, been made up of the milk of human kindness flowing through the veins of Albo, Roxon, Neal, and Latham…

If you want to understand where Australia’s punitive immigration and refugee thinking, law, and other institutions comes from, you need to avert your gaze somewhere closer to home.

Peter Patton
Peter Patton
10 years ago

er, “unlawful NON-citizen”.

Peter Patton
Peter Patton
10 years ago

Part of the problem with Ken’s analogy is that suffers from that annoying tic that Law academics tend to have; and that is to think reading statutes tells us most about a society’s cultural and political environment. Whereas if you have ever lived in the UK, or even regularly read The Guardian, Independent, Daily Mail, New Statesman, Speccie, and so on, you will know that outside the Royal Borough, urban UK is overwhelmingly a 3rd world tip, which Australians would never put up with.

murph the surf.
murph the surf.
10 years ago

Lulu – brilliant suggestion – The Tasmanian Solution.
Satisfies all concerns and has considerable upside for the locals.
However I would guess if mandatory Tasmanian residence was enacted for all refugees the ensuing outcry would be composed of West Australians not wanting to pay for it and Human Rights Campaigners claiming such treatment constituted cruel and unusual punishment leading to mental health problems.

wizofaus
wizofaus
10 years ago

Peter, I would absolutely agree that Keating shoulders much of the blame for our current punitive attitudes towards asylum seekers. But I don’t see how that’s helpful in determining how we can dig ourselves out of this absurd hole.

john walker
john walker
10 years ago

Murph

We could mandate that all of the greens and the ‘arts’ and all the other vaguely annoying whiny noises could be placed in tassi – hows that for political science? “We give them money and are the grateful , no they are spiteful and they are hateful” “How peaceful it would be”

john walker
john walker
10 years ago

Sorry Should be
“We give them money and are they grateful?
No their spiteful and their hateful”..
“But we wont bomb Australia,
its got surfing and Kangaroos,
We’ll build an All American amusement park,
How peaceful it will be”

Chris Lloyd
Chris Lloyd
10 years ago

Wizofaus. My understanding (from a first hand source at Xmas island) is that the overwhelming majority have no ID. Apart from the Sri-Lankans, it also seems to be generally accepted by all sides of the argument that boat people are arriving from Malaysia, often via Indonesia. They arrive in Malaysia by plane with papers. They get on the boat without papers. If this is too “black and white” for you, then I suggest it is you who is “oddly delusional.”

Ken: You may be right that the numbers I envisage would not happen. But I think I (and Patrick@4) made the point that your argument by analogy with Britian was not strong. If I could be convinced that the numbers would stay below 10,000 per year, I would support a welcoming approach. By the same token, if I didn’t think it would establish perverse incentives, I would be in favour of doubling the unemployment benefit. Kindness can ultimately be cruel, when viewed in full context.

Finally, politically your suggestion for Gillard “explaining why a principled approach makes better sense” sounds like crazy to me. First the ALP got rid of TPV’s and said it would have no effect. Then they panicked and banned Sri-Lankans for a few months. Then they came up with the Malaysian idea. How can they go back to being more humane and keep a straight face? Surely, it would take a complete clearing of the leadership decks to make this kind of policy change.

wizofaus
wizofaus
10 years ago

Chris, that conflicts with what I read, which is it was precisely the Sri Lankans who were the ones likely to have discarded their ID after leaving their country. Anyway, I’ve already said I don’t have a huge issue with keeping adults with no ID in some form of limited (and onshore) detention. 12 months is probably too long – if after 6 months it’s still not possible to demonstrate a plausible case for refugee status then releasing them into the community with some form of special visa (that would allow repatriating once their original citizenship had been established and their home country determined to be safe) is probably the best option.

Peter Patton
Peter Patton
10 years ago

Peter, I would absolutely agree that Keating shoulders much of the blame for our current punitive attitudes towards asylum seekers. But I don’t see how that’s helpful in determining how we can dig ourselves out of this absurd hole.

Wiz, it is helpful in getting folks to focus on the reality that these policies are not nasty “Howard’s”. They are long-term “Australian” policies, supported by the two main poliical parties. They are not abberations implemented by an unsavory minority sect, who can be vaporized by historically ill-informed letters to the editor, or rants from Geoffrey Robinson, Sara Hanson-Young, and George Williams to The Age.

Yobbo
Yobbo
10 years ago

Yobbo, I can only assume you find it strangely satisfying to view the world in such black and white terms.

Because explaining to you what actually happens means I’m not capable of understanding subtlety!

murph the surf.
murph the surf.
10 years ago

Now John no point getting all huffy and dramatic…
In no way am I being serious but you never know with politicians.
I think it was patrick who was envisaging wedging the Greens.

Tysen
Tysen
10 years ago

Perhaps, you were part of their Anti-Asian gestapo responsible for creating that most Orwellian “unlawful non-citizen”; a beast peculiarly excised from our legal system?

I suspect the terminology is just a shorthand way of describing those who are referred to in Article 31 of the Convention relating to the Status of Refugees (Refugees unlawfully in the country of refuge) i.e. a person who is not a citizen, (a ‘non-citizen,’) and who also has no visa and is therefore here ‘unlawfully’ (until granted a visa.)

john walker
john walker
10 years ago

murph

Actually I thought the idea of building an ‘theme park’ in tassie was amusing.

spil spil and vinde
spil spil and vinde
9 years ago

Assault and Battery is against the law in EVERY STATE of the USA . Sentencing , fines or penalties etc . are at the disgression of the judge . The level of offence , class A /1st degree / etc .vary according to the severity of injury , age of the victim etc .This judge violated the very basic code of justice in every way .He should be impeached immediately . He’s not fit to be a judge in the U.S.This is an OUTRAGE , and should NOT STAND .