Real problem or “race to the bottom”? – Part I

Liberal Catholic priest and legal academic Father Frank Brennan thinks Australia’s current asylum seeker policies, which are effectively bipartisan despite the electorally-driven sound and fury, exhibit a disturbing “race to the bottom” tendency.

Sydney Morning Herald columnist  Sam de Brito at least recognises that the politicians’ cynical responses are driven by the fact that the overwhelming majority of Australians are deeply hostile to irregular  boat-borne asylum seekers. He opines that maybe this would not be  so if they actually met these asylum seekers and heard their stories. The problem for his theory is that the people most opposed to irregular asylum seekers are those living in western Sydney and Melbourne where the asylum seekers themselves live, whereas the ABC viewers and Fairfax readers who instinctively agree with Father Brennan mostly live in leafy suburbs in which asylum seekers couldn’t afford to rent a garden shed.

Meanwhile, Murdoch’s token left-leaning columnist Phillip Adams opines that Australia’s asylum seeker policies are really a paler shade of the old White Australia policy and aimed at “brown people”. He sees the comfortable entry into Australia of white South Africans in the post-apartheid era as proof that our asylum seeker policies are really aimed at the dusky and yellow races. However, the wealthy South Africans mostly got into Australia under our racially neutral business migration policies, which are now even more heavily utilised by wealthy Asian business people.

The fact is that the racist trope is just a lazy rhetorical device for people who can’t be bothered carefully analysing a difficult, complex and ever-changing phenomenon.

At the heart of this phenomenon is the Refugees Convention itself. It is an inappropriate and seriously misconceived response to the ongoing and ever-changing problem of displaced populations throughout the world. The Convention came into force in 1951 and was disproportionately influenced by recent memories of the Nazi Holocaust, and in particular high profile events like the plight of the asylum seekers on the MS St Louis, closer to home the internees on the  Dunera (who included Fred Gruen, father of Troppo co-patron Nicholas), as well as a large number of Eastern European refugees who fled the Russian Communist invasion at the end of World War II.

What the foregoing had in common was that they had fled racial, religious or political persecution in their homelands, had nowhere to go and yet were successively turned away by other countries which could have given them refuge. Accordingly, the Refugees Convention 1951 focused on remedying that situation, largely because it was a very limited aspect of the problem where agreement could be reached.  The much larger and more intractable international problems posed by ongoing flows of tens of millions of people displaced from their homelands for a wide range of reasons was simply left unaddressed.

The Convention does not oblige signatory nations to do anything at all to assist asylum seekers or displaced persons, whether or not they are “refugees”, unless and until they manage to get themselves within the signatory nation’s borders by whatever means. Moreover, the Convention defines “refugee” very narrowly: namely, only people with a well-founded fear of persecution on the grounds of race, religion, political opinion or membership of a particular social group (e.g. gays or Collingwood supporters).

The Convention effectively creates a privileged class of refugees with claims that cannot be refused, and a much larger underclass which can be and is safely ignored.

This definition excludes people who have fled their homeland as a result of flood, drought, famine, plague,  earthquake, tsunami, civil war, endemic coruption creating hopeless grinding poverty, and any number of other circumstances which may make such people equally desperate, equally at-risk in their homeland, and equally worthy of compassion and help as those who DO in fact satisfy the Convention definition.  The Convention effectively creates a privileged class of refugees with claims that cannot be refused, and a much larger underclass which can be and is safely ignored.

By framing its obligations so narrowly, the Convention creates a perverse incentive for people wanting to find a new and better home:

(a) to adopt all available means, including paying people smugglers, to reach a desirable first world country which is a signatory to the Convention; and

(b) to destroy their passports and tell whatever plausible story is necessary to bring themselves within the Convention definition of refugee.

How many of them really are refugees within that definition is impossible to know. Most European countries have shown an overall success rate for asylum seeker applicants of only a little over fifty percent over quite a few years, whereas the success rate of asylum seekers reaching Australia has consistently been around eighty to ninety percent. Are European countries  more mean-spirited? Do Australian decision-makers allow excessive benefit of the doubt? Could it even be that irregular asylum seekers reaching this country for some reason include a significantly higher proportion of genuine applicants?

The second problematic aspect of the Refugees Convention is that it requires signatory nations to provide protection for refugees who arrive on their shores for as long as they continue to have a “well-founded fear of persecution”, unless they already have “durable protection” in another country. Unlike the overwhelming majority of refugees during and after World War II, who had nowhere to go and had been turned away successively from other countries, the great majority of contemporary asylum seekers have actually lived for quite some time in UNHCR-administered refugee camps in countries of “first asylum” adjacent to their home country, before choosing to launch out and make a bid to reach their wealthy first world country of choice.

Signatory nations are obliged to provide protection for these people despite the fact that they were living in a refugee camp where they were at least relatively safe, because in most cases they did not have “durable protection“. This concept requires not only that the country of first asylum provides an effective guarantee not to return them to their homeland while they continue to hold a fear of persecution, but also more generally to protect their basic human rights, and to provide them with standards of housing, health, education, welfare and job opportunities roughly equivalent to the country’s own citizens. Given that most countries of first asylum are poor third world nations which simply cannot afford to provide such benefits, even with UNHCR and other international assistance, the Convention system effectively makes it optional for any refugee who is able to raise the necessary money and willing to take the risks involved, to launch an irregular bid to reach a wealthy first world country where they can lodge a claim for protection and therefore achieve permanent resettlement without having to wait a decade or more in a refugee camp in a country of first asylum.

This global phenomenon is one which was not contemplated by those who drafted the Convention and which makes little or no rational sense. Not only does it create perverse incentives for asylum seekers to “game” the system, but it equally creates incentives for signatory nations to do likewise and find innovative ways to reduce the flow of irregular asylum seekers to numbers that their society and citizens can tolerate. The range of cynical manoeuvres that first world governments use to achieve this are extensive. Australia’s gambits to reduce numbers and “stop the boats” are by no means exceptional despite attempts by refugee advocates to paint them as uniquely outrageous.((For example, Italian prime minister Silvio Berlusconi had a longstanding and highly successful agreement with Libyan dictator Gadaffi to “stop the boats” coming from North Africa.  However the boats have recently started coming again in the wake of the demise of both leaders. ~ KP))

The Refugees Convention is fundamentally flawed to such an extent that it is clearly in need of radical overhaul or abandonment. Commentators ranging from former Labor Minister for Immigration Gerry Hand, controversy-seeking legal academic Mirco Bagaric, through to humanities academics  Adrienne Milbank and Bob Birrell have recently advocated that Australia should withdraw from the Convention, while Federal Coalition Shadow Immigration Minister Scott Morrison has expressly left that option open.

Certainly if we did so we could devote the billions of dollars currently spent on managing and processing irregular asylum seeker arrivals (an amount that is likely to increase in the short term as the new Papua New Guinea Solution is implemented) to assisting poor countries of first asylum to build and maintain better refugee camps with more satisfactory education and health facilities.  That would help a lot more people in a much more equitable manner than at present.  As Bagaric argues:

We have this paradoxical situation where the people that we have given protection to are the mobile people; they’re the relatively affluent refugees as opposed to the ones that are the most destitute.

In the world at the moment we have 43 million displaced people. Australia, we accept 20,000 refugees per year.((Currently arriving at the rate of more than 30,000 per year.~ KP)) Once 20,000 boat arrivals have come here, we do not accept any people from the 43 million in the refugee camps that are the most impoverished, most destitute people in the world.

Nevertheless, some refugee advocates who frankly acknowledge the drastic shortcomings of the Convention nevertheless argue that it should not be abandoned because it would be impossible to negotiate a replacement international agreement, and because it at least encourages poor countries of first asylum to continue accepting flows of refugees from across their borders and allowing UNHCR to establish refugee camps. The knowledge that first world countries are doing their share of carrying the burden by honouring their Convention obligations helps to restrain them from closing their borders, or so the argument goes.

Personally, I doubt the veracity of this argument. It is much more likely that third world countries of first asylum allow irregular asylum seekers to cross their borders because they lack the military and other resources to stop them, and allow refugee camps to be built and maintained largely because it is in their economic interest to do so. It creates lots of jobs and business opportunities for locals that would not otherwise exist. That of course is precisely the reason why Papua New Guinea and Nauru have so readily embraced Australia’s revived Pacific Solution.

However, Australia would undoubtedly endure considerable international  opprobrium if we abandoned the Refugees Convention. Perhaps it is better simply to blatantly  subvert it, as we are undeniably doing by implementation of the new Pacific Solution (and for that matter John Howard’s version). Refugee advocates condemn such measures vociferously, and UNHCR grumbles a bit, but other nations say very little because many of them are pursuing equally devious and ruthless measures to reduce the flow of asylum seekers to their own shores.

Nevertheless, whether Australia is morally justified in adopting cynically pragmatic measures like the new Papua New Guinea/Pacific Solution really depends on whether the current levels of irregular asylum seeker arrivals represent a significant threat to our culture and society or whether, as people like Phillip Adams insist, our governments are merely pandering to the lowest common denominator of ignorant racist rednecks. That is the theme of Part II.

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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john r walker
10 years ago

I am aware of the legal (and other) reasons why Malaysia was not a solution. However the idea of some sort of regional processing center, seems a better idea. However -do you think it possible, in practice?

Bill Posters
Bill Posters
10 years ago

The problem for his theory is that the people most opposed to irregular asylum seekers are those living in western Sydney and Melbourne where the asylum seekers themselves live, whereas the ABC viewers and Fairfax readers who instinctively agree with Father Brennan mostly live in leafy suburbs in which asylum seekers couldn’t afford to rent a garden shed.

Do you have any evidence for this or is this simply that good ol’ kneejerk centrist contrarianism at work again? For example, I am pretty sure support for aysylum seekers is high in Melbourne suburbs like Brunswick and Coburg, which are full of both “ABC viewers and Fairfax readers” and actual asylum seeker-type communities.

10 years ago
Reply to  Bill Posters

Well, my about-face on immigration was prompted by living and working in Melbourne’s inner west, among large Arab and African refugee populations.

I’ve been threatened with death for parking in the wrong spot, been locked down in a block of flats by armed African kids because the cops told them to stop stealing mail, and been calmly informed more times than I can remember that non-Muslims have no right to be alive, and soon won’t be.

We know from the statistics that Sudanese males commit rape and assault at five times the rate of any other group, and nearly half of the male Lebanese population is on the dole.

There is simply no reasonable argument in favour of allowing people into Australia who have a demonstrated record of antisocial, antidemocratic behaviour. They are not able to adapt to life in civilised societies and shouldn’t be imposed on those who are.

Both major parties are going to an election with anti-immigrant policies, and the reason for that is more complex than base racism, even though xenophobes take it as a vindication of their views.

My particular beef is with the focus on boat arrivals, which make up a tiny proportion of asylum seekers. But photos of invading hordes on the horizon are much more dramatic than Falun Gong members pushing their suitcases through the airport.

10 years ago
Reply to  Bill Posters

Yes there are “aslyum seeker type community” restaurants and shops on Sydney Road but as a former resident of Coburg whose sister still lives there I’m pretty sure that the vast majority of “aslyum seeker type communities” are not actually living in suburbs with a median house price somewhere north of $500,000.

The complexity of thinking of the ABC/Fairfax crowd is actually about what you imply, though: Restaurants good, Neighbours bad.

10 years ago
Reply to  Patrick

Melbourne’s inner suburbs have the giant high rise council flats. Entire Somalian tribes live there, next to ratty two-bedroom terraces that go for a million bucks.

derrida derider
derrida derider
10 years ago
Reply to  Sancho

Err, Sancho, property values reflect a location’s amenity. If indeed entire Somali tribes all carrying on jihad live cheek by jowl with those terraces I doubt any of them would sell for a million bucks.

Your “statistics” are totally invented. Unemployment rate amongst migrants are considerably lower than for the population as a whole (though no doubt you’ll just switch in a flash from “they all live on welfare” to “they take all the jobs”). Poor illiterate young men form gangs wherever they’re from – and notoriously it is second-generation, not recently arrived, migrants who are prone to do so to assert their group identity. Far from being frequently threatened with death by Muslims, I can pretty well guarantee you’ve never even knowingly talked to one.

In short, you’re full of racist crap.

Paul Frijters
Paul Frijters
10 years ago


great piece. You can indeed see all these complexities in Europe too. The main difference with Europe IMO is that Australia is so astonishingly successful at integrating the many migrant communities, despite or perhaps because it is more blatant in terms of the people and traits it declares welcome and unwelcome.

From a social science perspective the key thing to get your head round is this whole business of ‘being seen to do the right thing’, i.e. the sacrificial element in support for these Conventions.

10 years ago
Reply to  Paul Frijters

Darwin presents an intersting mix of cultures, prisoners and values. I wager that a higher percentage of folk in Darwin have had dealings with asylum seekers, refugees and migrants and they in turn with mainstream residents and institutions than almost anywhere in Australia. Why do I say this?
Darwin is a a small city. The socio – economic diversity is probably best demonstrated if you ever try to tour the ‘rich’ suburbs of Darwin or conversely the poor ones. While a few suburbs sport several magnificent homes in a row you can be sure that magnificent uniformity is interrupted by ratty fences and tumbleweed commish. The poorer suburbs are more uniformly desolate but there is a healthy middle upper middle class presence there as well.

The place is small. One hospital, five public high/middleschools. Right now asylum seekers are housed in town in a resort at the airport converted for the purpose. At one stage a hotel in the CBD was converted for this purpose. Refugees and migrants are everywhere and a good job market provides an opportunity to make a contribution to the community straight away.

It is still essentially a government town and anyone in education or in health is very likely to have had contact with asylum seekers or refugees in the course of their daily work. This creates a deeper communication than passing in taxis and supermarkets.

There are no ghettos in Darwin compared to say the western suburbs of Melbourne. I was shocked when I explored Footscray earlier this year – what a change! I remember Springvale and Bridge Rd from the ’80’s. Darwin doesn’t have that.

This breeds a frankness that is often interpreted as racist if sounded out unedited in Melbourne company. That frankness is a result of knowledge born of proximity and experience. Knowledge and experience that has both attractive and repulsive elements. Everyone knows about everyone else in the small town way – ouch! It isn’t 6 degrees of separtion we are lucky if it is 2.

In the classrooms where I teach dance, communication between groups is honest and generally accepting of difference. The kids refer to the kids that attend from detention unselfconsciously. ‘You know Miss, that asylum seeker girl’. The African, Timorese, Indonesian, Philipino, Vietnamese. Burmese, Greek, Iranian, Chinese, Iraqi, Aust Indig and Anglo/Irish are a part of my everyday experience as a teacher and part of the experience ot the 40 other teachers at Sanderson Middle School which is not unique with regard to the socio- ethnic mix.

I am yet to teach in Melb but even on the Melb streets I don’t see the intense diversity I see here. It is a diversity that leads to a matter of fact acceptance, that is not without conflict – but we all have to live together so acceptance and accomodation become the rule and dare I say, always on some level there is an understanding.

MT Isa MIner
MT Isa MIner
10 years ago

Maybe you’d like to buy Sancho a beer while you are a humble pie mixed with racist crap.

Even us racists know where to find the facts to back up our racist opinions these days. What’s that the young úns say on the interwebs “google is your friend”?

Steve X
Steve X
10 years ago

This is the first time I’ve read something on Asylum Seekers in years that wasn’t a rehashing of old arguments.

Kudos to you Sir.

The Asylum Seeker debate in the context of the overall immigration debate is perhaps also worth considering. The fact that while the Howard government raised immigration levels while maintaining their Asylum Seeker policy is rarely pointed out.

Chris Lloyd
Chris Lloyd
10 years ago

“Australia would undoubtedly endure considerable international opprobrium if we abandoned the Refugees Convention.” Not sure what international opprobium means. I am pretty sure it would be a small price to pay.