Report on Asylum Seekers Won’t Please Everyone

The Expert Panel’s Asylum Seekers Report emphasises it is presenting a suite of measures which would operate together: so there should not be “cherry picking” by a cynical or desperate government but it naturally contains elements which will not please everyone, says human rights advocate, Julian Burnside QC.

The Expert Panel’s report makes the fair point that it is presenting a suite of measures which would operate together: so there should not be “cherry picking” by a cynical or desperate government. As a result, it naturally contains elements which will not please everyone.

The elements can be summarised as follows:
Substantive:

• Humanitarian Program be increased to 20,000 places per annum
• development of a regional cooperation framework, increased regional cooperation etc
• effective whole-of-government strategy for engaging with source countries
• processing in PNG, Nauru, Malaysia, (Indonesia is conspicuously absent)
• a ‘no advantage’ principle to ensure that no benefit is gained through circumventing regular migration arrangements
• family reunion for boat people only through the family stream of the migration program
• whole-of-government strategy be developed to negotiate better outcomes on removals and returns on failed asylum seekers
• disruption strategies, increased legal action against people smugglers
• effective, lawful and safe turnback of irregular vessels; enhanced Search and Rescue operations

Procedural:

• thorough review of refugee status determination process and outcomes
• linkage between the onshore and offshore components of the Humanitarian Program be reviewed within two years

The question is, how satisfactory is the whole package? I guess it depends on what you are trying to achieve.

The first thing to note is that it will not save lives at sea unless it makes coming to Australia look less attractive than facing down the Taliban: you aren’t at risk of drowning until you get into a boat. You don’t get taken to Nauru, Malaysia etc until after you get into a boat. So the Panel have interpreted the Terms of Reference as meaning “how do we discourage refugees from trying to come to Australia?”

Given that the Terms of Reference have been interpreted that way, it is not surprising that the substantive elements of the recommendations have a lot in common with the Pacific Solution – offshore processing, turn boats back, limited family reunion, disruption strategies. the Pacific Solution was explicitly designed as a means of deterring people from seeking our help: it was designed to “send a message” and it was not a friendly message.

The report strives to give something to everyone. The Coalition gets Nauru; the government gets Malaysia (sort of); refugee activists get an increased refugee intake.

But the key to refugee movements is resettlement: that’s what it is all about. The report does not say much about resettlement, except that coming by boat won’t give you an advantage. It’s part of the balanced set of ‘incentives’ and ‘disincentives’.

What are the dynamics of all this? Sending people to Nauru or PNG and resettling them at the time when they would otherwise have been resettled is obviously intended as a deterrent (or ‘disincentive’ as the report calls it). Same for turning boats back. The point is to make coming to Australia less attractive.

There’s a couple of problems here. First, how do you determine when a person would otherwise have been resettled? Do you measure the average time in an African camp? Do you look at the average time the same person would have spent in Malaysia or Indonesia? That will throw up a different answer. It’s going to cause problems. The average time for resettlement can range from 5 years to 40 years. Let’s take 5 years to keep the maths simple.

A boat person will get a ‘5-year penalty’. Presumably they will be held in Nauru or Manus Island during that time, before being resettled somewhere (the report does not say where they might be resettled). If this year’s boat people number (to August) is used as the annual average arrival rate, then Nauru (or Manus Island) will have to accommodate 35,000 boat people while the principle of ‘no advantage’ plays out. That would involve the population of Nauru increasing by 540%, or the population of Manus Island increasing by 81%. (If they came to Australia, the population would increase by 0.002%). Has this been run through the common-sense filter?

The major premise of the Report, of course, is that the mix of ‘incentives’ and ‘disincentives’ will dissuade people from seeking our help. The unstated hope must be that sudden, massive overcrowding of Nauru and Manus Island would be a transitory phase; after a time no one will want to come here for help.

That raises a different question. Do we, as a country, want to present ourselves as so hostile – so heartless, so ungenerous – that it’s better to stay put and take your chances with the Taliban or whatever tyrannical regime is trying to kill you? If we assume for a moment that the Pacific Solution was the reason boat arrivals diminished between 2002 and 2007 (I think it is contestable) can we be proud of it? It suited Howard politically to make Australia look less attractive than Saddam Hussein or the Taliban.

In my view, it was a miserable position to adopt, and most of the world despised us for it.
Most Australians, if forced to flee for their lives, would take a chance and get on a boat. There are some Australians who think boat people are having a lend of us, that they are not genuine refugees. Over the last 15 years, more than 90% of boat people have been assessed as genuine refugees. Come to think of it, our troops in Afghanistan seem to reckon that the Taliban are a pretty ruthless lot…

Finally, back to the headline idea behind the Panel’s work. Stopping people from risking their lives by getting on a boat. We all know that boat people do not come here as a lifestyle choice. Protecting them from the risks of a boat has an unstated counterpart: leaving them exposed to the risks they are trying to escape. It does not look quite so noble when you understand why they make the choice they do.

About the author: Julian Burnside is a barrister, human rights advocate, author and past president of Liberty Victoria. He is well known for his staunch opposition to the mandatory detention of asylum seekers, and has provided legal counsel in a wide array of high-profile cases. He represented Liberty Victoria in an action against the Australian Government over the Tampa crisis and has acted in several major cases on behalf of Indigenous Australians. He is an Australian Living Treasure and recipient of the Australian Peace Prize, and was made an Officer of the Order of Australia in 2009 for service as a human rights advocate.