01 September 2011

No refuge

I supported the Malaysian solution. Go ahead, laugh. Not being a journalist or a politician I'm free to admit when I'm wrong.

To inform myself on the High Court's recent decision on this matter I read both kinds of mainstream media articles about it: gloaty pieces from those who dislike everything this government does balanced with gloaty pieces from those who disapprove of inhumane treatment of asylum-seekers in particular. Hooray and whoop-de-do for balanced reportage: at least I paid for them as much as they were worth.

I supported the Malaysian solution because I thought it would form the start of some sort of regional co-operation across southeast Asia on the matter of stateless and displaced people. Nauru and Manus Island were designed to hide the problem, not as a basis to work with others to solve it. Proposals for East Timor and, yes, bloody Manus Island again show what happens when you focus your policy-making energies on announceables rather than longterm solutions.

No country in the region can or should have to deal with thousands of refugees by themselves. Countries adjacent to states like Afghanistan, Sri Lanka, Burma or Vietnam from which asylum-seekers come have to sustain populations far in excess of Australia's on a fraction of our income: they can be cruel to asylum-seekers and refuse to recognise them legally because this is the only option they have to minimise the numbers of people they have to deal with.

Countries like Australia are attractive destinations for refuge-seekers, not just because of relative economic prosperity but also because we have a strong record of actually accepting those who seek asylum. For hundreds of years this country has been a place to which the wretched of the earth come to build a good life: it is true for Afghans and Somalis today, it was true of South Vietnamese and "Balts" and Greeks of previous generations, and my Scottish crofter ancestors in the 1830s. I can't believe that aspect of our history and our national character no longer applies.

Neighbouring countries resent being somehow responsible for those who use their territory as refuge from a dispute they have not provoked, or as a way-station for people en route to Australia. Rather than have countries feeling put-upon and resenting their neighbours for making their lives harder, we should co-operate so that we can all deal with asylum-seekers better than we do.

The good thing about the Malaysian solution, while it lasted (if such an apparition can be said to have 'lasted') was that there was more scrutiny over the last three months of the way Malaysia treats asylum-seekers than there ever was. I thought/hoped that a regional solution might lead to more of this sort of thing: watch it evaporate now.

With so many unemployed journalists in this country, with readily available media platforms and such cheap airfares to Asian countries, I'm surprised that more journalists aren't doing more freelance reporting from southeast Asia. Admired journalists like John Pilger cut their teeth by doing exactly that - but none of those who are Editors/News Directors today did, so young journalists demonstrating quality journalism under tough conditions would probably be lost on those people.

People who spend their lives standing up for human rights enjoy few rewards, but one of them can be a sense of righteousness that repulses more than it attracts. Observations of how asylum-seekers are treated in Malaysia have given rise to some talk about how Australia might guide Malaysia on human rights issues. This ignores the fact that relations between Australia and Malaysia have never been so fraught as when Australia decides to set itself up as an exemplar to Malaysia. There are 93,000 asylum-seekers in Malaysia and less than a tenth that number here: we aren't going to resolve anything or help anyone by putting ourselves in a position we can't sustain.

I thought that failing to conceive of a broader solution to the refugee issue was a weakness of Julian Burnside's piece, but you don't get to be a QC by being all pie-in-the-sky and taking your eye off real legal principles like we at the Politically Homeless Institute do. I agree with his criticism of the "Weird economics ... mandatory detention costs us about $1 billion a year", but I think here he is being disingenuous:
There is simply no merit in the idea of detaining people indefinitely just because they have arrived in Australia by boat. Asylum seekers also arrive by air: typically they arrive on short-term visas such as business, tourist or student visas.
Yes, but those who arrive by air have identity issues sorted. You don't get on an aeroplane unless you have a passport containing a visa. The issuing of both documents resolves the sorts of identity and background questions that are yet to be resolved for those who turn up with nothing but the clothes on their backs.
If Australia capped initial detention to just a month for health and security checks, overcrowding in detention would be solved instantly; the cost of operating the detention system would reduce dramatically; and the foreseeable mental harm which is caused by indefinite detention would stop.
It's not clear why a month would be sufficient to resolve security questions. Equally, it isn't clear why everybody should be held in detention in order to catch a few who might be doubtful. This, and the disturbing al-Kateb principle that Burnside cites, is one of the problems with extrapolating the general to the specific in public policy. Australia has a general right to exclude non-citizens from its territory and from many of its legal protections, but in exercising this right we impede the rights of human beings to whom we owe variously binding duties of care.

For all the wonders of the Australian legal system and its British heritage, &c., &c., the issue of national sovereignty versus universal principles is a serious design flaw. Again, it is a weakness of Burnside's piece that it does not examine that.

Speaking of assumptions that may prove unsustainable, it has been a mainstay of this blog that Annabel Crabb is a fool. This has come under considerable challenge with successive articles which appear to have come from beyond Parliament House: instead of wilting in such a strange environment she seems to have developed a sense of perspective, which we at the Politically Homeless Institute had long considered impossible for her to acquire convincingly or sustainably. This is still a dollop of conventional politico-media wisdom, but one of the better examples rather than among the worst. Some allowance, but not much, should be made for the fact that Crabb had to write this and post it within hours of a long and complex court case being decided.
Today's decision from the High Court is disastrous for the Government ... because the deterrent effect that was the redeeming feature of this harsh and - in terms of Labor's history in this policy area - hypocritical solution has now evaporated. Australia remains obliged to accept 4,000 new refugees from the Malaysian queues, and must now additionally expect a new influx of boat arrivals through the usual channels.
Burnside is sceptical of the deterrent effect and I am inclined to agree with him. In a world of push-factors for refugees, the pull factors have always been overstated by the Australian media (and by those wishing to pitch stories to the Australian media, such as the Coalition, which explains why the Coalition get such a good run from the media).

Crabb mentions push and pull factors briefly, but only from the government's perspective. She does not consider it from any position of whether or not it might be objectively valid in the case of the people concerned in seeking asylum. Yes, she had limited time, but raising the issue other than as a perception problem for government would prove some consideration of policy issues as they apply in the world beyond Canberra.
But the most egregious aspect of today's decision by the High Court is that it provides a new and crushing chapter in what has become a tale of rambling incompetence. Across both Rudd and Gillard governments, this policy area has played host to a most dispiriting display of opportunism, mendacity and half-arsedness. The Rudd government repealed some of the harshest elements of the Pacific Solution, but never acknowledged the plain-as-day reality that this decision would have some effects on the rate of boat arrivals. Busy denying the bleeding obvious, the Rudd government instead occupied itself with slogans about "tough and humane" policies while desperately casting about for regional assistance.
So: anything the government does - a program to build school facilities with a 97% success rate - is incompetent. Old-fashioned journalists used to chase stories: new-fashioned ones chase memes. I still think the search for a regional solution is more baby than bathwater but it looks like the media herd will trample it.
Do you recall the election campaign, in which the western Sydney MP David Bradbury materialised beside the PM on a patrol boat in Darwin Harbour, apparently monitoring the horizon for foreign wayfarers determined enough to invade his seat by means of the Parramatta River?
The Parramatta River trickles to a creek well before you get to the fabled electorate of Lindsay, but yes, I remember how both Gillard and Bradbury looked not like Defenders of the Commonwealth, but like a couple of dorks.
The confident assurance from the Immigration Minister just weeks ago that the High Court legal challenge had been anticipated and rigorously prepared-for was hit amidships early on by High Court Justice Hayne, who growled at the [Solicitor]-General that his submission was "half-baked". And now today's decision, in which the Government's Malaysia Solution is not crippled, not winged or crimped or slightly frustrated by our nation's highest court, but clean bowled.
Set aside the mixed metaphors and see that Chris Bowen has no credibility as Immigration Minister in pursuing or spruiking a policy that has been the polar opposite of what he has said and done for over a year. He should resign, and have sufficient faith in his political skills that his chances of becoming a minister again at some point are not yet gone.

For him to stay in his current office would put him in the same position as the ministers in the last unlamented Labor government in NSW. It would put him in the same position as the so-called moderates in the Liberal Party, whose clout is demonstrated by the utter lack of any moderate policies held or advanced by "their" Party (credit to @thewetmale for putting it so pithily).

Gillard needs a new Immigration Minister. Bowen may not warrant being removed from the ministry altogether so there may be scope to swap him. Possible alternative Immigration Ministers whose current portfolios could be entrusted to Chris Bowen:
  • Greg Combet;
  • Tanya Plibersek (nah, her activism for Palestine over Israel would make her unacceptable);
  • Brendan O'Connor (he's outside Cabinet; but Bowen can take one for the team and come back, just like Amanda Vanstone did);
  • Tony Burke (keeps the state and factional equilibrium; Immigration would make Burke or break him, while bushies would more easily relate to a minister who's been through tough times himself and who'd be more decisive than Burke).
Here we could play all sorts of games about reinvigorating the government, or rearranging deckchairs on the Titanic; either way the status quo is a non-option.
Nauru is the one reversal the Government has so far not permitted itself. Perhaps it will now. It hardly matters anymore; if anyone in the Government is still wondering why voters don't believe Julia Gillard when she says she has things under control, today should provide a devastating answer.
As the court has said nuh-uh to Nauru, there are two courses of action open to the government now. First and foremost is to process asylum applications in Australia. Plenty of people and even a few polls have called for this. People suspected of being dodgy or malicious should be dealt with in the standard manner: you have the right to remain silent ...

The second is to station more DIAC staff at embassies in countries from which asylum-seekers come. Phillip Ruddock recalled the Immigration official from the Australian embassy in Islamabad; this should be reversed. Embassies across the region should have staff capable of performing assessments and processing, and I'll bet the cost of doing so beats hands down the existing costs of detention.

The Coalition's preferred options of Nauru and Manus are shot every bit as much as the government's Malaysian solution. The idea that desperate people should form an orderly queue and not attempt to come here has no basis in fact, and should not be relied upon as the basis for policy.

And yet, imagine for a minute that the government were to take the first course in particular, when all other options have so clearly failed. The very process of going against a decade of practice in immigration policy, the sheer scope of destruction of all those hoary old themes and memes and half-baked assumptions, would be more than the press gallery could cope with, let alone communicate to the citizenry. It would take the sort of sell job that Paul Keating did during the 1980s across the gamut of economic reforms in order to effect such a transition. There is no way that the Australian media would or could adapt to the mental shift required in looking at refugees in such a new way.

The Coalition have their preferred options closed to them - with the exception of Temporary Protection Visas, and while they might appear as attractive as an ice-cream in a heatwave I would be fascinated if they lasted as long in the face of a High Court challenge. It can still complain about whatever the government does, with the expectation that the media will take its statements on face value. The Coalition does not, however, have any policy options to offer Australian voters:
  • Nauru and Manus Island are off the table. Any attempt to establish that human rights protections exist at those sites would look weaselly and be negated by the next example of Abbott flakiness;
  • The idea of a regional solution would not occur to anyone in the Coalition and they do not have the foreign-policy clout to pull it off;
  • Immigration spokesthing Scott Morrison lives from press release to press release and represents The Shire in federal parliament. In policy-development terms he is a sillyhead. If any politician is stuck in the tough-on-asylum-seekers theme, it's him.
  • The Situation would not survive any transition to a post-Howard immigration policy either. His job is to make people angry. Nauru and Manus have lost credibility, so a key aspect of his whole Howard Restoration theme is finished. It would be easy to simply agree with the government and have a moderate policy, perhaps with more of an emphasis on chasing the phantom of skilled migration; but Abbott is all about sharp and cutting differences with the government. Burying this policy difference would throw out his whole business model (if not his business case).
Asylum-seeker processing that was not only onshore but community-based would be the most radical departure Gillard ever did. Like Malcolm Fraser, her appetite for reform appears exhausted by the very means by which she ascended to the Prime Ministership. Yet, for all its political scope and risk, it is the only one with a clear advantage for the government.

Prime Ministers need to have gone through the wars a bit to get some respect, and Gillard has been there. Earlier this week she was starting to get on the front foot with News Ltd and even in Question Time. For her to keep trying to play the old game after the siren has sounded isn't committed or determined, it would be pathetic. A Prime Minister must never be pathetic: this is how the NSW Labor government ended up.

With its level of popular support, community processing with an increased offshore presence and cross-national co-operation is a winner. Well, in comparison to all the other loser policies it is. It has the capacity to rewrite the rules of the political game such that the Opposition as it is currently configured cannot compete. It would show that this is a government that does the right thing, however reluctantly; governments that do the right thing can be indulged in gaming the opposition. Those who don't demonstrably make that case look like they're just mucking about in sinking to the Opposition's level.

That said, I could be wrong about all this too.


  1. The truth is the Pacific solution is dead.

    The truth is, owing to two court judgements, the Opposition do not have a viable refugge policy.

    They have no idea how to stop the baot trade.

  2. Andrew like you I'm in favour of regional co-operaiton. I just think the Malaysian "solution" was a bad way to get there, a bit cart before the horse. The worst thing about it from a policy persepctive is I think it will kill off a reigonal intiative for a generation.

    And I like how when journos refer to "bungles" they struggle so much they have to go all the way back to "petrol and food watch"

  3. Andrew, the clarity and well argued case you write in this blog is fantastic. However I wonder whether this scenario can happen.

    ALP loses election in a huge whopping swing.

    Still does not achieve majority in Senate.

    Abbott wants to change Migration Act so he can send asylum seekers to Nauru.

    The ALP faces major atomic wedge. If it allows the legislation to pass through it will be accused by left/greens to approve refugees bashing, same as Liberal etc. Further alienating inner suburban leftie types (like me).

    If it blocks it will be accused by opposition/News Ltd. media of being weak on border protection, Liberals have a mandate etc. Alienating the so called 'West Sydney battlers' (if they exist that is)

    Abbott then can go to a double dissolution with the risk of ALP getting even more punished.

  4. Regional co-operation must mean a bit more than Australia claiming its right to ship asylum seekers off somewhere else. This seems to be what the Gillard government thought it meant. Hopefully the High Court ruling has slammed the door on off shore processing. It's time someone decided to lead on this. If they are able to get here, process them here as quickly as is reasonable and either settle them into the community or send them home. Use whatever money we save by processing onshore to run programs with our neighbours aimed at either improving conditions for asylum seekers in these countries (difficult but perhaps possible) and cracking down on the 'travel agents' that get the asylum seekers here.

    Get out and tell Australians whose doubts and fears have been fed by a couple of decades of cynical manipulation by both major parties the truth. This is a small problem. There are not many of these people either in absolute terms, in relation to the numbers who arrive by air or in relation to absolute numbers or numbers per capita that our less affluent neighbors have to accommodate.

    A government prepared to put this issue to bed by telling the truth (and risking the wrath of Sydney's western suburbs aspirationals) rather than spouting little 'truthy' homilies about breaking the people smugglers business model would free itself to focus on the seriously important issues confronting us.

    If we are worried about numbers blowing out our humanitarian immigration quota we can simply subtract the boat people from the overall quota. Agonizing about whether these people are inherently more or less deserving than the hopeless millions in the African camps is pointless and never likely to lead to viable policy.

    I don't think it matters if all our humanitarian intake are people forced to flee in fear of their lives from south-east and south-west Asia instead of people forced to flee for their lives in Africa.

    I reckon the way to break the people smugglers business model is this. We know there is no queue really so set one up in the refugee centres of our near neighbors. Establish an initiial approval process to be completed in Malaysia, Indonesia, Thailand wherever. Decide on the basis of this who we are able to take and who has to wait until next year or the year after and who we will never take. Send boats or planes to designated pick up points in south east Asia, take the quota for that year. Refuse to take any who arrive by any other means or from anywhere else courtesy private (non approved) 'travel entrepreneurs.'

    If any final checks are necessary in Australia these should be carried out expeditiously and it is only at this stage when the would be asylum seekers have arrived in Australia that the Australian courts should become involved in appeals. Hopefully the initial sorting in the region would have weeded out most of these disagreements. Appeals resulting from rejection at the initial sorting would have to be conducted via the UNHCR.

    There ya go. I've just solved the asylum seeker problem! What's wrong with those clowns in Canberra?

  5. No Anon, they don't.

    Greg, it has to start somewhere. The entire edifice of the EU is based on co-operation between France and West Germany over coal and iron ore.

    Laurie Oakes said that in his first term as PM, Howard made every mistake in the book but only made them once. This is what a fledgling PM looks like, people.

  6. Guido, I think Antony Green has smacked that one to the boundary, if not over it. Get on a train and go to Penrith or Gosford and see if you can pick any seething resentment. Then, throw away your News Ltd and your shock jocks and get on with your life.

    Doug: you have to do what you can I suppose. I like the idea of offshore processing - with a bit better recognition of skills we could tie it in with skilled migration.

  7. Sorry about that last post I gradually talked myself from one position to another. I do think the idea of taking control of the process by setting quotas, deciding who comes and in what order offshore, bringing them here ourselves and if necessary conducting any secondary assessment onshore has merits and would finish off the people smugglers.

  8. I do that myself.

    The next step, I suppose, is in not beavering away in our own embassies on that but sharing information and before you know it you have a regional solution.

  9. Interesting stuff. Regional processing is definitely the way to go. Totally agree. But I'm not sure about Nauru and Manus Island being gone now. Are you sure about this?

  10. Michael, it's one answer but we must take responsibility for those who end up here. Read the judgment summary I linked to above: we can't shunt asylum-seekers to countries with no human rights protections.

  11. Whether or not Nauru and Manus Island are legally acceptable will depend on the outcome of the future legal challenges to their use should any government either Labor or Coalition decide to attempt to make use of them. The High Court decision has potentially put them both out of play unless major changes to the laws of PNG and Nauru can be achieved. I reckon that at best use of such places is some way off in the future.

    My thought was to attempt to deal with our relatively small trickle of boat people by establishing clear quotas and guidelines for acceptance and applying these in the interim places in the region that refugees fleeing towards Australia end up in. Indonesia,Malaysia and perhaps Thailand.

    The idea that there was some sort of queue that these people were jumping was always a myth created for the local consumption of the gullible.

    What we need to do is establish the queue and the criteria for joining it and then take responsibility for bringing people in the queue to this country in an orderly fashion. Would be asylum seekers arriving in Bangkok, Kuala Lumpur or Jakarta should report to Australian embassies which of course must be resourced to make the processing of such people in an appropriate time frame possible. Given the state of the laws in Indonesia, Malaysia, and Thailand people refused a place in the queue would probably have recourse to appeal via UNHCR or not at all.

    The numbers of asylum seekers arriving via this path should simply be subtracted from our humanitarian intake. If the numbers coming this way swelled to occupy our entire humanitarian intake I see no problem with that. The notion that people fleeing persecution or death who arrive this way are less deserving than the hopeless millions in the African camps is ridiculous as I said before.

    This coupled with the absolute refusal to take anyone who arrives by any other means would stop the people smugglers dead in their tracks.

    As an affluent country Australia should do its fair share to alleviate this problem and aid to improve conditions for refugees elsewhere is as important as accepting them as migrants.

    As important as any of this is the fact that Australian governments must get busy showing Australians that these people don't constitute a threat, that the issue is minor, that the Government has it under control and that there are more important issues than the state of mind of a minority of people in Sydney's western suburbs for us to busy ourselves with.

  12. A few observations on a fine piece: the starting point is the principle of non-refoulement. It is an established principle of international refugee law that asylum seekers not be expelled or returned pending a final determination of their status - invalidating the Malaysian or any other offshore 'solution' (Source: Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention Relating to the Status of Refugees & its 1967 Protocol, UNHCR, Geneva, 2007). Secondly, countries with the largest refugee population are Pakistan (1.9m), Iran (1.1m) & Syria (1m)(source: UNHCR 2010 Global Trends Report), so get a grip, Australia. These are countries of first asylum. How anyone with half a brain questions secondary movement or thinks that 'turning back the boats' - any boat - is legal - is beyond me.

  13. Doug, meet Kimbo (thereferral). Kimbo, Doug.

    Kimbo, I thought there could be a process whereby Australia, Malaysia and other countries might deal with asylum-seekers in a co-operative manner without transfer either way being considered refoulement. I also think it's sneaky of adjacent countries to provide asylum-seekers with the means to keep moving and shunt the problem elsewhere (which is basically what Howard was doing with offshore processing).

    I hoped for better than the status quo provides, sue me.

  14. I too supported the Malaysian solution because it seemed a possible start to a regional processing centre, without detention, deterred people smuggling and increased our refugee intake.

    Now, however, circumstances have changed! And I have changed my mind! (Was I lying to myself, I wonder?) I still hope that Julia Gillard can somehow rescue the very real work Chris Bowen and she with officials of the Department of Immigration have done on regional cooperation from this unexpected collision with High Court.

    But meanwhile I think that the most practical solution is an onshore process, but without detention, perhaps with electronic device surveillance for security pending identity checks. This seems to me the cheapest and most humane solution. Is it practical? For me that was a major plus about Malaysia. There they don't have detention centres and asylum seekers returned there would have some level of personal freedom.

    I really appreciate the strength and leadership of the Prime Minister in trying to break the Geordian knot of the boat people problem. Sad that the High Court ruling has at last given the Opposition a real "FAIL" to lambaste her with.