Donald Rothwell: We're too desperate to please Jakarta
We should not allow the Indonesians a veto over our refugee policy

April 11, 2006

CAN Australia always decide who comes to this country and conditions under which they come? The announcement on Friday that the Howard Government is considering adjusting the processes by which asylum claims of West Papuans are considered so as to take into account the views of the Indonesian Government is a significant policy shift. The Prime Minister asserts that this practice will be consistent with Australia's international obligations. But can that really be the case?

As a party to the 1951 Refugees Convention, Australia has obligations of providing protection to persons with a "well-founded fear of persecution" by reason of their "race, religion, nationality, membership of a particular social group or political opinion". This international obligation is given effect in Australian law by the Migration Act. It was under this act that, in late March, the immigration department made a determination that 42 Papuan asylum-seekers were entitled to temporary protection visas.

While Foreign Minister Alexander Downer has acknowledged there are limits to Australia's capacity to take into account the views of the Indonesians, nevertheless, the Government's National Security Committee will be considering options later this week.

By opening the door to allow Indonesia to be heard on any future asylum claims, Australia not only runs the risk of breaching the Refugees Convention by revealing the identity of the claimants, but it also permits a foreign government to have a direct impact upon a decision-making process under Australian law.

Such a policy change would be intolerable, especially when making determinations on asylum claims, as it is almost inevitable that the Indonesians would refute assertions of serious human rights abuses in West Papua.

During the Schapelle Corby and Bali Nine trials, the Howard Government rightly made the point that Australians needed to respect Indonesian's legal system. Likewise, Indonesia needs to understand that it must respect Australia's legal system and that determinations made by government officials acting under law are to not be interfered with by a foreign government or even the Australian government.

The Australian Government is also reviewing its capacity for enhanced border patrols. As the West Papuan town of Merauke is only 300km from Cape York, this is the most direct passage by sea to the Australian mainland. Suggestions that the Australian Navy may be asked to interdict vessels carrying Papuan asylum-seekers have overtones of Operation Relux, conducted during late 2001 following the Tampa crisis.

While on that occasion the predominantly Middle Eastern refugees had only transited through Indonesia, that is not the case with the West Papuans who are allegedly fleeing Indonesian persecution.

That the Australian Government would even contemplate using its navy to repel West Papuan asylum vessels given the claims of human rights abuses that have occurred over a long period of time in that territory shows how desperate the Government has become to please Indonesia. Such a policy would also have little prospect of success without co-operation from Papua New Guinea given the capacity of the asylum vessels to easily slip into Australia via PNG waters.

There are some issues where, no matter how important the Australian-Indonesian bilateral relationship, a blind eye cannot be turned in the face of such serious allegations of human rights abuses and potential refugee outflows. Yes, Australia does clearly have a right to protect its border from illegal entrants. But it must do so in a manner that is consistent with its international obligations towards refugees and the international law of the sea, while also acting in the manner of a humane and compassionate democratic society.

By pushing back asylum boats Australia will be returning the Papuans to a regime where genocide is alleged to have been practised. This practice would not be accepted under international law, let alone by the international community and millions of Australians.

The Howard Government has been clearly stung by the fierce response from Jakarta to Australia's granting of the protection visas. Given the developments in the bilateral relationship between the two countries since the depths to which it plunged during the 1999 East Timor crisis, it is understandable that Australia does not wish the current row over the West Papuans to permanently damage relations.

To that end, the constant reassurance from both John Howard and Downer that Australia supports and recognises Indonesia's territorial integrity, and wishes to provide every support possible for the Indonesian state to continue its journey to full democracy, is essential if the relationship is to be kept on an even keel. Yet, sometimes hard choices have to be made between being a good neighbour and a good international citizen.

In this instance, Australia needs to be firm: it cannot stand by and ignore claims of substantial human rights abuses in West Papua; and if Papuan asylum-seekers arrive in Australia they will be objectively assessed under Australian law and granted protection as long as their claims are made out.

Donald Rothwell is professor of international law and director of the Sydney Centre for International and Global Law at the University of Sydney.


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