Canberra joins the people traffickers

April 17, 2006

The newest version of the "Pacific solution" doesn't stand up to scrutiny, writes Frank Brennan.

The Howard Government wants to avoid a repetition of the 43 Papuan asylum seekers arriving on the Australian mainland, claiming to be refugees and 42 of them being granted temporary protection visas.

The Government would like to stop all asylum seekers reaching landfall in Australia unless they come with visas. Only a nation which is an island continent could entertain such a hope.

The Government would prefer such cases did not need to be decided by our public servants. It has not suggested that public servants made the wrong decision in any of these cases. It has floated two new policy ideas. Both are unprincipled. The first is unworkable and the second could not deliver what the Government hopes.

The first idea is that the Australian public servants determining asylum claims by people pleading persecution by a foreign government would check with that government whether any persecution was occurring. Imagine back in 2001 asking the Taliban if they were persecuting Hazaras in Afghanistan. In every instance, the Australian public servants would either receive an assurance that no persecution was occurring, or they would have to scrutinise closely the claims of non-persecution by the foreign government. If the public servants then decided a person was a refugee, there would be a risk of our public servants being seen to impugn the integrity of a foreign government. Jakarta would end up being more upset, not less.

The second idea is that the Government move the claims process offshore, extending the Pacific solution to all asylum seekers arriving in Australia without a visa. The Minister for Immigration, Amanda Vanstone, says unauthorised boat arrivals and their asylum claims will be treated in the same way whether they land on excised islands or the mainland.

A little history is in order before we go down the slippery slope of offshore equity for all asylum seekers.

Australia is a signatory to the 1951 Convention Relating to the Status of Refugees. Under Labor and Coalition governments, asylum seekers arriving on boats without visas were held in detention while their claims for refugee status were processed. Government justified such long-term detention, not just for health and security checks, on the basis that these people spent time in other countries en route where they could have obtained asylum. The Government also wanted to send a signal to people-smugglers and those who would employ them.

When thousands of Iraqis and Afghans were landing on our doorstep five years ago, the Government set up the Pacific solution, excising islands and granting temporary (rather than permanent) protection visas. These policy changes, together with the mandatory detention of all unauthorised arrivals, were justified on the basis that these people engaged in secondary movement, seeking a migration outcome. They were not directly fleeing persecution.

Under the Howard Government's Easter 2006 proposal, a Papuan reaching the Australian mainland, directly fleeing persecution without the use of people smugglers, would be moved to Nauru or Manus Island for processing. If we presume upon the integrity of the public servants and the decision-making, the same decision would ultimately be made and Australia would recognise the Papuan to be a refugee. Under the Refugee Convention, we could not send the Papuan back to Indonesia. No other country would have a higher duty than Australia to receive that person for resettlement, given that he or she fled directly to our shores. Just as the 42 Papuans have now settled in Melbourne after being processed on Christmas Island, so, too, the future Papuan asylum seeker would have to be settled in Australia.

The second idea gets Australia out of its bind with Indonesia only if the Papuan is denied asylum in Australia. Perhaps the Government thinks that by moving the decision-making offshore, it can be tampered with. Some, or all, of the 42 could be found not to be refugees if processed in Nauru or Manus Island. If those found to be refugees are to be resettled in third countries (other than Australia to which they fled directly), our Government will need to offer financial incentives to poorer countries to receive them. This is people trafficking. Why else would other countries receive a handful of refugees who have directly fled to Australia seeking asylum?

History has demonstrated that even many refugees classed as secondary movers, having engaged people smugglers, will be resettled in Australia once their claims have been successfully processed in Nauru or Manus Island. An extended Pacific solution is no solution at all.

Now that the Government controls the Senate, we will again have to rely on some considerate backbenchers pointing out to their colleagues on the ministerial benches that if every country signed the Refugee Convention and adopted this policy, people directly fleeing persecution would have nowhere to land. The convention would be dead in the water.

Even putting principle aside, these are two bad policy ideas, regardless of the political advantage at home or abroad.

Father Frank Brennan is professor of law at the Australian Catholic University and professor of human rights and social justice at the University of Notre Dame Australia.


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